As filed with the Securities and Exchange Commission on May __, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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PEDIATRIX MEDICAL GROUP, INC.
-----------------------------
(Exact name of registrant as specified in its charter)
Florida 65-0271219
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
1455 North Park Drive
Fort Lauderdale, Florida 33326
------------------------------
(Address of Principal Executive Offices)
Pediatrix Medical Group, Inc. Amended and Restated Stock Option Plan
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(Full title of the Plan)
-------------------
Roger J. Medel, M.D.
President and Chief Executive Officer
Pediatrix Medical Group, Inc.
1455 North Park Drive
Fort Lauderdale, Florida 33326
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(Name and address of agent for service)
(954) 384-0175
--------------
(Telephone number, including area code, of agent for service)
Copy to:
Rebecca R. Orand, Esq.
Greenberg, Traurig, P.A.
1221 Brickell Avenue
Miami, Florida 33131
(305) 579-0557
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed
Title of securities Amount to be offering price maximum aggregate Amount of
to be registered registered per share (1) offering price(1) registration fee
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Common Stock,
$.01 par value 2,250,000 shares $18.36-$61.00 $73,134,585 $20,332
====================================================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee and
computed in accordance with Rule 457(h) of the Securities Act of 1933, as
amended, on the basis of (i) the actual price of (a) $36.125 for an
aggregate of 12,152 options, (b) $38.125 for an aggregate of 50,000
options, (c) $32.50 for an aggregate of 182,500 options, (d) $33.875 for
an aggregate of 25,000 options, (e) $38.9375 for an aggregate of 5,000
options, (f) $45.125 for an aggregate of 325,000 options, (g) $61.00 for
an aggregate of 415,000 options, (h) $30.875 for an aggregate of 33,000
options, (i) $25.00 for an aggregate of 25,000 options and (j) $22.0625
for an aggregate of 150,000 options to purchase Common Stock being
registered, which have already been granted under the Company's Amended
and Restated Stock Option Plan, and (ii) the average of the high and low
sale price ($18.38) of the Common Stock on April 28, 1999 with respect
to the 1,027,348 shares of Common Stock subject to future grants under the
Amended and Restated Stock Option Plan.
Page 1 of 4 Pages
Exhibit Index at Page II-4
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the Registrant are hereby incorporated by
reference in this Registration Statement:
The Registrant hereby incorporates by reference into this Registration
Statement the following documents or portions thereof as indicated:
(a) the Registrant's Registration Statement on Form S-8 (Registration
No. 33-97672), filed with the Commission on October 3, 1995;(1)
(b) the Registrant's Registration Statement on Form S-8 (Registration
No. 333-07057);(2)
(c) the Registrant's Registration Statement on Form S-8 (Registration
No. 333-37937);(3)
(d) the Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998; and
(e) the description of the Registrant's Common Stock filed as a part of
the Registrant's Registration Statement, as amended, on Form S-1 under the
Securities Act of 1933 (Registration No. 33-95086) and Form 8-A (Registration
No. 000-26762).
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated herein by reference and to be a part
hereof from the date of filing of such documents.
- ------------------
(1) The Registration Statement on Form S-8 (Registration No. 33-97672), filed
with the Commission on October 3, 1995 (the "Original S-8"), registered
1,500,000 shares of the Registrant's Common Stock.
(2) At the Company's 1996 annual meeting of shareholders, held on May 8, 1996,
the Company's shareholders approved an amendment to the Plan, which
increased by 1,000,000 the number of shares available for grant under the
Plan from 1,500,000 to 2,500,000. The Registration Statement on Form S-8,
(Registration No. 33-07057) filed on June 28, 1996, registered the
additional 1,000,000 shares; thus, the total number of shares registered on
Form S-8 and available for grant under the Plan was 2,500,000.
(3) At the Company's 1997 annual meeting of shareholders, held on May 8, 1997,
the Company's shareholders approved an amendment to the Plan, which
increased by 750,000 the number of shares eligible for grant under the Plan
from 2,500,000 to 3,250,000. After giving effect to the amendment to the
Plan approved by the Registrant's shareholders at the Company's annual
meeting, and the effectiveness of the Registration Statement on Form S-8
(Registration No. 333-37937), the total number of shares registered on Form
S-8 and available for grant under the Plan was 3,250,000. On July 29, 1998,
the Company's Board approved an amendment to the Plan, which increased by
1,000,000 the number of shares eligible for grant under the Plan from
3,250,000 to 4,250,000. On January 28, 1999, the Company's Board approved
an amendment to the Plan, which increased by 1,250,000 the number of shares
eligible for grant under the Plan from 4,250,000 to 5,500,000. After giving
effect to the amendments to the Plan approved by the Board, and the
effectiveness of this Registration Statement on Form S-8, the total number
of shares registered on Form S-8 and available under the plan will be
5,500,000.
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fort Lauderdale, State of Florida on May 4, 1999.
PEDIATRIX MEDICAL GROUP, INC.
By:/s/ Roger J. Medel, M.D., M.B.A.
--------------------------------------
Roger J. Medel, M.D., M.B.A.
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Roger J. Medel, M.D., M.B.A. his
true and lawful attorneys-in-fact, with full powers of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments, including any post-effective
amendments, to this Registration Statement, and to file the same, with exhibits
thereto, and other documents to be filed in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorneys-in-fact or their substitutes, each acting alone, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Roger J. Medel, M.D., M.B.A. President, Chief Executive May 4, 1999
- ----------------------------------------- Officer and Director
Roger J. Medel, M.D., M.B.A. (principal executive officer)
/s/ Karl B. Wagner Vice President and Chief Financial May 4, 1999
- ----------------------------------------- Officer (principal financial and
Karl B. Wagner accounting officer)
/s/ M. Douglas Cunningham, M.D. Director May 4, 1999
- -----------------------------------------
M. Douglas Cunningham, M.D.
/s/ Cesar L. Alvarez Director May 4, 1999
- -----------------------------------------
Cesar L. Alvarez
/s/ Michael B. Fernandez Director May 4, 1999
- -----------------------------------------
Michael B. Fernandez
II - 3
EXHIBIT INDEX
Exhibit
Number Description
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4.1 Registrant's Amended and Restated Articles of Incorporation(1)
4.2 Registrant's Amended and Restated Bylaws (2)
4.3 Pediatrix Medical Group, Inc. Amended and Restated Stock Option
Plan, as amended
5.1 Opinion of Greenberg Traurig, P.A.
23.1 Consent of Independent Certified Public Accountants
23.2 Accountants' Consent
23.3 Consent of Greenberg Traurig, P.A. (contained in its opinion
filed as Exhibit 5.1 hereto)
24.1 Power of Attorney is included in the Signatures section of this
Registration Statement
- ----------------------
(1) Incorporated by reference to Exhibit 3.1 filed with the Registrant's
Registration Statement on Form S-1 (Registration No. 33-95086).
(2) Incorporated by reference to Exhibit 3.2 filed with the Registrant's
Form 8-K dated March 31, 1999 and filed with the Commission on April 6,
1999.
II - 4
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PEDIATRIX MEDICAL GROUP, INC.
AMENDED AND RESTATED
STOCK OPTION PLAN
---------------------------------------
1. Purpose. The purpose of this Plan is to advance the interests of
Pediatrix Medical Group, Inc., a Florida corporation (the "Company"), providing
an additional incentive to attract and retain qualified and competent persons
who are key to the Company (as hereinafter defined), including key employees,
Officers and Directors, and upon whose efforts and judgment the success of the
Company is largely dependent, through the encouragement of stock ownership in
the Company by such persons.
2. Definitions. As used herein, the following terms shall have the
meaning indicated:
(a) "Board" shall mean the Board of Directors of the
Company.
(b) "Code" shall mean the Internal Revenue Code of 1986,
as amended.
(c) "Committee" shall mean the stock option committee
appointed by the Board pursuant to Section 14(a) hereof or, if not appointed,
the Board.
(d) "Common Stock" shall mean the Company's Common Stock, par
value $0.01 per share.
(e) "Company" shall refer to Pediatrix Medical Group, Inc., a
Florida corporation, its wholly-owned subsidiary, Pediatrix Medical Group of
Florida, Inc., and the companies related to the Company through long-term
management contracts which provide the medical component of the services
required in respect of any arrangement where Pediatrix Medical Group, Inc.
provides the non-medical component of the services required in respect of such
arrangement in various states and Puerto Rico, and any future majority owned
subsidiary of the Company or any business entity, partnership or other business
entity related to the Company through a long-term management contract with
respect to the services described herein..
(f) "Director" shall mean a member of the Board.
(g) "Effective Date" shall mean the date the Plan was
originally effective, September 20, 1995.
(h) "Employee Director" shall mean a member of the Board who
is also an employee of the Company or a Subsidiary.
(i) "Fair Market Value" of a Share on any date of reference
shall be the "Closing Price" (as defined below) of the Common Stock on such
business day, unless the Committee in its sole discretion shall determine
otherwise in a fair and uniform manner. For the purpose of determining Fair
Market Value, the "Closing Price" of the Common Stock on any business day shall
be (i) if the Common Stock is listed or admitted for trading on any United
States national securities exchange, or if actual transactions are otherwise
reported on a consolidated transaction reporting system, the last reported sale
price of Common Stock on such exchange or reporting system, as reported in any
newspaper of general circulation, (ii) if the Common Stock is quoted on the
National Association of Securities Dealers Automated Quotations System
("NASDAQ"), or any similar system of automated dissemination of quotations of
securities prices in common use, the last reported sale price of Common Stock on
NASDAQ or such system, or (iii) if neither clause (i) or (ii) is applicable, the
mean between the high bid and low asked quotations for the Common Stock as
reported by the National Quotation Bureau, Incorporated if at least two
securities dealers have inserted both bid and asked quotations for Common Stock
on at least five of the ten preceding days. If neither (i), (ii) or (iii) above
is applicable, then Fair Market Value shall be determined in good faith by the
Committee or the Board in a fair and uniform manner.
(j) "Grant" shall mean the agreement between the Company and
the Optionee for the grant of an Option.
(k) Incentive Stock Option" shall mean an incentive stock
option as defined in Section 422 of the Code.
(l) "Non-Employee Director" shall mean a member of the Board
who is not an employee of the Company or a Subsidiary.
(m) "Non-Qualified Stock Option" shall mean an Option which is
not an Incentive Stock Option.
(n) "Officer" shall mean the Company's president, principal
financial officer, principal accounting officer (or, if there is no such
accounting officer, the controller), any vice-president of the Company in charge
of a principal business unit, division or function (such as sales,
administration or finance), any other officer who performs a policy-making
function, or any other person who performs similar policy-making functions for
the Company. Officers of Subsidiaries shall be deemed Officers of the Company if
they perform such policy-making functions for the Company. As used in this
paragraph, the phrase "policy-making function" does not include policy-making
functions that are not significant. Unless specified otherwise in a resolution
by the Board, an "executive officer" pursuant to Item 401(b) of Regulation S-K
(17 C.F.R. ss. 229.401(b)) shall be only such person designated as an "Officer"
pursuant to the foregoing provisions of this paragraph.
(o) "Option" (when capitalized) shall mean any option granted
under this Plan.
(p) "Optionee" shall mean a person to whom a stock option is
granted under this Plan or any person who succeeds to the rights of such person
under this Plan by reason of the death of such person.
2
(q) "Outside Director" shall mean a member of the Board who
qualifies as an "outside director" under Code Section 162(m) and the regulations
thereunder and as a "Non-Employee Director" under Rule 16b-3 promulgated under
the Securities Exchange Act.
(r) "Plan" shall mean this Stock Option Plan for the Company.
(s) "Securities Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended.
(t) "Share(s)" shall mean a share or shares of the Common
Stock.
(u) "Subsidiary" shall mean any corporation (other than the
Company) in any unbroken chain of corporations beginning with the Company if, at
the time of the granting of the Option, each of the corporations other than the
last corporation in the unbroken chain owns stock possessing 50 percent or more
of the total combined voting power of all classes of stock in one of the other
corporations in such chain.
3. Shares and Options. The Committee or the Board may grant to
Optionees from time to time Options to purchase an aggregate of up to 5,500,000
Shares from authorized and unissued Shares. If any Option granted under the Plan
shall terminate, expire, or be canceled or surrendered as to any Shares, new
Options may thereafter be granted covering such Shares.
4. Incentive and Non-Qualified Options. An Option granted hereunder
shall be either an Incentive Stock Option or a Non-Qualified Stock Option as
determined by the Committee or the Board at the time of grant of such Option and
shall clearly state whether it is an Incentive Stock Option or a Non-Qualified
Stock Option. All Incentive Stock Options shall be granted within 10 years from
the Effective Date of this Plan. Incentive Stock Options may not be granted to
any person who is not an employee of the Company or any Subsidiary.
5. Dollar Limitation. Options otherwise qualifying as Incentive Stock
Options hereunder will not be treated as Incentive Stock Options to the extent
that the aggregate Fair Market Value (determined at the time the Option is
granted) of the Shares, with respect to which Options meeting the requirements
of Code Section 422(b) are exercisable for the first time by any individual
during any calendar year (under all plans of the Company and any Subsidiary as
defined in Code Section 424), exceeds $100,000.
6. Conditions for Grant of Options.
(a) Each Option shall be evidenced by an option Grant that may
contain any term deemed necessary or desirable by the Committee or the Board,
provided such terms are not inconsistent with this Plan or any applicable law.
The Optionees shall be (i) those persons selected by the Committee or the Board
from the class of all regular employees of the Company or its Subsidiaries,
including Employee Directors and Officers who are regular employees of the
Company and (ii) Non-Employee Directors. Any person who files with the
Committee, in a form satisfactory to the Committee, a written waiver of
eligibility to receive any Option under this Plan shall not be eligible to
receive any Option under this Plan for the duration of such waiver.
3
(b) In granting Options, the Committee or the Board shall take
into consideration the contribution the person has made to the success of the
Company or its Subsidiaries and such other factors as the Committee or the Board
shall determine. The Committee or the Board shall also have the authority to
consult with and receive recommendations from officers and other personnel of
the Company and its Subsidiaries with regard to these matters. The Committee or
the Board may from time to time in granting Options under the Plan prescribe
such other terms and conditions concerning such Options as it deems appropriate,
including, without limitation, (i) prescribing the date or dates on which the
Option becomes exercisable, (ii) providing that the Option rights accrue or
become exercisable in installments over a period of years, or upon the
attainment of stated goals or both, or (iii) relating an Option to the continued
employment of the Optionee for a specified period of time, provided that such
terms and conditions are not more favorable to an Optionee than those expressly
permitted herein.
(c) The Options granted to employees under this Plan shall be
in addition to regular salaries, pension, life insurance or other benefits
related to their employment with the Company or its Subsidiaries. Neither the
Plan nor any Option granted under the Plan shall confer upon any person any
right to employment or continuance of employment by the Company or its
Subsidiaries.
(d) Notwithstanding any other provision of this Plan, an
Incentive Stock Option shall not be granted to any person owning directly or
indirectly (through attribution under Section 424(d) of the Code) at the date of
grant, stock possessing more than 10% of the total combined voting power of all
classes of stock of the Company (or of its parent or subsidiary corporation [as
defined in Section 424 of the Code] at the date of grant) unless the option
price of such Option is at least 110% of the Fair Market Value of the Shares
subject to such Option on the date the Option is granted, and such Option by its
terms is not exercisable after the expiration of five years from the date such
Option is granted.
(e) Notwithstanding any other provision of this Plan, and in
addition to any other requirements of this Plan, the aggregate number of Options
granted to any one Director, Officer or employee may not exceed 1,300,000, and
the aggregate number of Incentive Stock Options granted under the Plan may not
exceed 3,250,000.
7. Option Price. The option price per Share of any Option shall be any
price determined by the Committee or the Board but shall not be less than the
par value per Share; provided, however, that in no event shall the option price
per Share of any Incentive Stock Option or any Option granted pursuant to
paragraph (a) of Section 15 of this Plan be less than the Fair Market Value of
the Shares underlying such Option on the date such Option is granted.
8. Exercise of Options. An Option shall be deemed exercised when (i)
the Company has received written notice of such exercise in accordance with the
terms of the Option, (ii) full payment of the aggregate option price of the
Shares as to which the Option is exercised has been made, and (iii) arrangements
4
that are satisfactory to the Committee or the Board in its sole discretion have
been made for the Optionee's payment to the Company of the amount that is
necessary for the Company or Subsidiary employing the Optionee to withhold in
accordance with applicable Federal or state tax withholding requirements. The
consideration to be paid for the Shares to be issued upon exercise of an Option,
including the method of payment, shall be determined by the Committee or the
Board and may consist of cash, certified or official bank check, money order, or
if and to the extent permitted by the Committee or the Board, (x) Shares held by
the Optionee for at least six (6) months (or such other Shares as the Company
determines will not cause the Company to realize a financial accounting change),
(y) the withholding of Shares issuable upon exercise of the Option, or (z) by
any form of cashless exercise procedure approved by the Committee or the Board,
or in such other consideration as the Committee or the Board deems appropriate,
or by a combination of the above. The Committee or the Board in its sole
discretion may accept a personal check in full or partial payment of any Shares.
If the exercise price is paid in whole or in part with Shares, or through the
withholding of Shares issuable upon exercise of the Option, the value of the
Shares surrendered shall be their Fair Market Value on the date the Option is
exercised. The Company in its sole discretion may, on an individual basis or
pursuant to a general program established in connection with this Plan, lend
money to an Optionee, guarantee a loan to an Optionee, or otherwise assist an
Optionee to obtain the cash necessary to exercise all or a portion of an Option
granted hereunder or to pay any tax liability of the Optionee attributable to
such exercise. If the exercise price is paid in whole or part with Optionee's
promissory note, such note shall (i) provide for full recourse to the maker,
(ii) be collateralized by the pledge of the Shares that the Optionee purchases
upon exercise of such Option, (iii) bear interest at the prime rate of the
Company's principal lender, and (iv) contain such other terms as the Board in
its sole discretion shall reasonably require. No Optionee shall be deemed to be
a holder of any Shares subject to an Option unless and until a stock certificate
or certificates for such Shares are issued to such person(s) under the terms of
this Plan. No adjustment shall be made for dividends (ordinary or extraordinary,
whether in cash, securities or other property) or distributions or other rights
for which the record date is prior to the date such stock certificate is issued,
except as expressly provided in Section 10 hereof.
9. Exercisability of Options. Any Option shall become exercisable in
such amounts, at such intervals and upon such terms as the Committee or the
Board shall provide in such Option, except as otherwise provided in this
Section 9.
(a) The expiration date of an Option shall be determined by
the Committee or the Board at the time of grant, but in no event shall an Option
be exercisable after the expiration of 10 years from the date of grant of the
Option.
(b) Unless otherwise provided in any Option, each outstanding
Option shall become immediately fully exercisable in the event of a "Change in
Control" or in the event that the Committee or the Board exercises its
discretion to provide a cancellation notice with respect to the Option pursuant
to Section 10(b) hereof. For this purpose, the term "Change in Control" shall
mean the approval by the shareholders of the Company of a reorganization,
merger, consolidation or other form of corporate transaction or series of
transactions, in each case, with respect to which persons who were the
shareholders of the Company immediately prior to such reorganization, merger or
5
consolidation or other transaction do not, immediately thereafter, own more than
50% of the combined voting power entitled to vote generally in the election of
directors of the reorganized, merged or consolidated company's then outstanding
voting securities, or a liquidation or dissolution of the Company or the sale of
all or substantially all of the assets of the Company (unless such
reorganization, merger, consolidation or other corporate transaction,
liquidation, dissolution or sale is subsequently abandoned).
(c) The Committee or the Board may in its sole discretion
accelerate the date on which any Option may be exercised and may accelerate the
vesting of any Shares subject to any Option.
10. Termination of Option Period.
(a) Unless otherwise provided in any Grant, the unexercised
portion of any Option, other than an Option granted pursuant to Section 15
hereof, shall automatically and without notice terminate and become null and
void at the time of the earliest to occur of the following:
(i) unless otherwise provided in any Grant, three
months after the date on which the Optionee's employment is terminated for any
reason other than by reason of (A) Cause, which, solely for purposes of this
Plan, shall mean the termination of the Optionee's employment by reason of the
Optionee's willful misconduct or gross negligence, (B) a mental or physical
disability (within the meaning of Code Section 22(e)) as determined by a medical
doctor satisfactory to the Committee or the Board, or (C) death;
(ii) immediately upon the termination of the
Optionee's employment for Cause;
(iii) one year after the date on which the Optionee's
employment is terminated by reason of a mental or physical disability (within
the meaning of Code Section 22(e)) as determined by a medical doctor
satisfactory to the Committee or the Board; or
(iv) (A) twelve months after the date of termination
of the Optionee's employment by reason of death
of the Optionee, or (B) three months after the date on which the Optionee shall
die if such death shall occur during the one year period specified in Subsection
10(a)(iii) hereof.
All references herein to the termination of the Optionee's employment shall, in
the case of an Optionee who is not an employee of the Company or a Subsidiary,
refer to the termination of the Optionee's service with the Company.
(b) The Committee in its sole discretion may by giving written
notice ("cancellation notice") cancel, effective upon the date of the
consummation of any corporate transaction described in Section 9(b) hereof or of
any reorganization, merger, consolidation or other form of corporate transaction
in which the Company does not survive, any Option that remains unexercised on
such date. Such cancellation notice shall be given a reasonable period of time
prior to the proposed date of such cancellation and may be given either before
or after approval of such corporate transaction.
6
11. Adjustment of Shares.
(a) If at any time while the Plan is in effect or unexercised
Options are outstanding, there shall be any increase or decrease in the number
of issued and outstanding Shares through the declaration of a stock dividend or
through any recapitalization resulting in a stock split-up, combination or
exchange of Shares, then and in such event:
(i) appropriate adjustment shall be made in the
maximum number of Shares available for grant under the Plan, or available for
grant to any person under the Plan, so that the same percentage of the Company's
issued and outstanding Shares shall continue to be subject to being so optioned;
and
(ii) appropriate adjustment shall be made in the
number of Shares and the exercise price per Share thereof then subject to any
outstanding Option, so that the same percentage of the Company's issued and
outstanding Shares shall remain subject to purchase at the same aggregate
exercise price.
(b) Subject to the specific terms of any Option, the Committee
or the Board may change the terms of Options outstanding under this Plan, with
respect to the option price or the number of Shares subject to the Options, or
both, when, in the Committee's or the Board's sole discretion, such adjustments
become appropriate so as to preserve but not increase benefits under the Plan.
(c) Except as otherwise expressly provided herein, the
issuance by the Company of shares of its capital stock of any class, or
securities convertible into shares of capital stock of any class, either in
connection with direct sale or upon the exercise of rights or warrants to
subscribe therefor, or upon conversion of shares or obligations of the Company
convertible into such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made with respect to the number of or
exercise price of Shares then subject to outstanding Options granted under the
Plan.
(d) Without limiting the generality of the foregoing, the
existence of outstanding Options granted under the Plan shall not affect in any
manner the right or power of the Company to make, authorize or consummate (i)
any or all adjustments, recapitalizations, reorganizations or other changes in
the Company's capital structure or its business; (ii) any merger or
consolidation of the Company; (iii) any issue by the Company of debt securities,
or preferred or preference stock that would rank above the Shares subject to
outstanding Options; (iv) the dissolution or liquidation of the Company; (v) any
sale, transfer or assignment of all or any part of the assets or business of the
Company; or (vi) any other corporate act or proceeding, whether of a similar
character or otherwise.
7
12. Transferability of Options and Shares.
(a) No Incentive Stock Option, and unless the prior written
consent of the Committee or the Board is obtained and the transaction does not
violate the requirements of Rule 16b-3 promulgated under the Securities Exchange
Act no Non-Qualified Stock Option, shall be subject to alienation, assignment,
pledge, charge or other transfer other than by the Optionee by will or the laws
of descent and distribution, and any attempt to make any such prohibited
transfer shall be void. Each Option shall be exercisable during the Optionee's
lifetime only by the Optionee, or in the case of a Non-Qualified Stock Option
that has been assigned or transferred with the prior written consent of the
Committee or the Board, only by the permitted assignee.
(b) Unless the prior written consent of the Committee or the
Board is obtained and the transaction does not violate the requirements of Rule
16b-3 promulgated under the Securities Exchange Act, no Shares acquired by an
Officer or Director pursuant to the exercise of an Option may be sold, assigned,
pledged or otherwise transferred prior to the expiration of the six-month period
following the date on which the Option was granted.
13. Issuance of Shares.
(a) Notwithstanding any other provision of this Plan, the
Company shall not be obligated to issue any Shares unless it is advised by
counsel of its selection that it may do so without violation of the applicable
Federal and State laws pertaining to the issuance of securities, and may require
any stock so issued to bear a legend, may give its transfer agent instructions,
and may take such other steps, as in its judgment are reasonably required to
prevent any such violation.
(b) As a condition of any sale or issuance of Shares upon
exercise of any Option, the Committee or the Board may require such agreements
or undertakings, if any, as the Committee or the Board may deem necessary or
advisable to facilitate compliance with any such law or regulation including,
but not limited to, the following:
(i) a representation and warranty by the Optionee to
the Company, at the time any Option is exercised, that he is acquiring the
Shares to be issued to him for investment and not with a view to, or for sale in
connection with, the distribution of any such Shares; and
(ii) a representation, warranty and/or agreement to
be bound by any legends endorsed upon the certificate(s) for such Shares that
are, in the opinion of the Committee or the Board, necessary or appropriate to
facilitate compliance with the provisions of any securities law deemed by the
Committee or the Board to be applicable to the issuance and transfer of such
Shares.
14. Administration of the Plan.
(a) The Plan shall be administered by a committee appointed by
the Board (the "Committee") which shall be composed of two or more Directors all
of whom shall be Outside Directors. The membership of the Committee shall be
8
constituted so as to comply at all times with the applicable requirements of
Rule 16b-3 promulgated under the Securities Exchange Act and Section 162(m) of
the Internal Revenue Code. The Committee shall serve at the pleasure of the
Board and shall have the powers designated herein and such other powers as the
Board may from time to time confer upon it.
(b) The Board may grant Options pursuant to any persons to
whom Options may be granted under Section 6(a) hereof.
(c) The Committee or the Board, from time to time, may adopt
rules and regulations for carrying out the purposes of the Plan. The
determinations by the Committee or the Board and the interpretation and
construction of any provision of the Plan or any Option by the Committee or the
Board, shall be final and conclusive.
(d) Any and all decisions or determinations of the Committee
shall be made either (i) by a majority vote of the members of the Committee at a
meeting or (ii) without a meeting by the unanimous written approval of the
members of the Committee.
15. Grants to Non-Employee Directors.
(a) Each Non-Employee Director that is not affiliated with any
beneficial owner of more than 10% of the Company's Common Stock will receive on
the date of his or her appointment as a Director, an Option to purchase 5,000
shares of Common Stock, which Option will become fully exercisable on the first
anniversary of its grant. The per share exercise price of all Options granted to
Non-Employee Directors pursuant to this Section 15(a) will be equal to the Fair
Market Value of the Shares underlying such Option on the date such Option is
granted. The unexercised portion of any Option granted pursuant to this Section
15(a) shall become null and void three months after the date on which such
Non-Employee Director ceases to be a Director for any reason.
(b) In addition to Options granted to Non-Employee Directors
pursuant to Section 15(a), the Board may grant Options to Non-Employee Directors
pursuant to Section 6, subject to the provisions of the Plan generally
applicable to Options granted pursuant to Section 6.
16. Withholding or Deduction for Taxes. If at any time specified herein
for the making of any issuance or delivery of any Option or Common Stock to any
Optionee or beneficiary, any law or regulation of any governmental authority
having jurisdiction in the premises shall require the Company to withhold, or to
make any deduction for, any taxes or take any other action in connection with
the issuance or delivery then to be made, such issuance or delivery shall be
deferred until such withholding or deduction shall have been provided for by the
Optionee or beneficiary, or other appropriate action shall have been taken.
9
17. Interpretation.
(a) As it is the intent of the Company that the Plan comply in
all respects with Rule 16b-3 promulgated under the Securities Exchange Act
("Rule 16b-3"), any ambiguities or inconsistencies in construction of the Plan
shall be interpreted to give effect to such intention, and if any provision of
the Plan is found not to be in compliance with Rule 16b-3, such provision shall
be deemed null and void to the extent required to permit the Plan to comply with
Rule 16b-3. The Committee or the Board may from time to time adopt rules and
regulations under, and amend, the Plan in furtherance of the intent of the
foregoing.
(b) The Plan shall be administered and interpreted so that all
Incentive Stock Options granted under the Plan will qualify as Incentive Stock
Options under section 422 of the Internal Revenue Code. If any provision of the
Plan should be held invalid for the granting of Incentive Stock Options or
illegal for any reason, such determination shall not affect the remaining
provisions hereof, but instead the Plan shall be construed and enforced as if
such provision had never been included in the Plan.
(c) This Plan shall be governed by the laws of the State of
Florida.
(d) Headings contained in this Plan are for convenience only
and shall in no manner be construed as part of this Plan.
(e) Any reference to the masculine, feminine, or neuter gender
shall be a reference to such other gender as is appropriate.
18. Amendment and Discontinuation of the Plan. The Committee or the
Board may from time to time amend, suspend or terminate the Plan or any Option;
provided, however, that, any amendment to the Plan shall be subject to the
approval of the Company's shareholders if such shareholder approval is required
by any federal or state law or regulation (including, without limitation, Rule
16b-3 or to comply with Section 162(m) of the Internal Revenue Code) or the
rules of any Stock exchange or automated quotation system on which the Common
Stock may then be listed or granted. Except to the extent provided in Sections 9
and 10 hereof, no amendment suspension or termination of the Plan or any Option
issued hereunder shall substantially impair the rights or benefits of any
Optionee pursuant to any Option previously granted without the consent of the
Optionee.
19. Amended and Restated Effective Date and Termination Date. The
Amended and Restated Effective Date of the Plan shall be the date on which the
Board adopts this Amendment and Restatement of the Plan. The Plan shall
terminate on the 10th anniversary of the original Effective Date.
10
Exhibit 5.1
May 4, 1999
Pediatrix Medical Group, Inc.
1455 North Park Drive
Fort Lauderdale, Florida 33326
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
On the date hereof, Pediatrix Medical Group, Inc., a Florida
corporation (the "Company"), sent for filing with the Securities and Exchange
Commission a Registration Statement on Form S-8 (the "Registration Statement"),
under the Securities Act of 1933, as amended (the "Act"). The Registration
Statement relates to the offering and sale by the Company of up to 2,250,000
shares of the Company's Common Stock, par value $.01 per share (the "Common
Stock"), pursuant to stock options ("Options") granted or to be granted under
the Company's Amended and Restated Stock Option Plan, as amended (the "Plan").
We have acted as special counsel to the Company in connection with the
preparation and filing of the Registration Statement.
In connection therewith, we have examined and relied upon the original
or a copy, certified to our satisfaction, of (i) the Amended and Restated
Articles of Incorporation and Bylaws of the Company; (ii) records of corporate
proceedings of the Company, authorizing the Plan, any amendments thereto, and
the preparation of the Registration Statement and related matters; (iii) the
Registration Statement and exhibits thereto; and (iv) such other documents and
instruments as we have deemed necessary for the expression of the opinions
herein contained. In making the foregoing examinations, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, and the conformity to original documents of all documents
submitted to us as certified or photostatic copies. As to various questions of
fact material to this opinion, we have relied, to the extent we deem reasonably
appropriate, upon representations or certificates of officers or directors of
the Company and upon documents, records and instruments furnished to us by the
Company, without independently checking or verifying the accuracy of such
documents, records and instruments.
Based upon the foregoing examination, we are of the opinion that the
Company presently has available at least 2,250,000 authorized and unissued
shares of Common Stock from which the 2,250,000 shares of Common Stock proposed
to be sold pursuant to the exercise of Options granted under the Plan may be
issued, and, assuming that the Company maintains an adequate number of
authorized and unissued shares of Common Stock available for issuance to those
persons who exercise Options granted under the Plan and the consideration for
shares of Common Stock issued pursuant to such Options is actually received by
the Company as provided in the Plan, the shares of Common Stock issued pursuant
to the exercise of Options granted under and in accordance with the terms of the
Plan will be duly and validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we come
within the category of persons whose consent is required by Section 7 of the Act
or the rules and regulations of the Commission thereunder.
Sincerely,
GREENBERG TRAURIG, P.A.
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 26, 1998 relating to the
financial statements and financial statement schedules of Pediatrix Medical
Group, Inc., which appears in Pediatrix Medical Group, Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1997.
PricewaterhouseCoopers LLP
Fort Lauderdale, Florida
April 30, 1999
ACCOUNTANTS' CONSENT
The Board of Directors
Pediatrix Medical Group, Inc.
We consent to incorporation by reference in the Registration Statement on Form
S-8 of Pediatrix Medical Group, Inc. of our report dated March 22, 1999 relating
to the consolidated balance sheet of Pediatrix Medical Group, Inc. and
subsidiaries as of December 31, 1998 and the related consolidated statements of
income, stockholders' equity and cash flows for the year then ended, which
report appears in the December 31, 1998 annual report on Form 10-K of Pediatrix
Medical Group, Inc.
KPMG LLP
Fort Lauderdale, Florida
April 30, 1999