As filed with the Securities and Exchange Commission on January 2, 2009
Registration No. 333-101225
Registration No. 333-153397
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MEDNAX, INC.
(Exact name of registrant as specified in its charter)
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Florida
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26-3667538
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(State or other jurisdiction of
incorporation or organization)
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(IRS Employer
Identification Number)
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1301 Concord Terrace
Sunrise, Florida 33323-2825
(Address of Principal Executive Offices)
Amended and Restated Mednax, Inc. 1996 Non-Qualified
Employee Stock Purchase Plan
(Full title of the Plan)
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Thomas W. Hawkins, Esq.
Senior Vice President,
General Counsel and Secretary
Mednax, Inc.
1301 Concord Terrace
Sunrise, Florida 33323-2825
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Copies to:
Ira N. Rosner, Esq.
Greenberg Traurig, P.A.
1221 Brickell Avenue
Miami, Florida 33131
(305) 579-0844
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(Name and address of agent for service)
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(954) 384-0175
Telephone number, including area code, of agent for service
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in
Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer
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x
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Accelerated filer
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¨
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Non-accelerated filer
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¨
(Do not check if a smaller reporting company)
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Smaller reporting company
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¨
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EXPLANATORY NOTE
This Post-Effective Amendment No. 1 to the registration statements on Form S-8, Registration Nos. 333-101225 and 333-153397 (the Registration Statements), pertaining to the Amended and Restated 1996
Non-Qualified Employee Stock Purchase Plan of Pediatrix Medical Group, Inc., a Florida corporation (the Predecessor Registrant), is being filed pursuant to Rule 414 under the Securities Act of 1933, as amended (the Securities
Act), by Mednax, Inc., a Florida corporation (sometimes referred to herein as we, our, or the Registrant), the successor issuer to the Predecessor Registrant, to reflect the completion of a holding company
formation transaction that established the Predecessor Registrant as a wholly owned subsidiary of the Registrant (the Reorganization).
The Reorganization was implemented by merging PMG Merger Sub, Inc., a Florida corporation (PMG Merger Sub), which at the time was a wholly owned subsidiary of the Registrant, with and into the Predecessor Registrant (the
Merger), with the Predecessor Registrant being the surviving corporation (the Merger). The Merger was effected in accordance with Section 607.11045 of the Florida Business Corporation Act, as amended, and became
effective at 11:59 p.m. on December 31, 2008. Pursuant to the Merger, each issued and outstanding share of common stock, par value $0.01 per share, and attached preferred share purchase right, of the Predecessor Registrant was converted into
one share of common stock, par value $0.01 per share, and attached preferred share purchase right, of the Registrant.
In accordance with
Rule 414, the Registrant, as the successor issuer, hereby expressly adopts the Registration Statements as its own registration statements for all purposes of the Securities Act and the Securities Exchange Act of 1934, as amended (the Exchange
Act).
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified by Items 1 and 2 of Part I of Form S-8 is omitted from this filing in accordance with the provisions of Rule 428 of the
Securities Act, and the introductory Note to Part I of Form S-8.
The documents containing the information specified in Part I of Form S-8
will be sent or given to participating employees as specified by Rule 428(b) of the Securities Act. Such documents and the documents incorporated by reference herein pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
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PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
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Incorporation of Documents by Reference.
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The
following documents, which have been filed with the Securities and Exchange Commission, are hereby incorporated by reference into this registration statement:
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(a)
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The Predecessor Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2007;
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(b)
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The Predecessor Registrants Quarterly Reports on Form 10-Q for the quarters ended March 31, 2008, June 30, 2008 and September 30, 2008;
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(c)
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The Predecessor Registrants Current Reports on Form 8-K filed on January 17, 2008, March 28, 2008, April 7, 2008, May 27,
2008, August 22, 2008, September 4, 2008 and November 5, 2008, and our Current Report on Form 8-K filed on January 2, 2009 (not including any information furnished under Items 2.02, 7.01 or 9.01 of any such Form 8-K);
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(d)
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The Predecessor Registrants Proxy Statements on Schedule 14A filed on April 7, 2008 and August 22, 2008;
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(e)
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The description of our common stock contained in the Predecessor Registrants Registration Statement on Form 8-A (Registration No. 001-12111) filed with the
Securities and Exchange Commission on September 4, 1996 and any amendments to such Registration Statement filed subsequently thereto, including all amendments or reports filed for the purpose of updating such description; and
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(f)
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The description of the rights to purchase our Series A Junior Participating Preferred Stock contained in the Predecessor Registrants Registration Statement on Form 8-A
(Registration No. 001-12111) filed with the Securities and Exchange Commission on December 18, 2008 and any amendments to such Registration Statement filed subsequently thereto, including any amendments or reports filed for the purpose of
updating such description.
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In addition, all documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act (not including any information furnished under Items 2.02, 7.01 or 9.01 of Form 8-K, which information is not incorporated by reference herein) prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then remaining unsold, will be deemed to be incorporated herein by reference and to be a part of this registration statement from the date of filing of such documents. Any
statement contained in a document incorporated herein by reference will be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein, or in a subsequently filed document
incorporated herein by reference, modifies or supersedes the statement. Any statement modified or superseded will not be deemed, except as modified or superseded, to constitute a part of this registration statement.
Item 4.
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Description of Securities.
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Not applicable.
Item 5.
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Interests of Named Experts and Counsel.
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The
validity of the securities being registered hereunder is being passed upon for us by Greenberg Traurig, P.A., Miami, Florida. Cesar Alvarez, the Chief Executive Officer of Greenberg Traurig, P.A., is one of our directors. As of January 2, 2009,
Mr. Alvarez beneficially owns 10,000 shares and options to acquire 76,002 shares of our common stock, of which 63,556 are currently, or within 60 days of such date will be, exercisable.
II - 1
Item 6.
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Indemnification of Directors and Officers.
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The
Florida Business Corporation Act permits a corporation to indemnify the following persons (using a case-by-case determination) against liabilities arising in the following circumstances:
(i) any person who was or is party to any proceeding by reason of his or her service as a director, officer, employee or agent of the corporation; or
(ii) any person serving in such capacity, at the request of the corporation, for another corporation or business entity.
To be indemnified, a person seeking indemnification must have acted in good faith and in a manner he or she reasonably believed to be in, or not opposed
to, the best interests of the corporation. With respect to any criminal action or proceeding, such person must have had no reasonable cause to believe his or her conduct was unlawful. Under Florida law the corporation can indemnify such a person who
is a party to any proceeding by or in the right of the corporation against expenses and amounts paid in settlement which were actually and reasonably incurred in connection with the defense or settlement of the proceeding. Such indemnification may
not exceed the board of directors estimated expense of litigating the matter to a conclusion. No indemnification shall be made in respect of any issue as to which such person shall have been adjudged to be liable unless, and only to the extent
that, a court shall determine, in view of all circumstances, that such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper.
Under the Florida Business Corporation Act, indemnification for expenses actually and reasonably incurred in the defense of any proceeding is mandatory
to the extent that a director, officer, employee or agent is successful in such defense. Florida law also allows a corporation to provide any other or further indemnification or advancement of expenses to its directors, officers, employees or
agents; however such indemnification or advancement of expenses may not extend to situations where a final adjudication establishes that such persons actions, or omissions to act, were material to the cause of action so adjudicated and
constitute:
(i) a criminal violation, unless such person had reasonable cause to believe his conduct was lawful or had no reasonable cause
to believe his conduct was unlawful;
(ii) a transaction from which such person derived an improper personal benefit;
(iii) in the case of a director, a circumstance under which the director would be liable for authorizing an improper distribution; or
(iv) willful misconduct or conscious disregard for the best interests of the corporation in a proceeding by or in the right of the corporation to procure
a judgment in its favor, or in a proceeding by or in the right of a shareholder.
The amended and restated articles of incorporation of the
registrant provide that the registrant shall indemnify and may advance expenses to its officers and directors to the fullest extent permitted by the current law. The registrant has secured insurance covering the registrant and its directors and
officers and those of its principal subsidiaries and affiliate companies against certain liabilities.
The registrant has entered into
indemnification agreements with each member of its board of directors and its executive officers. The indemnification agreements require, among other things, that the registrant indemnify to the fullest extent permitted by law and advance to each
indemnified director and executive officer all related expenses, subject to reimbursement if it is subsequently determined that indemnification is not permitted. Under the indemnification agreements, the registrant must also indemnify and advance
all expenses incurred by an indemnified director or executive officer seeking to enforce his or her rights under the indemnification agreements and purchase and generally maintain in effect directors and officers liability insurance
during the term, and for a period of five years following the termination, of each directors and executive officers employment. Although the indemnification agreements offer substantially the same scope of coverage afforded by law, they
provide greater assurance to directors and executive officers that indemnification will be available, because, as contracts, they cannot be modified unilaterally in the future by the board of directors or the stockholders to eliminate the rights
they provide.
II - 2
Item 7.
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Exemption from Registration Claimed.
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Not
applicable.
See Exhibit Index on page
II-6 below.
(a) The undersigned registrant hereby
undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent not more than a 20 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective registration statement;
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(iii)
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To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the
registration statement;
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Provided, however
, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by
reference in this registration statement.
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(2)
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That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
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(3)
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To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
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(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act,
each filing of the registrants annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof.
II - 3
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to
directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
II - 4
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
Post-Effective Amendment No. 1 to the Registration Statements on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Sunrise, State of Florida on this 2nd day of January, 2009.
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MEDNAX, INC.
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By:
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/s/ Roger J. Medel, M.D.
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Roger J. Medel, M.D.
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Chief Executive Officer
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POWER OF ATTORNEY
Each person whose signature appears below hereby appoints Thomas W. Hawkins and Karl B. Wagner his true and lawful attorney-in-fact with authority
to execute in the name of each such person, and to file with the Securities and Exchange Commission, together with any exhibits thereto and other documents therewith, any and all amendments (including without limitation post-effective amendments) to
this registration statement necessary or advisable to enable the registrant to comply with the Securities Act of 1933, as amended, and any rules, regulations and requirements of the Securities and Exchange Commission in respect thereof, which
amendments may make such other changes in the registration statement as the aforesaid attorney-in-fact executing the same deems appropriate. Pursuant to the requirements of the Act, this Post-Effective Amendment No. 1 to the Registration
Statements on Form S-8 has been signed below by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Cesar L. Alvarez
Cesar L. Alvarez
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Chairman of the Board
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January 2, 2009
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/s/ Roger J. Medel, M.D.
Roger J. Medel, M.D.
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Chief Executive Officer
and Director
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January 2, 2009
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/s/ Karl B. Wagner
Karl
B. Wagner
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Chief Financial Officer
and Principal Accounting Officer
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January 2, 2009
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/s/ Waldemar A. Carlo, M.D.
Waldemar A. Carlo, M.D.
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Director
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January 2, 2009
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/s/ Michael B. Fernandez
Michael B. Fernandez
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Director
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January 2, 2009
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/s/ Roger K. Freeman, M.D.
Roger K. Freeman, M.D.
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Director
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January 2, 2009
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/s/ Paul G. Gabos
Paul
G. Gabos
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Director
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January 2, 2009
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/s/ Dany Garcia
Dany
Garcia
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Director
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January 2, 2009
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/s/ Pascal J. Goldschmidt, M.D.
Pascal J. Goldschmidt, M.D.
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Director
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January 2, 2009
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/s/ Manuel Kadre
Manuel
Kadre
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Director
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January 2, 2009
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/s/ Enrique J. Sosa, Ph.D.
Enrique J. Sosa, Ph.D.
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Director
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January 2, 2009
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II - 5
EXHIBIT INDEX
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Exhibit
Number
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Description
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4.1
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Articles of Amendment Designating Series A Junior Participating Preferred Stock of Mednax, Inc. (incorporated by reference to Exhibit 3.2 to the Registrants Current Report on Form 8-K
dated January 2, 2009).
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4.2
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Amended and Restated Preferred Share Purchase Rights Plan, dated as of December 29, 2008, by and between Mednax, Inc. and Computershare Trust Company, N.A., as rights agent, including the
form of Articles of Designations of Series A Junior Participating Preferred Stock and the form of Rights Certificate (incorporated by reference to Exhibit 4.2 to the Registrants Current Report on Form 8-K dated January 2, 2009).
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5.1
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Opinion of Greenberg Traurig, P.A.
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10.1
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1996 Employee Non-Qualified Stock Purchase Plan of Mednax, Inc., as amended and restated, dated January 1, 2009 (incorporated by reference to Exhibit 10.6 to the Registrants
Current Report on Form 8-K dated January 2, 2009).
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23.1
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Consent of PricewaterhouseCoopers LLP
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23.2
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Consent of Greenberg Traurig, P.A. (contained in its opinion filed as Exhibit 5.1 hereto)
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24.1
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Power of Attorney (contained on the signature pages of this Registration Statement)
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II - 6
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