s8pos152777_metrohealth.htm
As
filed with the Securities and Exchange Commission on January 7,
2010
Registration
No. 333-152777
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Post
Effective Amendment No. 1 to
FORM
S-8
REGISTRATION
STATEMENTS UNDER THE SECURITIES ACT OF 1933
Metropolitan
Health Networks, Inc.
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(Exact
name of registrant as specified in its
charter)
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Florida
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65-0635748
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(State
or other jurisdiction of incorporation or organization)
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(I.R.S.
Employer Identification No.)
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250
Australian Avenue, Suite 400
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West
Palm Beach, FL
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33401
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Omnibus
Equity Compensation Plan
(Full
title of the plans)
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Metropolitan
Health Networks, Inc.
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250
Australian Avenue South, Suite 400
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West
Palm Beach, FL. 33401
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(Name and
address of agent for service)
(561)
805-8500
(Telephone
number, including area code, of agent for service)
with a
copy to:
David
E. Wells, Esq.
Hunton
& Williams LLP
1111
Brickell Avenue, Suite 2500
Miami,
FL 33131
(305)
810-2500
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):
Large
accelerated filer o Accelerated
filer
x
Non-accelerated
filer o Smaller
reporting company o
EXPLANATORY
STATEMENT
This Post-Effective Amendment (this
“Post-Effective Amendment”) constitutes Post-Effective Amendment No. 1 to the
Registration Statement on Form S-8, Registration No. 333-122976, filed on
February 24, 2005 with the Securities and Exchange Commission and Post-Effective
Amendment No. 1 to the Registration Statement on Form S-8, Registration No.
333-1527777, filed on August 5, 2008 with the Securities and Exchange
Commission. This Post-Effective Amendment is being filed solely to include a
reoffer prospectus that forms a part of this Post-Effective Amendment relating
to the resale of control securities acquired or to be acquired by the selling
shareholder listed under the “Selling Shareholder” section of the prospectus.
The selling shareholder has acquired or will acquire the securities pursuant to
Metropolitan Health Networks, Inc.’s various equity compensation plans. The
reoffer prospectus contained herein has been prepared in accordance with the
requirements of Part I of Form S-3 and, pursuant to General Instruction C
of Form S-8, may be used for reoffers or resales of the shares that have been or
will be acquired by the selling shareholder.
The inclusion of the individual listed
under the “Selling Shareholder” section of the prospectus does not constitute a
commitment to sell any or all of the stated number of shares of common stock.
The number of shares offered shall be determined from time to time by the
selling shareholder at his sole discretion and such individual is listed as a
selling shareholder solely to register the shares that he has received or will
receive under the Company’s various equity compensation plans.
PROSPECTUS
1,335,892
Shares of Common Stock
for
Resale by the Selling Shareholder
Metropolitan
Health Networks, Inc.
This
prospectus relates to the resale of up to 1,335,892 shares of the common stock,
par value $0.001 per share, of Metropolitan Health Networks, Inc. (“we”, “us” or
“Company”) that may be offered and sold, from time to time, by the selling
shareholder identified under the caption “SELLING SHAREHOLDER” in this
prospectus. The shares were acquired, or will be acquired, by the selling
shareholder pursuant to our Omnibus Equity Compensation Plan and our 2001 Stock
Option Plan. The registration of the common stock by the selling shareholder
does not necessarily mean that the selling shareholder will offer or sell his
shares.
All of
the proceeds from the sale of the shares covered by this prospectus, net of
brokerage commissions, if any, will be received by the selling shareholder. We
will not receive any of the proceeds from the sale of those shares.
Our
common stock is traded on the NYSE Amex under the symbol “MDF.” On January 4,
2010, the last reported sales price for our common stock on the NYSE Amex was
$2.00 per share.
See
“Risk Factors” beginning on page 3 of this prospectus for factors you should
consider before buying shares of our common stock.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities, or passed upon the adequacy or
accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The
date of this prospectus is January 7, 2010.
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Page
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Disclosure Regarding Forward-Looking
Statements
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3
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Prospectus Summary
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5
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Risk Factors
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5
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Use of Proceeds
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5
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Selling Shareholder
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6
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Plan of Distribution
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7
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Legal Matters
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7
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Experts
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7
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Where You Can Find More
Information
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7
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Incorporation of Certain Documents by
Reference
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8
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You
should rely only on the information contained in this prospectus. We have
not authorized anyone to provide you with information different from that
contained in this prospectus or any prospectus supplement. This prospectus
is not an offer of these securities in any jurisdiction where an offer and sale
is not permitted. The information contained in this prospectus is accurate
only as of the date of this prospectus, regardless of the time of delivery of
this prospectus or any sale of our common stock.
DISCLOSURE
REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents we have incorporated by reference contain
forward-looking statements within the meaning of the federal securities laws.
Forward-looking statements convey our current expectations or forecasts of
future events. We intend such forward-looking statements to be covered by the
safe harbor provisions for forward-looking statements contained in the Private
Securities Litigation Reform Act of 1995.
These
statements involve known and unknown risks and uncertainties, such as our plans,
objectives, expectations and intentions, and other factors that may cause us, or
our industry’s actual results, levels of activity, performance or achievements
to be materially different from any future results, levels of activity,
performance or achievements expressed or implied by the forward-looking
statements.
In some
cases, you can identify forward-looking statements by statements that include
the words “estimate,” “project,” “anticipate,” “expect,” “intend,” “may,”
“should,” “believe,” “seek” or other similar expressions.
Specifically,
this prospectus and the documents we have incorporated by reference contain
forward-looking statements, including the following:
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the
ability of our provider service network (the “PSN”) to renew those network
agreements with Humana with one-year renewable terms and maintain all of
the network agreements with Humana on favorable
terms;
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our
ability to make reasonable estimates of Medicare retroactive premium
adjustments; and
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our
ability to adequately predict and control medical expenses and to make
reasonable estimates and maintain adequate accruals for incurred but not
reported medical claims.
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The
forward-looking statements reflect our current view about future events and are
subject to risks, uncertainties and assumptions. We wish to caution readers that
certain important factors may have affected and could in the future affect our
actual results and could cause actual results to differ significantly from those
expressed in any forward-looking statement. The following important factors
could prevent us from achieving our goals and cause the assumptions underlying
the forward-looking statements and the actual results to differ materially from
those expressed in or implied by those forward-looking statements:
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reductions
in government funding of the Medicare program and changes in the political
environment that may affect public policy and have an adverse impact on
the demand for our services;
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the
loss of or material, negative price amendment to significant
contracts;
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disruptions
in the PSN’s or Humana's healthcare provider
networks;
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failure
to receive accurate and timely claims processing, billing services, data
collection and other information from
Humana;
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future
legislation and changes in governmental
regulations;
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increased
operating costs;
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reductions
in premium payments to Medicare Advantage
plans;
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the
impact of Medicare Risk Adjustments on payments we receive from
Humana;
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the
impact of the Medicare prescription drug plan on our
operations;
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general
economic and business conditions;
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the
relative health of our customers;
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changes
in estimates and judgments associated with our critical accounting
policies;
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federal
and state investigations;
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our
ability to successfully recruit and retain key management personnel and
qualified medical professionals;
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impairment
charges that could be required in future periods;
and
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our
ability to successfully integrate and retain the customers of any
physician practices that we
acquire.
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In light
of these risks, uncertainties and assumptions, you are cautioned not to place
undue reliance on forward-looking statements, which speak only as of the date of
this prospectus or as of the date of any document incorporated by reference in
this prospectus, as applicable. When considering forward-looking statements, you
should keep in mind the cautionary statements in this prospectus and the
documents incorporated by reference. We are not under any obligation, and we
expressly disclaim any obligation, to update or alter any forward-looking
statements, whether as a result of new information, future events or otherwise,
except as required by law. In light of these risks, uncertainties and
assumptions, the forward-looking events discussed in or incorporated by
reference in this prospectus might not occur.
The
Company
Through
our PSN, we provide and arrange for medical care primarily to Medicare Advantage
beneficiaries in 19 counties in the State of Florida who have enrolled in health
plans primarily operated by Humana, Inc. and/or its subsidiaries, one of the
largest participants in the Medicare Advantage program in the United States. We
operate the PSN through our wholly-owned subsidiary, Metcare of Florida,
Inc. As of November 30, 2009, the PSN provided healthcare benefits to
approximately 35,619 Medicare Advantage beneficiaries (including 217
beneficiaries covered under our agreement with CarePlus).
We are a
Florida corporation. Our principal executive offices are located at 250
Australian Avenue, Suite 400, West Palm Beach, Florida 33401. Our telephone
number is (561) 805-8500 and our website address is www.metcare.com
The
Offering
This
offering relates to 1,335,892 shares of our common stock that may be offered and
sold, from time to time, by the selling shareholder identified in this
prospectus under the caption “SELLING SHAREHOLDER.” All the proceeds from the
sale of the shares covered by this prospectus, net of brokerage commissions, if
any, will be received by the selling shareholder. We will not receive any
proceeds from the sale of the shares. Our common stock is traded on the
NYSE Amex under the symbol “MDF.”
Our
business is subject to significant risks. You should carefully consider the
risks and uncertainties described in this prospectus, any accompanying
prospectus supplement and the documents incorporated by reference herein,
including the risks and uncertainties described under the caption “Risk Factors”
included in Part I, Item 1A of our Annual Report on Form 10-K for the
fiscal year ended December 31, 2008 and our Quarterly Reports on Form 10-Q
for the quarters ended March 30, 2009, June 30, 2009 and September 30, 2009,
which are incorporated by reference in this prospectus.
The risks
and uncertainties described in this prospectus, any accompanying prospectus
supplement and the documents incorporated by reference herein are not the only
ones facing us. Additional risks and uncertainties that we do not presently know
about or that we currently believe are not material may also adversely affect
our business. If any of the risks and uncertainties described in this
prospectus, any accompanying prospectus supplement or the documents incorporated
by reference herein actually occur, our business, financial condition and
results of operations could be adversely affected in a material way. This could
cause the trading price of our common stock to decline, perhaps significantly,
and you may lose part or all of your investment.
We will
not receive any proceeds from the sale of shares of common stock which may be
sold pursuant to this prospectus for the account of the selling shareholder. All
such proceeds, net of brokerage commissions, if any, will be received by the
selling shareholder. See the sections titled “Selling Shareholder” and “Plan of
Distribution.”
This
prospectus relates to shares of common stock to be offered by the selling
shareholder. The table below, including the footnotes, presents information
regarding the selling shareholder and the shares of our common stock that the
selling shareholder may offer and sell from time to time under this prospectus.
Under Rule 416 of the Securities Act of 1933, as amended (the “Securities
Act”), the selling shareholder may also offer and sell common stock issued to
the selling shareholder as a result of, among other things, stock splits, stock
dividends and other similar events that affect the number of common shares held
by the selling shareholder. The inclusion in the table of the individual named
therein shall not be deemed to be an admission that such individual is an
“affiliate” of the Company.
The
following table sets forth, as of January 4, 2010, the name of the selling
shareholder, the nature of his position, office, or other material relationship
to the Company or its subsidiaries within the most recent past three years, and
the number of shares of common stock that he owns. The table also sets forth the
number of shares of common stock owned by the selling shareholder that are
offered for sale by this prospectus and the number and percentage of shares of
common stock to be held by such selling shareholder assuming the sale of all the
shares offered hereby. The table and footnotes assume that the selling
shareholder will sell all of such shares. However, because the selling
shareholder may sell all or some of his shares under this prospectus from time
to time, or in another permitted manner, we cannot assure you as to the actual
number of shares that will be sold by the selling shareholder or that will be
held by the selling shareholder after completion of any sales. We do not know
how long the selling shareholder will hold the shares before selling them.
Information concerning the selling shareholder may change from time to time and
changed information will be presented in a supplement to this prospectus if and
when necessary and required.
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Number
of Shares of Common Stock Owned Prior to the Offering
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Number
of Shares of Common Stock Which May Be Offered (1) (2)
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Number
of Shares of Common Stock Owned After the Offering (2)
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Percentage
of Outstanding Common Stock After the Offering
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Michael
M. Earley
CEO
and Director (3)
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1,581,033
(4)
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1,335,892
(4)
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245,141
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*
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* Indicates
less than one percent
(1) Represents
shares beneficially owned by the named individual which have been granted under
the Omnibus Equity Compensation Plan and the 2001 Stock Option Plan, including
shares that such individual has the right to acquire upon exercise of options
granted under the listed plans, regardless of when such options
vest.
(2) Does
not constitute a commitment to sell any or all of the stated number of shares of
common stock. The number of shares offered shall be determined from time to time
by the selling shareholder at his sole discretion.
(3) Mr.
Earley has served as Chief Executive Officer of the Company since March
2003. He also served as Chairman of the Board from September 2004
through December 2009. On December 7, 2009, we filed a Current Report
on Form 8-K indicating that Mr. Earley announced plans to step down as Chief
Executive Officer. He has agreed to serve as Chief Executive Officer
until the earlier of March 31, 2010 or the engagement of his
successor.
(4) Includes
(i) 174,025 restricted shares of common stock scheduled to vest on or before
March 31, 2010, (ii) options to purchase 763,667 shares of common stock that are
immediately exercisable or exercisable within sixty (60) days of January 4, 2010
at exercise prices ranging from $0.35 per share to $2.31 per share and (iii)
options to purchase 398,200 shares of common stock scheduled to vest on or
before March 31, 2010 at exercise prices ranging from $1.62 per share to $2.31
per share.
Shares
offered hereby may be sold from time to time directly by or on behalf of the
selling shareholder in one or more transactions on the NYSE Amex or on any stock
exchange on which our common stock may be listed at the time of sale, in
privately negotiated transactions, or through a combination of such methods, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices, at fixed prices (which may be changed) or at
negotiated prices. The selling shareholder may sell shares through one or more
agents, brokers or dealers or directly to purchasers. Such brokers or dealers
may receive compensation in the form of commissions, discounts or concessions
from the selling shareholder and/or purchasers of the shares or both (which
compensation as to a particular broker or dealer may be in excess of customary
commissions).
In
connection with such sales, the selling shareholder and any participating broker
or dealer may be deemed to be “underwriters” within the meaning of the
Securities Act, and any commissions they receive and the proceeds of any sale of
shares may be deemed to be underwriting discounts and commissions under the
Securities Act.
In order
to comply with certain state securities laws, if applicable, the shares may be
sold in such jurisdictions only through registered or licensed brokers or
dealers. In certain states, the shares may not be sold unless the
shares have been registered or qualified for sale in such state or an exemption
from regulation or qualification is available and is complied with. Sales of
shares must also be made by the selling shareholder in compliance with all other
applicable state securities laws and regulations.
In
addition to any shares sold hereunder, selling shareholder may, at the same
time, sell any shares of common stock owned by them in compliance with all of
the requirements of Rule 144, regardless of whether such shares are covered
by this prospectus. There can be no assurance that the selling shareholder will
sell any or all of the shares offered by him hereby.
We will
pay all expenses of the registration of the shares. We have notified the selling
shareholder of the need to deliver a copy of this reoffer prospectus in
connection with any sale of the shares.
The
validity of the issuance of the shares of common stock offered hereby will be
passed upon for us by Hunton & Williams LLP, Miami, Florida.
The
consolidated financial statements and management’s assessment of the
effectiveness of internal control over financial reporting, incorporated in this
prospectus by reference from our Annual Report on Form 10-K for the year ended
December 31, 2008 have been audited by Grant Thornton LLP, an independent
registered public accounting firm, as stated in their reports, which are
incorporated herein by reference. Such financial statements and management’s
assessment of the effectiveness of internal control over financial reporting
have been so incorporated in reliance upon the reports of such firm, upon their
authority as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We have
filed with the SEC a registration statement on Form S-8 under the Securities Act
with respect to the shares of common stock offered hereby. This prospectus does
not contain all of the information set forth in the registration statement and
the exhibits thereto. You can find additional information regarding us and the
common stock in the registration statement and the exhibits. Statements
contained in this prospectus regarding the contents of any contract or any other
document to which reference is made are not necessarily complete, and, in each
instance where a copy of such contract or other document has been filed as an
exhibit to the registration statement, reference is made to the copy so filed,
each such statement being qualified in all respects by such
reference.
We are
subject to the informational requirements of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), and, in accordance therewith, file
reports and other information with the SEC. The registration statement,
including exhibits, and the reports and other information filed by us can be
inspected without charge at the public reference facilities maintained by the
SEC at the SEC’s public reference room at 100 F Street, N.E., Washington, D.C.
20549. Copies of such material can be obtained from such offices at fees
prescribed by the SEC. The public may obtain information on the operation of the
Public Reference room by calling the SEC at 1-800-SEC-0330. The SEC maintains a
World Wide Web site that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the SEC.
The address of this site is http://www.sec.gov. In addition, you can also access
documents we file with the SEC at our website, http://www.metcare.com, which is
not a part of this prospectus and is not incorporated herein by
reference.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The SEC
allows us to “incorporate by reference” documents we file with the SEC into this
prospectus, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered part of this prospectus.
The
following documents, which have been filed by us with the SEC pursuant to the
Exchange Act, are incorporated by reference in this prospectus as of their
respective dates:
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Our
Annual Report on Form 10-K for the fiscal year ended December 31,
2008;
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Our
Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31,
2009, June 30, 2009 and September 30,
2009;
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Our
Current Reports on Form 8-K filed with the SEC on February 11, 2009,
February 27, 2009, March 13, 2009, March 24, 2009, May 11, 2009, September
9, 2009 and December 7, 2009; and
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The
description of our Common Stock contained in the Company’s Registration
Statement on Form 8-A filed with the Commission on November 19,
2004.
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All
documents filed by us pursuant to Section 13(a), 13(c), 14 and 15(d) of the
Exchange Act after the date hereof and prior to the termination of the offering,
other than information furnished pursuant to Item 2.02 or Item 7.01 of
Form 8-K or as otherwise permitted by SEC rules and regulations, shall be deemed
to be incorporated by reference into this prospectus and to be a part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated herein by reference shall be deemed to
be modified or superseded for purposes of this prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement.
We will
provide without charge to any person, including any beneficial owner, to whom
this prospectus is delivered, upon written or oral request of such person, a
copy of each document incorporated by reference in the prospectus (other than
exhibits to such documents unless such exhibits are specifically incorporated by
reference into this prospectus). We will provide such copies at no cost, upon
written or oral request, by writing or telephoning us at:
Metropolitan
Health Networks, Inc.
250
Australian Avenue, Suite 400
West Palm
Beach, FL 33401
Telephone
(561) 805-8500
Attention: Roberto
L. Palenzuela
1,335,892 Shares
of
Common Stock
Metropolitan
Health Networks, Inc.
Prospectus
January
7, 2010
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents
by Reference.
The
contents of the following documents, which have been filed by us with the SEC
pursuant to the Exchange Act, are incorporated by reference in this Registration
Statement as of their respective dates:
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Our
Annual Report on Form 10-K for the fiscal year ended December 31,
2008;
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Our
Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31,
2009, June 30, 2009 and September 30,
2009;
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Our
Current Reports on Form 8-K filed with the SEC on February 11, 2009,
February 27, 2009, March 13, 2009, March 24, 2009, May 11, 2009, September
9, 2009 and December 7, 2009; and
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The
description of our Common Stock contained in the Company’s Registration
Statement on Form 8-A filed with the Commission on November 19,
2004.
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All
documents filed by us pursuant to Section 13(a), 13(c), 14 and 15(d) of the
Exchange Act after the date hereof and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities remaining unsold, other than information
furnished pursuant to Item 2.02 or Item 7.01 of Form 8-K or as
otherwise permitted by SEC rules and regulations, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated herein by reference shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement.
Item
4. Description of
Securities.
Not
applicable.
Item
5. Interests of Named Experts
and Counsel
Not
applicable.
Item
6. Indemnification
We are
incorporated in the State of Florida and subject to the Florida Business
Corporation Act (the “Florida Act”). Section 607.0831 of the
Florida Act provides that a director is not personally liable for monetary
damages to a corporation or any other person for any statement, vote, decision,
or failure to act regarding corporate management or policy unless (1) the
director breached or failed to perform his or her duties as a director and
(2) the director’s breach of, or failure to perform, those duties
constitutes (a) a violation of the criminal law, unless the director had
reasonable cause to believe his or her conduct was lawful or had no reasonable
cause to believe his or her conduct was unlawful, (b) a transaction from
which the director derived an improper personal benefit, either directly or
indirectly, (c) a circumstance under which the liability provisions of
Section 607.0834 of the Florida Act are applicable, (d) in a
proceeding by or in the right of the corporation to procure a judgment in its
favor or by or in the right of a shareholder, conscious disregard for the best
interest of the corporation, or willful misconduct, or (e) in a proceeding
by or in the right of someone other than the corporation or a shareholder,
recklessness or an act or omission which was committed in bad faith or with
malicious purpose or in a manner exhibiting wanton and willful disregard of
human rights, safety, or property. A judgment or other final adjudication
against a director in any criminal proceeding for a violation of the criminal
law estops that director from contesting the fact that his or her breach, or
failure to perform, constitutes a violation of the criminal law; but does not
estop the director from establishing that he or she had reasonable cause to
believe that his or her conduct was lawful or had no reasonable cause to believe
that his or her conduct was unlawful.
Under
Section 607.0850 of the Florida Act, a corporation has the power to
indemnify any person who was or is a party to any proceeding (other than an
action by, or in the right of the corporation), by reason of the fact that he or
she is or was a director, officer, employee or agent of the corporation or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against liability incurred in connection with such proceeding,
including any appeal thereof, if he or she 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 and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination of
any proceeding by judgment, order, settlement or conviction or upon a plea of
nolo contendere or its equivalent shall not, of itself, create a presumption
that the person did not act in good faith and in a manner which he or she
reasonably believed to be in, or not opposed to, the best interests of the
corporation or, with respect to any criminal action or proceeding, has
reasonable cause to believe that his or her conduct was unlawful.
Also,
under Section 607.0850 of the Florida Act, a corporation has the power to
indemnify any person, who was or is a party to any proceeding by or in the right
of the corporation to procure a judgment in its favor by reason of the fact that
the person is or was a director, officer, employee, or agent of the corporation
or is or was serving at the request of the corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture, trust, or
other enterprise, against expenses and amounts paid in settlement not exceeding,
in the judgment of the board of directors, the estimated expense of litigating
the proceeding to conclusion, actually and reasonably incurred in connection
with the defense or settlement of such proceeding, including any appeal thereof.
Such indemnification shall be authorized if such person 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, except that no indemnification shall be made under
this subsection in respect of any claim, issue, or matter as to which such
person shall have been adjudged to be liable unless, and only to the extent
that, the court in which such proceeding was brought, or any other court of
competent jurisdiction, shall determine upon application that, despite the
adjudication of liability but in view of all circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
such court shall deem proper.
The
indemnification and advancement of expenses provided pursuant to
Section 607.0850 of the Florida Act are not exclusive, and a corporation
may make any other or further indemnification or advancement of expenses of any
of its directors, officers, employees, or agents, under any bylaw, agreement,
vote of shareholders or disinterested directors, or otherwise, both as to action
in his or her official capacity and as to action in another capacity while
holding such office. However, indemnification or advancement of expenses shall
not be made to or on behalf of any director, officer, employee or agent if a
judgment or other final adjudication establishes that his or her actions, or
omissions to act, were material to the cause of action so adjudicated and
constitute: (a) a violation of the criminal law, unless the director,
officer, employee or agent had reasonable cause to believe his or her conduct
was unlawful; (b) a transaction from which the director, officer, employee
or agent derived an improper personal benefit; (c) in the case of a
director, a circumstance under which the above liability provisions of
Section 607.0834 are applicable; or (d) willful misconduct or a 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.
Section 607.0850
also provides that a corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation against any liability asserted against the person and
incurred by him or her in any such capacity or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability under the provisions of Section 607.0850. We
currently maintain such liability insurance for each of our directors and
officers.
Our
articles of incorporation and bylaws provide for indemnification of our
directors and officers to the fullest extent permitted by law, as now in effect
or later amended. Also, we have entered into indemnification agreements with all
of our directors and executive officers whereby we have agreed to indemnify, and
advance expenses to, such persons to the fullest extent permitted by applicable
law.
Item
7. Exemption from Registration
Claimed.
Not
applicable.
Item
8. Exhibits.
A list of
the exhibits included as part of this Registration Statement is set forth on the
Exhibit Index immediately following the signature page hereto and is hereby
incorporated by reference.
Item
9. Undertakings.
(a) The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To
include any prospectus required by section 10(a)(3) of the Securities
Act;
(ii) 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;
(iii) 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;
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 section 15(d) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), that
are incorporated by reference in this registration statement.
(2) 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.
(3) 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.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the registrant’s 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.
(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 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 Act and will be governed by the final adjudication of
such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act, 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 Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the West Palm Beach, State of Florida, on this 6th day of
January 2010.
METROPOLITAN
HEALTH NETWORKS, INC.
/s/
Robert J. Sabo
By: ______________________________________
Name: Robert
J. Sabo
Title: Chief
Financial Officer
Pursuant
to the requirements of the Securities Act, this Registration Statement has been
signed by the persons listed below in the capacities and on the dates
indicated.
Each
person whose signature appears below constitutes and appoints Robert J. Sabo his
or her true and lawful attorney-in-fact and agent, with full power of
substitution, for him or her and in his or her name, place and stead, in any and
all capacities, to sign any and all pre-effective and post-effective amendments
to this Registration Statement, including any filings pursuant to Rule 462(b)
under the Securities Act and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Commission, granting unto such
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying all that such attorneys-in-fact and agents,
or any of them or their or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
|
Signature
|
Title
|
Date
|
|
/s/
Michael M. Earley
Michael M.
Earley
|
Chief
Executive Officer and Director
|
January
6, 2010
|
|
/s/
Robert J. Sabo
Robert J.
Sabo
|
Chief
Financial Officer
|
January
6, 2010
|
|
/s/
Eric Haskell
Eric
Haskell
|
Chairman
of the Board
|
January
6, 2010
|
|
/s/
David A. Florman
David A.
Florman
|
Director
|
January
6, 2010
|
|
/s/
Martin W. Harrison, M.D.
Martin W. Harrison,
M.D.
|
Director
|
January
6, 2010
|
|
/s/
Karl M. Sachs
Karl M.
Sachs
|
Director
|
January
6, 2010
|
|
/s/
Robert E. Shields
Robert E.
Shields
|
Director
|
January
6, 2010
|
|
/s/
Barry T. Zeman
Barry T.
Zeman
|
Director
|
January
6, 2010
|
EXHIBIT
INDEX
|
Exhibit No.
|
Description
|
|
4.1
|
Articles
of Incorporation of the Registrant, as amended (1)
|
|
4.2
|
Amended
and Restated By-Laws of the Registrant (2)
|
|
4.3
|
Form
of Company’s Common Stock Certificate (1)
|
|
5.1
|
Opinion
of Hunton & Williams LLP (5)
|
|
10.1
|
Omnibus
Equity Compensation Plan, as amended (3)
|
|
10.2
|
2001
Stock Option Plan (4)
|
|
23.1
|
Consent
of Grant Thornton LLP*
|
|
23.3
|
Consent
of Hunton & Williams LLP (included as part of Exhibit 5.1)
(5)
|
|
24.1
|
Power
of attorney (included on signature page to this Registration
Statement)*
|
|
|
|
* Filed
Herewith
(1) Incorporated
by reference to the Company’s Registration Statement on Form 8-A filed with the
SEC on November 19, 2004 (No. 001-32361).
(2) Incorporated
by reference to the Company’s Current Report on Form 8-K filed with the SEC on
September 30, 2004.
(3) Incorporated
by reference to the Company’s Quarterly Report on Form 10-Q for the quarter
ended June 30, 2009 filed with the SEC on August 5, 2009.
(4) Incorporated
by reference to the Company’s Registration Statement on Form SB-2 filed with the
SEC on May 24, 2001 (No. 333-61566).
(5) Previously
filed with the Registration Statement.
II-6