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As filed with the Securities and Exchange Commission on October 4, 2001
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AMERICAN HEALTHWAYS, INC.
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(Exact name of Registrant as Specified in its Charter)
DELAWARE 62-1117144
--------------------------------- ------------------------------------
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
3841 GREEN HILLS VILLAGE DRIVE
NASHVILLE, TENNESSEE 37215
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(Address of Principal Executive Offices)
AMERICAN HEALTHWAYS, INC. 2001 STOCK OPTION PLAN FOR
NEW EMPLOYEES
----------------------------------------------------
(Full Title of the Plans)
HENRY D. HERR
3841 GREEN HILLS VILLAGE DRIVE
NASHVILLE, TENNESSEE 37215
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(Name and Address of Agent for Service)
(615) 665-1122
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(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM
AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED(1) SHARE PRICE REGISTRATION FEE
------------------------------------ -------------- ------------------ ------------------ ----------------
Common Stock, $.001 par value 320,625 shares $27.83(2) $8,922,994 $2,231
Common Stock, $.001 par value 279,375 shares $33.71(3) $9,417,731 $2,354
Total 600,000 shares $18,340,725 $4,585
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Plan being registered
pursuant to this Registration Statement by reason of any stock
dividend, stock split, recapitalization or any other similar
transaction effected without the receipt of consideration which results
in an increase in the number of the Registrant's outstanding shares of
Common Stock.
(2) The offering price is estimated solely for the purpose of calculating
the amount of the registration fee in accordance with Rule 457(h) under
the Securities Act. The computation is based on the weighted average
per share exercise price (rounded to the nearest cent) of outstanding
options under the Plan, the shares issuable under which are registered
hereby.
(3) The offering price is estimated solely for the purpose of calculating
the amount of the registration fee in accordance with Rule 457(h) under
the Securities Act. The computation with respect to unissued options is
based on the average of the high and low prices of the Registrant's
Common Stock as reported on The Nasdaq National Market on October 2,
2001.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by the Registrant with the
Securities and Exchange Commission are hereby incorporated by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended August 31, 2000, which contains audited financial
statements for the Registrant's latest fiscal year for which
such statements have been filed.
(b) The Registrant's Quarterly Reports on Form 10-Q for the
quarters ended November 30, 2000, February 28, 2001 and May
31, 2001.
(c) The Registrant's Current Reports on Form 8-K dated September
27, 2000, December 14, 2000, March 15, 2001, June 6, 2001, as
amended on August 15, 2001 and August 21, 2001, and June 15,
2001, as amended on August 20, 2001, and September 28, 2001.
(d) The description of the Registrant's Common Stock contained in
the Registration Statement on Form 8-A, including all
amendments and reports filed for the purpose of updating such
description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14, and 15(d) of the Securities Exchange Act of 1934, as amended, after
the date hereof and prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under Section 145 of the Delaware General Corporation Law, a
corporation may indemnify any of its directors and officers against expenses
(including attorney's fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding (i) if any such person acted in good faith and in a manner
reasonably believed to be in or not opposed to be the best interests of the
corporation and (ii) in connection with any criminal action or proceeding if
such person had no reasonable cause to believe such conduct was unlawful. In
actions brought by or in the right of the corporation, however, Section 145
provides that no indemnification may be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of such person's duty to the
corporation unless, and only to the extent that, the Court of Chancery of the
State of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
review of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper. Article VIII of the Company's Restated
Certificate of Incorporation requires that the Company indemnify its directors
and officers for certain liabilities incurred in the performance of their duties
on behalf of the Company to the extent allowed by Delaware law.
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The Company's Restated Certificate of Incorporation relieves its
directors from monetary damages to the Company or to stockholders for breach of
any such director's fiduciary duty as a director to the fullest extent permitted
by the Delaware General Corporation Law. Under Section 102(b)(7) of the Delaware
General Corporation Law, a corporation may relieve its directors from personal
liability to such corporation or its stockholders for monetary damages for any
breach of their fiduciary duty as directors except (i) for a breach of the duty
of loyalty, (ii) for failure to act in good faith, (iii) for intentional
misconduct or knowing violation of law, (iv) for willful or negligent violations
of certain provisions of the Delaware General Corporation Law imposing certain
requirements with respect to stock repurchases, redemptions and dividends or (v)
for any transaction from which the director derived an improper personal
benefit.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number Description
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4.1 Form of certificate representing the common stock, par value $.001 per share of
American Healthways, Inc. - Incorporated by reference to Registration Statement on
Form S-1 (File No. 33-41119).
4.2 Restated Certificate of Incorporation - Incorporated by reference to Registration
Statement on Form S-1 (File No. 33-41119).
4.3 Bylaws - Incorporated by reference to Registration Statement on Form S-1 (File No.
33-41119).
4.4 American Healthways, Inc. 2001 Stock Option Plan for New Employees
5 Opinion of Bass, Berry & Sims PLC
23.1 Consent of Bass, Berry & Sims PLC (included in Exhibit 5)
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of Deloitte & Touche LLP
23.4 Consent of Deloitte & Touche LLP
24 Power of Attorney (included on Page II-5)
Item 9. Undertakings.
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 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.
(2) that, for purposes of determining any liability under
the Securities Act of 1933, 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
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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.
[SIGNATURE PAGE FOLLOWS]
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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 Nashville, State of Tennessee, on this 3rd day of
October, 2001.
AMERICAN HEALTHWAYS, INC.
By: /s/ Thomas G. Cigarran
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Thomas G. Cigarran
Chairman and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, each person whose signature appears
below hereby constitutes and appoints Thomas G. Cigarran and Henry D. Herr, and
each of them, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and in his name, place, and stead,
in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same
with all exhibits thereto and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents 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 and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, 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 by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ Thomas G. Cigarran Chairman and Chief Executive Officer (Principal October 3, 2001
-------------------------------------- Executive Officer)
Thomas G. Cigarran
/s/ Henry D. Herr Executive Vice President, Chief Financial October 3, 2001
-------------------------------------- Officer and Director (Principal Financial
Henry D. Herr Officer)
/s/ David A. Sidlowe Vice President and Controller (Principal October 3, 2001
-------------------------------------- Accounting Officer)
David A. Sidlowe
/s/ Frank A. Ehmann Director October 3, 2001
--------------------------------------
Frank A. Ehmann
/s/ Martin J. Koldyke Director October 3, 2001
--------------------------------------
Martin J. Koldyke
/s/ C. Warren Neel Director October 3, 2001
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C. Warren Neel
/s/ William C. O'Neil, Jr. Director October 3, 2001
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William C. O'Neil, Jr.
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EXHIBIT INDEX
Exhibit Number Description
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4.1 Form of certificate representing the common stock, par value $.001 per share of
American Healthways, Inc. - Incorporated by reference to Registration Statement on
Form S-1 (File No. 33-41119).
4.2 Restated Certificate of Incorporation - Incorporated by reference to Registration
Statement on Form S-1 (File No. 33-41119).
4.3 Bylaws - Incorporated by reference to Registration Statement on Form S-1 (File No.
33-41119).
4.4 American Healthways, Inc. 2001 Stock Option Plan for New Employees
5 Opinion of Bass, Berry & Sims PLC
23.1 Consent of Bass, Berry & Sims PLC (included in Exhibit 5)
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of Deloitte & Touche LLP
23.4 Consent of Deloitte & Touche LLP
24 Power of Attorney (included on Page II-5)
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