S-8 1 s8_052219.htm FORM S-8

As filed with the Securities and Exchange Commission on May 22, 2019

 

Registration No. 333-

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

 

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

HMS HOLDINGS CORP.

(Exact name of registrant as specified in its charter)

 

Delaware   11-3656261

(State or other jurisdiction of

Incorporation or organization)

  (I.R.S. Employer Identification No.)
     
5615 High Point Drive, Irving, Texas   75038
 (Address of Principal Executive Offices)   (Zip Code)

 

HMS HOLDINGS CORP.

2019 OMNIBUS INCENTIVE PLAN

(Full title of the plan)

 

Meredith W. Bjorck

Executive Vice President, Chief Legal Officer and Corporate Secretary

5615 High Point Drive

Irving, Texas 75038

(Name and address of agent for service)

 

(972) 916-2380

(Telephone number, including area code, of agent for service)

 

with copies of communications to:

 

James S. Swenson, Esq.

B. Scott Gootee, Esq.

Stinson LLP

1201 Walnut, Suite 2900

Kansas City, Missouri 64106

(816) 842-8600

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer ☒   Accelerated filer ☐
Non-accelerated filer   ☐   Smaller reporting company ☐
    Emerging growth company ☐

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.

 

 

 

 

CALCULATION OF REGISTRATION FEE

 

Title of securities to be registered Amount to be registered(1)

Proposed

maximum

offering price

per share(3)

Proposed

maximum

aggregate offering
price(3)

Amount of
registration fee
Common Stock, par value $0.01 per share 9,323,872(2) $31.20 $290,904,806.40 $35,257.66
   
(1)Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of common stock which become issuable under the HMS Holdings Corp. 2019 Omnibus Incentive Plan (the “2019 Plan”), by reason of any stock split, stock dividend or other similar transaction that increases the number of the outstanding shares of the Registrant’s common stock.
(2)Represents 9,323,872 shares of the Registrant’s common stock that are or may become available for future issuance under the 2019 Plan, consisting of (a) 9,100,000 shares reserved for issuance under the 2019 Plan, plus (b) up to 223,872 shares of the Registrant’s common stock subject to equity awards granted under the HMS Holdings Corp. 2016 Omnibus Incentive Plan, HMS Holdings Corp. Fourth Amended and Restated 2006 Stock Plan, as amended, and the HDI Holdings, Inc. Amended 2011 Stock Option and Stock Issuance Plan, that were outstanding after March 5, 2019 and prior to May 22, 2019 (the effective date of the 2019 Plan) and (i) have terminated, lapsed, forfeited or were settled in cash, or (ii) were used to satisfy tax withholding obligations with respect to such awards other than options or stock appreciation rights.
(3)The proposed maximum offering price per share and the proposed maximum aggregate offering price have been estimated solely for the purpose of calculating the registration fee pursuant to paragraphs (c) and (h)(1) of Rule 457 promulgated under the Securities Act and are based upon the average of the high and low prices of the Registrant’s common stock reported on the Nasdaq Global Select Market on May 17, 2019.

 

 

 

 

 

 

 

 

 

 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

As permitted by the rules of the Securities and Exchange Commission (the “Commission”), this Registration Statement omits the information specified in Part I of Form S-8. The documents containing the information specified in Part I of this Registration Statement will be sent or given to eligible employees as specified in Rule 428(b)(1) promulgated under the Securities Act. Such documents are not being filed with the Commission either as part of this Registration Statement or as part of any prospectuses or prospectus supplements filed pursuant to Rule 424 promulgated under the Securities Act. These documents and the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II of Form S-8, 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. Incorporation of Documents by Reference.

 

The Registrant hereby incorporates by reference the following documents (other than the portions of those documents furnished or otherwise not deemed to be filed) on file with the Commission (File No. 000-50194):

 

  (a) the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2018, filed on February 25, 2019 (including information specifically incorporated by reference therein from the Registrant’s definitive proxy statement on Schedule 14A, filed on April 12, 2019);
     
  (b) the Registrant’s Quarterly Report on Form 10-Q for the period ended March 31, 2019, filed on May 10, 2019;
     
  (c) the Registrant’s Current Report on Form 8-K, filed on January 14, 2019, Current Report on Form 8-K filed on February 25, 2019 and Current Report on Form 8-K filed on May 22, 2019; and
     
  (d) the description of the Registrant’s common stock contained in Item 1.01 of the Registrant’s Current Report on Form 8-K/12g-3, filed on July 23, 2013 (including the information under "Comparison of Shareholder Rights Under Delaware and New York Corporate Law and Charter Documents" from the Registrant's definitive proxy statement on Schedule 14A, filed on May 22, 2013, referenced in the Registrant's Form 8-K/12g-3), and any amendments or reports filed for the purpose of updating such description.

 

All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (other than the portions of those documents furnished or otherwise not deemed to be filed), 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, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents.

 

Any statement contained herein or in a document, all or a portion of which is incorporated or deemed to be incorporated by reference herein, 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. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

Item 4. Description of Securities.

 

Not applicable.

 

Item 5. Interests of Named Experts and Counsel.

 

Not applicable.

 

Item 6. Indemnification of Directors and Officers.

 

Section 102 of the Delaware General Corporation Law, as amended (the “DGCL”) allows a corporation to eliminate or limit the personal liability of directors to a corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except where the director breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase or redemption in violation of Delaware corporate law or engaged in a transaction from which the director derived an improper personal benefit.

 

II-1

 

 

Section 145 of the DGCL provides, among other things, that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) 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 (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person 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 the person’s conduct was unlawful. Section 145 of the DGCL also provides that a corporation similarly may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court shall deem proper.

 

Section 145 of the DGCL further authorizes a corporation to purchase and maintain insurance on behalf of any person who 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 or enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability as described above.

 

Article Seventh of the Registrant’s Amended and Restated Certificate of Incorporation, as amended (the “Charter”), provides that to the fullest extent permitted by the DGCL, as it presently exists or may thereafter be amended, no director of the Registrant shall be personally liable to the Registrant or its stockholders for monetary damages for a breach of fiduciary duty as a director.

 

Article Eighth of the Charter provides, among other things, that the Registrant shall indemnify each person who was or is a party to or threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Registrant) by reason of the fact that he or she is or was, or has agreed to become, a director or officer of the Registrant, or is or was serving, or has agreed to serve, at the request of the Registrant, as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (including any employee benefit plan), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees), liabilities, losses, judgments, fines (including excise taxes and penalties arising under the Employee Retirement Income Security Act of 1974), and amounts paid in settlement actually and reasonably incurred by or on behalf of such person in connection with such action, suit or proceeding and any appeal therefrom, if such person acted in good faith and in a manner which such person reasonably believed to be in, or not opposed to, the best interests of the Registrant, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.

 

Article Eighth of the Charter also provides that the Registrant shall indemnify each person who was or is a party to or threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Registrant to procure a judgment in its favor by reason of the fact that he or she is or was, or has agreed to become, a director or officer of the Registrant, or is or was serving, or has agreed to serve, at the request of the Registrant, as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (including any employee benefit plan), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees) and, to the extent permitted by law, amounts paid in settlement actually and reasonably incurred by or on behalf of such person in connection with such action, suit or proceeding and any appeal therefrom, if such person acted in good faith and in a manner which such person reasonably believed to be in, or not opposed to, the best interests of the Registrant, except that no indemnification shall be made under Article Eighth in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Registrant, unless, and only to the extent, that the Court of Chancery of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of such liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses (including attorneys' fees) which the Court of Chancery of Delaware or such other court shall deem proper.

 

II-2

 

 

Article Eighth of the Charter further provides that, to the extent that any person entitled to indemnification under Article Eighth has been successful, on the merits or otherwise, in defense of any action suit or proceeding referred to in the two immediately preceding paragraphs, or in defense of any claim, issue or matter therein, or on appeal therefrom, such person shall be indemnified against all expenses (including attorneys' fees) actually and reasonably incurred by or on behalf of such person in connection therewith. Article Eighth of the Charter further provides that the Registrant must advance any expenses incurred in defending such action, suit proceeding or investigation, subject to limited exceptions, and that the indemnification and advancement of expenses provided by the Charter shall not be deemed exclusive of any other rights to which the indemnified party may be entitled.

 

Article Eighth of the Charter also provides that the Registrant may purchase and maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Registrant or another corporation, partnership, joint venture, trust or other enterprise (including any employee benefit plan) against any expense, liability or loss incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the Registrant would have the power to indemnify such person against such expense, liability or loss under the DGCL.

 

The Registrant maintains officer and director insurance coverage against losses for certain acts committed by them in their capacities as such, including losses related to public securities. In addition, the Registrant has entered into a form of indemnification agreement with each director and officer of the Registrant to indemnify such individuals to the fullest extent permitted by the DGCL, subject to the terms and conditions provided in the indemnification agreement. These agreements supplement and clarify the existing indemnification provisions of the Registrant’s Charter, and further establish the processes and procedures for indemnification claims, advancement of expenses and other determinations with respect to indemnification.

 

Item 7. Exemption from Registration Claimed.

 

Not applicable.

 

Item 8. Exhibits.

 

Exhibit 

No.

  Description
     
4.1   Conformed copy of Amended and Restated Certificate of Incorporation of HMS Holdings Corp., as amended through May 23, 2018 (incorporated by reference to Exhibit 3.1 to the Registrant’s Quarterly Report on Form 10-Q (File No. 000-50194) as filed with the Commission on August 6, 2018)
     
4.2   Second Amended and Restated Bylaws of HMS Holdings Corp. dated May 23, 2018 (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K (File No. 000-50194) as filed with the Commission on May 25, 2018)
     
5.1   Opinion of Stinson LLP regarding legality
     
23.1   Consent of Grant Thornton LLP
     
23.2   Consent of KPMG LLP
     
23.3   Consent of Stinson LLP (included in Exhibit 5.1)
     
24.1   Power of Attorney (included in the signature page to this Registration Statement)
     
99.1   HMS Holdings Corp. 2019 Omnibus Incentive Plan (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K (File No. 000-50194) as filed with the Commission on May 22, 2019)

 

II-3

 

 

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. 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 no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

 

(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) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the 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 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 Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Irving, State of Texas, on this 22nd day of May, 2019.

 

 

  HMS HOLDINGS CORP.
   
  By:  /s/ William C. Lucia
    William C. Lucia
   

President and Chief Executive Officer

(Principal Executive Officer)

 

 

 

 

 

 

 

 

 

POWER OF ATTORNEY

 

Each person whose signature appears below hereby constitutes and appoints William C. Lucia and Jeffrey S. Sherman and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 other documents in connection therewith, with the Commission, and hereby grants to 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, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said 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.

 

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 date indicated.

 

Signatures   Title   Date
         
/s/ William C. Lucia   Director, Chairman of the Board,
President and Chief Executive Officer
  May 22, 2019
William C. Lucia   (Principal Executive Officer)    
         
/s/ Jeffrey S. Sherman   Executive Vice President,
Chief Financial Officer and Treasurer
  May 22, 2019
Jeffrey S. Sherman   (Principal Financial Officer)    
         
/s/ Greg D. Aunan   Senior Vice President and
Chief Accounting Officer
  May 22, 2019
Greg D. Aunan   (Principal Accounting Officer)    
         
/s/ Robert Becker   Director   May 22, 2019
Robert Becker        
         
/s/ Craig R. Callen   Director   May 22, 2019
Craig R. Callen        
         
/s/ William F. Miller III   Director   May 22, 2019
William F. Miller III        
         
/s/ Ellen A. Rudnick   Director   May 22, 2019
Ellen A. Rudnick        
         
/s/ Bart M. Schwartz   Director   May 22, 2019
Bart M. Schwartz        
         
/s/ Richard H. Stowe   Director   May 22, 2019
Richard H. Stowe        
         
/s/ Cora M. Tellez   Director   May 22, 2019
Cora M. Tellez