<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 27, 1996
Registration No. 333-
==============================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_________________
HORIZON/CMS HEALTHCARE CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 91-1346899
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6001 INDIAN SCHOOL ROAD, N.E., SUITE 530
ALBUQUERQUE, NEW MEXICO 87110
(Address of principal executive offices, including zip code)
_________________
HORIZON/CMS HEALTHCARE CORPORATION 1996 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
COPIES TO:
SCOT SAUDER WILLIAM E. JOOR III
VICE PRESIDENT OF LEGAL AFFAIRS, VINSON & ELKINS L.L.P.
SECRETARY AND GENERAL COUNSEL 2300 FIRST CITY TOWER
HORIZON/CMS HEALTHCARE CORPORATION 1001 FANNIN
6001 INDIAN SCHOOL ROAD, N.E., SUITE 530 HOUSTON, TEXAS 77002-6760
ALBUQUERQUE, NM 87110 (713) 758-2582
(505) 881-4961
(Name, address and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================
Title of Proposed maximum Proposed maximum
securities to be Amount to be offering price aggregate Amount of
registered registered per share(1) offering price(1) registration fee
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.001 per share(2)....... 250,000 $11.875 $2,968,750 $1,061
==================================================================================================
<FN>
(1) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(h) on the basis of the price of securities
of the same class, as determined in accordance with Rule 457(c), using
the average of the high and low prices reported on the New York Stock
Exchange for the Registrant's Common Stock on September 25, 1996.
(2) This Registration Statement also pertains to rights to purchase shares
of Series A Junior Participating Preferred Stock of the Registrant.
One right is attached to and trades with each share of Common Stock
of the Registrant. Until the occurrence of certain events, the
rights are not exercisable and will not be evidenced or transferred
apart from the Common Stock.
</TABLE>
==============================================================================
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed with the Securities
and Exchange Commission (the "Commission") by Horizon/CMS Healthcare
Corporation, a Delaware corporation (the "Company"), are incorporated herein
by reference and made a part hereof:
(a) Annual Report on Form 10-K for the fiscal year ended
May 31, 1996;
(b) Current Report on Form 8-K dated September 18, 1996 (filed
September 27, 1996);
(c) Description of the Company's Common Stock, par value $.001
per share, contained in the Company's Registration Statement
on Form 8-A dated March 17, 1987, as amended by Amendment
No. 1 on Form 8-A/A dated June 23, 1994 and Amendment No. 2
on Form 8-A/A dated September 22, 1994; and
(d) Description of rights to purchase the Company's Series A
Junior Participating Preferred Stock, par value $.001 per
share, contained in the Company's Registration Statement
on Form 8-A dated September 16, 1994.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), subsequent to the effective date of this Registration
Statement, prior to the filing of a post-effective amendment to this
Registration Statement indicating that all securities offered hereby have
been sold or deregistering 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. Any statement contained herein or in
any document 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 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 to constitute a part of this
Registration Statement, except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
2
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
The audited consolidated financial statements and schedules of the
Company incorporated by reference in this Registration Statement, to the
extent and for the periods indicated in their reports, have been audited by
Arthur Andersen LLP, independent public accountants, and Ernst & Young LLP,
independent auditors, and are included herein in reliance upon the authority
of said firms as experts in giving said reports.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL"), a Delaware corporation has the power, under specified
circumstances, to indemnify its directors, officers, employees and agents in
connection with threatened, pending or completed actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in right of the corporation), brought against them by
reason of the fact that they were or are such directors, officers, employees
or agents, against expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred in any such action, suit or proceeding.
Article XIV of the Company's Restated Certificate of Incorporation together
with Article IX of its Bylaws provide for indemnification of each person who
is or was made a party to any actual or threatened civil, criminal,
administrative or investigative action, suit or proceeding because such
person is or was an officer or director of the Company or is a person who is
or was serving at the request of the Company as a director, officer, employee
or agent of another corporation or of a partnership, joint venture trust or
other enterprise, including service relating to employee benefit plans, to
the fullest extent permitted by the DGCL as it existed at the time the
indemnification provisions of the Company's Restated Certificate of
Incorporation and the Bylaws were adopted or as may be thereafter amended.
Article IX of the Company's Bylaws and Article XIV of its Restated
Certificate of Incorporation expressly provide that they are not the
exclusive methods of indemnification.
Article IX of the Bylaws and Article XIV of the Company's Restated
Certificate of Incorporation also provide that the Company may maintain
insurance, at its own expense, to protect itself and any director, officer,
employee or agent of the Company or of another entity against any expense,
liability or loss, regardless of whether the Company would have the power to
indemnify such person against such expense, liability or loss under the DGCL.
Section 102(b)(7) of the DGCL provides that a certificate of
incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such
provision shall not eliminate or limit the liability of a director (i) for
any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174
of the DGCL (relating to liability for unauthorized acquisitions or
redemptions of, or dividends on, capital stock) or (iv) for any transaction
from which the director derived an improper personal benefit. Article XI of
the Company's Restated Certificate of Incorporation contains such a provision.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
3
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ITEM 8. EXHIBITS.
3.1 Restated Certificate of Incorporation of the Company dated
March 6, 1987, together with Certificate of Amendment of
Certificate of Incorporation dated January 6, 1992
(incorporated by reference to Exhibit 3.1 to the Company's
Annual Report on Form 10-K for the year ended May 31, 1994).
3.2 Certificate of Amendment of Restated Certificate of
Incorporation dated September 12, 1994 (incorporated by
reference to Exhibit 4.2 to the Company's Registration
Statement on Form S-8 filed with the Securities and Exchange
Commission on September 29, 1994).
3.3 Certificate of Amendment of Restated Certificate of
Incorporation dated July 6, 1995 (incorporated by
reference to Exhibit 4.2 to the Company's Registration
Statement on Form S-8 (Registration No. 33-61697)).
3.4 Certificate of Amendment of Restated Certificate of
Incorporation dated September 28, 1995 (incorporated by
reference to Exhibit 3.4 to the Company's Registration
Statement on Form S-8 (Registration No. 33-63199)).
3.5 Certificate of Designation of Series A Junior Participating
Preferred Stock dated September 16, 1994 (incorporated by
reference to Exhibit 4.3 to the Company's Registration
Statement on Form S-8 filed with the Securities and Exchange
Commission on September 29, 1994).
3.6 Amended and Restated Bylaws of the Company dated as of
February 28, 1987, together with Amendment to Bylaws Section
9.1.1 dated August 30, 1993 (incorporated by reference to
Exhibit 3.2 to the Company's Annual Report on Form 10-K for
the year ended May 31, 1994).
3.7 Rights Agreement, dated as of September 15, 1994, between the
Company and Chemical Trust Company of California, as Rights
Agent, specifying the terms of the rights to purchase the
Company's Series A Junior Participating Preferred Stock, and
the exhibits thereto (incorporated by reference to Exhibit 1
to the Company's Registration Statement on Form 8-A dated
September 16, 1994).
*5.1 Opinion of Vinson & Elkins L.L.P.
23.1 Consent of Vinson & Elkins L.L.P. (set forth in Exhibit 5.1).
*23.2 Consent of Arthur Andersen LLP.
*23.3 Consent of Ernst & Young LLP.
24.1 Powers of Attorney (set forth on signature pages).
_______________
* Filed herewith.
4
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ITEM 9. UNDERTAKINGS
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(a) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933, as amended (the "Securities Act");
(b) 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 this Registration Statement;
(c) To include any material information with respect to
the plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
PROVIDED, HOWEVER, that paragraphs (1)(a) and (1)(c) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of 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.
(4) That, for the purposes of determining any liability under
the Securities Act, each filing of the Company'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 this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, 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 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise,
the Company 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
Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company 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.
5
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Company
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 Albuquerque, State of New Mexico, on September 27,
1996.
HORIZON/CMS HEALTHCARE CORPORATION
By: /s/ ERNEST A. SCHOFIELD
-----------------------------------
Ernest A. Schofield
Senior Vice President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ernest A. Schofield and Scot Sauder,
or any of them, his true and lawful attorney-in-fact and agent, with full
power of substitution, 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 other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and ratifying and confirming all that said attorney-in-fact and
agent or his substitute or substitutes may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 27th day of September, 1996.
Signature Title
--------- -----
/s/ NEAL M. ELLIOTT President, Chief Executive Officer
- ----------------------- and Chairman of the Board of
Neal M. Elliott Directors (Principal Executive
Officer)
Director
- -----------------------
Charles K. Bradford
/s/ CHARLES H. GONZALES Director
- -----------------------
Charles H. Gonzales
/s/ MICHAEL A. JEFFRIES Director
- -----------------------
Michael A. Jeffries
/s/ FRANK M. McCORD Director
- -----------------------
Frank M. McCord
6
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/s/ RAYMOND N. NOVECK Director
- -----------------------
Raymond N. Noveck
Director
- -----------------------
Maria Pappas
Director
- -----------------------
Ronald N. Riner
/s/ ERNEST A. SCHOFIELD Director, Senior Vice President,
- ------------------------ Chief Financial Officer and Chief
Ernest A. Schofield Accounting Officer (Principal
Financial and Accounting
Officer)
7
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EXHIBIT INDEX
Exhibit Sequentially
Number Description Numbered Page
------ ----------- -------------
3.1 Restated Certificate of Incorporation of the
Company dated March 6, 1987, together with
Certificate of Amendment of Certificate of
Incorporation dated January 6, 1992
(incorporated by reference to Exhibit 3.1 to
the Company's Annual Report on Form 10-K for
the year ended May 31, 1994).
3.2 Certificate of Amendment of Restated
Certificate of Incorporation dated September 12,
1994 (incorporated by reference to
Exhibit 4.2 to the Company's Registration
Statement on Form S-8 filed with the
Securities Exchange Commission on
September 29, 1994).
3.3 Certificate of Amendment of Restated
Certificate of Incorporation dated July 6,
1995 (incorporated by reference to Exhibit 4.2
to the Company's Registration Statement on
Form S-8 (Registration No. 33-61697)).
3.4 Certificate of Amendment of Restated Certificate of
Incorporation dated September 28, 1995 (incorporated by
reference to Exhibit 3.4 to the Company's Registration
Statement on Form S-8 (Registration No. 33-63199)).
3.5 Certificate of Designation of Series A Junior
Participating Preferred Stock dated September 16,
1994 (incorporated by reference to
Exhibit 4.3 to the Company's Registration
Statement on Form S-8 filed with the
Securities Exchange Commission on
September 29, 1994).
3.6 Amended and Restated Bylaws of the Company
dated as of February 28, 1987, together with
Amendment to Bylaws Section 9.1.1 dated
August 30, 1993 (incorporated by reference to
Exhibit 3.2 to the Company's Annual Report on
Form 10-K for the year ended May 31, 1994).
3.7 Rights Agreement, dated as of September 15,
1994, between the Company and Chemical Trust
Company of California, as Rights Agent,
specifying the terms of the rights to
purchase the Company's Series A Junior
Participating Preferred Stock, and the
exhibits thereto (incorporated by reference
to Exhibit 1 to the Company's Registration
Statement on Form 8-A dated September 16,
1994).
8
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*5.1 Opinion of Vinson & Elkins L.L.P.
23.1 Consent of Vinson & Elkins L.L.P. (set forth
in Exhibit 5.1).
*23.2 Consent of Arthur Andersen LLP.
*23.3 Consent of Ernst & Young LLP.
24.1 Powers of Attorney (set forth on signature
pages).
__________________
* Filed herewith.
9
<PAGE>
EXHIBIT 5.1
VINSON & ELKINS L.L.P. LETTERHEAD
September 20, 1996
Horizon/CMS Healthcare Corporation
6001 Indian School Road, N.E., Suite 530
Albuquerque, N.M. 87110
Ladies and Gentlemen:
We acted as counsel for Horizon/CMS Healthcare Corporation, a Delaware
corporation (the "Company"), in connection with the Company's Registration
Statement on Form S-8 (the "Registration Statement") relating to the offering
and sale of up to 250,000 shares (the "Shares") of common stock, par value
$.001 per share, of the Company pursuant to the Horizon/CMS Healthcare
Corporation 1996 Employee Stock Purchase Plan (the "Plan").
Before rendering our opinion, we examined the Registration Statement,
the Restated Certificate of Incorporation, as amended, and bylaws of the
Company and certain resolutions of the Board of Directors of the Company.
Based upon the foregoing, we are of the opinion that the Shares to be
issued pursuant to the Plan have been validly authorized for issuance and,
when the Registration Statement has become effective under the Securities Act
of 1933, as amended (the "Act"), and the Shares are issued and paid for in
accordance with the terms of the Plan, the Shares so issued will be validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. By giving such consent, we do not admit that we are
within the category of persons whose consent is required under Section 7 of
the Act or the rules and regulations of the Securities and Exchange
Commission issued thereunder. For purposes of this opinion, we assume that
the securities to be issued pursuant to the Registration Statement will be
issued in compliance with all applicable state securities or Blue Sky laws.
Very truly yours,
/s/ VINSON & ELKINS L.L.P.
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
of our report, included in Horizon/CMS Healthcare Corportion's Annual Report
on Form 10-K for the year ended May 31, 1996, into this Registration Statement
on Form S-8.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Albuquerque, New Mexico
September 26, 1996
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference into the Registration
Statement on Form S-8 pertaining to the Horizon/CMS Healthcare Corporation
1996 Employee Stock Purchase Plan of Horizon/CMS Healthcare Corporation of
our report dated August 3, 1995, except for Note 6 and Note 19 for which the
date is September 26, 1995; Note 14 for which the date is September 12, 1995;
and Note 20 for which the date is September 27, 1995, with respect to the
consolidated financial statements and schedule of Continental Medical
Systems, Inc. included in the Horizon/CMS Healthcare Corporation Annual
Report (Form 10-K) for the year ended May 31, 1996, filed with the Securities
and Exchange Commission.
/s/ ERNST & YOUNG LLP
Ernst & Young LLP
Harrisburg, Pennsylvania
September 26, 1996
