<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 30, 1999
REGISTRATION NO._______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------
HORIZON HEALTH CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 75-2293354
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1500 WATERS RIDGE DRIVE
LEWISVILLE, TEXAS 75057-6011
(Address of principal executive offices)
HORIZON HEALTH CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
JAMES W. MCATEE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
HORIZON HEALTH CORPORATION
1500 WATERS RIDGE DRIVE
LEWISVILLE, TEXAS 75057-6011
(972) 420-8200
(Name, address and telephone number of agent for service)
COPIES TO:
STRASBURGER & PRICE, L.L.P.
901 MAIN STREET, SUITE 4300
DALLAS, TEXAS 75202
(214) 651-4300
ATTN: DAVID K. MEYERCORD, ESQ.
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED (1)(2) SHARE (3) PRICE (3) REGISTRATION FEE
------------------------------------- ------------------- -------------------- -------------------- -------------------
<S> <C> <C> <C> <C> <C>
COMMON STOCK, $.01 PAR VALUE 700,000 SHARES $7.70 $5,390,000 $1,422.96
=========================================================================================================================
</TABLE>
(1) Represents the maximum aggregate number of shares of Common Stock that can
be purchased by employees under the employee stock purchase plan described
herein.
(2) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this
Registration Statement also includes an indeterminate amount of interests
to be offered or sold pursuant to the employee stock purchase plan
described herein.
(3) Estimated solely for purposes of computing the amount of the registration
fee in accordance with Rule 457(h) under the Securities Act of 1933, as
amended, based on the average of the high and low prices for the Common
Stock on the Nasdaq Stock Market on November 24, 1999.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this
Registration Statement by Horizon Health Corporation, a Delaware corporation
(the "Registrant" or the "Company"):
(a) the Annual Report on Form 10-K of the Registrant for the fiscal year
ended August 31, 1999, filed with the Securities and Exchange
Commission (the "Commission") on November 5, 1999;
(b) the description of the Common Stock, $.01 par value per share (the
"Common Stock"), of the Registrant contained in Item 1 of the
Registration Statement on Form 8-A filed pursuant to Section 12 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
relating to the Common Stock, as declared effective on March 13, 1995
(File No. 1-13626), including all amendments or reports filed for
purposes of updating such description; and
(c) the description of the Rights to Purchase Common Stock of the
Registrant contained in Item 1 of the Registration Statement on Form
8-A/12G filed pursuant to Section 12 of the Exchange Act, relating to
the Rights to Purchase Common Stock, as declared effective on
February 18, 1997 (File No. 000-22123), including all amendments or
reports filed for purposes of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to the Registration Statement which indicates that all
securities offered hereby have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be incorporated by
reference in the 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 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 replaces such
statement. Any statement so modified shall not be deemed in its unmodified form
to constitute a part of this Registration Statement. Any statement so superseded
shall not be deemed 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.
Under Section 145 of the Delaware General Corporation Law ("Delaware
Law"), the Registrant has broad powers to indemnify its directors, officers,
employees and agents against liabilities they may incur in such capacities,
including liabilities under the Securities Act of 1933 (the "Securities Act").
The Registrant's Certificate of Incorporation provides that the Registrant shall
indemnify its directors and officers to the fullest extent permitted by law, and
requires the Registrant to advance litigation expenses in the case of
stockholder derivative actions or other actions, against an undertaking by the
director or officer to repay such advances if it is ultimately determined that
the director or officer is not entitled to indemnification. The Certificate of
Incorporation also provides that rights conferred under such Certificate of
Incorporation shall not be deemed to be exclusive of any other right such
persons may have or acquire under any statute, the Bylaws, agreement, resolution
of stockholders or directors, or otherwise.
2
<PAGE> 3
The Certificate of Incorporation further provides that, pursuant to
Delaware Law, no director of the Registrant shall be liable to the Registrant or
its stockholders for monetary damages for breach of the director's fiduciary
duty as a director. This provision in the Certificate of Incorporation does not
eliminate the duty of care, and in appropriate circumstances equitable remedies
such as injunctive or other forms of non-monetary relief will remain available
under Delaware Law. In addition, each director will continue to be subject to
liability for breach of the director's duty of loyalty to the Registrant or its
stockholders, for acts or omissions not in good faith or involving intentional
misconduct, for knowing violations of law, for actions leading to improper
personal benefit to the director, and for payment of dividends or approval of
stock repurchases or redemptions that are unlawful under Delaware Law. The
provision also does not affect a director's responsibilities under any other
law, such as the Federal securities laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NO. DESCRIPTION
3.1 Amended and Restated Certificate of Incorporation of the Registrant,
as amended (incorporated herein by reference to Exhibit 3.1 to the
Current Report on Form 8-K of the Registrant filed with the
Commission and dated August 11, 1997 (the "Form 8-K Filing").
3.2 Bylaws of the Registrant, as amended (incorporated herein by
reference to Exhibit 3.2 to Amendment No. 2 as filed with the
Commission on February 16, 1995 to the Company's Registration
Statement on Form S-1 as filed with the Commission on January 6,
1996, Registration No. 33-88314).
4.1 Specimen Common Stock Certificate (incorporated herein by reference
to Exhibit 4.1 to the Form 8-K Filing).
4.2 Rights Agreement dated as of February 6, 1997, between the Registrant
and American Stock Transfer & Trust Company, as Rights Agent
(incorporated herein by reference to Exhibit 4.1 to the Registration
Statement on Form 8-A of the Registrant, Registration No. 000-22123,
as filed with the Commission on February 7, 1997).
4.3 Horizon Health Corporation Employee Stock Purchase Plan (filed
herewith).
5.1 Opinion of Strasburger & Price, LLP regarding legality of shares
being registered (filed herewith).
23.1 Consent of PricewaterhouseCoopers LLP (filed herewith).
23.2 Consent of Strasburger & Price, LLP (contained in opinion filed as
Exhibit 5.1).
24.1 Power of Attorney (contained on signature page of this Registration
Statement).
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 of 1933;
(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
3
<PAGE> 4
(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 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 a
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) above 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 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose 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.
(b) 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 Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 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.
(c) 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 Registrant has been advised that in the opinion of the 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.
4
<PAGE> 5
SIGNATURES
THE REGISTRANT. 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 Lewisville, State of Texas, on November 30,
1999.
HORIZON HEALTH CORPORATION
By: /s/ James W. McAtee
-------------------------------------
James W. McAtee
Principal Executive Officer
POWER OF ATTORNEY
Each individual whose signature appears below constitutes and appoints
James W. McAtee and Ronald C. Drabik, and each of them, such person's true and
lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for such person and in such person's 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 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 such person might or could do in person, hereby
ratifying and confirming all that such attorneys-in-fact and agents, or any of
them, 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, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
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<CAPTION>
SIGNATURE CAPACITY DATE
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<S> <C> <C>
/s/ James W. McAtee President and Principal Executive Officer; November 30, 1999
--------------------------- Director
James W. McAtee
Senior Vice President, Principal Financial
/s/ Ronald C. Drabik and Accounting Officer and Treasurer November 30, 1999
---------------------------
Ronald C. Drabik
/s/ Jack R. Anderson Director November 30, 1999
---------------------------
Jack R. Anderson
/s/ George E. Bello Director November 30, 1999
---------------------------
George E. Bello
/s/ James E. Buncher Director November 30, 1999
---------------------------
James E. Buncher
/s/ William H. Longfield Director November 30, 1999
---------------------------
William H. Longfield
/s/ James Ken Newman Director November 30, 1999
---------------------------
James Ken Newman
/s/ Donald E. Steen Director November 30, 1999
---------------------------
Donald E. Steen
</TABLE>
5
<PAGE> 6
INDEX TO EXHIBITS
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EXHIBIT
NO. DESCRIPTION
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3.1 Amended and Restated Certificate of Incorporation of the Registrant,
as amended (incorporated herein by reference to Exhibit 3.1 to the
Current Report on Form 8-K of the Registrant filed with the
Commission and dated August 11, 1997 (the "Form 8-K Filing").
3.2 Bylaws of the Registrant, as amended (incorporated herein by
reference to Exhibit 3.2 to Amendment No. 2 as filed with the
Commission on February 16, 1995 to the Company's Registration
Statement on Form S-1 as filed with the Commission on January 6,
1996, Registration No. 33-88314).
4.1 Specimen Common Stock Certificate (incorporated herein by reference
to Exhibit 4.1 to the Form 8-K Filing).
4.2 Rights Agreement dated as of February 6, 1997, between the Registrant
and American Stock Transfer & Trust Company, as Rights Agent
(incorporated herein by reference to Exhibit 4.1 to the Registration
Statement on Form 8-A of the Registrant, Registration No. 000-22123,
as filed with the Commission on February 7, 1997).
4.3 Horizon Health Corporation Employee Stock Purchase Plan (filed
herewith).
5.1 Opinion of Strasburger & Price, LLP regarding legality of shares
being registered (filed herewith).
23.1 Consent of PricewaterhouseCoopers LLP (filed herewith).
23.2 Consent of Strasburger & Price, LLP (contained in opinion filed as
Exhibit 5.1).
24.1 Power of Attorney (contained on signature page of this Registration
Statement).
</TABLE>
<PAGE> 1
Exhibit 4.3
HORIZON HEALTH CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE. The purpose of the Horizon Health Corporation Employee Stock
Purchase Plan (the "Plan") is to provide employees of the Company and its
Designated Subsidiaries with an opportunity to purchase Common Stock of the
Company through accumulated payroll deductions. It is the intention of the
Company to have the Plan qualify as an "Employee Stock Purchase Plan" under
Section 423 of the Internal Revenue Code of 1986, as amended. The provisions of
the Plan, accordingly, shall be construed so as to extend and limit
participation in a manner consistent with the requirements of that Section of
the Code.
2. DEFINITIONS.
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(c) "Common Stock" shall mean the Common Stock, $.01 par value, of
the Company.
(d) "Company" shall mean Horizon Health Corporation, a Delaware
corporation, and any Designated Subsidiary of the Company.
(e) "Compensation" shall mean all base straight time gross earnings,
exclusive of commissions, payments for overtime, shift premium, incentive
compensation, incentive payments, bonuses and other compensation.
(f) "Designated Subsidiary" shall mean all wholly-owned Subsidiaries
of the Company and any other Subsidiary which has been designated by the Board
from time to time in its sole discretion as eligible to participate in the Plan.
(g) "Employee" shall mean any individual who is an employee of the
Company for tax purposes. For purposes of the Plan, the employment relationship
shall be treated as continuing intact while the individual is on sick leave or
other leave of absence approved by the Company. Where the period of leave
exceeds 90 days and the individual's right to reemployment is not guaranteed
either by statute or by contract, the employment relationship shall be deemed to
have terminated on the 91st day of such leave.
(h) "Enrollment Date" shall mean the first day of each Offering
Period.
(i) "Exercise Date" shall mean the last day of each Offering Period.
(j) "Fair Market Value" shall mean, as of any date, the value of
Common Stock determined as follows:
(1) If the Common Stock is listed on any established stock
exchange or a national market system, including without limitation the Nasdaq
National Market or the Nasdaq SmallCap Market of The Nasdaq Stock Market, its
Fair Market Value shall be the closing sales price for such stock (or the
closing bid, if no sales were reported) as quoted on such exchange or system for
the last market trading day on the date of such determination, as reported in
The Wall Street Journal or such other source as the Board deems reliable, or;
(2) If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, its Fair Market Value
shall be the mean of the closing bid and asked prices for the Common Stock on
the date of such determination, as reported in The Wall Street Journal or such
other source as the Board deems reliable, or;
(3) In the absence of an established market for the Common
Stock, the Fair Market Value thereof shall be determined in good faith by the
Board.
<PAGE> 2
(k) "Offering Period" shall mean a period of approximately six (6)
months during which an option granted pursuant to the Plan may be exercised,
commencing on the first Trading Day on or after January 1 and terminating on the
last Trading Day in the period ending the following June 30, or commencing on
the first Trading Day on or after July 1, and terminating on the last Trading
Day in the period ending the following December 31. The duration of Offering
Periods may be changed pursuant to Section 4 of this Plan.
(l) "Participant" shall mean an eligible Employee who has elected to
participate in the Plan.
(m) "Plan" shall mean this Horizon Health Corporation Employee Stock
Purchase Plan.
(n) "Purchase Price" shall mean an amount equal to 85% of the Fair
Market Value of a share of Common Stock on the Enrollment Date or on the
Exercise Date, whichever is lower; provided, however, that the Purchase Price
may be adjusted by the Board pursuant to Section 21 of this Plan.
(o) "Reserves" shall mean the number of shares of Common Stock
covered by each option under the Plan which have not yet been exercised and the
number of shares of Common Stock which have been authorized for issuance under
the Plan but not yet placed under option.
(p) "Subsidiary" shall mean a corporation, domestic or foreign, of
which not less than 50% of the voting shares are held by the Company or a
Subsidiary, whether or not such corporation now exists or is hereafter organized
or acquired by the Company or a Subsidiary.
(q) "Trading Day" shall mean a day on which national stock exchanges
and the Nasdaq System are open for trading.
3. ELIGIBILITY.
(a) Any Employee who shall be employed by the Company on a given
Enrollment Date shall be eligible to participate in the Plan, except:
(1) Any individual who has been employed by the Company for less
than three (3) months before the applicable Enrollment Date.
(2) Any employee whose customary employment less than 20 hours
per week.
(b) Any provisions of the Plan to the contrary notwithstanding, no
Employee shall be granted an option under the Plan (i) to the extent that,
immediately after the grant, such Employee (together with any other persons
whose stock would be attributed to such Employee pursuant to Section 424(d) of
the Code) would own capital stock of the Company and/or hold outstanding options
to purchase stock of the Company constituting in the aggregate five percent (5%)
or more of the total combined voting power or value of all classes of the
capital stock of the Company, or (ii) to the extent that his or her option
rights to purchase stock under this Plan and any other employee stock purchase
plans of the Company and its subsidiaries exceeds Twenty-Five Thousand Dollars
($25,000) worth of stock (determined at the fair market value of the shares at
the time such option is granted) in the aggregate for each calendar year in
which such option right is outstanding at any time.
4. OFFERING PERIODS. The Plan shall be implemented by consecutive Offering
Periods of six (6) months' duration, with a new Offering Period commencing on
the first Trading Day on or after January 1 and July 1 each year, or on such
other date as the Board shall determine, and continuing thereafter until
terminated in accordance with Section 21 hereof. The first Offering Period under
the Plan shall commence with the first Trading Day on or after January 1, 2000
and end on the last Trading Day on or before June 30, 2000. The Board shall have
the power to change the duration of Offering Periods (including the commencement
dates thereof) with respect to future offerings without stockholder approval if
such change is announced at least five (5) days prior to the scheduled beginning
of the first Offering Period to be affected thereafter.
<PAGE> 3
5. PARTICIPATION.
(a) An eligible Employee may become a Participant in the Plan by
completing a subscription agreement authorizing payroll deductions in the form
provided by the Company and filing it with the designated human resources
representative of the Company prior to the applicable Enrollment Date, unless a
later time for submission is set by the Board for all eligible Employees with
respect to a given Offering Period.
(b) Payroll deductions for a Participant shall commence on the first
payroll payment date occurring on or after the applicable Enrollment Date and
shall end on the last payroll payment date occurring on or before the Exercise
Date of the Offering Period to which such authorization is applicable, unless
sooner terminated by the Participant as provided in Section 11 hereof.
6. PAYROLL DEDUCTIONS.
(a) At the time a Participant files his or her subscription
agreement, he or she shall elect to have payroll deductions made on each pay day
during the Offering Period in an amount equal to the percentage (not exceeding
ten percent (10%)) of the Compensation which he or she receives on each pay day
during the Offering Period.
(b) All payroll deductions made for a Participant shall be credited
to his or her account under the Plan. Payroll deductions shall only be in whole
percentages of the Participant's Compensation. A Participant may not make any
additional payments into such account. A Participant's account shall be no more
than a bookkeeping account maintained by the Company, and neither the Company
nor any Subsidiary shall be obligated to segregate or hold in trust or escrow
any funds in a Participant's account.
(c) A Participant may discontinue his or her participation in the
Plan as provided in Section 11 hereof, but no other change can be made and,
specifically, a Participant may not alter the rate of his or her payroll
deductions during an Offering Period. A Participant's subscription agreement
shall remain in effect for successive Offering Periods unless terminated as
provided in Section 11 hereof.
(d) Notwithstanding the foregoing, to the extent necessary to comply
with Section 423(b)(8) of the Code and Section 3(b) hereof, a Participant's
payroll deductions may be decreased to zero percent (0%) at any time during an
Offering Period. In such event, payroll deductions shall recommence at the rate
provided in such Participant's subscription agreement at the beginning of the
first Offering Period which is scheduled to end in the following calendar year,
unless terminated by the Participant as provided in Section 11 hereof.
(e) At the time the option is exercised, in whole or in part, or at
the time some or all of the Company's Common Stock issued under the Plan is
disposed of, the Participant must make adequate provision for federal, state, or
other tax withholding obligations, if any, which arise upon the exercise of the
option or the disposition of the Common Stock. At any time, the Company may, but
shall not be obligated to, withhold from the Participant's compensation the
amount necessary for the Company to meet applicable withholding obligations
related to the Participant's tax obligations, including any withholding required
to make available to the Company any tax deductions or benefits attributable to
sale or early disposition of Common Stock by the Employee which may be available
to it.
7. GRANT OF OPTION. Effective on the Enrollment Date of each Offering
Period, as determined at the end of the respective Offering Period, each
eligible Employee participating in such Offering Period shall be granted an
option to purchase on the Exercise Date of such Offering Period (at the
applicable Purchase Price) a number of shares of the Company's Common Stock
determined by dividing such Employee's total payroll deductions actually made
prior to such Exercise Date and retained in the Participant's account as of the
Exercise Date by the applicable Purchase Price without adjustment for changes in
the Compensation of the Participant during the applicable Offering Period;
provided (i) that in no event shall an employee be permitted to purchase in an
Offering Period more than 12,500 shares (subject to adjustment pursuant to
Section 20), and (ii) that such purchase shall be subject to the limitations set
forth in Sections 3(b) and 14(b) hereof. Exercise of the option shall occur as
provided in Section 8 hereof, unless the Participant has withdrawn pursuant to
Section 11 hereof. The Option shall expire on the last day of the Offering
Period.
8. EXERCISE OF OPTION. Unless a Participant withdraws from the Plan as
provided in Section 11 hereof, his or her option for the purchase of shares
shall be exercised automatically on the Exercise Date, and the maximum number of
full
<PAGE> 4
shares subject to option shall be purchased for such Participant at the
applicable Purchase Price with the accumulated payroll deductions in his or her
account. No fractional shares shall be purchased; any payroll deductions
accumulated in a Participant's account which are not sufficient to purchase a
full share shall be retained in the Participant's account for the subsequent
Offering Period, subject to earlier withdrawal by the Participant as provided in
Section 11 hereof. Any other monies left over in a Participant's account after
the Exercise Date shall be returned to the Participant. During a Participant's
lifetime, a Participant's option to purchase shares hereunder is exercisable
only by him or her.
9. RESTRICTION ON TRANSFER OF SHARES. For a period of three months
following each Exercise Date, a Participant shall be restricted from selling or
otherwise transferring any of the shares purchased by the Participant on that
Exercise Date; provided, however, that such restriction in transfer will cease
immediately upon the termination of employment of the Participant. The stock
certificates evidencing the shares acquired pursuant to the Plan will contain a
legend evidencing such restriction on transfer.
10. DELIVERY. As promptly as practicable after each Exercise Date on which
a purchase of shares occurs, the Company shall arrange for the delivery to each
Participant a stock certificate evidencing the shares purchased upon exercise of
his or her option, subject to the restrictions pursuant to Section 9 hereof.
11. WITHDRAWAL.
(a) A Participant may withdraw all, but not less than all the payroll
deductions credited to his or her account and not yet used to exercise his or
her option under the Plan at any time on or before fifteen (15) calendar days
prior to the Exercise Date by giving written notice to the designated
representative of the Company in the form provided by the Company. All of the
Participant's payroll deductions credited to his or her account shall be paid to
such Participant promptly after receipt of notice of withdrawal, such
Participant's option for the Offering Period shall be automatically terminated,
and no further payroll deductions for the purchase of shares shall be made for
such Offering Period. If a Participant withdraws from an Offering Period,
payroll deductions shall not resume at the beginning of the succeeding Offering
Period or any Offering Period thereafter unless the Participant delivers to the
Company a new subscription agreement.
(b) A Participant's withdrawal from an Offering Period shall not have
any effect upon his or her eligibility to participate in any similar plan which
may hereafter be adopted by the Company or in succeeding Offering Periods which
commence after the termination of the Offering Period from which the Participant
withdraws.
12. TERMINATION OF EMPLOYMENT. Upon a Participant's ceasing to be an
Employee for any reason at any time on or prior to an Exercise Date of an
Offering Period, he or she shall be deemed to have elected to withdraw from the
Plan, and the payroll deductions credited to such Participant's account during
such Offering Period shall be returned to such Participant or, in the case of
his or her death, to the person or persons entitled thereto under Section 16
hereof, and such Participant's option shall be automatically terminated.
13. NO INTEREST. No interest shall accrue or be payable on the payroll
deductions of a Participant in the Plan.
14. STOCK.
(a) The shares of Common Stock to be sold to Participants under the
Plan may, at the election of the Company, be either treasury shares or shares
originally issued by the Company.
(b) Subject to adjustment upon changes in capitalization of the
Company as provided in Section 20 hereof, the maximum number of shares of the
Company's Common Stock which shall be made available for sale under the Plan
shall be 250,000 shares in calendar year 2000, plus an annual increase to be
added on the first day of each calendar year beginning in 2001 in the amount of
50,000 shares. If, on a given Exercise Date, the number of shares with respect
to which options are to be exercised exceeds the number of shares then available
under the Plan, the Company shall make a pro rata allocation of the shares
remaining available for purchase in as uniform a manner as shall be practicable
and as it shall determine to be equitable.
(c) The Participant shall have no interest or voting rights in shares
covered by his option or in any dividends declared by the Company in respect of
its outstanding Common Stock until such option has been exercised.
<PAGE> 5
(d) Shares to be delivered to a Participant under the Plan shall be
registered in the name of the Participant or in the name of the Participant and
his or her spouse, as designated by the Participant.
15. ADMINISTRATION. The Plan shall be administered by the Board or a
designated committee of members of the Board appointed by the Board. Initially,
the Board has designated the Compensation and Option Committee of the Board of
Directors as responsible for administering the Plan. The Board or its designated
committee shall have full and exclusive discretionary authority to construe,
interpret and apply the terms of the Plan, to determine eligibility and to
adjudicate all disputed claims filed under the Plan. Every finding, decision and
determination made by the Board or its designated committee shall, to the full
extent permitted by law, be final and binding upon all parties.
16. DESIGNATION OF BENEFICIARY.
(a) A Participant may file a written designation of a beneficiary who
is to receive any shares and cash, if any, from the Participant's account under
the Plan in the event of such Participant's death subsequent to an Exercise Date
on which the option is exercised but prior to delivery to such Participant of
such shares and cash. In addition, a Participant may file a written designation
of a beneficiary who is to receive any cash from the Participant's account under
the Plan in the event of such Participant's death prior to exercise of the
option. If a Participant is married and the designated beneficiary is not the
spouse, spousal consent shall be required for such designation to be effective.
(b) Such designation of beneficiary may be changed by the Participant
at any time by written notice. In the event of the death of a Participant and in
the absence of a beneficiary validly designated under the Plan who is living at
the time of such Participant's death, the Company shall deliver such shares
and/or cash to the executor or administrator of the estate of the Participant,
or if no such executor or administrator has been appointed (to the knowledge of
the Company), the Company, in its discretion, may deliver such shares and/or
cash to the spouse or to any one or more dependents or relatives of the
Participant, or if no spouse, dependent or relative is known to the Company,
then to such other person as the Company may designate.
17. TRANSFERABILITY. Neither payroll deductions credited to a
Participant's account nor any rights with regard to the exercise of an option or
to receive shares under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will, the laws of descent and
distribution or as provided in Section 16 hereof) by the Participant. Any such
attempt at assignment, transfer, pledge or other disposition shall be without
effect, except that the Company may treat such act as an election to withdraw
funds from an Offering Period in accordance with Section 11 hereof.
18. USE OF FUNDS. All payroll deductions received or held by the Company
under the Plan shall be general corporate funds and as such may be used by the
Company for any corporate purpose, and the Company shall not be obligated to
segregate such payroll deductions or pay interest thereon.
19. REPORTS. Individual accounts shall be maintained for each Participant
in the Plan. Statements of account shall be given to participating Employees at
least annually, which statements shall set forth the amounts of payroll
deductions, the Purchase Price, the number of shares purchased and the remaining
cash balance, if any.
20. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, DISSOLUTION, LIQUIDATION,
MERGER OR ASSET SALE.
(a) Changes in Capitalization. Subject to any required action by the
stockholders of the Company, the Reserves, the maximum number of shares each
Participant may purchase per Offering Period (pursuant to Section 7), as well as
the price per share and the number of shares of Common Stock covered by each
option under the Plan which has not yet been exercised shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of shares of Common Stock effected without receipt of
consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the Board,
whose determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the Company of shares of
stock of any class, or securities convertible into shares of stock of any class,
shall affect, and no adjustment by reason thereof shall be made with respect to,
the number or price of shares of Common Stock subject to an option.
<PAGE> 6
(b) Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Company, the Offering Period then in progress
shall be shortened by setting a new Exercise Date (the "New Exercise Date"), and
shall terminate immediately prior to the consummation of such proposed
dissolution or liquidation, unless provided otherwise by the Board. The New
Exercise Date shall be before the date of the Company's proposed dissolution or
liquidation. The Board shall notify each Participant in writing, at least ten
(10) business days prior to the New Exercise Date, that the Exercise Date for
the Participant's option has been changed to the New Exercise Date and that the
Participant's option shall be exercised automatically on the New Exercise Date,
unless prior to such date the Participant has withdrawn from the Offering Period
as provided in Section 11 hereof.
(c) Merger or Asset Sale. In the event of a proposed sale of all or
substantially all of the assets of the Company, or the merger of the Company
with or into another corporation, each outstanding option shall be assumed or an
equivalent option substituted by the successor corporation or a Parent or
Subsidiary of the successor corporation. In the event that the successor
corporation refuses to assume or substitute for the option, the Offering Period
then in progress shall be shortened by setting a new Exercise Date (the "New
Exercise Date"). The New Exercise Date shall be before the date of the Company's
proposed sale or merger. The Board shall notify each Participant in writing, at
least ten (10) business days prior to the New Exercise Date, that the Exercise
Date for the Participant's option has been changed to the New Exercise Date and
that the Participant's option shall be exercised automatically on the New
Exercise Date, unless prior to such date the Participant has withdrawn from the
Offering Period as provided in Section 11 hereof.
21. AMENDMENT OR TERMINATION.
(a) The Board of Directors of the Company may at any time and for any
reason terminate or amend the Plan. Except as provided in Section 20 hereof, no
such termination can affect options previously granted, provided that an
Offering Period may be terminated by the Board of Directors on any Exercise Date
if the Board determines that the termination of the Offering Period or the Plan
is in the best interests of the Company and its stockholders. Except as provided
in Sections 20 and 21 hereof, no amendment may make any change in any option
theretofore granted which adversely affects the rights of any Participant. To
the extent necessary to comply with Section 423 of the Code (or any other
applicable law, regulation or stock exchange rule), the Company shall obtain
shareholder approval in such a manner and to such a degree as required.
(b) Without stockholder consent and without regard to whether any
Participant rights may be considered to have been "adversely affected," the
Board shall be entitled to change the Offering Periods, limit the frequency
and/or number of changes in the amount withheld during an Offering Period,
establish the exchange ratio applicable to amounts withheld in a currency other
than U.S. dollars, permit payroll withholding in excess of the amount designated
by a Participant in order to adjust for delays or mistakes in the Company's
processing of properly completed withholding elections, establish reasonable
waiting and adjustment periods and/or accounting and crediting procedures to
ensure that amounts applied toward the purchase of Common Stock for each
Participant properly correspond with amounts withheld from the Participant's
Compensation, and establish such other limitations or procedures as the Board
determines in its sole discretion advisable which are consistent with the Plan.
(c) In the event the Board determines that the ongoing operation of
the Plan may result in unfavorable financial accounting consequences, the Board
may, in its discretion and, to the extent necessary or desirable, modify or
amend the Plan to reduce or eliminate such accounting consequence including, but
not limited to:
(1) altering the Purchase Price for any Offering Period
including an Offering Period underway at the time of the change in Purchase
Price;
(2) shortening any Offering Period so that Offering Period ends
on a new Exercise Date, including an Offering Period underway at the time of the
Board action; and
(3) allocating shares.
Such modifications or amendments shall not require stockholder
approval or the consent of any Plan Participants.
<PAGE> 7
22. NOTICES. All notices or other communications by a Participant to the
Company under or in connection with the Plan shall be deemed to have been duly
given when received in the form specified by the Company at the location, or by
the person, designated by the Company for the receipt thereof.
23. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued with
respect to an option unless the exercise of such option and the issuance and
delivery of such shares pursuant thereto shall comply with all applicable
provisions of law, domestic or foreign, including, without limitation, the
Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as
amended, the rules and regulations promulgated thereunder, and the requirements
of any stock exchange upon which the shares may then be listed, and shall be
further subject to the approval of counsel for the Company with respect to such
compliance.
As a condition to the exercise of an option, the Company may require the
person exercising such option to represent and warrant at the time of any such
exercise that the shares are being purchased only for investment and without any
present intention to sell or distribute such shares if, in the opinion of
counsel for the Company, such a representation is required by any of the
aforementioned applicable provisions of law.
24. TERM OF PLAN. The Plan shall become effective upon the earlier to
occur of its adoption by the Board of Directors or its approval by the
stockholders of the Company; provided, however, that to the extent that options
are granted under the Plan prior to its approval by the stockholders, the
options shall be contingent on approval of the Plan by the stockholders in
accordance with Treasury Regulations Section 1.423-2(c) (1999). In the event
that the Plan is not approved by the stockholders of the Company at its Annual
Meeting of Stockholders to be held in January, 2000, the Plan shall terminate
and any payroll deductions of Participants during the first Offering Period
under the Plan shall be paid to the Participants. The Plan shall continue in
effect for a term of ten (10) years unless sooner terminated by the Board
pursuant to Section 21 hereof.
25. ADDITIONAL RESTRICTIONS OF RULE 16B-3. The terms and conditions of
options granted hereunder to, and the purchase of shares by, persons subject to
Section 16 of the Exchange Act shall comply with the applicable provisions of
Rule 16b-3. In the cases of any such persons, this Plan and options issued to
such persons shall be deemed to contain, and the shares issued upon exercise of
such options shall be subject to, such additional conditions and restrictions as
may be required by Rule 16b-3 to qualify for the maximum exemption from Section
16 of the Exchange Act with respect to Plan transactions on behalf of such
persons.
<PAGE> 1
Exhibit 5.1
November 30, 1999
Horizon Health Corporation
1500 Waters Ridge Drive
Lewisville, TX 75057-6011
Gentlemen:
We have acted as counsel for Horizon Health Corporation, a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, of 700,000 shares of Common Stock, $.01 par
value per share (the "Shares"), of the Company to be offered upon the terms and
subject to the conditions set forth in the Horizon Health Corporation Employee
Stock Purchase Plan of the Company (the "Plan"). At your request, this opinion
is being furnished to the Company for filing as Exhibit 5.1 to the Registration
Statement referred to below.
In connection therewith, we have examined originals or copies, certified
or otherwise identified to our satisfaction, of the Certificate of Incorporation
of the Company, as amended, the Amended and Restated Bylaws of the Company, as
amended, the Plan, records of relevant corporate proceedings with respect to the
offering of the Shares and such other documents and instruments as we have
deemed necessary or appropriate as a basis for the opinions hereinafter
expressed. We have also reviewed the Company's Registration Statement on Form
S-8 to be filed by the Company with the Securities and Exchange Commission with
respect to the Shares (the "Registration Statement").
We have assumed the authenticity and completeness of all records,
certificates and other instruments submitted to us as originals, the conformity
to original documents of all records, certificates and other instruments
submitted to us as copies, the authenticity and completeness of the originals of
those records, certificates and other instruments submitted to us as copies and
the correctness of all statements of fact contained in all records, certificates
and other instruments that we have examined.
Based solely on the foregoing, we are of the opinion that the Shares being
registered pursuant to the Registration Statement, when paid for and issued in
accordance with the terms of the Plan, will be legally issued, fully paid and
non-assessable shares of Common Stock of the Company.
The opinions set forth above are limited exclusively to the Constitution
of the State of Delaware, the General Corporation Law of the State of Delaware,
and reported judicial decisions interpreting such laws.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ STRASBURGER & PRICE, L.L.P.
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated October 14, 1999, relating to the
financial statements which appear on page F-2 of Horizon Health Corporation's
Annual Report on Form 10-K for the year ended August 31, 1999. We also consent
to the incorporation by reference of our report on the financial statement
schedule, which appears on page S-2 of such Annual Report on Form 10-K.
PRICEWATERHOUSECOOPERS LLP
Dallas, Texas
November 29, 1999
