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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 28, 2000
REGISTRATION NO.
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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
1998 STOCK OPTION 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.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED (1) SHARE (2) PRICE (3) REGISTRATION FEE
<S> <C> <C> <C> <C>
COMMON STOCK, $.01 PAR VALUE 500,000 SHARES $4.815 $2,407,500 $635.58
=============== ================== ================== ================
</TABLE>
(1) REPRESENTS THE MAXIMUM AGGREGATE NUMBER OF SHARES OF COMMON STOCK THAT CAN
BE PURCHASED BY EMPLOYEES UNDER THE STOCK OPTION PLAN DESCRIBED HEREIN.
(2) 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 AUGUST 24, 2000.
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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 Quarterly Report on Form 10-Q of the Registrant for the
fiscal quarter ended May 31, 2000, filed with the Commission
on June 30, 2000;
(c) the Quarterly Report on Form 10-Q of the Registrant for the
fiscal quarter ended February 29, 2000, filed with the
Commission on March 31, 2000;
(d) the Quarterly Report on Form 10-Q of the Registrant for the
fiscal quarter ended November 30, 1999, filed with the
Commission on December 22, 1999.
(e) 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
(f) 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.
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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.
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 1998 Stock Option Plan, as amended
(incorporated herein by reference to Exhibit 10.14 to the Registrant's
Annual Report on Form 10-K for the fiscal year ended August 31, 1999,
as filed with the Commission on November 5, 1999).
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).
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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 (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.
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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 August 28, 2000.
HORIZON HEALTH CORPORATION
By: /s/ James W. McAtee
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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.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
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<S> <C> <C>
/s/ James W. McAtee President and Principal Executive Officer; August 28, 2000
-------------------------------- Director
James W. McAtee
/s/ Ronald C. Drabik Senior Vice President, Principal Financial August 28, 2000
-------------------------------- and Accounting Officer and Treasurer
Ronald C. Drabik
/s/ Jack R. Anderson Director August 28, 2000
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Jack R. Anderson
/s/ George E. Bello Director August 28, 2000
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George E. Bello
/s/ James E. Buncher Director August 28, 2000
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James E. Buncher
/s/ William H. Longfield Director August 28, 2000
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William H. Longfield
/s/ James Ken Newman Director August 28, 2000
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James Ken Newman
/s/ Donald E. Steen Director August 28, 2000
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Donald E. Steen
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
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 1998 Stock Option Plan, as amended
(incorporated herein by reference to Exhibit 10.14 to the Registrant's
Annual Report on Form 10-K for the fiscal year ended August 31, 1999,
as filed with the Commission on November 5, 1999).
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>
