Unassociated Document
As
filed
with the Securities and Exchange Commission on
March 20, 2008
Registration
No. 333-
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)
New
York
(State
or
other jurisdiction of incorporation or organization)
11-3656261
(I.R.S.
Employer Identification Number)
401
Park
Avenue South, New York, New York 10016
(Address
of Principal Executive Offices)
HMS
HOLDINGS CORP. AMENDED AND RESTATED 2006 STOCK PLAN
HMS
HOLDINGS CORP. STOCK OPTION AGREEMENTS
1999
LONG-TERM INCENTIVE STOCK PLAN
HMS
HOLDINGS CORP. STOCK OPTION AGREEMENTS
1995
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full
title of the Plans)
Walter
D.
Hosp, Chief Financial Officer
HMS
Holdings Corp.
401
Park
Avenue South
New
York,
New York 10016
(Name
and
address of agent for service)
(212) 725-7965
(Telephone
number, including area code, of agent for service)
Copies
to:
Kenneth
S. Goodwin, Esq.
Meister
Seelig & Fein LLP
140
East
45th
Street,
19th
Floor
New
York,
New York 10017
(212)
655-3500
CALCULATION
OF REGISTRATION FEE
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Proposed
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Proposed
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Title of
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Maximum
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Maximum
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Securities
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Amount
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Offering
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Aggregate
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Amount of
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to be
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to be
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Price
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Offering
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Registration
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Registered
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Registered(1)(2)
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Per Share
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Price
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Fee
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Common
Stock, $.01 par value
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500,000
shares
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(3)
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$
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28.66
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$
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14,330,000.00
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$
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563.17
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(4)
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Common
Stock, $.01 par value
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585,000
shares
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(5)
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$
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14.04
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$
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8,213,400.00
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$
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322.79
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(6)
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Common
Stock, $.01 par value
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60,000
shares
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(7)
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$
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19.12
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1,147,200
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$
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45.08
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(8)
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Total
Fee
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$
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931.04
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(1)
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement shall also cover such
indeterminate number of additional shares as may be issued to prevent dilution
resulting from stock splits, stock dividends, or similar
transactions.
(2)
Pursuant to Rule 429 of the Securities Act, the prospectus contained herein
also
relates to (i) 1,897,462 shares of common stock previously registered on
Form
S-8, Registration No. 333-108436, (ii) 610,000 shares of common stock previously
registered on Form S-8, Registration No. 333-108445, (iii) 3,750 shares
of
common stock previously registered on Form S-8, Registration No. 033-95326-99,
and (iv) 988,266 shares of common stock previously registered on Form S-8,
Registration No. 333-139025, issuable upon exercise of options granted
under the
HMS Holdings Corp. 1999 Long-Term Incentive Stock Plan, issuable upon exercise
of options granted pursuant to three Stock Option Agreements, issuable
upon
exercise of options granted under the HMS Holdings Corp. 1995 Non-Employee
Director Stock Option Plan and issuable upon exercise of options granted
under
the HMS Holdings Corp. 2006 Stock Plan, respectively.
(3)
Represents additional shares authorized for issuance under the Registrant’s
Amended and Restated 2006 Stock Plan.
(4)
Estimated
solely for the purpose of calculating the amount of the registration fee
pursuant to Rule 457(h)(1) of the Securities Act, on the basis of $28.66
per share, the average of the high $29.71 and low $27.60 sale prices of
the
Registrant’s common stock, as reported in the Nasdaq Global Select Market on
March 17, 2008.
(5)
Represents shares subject to ten nonqualified Stock Option Agreements granted
by
Registrant on September 13, 2006.
(6)
Calculated pursuant to Rule 457(h)(1) on the basis of an option exercise
price of $14.04 per share.
(7)
Represents
shares subject to a nonqualified Stock Option Agreement granted by Registrant
on
July 2, 2007.
(8)
Calculated
pursuant to Rule 457(h)(1) on the basis of an option exercise price of
$19.12 per share.
AS
PERMITTED BY RULE 429 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, THE
PROSPECTUS FILED AS PART OF THIS REGISTRATION STATEMENT ON FORM S-8 IS
A
COMBINED RESALE PROSPECTUS WHICH SHALL BE DEEMED A POST-EFFECTIVE AMENDMENT
TO
THE REGISTRANT'S REGISTRATION STATEMENTS ON FORM S-8, REGISTRATION NOS.
33-108436, 333-108445, 033-95326-99 AND 333-139025.
EXPLANATORY
NOTES:
This
Registration Statement has been prepared in accordance with the requirements
of
Form S-8 under the Securities Act of 1933, as amended (the "Securities
Act"), to
register an additional 500,000 shares issuable pursuant to the HMS Holdings
Corp. Amended and Restated 2006 Stock Plan (the "2006 Plan") and an additional
645,000 shares issuable pursuant to 11 Stock Option Agreements and to file
a
prospectus (prepared in accordance with the requirements of Part I of Form
S-3
and pursuant to General Instruction C of Form S-8) to be used for reoffers
and
resales of common stock acquired by persons who may be deemed "affiliates"
of
HMS Holdings Corp., as that term is defined in Rule 405 under the Securities
Act, upon the exercise of stock options or receipt of stock awards granted
or
available to be granted under the 2006 Plan, upon the exercise of stock
options
granted under the HMS Holdings Corp 1999 Long-Term Incentive Stock Plan
(the
"1999 Plan"), upon the exercise of stock options granted by the registrant
pursuant to four Stock Option Agreements or upon the exercise of options
granted
under the HMS Holdings Corp. 1995 Non-Employee Director Stock Option Plan
(the
“1995 Plan”). The registrant has previously registered an aggregate of 1,000,000
shares of common stock issuable under the 2006 Plan pursuant to a Registration
Statement on Form S-8, filed November 30, 2006, File No. 333-139025 (the
“Prior
2006 Plan Registration Statement”). As
of
March 12, 2008, 988,266 unexercised options remain outstanding under the
2006 Plan, of which 299,035 options are held by “affiliates.” Pursuant
to General Instruction E of Form S-8, the contents of Prior 2006 Plan
Registration Statement are incorporated by reference in this Registration
Statement.
On
September 2, 2003, the registrant filed a Registration Statement on Form
S-8
(Registration No. 33-108436) to effect the registration under the Securities
Act
of shares of common stock issuable upon exercise of stock options issued
or
issuable under the 1999 Plan. As of March 12, 2008, 1,897,462 unexercised
options remain outstanding under the 1999 Plan, of which 1,208,915 options
are held by “affiliates.” The 1999 Plan has been terminated, and no further
awards may be granted thereunder.
On
September 2, 2003, the registrant filed a Registration Statement on Form
S-8
(Registration No. 333-108445) to effect the registration under the Securities
Act of shares of common stock issuable upon exercise of stock options granted
by
the registrant pursuant to three Stock Option Agreements. As of February
29,
2008, 610,000 unexercised options remain outstanding under these Agreements,
all
of which options are held by “affiliates.”
On
September 2, 2003, the registrant filed a Post Effective Amendment No.
1 to
Registration Statement on Form S-8 (Registration No. 033-95326-99) to effect
the
registration under the Securities Act of shares of common stock issuable
upon
exercise of stock options issued under the 1995 Plan. As of February 29,
2008,
3,750 unexercised options remain outstanding under the 1995 Plan, all of
which
options are held by “affiliates.”
The 1995
Plan has been terminated, and no further awards may be granted
thereunder.
As
permitted by Rule 429 under the Securities Act, the prospectus filed as
part of
this registration statement on Form S-8 is a combined resale prospectus
which
shall be deemed a post-effective amendment to the registrant's Registration
Statements on Form S-8, Registration Nos. 333-108436, 333-108445, 033-95326-99
and 333-139025.
PART
I
INFORMATION
REQUIRED IN THE
SECTION
10(a) PROSPECTUS
As
permitted by the rules of the Securities and Exchange Commission, this
registration statement omits the information specified in Part I of Form
S-8.
Document(s) containing the information required by Part I of this registration
statement will be sent or given to participants in the plan subject to
this
registration statement as specified by Rule 428(b)(1) under the Securities
Act
of 1933. Such document(s) are not filed with the SEC pursuant to Rule 424
under the Securities Act. Such document(s) and the documents incorporated
by
reference pursuant to Item 3 of Part II of this registration statement,
taken
together, constitute a prospectus that meets the requirements of Section
10(a)
of the Securities Act.
PROSPECTUS
2,181,700
SHARES
HMS
HOLDINGS CORP.
Common
Stock, $.01 par value
This
prospectus relates to the reoffer and resale of up to 2,181,700 shares
of our
common stock by certain selling shareholders who may be considered our
"affiliates." These selling shareholders have acquired or may acquire these
shares upon the exercise of stock options or pursuant to other awards granted
or
available to be granted under our HMS Holdings Corp. Amended and Restated
2006
Stock Plan, upon the exercise of stock options granted under our HMS Holdings
Corp. 1999 Long-Term Incentive Stock Plan, upon the exercise of stock options
granted by us pursuant to four Stock Option Agreements, or upon the exercise
of
stock options granted under our HMS Holdings Corp. 1995 Non-Employee Director
Stock Option Plan.
The
selling shareholders have advised us that the resale of their shares may
be
effected from time to time in one or more transactions on the Nasdaq Global
Select Market, in negotiated transactions or otherwise, at market prices
prevailing at the time of the sale or at prices otherwise negotiated. See
“Plan
of Distribution.” We will bear all expenses in connection with the preparation
of this prospectus.
Our
common stock is traded on the Nasdaq Global Select Market under the symbol
“HMSY.” On March 17, 2008, the closing price for the common stock, as reported
by the Nasdaq Global Select Market, was $27.91. You are urged to obtain
current
market quotations for the common stock.
Our
principal executive offices are located at 401 Park Avenue South, New York,
New
York 10016, and our telephone number there is (212)725-7965.
This
investment involves risk. See “Risk Factors” beginning at page
3.
NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE
SECURITIES OR PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The
date
of this Prospectus is March 20, 2008.
TABLE
OF CONTENTS
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10
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YOU
SHOULD READ THE FOLLOWING SUMMARY TOGETHER WITH THE MORE DETAILED INFORMATION
CONTAINED ELSEWHERE IN THIS PROSPECTUS, INCLUDING THE SECTION TITLED "RISK
FACTORS," REGARDING OUR COMPANY AND THE COMMON STOCK BEING SOLD IN THIS
OFFERING.
The
Company
HMS
Holdings Corp. (Holdings or the Company) provides a variety of cost containment
and payment accuracy services relating to government healthcare programs.
These
services are generally designed to help our clients increase revenue and
reduce
operating and administrative costs.
Our
customers are State Medicaid agencies, government-sponsored managed care
plans,
child support agencies, the Veterans Health Administration, the Centers
for
Medicare & Medicaid Services (CMS), and other public programs. We help these
programs contain healthcare costs by identifying third party insurance
coverage
and recovering expenditures that were the responsibility of the third party,
or
that were paid in error. The identification of other insurance coverage
also
helps these programs avoid future expenditures. As well, we work on behalf
of
large public, voluntary and for profit hospitals to document services that
qualify for reimbursement through Medicare cost reports and other government
payment mechanisms.
Our
principal executive offices are located at 401 Park Avenue South, New York,
New
York 10016, and our telephone number is (212) 725-7965.
RISKS
RELATING TO OUR COMPANY AND OUR INDUSTRY
Our
operating results are subject to significant fluctuations due to variability
in
the timing of when we recognize contingency fee revenue and other factors.
As a
result, you will not be able to rely on our operating results in any particular
period as an indication of our future performance.
Our
revenue and consequently our operating results may vary significantly from
period to period as a result of a number of factors, including the loss
of
customers, fluctuations in sales activity given our sales cycle of approximately
three to eighteen months, and general economic conditions as they affect
healthcare providers and payors. Further, we have experienced fluctuations
in
our revenue between reporting periods due to the timing of periodic revenue
recovery projects and the timing and delays in third-party payors’ adjudication
of claims and ultimate payment to our clients where our fees are contingent
upon
such collections. The extent to which future revenue fluctuations could
occur
due to these factors is not known and cannot be predicted. As a consequence,
our
results of operations are subject to significant fluctuations and our results
of
operations for any particular quarter or fiscal year may not be indicative
of
results of operations for future periods. A significant portion of our
operating
expenses are fixed, and are based primarily on revenue and sales forecasts.
Any
inability on our part to reduce spending or to compensate for any failure
to
meet sales forecasts or receive anticipated revenues could magnify the
adverse
impact of such events on our operating results.
The
majority of our contracts with customers may be terminated for
convenience.
The
majority of our contracts with customers are terminable upon short notice
for
the convenience of either party. Although to date none of our material
contracts
have ever been terminated under these provisions, we cannot be assured
that a
material contract will not be terminated for convenience in the future.
Any
termination of a material contract, if not replaced, could have a material
adverse effect on our business, financial condition and results of operations.
We
face significant competition for our services.
Competition
for our services is expected to increase. Increased competition could result
in
reductions in our prices, gross margins and market share. We compete with
other
providers of healthcare information management and data processing services,
as
well as healthcare consulting firms. Some competitors have formed business
alliances with other competitors that may affect our ability to work with
some
potential customers. In addition, if some of our competitors merge, a stronger
competitor may emerge.
Current
and prospective customers also evaluate our capabilities against the merits
of
their existing information management and data processing systems and expertise.
Major information management systems companies, including those specializing
in
the healthcare industry, that do not presently offer competing services
may
enter our markets. Many of our potential competitors have significantly
greater
financial, technical, product development, marketing and other resources,
and
market recognition than we have. As a result, our competitors may be able
to
respond more quickly to new or emerging technologies, changes in customer
requirements and changes in the political, economic or regulatory environment
in
the healthcare industry. In addition, several of our competitors may be
in a
position to devote greater resources to the development, promotion, and
sale of
their services than we can.
Simplification
of the healthcare payment process could reduce the need for our
services.
The
complexity of the healthcare payment process, and our experience in offering
services that improve the ability of our customers to recover incremental
revenue through that process, have been contributing factors to the success
of
our service offerings. Complexities of the healthcare payment process include
multiple payors, and the coordination and utilization of clinical, operational,
financial and/or administrative review instituted by third-party payors
in an
effort to control costs and manage care. If the payment processes associated
with the healthcare industry are simplified, the need for our services,
or the
price customers are willing to pay for our services, could be reduced.
Changes
in the United States healthcare environment could have a material negative
impact on our revenue and net income.
The
healthcare industry in the United States is subject to changing political,
economic and regulatory influences that may affect the procurement practices
and
operations of healthcare organizations. Our services are designed to function
within the structure of the healthcare financing and reimbursement system
currently being used in the United States. During the past several years,
the
healthcare industry has been subject to increasing levels of governmental
regulation of, among other things, reimbursement rates, certain capital
expenditures, and data confidentiality and privacy. From time to time,
certain
proposals to reform the healthcare system have been considered by Congress.
These proposals, if enacted, may increase government involvement in healthcare,
lower reimbursement rates and otherwise change the operating environment
for our
clients. Healthcare organizations may react to these proposals and the
uncertainty surrounding such proposals by curtailing or deferring their
retention of service providers such as us. We cannot predict what impact,
if
any, such proposals or healthcare reforms might have on our results of
operations, financial condition or business.
We
are subject to extensive government regulation, and any violation of the
laws
and regulations applicable to us could reduce our revenue and profitability
and
otherwise adversely affect our operating results.
Our
business is regulated by the federal government and the states in which
we
operate. The laws and regulations governing our operations are generally
intended to benefit and protect health plan members and providers rather
than
stockholders. The government agencies administering these laws and regulations
have broad latitude to enforce them. These laws and regulations, along
with the
terms of our government contracts, regulate how we do business, what services
we
offer, and how we interact with our clients, providers and the public.
We are
subject, on an ongoing basis, to various governmental reviews, audits and
investigations to verify our compliance with our contracts and applicable
laws
and regulations
Because
we receive payments from federal and state governmental agencies, we are
subject
to various laws, including the Federal False Claims Act, which permit the
federal government to institute suit against us for violations and, in
some
cases, to seek treble damages, penalties and assessments. Many states,
including
states where we currently do business, likewise have enacted parallel
legislation. In addition, private citizens, acting as whistleblowers, can
sue as
if they were the government under a special provision of the Act.
The
General Accounting Office, an investigative arm of Congress, has included
Medicaid on its list of high-risk programs. According to the GAO, states
have
used various financing schemes to generate excessive federal Medicaid matching
funds while their own share of expenditures has remained unchanged or decreased.
Also on January 30, 2004, the United States Senate Finance Committee Chairman
requested that the HHS, CMS, and OIG respond to a lengthy request for
information about vendors that provide contingency fee based revenue
maximization or revenue enhancement services to State Medicaid agencies
specifically with the intent to increase federal Medicaid reimbursement.
This
type of service represents a very small portion of the suite of HMS offerings
and corresponding revenue streams. We cannot predict what impact, if any,
this
inquiry might have on our future results of operations, financial condition
or
business.
Any
violations of any of these laws, rules or regulations or any adverse review,
audit or investigation could reduce our revenues and profitability and
otherwise
adversely affect our operating results.
We
must comply with restrictions on patient privacy and information security,
including taking steps to ensure that our business associates who obtain
access
to sensitive patient information maintain its
confidentiality.
The
use
of individually identifiable data by our businesses is regulated at the
federal
and state levels. These laws and rules are changed frequently by legislation
or
administrative interpretation. Various state laws address the use and disclosure
of individually identifiable health data. Most are derived from the privacy
and
security provisions in the federal Gramm-Leach-Bliley Act and the Health
Insurance Portability and Accountability Act of 1996 (HIPAA). HIPAA also
imposes
guidelines on our business associates (as this term is defined in the HIPAA
regulations). Even though we provide for appropriate protections through
our
contracts with our business associates, we still have limited control over
their
actions and practices. Compliance with these proposals, requirements, and
new
regulations may result in cost increases due to necessary systems changes,
the
development of new administrative processes, and the effects of potential
noncompliance by our business associates. They also may impose further
restrictions on our use of patient identifiable data that is housed in
one or
more of our administrative databases.
Our
businesses depend on effective information systems and the integrity of
the data
in our information systems.
Our
ability to adequately price our products and services, provide effective
and
efficient service to our customers, and to accurately report our financial
results depends on the integrity of the data in our information systems.
As a
result of our acquisition activities, we have acquired additional systems.
We
have been taking steps to reduce the number of systems we operate. If the
information we rely upon to run our businesses was found to be inaccurate
or
unreliable or if we fail to maintain our information systems and data integrity
effectively, we could lose existing customers, have difficulty attracting
new
customers, have problems in establishing appropriate pricing, have disputes
with
customers and other health care providers, have regulatory problems, have
increases in operating expenses or suffer other adverse consequences.
We
depend on information suppliers. If we are unable to manage successfully
our
relationships with a number of these suppliers, the quality and availability
of
our services may be harmed.
We
obtain
some of the data used in our services from third party suppliers and government
entities. If a number of suppliers are no longer able or are unwilling
to
provide us with certain data, we may need to find alternative sources.
If we are
unable to identify and contract with suitable alternative data suppliers
and
integrate these data sources into our service offerings, we could experience
service disruptions, increased costs and reduced quality of our services.
Additionally, if one or more of our suppliers terminates our existing
agreements, there is no assurance that we will obtain new agreements with
third
party suppliers on terms favorable to us, if at all. Loss of such access
or the
availability of data in the future due to increased governmental regulation
or
otherwise could have a material adverse effect on our business, financial
condition or results of operations.
We
depend on our largest clients for significant revenue, and if we lose a
major
client, our revenue could be adversely affected.
We
generate a significant portion of our revenue from our largest clients.
For the
years ended December 31, 2007, 2006 and 2005, our three largest clients
accounted for approximately 22%, 27% and 39% of our revenue from continuing
operations, respectively. If we were to lose a major client, our results
of
operations could be materially and adversely affected by the loss of revenue,
and we would seek to replace the client with new business.
Our
indebtedness results in significant debt service obligations and
limitations.
We
have
significant debt service obligations. Substantially all of our assets used
in
our business operations secure our obligations under our credit facilities.
Our
indebtedness may pose important consequences to investors, including the
risks
that:
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we
will use a substantial portion of our cash flow from operations
to pay
principal and interest on our debt, thereby reducing the funds
available
for acquisitions, working capital, capital expenditures and other
general
corporate purposes;
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increases
in our borrowings under our credit facilities may make it more
difficult
to satisfy our debt obligations;
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our
borrowings under our credit facilities bear interest at variable
rates,
which could create higher debt service requirements if market
interest
rates increase;
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our
degree of leverage may limit our ability to withstand competitive
pressure
and could reduce our flexibility in responding to changes in
business and
economic conditions;
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our
degree of leverage may hinder our ability to adjust rapidly to
changing
market conditions and could make us more vulnerable to downturns
in the
economy or in our industry; and
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our
failure to comply with debt covenants could result in our indebtedness
being immediately due and payable
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If
we
cannot generate sufficient cash flow from operations to meet our obligations,
we
may be forced to reduce or delay acquisitions and other capital expenditures,
sell assets, restructure or refinance our debt, or seek additional equity
capital. There can be no assurance that these remedies would be available
or
satisfactory. Our cash flow from operations will be affected by prevailing
economic conditions and financial, business and other factors that may
be beyond
our control.
We
may not be able to realize the entire book value of goodwill and other
intangible assets from acquisitions.
As
of
December 31, 2007, we have approximately $80.2 million of goodwill and
$22.5
million of intangible assets. We have implemented the provisions of Statement
of
Financial Accounting Standards (“SFAS”) No. 142, “Goodwill and Other Intangible
Assets,” which requires that existing goodwill not be amortized, but instead be
assessed annually for impairment or sooner if circumstances indicate a
possible
impairment. We will monitor for impairment of goodwill on past and future
acquisitions. We perform our impairment testing in the second quarter of
each
year. In the event that the book value of goodwill is impaired, any such
impairment would be charged to earnings in the period of impairment. There
can
be no assurances that future impairment of goodwill under SFAS No. 142
will not
have a material adverse effect on our business, financial condition or
results
of operations. Management performs the goodwill valuation.
RISKS
RELATING TO OUR COMMON STOCK
Our
stock price is volatile, which could result in substantial losses for investors.
Our
common stock is quoted on the Nasdaq Global Select Market, and there has
been
substantial volatility in the market price of our common stock. The trading
price of our common stock has been, and is likely to continue to be, subject
to
significant fluctuations due to a variety of factors, including:
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fluctuations
in our quarterly operating and earnings per share results;
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the
gain or loss of significant
contracts;
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announcements
of technological innovations or new products by us or our competitors;
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delays
in the development and introduction of new services;
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legislative
or regulatory changes;
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general
trends in the industry;
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recommendations
and/or changes in estimates by equity and market research analysts;
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sales
of common stock of existing holders;
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securities
class action or other litigation;
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developments
in our relationships with current or future customers and suppliers;
and
|
| |
·
|
general
economic conditions, both in the United States and abroad.
|
In
addition, the stock market in general has experienced extreme price and
volume
fluctuations that have affected the market price of our common stock, as
well as
the stock of many companies in our industries. Often, price fluctuations
are
unrelated to operating performance of the specific companies whose stock
is
affected.
In
the
past, following periods of volatility in the market price of a company's
stock,
securities class action litigation has occurred against the issuing company.
If
we were subject to this type of litigation in the future, we could incur
substantial costs and a diversion of our management's attention and resources,
each of which could have a material adverse effect on our revenue and earnings.
Any adverse determination in this type of litigation could also subject
us to
significant liabilities.
Because
we do not intend to pay cash dividends on our common stock, an investor
in our
common stock will benefit only if it appreciates in value.
We
currently intend to retain our future earnings, if any, to finance the
expansion
of our business and do not expect to pay any cash dividends on our common
stock
in the foreseeable future. As a result, the success of an investment in
our
common stock will depend entirely upon any future appreciation. There is
no
guarantee that our common stock will appreciate in value or even maintain
the
price at which an investor purchased his or her shares.
Certain
provisions in our certificate of incorporation could discourage unsolicited
takeover attempts, which could depress the market price of our common
stock.
We
are
subject to the New York anti-takeover laws regulating corporate takeovers.
These
anti-takeover laws prohibit certain business combinations between a New
York
corporation and any "interested shareholder" (generally, the beneficial
owner of
20% or more of the corporation's voting shares) for five years following
the
time that the shareholder became an interested shareholder, unless the
corporation's board of directors approved the transaction prior to the
interested shareholder becoming interested.
Our
certificate of incorporation authorizes the issuance of up to 5,000,000
shares
of “blank check” preferred stock with such designations, rights and preferences
as may be determined by our Board of Directors. Accordingly, our Board
of
Directors is empowered, without shareholder approval, to issue preferred
stock
with dividend, liquidation, conversion, voting or other rights, which could
adversely affect the voting power or, other rights of holders of our common
stock. In the event of issuance, preferred stock could be utilized, under
certain circumstances, as a method of discouraging, delaying or preventing
a
change in control. Although we have no present intention to issue any shares
of
preferred stock, we cannot assure you that we will not do so in the future.
In
addition, our by-laws provide for a classified Board of Directors, which
could
also have the effect of discouraging a change of control.
This
prospectus includes and incorporates forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as amended (the Securities
Act), and Section 21E of the Securities Exchange Act of 1934, as amended
(the Exchange Act). All statements, other than statements of historical facts,
included or incorporated in this prospectus regarding our strategy, future
operations, financial position, future revenues, projected costs, prospects,
plans and objectives of management are forward-looking statements. The words
“anticipates,” “believes,” “estimates,” “expects,” “intends,” “may,” “plans,”
“projects,” “will,” “would” and similar expressions are intended to identify
forward-looking statements, although not all forward-looking statements contain
these identifying words. We cannot guarantee that we actually will achieve
the
plans, intentions or expectations disclosed in our forward-looking statements
and you should not place undue reliance on our forward-looking statements.
Actual results or events could differ materially from the plans, intentions
and
expectations disclosed in the forward-looking statements we make. We have
included important factors in the cautionary statements included or incorporated
in this prospectus, particularly under the heading “Risk Factors”, that we
believe could cause actual results or events to differ materially from the
forward-looking statements that we make. Our forward-looking statements do
not
reflect the potential impact of any future acquisitions, mergers, dispositions,
joint ventures or investments we may make. Any such forward-looking statements
represent management’s views as of the date of the document in which such
forward-looking statement is contained. While we may elect to update such
forward-looking statements at some point in the future, we disclaim any
obligation to do so, even if subsequent events cause our views to
change.
The
shares of common stock offered by this prospectus are being registered for
the
account of the selling shareholders identified in this prospectus. See “Selling
Shareholders.” All net proceeds from the sale of the shares of common stock will
go to the shareholders that offer and sell their shares. We will not receive
any
part of the proceeds from such sales of common stock. We will, however, receive
the exercise price of the options at the time of their exercise. Such proceeds
will be contributed to working capital and will be used for general corporate
purposes.
The
shares of common stock to which this prospectus relates may be reoffered and
sold from time to time by selling shareholders who may be deemed our
"affiliates" (as defined in Rule 501(b) of Regulation D of the Securities Act
of
1933, as amended). The selling shareholders will acquire or have acquired the
shares of common stock upon exercise of options or other awards granted or
to be
granted to them pursuant to our Amended and Restated 2006 Stock Plan ("2006
Plan"), upon exercise of options granted under our 1999 Long-Term Incentive
Stock Plan ("1999 Plan"), upon exercise of options granted by us pursuant to
four Stock Option Agreement (“Option Agreements”) or upon exercise of options
granted under our 1995 Non-Employee Director Stock Plan ("1995 Plan"). The
table
below identifies each selling shareholder and his or her relationship to us.
The
table also sets forth, as of March 12, 2008 for each selling shareholder: (i)
the number of shares of common stock beneficially owned prior to this offering,
(ii) the number of shares of common stock that may be offered and sold through
this prospectus, and (iii) the number of shares of common stock and the
percentage of the class represented by such shares to be owned by each such
selling shareholder assuming the sale of all of the registered shares. There
is
no assurance that any of the selling shareholders will sell any or all of their
shares of common stock. The inclusion in the table of the individuals named
therein shall not be deemed to be an admission that any such individuals are
one
of our affiliates. Except as otherwise noted, all shares of common stock are
beneficially owned and the sole investment and voting power is held by the
person named, and such persons' address is c/o HMS Holdings Corp., 401 Park
Avenue South, New York, New York 10016. Information regarding the selling
shareholders, including the number of shares offered for sale, may change from
time to time, and any changed information will be set forth in a prospectus
supplement to the extent required.
| |
|
|
|
|
|
Beneficial Ownership After
this
Offering
(1) (2)
|
|
|
Name
and Position
|
|
Beneficial
Ownership Prior
to
this Offering
|
|
Shares that may
be
Offered and
Sold
Hereby
|
|
Number
of
Shares
|
|
Percent
of
Class
|
|
| |
|
|
|
|
|
|
|
|
|
|
Robert
M. Holster, Chairman and Chief Executive Officer (3)
|
|
|
893,310
|
|
|
800,000
|
|
|
93,310
|
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
William
C. Lucia, President and Chief Operating Officer (4)
|
|
|
516,694
|
|
|
510,000
|
|
|
6,694
|
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Walter
D. Hosp, Chief Financial Officer (5)
|
|
|
76,000
|
|
|
75,000
|
|
|
1,000
|
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
John
D. Schmid, Vice President Human Resources (6)
|
|
|
40,000
|
|
|
40,000
|
|
|
-
|
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
James
T. Kelly, Director (7)
|
|
|
296,150
|
|
|
296,150
|
|
|
-
|
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
William
F. Miller, Director (8)
|
|
|
557,200
|
|
|
11,150
|
|
|
546,050
|
|
|
2.2
|
%
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
William
S. Mosakowski, Director (9)
|
|
|
454,700
|
|
|
9,900
|
|
|
444,800
|
|
|
1.8
|
%
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
William
W. Neal, Director (10)
|
|
|
107,150
|
|
|
31,150
|
|
|
76,000
|
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Galen
D. Powers, Director (11)
|
|
|
61,887
|
|
|
61,650
|
|
|
237
|
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ellen
A. Rudnick, Director (12)
|
|
|
120,150
|
|
|
117,150
|
|
|
3,000
|
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Michael
A. Stocker, Director (13)
|
|
|
9,900
|
|
|
9,900
|
|
|
-
|
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Richard
H. Stowe, Director (14)
|
|
|
219,650
|
|
|
219,650
|
|
|
-
|
|
|
*
|
|
* Denotes less than 1%.
(1)
Percentage calculated on the basis of 24,885,752 shares of common stock
outstanding at March 12, 2008, plus in the case of each selling shareholder,
additional shares of common stock deemed to be outstanding because such shares
may be acquired through the exercise of outstanding options beneficially owned
by such selling shareholder.
(2)
Assumes the sale of all shares of common stock registered pursuant to this
prospectus, although selling shareholders are under no obligation known to
us to
sell any shares of common stock at this time.
(3)
Includes (i) 20,000 shares of common stock issuable upon the exercise of options
granted under the 2006 Plan, none of which are exercisable as of March 12,
2008,
(ii) 420,000 shares of common stock issuable upon the exercise of options
granted under the 1999 Plan of which all are exercisable as of March 12, 2008,
120,000 of these shares are related to the exercise of stock options held by
Mr.
Holster's family trust to which he disclaims beneficial ownership and
(iii) 360,000 shares of common stock issuable upon the exercise of options
granted under the Option Agreements, all of which all are exercisable as of
March 12, 2008. Also includes 35,996 shares of common stock owned by
members of the family of Mr. Holster, as to which Mr. Holster disclaims
beneficial ownership.
(4)
Includes 137,335 shares of common stock issuable upon the exercise of options
granted under the 2006 Plan, 29,334 of which are exercisable as of March 12,
2008 and 372,665 shares of common stock issuable upon the exercise of options
granted under the 1999 Plan, 310,667 of which are exercisable as of March 12,
2008.
(5)
Includes 15,000 shares of common stock issuable upon the exercise of options
granted under the 2006 Plan, none of which are exercisable as of March 12,
2008
and 60,000 shares of common stock issuable upon the exercise of options granted
under the Option Agreements, none of which are exercisable as of March 12,
2008.
(6)
Includes 40,000 shares of common stock issuable upon the exercise of options
granted under the 2006 Plan, none of which are exercisable as of March 12,
2008.
(7)
Includes (i) 11,150 shares of common stock issuable upon the exercise of options
granted under the 2006 Plan, 2,788 of which are exercisable as of March 12,
2008, (ii) 35,000 shares of common stock issuable upon the exercise of options
granted under the 1999 Plan, all of which are exercisable and (iii) 250,000
shares of common stock issuable upon the exercise of options granted under
the
Option Agreements, all of which all are exercisable as of March 12, 2008.
(8)
Includes 11,150 shares of common stock issuable upon the exercise of options
granted under the 2006 Plan, 2,788 of which are exercisable as of March 12,
2008
and 6,000 shares of common stock owned by members of the family of Mr. Miller,
as to which Mr. Miller disclaims beneficial ownership.
(9)
Includes 9,900 shares of common stock issuable upon the exercise of options
granted under the 2006 Plan, 2,475 of which are exercisable as of March 12,
2008
and 444,800 shares of common stock owned by Public Consulting Group, Inc.,
of
which Mr. Mosakowski
is the President, Chief Executive Officer, controlling stockholder and a member
of the Board of Directors. Mr. Mosakowski disclaims beneficial ownership of
these shares.
(10)
Includes (i) 11,150 shares of common stock issuable upon the exercise of options
granted under the 2006 Plan, 2,788 of which are exercisable as of March 12,
2008, (ii) 20,000 shares of common stock issuable upon the exercise of options
granted under the 1999 Plan, of which are all exercisable and 5,000 as of March
12, 2008. Also includes 71,000 shares of common stock owned by members of the
family of Mr. Neal, as to which Mr. Neal disclaims beneficial
ownership.
(11)
Includes (i) 11,150 shares of common stock issuable upon the exercise of options
granted under the 2006 Plan, 2,788 of which are exercisable as of March 12,
2008, (ii) 50,500 shares of common stock issuable upon the exercise of options
granted under the 1999 Plan, of which all are exercisable as of March 12, 2008.
Also includes 237 shares of common stock owned by members of the family of
Mr.
Powers, as to which Mr. Powers disclaims beneficial ownership.
(12)
Includes (i) 11,150 shares of common stock issuable upon the exercise of options
granted under the 2006 Plan, 2,788 of which are exercisable as of March 12,
2008, (ii) 106,000 shares of common stock issuable upon the exercise of options
granted under the 1999 Plan, of which all are exercisable as of March 12,
2008.
(13)
Includes (i) 9,900 shares of common stock issuable upon the exercise of options
granted under the 2006 Plan, 2,475 of which are exercisable as of March 12,
2008
(14)
Includes (i) 11,150 shares of common stock issuable upon the exercise of options
granted under the 2006 Plan, 2,788 of which are exercisable as of March 12,
2008, (ii) 204,750 shares of common stock issuable upon the exercise of options
granted under the 1999 Plan, of which all are exercisable as of March 12, 2008
and (iii) 3,750 shares of common stock issuable upon the exercise of options
granted under the 1995 Plan, all of which are exercisable as of March 12, 2008.
The
shares covered by this prospectus may be offered and sold from time to time
by
the selling stockholders. The term “selling stockholders” includes donees,
pledgees, transferees or other successors-in-interest selling shares received
after the date of this prospectus from a selling stockholder as a gift, pledge,
partnership distribution or other non-sale related transfer. The selling
stockholders will act independently of us in making decisions with respect
to
the timing, manner and size of each sale. Such sales may be made on one or
more
exchanges or in the over-the-counter market or otherwise, at prices and under
terms then prevailing or at prices related to the then current market price
or
in negotiated transactions. The selling stockholders may sell their shares
by
one or more of, or a combination of, the following methods:
| |
·
|
purchases
by a broker-dealer as principal and resale by such broker-dealer
for its
own account pursuant to this
prospectus;
|
| |
·
|
ordinary
brokerage transactions and transactions in which the broker solicits
purchasers;
|
| |
·
|
block
trades in which the broker-dealer so engaged will attempt to sell
the
shares as agent but may position and resell a portion of the block
as
principal to facilitate the
transaction;
|
| |
·
|
an
over-the-counter distribution in accordance with the rules of the
Nasdaq
Global Select Market;
|
| |
·
|
in
privately negotiated transactions;
and
|
| |
·
|
in
options transactions.
|
In
addition, any shares that qualify for sale pursuant to Rule 144 may be sold
under Rule 144 rather than pursuant to this prospectus.
To
the
extent required, this prospectus may be amended or supplemented from time to
time to describe a specific plan of distribution. In connection with
distributions of the shares or otherwise, the selling stockholders may enter
into hedging transactions with broker-dealers or other financial institutions.
In connection with such transactions, broker-dealers or other financial
institutions may engage in short sales of the common stock in the course of
hedging the positions they assume with selling stockholders. The selling
stockholders may also sell the common stock short and redeliver the shares
to
close out such short positions. The selling stockholders may also enter into
option or other transactions with broker-dealers or other financial institutions
that require the delivery to such broker-dealer or other financial institution
of shares offered by this prospectus, which shares such broker-dealer or other
financial institution may resell pursuant to this prospectus (as supplemented
or
amended to reflect such transaction). The selling stockholders may also pledge
shares to a broker-dealer or other financial institution,
and, upon a default, such broker-dealer or other financial institution may
effect sales of the pledged shares pursuant to this prospectus (as supplemented
or amended to reflect such transaction).
In
effecting sales, broker-dealers or agents engaged by the selling stockholders
may arrange for other broker-dealers to participate. Broker-dealers or agents
may receive commissions, discounts or concessions from the selling stockholders
in amounts to be negotiated immediately prior to the sale.
In
offering the shares covered by this prospectus, the selling stockholders and
any
broker-dealers who execute sales for the selling stockholders may be deemed
to
be “underwriters” within the meaning of the Securities Act in connection with
such sales. Any profits realized by the selling stockholders and the
compensation of any broker-dealer may be deemed to be underwriting discounts
and
commissions.
In
order
to comply with the securities laws of certain states, if applicable, the shares
must be sold in such jurisdictions only through registered or licensed brokers
or dealers. In addition, in certain states the shares may not be sold unless
they have been registered or qualified for sale in the applicable state or
an
exemption from the registration or qualification requirement is available and
is
complied with.
We
have
advised the selling stockholders that the anti-manipulation rules of Regulation
M under the Exchange Act may apply to sales of shares in the market and to
the
activities of the selling stockholders and their affiliates. In addition, we
will make copies of this prospectus available to the selling stockholders for
the purpose of satisfying the prospectus delivery requirements of the Securities
Act. The selling stockholders may indemnify any broker-dealer that participates
in transactions involving the sale of the shares against certain liabilities,
including liabilities arising under the Securities Act.
At
the
time a particular offer of shares is made, if required, a prospectus supplement
will be distributed that will set forth the number of shares being offered
and
the terms of the offering, including the name of any underwriter, dealer or
agent, the purchase price paid by any underwriter, any discount, commission
and
other item constituting compensation, any discount, commission or concession
allowed or reallowed or paid to any dealer, and the proposed selling price
to
the public.
The
validity of the shares of common stock will be passed upon for us by Meister
Seelig & Fein LLP, New York, New York.
The
consolidated financial statements and schedule of HMS Holdings Corp. as of
December 31, 2007 and 2006, and for each of the years in the three-year period
ended December 31, 2007, and management’s assessment of the effectiveness of
internal control over financial reporting as of December 31, 2007, have been
incorporated by reference herein and in the registration statement in reliance
upon the reports of KPMG LLP, independent registered public accounting firm,
incorporated by reference herein, and upon the authority of said firm as
experts
in accounting and auditing. The audit report on the December 31, 2007
consolidated financial statements contains an explanatory paragraph that
HMS
Holdings Corp. adopted Statement on Financial Accounting Standards No. 123R
"Share-based Payments," as of January 1, 2006.
We
have
filed registration statements with the SEC on Forms S-8 to register the shares
of our common stock being offered by this prospectus. This prospectus, which
is
part of the registration statements, does not contain all the information
included in the registration statements. Some information has been omitted
in
accordance with the rules and regulations of the SEC. For further information,
please refer to the registration statements and the exhibits and schedules
filed
with them. In addition, we file annual, quarterly and current reports, proxy
statements and other information with the SEC. You may read and copy any
reports, statements or other information that we file at the SEC's public
reference facilities at 450 Fifth Street, N.W., Washington, D.C. 20549. Please
call the SEC at 1-800-SEC-0330 for further information regarding the public
reference facilities. The SEC maintains a website, http://www.sec.gov, that
contains reports, proxy statements and information statements and other
information regarding registrants that file electronically with the SEC,
including us. Our SEC filings are also available to the public from commercial
document retrieval services. Information contained on our website should not
be
considered part of this prospectus.
You
may
also request a copy of our filings at no cost by writing or telephoning us
at:
HMS
Holdings Corp., 401 Park Avenue South, New York, New York 10016 Attention:
Corporate Secretary (212) 725-7965.
The
SEC
allows us to "incorporate by reference" the information we file with them,
which
means that we can disclose important information to you by referring you to
those documents. The information incorporated by reference is considered to
be
part of this prospectus, and information that we file later with the SEC will
automatically update and supersede this information. We incorporate by reference
the documents listed below and any future filings that we will make with the
SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934:
(a)
Our
Registration Statement on Form S-8, filed November 30, 2006, File No.
333-139025;
(b)
Our
Annual Report on Form 10-K for the year ended December 31, 2007;
and
(c)
The
description of our shares of common stock contained in our registration
statement on Form 8-K/12g-3, as filed with the SEC on March 3, 2003.
We
will
provide without charge to each person, including any beneficial owner, to whom
a
copy of this prospectus is delivered a copy of any or all documents incorporated
by reference into this prospectus except the exhibits to such documents (unless
such exhibits are specifically incorporated by reference in such documents).
Requests for copies can be made by writing or telephoning us at:
HMS
Holdings Corp., 401 Park Avenue South, New York, New York 10016 Attention:
Corporate Secretary (212) 725-7965.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to our directors, officers or persons controlling us, we have been
advised that it is the SEC’s opinion that such indemnification is against public
policy as expressed in the Securities Act and is, therefore,
unenforceable.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
following documents, filed by the Registrant with the Securities and Exchange
Commission (the “SEC”) are incorporated by reference in this Registration
Statement:
(a)
The
Prior 2006 Plan Registration Statement;
(b)
The
Registrant’s Annual Report on Form 10-K for the year ended December 31, 2007;
and
(e)
The
description of the Registrant’s shares of common stock contained in its
registration statement on Form 8-K/12g-3, as filed with the SEC on March 3,
2003.
All
documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act after the date of this Registration Statement and
prior to the filing of a post-effective amendment hereto that indicate that
all
securities offered have been sold or that deregisters all such 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 in a document 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 that also is incorporated or 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 722
of the New York Business Corporation Law (the “BCL”) provides that a corporation
may indemnify directors and officers as well as other employees and individuals
against judgments, fines, amounts paid in settlement and reasonable expenses,
including attorneys’ fees, in connection with actions or proceedings, whether
civil or criminal (other than an action by or in the right of the corporation
-
a “derivative action”), if they acted in good faith and in a manner they
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 their conduct was unlawful. A similar standard
is
applicable in the case of derivative actions, except that indemnification only
extends to amounts paid in settlement and reasonable expenses (including
attorneys’ fees) incurred in connection with the defense or settlement of such
actions, and the statute does not apply in respect of a threatened action,
or a
pending action that is settled or otherwise disposed of, and requires court
approval before there can be any indemnification where the person seeking
indemnification has been found liable to the corporation. Section 721 of
the BCL provides that Article 7 of the BCL is not exclusive of other
indemnification that may be granted by a corporation’s certificate of
incorporation, disinterested director vote, stockholder vote, agreement or
otherwise. Article VIII, Section 7, of the Registrant’s by-laws
requires the Registrant to indemnify its officers and directors to the fullest
extent permitted under the BCL.
Any
amendment to or repeal of the Registrant’s certificate of incorporation or
by-laws shall not adversely affect any right or protection of a director of
the
Registrant for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
The
certificate of incorporation of the Registrant (Article Ninth) provides the
following:
Pursuant
to Section 402(b) of the Business Corporation Law, the liability of the
Corporation’s directors to the Corporation or its shareholders for damages for
breach of duty as a director shall be eliminated to the fullest extent permitted
by the Business Corporation Law, as it exists on the date hereof or as it may
hereafter be amended. No amendment to or repeal of this Article shall apply
to
or have any effect on the liability or alleged liability of any director of
the
Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
In
addition, the Registrant maintains directors’ and officers’ liability insurance
policies.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
|
Exhibit
Number
|
|
Description
|
| |
|
|
|
2
|
|
Agreement
and Plan of Merger, dated as of December 16, 2002, among Health
Management
Systems, Inc., HMS Holdings Corp. and HMS Acquisition Corp. (Incorporated
by reference to Exhibit 2.1 to Amendment No. 1 (“Amendment No. 1”) to HMS
Holdings Corp.’s Registration Statement on Form S-4, File No. 333-100521
(the “Form S-4”))
|
| |
|
|
|
3.1(i)
|
|
Restated
Certificate
of Incorporation of HMS Holdings Corp. (Incorporated
by reference to Exhibit
3.1 to Amendment No. 1)
|
| |
|
|
|
3.1(ii)
|
|
Certificate
of Amendment to the Certificate of Incorporation of HMS Holdings
Corp.
(Incorporated by reference to Exhibit 3.1(a) to HMS Holdings Corp.’s
Registration Statement on Form S-8, File No. 333-108436 (the “1999 Plan
Form S-8”))
|
| |
|
|
|
3.2
|
|
By-laws
of HMS Holdings Corp. (Incorporated by reference to Exhibit 3.2
to the
Form S-4)
|
| |
|
|
|
4.1
|
|
HMS
Holdings Corp. 1999 Long-Term Incentive Stock Plan (Incorporated
by
reference to Exhibit 4 to the 1999 Plan Form S-8)
|
| |
|
|
|
4.2
|
|
Stock
Option Agreement, dated as of January 10, 2001, between Health
Management Systems, Inc. and William F. Miller III (Incorporated
by
reference to Exhibit 4.01 to HMS Holdings Corp.’s Registration Statement
on Form S-8, File No. 333-108445 (the “Option Agreement Form
S-8”))
|
| |
|
|
|
4.3
|
|
Stock
Option Agreement, dated as of March 30, 2001, between Health
Management Systems, Inc. (“HMS”) and Robert M. Holster (Incorporated by
reference to Exhibit 4.02 to the Option Agreement Form
S-8)
|
| |
|
|
|
4.4
|
|
Stock
Option Agreement, dated as of December 12, 2001, between Health
Management Systems, Inc. and James T. Kelly (Incorporated by reference
to
Exhibit 4.03 to the Option Agreement Form S-8)
|
| |
|
|
|
4.5
|
|
HMS
Holdings Corp. 1995 Non-Employee Director Stock Option Plan (Incorporated
by reference to Exhibit 10.2 to HMS’ Quarterly Report on
Form 10-Q for the quarter ended January 31,
1995)
|
| |
|
|
|
4.6
|
|
HMS
Holdings Corp. 2006 Stock Plan (Incorporated by reference to Exhibit
4.6
to HMS Holdings Corp.’s Registration Statement on Form S-8, File No.
333-139025 (the “2006 Plan Prior Form S-8”))
|
| |
|
|
|
4.6(i)
|
|
Form
of Incentive Stock Option Agreement - 2006 Plan (Incorporated by
reference
to Exhibit 4.6(i) to the 2006 Plan Prior Form S-8)
|
| |
|
|
|
4.6(ii)
|
|
Form
of Non-Qualified Stock Option Agreement - 2006 Plan (Incorporated
by
reference to Exhibit 4.6(ii) to the 2006 Plan Prior Form
S-8)
|
| |
|
|
|
*4.7
|
|
Form
of Non-Qualified Stock Option Agreements
|
| |
|
|
|
*4.8
|
|
Stock
Option Agreement, dated as of July 2, 2007, between HMS Holdings
Corp. and
Walter D. Hosp
|
| |
|
|
| *4.9 |
|
HMS
Holdings Corp. Amended and Restated 2006 Stock
Plan |
|
Exhibit
Number
|
|
Description
|
| |
|
|
|
*5
|
|
Opinion
of Meister Seelig & Fein LLP re legality
|
| |
|
|
|
*23.1
|
|
Consent
of KPMG LLP
|
| |
|
|
|
23.2
|
|
Consent
of Meister Seelig & Fein LLP (included in Exhibit
5)
|
| |
|
|
|
24
|
|
Powers
of Attorney (included on signature
page)
|
*
Filed
herewith.
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, as amended (the “Securities Act”);
(ii)
To
reflect in the prospectus any facts or events arising after the effective date
of this 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 the 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 a prospectus filed with the
SEC
pursuant to Rule 424(b) of the Securities Act 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 this Registration Statement or any material change
to
such information in this Registration Statement;
Provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply to information
contained in periodic reports filed by the registrant 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.
(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, when 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 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 SEC 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.
SIGNATURES
Pursuant
to the requirements of the Securities Act, 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 New
York, State of New York, on this 20th day of March, 2008.
| |
HMS
HOLDINGS CORP.
|
| |
|
| |
By:
|
/s/
Robert M. Holster
|
| |
Robert
M. Holster
|
| |
Chairman
and Chief Executive Officer
|
POWER
OF ATTORNEY
We,
the
undersigned directors and officers of the Registrant, do hereby constitute
and
appoint Robert M. Holster and Walter D. Hosp and each and either of them, our
true and lawful attorneys-in-fact and agents, to do any and all acts and things
in our names and on our behalf in our capacities as trustees and officers and
to
execute any and all instruments for us and in our name in the capacities
indicated below, which said attorneys and agents, or either of them, may deem
necessary or advisable to enable the Registrant to comply with the Securities
Act of 1933 and any rules, regulations and requirements of the Securities and
Exchange Commission, in connection with this Registration Statement, or any
registration statement for this offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933, including
specifically, but without limitation, any and all amendments (including
post-effective amendments) hereto; and we hereby ratify and confirm all that
said attorneys and agents, or either of them, shall do or cause to be done
by
virtue thereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities indicated as of
the 20th day of March, 2008.
|
Signature
|
|
Title
|
|
/s/
Robert M. Holster
|
|
Chairman,
Chief Executive Officer and Director
|
|
Robert
M. Holster
|
|
(Principal
Executive Officer)
|
| |
|
|
|
/s/
Walter D. Hosp
|
|
Chief
Financial Officer (Principal Financial and
|
|
Walter
D. Hosp
|
|
Accounting
Officer)
|
| |
|
|
|
/s/
James T. Kelly
|
|
Director
|
|
James
T. Kelly
|
|
|
| |
|
|
|
/s/
William F. Miller, III
|
|
Director
|
|
William
F. Miller, III
|
|
|
| |
|
|
|
/s/
William W. Neal
|
|
Director
|
|
William
W. Neal
|
|
|
| |
|
|
|
/s/
Galen D. Powers
|
|
Director
|
|
Galen
D. Powers
|
|
|
| |
|
|
|
/s/
Ellen A. Rudnick
|
|
Director
|
|
Ellen
A. Rudnick
|
|
|
| |
|
|
|
/s/
William S. Mosakowski
|
|
Director
|
|
William
S. Mosakowski
|
|
|
| |
|
|
|
Signature
|
|
Title
|
|
/s/
Michael A. Stocker
|
|
Director
|
|
Michael
A. Stocker
|
|
|
| |
|
|
|
/s/
Richard H. Stowe
|
|
Director
|
|
Richard
H. Stowe
|
|
|
EXHIBIT
INDEX
|
Exhibit
Number
|
|
Description
|
| |
|
|
|
2
|
|
Agreement
and Plan of Merger, dated as of December 16, 2002, among Health Management
Systems, Inc., HMS Holdings Corp. and HMS Acquisition Corp. (Incorporated
by reference to Exhibit 2.1 to Amendment No. 1 (“Amendment No. 1”) to HMS
Holdings Corp.’s Registration Statement on Form S-4, File No. 333-100521
(the “Form S-4”))
|
| |
|
|
|
3.1(i)
|
|
Restated
Certificate of Incorporation of HMS Holdings Corp. (Incorporated
by
reference to Exhibit 3.1 to Amendment No. 1)
|
| |
|
|
|
3.1(ii)
|
|
Certificate
of Amendment to the Certificate of Incorporation of HMS Holdings
Corp.
(Incorporated by reference to Exhibit 3.1(a) to HMS Holdings Corp.’s
Registration Statement on Form S-8, File No. 333-108436 (the “1999 Plan
Form S-8”))
|
| |
|
|
|
3.2
|
|
By-laws
of HMS Holdings Corp. (Incorporated by reference to Exhibit 3.2 to
the
Form S-4)
|
| |
|
|
|
4.1
|
|
HMS
Holdings Corp. 1999 Long-Term Incentive Stock Plan (Incorporated
by
reference to Exhibit 4 to the 1999 Plan Form S-8)
|
| |
|
|
|
4.2
|
|
Stock
Option Agreement, dated as of January 10, 2001, between Health
Management Systems, Inc. and William F. Miller III (Incorporated
by
reference to Exhibit 4.01 to HMS Holdings Corp.’s Registration Statement
on Form S-8, File No. 333-108445 (the “Option Agreement Form
S-8”))
|
| |
|
|
|
4.3
|
|
Stock
Option Agreement, dated as of March 30, 2001, between Health
Management Systems, Inc. (“HMS”) and Robert M. Holster (Incorporated by
reference to Exhibit 4.02 to the Option Agreement Form
S-8)
|
| |
|
|
|
4.4
|
|
Stock
Option Agreement, dated as of December 12, 2001, between Health
Management Systems, Inc. and James T. Kelly (Incorporated by reference
to
Exhibit 4.03 to the Option Agreement Form S-8)
|
| |
|
|
|
4.5
|
|
HMS
Holdings Corp. 1995 Non-Employee Director Stock Option Plan (Incorporated
by reference to Exhibit 10.2 to HMS’ Quarterly Report on
Form 10-Q for the quarter ended January 31,
1995)
|
| |
|
|
|
4.6
|
|
HMS
Holdings Corp. 2006 Stock Plan (Incorporated by reference to Exhibit
4.6
to HMS Holdings Corp.’s Registration Statement on Form S-8, File No.
333-139025 (the “2006 Plan Prior Form S-8”))
|
| |
|
|
|
4.6(i)
|
|
Form
of Incentive Stock Option Agreement - 2006 Plan (Incorporated by
reference
to Exhibit 4.6(i) to the 2006 Plan Prior Form S-8)
|
| |
|
|
|
4.6(ii)
|
|
Form
of Non-Qualified Stock Option Agreement - 2006 Plan (Incorporated
by
reference to Exhibit 4.6(ii) to the 2006 Plan Prior Form
S-8)
|
| |
|
|
|
*4.7
|
|
Form
of Non-Qualified Stock Option Agreements
|
| |
|
|
|
*4.8
|
|
Stock
Option Agreement, dated as of July 2, 2007, between HMS Holdings
Corp. and
Walter D. Hosp
|
| |
|
|
|
*4.9
|
|
HMS
Holdings Corp. Amended and Restated 2006 Stock
Plan
|
|
Exhibit
Number
|
|
Description
|
| |
|
|
|
*5
|
|
Opinion
of Meister Seelig & Fein LLP re legality
|
| |
|
|
|
*23.1
|
|
Consent
of KPMG LLP
|
| |
|
|
|
23.2
|
|
Consent
of Meister Seelig & Fein LLP (included in Exhibit
5)
|
| |
|
|
|
24
|
|
Powers
of Attorney (included on signature
page)
|
*
Filed
herewith.