Unassociated Document
As
filed
with the Securities and Exchange Commission on November 30, 2006.
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. 2006 STOCK PLAN
1999
LONG-TERM INCENTIVE STOCK PLAN
HMS
HOLDINGS CORP. STOCK OPTION AGREEMENTS
1995
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full
title of the Plans)
Thomas
G.
Archbold, 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.
Gottbetter
& Partners, LLP
488
Madison Avenue
New
York,
New York 10022-5718
(212)
400-6900
CALCULATION
OF REGISTRATION FEE
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Proposed
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Proposed
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Title
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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
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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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1,000,000
shares(3)
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$13.49(4)
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$13,490,000
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$1,443.43
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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) 3,100,794 shares of common stock previously registered on Form
S-8, Registration No. 333-108436, (ii) 969,447shares of common stock previously
registered on Form S-8, Registration No. 333-108445, and (iii) 16,500 shares
of
common stock previously registered on Form S-8, Registration No. 033-95326-99,
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 and issuable upon exercise of options
granted under the HMS Holdings Corp. 1995 Non-Employee Director Stock Option
Plan, respectively.
(3)
Represents shares issuable upon the exercise of awards granted or available
to
be granted under the HMS Holdings Corp. 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 of 1933, as amended, on
the basis of $13.49 per share, the average of the high ($13.89) and low ($13.08)
sale prices of the Registrant’s common stock, as reported in the Nasdaq Global
Select Market on November 27, 2006.
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 AND 033-95326-99.
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 shares issuable pursuant to the HMS Holdings Corp. 2006 Stock Plan
(the
"2006 Plan") 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 three 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”).
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. 3,100,794 unexercised options remain outstanding
under the 1999 Plan, of which 1,948,316 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. 969,447 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. 16,500 unexercised options
remain outstanding under the 1995 Plan, of which 12,000 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 and
033-95326-99.
The
documents containing information specified by Part I of this Registration
Statement will be sent or given to holders of options or restricted stock awards
granted under the 2006 Plan, as specified in Rule 428(b)(1) promulgated by
the
Securities and Exchange Commission under the Securities Act. Such document(s)
are not required to be filed with the SEC but constitute (along with the
documents incorporated by reference into this Registration Statement pursuant
to
Item 3 of Part II hereof) a prospectus that meets the requirements of Section
10(a) of the Securities Act.
PROSPECTUS
3,133,931
SHARES
HMS
HOLDINGS CORP.
Common
Stock, $.01 par value
This
prospectus relates to the reoffer and resale of up to 3,133,931 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. 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 three 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 November 27, 2006, the closing price for the common stock, as
reported by the Nasdaq Global Select Market, was $13.30. 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 November 30, 2006.
TABLE
OF CONTENTS
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Page
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SUMMARY
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3
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RISK
FACTORS
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3
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SPECIAL
NOTE REGARDING FORWARD-LOOKING INFORMATION
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10
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USE
OF PROCEEDS
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SELLING
SHAREHOLDERS
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12
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PLAN
OF DISTRIBUTION
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LEGAL
MATTERS
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EXPERTS
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WHERE
YOU CAN FIND MORE INFORMATION
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INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
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DISCLOSURE
OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT
LIABILITIES
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SUMMARY
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. They are offered through our Health
Management Systems, Inc. (HMS) and Reimbursement Services Group Inc. (RSG)
subsidiaries.
HMS,
which generated approximately 85% of Holdings’ revenue in 2005, works on behalf
of government payors to help contain healthcare costs by recovering expenditures
that were the responsibility of a third party, or were paid in error. HMS’s
customers are state and county Medicaid programs, Medicaid managed care plans,
child support enforcement agencies, state prescription drug plans and other
public programs.
RSG,
which generated approximately 15% of Holdings’ revenue in 2005, works 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.
On
September 13, 2006, we acquired Benefits Solutions Practice Area (“BSPA”) of
Public Consulting Group, Inc. Through the BSPA, we provide a variety of cost
avoidance, insurance verification, recovery audit and related services to state
Medicaid agencies, children and family services agencies, the U.S. Department
of
Veterans Affairs, and the Centers for Medicare and Medicaid
Services.
Our
principal executive offices are located at 401 Park Avenue South, New York,
New
York 10016, and our telephone number is (212) 725-7965.
RISK
FACTORS
RISKS
RELATING TO OUR COMPANY AND OUR INDUSTRY
Investing
in our common stock involves a high degree of risk. You should carefully
consider the risks and uncertainties described below before purchasing our
common stock. The risks and uncertainties described below are not the only
ones
facing our company. Additional risks and uncertainties may also impair our
business operations. If any of the following risks actually occur, our business,
financial condition or results of operations would likely suffer. In that
case,
the trading price of our common stock could fall, and you may lose all or
part
of the money you paid to buy our common stock. All numbers and percentages
presented in the Risk Factors as of and prior to December 31, 2005 represented
the historical operations of the Company and do not reflect the impact the
acquisition of the BSPA may have on such amounts.
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 of up to 25% 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 intense and 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 competitors and 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
our
service offerings. Complexities of the healthcare payment process include
multiple payors, 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.
Recently,
the General Accounting Office, an investigative arm of Congress, added Medicaid
to 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.
Certain
provisions in our certificate of incorporation could discourage unsolicited
takeover attempts, which could depress the market price of our common
stock.
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.
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, 2005, 2004, and 2003, our three largest clients
accounted for approximately 39%, 41% and 37% of our revenue from continuing
operations, respectively. For the nine months ended September 30, 2006, our
three largest clients accounted for approximately 39% of our revenue from
continuing operations. Our relationship with one of these customers ended in
June 2005 and produced revenue through June 2006. While we were able to replace
this revenue with revenue from two new customers added in 2005, if we were
to
lose another 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.
The
level of our annual profitability has historically been significantly affected
by our third and fourth quarter operating results.
We
typically realize higher revenues and operating income in the last quarter
of
our fiscal year. This trend reflects the inherent purchasing and operational
cycles of our clients. Although we currently anticipate that our revenue and
profit in the fourth quarter of 2006 (exclusive of any deal related amortization
expense) will be greater than comparable amounts for the earlier quarters of
2006, if we do not realize increased revenue in future fourth quarter periods,
including 2006, due to adverse economic conditions in those quarters or
otherwise, our profitability for any affected quarter and the entire year could
be materially and adversely affected because ongoing data processing and general
and administrative expenses are largely fixed.
Successful
integration of the PCG’s Benefits Solutions Practice Area (BSPA) into the
Company is dependent on several factors, and the failure to realize the expected
benefits of the acquisition of the BSPA could have an adverse effect on our
operations.
We
acquired BSPA from PCG on September 13, 2006, and, as a result, we significantly
increased the size of our operations and business. We cannot assure you that
we
will be able to integrate the operations of the BSPA without encountering
difficulties. Any difficulty in integrating the operations of the BSPA
successfully could have a material adverse effect on our business, financial
condition, results of operations or prospects, and could lead to a failure
to
realize the anticipated benefits of the acquisition. Moreover, our management
will be required to dedicate substantial time and effort to the integration
of
BSPA. During the integration process, these efforts could divert management’s
focus and resources from other strategic opportunities and operational
matters.
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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some
of our borrowings under our credit facilities may 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; and
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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.
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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 from
acquisitions.
As
of
September 30, 2006, we have approximately $68.0 million of goodwill. 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. 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.
We
are dependent 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.
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
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general
economic conditions, both in the United States and abroad.
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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.
SPECIAL
NOTE REGARDING FORWARD-LOOKING INFORMATION
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.
USE
OF PROCEEDS
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.
SELLING
SHAREHOLDERS
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 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 three 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 November 27, 2006, 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)
|
|
|
1,153,310
|
|
|
1,060,000
|
|
|
93,310
|
|
|
4.4%
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
William
C. Lucia, President and Chief Operating Officer (4)
|
|
|
609,194
|
|
|
602,500
|
|
|
6,694
|
|
|
2.5%
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Thomas
G. Archbold, Chief Financial Officer (5)
|
|
|
201,731
|
|
|
193,334
|
|
|
8,397
|
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
James
T. Kelly, Director (6)
|
|
|
311,650
|
|
|
301,650
|
|
|
10,000
|
|
|
1.3%
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
William
F. Miller, Director (7)
|
|
|
1,170,192
|
|
|
566,097
|
|
|
604,095
|
|
|
2.4%
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
William
W. Neal, Director (8)
|
|
|
139,543
|
|
|
21,650
|
|
|
117,893
|
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Galen
D. Powers, Director (9)
|
|
|
95,585
|
|
|
90,150
|
|
|
5,435
|
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ellen
A. Rudnick, Director (10)
|
|
|
138,150
|
|
|
135,150
|
|
|
3,000
|
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Richard
H. Stowe, Director (11)
|
|
|
212,962
|
|
|
163,400
|
|
|
49,562
|
|
|
*
|
|
*
Denotes
less than 1%.
(1)
Percentage calculated on the basis of 23,235,283 shares of common stock
outstanding at November 27, 2006, 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) 450,000 shares of common stock issuable upon the exercise of
options granted under the 1999 Plan, of which 400,000 are exercisable and 50,000
have not yet become exercisable as of November 27, 2006 and (ii) 610,000 shares
of common stock issuable upon the exercise of options granted under the Option
Agreements, all of which 610,000 are exercisable. 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 (i) 117,335 shares of common stock issuable upon the exercise of
options granted under the 2006 Plan, none of which are exercisable as of
November 27, 2006, and (ii) 485,165 shares of common stock issuable upon the
exercise of options granted under the 1999 Plan, of which 360,834 are
exercisable and 124,331 have not yet become exercisable as of November 27,
2006.
(5)
Includes (i) 46,933 shares of common stock issuable upon the exercise of options
granted under the 2006 Plan, none of which are exercisable as of November 27,
2006, and (ii) 146,401 shares of common stock issuable upon the exercise of
options granted under the 1999 Plan, of which 96,668 are exercisable and 49,733
have not yet become exercisable as of November 27, 2006.
(6)
Includes (i) 6,650 shares of common stock issuable upon the exercise of options
granted under the 2006 Plan, none of which are exercisable as of November 27,
2006, (ii) 45,000 shares of common stock issuable upon the exercise of options
granted under the 1999 Plan, of which 40,000 are exercisable and 5,000 have
not
yet become exercisable as of November 27, 2006 and (iii) 250,000 shares of
common stock issuable upon the exercise of options granted under the Option
Agreements, all of which 250,000 are exercisable. Also includes 10,000 shares
of
common stock owned by members of the family of Mr. Kelly, as to which Mr. Kelly
disclaims beneficial ownership.
(7)
Includes (i) 6,650 shares of common stock issuable upon the exercise of options
granted under the 2006 Plan, none of which are exercisable as of November 27,
2006, (ii) 450,000 shares of common stock issuable upon the exercise of options
granted under the 1999 Plan, of which 400,000 are exercisable and 5,000 have
not
yet become exercisable as of November 27, 2006 and (iii) 109,447 shares of
common stock issuable upon the exercise of options granted under the Option
Agreements, all of which 109,447 are exercisable. Also includes 6,000 shares
of
common stock owned by members of the family of Mr. Miller, as to which Mr.
Miller disclaims beneficial ownership.
(8)
Includes (i) 6,650 shares of common stock issuable upon the exercise of options
granted under the 2006 Plan, none of which are exercisable as of November 27,
2006, and (ii) 15,000 shares of common stock issuable upon the exercise of
options granted under the 1999 Plan, of which 10,000 are exercisable and
5,000 have not yet become exercisable as of November 27, 2006. Also includes
115,979 shares of common stock or options held by members of the family of
Mr.
Neal, as to which Mr. Neal disclaims beneficial ownership.
(9)
Includes (i) 6,650 shares of common stock issuable upon the exercise of options
granted under the 2006 Plan, none of which are exercisable as of November 27,
2006, (ii) 15,000 shares of common stock issuable upon the exercise of options
granted under the 1999 Plan, of which 10,000 are exercisable and 5,000 have
not
yet become exercisable as of November 27, 2006. Also includes 237 shares of
common stock owned by members of the family of Mr. Powers, as to which Mr.
Powers disclaims beneficial ownership.
(10)
Includes (i) 6,650 shares of common stock issuable upon the exercise of options
granted under the 2006 Plan, none of which are exercisable as of November 27,
2006, (ii) 124,000 shares of common stock issuable upon the exercise of options
granted under the 1999 Plan, of which 119,000 are exercisable and 5,000 have
not
yet become exercisable as of November 27, 2006 and (iii) 4,500 shares of common
stock issuable upon the exercise of options granted under the 1995 Plan, all
of
which are exercisable.
(11)
Includes (i) 6,650 shares of common stock issuable upon the exercise of options
granted under the 2006 Plan, none of which are exercisable as of November 27,
2006, (ii) 153,750 shares of common stock issuable upon the exercise of options
granted under the 1999 Plan, of which 148,750 are exercisable and 5,000 have
not
yet become exercisable as of November 27, 2006 and (iii) 3,000 shares of common
stock issuable upon the exercise of options granted under the 1995 Plan, all
of
which are exercisable. Also includes 2,250 shares of common stock owned by
members of the family of Mr. Stowe, as to which Mr. Stowe disclaims beneficial
ownership.
PLAN
OF DISTRIBUTION
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.
LEGAL
MATTERS
The
validity of the shares of common stock will be passed upon for us by Gottbetter
& Partners, LLP, New York, New York.
EXPERTS
The
consolidated financial statements and schedule of HMS Holdings Corp. as of
December 31, 2005 and 2004 and for each of the years in the three-year period
ended December 31, 2005, have been incorporated by reference herein and in
the
registration statement in reliance upon the report 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.
WHERE
YOU CAN FIND MORE INFORMATION
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.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
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
Annual Report on Form 10-K for the year ended December 31, 2005;
(b)
Our
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2006, June
30,
2006 and September 30, 2006;
(c)
Our
Current Reports on Form 8-K filed with the SEC on January 24, 2006,
February 27, 2006, March 2, 2006, May 5, 2006, May 9, 2006, June 26, 2006,
August 3, 2006, August 7, 2006, September 14, 2006, October 31, 2006, November
3, 2006 and November 20, 2006; and
(d)
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.
DISCLOSURE
OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT
LIABILITIES
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
Registrant’s Annual Report on Form 10-K for the year ended December 31,
2005;
(b)
The
Registrant’s Quarterly Reports on Form 10-Q for the quarters ended March 31,
2006, June 30, 2006 and September 30, 2006
(c)
The
Registrant’s Current Reports on Form 8-K filed with the SEC on January 24,
2006, February 27, 2006, March 2, 2006, May 5, 2006, May 9, 2006, June 26,
2006,
August 3, 2006, August 7, 2006, September 14, 2006, October 31, 2006, November
3, 2006 and November 20, 2006; and
(d)
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
|
| |
|
|
*4.6(i)
|
Form
of Incentive Stock Option Agreement - 2006 Plan
|
| |
|
|
*4.6(ii)
|
Form
of Non-Qualified Stock Option Agreement - 2006 Plan
|
| |
|
|
*5
|
Opinion
of Gottbetter & Partners, LLP re legality
|
| |
|
|
*23.1
|
Consent
of KPMG LLP
|
| |
|
|
23.2
|
Consent
of Gottbetter & Partners, 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;
(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 the
undertakings set forth in 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
SEC 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 30th day of November, 2006.
| |
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 Thomas G. Archbold 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
30th day of November, 2006.
|
Signature
|
|
Title
|
|
/s/
Robert M. Holster
|
|
Chairman,
Chief Executive Officer and Director (Principal Executive
Officer)
|
|
Robert
M. Holster
|
|
|
| |
|
|
|
/s/
Thomas G. Archbold
|
|
Chief
Financial Officer (Principal Financial and Accounting
Officer)
|
|
Thomas
G. Archbold
|
|
|
| |
|
|
|
/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/
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
|
| |
|
|
*4.6(i)
|
Form
of Incentive Stock Option Agreement - 2006 Plan
|
| |
|
|
*4.6(ii)
|
Form
of Non-Qualified Stock Option Agreement - 2006 Plan
|
| |
|
|
*5
|
Opinion
of Gottbetter & Partners, LLP re legality
|
| |
|
|
*23.1
|
Consent
of KPMG LLP
|
| |
|
|
23.2
|
Consent
of Gottbetter & Partners, LLP (included in Exhibit
5)
|
| |
|
|
24
|
Powers
of Attorney (included on signature
page)
|
*
Filed
herewith.