As filed with the Securities and Exchange Commission on May 13,
2020
Registration No. 333-
United
States
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
SELECT MEDICAL HOLDINGS CORPORATION
(Exact name of registrant as specified in its charter)
|
Delaware |
|
20-1764048 |
| (State
of incorporation or organization) |
|
(I.R.S.
Employer Identification No.) |
4714 Gettysburg Road, P.O. Box 2034
Mechanicsburg, Pennsylvania 17055
(Address of principal executive offices) (Zip Code)
Select Medical Holdings
Corporation 2020 Equity Incentive Plan
(Full title of the Plan)
Michael E. Tarvin, Esq.
Executive Vice President, General Counsel and Secretary
Select Medical Holdings Corporation
4714 Gettysburg Road
P.O. Box 2034
Mechanicsburg, Pennsylvania 17055
(Name and address of agent for service)
(717) 972-1100
(Telephone number, including area code, of agent for service)
With a copy to:
Stephen M. Leitzell, Esq.
Dechert LLP
Cira Centre
2929 Arch Street
Philadelphia, Pennsylvania 19104
(215) 994-4000
Indicate by check mark whether the Registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer,
or a smaller reporting company. See definition of “large
accelerated filer,” “accelerated filer” and “smaller reporting
company” in Rule 12b-2 of the Exchange Act. (Check one):
|
Large accelerated filer x |
|
Accelerated filer ¨ |
|
Non-accelerated filer ¨ |
|
Smaller
reporting company ¨ |
| (Do not
check if a smaller reporting company) |
|
|
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the Securities
Act. ¨
CALCULATION OF REGISTRATION FEE
|
Title of Securities to be
Registered
|
Amount to be Registered(1)(2)
|
Proposed Maximum Offering Price Per Share(3)
|
Proposed Maximum Aggregate Offering Price(3)
|
Amount of Registration Fee
|
|
Common Stock, par value $0.001 per share |
11,829,534 |
$14.92 |
$176,496,647 |
$22,909.26 |
|
(1) |
Represents 7,212,534 shares of common stock of Select Medical
Holdings Corporation (the “Registrant”), par value $0.001 per share
(“Common Stock”) available for issuance under the Select Medical
Holdings Corporation 2020 Equity Incentive Plan (the “Plan”) and
4,617,000 shares of Common Stock that are subject to outstanding
awards (the “Outstanding Award Shares”) under the Select Medical
Holdings Corporation 2016 Equity Incentive Plan (the “2016 Plan”).
On April 28, 2020, the Registrant’s stockholders approved the Plan,
which replaced and superseded the 2016 Plan. Pursuant to Section
5.1 of the Plan, the Outstanding Award Shares will become available
for issuance under the Plan if such awards under the 2016 Plan are
cancelled, terminated, forfeited or lapse on or after January 1,
2020. The Outstanding Award Shares include shares of unvested
restricted stock that were granted under the 2016 Plan. |
|
(2) |
Pursuant to Rule 416 of the Securities Act of 1933, as
amended (the “Securities Act”), this registration statement also
shall cover any additional shares of Common Stock which become
issuable under the Plan pursuant to this registration statement by
reason of any stock dividend, stock split, recapitalization or any
other similar transaction effected without the receipt of
consideration which results in an increase in the number of the
Registrant’s outstanding shares of Common Stock. |
|
(3) |
Estimated solely for the purpose of calculating the
registration fee under Rules 457(c) and (h) of the Securities Act
on the basis of the average of the high and low selling price per
share of Common Stock on May 11, 2020, as reported by the New York
Stock Exchange. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required in Part I of Form S-8 to be
contained in a prospectus meeting the requirements of
Section 10(a) of the Securities Act, is not required to
be filed with the Securities and Exchange Commission (the
“Commission”) and is omitted from this Registration Statement in
accordance with the explanatory note to Part I of
Form S-8 and Rule 428 under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
|
Item 3. |
Incorporation of Documents by Reference. |
The Registrant incorporates by reference into this Registration
Statement the following documents:
| |
(a) |
The Registrant’s Annual Report on
Form 10-K for the fiscal year ended December 31, 2019
filed with the Commission on February 20, 2020; |
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|
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(b) |
The Registrant’s Quarterly Report on
Form 10-Q for the quarter ended March 31, 2020, filed
with the Commission on April 30, 2020; |
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|
|
| |
(c) |
The Registrant’s Current Reports on
Form 8-K filed with the Commission on January 2, 2020, February 3, 2020, February 13, 2020, March 31, 2020, April 20, 2020 and April 28, 2020. |
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|
|
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(d) |
The description of the Registrant’s
Common Stock contained in the Registrant’s Registration Statement
on Form 8-A filed with the Commission on September 22,
2009, together with any amendment or report filed with the
Commission for the purpose of updating such description;
and |
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|
|
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(e) |
All documents subsequently filed by the
Registrant with the Commission pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as
amended, (which does not include information furnished pursuant to
Item 2.02 or Item 7.01 of any Current Report on Form 8-K, unless
expressly stated therein) after the date of this Registration
Statement, but prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all securities
offered by this Registration Statement have been sold or which
deregisters all such securities then remaining unsold, shall be
deemed to be incorporated by reference into this Registration
Statement. Each document incorporated by reference into this
Registration Statement shall be deemed to be a part of this
Registration Statement from the date of the filing of such document
with the Commission until the information contained therein is
superseded or updated by any subsequently filed document which is
incorporated by reference into 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 145 of the Delaware General Corporation Law (the
“DGCL”) provides that a corporation may indemnify any person who is
or was a director, officer, employee or agent of a corporation
against expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such
person in connection with any threatened, pending or completed
actions, suits or proceedings in which such person is made a party
by reason of such person being or having been a director, officer,
employee of or agent to the corporation. The statute provides that
it is not exclusive of other rights to which those seeking
indemnification may be entitled under any by-law, agreement, vote
of stockholders or disinterested directors or otherwise.
As permitted by the DGCL, our restated certificate of incorporation
includes a provision that eliminates the personal liability of our
directors for monetary damages for breach of fiduciary duty as a
director, except for liability (1) for any breach of the
director’s duty of loyalty to us or our stockholders; (2) for
acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of the law; (3) under
Section 174 of the DGCL regarding unlawful dividends and stock
purchases; or (4) arising as a result of any transaction from
which the director derived an improper personal benefit.
As permitted by the DGCL, our amended and restated bylaws provide
that (i) we are required to indemnify our directors and
officers to the fullest extent permitted by applicable law;
(ii) we are permitted to indemnify our other employees to the
extent permitted by applicable statutory law; (iii) we are
required to advance expenses to our directors and officers in
connection with any legal proceeding, subject to the provisions of
applicable statutory law; and (iv) the rights conferred in our
bylaws are not exclusive.
Section 145 of the DGCL also authorizes a corporation to
purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the corporation
against any liability asserted against and incurred by such person
in any such capacity, or arising out of such person’s status as
such. The Registrant has purchased liability insurance covering our
directors and officers for claims asserted against them or incurred
by them in such capacity.
Reference is made to Item 9 for our undertakings with respect
to indemnification for liabilities arising under the Securities
Act.
|
Item 7. |
Exemption from Registration Claimed. |
Not applicable.
The index of exhibits filed herewith and appearing immediately
before the signature page to this Registration Statement is
incorporated by reference in this Item 8:
(a)
The undersigned registrant hereby undertakes:
1.
To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
i.
to include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
ii.
to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20% change in the maximum
aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration statement;
and
iii.
to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) of this section do not apply if the
registration statement is on Form S-8, and the information
required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement
2.
That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
3.
To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b)
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant’s annual report pursuant to
section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to
section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(c)
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
EXHIBIT INDEX
Exhibit
Number |
|
Exhibit Description |
| |
|
|
| 3.1 |
|
Form of Restated Certificate of
Incorporation of Select Medical Holdings Corporation, incorporated
by reference to Exhibit 3.3 of Amendment No. 9 to Select Medical
Holdings Corporation’s Form S-1/A filed September 22, 2009 (Reg.
No. 333-152514). |
| |
|
|
| 3.2 |
|
Amended and Restated Bylaws of Select
Medical Holdings Corporation, as amended, incorporated by reference
to Exhibit 3.4 of Select Medical Holdings Corporation’s Form 10-K
filed February 26, 2016 (Reg. No. 001-34465). |
| |
|
|
| 4.1 |
|
Indenture, dated as of August 1,
2019, by and among Select Medical Corporation, the guarantors named
therein and U.S. Bank National Association, as trustee,
incorporated by reference to Exhibit 4.1 of the Current Report
on Form 8-K of Select Medical Holdings Corporation filed on
August 1, 2019 (Reg. No. 001-34465). |
| |
|
|
| 4.2 |
|
Forms of 6.250% Senior Notes due
2026, incorporated by reference to Exhibit 4.1 of the Current
Report on Form 8-K of Select Medical Holdings Corporation filed on
August 1, 2019 (Reg. No. 001-34465). |
| |
|
|
| 4.3 |
|
Select Medical Holdings Corporation
2020 Equity Incentive Plan, incorporated by reference to Exhibit A
to Select Medical Holdings Corporation’s Definitive Proxy Statement
on Schedule 14A filed on March 4, 2020 (Reg. No.
001-34465). |
| |
|
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| 5.1 |
|
Opinion of Dechert LLP as to the legality
of the securities being registered. |
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|
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| 23.1 |
|
Consent of PricewaterhouseCoopers
LLP. |
| |
|
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| 23.2 |
|
Consent of Dechert LLP (included in Exhibit
5.1). |
| |
|
|
| 24.1 |
|
Power of Attorney (included
on signature pages to this Registration Statement and incorporated
herein by reference). |
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
Mechanicsburg, Commonwealth of Pennsylvania, on the 13th
day of May, 2020.
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SELECT MEDICAL HOLDINGS CORPORATION |
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|
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By: |
/s/ Michael E. Tarvin |
| |
|
Michael E.
Tarvin |
| |
|
Executive Vice
President, General Counsel and Secretary |
POWER OF ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints David S. Chernow
and Michael E. Tarvin, and each of them, as his true and lawful
attorney-in-fact and agent, each with the power of substitution,
for him and in his name, place and stead, in any and all
capacities, to sign any amendments (including post-effective
amendments) to this Registration Statement, and to file with the
Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in
connection therewith and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby
ratifying and confirming all that either of said attorneys-in-fact
and agents, or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
|
Signature |
|
Title |
|
Date |
| |
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|
|
| /s/ Robert A.
Ortenzio |
|
Director and Executive Chairman |
|
May 13, 2020 |
| Robert A. Ortenzio |
|
|
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| /s/ Rocco A.
Ortenzio |
|
Director and Vice Chairman |
|
May 13, 2020 |
| Rocco A. Ortenzio |
|
|
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|
| |
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| /s/ David S.
Chernow |
|
President and Chief Executive Officer |
|
|
| David S. Chernow |
|
(principal executive officer) |
|
May 13, 2020 |
| |
|
|
|
|
| /s/ Martin F.
Jackson |
|
Executive Vice President and Chief Financial |
|
|
| Martin F. Jackson |
|
Officer (principal financial officer) |
|
May 13, 2020 |
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| /s/ Scott A.
Romberger |
|
Senior Vice President, Controller and Chief |
|
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| Scott A. Romberger |
|
Accounting Officer (principal accounting officer) |
|
May 13, 2020 |
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| /s/ Russell L.
Carson |
|
Director |
|
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| Russell L. Carson |
|
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May 13, 2020 |
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| /s/ Bryan C.
Cressey |
|
Director |
|
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| Bryan C. Cressey |
|
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May 13, 2020 |
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| /s/ James S. Ely |
|
Director |
|
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| James S. Ely |
|
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May 13, 2020 |
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|
|
|
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| /s/ William H.
Frist |
|
Director |
|
|
| William H. Frist |
|
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|
May 13, 2020 |
| |
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|
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| /s/ Thomas A.
Scully |
|
Director |
|
|
| Thomas A. Scully |
|
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|
May 13, 2020 |
| |
|
|
|
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| /s/ Marilyn B.
Tavenner |
|
Director |
|
|
| Marilyn B. Tavenner |
|
|
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May 13, 2020 |
| |
|
|
|
|
| /s/ Daniel J.
Thomas |
|
Director |
|
|
| Daniel J. Thomas |
|
|
|
May 13, 2020 |
