As filed with the Securities and Exchange Commission
on December 13, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ADAPTHEALTH CORP.
(Exact name of registrant
as specified in its charter)
| Delaware |
|
82-3677704 |
| (State
or other jurisdiction of incorporation or organization) |
|
(I.R.S.
Employer Identification No.) |
220
West Germantown Pike, Suite 250
Plymouth Meeting, Pennsylvania |
19462 |
| (Address
of Principal Executive Offices) |
(Zip
Code) |
AdaptHealth LLC
Non-qualified Deferred Compensation Plan
(Full title of the plan)
Jonathan B. Bush
General Counsel
AdaptHealth Corp.
220 West Germantown Pike, Suite 250
Plymouth Meeting, Pennsylvania 19462
(Name and address of agent for service)
(610) 630-6357
(Telephone number, including area code, of agent
for service)
Copies to:
Michael Brandt
Danielle Scalzo
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, New York 10019
(212) 728-8000
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth
company” in Rule 12b-2 of the Exchange Act.
| |
Large
accelerated filer |
x |
Accelerated
filer |
¨ |
|
| |
Non-accelerated
filer |
¨ |
Smaller
reporting company |
¨ |
|
| |
|
|
Emerging
growth 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. |
¨ |
EXPLANATORY NOTE
This Registration Statement on Form S-8 is
filed by AdaptHealth Corp. (the “Company” or “Registrant”) to register $100,000,000 of general unsecured
obligations of AdaptHealth LLC, a subsidiary of the Company (the “Sponsor”), to pay deferred compensation in the future
in accordance with the terms of the AdaptHealth LLC Non-qualified Deferred Compensation Plan, effective January 1, 2024 (the “Plan”).
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified
in Part I of this Registration Statement have been or will be sent or given to participating employees as specified by Rule 428(b)(1) of
the Securities Act of 1933, as amended (the “Securities Act”), in accordance with the rules and regulations of the
United States Securities and Exchange Commission (the “Commission”). Such documents are not being filed with the Commission
either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities
Act. These documents and the documents incorporated by reference into this Registration Statement 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.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, previously filed with
the Commission by the Company, are incorporated by reference into this Registration Statement:
| (e) | the Company’s Current Reports on Form 8-K, filed on March 14, 2023, May 9, 2023, June 22, 2023, June 27, 2023, July 27, 2023, August 29, 2023, September 20, 2023, October 31, 2023 and November 22, 2023 (in each case,
other than any portions thereof which are “furnished” and not “filed” in accordance with the rules of the
Commission). |
In addition, all documents filed by the Company
with the Commission pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act, subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all of the securities
offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference
into this Registration Statement and to be a part hereof from the date of the filing of such documents with the Commission; provided,
however, that documents or portions thereof which are “furnished” and not “filed” in accordance with the rules of
the Commission shall not be deemed incorporated by reference into this Registration Statement unless the Registrant expressly provides
to the contrary that such document is incorporated by reference into this Registration Statement.
Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein (or in any other subsequently filed document which also is or is deemed to be incorporated
by reference herein) modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed to constitute
a part of this Registration Statement except as so modified or superseded.
Item 4. Description of Securities.
This Registration Statement registers deferred
compensation obligations of the Sponsor under the Plan. These securities represent contractual obligations to pay deferred compensation
in the future to participants in accordance with the terms of the Plan. The Plan constitutes an unfunded, non-qualified deferred compensation
plan that is intended to comply with Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”).
Participation in the Plan is limited to a select group of management and highly compensated employees of the Company and its subsidiaries
who satisfy certain eligibility requirements.
Deferral and distribution elections will be made
in accordance with the terms of the Plan and Section 409A. Participant contributions will be fully vested at all times. At its sole
discretion, the Sponsor may credit participant accounts with contributions from the Sponsor. The amount credited to each participant account
will be treated as if invested in the investment options made available under the Plan and be adjusted for hypothetical investment earnings,
expenses, gains or losses in an amount equal to the earnings, expenses, gains or losses attributable to such investment options.
Obligations of the Sponsor under the Plan represent
at all times an unfunded and unsecured promise to pay money in the future. Each participant in the Plan is an unsecured general creditor
of the Sponsor with respect to deferred compensation obligations. Any amounts set aside to defray the liabilities assumed by the Sponsor
will remain the general, unpledged unrestricted assets of the Sponsor. Neither a participant nor a participant's beneficiary will have
the right to alienate, anticipate, commute, pledge, encumber, or assign any of the payments which he or she may expect to receive, contingently
or otherwise, under the Plan, except the right to designate a beneficiary to receive death benefits provided thereunder.
The Sponsor reserves the right to amend the Plan
at any time, except that no amendment may deprive any current or former participant of all or any portion of their account which had accrued
and vested prior to the amendment. The Sponsor also retains the discretion to terminate the Plan in accordance with the terms of the Plan
and Section 409A.
The foregoing summary is qualified in its entirety
by reference to the Plan, which is filed as an exhibit to this Registration Statement, and the Plan is incorporated herein by reference
in its entirety in response to this Item 4.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The following summary is qualified in its entirety
by reference to the complete Delaware General Corporation Law (“DGCL”), the Company’s Third Amended and Restated Certificate
of Incorporation, as amended (the “Charter”), and the Company’s Amended and Restated Bylaws, as amended (the “Bylaws”).
Section 145 of the DGCL provides that a Delaware
corporation may indemnify directors, officers, employees and agents 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
action, suit or proceeding in which such person is made a party by reason of such person being or having been a director, officer, employee
or agent to the corporation, provided that such person acted in good faith and in a manner he or she reasonably believed to be in or not
opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe
that his or her conduct was unlawful. The DGCL provides that Section 145 is not exclusive of other rights to which those seeking
indemnification may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
The Company’s Charter provides that its directors
and officers will be indemnified by the Company to the fullest extent authorized by the DGCL as it now exists or may in the future be
amended. In addition, the Charter provides that the Company’s directors will not be personally liable for monetary damages to the
Company for breaches of their fiduciary duty as directors, unless they violated their duty of loyalty to the Company or its stockholders,
acted in bad faith, knowingly or intentionally violated the law, authorized unlawful payments of dividends, unlawful stock purchases or
unlawful redemptions, or derived an improper personal benefit from their actions as directors.
The Company has entered into agreements with its
directors and officers to provide contractual indemnification in addition to the indemnification provided in the Charter. The Company
believes that these provisions and agreements are necessary to attract qualified directors and officers. The Company’s Bylaws also
permit the Company to secure insurance on behalf of any officer, director or employee for any liability arising out of his or her actions,
regardless of whether the DGCL would permit indemnification. The Company has purchased a policy of directors’ and officers’
liability insurance that insures the Company’s directors and officers against the cost of defense, settlement or payment of a judgment
in some circumstances and insures the Company against its obligations to indemnify the directors and officers.
These provisions may discourage stockholders from
bringing a lawsuit against the Company’s directors for breach of their fiduciary duty. These provisions also may have the effect
of reducing the likelihood of derivative litigation against directors and officers, even though such an action, if successful, might otherwise
benefit the Company and its stockholders. Furthermore, a stockholder’s investment may be adversely affected to the extent the Company
pays the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions. The Company
believes that these provisions, the insurance and the indemnity agreements are necessary to attract and retain talented and experienced
directors and officers.
Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to the Company’s directors, officers and controlling persons pursuant to the foregoing
provisions, or otherwise, the Company has been informed that in the opinion of the Commission, such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
Item 7. Exemption from Registration
Claimed.
Not applicable.
Item 8. Exhibits.
The following is
a list of all exhibits filed as part of this Registration Statement on Form S-8, including those incorporated herein by reference.
* 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 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; |
| (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) do
not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in the 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, where
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 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 may be permitted to directors, officers, and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the 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 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 Plymouth Meeting, State of Pennsylvania, on the 13th day of December 2023.
| |
AdaptHealth
Corp. |
| |
|
| |
By: |
/s/ Richard
Barasch |
| |
|
Richard
Barasch |
| |
|
Interim
Chief Executive Officer and Chairman of the Board |
SIGNATURES AND POWER OF ATTORNEY
We, the undersigned officers and directors of AdaptHealth
Corp., hereby severally constitute and appoint Richard Barasch, Jason Clemens and Jonathan B. Bush, or any of them individually, our true
and lawful attorneys-in-fact with full power of substitution, to sign for us and in our names in the capacities indicated below this Registration
Statement and any and all pre-effective and post-effective amendments to this Registration Statement and generally to do all such things
in our name and behalf in our capacities as officers and directors to enable this Registrant to comply with the provisions of the Securities
Act, and all requirements of the Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys-in-fact
to said Registration Statement and any and all amendments thereto.
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 |
| |
|
|
|
|
|
| By: |
/s/ Richard
Barasch |
|
Interim
Chief Executive Officer and |
|
December
13, 2023 |
| |
Richard
Barasch |
|
Chairman
of the Board |
|
|
| |
|
|
(Principal
Executive Officer) |
|
|
| |
|
|
|
|
|
| By: |
/s/ Jason
Clemens |
|
Chief
Financial Officer |
|
December
13, 2023 |
| |
Jason
Clemens |
|
(Principal
Financial Officer) |
|
|
| |
|
|
|
|
|
| By: |
/s/ Christine
Archbold |
|
Chief
Accounting Officer |
|
December
13, 2023 |
| |
Christine
Archbold |
|
(Principal
Accounting Officer) |
|
|
| |
|
|
|
|
|
| By: |
/s/ Joshua
Parnes |
|
President
and Director |
|
December
13, 2023 |
| |
Joshua
Parnes |
|
|
|
|
| |
|
|
|
|
|
| By: |
/s/ Greg
Belinfanti |
|
Director |
|
December
13, 2023 |
| |
Greg
Belinfanti |
|
|
|
|
| |
|
|
|
|
|
| By: |
/s/ Terence
Connors |
|
Director |
|
December
13, 2023 |
| |
Terence
Connors |
|
|
|
|
| |
|
|
|
|
|
| By: |
/s/ Bradley
Coppens |
|
Director |
|
December
13, 2023 |
| |
Bradley
Coppens |
|
|
|
|
| |
|
|
|
|
|
| By: |
/s/ Theodore
B. Lundberg |
|
Director |
|
December
13, 2023 |
| |
Theodore
B. Lundberg |
|
|
|
|
| |
|
|
|
|
|
| By: |
/s/ Dr. Susan
Weaver |
|
Director |
|
December
13, 2023 |
| |
Dr. Susan
Weaver |
|
|
|
|
| |
|
|
|
|
|
| By: |
/s/ David
S. Williams III |
|
Director |
|
December
13, 2023 |
| |
David
S. Williams III |
|
|
|
|
| |
|
|
|
|
|
| By: |
/s/ Dale
Wolf |
|
Director |
|
December
13, 2023 |
| |
Dale
Wolf |
|
|
|
|
Exhibit 5.1
WILLKIE FARR & GALLAGHER LLP
787 Seventh Avenue
New York, NY 10019-6099
December 13, 2023
AdaptHealth Corp.
220 West Germantown Pike, Suite 250
Plymouth Meeting, Pennsylvania 19462
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to AdaptHealth Corp.,
a Delaware corporation (the “Company”), with respect to the Company’s Registration Statement on Form S-8 (the “Registration
Statement”) to be filed by the Company with the Securities and Exchange Commission on or about the date hereof. The Registration
Statement relates to the registration under the Securities Act of 1933, as amended (the “Act”), by the Company of general
unsecured obligations of AdaptHealth LLC, a subsidiary of the Company (the “Sponsor”), to pay up to $100,000,000 of deferred
compensation (the “Obligations”) from time to time in the future in accordance with the terms of the AdaptHealth LLC
Non-qualified Deferred Compensation Plan, effective as of January 1, 2024 (the “Plan”).
We have examined, among other things, originals
and/or copies (certified or otherwise identified to our satisfaction) of such documents, papers, statutes, and authorities as we have
deemed necessary to form a basis for the opinion hereinafter expressed. In our examination, we have assumed the genuineness of all signatures
and the conformity to original documents of all copies submitted to us. As to various questions of fact material to our opinion, we have
relied on statements and certificates of officers and representatives of the Company.
Based on the foregoing, we are of the opinion that,
when issued in accordance with the provisions of the Plan, the Obligations will be valid and binding obligations of the Sponsor, enforceable
against the Sponsor in accordance with the terms of the Plan, except as enforcement thereof may be limited by bankruptcy, insolvency or
other laws of general applicability relating to or affecting enforcement of creditors’ rights or by general equity principles.
This opinion is limited to the General Corporation
Law of the State of Delaware, and we express no opinion with respect to the laws of any other jurisdiction or any other laws of the State
of Delaware.
We
hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit
that we are in the category of persons whose consent is required under Section 7 of the Act.
| |
Very truly yours, |
| |
|
| |
/s/
Willkie Farr & Gallagher LLP |
| |
Willkie Farr & Gallagher LLP |
Exhibit 23.2
| |
KPMG
LLP
1601 Market Street
Philadelphia, PA 19103-2499 |
Consent of Independent Registered Public Accounting
Firm
We consent to the use of our reports dated February 28, 2023, with
respect to the consolidated financial statements of AdaptHealth Corp., and the effectiveness of internal control over financial reporting,
incorporated herein by reference.
Philadelphia, Pennsylvania
December 13, 2023
Exhibit 107
Calculation of Filing Fee Table
Form S-8
(Form Type)
ADAPTHEALTH CORP.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities.
| Security Type | |
Security Class Title | |
Fee Calculation Rule | |
Amount
Registered(1) | | |
Proposed Maximum Offering Price Per Unit(2) | | |
Maximum Aggregate Offering Price(2) | | |
Fee Rate | | |
Amount of Registration Fee | |
| Debt | |
Deferred Compensation Obligations | |
Other | |
$ | 100,000,000 | | |
| 100 | % | |
$ | 100,000,000 | | |
| 0.00014760 | | |
$ | 14,760 | |
| Total Offering Amounts | | |
| | | |
$ | 100,000,000 | | |
| | | |
$ | 14,760 | |
| Total Fee Offsets | |
| | | |
| | | |
| | | |
$ | 0.00 | |
| Net Fees Due | | |
| | | |
| | | |
| | | |
$ | 14,760 | |
| (1) | This Registration Statement registers general unsecured obligations
to pay up to $100,000,000 of deferred compensation from time to time in the future in accordance with the terms of the AdaptHealth LLC
Non-qualified Deferred Compensation Plan (the “Plan”). |
| (2) | Estimated solely for purposes of calculating the amount of the
registration fee pursuant to Rule 457(h) of the Securities Act of 1933, as amended. |
Table 2: Fee Offset Claims and Sources
Not applicable.
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