Securities Registration: Employee Benefit Plan (s-8)
16 July 2016 - 12:02AM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on July 15, 2016
Registration
No. 333-
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
SURGICAL CARE AFFILIATES, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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20-8740447
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(State or other jurisdiction of
incorporation or organization)
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(IRS Employer
Identification No.)
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520 Lake Cook Road, Suite 250
Deerfield, IL 60015
(847) 238-0921
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
SURGICAL CARE
AFFILIATES, INC. 2016 OMNIBUS
LONG-TERM
INCENTIVE PLAN
(Full title of the plan)
Richard L. Sharff, Jr., Esq.
Executive Vice President, General Counsel and Corporate Secretary
569 Brookwood Village, Suite 901
Birmingham, AL 35209
(205) 545-2572
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
(Copies of all
communications, including communications sent to agent for service)
Timothy W. Gregg, Esq.
Maynard, Cooper & Gale, P.C.
1901 Sixth Avenue North
2400 Regions/Harbert Plaza
Birmingham, AL 35203
(205) 254-1212
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
the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer
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x
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Accelerated filer
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¨
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Non-accelerated filer
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¨
(Do not check if a smaller reporting company)
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Smaller reporting company
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¨
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CALCULATION OF REGISTRATION FEE
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Title of securities to be registered
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Amount
to be
registered (1)(2)
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Proposed
maximum
offering
price
per share (2)(3)
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Proposed
maximum
aggregate
offering price (3)
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Amount of
registration fee (3)
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Common Stock, par value $0.01 per share
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3,600,000 shares
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$49.14 per share
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$176,904,000
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$17,815
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(1)
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This registration statement (this “Registration Statement”) registers the issuance of 3,600,000 shares of the common stock, par value $0.01 per share (the “Common Stock”), of Surgical Care
Affiliates, Inc. (the “Registrant”), which are issuable pursuant to the Surgical Care Affiliates, Inc. 2016 Omnibus Long-Term Incentive Plan (the “Plan”).
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(2)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers such indeterminate number of additional shares of Common Stock that become
issuable under the Plan by reason of any stock split, stock dividend, recapitalization or other similar transaction affected without the receipt of consideration that increases the number of the Registrant’s outstanding shares of Common Stock.
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(3)
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Estimated pursuant to paragraphs (c) and (h) of Rule 457 under the Securities Act solely for the purpose of calculating the registration fee on the basis of the average of the high and low sales prices of the Common
Stock reported on the NASDAQ Global Select Market as of a date (July 8, 2016) within five business days prior to the filing of this Registration Statement.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
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Item 1.
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Plan Information.*
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Item 2.
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Registrant Information and Employee Plan Annual Information.*
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* The information
specified in Items 1 and 2 of Part I of Form S-8 is omitted from this filing in accordance with the provisions of Rule 428 under the Securities Act and the introductory note to Part I of Form S-8. The document(s) containing the information specified
in Part I of Form S-8 will be sent or given to participants in the Plan in accordance with Rule 428 under the Securities Act. Such documents are not required to be, and are not, filed with the Securities and Exchange Commission (the
“Commission”), either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents, and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
Upon written or oral request, any of the documents incorporated by reference in Item 3 of Part II of this Registration Statement, which are
also incorporated by reference in the Section 10(a) prospectus, other documents required to be delivered to eligible participants pursuant to Rule 428(b) under the Securities Act or additional information about the Plan, will be available without
charge by contacting Surgical Care Affiliates, Inc., 520 Lake Cook Road, Suite 250, Deerfield, Illinois 60015; telephone (847) 236-0921, Attention: Corporate Secretary.
PART II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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Incorporation of Documents by Reference.
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The following documents, which previously have
been filed by the Registrant with the Commission, are incorporated by reference and made a part hereof:
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(i)
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The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2015;
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(ii)
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The information contained in our Definitive Proxy Statement on Schedule 14A, filed with the Commission on April 22, 2016 and incorporated into Part III of the Registrant’s Annual Report on Form 10-K for the fiscal
year ended December 31, 2015;
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(iii)
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The Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2016;
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(iv)
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The Registrant’s Current Reports on Form 8-K filed on January 19, 2016, March 3, 2016, May 9, 2016, May 16, 2016 and June 6, 2016; and
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(v)
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The description of the Common Stock contained in the Registrant’s Registration Statement on Form 8-A filed on October 25, 2013 with the Commission under Section 12 of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”) (File No. 001-36154), including any amendment or report filed for the purpose of updating such description.
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The Registrant is not incorporating by reference any Current Reports on Form 8-K through which it
furnished, rather than filed, information with the Commission.
Additionally, all reports and other documents filed by the Registrant
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the effective date of this Registration Statement, and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all
securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such reports and other
documents.
Any statement contained herein or in any document to be 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 such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
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Item 4.
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Description of Securities.
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Not applicable.
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Item 5.
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Interests of Named Experts and Counsel.
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None.
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Item 6.
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Indemnification of Directors and Officers.
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Section 145 of the General Corporation Law
of the State of Delaware (the “DGCL”) provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses, including attorneys’ fees, judgments, fines and amounts paid in
settlement in connection with specified actions, suits and proceedings whether civil, criminal, administrative, or investigative, other than a derivative action by or in the right of the corporation, 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 extends only to expenses, including attorneys’ fees, incurred in connection with the defense or settlement of such action and the statute requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other indemnification that may be granted by a corporation’s certificate of incorporation,
bylaws, disinterested director vote, stockholder vote, agreement or otherwise.
Section 145 of the DGCL also empowers 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, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would
have the power to indemnify such person against such liability under Section 145 of the DGCL.
Section 102(b)(7) of the DGCL allows a
corporation to eliminate or limit the personal liability of directors to a corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached his duty of loyalty, failed to act in
good faith, engaged in
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intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase or redemption in violation of Delaware corporate law or obtained an
improper personal benefit.
Our By-Laws provide for indemnification of directors and officers to the fullest extent permitted by law,
including payment of expenses in advance of resolution of any such matter. Our Certificate of Incorporation eliminates the potential personal monetary liability of our directors to the Company or its stockholders for breaches of their duties as
directors, except as otherwise required under the DGCL, and requires that we provide our directors with customary indemnification.
We
have entered into indemnification agreements with each of our non-employee directors and employment agreements containing indemnification provisions with each of our executive officers. These agreements provide, among other things, for
indemnification to the fullest extent permitted by law and our Certificate of Incorporation and By-Laws against any and all expenses, judgments, fines, penalties and amounts paid in settlement of any claim. The indemnification agreements and
employment agreements also provide for the advancement or payment of all expenses to the indemnitee and for reimbursement to us if it is found that such indemnitee is not entitled to such indemnification under applicable law and our Certificate of
Incorporation and By-Laws.
We maintain standard policies of insurance under which coverage is provided (a) to our directors and
officers against loss rising from claims made by reason of breach of duty or other wrongful act, and (b) to us with respect to payments which may be made by us to such officers and directors pursuant to the above indemnification provisions or
otherwise as a matter of law. We currently maintain management liability insurance in the aggregate amount of $10.0 million, excess director and officer liability insurance in the aggregate amount of $20.0 million and Side A director and
officer liability insurance in the aggregate amount of $10.0 million.
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Item 7.
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Exemption from Registration Claimed.
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Not applicable.
For a list of all exhibits filed or included as part of this Registration
Statement, see “Index to Exhibits” at the end of this Registration Statement.
(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:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
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(ii)
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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
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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 a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective
registration statement; and
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(iii)
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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;
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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 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 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 Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Village of Deerfield, State of Illinois, on July 15, 2016.
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SURGICAL CARE AFFILIATES, INC.
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By:
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/s/ Andrew P. Hayek
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Name:
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Andrew P. Hayek
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Title:
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Chairman, President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Andrew P. Hayek, Tom W. F. DeWeerdt
and Richard L. Sharff, Jr., and each or any of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement and any and all additional registration statements pursuant to Rule 462(b) of the Securities Act, and to file the same, with all exhibits thereto, and all other
documents in connection therewith, with the Commission, granting unto each of said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite or necessary to be done, as fully to all intents and
purposes as the undersigned might or could do in person, and the undersigned hereby ratifies and confirms all that said attorneys-in-fact and agents, or any of them, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the
capacities indicated on the 15
th
day of July, 2016.
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Signature
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Title
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/s/ Andrew P. Hayek
Andrew P. Hayek
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Chairman, President, Chief Executive Officer and Director
(Principal Executive Officer)
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/s/ Tom W. F. De Weerdt
Tom W. F. De Weerdt
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Executive Vice President and Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
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/s/ Thomas C. Geiser
Thomas C. Geiser
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Director
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/s/ Kenneth R. Goulet
Kenneth R. Goulet
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Director
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5
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/s/ Frederick A. Hessler
Frederick A. Hessler
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Director
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/s/ Sharad Mansukani, M.D.
Sharad Mansukani, M.D.
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Director
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/s/ Jeffrey K. Rhodes
Jeffrey K. Rhodes
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Director
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/s/ Michael A. Sachs
Michael A. Sachs
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Director
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/s/ Todd B. Sisitsky
Todd B. Sisitsky
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Director
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/s/ Lisa Skeete Tatum
Lisa Skeete Tatum
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Director
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INDEX TO EXHIBITS
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Exhibit
Number
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Description
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4.1
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Certificate of Incorporation of Surgical Care Affiliates, Inc. (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the SEC on November 4, 2013)
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4.2
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By-Laws of Surgical Care Affiliates, Inc. (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K filed with the SEC on November 4, 2013)
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4.3
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Surgical Care Affiliates, Inc. 2016 Omnibus Long-Term Incentive Plan (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the SEC on June 6, 2016)
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5.1
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Opinion of Maynard, Cooper & Gale, P.C., counsel to the Registrant
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23.1
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Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm
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23.2
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Consent of Maynard, Cooper & Gale, P.C. (contained in Exhibit 5.1 to this Registration Statement)
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24.1
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Powers of Attorney (included on the signature pages to this Registration Statement)
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