As filed with the Securities and Exchange Commission ofon August 2,23, 2002
Registration No. 333-333-97625
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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AMEDISYS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 11-3131700
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
11100 MEAD ROAD, SUITE 300
BATON ROUGE, LOUISIANA 70816
(225) 292-2031
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
WILLIAM F. BORNE
11100 MEAD ROAD, SUITE 300
BATON ROUGE, LOUISIANA 70816
(225) 292-2031
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
WITH A COPY TO:
ANTHONY J. CORRERO, III
CORRERO FISHMAN HAYGOOD PHELPS WALMSLEY & CASTEIX, L.L.P.
201 ST. CHARLES AVE., 46TH FLOOR
NEW ORLEANS, LOUISIANA 70170-4600
(504) 586-5252
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) PRICE PER SHARE(2) OFFERING PRICE FEE
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Common Stock, par value $.001 per
share............................... 294,720 shares(3) $10.61 $3,126,979 $287.68
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(1) Upon a stock split, stock dividend or similar transaction in the future and
during the effectiveness of this Registration Statement involving the
registrant's common stock, the total number of shares registered shall be
automatically increased to cover the additional shares in accordance with
Rule 416(a) under the Securities Act of 1933.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act, based on the average of
the high and low prices per share of the registrant's common stock on The
Nasdaq SmallCap Market on July 30, 2002.
(3) Of the total number of shares of the registrant's common stock to be
registered hereunder, 289,720 shares are issuable upon the exercise of
warrants, or upon the conversion of preferred stock that is issuable upon
the exercise of warrants. In addition to the shares set forth in the table
above, the amount to be registered includes an indeterminate number of
additional shares which may become issuable by virtue of the application of
anti-dilution provisions of the warrants and the preferred stock.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE
SELLING SHAREHOLDERS IDENTIFIED IN THIS PROSPECTUS MAY NOT SELL THESE SECURITIES
UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE
SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY
STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION -- DATED AUGUST 2,22, 2002.
PROSPECTUS
[AMEDISYS, INC. LOGO]
AMEDISYS, INC.
11100 MEAD ROAD, SUITE 300
BATON ROUGE, LOUISIANA 70816
(225) 292-2031
294,720 SHARES OF COMMON STOCK
OFFERED BY THE SELLING SHAREHOLDERS NAMED HEREIN
This prospectus covers up to:
- 114,720 shares of our common stock, par value $.001 per share, issuable
upon the exercise of common stock warrants;
- 175,000 shares of our common stock issuable upon the conversion of shares
of our preferred stock. The preferred stock is not currently outstanding
but is issuable upon the exercise of preferred stock warrants; and
- 5,000 shares of our common stock that are currently outstanding that we
previously issued to one shareholder upon exercise of his common stock
warrants.
The prospectus also covers any shares we may have to issue under the terms
of the warrants and preferred stock to avoid dilution of the warrants and
preferred stock.
Persons who will acquire the shares from us upon exercise of their common
stock warrants or upon conversion of their preferred stock, and the shareholder
who received his shares upon exercise of his common stock warrants, may use this
prospectus to resell those shares. We refer to those persons in this prospectus
as "selling shareholders."
The selling shareholders will receive all of the net proceeds from the sale
of the shares of common stock under this prospectus. We will not receive any
proceeds from the sale of the shares by the selling shareholders, but we will
receive any amounts due to us upon exercise of the warrants. We will pay all the
expenses of registration in connection with this offering, but the selling
shareholders will pay all selling and other expenses.
Our common stock is listed on The Nasdaq SmallCap Market under the symbol
"AMED." On July 30,August 21, 2002, the closing sales price of our common stock was
$10.75$7.80 per share.
INVESTING IN OUR SECURITIES INVOLVES CERTAIN RISKS. SEE "RISK FACTORS"
BEGINNING ON PAGE 2 OF THIS PROSPECTUS FOR INFORMATION THAT YOU SHOULD CONSIDER
BEFORE PURCHASING THESE SHARES.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is August , 2002.
TABLE OF CONTENTS
PAGE
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ABOUT THIS PROSPECTUS.......................................PROSPECTUS................. i
THE OFFERING................................................OFFERING.......................... 1
RISK FACTORS................................................FACTORS.......................... 2
Risks Related to Arthur Andersen
LLP......................LLP.............................. 2
Risks Related to Our Substantial
Capital Requirements.....Requirements............. 3
Risks Related to Our Working Capital
Deficiency...........Deficiency....................... 3
Risks Related to Change in Medicare
Payment Rates.........Rates.................... 3
Risks Related to Our Acquisition
Strategy.................Strategy......................... 4
Risks Related to Acquisition
Financing....................Financing........................ 4
Risks Related to Our Dependence on
Management.............Management....................... 4
Risks Related to Our Exposure to
Professional Liabilities............................................Liabilities......... 4
Risks Related to the Possible
Insufficiency of Our Liability
Coverage.....................................Coverage......................... 4
Risks Related to Changes in Health
Care Regulations and
Technology.............................................Technology....................... 4
Risks Related to Competition.............................. 4Competition........ 5
PAGE
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Risks Related to Our Need for
Relationships with Other
Organizations..........................................Organizations.................... 5
Risks Related to Federal and State
Regulation.............Regulation....................... 5
Risks Related to Future Sales of Our
Common Stock.........Stock..................... 5
Risks Related to the Possible
Adverse Effect of Future
Issuances of Our Preferred
Stock.......................Stock............................ 5
Risks Related to Dilution.................................Dilution........... 6
SPECIAL NOTE CONCERNING
FORWARD-LOOKING STATEMENTS.......... 7
USE OF PROCEEDS....................... 7
OUR COMPANY.................................................COMPANY........................... 8
SELLING SHAREHOLDERS........................................SHAREHOLDERS.................. 9
PLAN OF DISTRIBUTION........................................DISTRIBUTION.................. 11
LEGAL MATTERS...............................................MATTERS......................... 13
OTHER MATTERS...............................................MATTERS......................... 13
WHERE YOU CAN FIND MORE INFORMATION.........................INFORMATION... 13
INCORPORATION BY REFERENCE..................................REFERENCE............ 14
You should rely only on the information that is contained in this
prospectus or is incorporated by reference in this prospectus. We have not
authorized anyone to provide you with information different from that contained
in or incorporated by reference in this prospectus. The selling shareholders are
offering shares of our common stock and seeking offers to buy such securities
only in jurisdictions where such offers and sales are permitted. The information
contained in this prospectus is accurate only as of the date of this prospectus,
regardless of the time of delivery of this prospectus or of any sale of our
common stock.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement we filed with the SEC.
It is a type of registration statement that is commonly called a "shelf
registration" because it permits securities to be offered on a delayed or
continuing basis. The selling shareholders can resell the common stock covered
by this prospectus at various times determined by each of them.them as more fully
explained in this prospectus. We call these transactions by the selling
shareholders resales, because the common stock they may sell under this
prospectus was or will be first sold by us to them. We will not receive any
proceeds from any of these resales. This prospectus omits some of the
information contained in the registration statement, and reference is made to
the registration statement for further information about us and the common stock
being offered by the selling shareholders. Any statement contained in this
prospectus concerning the provisions of any document filed as an exhibit to the
registration statement or otherwise filed with the SEC is not necessarily
complete, and in each case reference is made to the copy of the document filed.
You should read both this prospectus and the additional information described
under the headings "Where You Can Find More Information" and "Incorporation By
Reference."
i
THE OFFERING
Securities Offered by the
Selling Shareholders.......... Up to 294,720 shares of our common stock. Up to
114,720 of the shares are issuable by us in the
future upon the exercise of warrants to
purchase our common stock. Up to an additional
175,000 shares are issuable by us in the future
upon the conversion of shares of our preferred
stock. This preferred stock is not currently
outstanding but is issuable by us upon the
exercise of warrants to purchase our preferred
stock. The remaining 5,000 shares are currently
outstanding and were previously issued by us to
Robert White upon the exercise of his common
stock warrants.
The number of shares covered by this prospectus
is subject to adjustment to avoid dilution of
the warrants and the preferred stock.
The selling shareholders may use this
prospectus to resell the shares of our common
stock that they will acquire from us upon
exercise of their warrants or conversion of
their preferred shares, or in the case of Mr.
White, the shares he previously acquired from
us upon exercise of his common stock warrants.
Use of Proceeds............... We will not receive any proceeds from sales by
the selling shareholders of the shares covered
by this prospectus, but we will receive any
amounts due to us upon exercise of the
warrants.
Our Nasdaq SmallCap Market
Symbol...................... AMED
Risk Factors.................. Before investing in our common stock by
purchasing shares from a selling shareholder,
you should carefully read and consider the
information in "Risk Factors" beginning on page
2 of this prospectus and all other information
appearing elsewhere and incorporated by
reference in this prospectus and any
accompanying prospectus supplement.
1
RISK FACTORS
You should carefully consider the risks described below before buying any
of our securities. The risks described below are not the only ones facing our
company. Additional risks that are now unknown to us or that we now consider
immaterial may also harm our business. You should also carefully consider the
other information included elsewhere in this prospectus and incorporated into it
by reference.
RISKS RELATED TO ARTHUR ANDERSEN LLP
YOU MAY NOT BE ABLE TO RECOVER AGAINST ARTHUR ANDERSEN LLP IN CONNECTION WITH
A MATERIAL MISSTATEMENT OR OMISSION IN OUR FINANCIAL STATEMENTS INCORPORATED
BY REFERENCE IN THIS PROSPECTUS.
Our financial statements incorporated by reference herein were audited by
Arthur Andersen LLP, our former independent accountants. On June 15, 2002, a
jury convicted Andersen on obstruction of justice charges, and Andersen has
announced that unless the jury verdict is set aside, a judgment of conviction
could be entered as early as August 31, 2002, which will effectively end the
firm's audit practice. These events may materially and adversely affect the
ability of Andersen to satisfy any claims you may have arising out of its audit
of our financial statements.
Under SEC rules, we were required to obtain Andersen's written consent in
order to incorporate by reference its report covering the audited financial
statements that are incorporated by reference herein. By granting such a
consent, accounting firms become subject to liability under Section 11 of the
Securities Act of 1933 for material misstatements and omissions of material
facts from a registration statement. Investors who bring a successful claim of
this type are entitled to damages. However, we have been unable to obtain
Andersen's consent in connection with our registration statement. As a result,
we have filed our registration statement without Andersen's consent in reliance
on Rule 437a under the Securities Act, which relieves us of the obligation to
obtain Andersen's consent under certain circumstances. However, because Andersen
has not provided a consent in connection with our registration statement, you
may not be able to recover against Andersen under Section 11 of the Securities
Act.
OUR INABILITY TO INCLUDE IN FUTURE REGISTRATION STATEMENTS FINANCIAL
STATEMENTS AUDITED BY ANDERSEN OR TO OBTAIN ANDERSEN'S CONSENT TO THE
INCLUSION OF THEIR REPORT ON OUR FINANCIAL STATEMENTS MAY IMPEDE OUR ACCESS TO
THE CAPITAL MARKETS.
Should we seek to access the public capital markets in the future, SEC
rules will require us to include or incorporate by reference in any prospectus
three years of audited financial statements. Until our audited financial
statements for the fiscal year ending December 31, 2004 become available in the
first quarter of 2005, the SEC's current rules would require us to present
audited financial statements for one or more fiscal years audited by Andersen.
Prior to that time, the SEC may cease accepting financial statements audited by
Andersen, in which case we would be unable to access the public capital markets
unless KPMG LLP, our current independent accounting firm, or another independent
accounting firm, is able to audit the financial statements originally audited by
Andersen. Following the conviction of Andersen, the SEC issued a release stating
that Andersen has informed the SEC that it will cease practicing before the SEC
by August 31, 2002, unless the SEC determines another date is appropriate.
Although the SEC has indicated that in the interim it will continue to accept
financial statements audited by Andersen, there is no assurance that the SEC
will continue to do so in the future.
Additionally, Andersen is no longer in a position to consent to the
inclusion or incorporation by reference in any prospectus of its report on our
audited financial statements, and investors in any subsequent offerings for
which we use its audit report will not be entitled to recovery against Andersen
under Section 11 of the Securities Act for any material misstatements or
omissions in those financial statements. We may not be able to bring to the
market successfully an offering of our securities in the absence of Andersen's
participation in the transaction, including its consent. Consequently, our
financing costs may increase or we may miss attractive market opportunities if
our annual financial statements audited by Andersen should cease to satisfy the
SEC's requirements, or those statements are used in a prospectus but investors
are not entitled to recovery against our auditors for material misstatements or
omissions in them.
2
RISKS RELATED TO OUR SUBSTANTIAL CAPITAL REQUIREMENTS
We require substantial capital to pursue our operating strategy, and at
December 31, 2001 we had cash and cash equivalents of $3,515,000. Based on our
current plan of operations, we anticipate that our current cash balance,
combined with continued profitable operations and the proceeds of the private
placement we completed on April 26, 2002, will provide sufficient working
capital through December 31, 2002.
We maintain an asset-based line of credit with availability, depending on
collateral, of up to $25 million with National Century Financial Enterprises, or
"NCFE", and borrowings under a revolving bank line of credit of up to
$2,500,000. The NCFE $25 million asset-based line of credit, which expires
December, 2003, is collateralized by eligible accounts receivable of the home
health care nursing division. Eligible receivables are defined as receivables,
exclusive of workers' compensation and self-pay, that are aged less than 181
days. The effective interest rate on this line of credit, which had outstanding
balances at December 31, 2001 and 2000 of $8,593,000 and $2,952,000,
respectively, was 11.00% and 15.29% for the years ended December 31, 2001 and
2000, respectively. The revolving bank line of credit of $2,500,000 bears
interest at the Bank One Prime Floating Rate, which was 4.75% and 9.5% at
December 31, 2001 and 2000, respectively. The bank line of credit expires
September 21, 2002 and is collateralized by $2.5 million in cash. At December
31, 2001 and 2000, there was a balance outstanding of $712,000 and $0,
respectively.
RISKS RELATED TO OUR WORKING CAPITAL DEFICIENCY
At December 31, 2001, we had a working capital deficit of $18,360,000.
$7,400,000 of the deficit is related to payments received by us from Medicare
related to the Benefit Improvement Protection Act, or "BIPA", which provided a
one-time payment to healthcare providers. Although not guaranteed, Medicare has
traditionally granted similar, and we expect to receive, extended repayment
terms related to the $7,400,000 advance, and to begin making payments in the
third quarter of 2002. Additionally, $3,100,000 of the deficit is related to
Medicare payables of a bankrupt subsidiary. Although the outcome of the
bankruptcy is not guaranteed, we do not expect that we will be responsible for
repaying the debt of our subsidiary. For more information regarding this and
other risk factors, please refer to our Annual Report on Form 10-K for the year
ended December 31, 2001.
RISKS RELATED TO CHANGE IN MEDICARE PAYMENT RATES
With the introduction of the Medicare Prospective Payment System, or "PPS",
the method of reimbursement under the Medicare program was changed from a
cost-based reimbursement system to a prospective payment system based on
"episodes of care." An episode of care is defined as a length of care up to
sixty days with multiple continuous episodes allowed. At the beginning of PPS on
October 1, 2000, the standard episode payment was established at $2,115 per
episode, to be adjusted by certain factors and intervening events. BIPA provided
for the following: (i) a one-year delay in applying thea budgeted 15% reduction on
payment limits, (ii) the restoration of a full home health market basket update
for episodes ending on or after April 1, 2001 and before October 1, 2001
resulting in an increase to revenues of 2.2%, (iii) a 10% increase, beginning
April 1, 2001 and extending for a period of twenty four months,to March 31, 2003, for home health services provided
in a rural area, and (iv) a one-time paymentadvance equal to two months of periodic
interim payments.
Effective October 1, 2001 with the beginning of federal fiscal year 2002,
the standard episode payment was increased to $2,274. Currently, the delay in
the budgeted 15% reduction in payment limits resulting from BIPA will expire
September 30, 2002. There is ongoing debate and discussion in Congress
concerning the scheduled payment reduction, which was further intensified with
the recommendation by the Medicare Payment Advisory Committee to eliminate the
budgeted 15% payment reduction. In addition to the 15% scheduled reduction, the
provision in BIPA under which home health care providers received a 10% increase
in reimbursement for service provided in a rural area is scheduled to expire
March 31, 2003. For more information regarding this and other risk factors,
please refer to our Annual Report on Form 10-K for the year ended December 31,
2001.
3
RISKS RELATED TO OUR ACQUISITION STRATEGY
We intend to grow significantly through the acquisition of additional home
health care and complementary businesses. We expect to face competition for
acquisition candidates, which may limit the number of acquisition opportunities
and may lead to higher acquisition prices. There can be no assurance that we
will be able to identify, acquire or manage profitably additional businesses or
to integrate any acquired businesses into our existing operations without
substantial costs, delays or other operational or financial problems. Further,
acquisitions involve a number of risks, including possible adverse effects on
our operating results, diversion of management's attention, failure to retain
key personnel of the acquired business and risks associated with unanticipated
events or liabilities, some or all of which could have a material adverse effect
on our business, financial condition and results of operations.
RISKS RELATED TO ACQUISITION FINANCING
We cannot readily predict the timing, size and success of our acquisition
efforts and the associated capital commitments. If we do not have sufficient
cash resources, our growth could be limited unless we are able to obtain
additional equity or debt financing.
RISKS RELATED TO OUR DEPENDENCE ON MANAGEMENT
Our success depends upon our management, including our Chief Executive
Officer, William F. Borne. We maintain key employee life insurance in the amount
of $4.5 million on the life of Mr. Borne and entered into an employment
agreement with Mr. Borne. The loss of Mr. Borne's services could materially
adversely affect our operations.
RISKS RELATED TO OUR EXPOSURE TO PROFESSIONAL LIABILITIES
Due to the nature of our business, we and certain nurses who provide
services on our behalf may be the subject of medical malpractice claims, with
the attendant risk of substantial damage awards. We could be exposed to
liability based on the negligence of nurses caring for our home health patients.
To the extent these nurses are regarded as our agents in the practice of
nursing, we could be held liable for any medical negligence of them. There can
be no assurance that a future claim or claims will not exceed the limits of
available insurance coverage or that such coverage will continue to be
available.
RISKS RELATED TO THE POSSIBLE INSUFFICIENCY OF OUR LIABILITY COVERAGE
We maintain professional liability insurance covering us and our
subsidiaries. However, there can be no assurance that any such claims will not
be made in the future in excess of the limits of such insurance, if any, or that
any such claims, if successful and in excess of such limits, will not have a
material adverse effect on our assets and our ability to conduct our business.
There can be no assurance that we will continue to maintain such insurance or
that such insurance can be maintained at acceptable costs. Our insurance
coverage currently includes fire, property damage and general liability with a
$1,000,000 limit on each wrongful act and a $3,000,000 limit in aggregate. There
can be no assurance that any claim will be within the scope of our coverage or
that such claims will not exceed our coverage.
From December 31, 1998 to November 9, 2000, we were insured by an insurance
company for risks associated with professional and general liability that is
currently in liquidation and may not be able to pay or defend claims we incurred
during this period. We do not believe that the ultimate resolution of current
claims will be materially different from reserves established for them or that
any material claims will be made in the future based on occurrences during that
period, but there can be no assurance.
RISKS RELATED TO CHANGES IN HEALTH CARE REGULATIONS AND TECHNOLOGY
There can be no assurance that we will not be adversely affected by future
possible changes in medical and health regulations, the use, cost and
availability of hospitals and other health care services, and medical
technological developments.
4
RISKS RELATED TO COMPETITION
The business in which we operate is highly competitive. We compete with
hospitals, nursing homes, and other businesses that provide home health care
services, many of which are large and established companies with significantly
greater resources than ours.
4
RISKS RELATED TO OUR NEED FOR RELATIONSHIPS WITH OTHER ORGANIZATIONS
The development and growth of our business depends to a significant extent
on our ability to establish close working relationships with health maintenance
organizations, preferred provider organizations, hospitals, clinics, nursing
homes, physician groups, and other health care providers. Although we have
established such relationships, there is no assurance that we will successfully
maintain existing relationships and that we can successfully develop and
maintain additional relationships in existing and future markets.
RISKS RELATED TO FEDERAL AND STATE REGULATION
The healthcare industry is subject to numerous laws and regulations of the
federal, state and local governments. These laws and regulations include, but
are not necessarily limited to, matters such as licensure, accreditation,
government healthcare program participation requirements, reimbursement for
patient services, and Medicare and Medicaid fraud and abuse. Government activity
has increased with respect to investigations and allegations concerning possible
violations of fraud and abuse statutes and regulations by healthcare providers.
Violations of these laws and regulations could result in a provider's expulsion
from government healthcare programs together with the imposition of significant
fines and penalties, as well as significant repayments for patient services
previously billed.
Our management believes that we are in compliance with all state and
federal legal provisions concerning fraud and abuse as well as other applicable
government laws and regulations. While no material regulatory inquiries have
been made, compliance with these laws and regulations can be subject to future
government review and interpretation as well as regulatory actions unknown or
unasserted at this time.
The Health Insurance Portability and Accountability Act, or HIPAA, was
enacted on August 21, 1996 to assure health insurance portability, reduce
healthcare fraud and abuse, guarantee security and privacy of health information
and enforce standards for health information. Organizations are required to be
in compliance with certain HIPAA provisions beginning in October 2002.
Provisions not yet finalized are required to be implemented two years after the
effective date of the regulation. Organizations are subject to significant fines
and penalties if found not to be compliant with the provisions outlined in the
regulations. Our management is in the process of evaluating the impact of this
legislation on our operations, including future financial and operational
enhancements that will be required to comply with the legislation.
RISKS RELATED TO FUTURE SALES OF OUR COMMON STOCK
Sales of our common stock in the public market may have a depressive effect
on prevailing market prices for our common stock. There is no assurance that the
public market for the common stock will not be volatile, sporadic or limited.
Accordingly, you may not be able to resell shares of common stock at or above
your respective purchase price, and you may not be able to liquidate your
investment even at a loss without considerable delay.
RISKS RELATED TO THE POSSIBLE ADVERSE EFFECT OF FUTURE ISSUANCES OF OUR
PREFERRED STOCK
Our certificate of incorporation authorizes us to issue 5,000,000 shares,
par value $.001 per share, of "blank check" preferred stock with such
designations, rights and preferences as our board of directors may determine
from time to time. Accordingly, our board of directors is empowered, without
stockholder approval, to issue preferred stock with dividend, liquidation,
conversion, voting, or other rights that could adversely affect the voting power
or other rights of the holders of the common stock. In the event of an
additional issuance, the preferred stock could be utilized, under certain
circumstances, as a method of discouraging, delaying or preventing a change in
control of our company. We have no present intention to issue any
5
additional shares of our preferred stock. However, there can be no assurance
that we will not issue additional preferred stock at some time in the future.
5
RISKS RELATED TO DILUTION
On July 30,August 19, 2002, there were 9,051,033 shares of our common stock
outstanding and no shares of our preferred stock outstanding. Also as of July
30,August
19, 2002, we had outstanding warrants to purchase 52,500 shares of our preferred
stock which are convertible into 175,000 shares of our common stock, warrants to
purchase 183,720 shares of our common stock, and options to purchase 912,193924,693
shares of our common stock. If any warrants or options are exercised, you may
experience dilution of your shares.
6
SPECIAL NOTE CONCERNING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements. Forward-looking
statements include, among other things, the discussions of our operations,
margins, profitability, liquidity and capital resources. Although we believe
that the expectations reflected in forward-looking statements are reasonable, we
can give no assurance that such expectations will prove to have been correct.
Generally, these statements relate to business plans or strategies, projected or
anticipated benefits or other consequences of such plans or strategies, or
projections involving anticipated revenues, expenses, earnings, levels of
capital expenditures, liquidity or indebtedness or other aspects of operating
results or financial position.
All phases of our operations are subject to a number of uncertainties,
risks and other influences, many of which are outside our control and any one of
which, or a combination of which, could materially affect our results of
operations and whether the forward-looking statements we have made ultimately
prove to be accurate. Important factors that could cause actual results to
differ materially from our expectations are disclosed in "Risk Factors."
USE OF PROCEEDS
The selling shareholders will receive all of the net proceeds from the sale
of the shares of common stock under this prospectus. We will not receive any
proceeds from the sales of the shares by the selling shareholders, but we will
receive any amounts due to us upon exercise of the warrants by the selling
shareholders.
7
OUR COMPANY
We are a leading multi-regional provider of home health care nursing
services. We operate 57 home care nursing offices and two corporate offices in
the southern and southeastern United States.
During 1999, we changed our strategy from providing a variety of alternate
site provider health care services to becoming a leader in home health care
nursing services. Our change of focus was largely due to our significant
investment in this segment of the industry through our acquisition of 83 home
care offices from Columbia/HCA Healthcare Corporation in late 1998. A second
major factor was the implementation in October 2000 of the Prospective Payment
System, or "PPS," under Medicare that now allows home care providers the
opportunity to be more profitable. A third significant factor was our belief
that we had established a reputation and have expertise in the field.
Pursuant to this strategy, we launched a restructuring plan to divest our
non-home health care nursing divisions. From September 1999 through September
2001, we sold and/or closed our surgery centers and infusion divisions. We plan
to achieve a major market presence in home health care nursing services in the
southern and southeastern United States by expanding our referral base through
the use of a highly trained sales force, offering specialized programs such as
wound care, and completing selective acquisitions. We cannot guarantee that we
will be able to achieve this goal.
We are continuing to systematically reduce operating costs by converting
our method of nurse pay to a variable or per-visit rate rather than a fixed or
salary system, using economies of scale, and reducing corporate overhead. We
have outsourced business functions that we do not consider to be part of our
core business and have streamlined our management layers.
We have developed our business model to promote success under PPS. We have
implemented disease state management programs and clinical protocols as well as
supporting technology to monitor and report outcome data, to standardize care,
and to ensure quality outcomes. Using clinical managers to assess and track
patient progress and skilled nurses to deliver care are also important
components of our overall plan.
We were incorporated in Louisiana in 1982. In 1993, we became a publicly
traded company through a merger into a New York corporation. In 1994, we changed
our state of incorporation from New York to Delaware. Our common stock trades on
The Nasdaq SmallCap Market under the symbol "AMED."
8
SELLING SHAREHOLDERS
Of the total number of shares of our common stock covered by this
prospectus, 114,720 shares are subject to common stock warrants, and 175,000 are
issuable upon the conversion of shares of our preferred stock that are subject
to preferred stock warrants. The holders of the common stock warrants and the
preferred stock warrants do not currently own the shares. Rather, the common
stock warrantholders will acquire their shares when they exercise their
warrants, and the preferred stock warrantholders will acquire their shares when
they convert the shares of preferred stock they will receive when they exercise
their warrants. The remaining 5,000 shares are currently outstanding, and were
issued by us to Robert White when he exercised his common stock warrants. We
refer to the persons who will acquire our shares upon the exercise of their
warrants or upon the conversion of their preferred shares, and to Mr. White, as
"selling shareholders."
We have agreed to file, on behalf of the selling shareholders, a
registration statement with the SEC covering the shares. This prospectus is a
part of that registration statement. The selling shareholders may use this
prospectus to resell the shares from time to time under Rule 415 under the
Securities Act of 1933. See "Plan of Distribution."
The following table gives information about the selling shareholders and
the number of shares of our common stock that are beneficially owned by each of
them prior to the offering, including the number of shares subject to warrants,
or issuable upon the conversion of preferred shares subject to warrants, held by
the selling shareholders. This information has been provided to us by the
selling shareholders. The table also gives the number of shares offered hereby
for each selling shareholder's account. The table is based on information
available to us as of July 9, 2002. We cannot estimate the number or percentage
of the shares of common stock that will be held by each selling shareholder upon
completion of this offering because the selling shareholders may sell none, all
or some portion of the shares offered by this prospectus. We do not know whether
or to what extent the selling shareholders who hold warrants will exercise their
warrants, or whether or to what extent the selling shareholders who will receive
preferred stock upon exercise of their warrants will convert their preferred
shares. Likewise, we do not know when or in what amounts the selling
shareholders may offer shares for resale, and cannot be certain that the selling
shareholders will sell any or all of the shares offered by this prospectus.
NUMBER OF SHARES BENEFICIALLY NUMBER OF SHARES
OWNED PRIOR TO THE OFFERING OFFERED IN THIS
SELLING SHAREHOLDERS (AS OF JULY 9, 2002) PROSPECTUS
- -------------------- ----------------------------- ----------------
HCA Inc...................................... 80,720 80,720
One Park Plaza
Nashville, TN 37203
Longview Partners, Inc....................... 4,000 4,000
19 Maple Lane
Rhinebeck, NY 12572
Martin Brenner............................... 15,000 15,000
Station Street 22
Uerikon
8713
Switzerland
June Gorlin.................................. 15,000 15,000
206 Flint Street
Signal Mountain, TN 37377
Hudson Capital Partners, L.P. ............... 52,500 52,500
660 Madison Avenue
14th Floor
New York, NY 10021
Raifinanz AG................................. 122,500 122,500
Bahnhofstrasse 106
CH-8001
Zurich, Switzerland
9
NUMBER OF SHARES BENEFICIALLY NUMBER OF SHARES
OWNED PRIOR TO THE OFFERING OFFERED IN THIS
SELLING SHAREHOLDERS (AS OF JULY 9, 2002) PROSPECTUS
- -------------------- ----------------------------- ----------------
Robert White................................. 5,000 5,000
206 Flint Street
Signal Mountain, TN 37377
None of the selling shareholders named above has held or had any position,
office, or other material relationship with us or any of our predecessors or our
affiliates within the last three years, except as follows:
- We entered into a consulting agreement dated March 15, 2000 with Martin
Brenner, under which he served for one year as our investor relations and
corporate communications liaison in Europe. As part of Mr. Brenner's
compensation, we issued to him warrants to purchase the 15,000 shares of
common stock offered by him for resale in this prospectus.
- Robert White served as our Senior Vice-President of Business Development
until December 2001. We entered into a Loan and Security Agreement dated
March 22, 2000 with him, under which we borrowed $250,000 from him. As
consideration for Mr. White's obligations under that agreement, we issued
him a warrant to purchase the 5,000 shares of our common stock offered by
him for resale in this prospectus. The loan has been repaid in full.
- We entered into a Loan and Security Agreement dated March 22, 2000 with
June Gorlin, under which we borrowed $750,000 from her. As consideration
for Ms. Gorlin's obligations under that agreement, we issued her a
warrant to purchase the 15,000 shares of our common stock offered by her
for resale in this prospectus. The loan has been repaid in full. Ms.
Gorlin is the mother of Robert White.
- In connection with our acquisition in 1998 of 83 home care offices from
Columbia/HCA Healthcare Corporation, we entered into a Credit Agreement
with HCA and a related promissory note for a portion of the acquisition
purchase price, which were terminated in 2000 when we paid HCA $9,000,000
and executed a Warrant Agreement allowing HCA to purchase up to 200,000
shares of our common stock. The 80,720 shares offered by HCA for resale
in this prospectus are subject to warrants issued pursuant to that
Warrant Agreement.
Only selling shareholders identified in the table above who beneficially
own the shares set forth opposite such selling shareholder's name in the table
on the effective date of the registration statement of which this prospectus
forms a part may sell those securities under the registration statement. Prior
to any use of this prospectus in connection with any offering of the shares of
common stock by any holder not identified in the table or with respect to shares
of common stock not shown in the table, this prospectus will be supplemented or,
if required, a post-effective amendment to the registration statement will be
filed to set forth the name and number of shares of common stock beneficially
owned by the selling shareholder intending to sell such shares and the number of
shares of common stock to be offered. The prospectus supplement or the
post-effective amendment, as the case may be, will also disclose whether any
such selling shareholder selling in connection with the prospectus supplement or
the post-effective amendment, as the case may be, has, during the three years
prior to the date of the prospectus supplement or the post-effective amendment,
as the case may be, had any position, office or other material relationship with
us or any of our predecessors or affiliates, if this information has not been
disclosed in this prospectus.
10
PLAN OF DISTRIBUTION
Plan of Distribution Applicable to HCA Inc.
Pursuant to its agreement with us, the shares of HCA Inc. that are covered
by this prospectus may be sold by HCA or on its behalf through or to brokers or
dealers, or directly to investors pursuant to this prospectus (or another
prospectus contained in and forming a part of an effective registration
statement under the Securities Act of 1933) or in transactions that are exempt
from the requirements of registration under the Securities Act. HCA's shares may
be sold at a fixed price or prices, which may be changed from time to time, at
market prices prevailing at the time of such sale, at prices related to such
market prices or at negotiated prices. In connection with such sales,
distributors' or sellers' commission may be paid or allowed. Brokers or dealers
may act as agents for HCA, or may purchase shares from HCA as principal and
thereafter resell such shares from time to time in or through transactions or
distributions (which may involve crosses and block transactions) on national or
foreign stock exchanges where trading privileges are available, in the over-the-
counter market, in private transactions or in some combination of the foregoing.
We have agreed to indemnify HCA, and HCA has agreed to indemnify us, again
certain liabilities, including liabilities under the Securities Act.
Plan of Distribution Applicable to Selling Shareholders Other Than HCA Inc.
The selling shareholders other than HCA may sell shares of our common stock
directly, through broker-dealers acting as principal or agent or pursuant to a
distribution by one or more underwriters on a firm commitment or best efforts
basis. Such selling shareholders may sell all or part of their shares in one or
more transactions at prices at or related to the then-current market price or at
negotiated prices. The selling shareholders will determine the specific offering
price of the shares from time to time that, at that time, may be higher or lower
than the market price of our common stock on The Nasdaq SmallCap Market or other
securities market.
The method by which the selling shareholders other than HCA may offer and
sell their shares may include, but are not limited to, the following:
- sales on any securities exchange on which our common stock is listed at
the time of sale, or through quotation systems in which our common stock
is included, at prices and terms then prevailing or at prices related to
the then-current market price;
- sales in privately negotiated transactions;
- sales for their own account pursuant to this prospectus;
- cross or block trades in which broker-dealers will attempt to sell the
shares as agent, but may position and resell a portion of the block as a
principal to facilitate the transaction;
- purchases by broker-dealers who then resell the shares for their own
account; and
- brokerage transactions in which a broker solicits purchasers.
We have agreed to indemnify Hudson Capital Partners, L.P. and Raifinanz AG,
and they have agreed to indemnify us, against certain liabilities, including
certain liabilities under the securities laws.
Other Matters
In connection with any underwritten offering, underwriters and their agents
may receive compensation in the form of discounts, commissions or concessions
from the selling shareholders or from purchasers of shares for whom they act as
agents. Underwriters may sell shares to or through dealers, and those dealers
may receive compensation in the form of discounts, commissions or concessions
from the underwriters or commissions from the purchasers for whom they may act
as agents. The selling shareholders and any underwriters, dealers or agents
participating in the distribution of the shares of our common stock may be
deemed to be
11
"underwriters" within the meaning of the Securities Act, and any profit from the
sale of these shares by the selling shareholders and any compensation received
by any underwriter, broker-dealer or agent may be deemed to be underwriting
discounts under the Securities Act. 11
Neither we nor the selling shareholders can
presently estimate the amount of such profit or compensation.
From time to time, the selling shareholders may pledge or grant a security
interest in some or all of the offered shares. If the selling shareholders
default in performance of their secured obligations, the secured parties may
offer and sell the offered shares from time to time by this prospectus. The
selling shareholders also may transfer and donate offered shares in other
circumstances. The number of offered shares will decrease as and when the
selling shareholders transfer or donate offered shares or default in performing
obligations secured by offered shares. The plan of distribution for the offered
shares will otherwise remain unchanged, except that the transferees, donees,
pledgees, other secured parties or other successors in interest will be selling
shareholders for purposes of this prospectus.
To the extent required by a particular offering, we will set forth in a
prospectus supplement or, if appropriate, a post-effective amendment, the terms
of the offering, including among other things, the number of shares of our
common stock to be sold, the public offering price, the names of any
underwriters, dealers or agents and any applicable commissions or discounts.
In order to comply with the securities laws of particular states, if
applicable, the shares of our common stock offered under this prospectus will be
sold in the jurisdictions only through registered or licensed brokers or
dealers. In addition, in particular states, the shares of our common stock 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
requirements is available and is complied with.
None of the selling shareholders has entered into, or will enter into
before the effective date of the shelf registration statement of which this
prospectus is a part, any agreement, arrangement or understanding with any
broker or dealer relating to the sale of any of the shares covered by this
prospectus. We will inform the selling shareholders that they are legally
required in accordance with applicable prospectus delivery requirements to
deliver copies of this prospectus in connection with any sale of the offered
shares.
Each selling shareholder will be subject to applicable provisions of the
Securities Exchange Act of 1934 and the rules and regulations thereunder, which
provisions may limit the timing of purchases and sales of shares of common stock
by the selling shareholders.
Each selling shareholder will pay all fees, discounts and brokerage
commissions allocable to his, her or its shares, as well as the fees and
expenses of his, her or its counsel. We will pay all expenses of this
registration, including without limitation, the costs and expenses of preparing
and reproducing this prospectus and complying with state securities laws, as
well as filing fees with the SEC.
We have agreedThe shares offered by the selling shareholders in this prospectus bear
legends as to indemnify Hudson Capital Partners, L.P.their restricted transferability. Upon the effectiveness of the
registration statement of which this prospectus is a part and Raifinanz AG,
and they have agreedthe transfer by
the selling shareholders of any of the shares pursuant to indemnifythe registration
statement, new certificates representing these shares will be issued to the
transferee, free of such legends unless otherwise required by law. The new
certificates will also bear other applicable legends as may be required by law,
to reflect applicable prospectus delivery requirements or to assist us against certain liabilities underin
requiring compliance with the securities laws.Securities Act.
12
LEGAL MATTERS
Michael Lutgring, our counsel and former Executive Vice President, has
given us an opinion that the shares have been duly authorized, and that they
are, or in the case of shares issuable upon the exercise of warrants or upon the
conversion of preferred shares will be, validly issued, fully paid and
non-assessable.
OTHER MATTERS
Our financial statements incorporated by reference herein were audited by
Arthur Andersen LLP. Under SEC rules, we were required to obtain Andersen's
written consent in order to incorporate by reference its report covering those
audited financial statements, which is also incorporated by reference herein. By
granting such a consent, accounting firms become subject to liability under
Section 11 of the Securities Act of 1933 for material misstatements and
omissions of material facts from a registration statement. Investors who bring a
successful claim of this type are entitled to damages. However, we have been
unable to obtain Andersen's consent in connection with our registration
statement. As a result, we have filed the registration statement without
Andersen's consent in reliance on Rule 437a under the Securities Act, which
relieves us of the obligation to obtain Andersen's consent under certain
circumstances. However, because Andersen has not provided a consent in
connection with our registration statement, you may not be able to recover
against Andersen under Section 11 of the Securities Act. For more information
about Andersen, please see the information under the heading "Risk Related to
Arthur Andersen LLP" in the section entitled "Risk Factors."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference room located at 450 Fifth Street, N.W., Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for further information about the
public reference room. Our SEC filings are also available to the public from
commercial document retrieval services and at the web site maintained by the SEC
at: http://www.sec.gov. Reports, proxy statements and other information
pertaining to us may also be inspected at the offices of The Nasdaq Stock
Market, which is located at 1735 K Street, N.W., Washington, D.C. 20006.
This prospectus is part of a registration statement on Form S-3 that we
have filed with the SEC to register the sales of the securities offered by this
prospectus. The registration statement contains additional information about us
and our securities. You may inspect the registration statement and exhibits at
the SEC public reference room or at the SEC's website. As allowed by the SEC
rules, this prospectus does not contain all of the information you can find in
our registration statement or the exhibits to the registration statement.
You should rely only on the information or representations provided in this
prospectus or any supplement to this prospectus. We have not authorized anyone
else to provide you with different information. The selling shareholders mayare not
makemaking an offer of our securities in any state where the offer is not permitted.
The delivery of this prospectus does not, under any circumstances, mean that
there has not been a change in our affairs since the date of this prospectus. It
also does not mean that the information in this prospectus is correct after this
date.
Our address on the world wide web is http://www.amedisys.com. The
information on our web site is not a part of this document.
13
INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with it, which means that we can disclose important information to you by
referring to documents that we have filed with the SEC. 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 incorporated information.
We incorporate by reference the documents listed below and any future
filings we will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934 until the completion of the offering of the
securities described in this prospectus:
FILINGS PERIOD OR DATE FILED
- ------- --------------------
Our Annual Report on Form 10-K........... Year ended December 31, 2001
Our Quarterly Reports on Form 10-Q....... Quarters ended March 31, 2002 and June
30, 2002
Our Amendment to our Quarterly Report on
Form 10-Q........10-Q.............................. Quarter ended March 31, 2002
Our Current Reports on Form 8-K.......... March 6, 2002, April 29, 2002, May 3,
2002, May 28, 2002, June 5, 2002, June
25, 2002, and July 18, 2002, August 2, 2002,
August 6, 2002, and August 13, 2002
Our Amendments to Current Report on Form
8-K.................................... May 13, 2002 and May 24, 2002
Our Definitive Proxy Statement on
Schedule 14A........................... April 30, 2002
The description of our common stock set
forth in our Current Report on Form
8-K.................................... December 11, 2000
In addition to the filings listed above, we incorporate by reference
additional documents that we may file with the SEC between the date of this
document and the date of the completion of the offering of the securities
described in this prospectus. These documents include periodic reports, such as
Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports
on Form 8-K, as well as proxy statements.
You can obtain any of the documents incorporated by reference in this
document from us, or from the SEC through the SEC's Internet world wide web site
at http://www.sec.gov. Documents incorporated by reference are available from us
without charge, excluding any exhibits to those documents, unless the exhibit is
specifically incorporated by reference as an exhibit in this document. You can
obtain documents incorporated by reference in this document upon written or oral
request to us at the following address:
Amedisys, Inc.
11100 Mead Road
Suite 300
Baton Rouge, Louisiana 70816
(225) 292-2031
We have not authorized anyone to give any information or make any
representation about the offering or us that is different from, or in addition
to, that contained in this document. Therefore, if anyone does give you
information of that sort, you should not rely on it. The information contained
in this document speaks only as of the date of this document unless the
information specifically indicates that another date applies.
Any statement contained in a document incorporated or deemed incorporated
herein by reference shall be deemed to be modified or superseded for the purpose
of this prospectus to the extent that a statement contained herein or in any
subsequently filed document which also is, or is deemed to be, incorporated
herein by reference modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as to modified or superseded,
to constitute a part of this prospectus.
14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following are the fees and expenses payable by the registrant in
connection with the offering contemplated by the registration statement, all of
which are estimated except the registration fee.
Securities and Exchange Commission registration fee......... $ 287.68
Printing Expenses........................................... 3,000.00
Legal fees and expenses..................................... 15,000.00
Accounting fees and expenses................................ --
Miscellaneous............................................... 1,000.00
----------
Total.................................................. $19,287.68
----------
The selling shareholders have not paid, and are not responsible for, any
portion of these fees and expenses.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Delaware General Corporation Law (the "statute"), Section 145, gives
Delaware corporations broad powers to indemnify their present and former
directors, officers, agents and employees and those of affiliated corporations
against expenses incurred in the defense of any lawsuit to which they are, or
might be, made parties by reason of being, or having been, such directors,
officers, agents or employees; subject to specific conditions and exclusions
gives a director, officer, agent or employee who successfully defends an action
the right to be so indemnified, and in some cases permits even those who
unsuccessfully defend actions to be so indemnified; and authorizes Delaware
corporations to buy liability insurance on behalf of any current or former
director, officer, agent or employee. Such indemnification is not exclusive of
any other rights to which those indemnified may be entitled under any by-law,
agreement, authorization of shareholders or otherwise.
Article XI of the Certificate of Incorporation of the registrant provides
for indemnification of officers, directors, agents and employees of the
registrant as follows:
(a) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation)
by reason of the fact that he 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
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
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 his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction
or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a
manner in which he 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 reasonable cause to believe that his conduct was unlawful.
(b) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment
in its favor by reason of the fact that he 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
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in
II-1
or not opposed to the best interests of the Corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b) of
this Article, or in defense of any claim, issue or matter therein, he shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this Article
(unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification
of the director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in
subsections (a) and (b) of this Article. Such determination shall be made
(1) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (2)
if such quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a
written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized by this Article. Such expenses
(including attorneys' fees) incurred by other employees and agents may be
so paid upon such terms and conditions, if any, as the Board of Directors
deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this Article shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any bylaw, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding
such office.
(g) The Corporation shall have the power 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 him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability
under this Article.
(h) For purposes of this Article references to "the Corporation" shall
include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had the power and authority to indemnify its directors,
officers, and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is
or was serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position
under this Article with respect to the resulting or surviving corporation
as he would have with respect to such constituent corporation if its
separate existence had continued.
(i) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article shall, unless otherwise provided when
authorized and ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
II-2
The foregoing discussion of the Company's Certificate of Incorporation and
of the statute is not intended to be exhaustive and is qualified in its entirety
by such Certificate of Incorporation and the statute, respectively.
ITEM 16. EXHIBITS
The following documents are filed herewith or incorporated by reference
herein:
EXHIBIT
NO. DESCRIPTION
- ------- -----------
4.1 Certificate of Incorporation of the registrant (incorporated
by reference to Exhibit 3.1 filed with the registrant's
Quarterly Report on Form 10-Q for the quarter ended March
31, 2002).
4.2 By-Laws of the registrant (incorporated by reference to
Exhibit 3.2 filed with the registrant's Quarterly Report on
Form 10-Q for the quarter ended March 31, 2001).
4.3 Shareholder Rights Agreement, dated June 15, 2000
(incorporated by reference to Exhibit 4(i) filed with the
registrant's Current Report on Form 8-K filed on June 16,
2000).
5.15.1* Opinion of Michael D. Lutgring, counsel to the registrant,
regarding the validity of the securities registered hereby.
2323* Consent of Michael D. Lutgring, counsel to the registrant,
(included in Exhibit 5.1).
2424* Power of Attorney (included in the signature page to this
registration statement).
- ---------------
* Filed previously.
ITEM 17. 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 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.
(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.
II-3
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 the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of Baton Rouge, State of Louisiana, on August 1,22, 2002.
AMEDISYS, INC.
By: /s/ WILLIAM F. BORNE
-----------------------------------------------------------------------
William F. Borne
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints William F. Borne, his true and lawful
attorney-in-fact and agent, with full power of substitution, 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 to
file the same with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent or his substitute or substitutes may
lawfully 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 August 1,22, 2002.
SIGNATURE TITLE
--------- -----
/s/ WILLIAM F. BORNE* Chief Executive Officer and Chairman of the Board
- -------------------------------------- (Principal Executive Officer)
William F. Borne
/s/ GREGORY H. BROWNE* Chief Financial Officer
- -------------------------------------- (Principal Financial and Accounting Officer)
Gregory H. Browne
/s/ JAKE L. NETTERVILLE* Director
- --------------------------------------
Jake L. Netterville
/s/ DAVID R. PITTS* Director
- --------------------------------------
David R. Pitts
Director
- --------------------------------------
Peter F. Ricchiuti
/s/ RONALD A. LABORDE* Director
- --------------------------------------
Ronald A. Laborde
*By: /s/ WILLIAM F. BORNE
----------------------------------
William F. Borne
Attorney-in-Fact
II-4
INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION
- ------- -----------
4.1 Certificate of Incorporation of the registrant (incorporated
by reference to Exhibit 3.1 filed with the registrant's
Quarterly Report on Form 10-Q for the quarter ended March
31, 2002).
4.2 By-Laws of the registrant (incorporated by reference to
Exhibit 3.2 filed with the registrant's Quarterly Report on
Form 10-Q for the quarter ended March 31, 2001).
4.3 Shareholder Rights Agreement, dated June 15, 2000
(incorporated by reference to Exhibit 4(i) filed with the
registrant's Current Report on Form 8-K filed on June 16,
2000).
5.1 Opinion of Michael D. Lutgring, counsel to the registrant,
regarding the validity of the securities registered hereby.
23 Consent of Michael D. Lutgring, counsel to the registrant,
(included in Exhibit 5.1).
24 Power of Attorney (included in the signature page to this
registration statement).