As filed with Securities and Exchange
Commission on January 30, 2008
Registration
No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EMERGENCY MEDICAL SERVICES CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
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20-3738384
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(State or other
jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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6200 S. Syracuse Way, Suite 200
Greenwood Village, CO 80111-4737
(303) 495-1200
(Address, including zip code, and telephone number, including
area code, of registrants principal executive offices)
Todd
G. Zimmerman, Esq.
General
Counsel
Emergency
Medical Services Corporation
6200
S. Syracuse Way, Suite 200, Greenwood Village, CO 80111-4737
(303)
495-1200
(Name, address, including zip code, and telephone
number,
including area code, of agent for service)
Copies to:
Lynn Toby Fisher, Esq.
Joel I. Greenberg, Esq.
425 Park Avenue
New York, New York 10022
(212) 836-8000
Approximate
date of commencement of proposed sale to the public:
From time to time after the effective date of
this registration statement.
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment plans, please check
the following box.
o
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, as amended (the Securities Act), other than securities
offered only in connection with dividend or interest reinvestment plans, 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.
o
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.
o
If this Form is a registration statement
pursuant to General Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant to Rule 462(e) under
the Securities Act, check the following box.
o
If this Form is a post-effective amendment to a
registration statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of securities pursuant to Rule 413(b) under
the Securities Act, check the following box.
o
CALCULATION OF REGISTRATION FEE
Title of each class of
securities to be registered
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Amount to be registered
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Proposed maximum offering price per unit
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Proposed maximum aggregate
offering price
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Amount of registration fee
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Class A common stock, par value $.01 per share
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500,000 shares
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(1)
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$30.94
(2)
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$15,470,000
(2)
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$608
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(1)
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Reflects shares issuable under the Registrants 2007
Long-Term Incentive Plan (Plan) to Eligible PA Employees and Eligible
Independent Contractors, as such terms are defined in the Plan. Pursuant to
Rule 416(a), this registration statement covers such indeterminate number
of additional shares which may become issuable to such individuals under the
Plan as a result of the anti-dilution provisions thereof.
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(2)
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Estimated solely for the purpose of calculating the
registration fee pursuant to Rules 457(c)
and 457(h) under the Securities
Act, based on the average of the high
sales price and the low sales price per share of the registrants
class A common stock as reported on the New York Stock Exchange on
January 24, 2008.
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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 which specifically states that this
registration statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act or until the registration statement shall become effective
on such date as the Securities and Exchange Commission, acting pursuant to such
Section 8(a), may determine.
FORWARD
-LOOKING STATEMENTS
Certain
statements made in this prospectus and in the documents incorporated by
reference in this prospectus constitute forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E
of the Securities Exchange Act of 1934, as amended. These forward-looking statements are not
historical facts, but rather are our beliefs and expectations and are based on
our current expectations, estimates, projections, beliefs and assumptions about
us and our industry. Words such as
may, will, believe,
anticipate, expect,
intend, plan, believe, seek, estimate and similar expressions are
intended to identify forward-looking statements. These statements are not guarantees of future
performance and are subject to risks, uncertainties and other factors, some of
which are beyond our control, are difficult to predict and could cause actual
results to differ materially from those expressed or forecasted in the
forward-looking statements.
Certain
of these risks and uncertainties are more fully described in the section
captioned Risk Factors in our
Annual Report on
Form 10-K for the year
ended December 31, 2006, which is incorporated by reference in this
prospectus. Additional risks and
uncertainties and contingencies not presently known to us or that we currently
deem immaterial could also cause our results, performance or achievements to
differ materially from those predicted in any forward-looking statement made by
or on behalf of us. Given these risks and uncertainties, we caution you not to
place undue reliance on these forward-looking statements, which reflect our
view only as of the date of this prospectus and the documents incorporated
herein by reference or other dates which are specified in those documents.
OUR
COMPANY
Our
Business
Emergency Medical
Services Corporation (EMSC, we, us, or our) is a leading provider of
emergency medical services in the United States. We operate our business and
market our services under the AMR and EmCare brands, which represent American
Medical Response, Inc. and EmCare Holdings Inc., respectively. AMR, with
more than 50 years of operating history, is the leading provider of ambulance transport
services in the United States based on net revenue and number of transports.
EmCare, with more than 30 years of operating history, is the leading provider
of outsourced emergency department staffing and related management services to
healthcare facilities in the United States, based on number of contracts with
hospitals and affiliated physician groups.
Our
Principal Offices and Websites
EMSC was organized as a
Delaware corporation in 2005. Our
principal offices are located at 6200 S. Syracuse Way, Suite 200,
Greenwood Village, Colorado 80111 and our telephone number at that address is
(303) 495-1200. Our website address is
www.emsc.net
. The website addresses for our business segments are
www.amr.net
and
www.emcare.com.
Information contained on these websites is
not part of this prospectus and is not incorporated in this prospectus by
reference.
RISK
FACTORS
There
have been no material changes from the risk factors disclosed in the section
entitled Risk Factors of our Annual Report on Form 10-K for the year
ended December 31, 2006.
USE
OF PROCEEDS
Since
the shares under the Plan will be sold to participants from time to time, we
have
no specific plan for the proceeds from the sale of such shares, though
currently we expect to use such proceeds
for working capital and general corporate purposes.
PLAN
OF DISTRIBUTION
This
prospectus, and the registration statement of which it is a part, relate solely
to the offer and sale from time to time of up to 500,000 shares of our class A
common stock under the Plan to the following individuals, or Eligible
Individuals:
·
active employees of professional
associations or professional corporations for which we or any of our
subsidiaries provide management services pursuant to a physician services
agreement (we refer to such professional associations and professional corporations
as Professional Associations, and such active employees of Professional
Associations as Eligible PA Employees); and
·
independent contractors that provide a
certain amount of clinical services for Professional Associations, for us or
for any of our subsidiaries (we refer to such independent contractors as Eligible
Independent Contractors).
The
principal purposes of the Plan are to provide long-term incentives to those
people responsible for our success and growth and the success and growth of our
subsidiaries, to associate more closely the interests of such people with those
of our stockholders, and to assist us and our subsidiaries in recruiting,
retaining, and motivating a diverse and talented group of employees on a
competitive basis.
The source
of shares we deliver under the Plan will be authorized but unissued shares,
treasury shares, or shares we acquire on the open market. The number of shares available for stock
awards to Eligible Individuals under the Plan are subject to adjustment as
provided in the Plan for stock splits, stock dividends, recapitalizations and
other similar events.
2
The Plan is administered by our compensation
committee. Our compensation committee has broad authority to establish the
terms and conditions of awards made under the Plan. The costs and expenses of administering the
Plan shall be borne by us and will not be charged to any award under the Plan
or to any participant in the Plan.
INTERESTS
OF NAMED EXPERTS AND COUNSEL
Kaye
Scholer LLP, our counsel, will issue an opinion about the legality of the
securities offered under this registration statement. As of the date of this prospectus, certain
attorneys with Kaye Scholer LLP own, in the aggregate, less than 1% of the
outstanding class A common stock.
LEGAL
MATTERS
The
validity of the issuance of the securities offered hereby will be passed upon
for us by Kaye Scholer LLP, New York, New York.
EXPERTS
The
consolidated financial statements for the eleven months ended December 31,
2005, for the five months ended January 31, 2005, and for the year ended August 31,
2004 incorporated herein by reference to the Annual Report on Form 10-K
for the year ended December 31, 2006 have been so incorporated in reliance
on the report of PricewaterhouseCoopers LLP, an independent registered public
accounting firm, given on authority of said firm as experts in auditing and
accounting.
The
consolidated financial statements of Emergency Medical Services Corporation
appearing in Emergency Medical Services Corporations Annual Report (Form 10-K)
for the year ended December 31, 2006, and Emergency Medical Services
Corporation managements assessment of the effectiveness of internal control
over financial reporting as of December 31, 2006 included therein, have
been audited by Ernst & Young LLP, independent registered public
accounting firm, as set forth in their reports thereon, included therein, and
incorporated herein by reference. Such consolidated financial statements and
managements assessment are incorporated herein by reference in reliance upon
such reports given on the authority of such firm as experts in accounting and
auditing.
ABOUT
THIS
PROSPECTUS
This
prospectus is part of one or more registration statements that we filed with
the Securities and Exchange Commission, or SEC, utilizing a shelf registration
process. Under this process, we may,
from time to time, sell the class A common stock described in this
prospectus in one or more offerings established under the Plan which shall not
exceed 500,000 shares of our class A common stock in the aggregate.
STOCK
PUR
CHASE PLAN AND EXPLANATORY GUIDE
Pursuant
to the authority granted under the Plan, our compensation committee adopted a
stock purchase plan, or SPP, pursuant to which Eligible Individuals may
purchase shares of our class A common stock under the Plan during
designated offering periods, and under designated offering terms and
conditions, established from time to time by our compensation committee. The terms and conditions of the SPP are set
forth in the Explanatory Guide and Prospectus attached to this prospectus and
incorporated herein by reference. The
SPP and the class A common stock purchased under the SPP will be subject
to the terms of the Plan.
Our
compensation committee has approved an amendment to the LTIP to add Eligible
Independent Contractors as eligible recipients of stock awards under the
Plan. Our board of directors will
recommend that our stockholders approve such LTIP amendment at our upcoming
annual meeting of stockholders. If such
LTIP amendment is not approved by our stockholders prior to the end of any
offering period under the SPP, then immediately prior to the end of such
offering period, we will terminate the offering solely with respect to Eligible
Independent Contractors,
3
and any amounts in the SPP account of an Eligible
Independent Contractor as of such termination date will be returned to the
Eligible Independent Contractor without interest.
INCORPORATION
OF
CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to incorporate by reference in this prospectus information that
we filed with the SEC, which means that we can disclose important information
to you by referring you to another document filed separately with the SEC. This prospectus incorporates by reference the
documents set forth below that we have previously filed with the SEC:
1. Annual Report on Form 10-K for the year ended December 31,
2006, filed pursuant to the Securities Exchange Act of 1934, as amended, or the
Exchange Act.
2. All other reports filed by the registrant with the SEC
pursuant to Section 13(a) or 15(d) of the Exchange Act since December 31,
2006.
3. The description of the registrants class A common stock
included in its Registration Statement on Form 8-A filed with the SEC on December 14,
2005, and any amendment or report filed thereafter for the purpose of updating
that description.
The information
incorporated by reference in this prospectus is considered to be part of this
prospectus, except for any information superseded by information in this
prospectus, and the information that we file later with the SEC will
automatically update and supersede this information. We also incorporate by reference in this
prospectus any such future filings made with the SEC under Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, until we sell all of the
securities we are offering.
Any statement contained
in this prospectus or in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superseded for purposes
of this prospectus to the extent that a statement contained in this prospectus,
or in any subsequently filed document which also is or is deemed to be incorporated
by reference in this prospectus, modifies or supersedes such statement. Any statement so modified or superseded will
not be deemed, except as so modified or superseded, to constitute a part of
this prospectus.
You
may request a copy of these filings (not including the exhibits to such
documents unless the exhibits are specifically incorporated by reference in the
information contained in this prospectus), at no cost, by writing or
telephoning us at the following address:
6200 S. Syracuse
Way, Suite 200
Greenwood Village, CO 80111-4737
Attn: Investor Relations
(303) 495-1200
WHERE YOU
CAN FIND MORE INFORMATION
We are
a reporting company and file annual, quarterly and current reports, proxy
statements and other information with the SEC.
You may read and copy any document we file with the SEC at its public
reference facility at 450 Fifth Street, N.W., Washington, D.C. 20549. You can request copies of these documents by
writing to the SEC and paying a fee for the copying costs. Please call the SEC at 1-800-SEC-0330 for
further information regarding its public facilities. Our SEC filings, including the complete
registration statement of which this prospectus is a part and all of the
exhibits to it are also available to the public from the SECs website at
http://www.sec.gov.
4
Stock Purchase Plan (SPP)
Explanatory Guide and Prospectus
Introduction
Congratulations! We are pleased to offer you the opportunity
to participate in the Emergency Medical Services Corporation Stock Purchase
Plan. This plan, which we refer to as
the SPP, allows certain individuals that provide clinical services for us and
our
subsidiaries
to
purchase shares of class A common stock of EMSC at a discount to its fair
market value. If you choose to
participate in the SPP, you will be able to invest in our class A common stock
simply and easily through after-tax paycheck deductions.
Stock ownership empowers you with more rights and
responsibilities, as well as risks and rewards.
Participation in the SPP is
entirely voluntary and you should consider carefully both the opportunities and
the risks associated with stock ownership.
We
make no recommendations with respect to the purchase of EMSC class A
common stock or participation in the SPP.
This Explanatory Guide
and Prospectus, or Explanatory Guide, is intended to provide you with a summary
of certain highlights and key features of the SPP, frequently asked questions
regarding the SPP, information about how the SPP works and how to access your
SPP account, and other helpful information regarding the SPP.
This Explanatory Guide is not an offer or contract of
continued service or employment with EMSC, your professional association or
professional corporation, or any of their respective affiliated companies. This Explanatory Guide does not
constitute an offering
in any jurisdiction in which such offering may not lawfully be made
.
The date of this prospectus
is January , 2008.
i
The sections of this Explanatory Guide entitled Introduction,
SPP Highlights and Key Features,
Where You
Can Find More Information,
Frequently
Asked Questions, U.S. Federal Income Tax Consequences, How the SPP Works Buying
Shares, Long-Term Incentive Plan and Additional Information constitute
part of a prospectus covering securities that have been registered under the
Securities Act of 1933, as amended.
ii
SPP Highlights
and Key Features
Overview
The SPP is a stock
purchase plan that makes it easy for you to become a stockholder of EMSC and
share in its potential future growth and profitability.
The SPP allows
you to purchase
shares
of EMSC class A common stock, which we refer to in this Explanatory Guide as
our Common Stock, at a discount to its fair market value
through
deductions from your base compensation.
Your deductions will be used to buy shares of Common Stock, which will
then be held in your SPP account maintained by Computershare Trust Company, or Computershare. Eligible individuals may start, stop or
change their participation in the program in accordance with the SPPs
provisions.
The
SPP will be administered by the Compensation Committee of our Board of
Directors, or any other committee the EMSC Board of Directors determines should
administer the SPP. We use the term Committee
to refer to our Compensation Committee or any other committee that administers
the SPP.
There
may be multiple offering periods under the SPP.
Prior to each
offering period, we will provide the details established by the Committee for
that particular offering, including the purchase price for the Common Stock and
the duration of the offering period.
These offering details will be set forth in a letter sent to each eligible
participant of that
offering, or an Offering Letter
.
If you receive an Explanatory Guide for any future offering without an
Offering Letter, please contact our Benefits Department at 1-303-495-1200.
The
SPP is not intended to be an employee stock purchase plan under Section 423
of the Internal Revenue Code of 1986, as amended, or the Code, and the federal
income tax consequences of a purchase of shares under the SPP are different
from those under an employee stock purchase plan.
See the section in this
Explanatory Guide entitled
U.S. Federal Income Tax
Consequences.
Eligibility Requirements
Generally,
you are eligible to participate in the SPP if you are:
·
an employee of any professional association
or professional corporation for which EMSC or any of its subsidiaries provides
management services pursuant to a physician services agreement (such
professional associations and professional corporations are referred to in this
Explanatory Guide as Professional Associations); or
·
a physician that provides clinical services
as an independent contractor pursuant to an agreement with EMSC, any of EMSCs
subsidiaries or a Professional Association (such physicians are referred to in
this Explanatory Guide Independent Contractors);
and,
in each case, you customarily work more than 120 hours per month for EMSC or
any of its subsidiaries, or a Professional Association, as the case may be, and
you have completed at least 240 hours of service to such entity prior to the
relevant offering period.
In
this Explanatory Guide, we use the term Eligible Individual to refer to any
individual that meets these eligibility requirements for participation in the
SPP.
Enrollment
You may enroll in an offering during the enrollment
period specified by the Committee, which we refer to in this Explanatory Guide
as an Enrollment Period. Enrollment in
the SPP is easy via
Computershares Employee Plan Member website or
Computershares Interactive Voice Response (IVR) system. For detailed instructions on how to enroll in
the SPP, please see the section in this Explanatory Guide entitled How the SPP
Works Buying Shares How You Enroll.
Your participation in the
SPP is entirely voluntary and should be just one part of an overall,
well-balanced investment plan. We cannot
assure you that the Common Stock you purchase through the SPP will increase, or
not decrease, in value.
Participant
Contributions
The
SPP
allows you to purchase
shares of Common Stock through convenient after-tax deductions from your base
compensation in your paycheck. For each offering period, you may authorize
deductions equal to a percentage, between 1% and 15% (in whole numbers only),
of your eligible compensation, unless otherwise provided by the Committee. Your eligible compensation consists only of
your base compensation. Any bonuses, severance, overtime, disability or other
compensation or contributions are not included in this amount. Your deductions are made on an
after-tax
basis and will be held in a non-interest bearing SPP account until purchases of
shares are made under the SPP.
Purchase of Shares
At
the end of each offering period, EMSC will sell whole shares of Common Stock to
the SPP participants at the purchase price established for that offering, and
deliver these shares to Computershare to
be deposited into each participants SPP account. Any cash amount remaining in your SPP account
after the purchase of shares will remain in the account and carry over to the
next offering period. The number of
shares of Common Stock you are permitted to purchase in any offering period may
be limited by applicable tax or securities law or by the offering size or other
terms established by the Committee for that offering. See the section in this Explanatory Guide
entitled
How the SPP Works
Buying Shares Purchase of Shares.
The
purchase of Common Stock by Independent Contractors at the end of any offering
period will be contingent on the approval of an amendment to our 2007 Long-Term
Incentive Plan by our stockholders at the upcoming annual meeting of
stockholders. See the section in this
Explanatory Guide entitled Long-Term Incentive Plan.
Purchase Price
The purchase price per
share of Common Stock for any offering under the SPP will be at a discount to
the then Fair Market Value and will be established by
the Committee
prior to each offering period
. Generally, the Fair Market
Value of a share of Common Stock on any day will mean the closing price of the
Common Stock on that date on the New York Stock Exchange.
Voting Rights
Once you purchase shares of
Common Stock under the SPP, you will be entitled to voting rights with respect
to those shares. As the owner of EMSC
shares you have the right to attend and vote at EMSCs annual stockholder
meetings and at any other stockholder meetings EMSC may hold. Each share of Common Stock you hold entitles
you to one vote on each matter submitted for a vote of the EMSC stockholders.
Understand the Rewards and Risks
of Being a Stockholder
When you purchase shares in
EMSC, you have the opportunity to personally benefit from any growth in the
EMSC Common Stock price. In addition, you purchase the Common Stock at a
discount
from its
fair market value at the time of purchase
and you do not pay any
commission, account fees or administration cost when buying the shares. EMSC covers the fees associated with buying
the shares under the SPP.
As is the case with all
stock purchases, there can be no assurance that the Common Stock share price
will rise or remain at any particular levels.
The Common Stock price may fall below the price you pay. We make no representation as to the value or
market performance of our Common Stock. The decision to participate in the SPP
is solely your choice, dependent on your individual financial situation.
Investing
in the Common Stock involves risks.
Before deciding to invest in EMSC Common Stock, you should review
carefully all of our publicly available information. In particular, our
2
Form 10-K
annual reports and Form 10-Q quarterly reports that we file with the
Securities and Exchange Commission, or the SEC, each contain a section called Risk
Factors. Our Risk Factors describe
matters that could cause our business, results of operation and financial
condition to differ materially from our anticipated results or
expectations.
See the section in this Explanatory Guide entitled
Where You Can Find More
Information for information on how to access publicly available SEC filings.
Insider Trading
All participants in the SPP
are subject to our internal policies and federal and state laws restricting
trading on material non-public or insider information. Our Insider Trading Policy can be accessed on
our website,
www.emsc.net
, under Corporate
Governance. If you have any questions
about these policies and laws, please contact EMSCs legal department by
calling 1-303-495-1200.
Dividends
At this time, EMSC does
not pay any dividends on its Common Stock.
Holding Period
EMSC does not require a
minimum holding period for shares purchased under the SPP. Since the sale of Common Stock under the SPP
to Eligible Individuals has been registered under the Securities Act of 1933,
as amended, or Securities Act, no such holding period is required under
applicable securities laws. Common Stock
you purchase under the SPP will be available for you to sell as soon as administratively
possible, subject to certain trading restrictions we describe above under Insider
Trading. As with all shares that you
sell, the nature of any capital gain that you recognize on a sale of shares
purchased under the SPP will differ, depending on your holding period.
See the section in this
Explanatory Guide entitled
U.S. Federal Income Tax
Consequences.
Where You Can Find
More Information
The SEC requires public
companies like EMSC to disclose financial and other information to the public.
This provides information to assist all investors, whether large institutions
or private individuals, in making investment decisions. EMSC
Common Stock is traded
on the New York Stock
Exchange under the symbol EMS.
All of our information filed
publicly with the SEC is available at the Public Reference Room maintained
by the SEC at 100 F Street, N.E., Washington, D.C. 20549. In addition, materials filed electronically
by EMSC via the SECs EDGAR system are available at the SECs website at
www.sec.gov
or by
calling the SEC at 1-800-SEC-0330
for further information
.
We maintain a website at
www.emsc.net
. We post on our website, as soon as reasonably
practicable after we file documents with the SEC, our annual report on Form 10-K,
quarterly reports on Form 10-Q, current reports on Form 8-K,
amendments to those reports, and the proxy statement for our annual stockholder
meeting. You may access these documents
free of charge at our website. The
reference to our web address does not constitute incorporation by reference of
the information contained at that website.
3
Frequently
Asked Questions
What is the Stock Purchase Plan (SPP)?
The SPP is a plan offered by EMSC that allows you to easily purchase EMSC
Common Stock
and
share in EMSCs potential future growth and profitability as a stockholder
. The SPP
allows Eligible Individuals to purchase Common Stock at a discount from its
fair market value through regularly scheduled paycheck deductions. The SPP does not qualify as an employee
stock purchase plan under Section 423 of the Code.
Who
administers the SPP?
The
SPP is administered by the Committee, which must be composed of at least three
independent, outside members of our Board of Directors, unless otherwise
permitted by the rules and regulations of the New York Stock
Exchange. The Committee has the power to
interpret the SPP, to establish, amend and revoke rules and regulations
for its administration and to correct any defect, omission or inconsistency in
the SPP.
Who is eligible to participate
in the SPP?
The SPP generally is open to Independent Contractors
that normally provide a certain amount of clinical services to EMSC, to any of
its subsidiaries and to Professional Associations, and to all active employees
of any Professional Association
who normally are scheduled to work a certain number of
hours for the
Professional Association. See the section in this Explanatory Guide
entitled SPP Highlights and Key Features Eligibility Requirements.
The Committee may require a longer period of service
for eligibility (which requirement will be stated in the Offering Letter), and
ultimately
determines which individuals will be offered participation in the SPP.
What is an offering?
From time to time, the Committee will designate an offering which
provides you with an opportunity to purchase Common Stock under the SPP. You will receive an Offering Letter if you
have been granted rights to purchase Common Stock in that offering. The Offering Letter will include the offering
size, the purchase price for the offering which we will express as a
percentage discount to the Fair Market Value of the Common Stock and the offering
period, which is the period of time during which deductions may be made from
your paycheck and deposited in your SPP account with Computershare. At the end of the offering period, the amount
in your SPP account will be used to buy shares of Common Stock under the SPP.
How do I enroll in the
SPP?
If you are granted rights to purchase Common Stock in
any offering, you may elect, during the Enrollment Period specified by the
Committee, to participate in the offering through
Computershares Employee
Plan Member website or IVR system.
See the
section in this Explanatory Guide entitled
How the SPP Works
Buying Shares How You Enroll.
How does the SPP work?
Once you have enrolled in the SPP,
Computershare
will open and maintain an account for you.
Generally, any amounts deducted from your paycheck and any shares of
Common Stock you purchase will be maintained in that account unless and until you
direct otherwise, until you cease to be eligible to participate in the SPP, or
the Committee decides that a distribution should be made.
Once you have elected to participate in an offering,
you may direct EMSC to deduct from your paycheck during the offering period any
percentage amount from 1% to 15% (in whole numbers only) of your base
compensation, unless otherwise provided by the Committee. Deductions
will not
be made from
overtime, bonuses, severance payments or any other payments. Deductions from your paycheck will be made on
an
after-tax
basis and will be deposited in your SPP account with
Computershare and will not earn interest.
At the end of each offering period, the funds
in your SPP account will be used to purchase whole shares of Common Stock at
the purchase price determined in accordance with the SPP and specified for that
offering.
Any cash amount remaining in your SPP
4
account after the purchase of shares will remain in
the account and carry over to the next offering period.
Are there limits to the number of shares I can
purchase in any offering period under the SPP?
The number of shares of Common Stock you are permitted
to purchase in any offering period may be limited by applicable tax or
securities laws or by the terms established by the Committee for that
offering. P
rior
to each offering period, the Committee will establish the offering size and the
maximum number of shares that any participant may purchase in an offering, each
of which will be indicated in the Offering Letter. The Committee also may limit the number of
shares that any participant may purchase in an offering if we are
oversubscribed for such offering.
In
addition, you may be limited in the number of shares you may purchase in an
offering if the fair market value of such purchased shares
(measured as of
the commencement of the relevant offering period)
, when combined with the fair market value of the Common Stock you may
purchase in such calendar year pursuant to any employee stock purchase plans
(as
defined in Section 423 of the Code)
of
EMSC, exceeds $25,000.
See the section in this Explanatory Guide
entitled How the SPP Works Buying Shares Purchase of Shares.
What will be the purchase
price for the Common Stock I purchase under the SPP?
The purchase price to you
for each share of Common Stock in any offering under the SPP will be at a
discount to its fair market value at the time of purchase. Before the beginning of the offering period,
we will advise you of the discount established by the Committee. Generally, for this purpose, the Fair Market
Value of a share of Common Stock on any day means the closing price of the
Common Stock on that date on the New York Stock Exchange.
What are the federal income tax consequences of purchasing and selling the
Common Stock I purchase through the SPP?
When you purchase shares of Common Stock under the SPP,
you will recognize as ordinary compensation income, subject to withholding, and
pay taxes on, the excess of the fair market value of the shares on the date you
purchase them
(
i.e.
,
at the end of the offering period)
over the
purchase price you paid for the shares.
The fair market value of the shares on the date of purchase will be your
tax basis. When you
sell or
otherwise
dispose of your SPP shares, any
amount received in excess of your tax basis generally will be treated as
long-term or short-term capital gain, depending on the holding period of the
shares.
Accordingly, you are
urged to consult your own tax advisor to determine the specific U.S. federal,
state, local and foreign tax consequences applicable to you.
For a general discussion of
United States federal income tax consequences relating to the sale of shares
purchased through the SPP, please see the section in this Explanatory Guide
entitled U.S. Federal Income Tax Consequences.
Can I withdraw from an offering?
Unless we advise you otherwise prior to any offering,
you may withdraw all, but not less than all, of the contributions deposited in
your SPP account at any time prior to the 14-day period preceding the end of an
offering period. If you withdraw from an
offering, any paycheck deductions deposited in your SPP account during that
offering period will be returned to you, without interest, as soon as
administratively feasible but in any event within 60 days of your notice
of withdrawal. You may not re-enter an
offering once you have withdrawn from such offering. However, any such withdrawal will not have any
effect upon your eligibility to participate in any future offering under the
SPP or to participate in any similar plan we may adopt. See the section in this Explanatory Guide
entitled
How the SPP Works
Buying Shares
Changing Your Contribution Election.
What happens in the event
of my death, if I cease to qualify as an Eligible Individual, or if I otherwise
become ineligible to participate in the SPP?
In the event of your
death, if you cease to qualify as an Eligible Individual, or if you do not
continue to be eligible to participate for any other reason, your participation
in the SPP will terminate. All paycheck
deductions made on your behalf that have not been previously used to purchase
shares of Common Stock will be returned to you (without interest) as soon as
administratively feasible after your eligibility to participate
5
in the SPP ceases or, in
the event of your death, to your estate as soon as practicable after the
Committee receives written notice thereof.
What are the advantages of the SPP?
There are many benefits to the SPP.
The SPP is convenient and encourages investment in our Common Stock by
individuals that we believe are instrumental to our success. You decide how
much you would like to invest based on the SPP guidelines and applicable
securities and tax laws, rules and regulations. Your after-tax deduction
is taken from your paycheck automatically and is used to purchase shares of
ESMC Common Stock at a discount to its fair market value at the time of
purchase.
You save regularly, because you pay yourself
first, through such paycheck deductions and
your SPP purchases are
made without payment by you of any fees. Your participation is entirely
voluntary and you can decide to stop participating at any time.
You may sell all or part of your Common Stock quickly
and conveniently through Computershare.
Your decision to participate in the SPP should be based on your individual
financial circumstances. As an owner of
EMSC Common Stock, you will benefit from any growth in the value of EMSC Common
Stock. However, we cannot make any assurances as to the market performance of
the Common Stock, and the market price of your Common Stock at any time may be
less than your purchase price.
Will my paycheck deductions earn interest while being accumulated to
purchase shares?
No, your paycheck deductions will not earn interest.
When my paycheck deductions are used to purchase Common Stock, will I
receive a stock certificate?
You will not receive a stock certificate for your shares purchased through
the SPP. Shares that you purchase
through the SPP will be deposited into an account in your name that is
maintained by Computershare.
Will I receive dividends on my Common Stock?
At this time, we do not pay dividends on our Common Stock.
After I purchase Common Stock through the SPP, what do I do with those
shares?
Once you have purchased Common Stock through the SPP, the shares belong to
you. You may hold your shares as a long-term investment or sell or otherwise
dispose of them at any time. See the section in this Explanatory Guide entitled
How the SPP Works
Selling Shares.
How do I pay the fees associated with selling my stock?
Fees associated with selling your Common Stock through Computershare will
be deducted automatically from your sale proceeds. See the section in this Explanatory Guide
entitled
How the SPP Works
Selling Shares Commissions and
Fees.
Are my rights to purchase Common Stock under the SPP assignable?
No, purchase rights granted under the SPP are not assignable or
transferable.
Can EMSC terminate or
amend an offering or the SPP?
Generally,
the Committee may from time to time alter, amend, suspend or terminate the SPP
or alter or amend any and all rights to purchase Common Stock under the SPP or
terminate any offering (or future offerings) under the SPP, unless stockholder
approval is expressly required under the SPP or the applicable laws, rules and
regulations of tax and other regulatory authorities. We will give all participants notice of any
action that affects an on-going offering.
Upon
termination of the SPP for any reason, any unused paycheck deductions will be
returned to you promptly.
How many shares of Common Stock are available under the SPP?
The aggregate number of shares that can be offered to
participants under the SPP is 500,000 shares of our class A common stock
(subject to adjustment in accordance with the SPP in connection with stock
6
splits, stock dividends, stock combinations and other
similar events), though the Committee may limit the number of shares that can
be purchased in any one offering period.
Shares issued under the SPP will be authorized but unissued shares of
Common Stock, or shares that EMSC has bought on the open market at prevailing
market prices or otherwise.
Why do I need to complete an IRS Form W-9?
To
prevent backup withholding with respect to any shares of Common Stock sold
under the SPP, each SPP participant is required to complete an IRS Form W-9,
which certifies that such participants social security number is correct and
that such participant is exempt from backup withholding.
See the section in this
Explanatory Guide entitled
How the SPP Works
U.S. Citizen
(or Resident Alien) Tax
Certification
.
Who provides services for the SPP?
Computershare Trust Company will provide services for the
SPP.
Who is Computershare?
Computershare is a global
leader in transfer agency, employee equity plans, proxy solicitation and other
specialized financial, governance and communication services. Computershare has approximately 10,000
employees across the world and serves 14,000 corporations and 100 million
stockholders and employee accounts in 17 countries across five continents. For
more information, visit www.computershare.com.
7
U.S. Federal Income
Tax Consequences
Your SPP
is
not
intended to qualify as an employee stock purchase plan within
the meaning of the Code. The following
is a summary of the U.S. federal income tax consequences of your participation
in the SPP based on the law in effect at the time this Explanatory Guide was
published. It is only a summary,
however, and EMSC and Computershare do not assume any responsibility in
connection with the income tax liability of any individual who participates in
the SPP (or his or her beneficiary). We do not attempt to deal with any of the
special provisions that could apply to your particular situation. In addition, income taxation under state,
local and foreign tax law may differ substantially from the U.S. federal income
tax consequences we describe here.
Accordingly, you are urged to consult your own tax
advisor to determine the specific U.S. federal, state, local and foreign tax
consequences applicable to you.
Paying
Taxes on Your Paycheck Deductions
You
must pay income taxes on the amount that is withheld from your paychecks. These amounts are withheld
after
taxes
are deducted from your gross pay.
Paying Taxes When You Buy Shares;
Tax Basis
When
shares of Common Stock are purchased for your account under the SPP, you will
recognize ordinary compensation income, subject to withholding, in an amount
equal to the excess of the fair market value of the shares on the date you
purchase the shares of Common Stock
(
i.e.
, at the end of the offering period)
over the price you paid for the shares. The fair market value of the shares on the
date that you purchase them will be your tax basis.
Paying Taxes When You Sell Shares
When
you dispose of shares of Common Stock acquired under the SPP, the amount you
receive for such shares in excess of your tax basis generally will be treated
as long-term or short-term capital gain, depending on the holding period of the
shares.
IRS
CIRCULAR 230 DISCLOSURE:
TO ENSURE COMPLIANCE WITH TREASURY DEPARTMENT
REGULATIONS, YOU ARE HEREBY NOTIFIED THAT:
(A) ANY DISCUSSION OF U.S. FEDERAL TAX ISSUES IN THIS EXPLANATORY
GUIDE IS NOT INTENDED OR WRITTEN TO BE USED, AND CANNOT BE USED, BY YOU FOR THE
PURPOSE OF AVOIDING PENALTIES THAT MAY BE IMPOSED ON YOU UNDER THE CODE; (B) SUCH
DISCUSSION IS WRITTEN TO SUPPORT THE PROMOTION OR MARKETING OF THE TRANSACTIONS
OR MATTERS ADDRESSED IN THIS EXPLANATORY GUIDE; AND (C) YOU SHOULD SEEK
ADVICE BASED ON YOUR OWN PARTICULAR CIRCUMSTANCES FROM AN INDEPENDENT TAX
ADVISOR.
8
HOW THE SPP
WORKS
Buying Share
s
If you meet the eligibility requirements, you may
enroll in the SPP during the Enrollment Period specified by the Committee. If you do not enroll during the specified
period, you will not be able to enroll until the next offering period, if the
Committee chooses to conduct another offering.
Each offering period will be determined by the Committee
.
How You
Enroll
You may enroll in the SPP during your Enrollment
Period through Computershares Employee Plan Member website or by phone using
Computershares Interactive Voice Response (IVR) System at 1-866-320-6772. To
enroll using the Employee Plan Member website, follow these instructions:
Go to
www-us.computershare.com/employee and
enter your
User ID and PIN; and then click Login. (See section in this
Explanatory Guide entitled
Accessing Your Account Online.)
Using
the automated enrollment system, from the Employees Plan Members page, click
on Portfolio Summary to enroll.
To
enroll in your plan, you must first read and agree to the Terms and Conditions.
Then click on Next.
Simply
click on Enroll on the next page. Select and enter the percentage you would
like deducted from each paycheck (remember you may only select whole
percentages from 1% -15%), then click on Next.
Enter
your PIN and click Submit to confirm your deduction. You will receive a
confirmation page.
Please print your online
confirmation statement. You will
not
receive a written acknowledgement
notice.
When Your Participation in the
SPP Ends and Withdrawing From the SPP
Unless otherwise provided by the Committee prior to
any offering, you may withdraw all, but not less than all, of the contributions
deposited in your SPP account at any time prior to the 14-day period preceding
the end of an offering period. If you
withdraw from an offering, any paycheck deductions deposited in your SPP
account during that offering period will be returned to you, without interest,
as soon as administratively feasible but in any event within 60 days of
your notice of withdrawal. You may not
re-enter an offering once you have withdrawn from such offering.
If you cease to be an
Eligible Individual for any reason (
e.g.
,
termination of service or leave of absence), your participation in the SPP will
end automatically and your purchase rights will terminate automatically. You may also voluntarily terminate your
participation in the SPP.
Upon termination of your participation in
the SPP, a
ll amounts deducted from your compensation and not previously used to
purchase shares will be returned to you (without interest).
In the event of your
death while an active participant in the SPP, all amounts deducted from your
compensation and not previously used to purchase shares will be refunded to
your estate
(without interest)
as soon as administratively feasible.
If you have shares in your
SPP account when your employment ends, you can do any of the following with
your shares:
·
Leave the
shares in your SPP account;
·
Have
Computershare sell the shares for you; or
·
Transfer the
shares to a brokerage account.
Participant
Contributions
Once
enrolled in the SPP, you may authorize EMSC to make deductions from your
eligible compensation during the offering period
equal to a whole percentage between 1% and 15%. Your eligible compensation consists only of
your base compensation. Your deductions are made on an
after-tax
basis
and will be held in a non-interest bearing SPP account until purchases of
shares are made under the SPP.
Purchase of Shares
At the end of each offering period, your paycheck
deductions are used to buy whole shares of EMSC Common Stock at the discounted
purchase price, subject to the terms of the SPP. These shares will be deposited
into your SPP account. Only whole shares will be sold under the SPP. At the end
of an offering period, any amount of your paycheck deductions that is not used
to purchase Common Stock will be returned to your SPP account and used to
purchase Common Stock in the next offering period.
For example, you might choose to set up your paycheck
deductions so that at the end of the deduction period they total $100. If the
discounted purchase price is $21 per share, your account will be credited with
four shares, for a total purchase price of $84, since you may purchase only
whole shares under the SPP. Your
contributions remaining after purchase of a whole number of shares in
9
an offering, or $16 in this example, will remain in
your SPP account and carry over to the next offering period.
The number of shares of
Common Stock you are permitted to purchase in any offering period may be
limited by applicable tax or securities laws or by the terms established by the
Committee for that offering. P
rior to each offering period, the Committee will establish the offering
size and the maximum number of shares that any participant may purchase in an
offering. The Committee also may limit
the number of shares that any participant may purchase in an offering if we are
oversubscribed for such offering.
You may not elect to
purchase
Common Stock in any offering under
the SPP if this would result in purchases by you,
in any single calendar
year, of shares of Common Stock which, together with all other Common Stock you
may be entitled to purchase in that year pursuant to the SPP and any other employee
stock purchase plan (as defined in Section 423 of the Code) of EMSC,
having an aggregate fair market value (measured as of the commencement of the
relevant offering period) of more than $25,000.
In addition, the Committee, in its sole discretion, may limit the number
of shares that each participant may purchase in any offering period.
Purchase Price
The purchase price to you for each share of Common
Stock in any offering will be at a discount to its Fair Market Value and will
be determined by the Committee before the beginning of the offering
period. For this purpose, the Fair
Market Value of a share of Common Stock on any day means, generally, the
closing price of the Common Stock on that date on the New York Stock Exchange.
Changing Your Contribution
Election
During the Enrollment
Period established for an offering period, you will have an opportunity to
enter or leave the SPP or change your current rate of paycheck deductions by:
·
Accessing
the Employee Plan Members website at www-us.computershare.com/employee,
or
·
Calling Computershares
Interactive
Voice Response (IVR) system toll-free at 1-866-320-6772.
10
Selling Shares
You may sell the shares
you have purchased through the SPP at any time after they are deposited in your
SPP account at Computershare,
subject to certain trading
restrictions we describe above under
the section entitled
SPP Highlights and Key
Features Insider Trading.
Be
aware that the price on the date you sell may differ from the price on the date
you purchased the Common Stock. This may result in your incurring a loss or
gain on the shares you purchased under the SPP.
In addition, you will be responsible for fees and commissions when you
sell shares you purchased under the SPP.
Also, depending
on how long you hold your stock before selling it, there may be different tax
implications. You should consult with a tax advisor before you sell your
shares.
How to Sell Your Shares
You
may access the online secure participant service for your SPP by logging on to
the Employee Plan Members website at www-us.computershare.com/employee and
following the instructions on your screen.
You
may also contact Computershare using their Interactive Voice Response (IVR)
system at 1-866-320-6772, follow the recorded prompts, and access the sell
menu.
How Your Shares Are Sold
Unless you specify which shares to sell, the shares
that were purchased first in your account will be sold first. Computershare
will sell all shares under the SPP on the open market as soon as possible after
you place the order to sell. You will receive payment for shares in cash based
on the actual price for your sale transaction, and you will receive a sale
confirmation from Computershare.
Sa
le transactions are executed in a real
time environment and are available in three types.
The following types of
orders are available when placing a sale transaction:
·
Market Order
This
order is
processed at the next available sale price as soon as market conditions allow.
·
Limit
Order Day
This
order allows you to specify a price minimum at which you want your sale to be
processed. If during the trading day, the stock price equals or exceeds the
minimum price you specified, your order will be executed the next available
trade as market conditions allow. If it does not reach or exceed the price you
indicate, your order will be canceled.
·
Limit Order 30 Day
This order also allows you to indicate a
minimum price at which you want your sale transaction to be placed. Your order
instructions will be effective for a maximum of 30 days and will be executed
when the stock price equals or exceeds the minimum price you specified as
market conditions allow. If the stock price does not meet or exceed the
specified price within the 30-day period, your order will be canceled.
For
added convenience, you can select specific share lots when selling. To aid in
your decision, you are able to view the cost at which your shares were
purchased and the length of time the shares have been held. If you are not
selling all shares of Common Stock in your account, your shares will be sold on
a first in, first out basis (your oldest shares will be sold first) unless you
request specific share lots.
You will be responsible
for all fees associated with sale orders
.
How You Receive Your Sale
Proceeds
You
may choose to receive your proceeds in check form mailed directly to you or as
a wire transfer to your bank account. There is an additional fee for wire
transfers.
11
All
checks will be mailed to the address on file for you at Computershare. To
request a wire transfer of your sale proceeds, you must call a Participant
Service Representative and give the appropriate instruction information.
Transferring Shares to a Broker or as a Gift
To
transfer shares out of your Computershare account, call a Participant Service
Representative. You will be responsible for any associated fees.
Stock Certificates
Instead
of issuing stock certificates, Computershare holds your stock in your account.
You can conveniently sell your shares and you will never be bothered with the
cost or inconvenience of having to replace any missing certificates.
Commissions and Fees
There
are no fees charged to you for purchases when your paycheck deductions are used
to purchase shares. You are responsible for fees relating to any sale of your
Common Stock, broker-to-broker transfers, wire transfer fees and duplicate
account statements. The fees listed below are as of the date of this
Explanatory Guide and are subject to change.
Service
|
Fee
(as of the date of this Explanatory Guide)
|
Sale Transaction Fee
|
Web/IVR Sales:
$0.03 per share
$24.95 minimum
transaction fee for Web/IVR Sales
Live Representative
Assisted Sales:
$0.06 per share
$39.95 minimum
transaction fee for Rep Sales
|
Handling Fee
|
$5.35
|
Foreign Currency Check
(outgoing)
|
$10.00
|
U.S. Dollar or Foreign
Currency Wire (outgoing)
|
$25.00
|
Stop Payment of Check
|
$25.00
|
Overnight Check
Delivery
|
$20.00
|
Broker Transfer
|
$30.00
|
Duplicate Statements
(excluding the two most recent)
|
$10.00
|
Account Statements
Each calendar quarter you
will receive a summary statement detailing the activity in your SPP account,
including any purchases and sales, the total number of shares held at the end
of the calendar quarter and the total value of your account. For your added convenience, the fourth quarter
statement will include a summary of the cost basis of any Common Stock you sold
during the year.
Tax Statements
In addition to your
quarterly summary statements, you will also receive a 1099B if you have sold
any shares. This statement contains important information about your gross
proceeds.
Keep all statements in a
safe place and handy. You will need the information to calculate your gain or
loss for income tax purposes should you sell your shares.
12
Accessing Your
Account
Online
You can easily access your SPP account through
Computershares Employee Plan Member website or the IVR system virtually 24
hours a day, seven days a week. When accessing your online account, you will be
able to view your account balance, review account history, access specific plan
information, and perform sale transactions.
Whether accessing your
account online or over the telephone, you will need your login ID and your
Personal Identification Number (PIN). The first time you access your account,
you will be required to select a new PIN. You may change your PIN at any time.
Step 1:
Connect
to the internet and go to www-us.computershare.com/employee
Step 2:
Enter
the code EMS and click on the arrow button to submit.
Step 3:
Select and enter your Login Type, along with
your User ID and Personal Identification Number (PIN), and click Login.
Note:
Please print your online confirmation
statement. You will not receive a written acknowledgement notice.
13
First Time
Logon Access
Terms and Conditions
The
first time you enter your login information you will be prompted to read and
agree to Computershares Terms and Conditions
.
Click on Next
to take you to the section called Terms and Conditions. Select Yes, and
click Next at the bottom of the agreement to continue.
PIN
Change
For
security purposes, upon accepting the Terms and Conditions, you will be asked
to change your PIN. You will be prompted to enter your new five-digit PIN twice
- once to change the PIN and the second time to confirm the update. Click Next
to continue.
Security
Questions
Once
your PIN has been updated, you will be asked to select and answer three
security questions. If you have lost or forgotten your PIN, you may change it
any time online by correctly answering your three chosen security questions.
The answers to these questions will be used to validate your identity as a
registered user of this site. To set up your security questions, you will need
to select three unique questions from the drop down menu and provide the
answers. Then click Next.
Accessing Your Account
By
Telephone
Step 1:
Call Computershare toll-free at 1-866-320-6772.
Step 2:
Enter your login ID followed by the #
key.
Step 3:
Enter
your PIN followed by the # key. If you are entering the IVR for the first
time, you will be prompted to change your PIN.
You will receive a
written acknowledgement notice in the mail. If you need assistance, you may
press 0 at any time to speak to a Participant Service Representative. Participant Service Representatives are
available to take your call Monday through Friday 8:00 a.m. to 7:00 p.m.
Eastern Time on any day the New York Stock Exchange is open.
14
U.S. Citizen
(or Resident Alien)
Tax Certification
To
prevent backup withholding with respect to any shares of Common Stock sold
under the SPP, each SPP participant is required to complete an IRS Form W-9,
which certifies that such participants social security number is correct and
that such participant is exempt from backup withholding.
·
We encourage you to complete your
certification through Computershares secure Employee Plan Member website.
·
Only those
participants that receive this message at the top of the page
, Our records
indicate that you do not have a
current W-9 on file for the holding with Computershare, need to complete this
request.
·
Note
:
You will receive this page
only
the first
time you log on. If you need to change your PIN or security questions, you
should select Personal Details
à
Security Details. If you
need to modify your tax information you should select Tax Information.
To
certify your account, go to the Computershare Employee Plan Member website and
follow the steps outlined below:
Step 1:
After you logon, click on
Tax Information.
Step 2:
Select your status and click
Next. Then you will be asked to certify your U.S. Taxpayer Identification
Number, backup withholding and U.S. person status. Click Next to continue.
Step 3:
Enter your PIN to affirm the
information is correct and click Submit. For your records, a confirmation
screen will appear after clicking Submit.
Note:
Your PIN
serves as a legally binding signature.
15
Long-Term
Incentive Plan
The
SPP was established as a stock purchase plan for Eligible
Individuals
pursuant to the
authority granted to the Committee under our 2007 Long-Term Incentive Plan, or
LTIP. Accordingly, the shares of Common
Stock to be purchased by Eligible
Individuals
under the SPP
will be issued pursuant to the LTIP.
The
LTIP is an equity incentive plan under which we can issue various types of
equity awards to our eligible employees and Eligible
Individuals
to provide
long-term incentives to those people responsible for our success and growth and
the success and growth of our subsidiaries, to associate more closely the
interests of such people with those of our stockholders, and to assist us, our
subsidiaries and the Professional Associations in recruiting, retaining, and
motivating a diverse and talented group of employees and Independent
Contractors on a competitive basis.
Although
the Committees authority to grant equity awards to Eligible
Individuals
under the LTIP
is limited to awards of shares of Common Stock, the Committee has broad
authority to determine the terms and conditions of such Common Stock awards,
including purchase price, restrictions on transferability and restrictions
based on duration of employment or service.
The
SPP and the Common Stock purchased in any offering under the SPP will be
subject to the terms of the LTIP. The
LTIP became effective on May 15, 2007 and no awards will be made under the
LTIP after May 15, 2017. The
Committee may terminate or amend the LTIP at any time in whole or in part, but
no such amendment or termination may adversely affect awards granted under the
LTIP prior to such termination or amendment, except to the extent necessary or
appropriate to comply with applicable law or stock exchange rules and
regulations. Unless EMSC stockholders
have first approved the amendment, no amendment may (a) increase the
number of authorized shares under the LTIP or the maximum individual award
limitation, (b) extend the maximum period during which awards may be granted
under the LTIP, (c) add to the types of awards that may be made under the
LTIP, (d) change the performance measures pursuant to which performance
shares are earned, (e) modify the requirements governing eligibility for
participation in the LTIP or (f) amend the LTIP in a manner that would
require stockholder approval pursuant to the LTIP, applicable law or the rules of
the New York Stock Exchange.
The
Committee has approved an amendment to the LTIP to add Independent Contractors
as eligible recipients of stock awards under the LTIP. Our board of directors will recommend that
our stockholders approve such LTIP amendment at our upcoming annual meeting of
stockholders.
If such LTIP amendment is not approved by our stockholders prior to the
end of any offering period under the SPP, then immediately prior to the end of
the offering period, we will terminate the offering solely with respect to
Independent Contractors, and any amounts in the SPP account of an Independent
Contractor as of such termination date will be returned to the Independent
Contractor without interest.
This
Explanatory Guide only provides details of the SPP, and does not contain the
complete details of the LTIP. In the
event of any discrepancy between what is written here and what is contained in
the LTIP, the LTIP will prevail.
You may obtain a copy of the
LTIP
by directing your request to our
executive
offices located at 6200 South Syracuse Way, Suite 200, Greenwood, Colorado
80111, telephone: 1-303-495-1200, Attention: Benefits Department.
16
Additional Information
This Explanatory Guide
does not contain all the information set forth in the Registration Statement on
Form S-3 that we have filed with the SEC under the Securities Act with
respect to the shares of Common Stock issuable under the SPP. You may inspect such Registration Statement,
including all of the exhibits thereto, in the EDGAR section of the SECs
website at
www.sec.gov
or call the SEC at 1-800-SEC-0330
for further information.
We will provide to any
recipient of this Explanatory Guide, upon a written or oral request, the
following:
·
a
copy of any and all of the information that has been or may be incorporated by
reference in the Registration Statement, other than exhibits to such documents;
and
·
a
copy of any other documents required to be delivered to participants under the
SPP pursuant to Rule 428(b) under the Securities Act, including our
most recent annual report to stockholders, proxy statement and other
communications generally distributed to our stockholders.
You may request such copies, without charge, by
contacting our Investor Relations department at:
Emergency Medical
Services Corporation
6200 South Syracuse Way, Suite 200
Greenwood, Colorado 80111
Attn: Investor Relations
1-303-495-1200
We will periodically
update information concerning EMSC by filing reports with the SEC pursuant to
the Exchange Act. These reports will
also be available to SPP participants without charge upon their written or oral
request as indicated above. See also the
section in this Explanatory Guide entitled Where You Can Find More Information.
We have not authorized
any person to give any information or make any representations in connection
with the SPP or the LTIP other than those contained herein. If given or made, the information or
representations must not be relied upon as having been authorized by us.
Neither
the SPP nor the LTIP is a qualified plan under Section 401(a) of the
Code
, or an employee stock purchase plan under Section 423
of the Code, or subject to the provisions of the Employee Retirement Income
Security Act of 1974.
17
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
ITEM
14. OTHER EXPENSES OF ISSUANCE AND
DISTRIBUTION
The
following table sets forth the costs and expenses payable by the registrant in
connection with the sale of the Securities being registered. All amounts are estimates except the
registration fee.
|
|
Amount
to be Paid
|
|
|
|
|
|
Registration fee
|
|
$
|
608
|
|
Legal fees and expenses*
|
|
50,000
|
|
Accounting fees and expenses*
|
|
50,000
|
|
|
|
|
|
Total
|
|
$
|
100,608
|
|
*
Estimated as of the date of filing.
ITEM
15. INDEMNIFICATION OF DIRECTORS AND
OFFICERS
Delaware
General Corporation Law
We are incorporated under
the laws of the State of Delaware. Under
Section 145 of the Delaware General Corporation Law, or the DGCL, a
corporation may indemnify its directors, officers, employees and agents and its
former directors, officers, employees and agents and those who serve, at the
corporations request, in such capacities with another enterprise, against
expenses, including attorneys fees, as well as judgments, fines and settlements
in non-derivative lawsuits, actually and reasonably incurred in connection with
the defense of any action, suit or proceeding in which they or any of them were
or are made parties or are threatened to be made parties by reason of their
serving or having served in such capacity.
The DGCL provides, however, that such person must have acted in good
faith and in a manner such person reasonably believed to be in, or not opposed
to, the best interests of the corporation and, in the case of a criminal action,
such person must have had no reasonable cause to believe his or her conduct was
unlawful. In addition, the DGCL does not
permit indemnification in an action or suit by or in the right of the
corporation, where such person has been adjudged liable to the corporation,
unless, and only to the extent that, a court determines that such person fairly
and reasonably is entitled to indemnity for costs the court deems proper in
light of liability adjudication. Indemnity
is mandatory to the extent a claim, issue or matter has been successfully
defended.
Certificates
of Incorporation and By-Laws
In accordance with Section 102(b)(7) of
the DGCL, our certificate of incorporation provides that none of our directors
shall be personally liable to us or our stockholders for monetary damages for
breach of fiduciary duty as a director, except that a director may be liable (a) for
any breach of the director
=
s duty of loyalty to us or our
stockholders, (b) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of the law, (c) under Section 174
of the DGCL or (d) for any transaction from which the director derived an
improper personal benefit. Any repeal or
modification of that provision shall not adversely affect any right or
protection, or any limitation of the liability of, any of our directors
existing at, or arising out of facts or incidents occurring prior to, the
effective date of such repeal or modification.
Both our certificate of incorporation and our by-laws provide for the
indemnification of our directors and officers to the fullest extent permitted
by the DGCL.
Indemnification
Agreements
Additionally, we have
entered into indemnification agreements with each of our directors, and
employment agreements containing indemnification provisions with certain of our
officers, which may, in certain cases, be
II-1
broader than the specific
indemnification provisions contained under current applicable law. The indemnification agreements may require
us, among other things, to indemnify such officers and directors against
certain liabilities that may arise by reason of their status or service as
directors, officers or employees of EMSC and to advance the expenses incurred
by such parties as a result of any threatened claims or proceedings brought
against them as to which they could be indemnified.
Liability
Insurance
Our directors and
officers are covered by insurance policies maintained by us against certain
liabilities for actions taken in their capacities as such, including
liabilities under the Securities Act of 1933, as amended, or the Securities
Act.
ITEM
16. EXHIBITS
Exhibit No.
|
|
Description of Exhibit
|
|
|
|
4.1
|
|
Emergency Medical
Services Corporation 2007 Long-Term Incentive Plan (incorporated by reference
to Annex B to EMSCs Form DEF 14A filed with the SEC on
April 16, 2007).
|
|
|
|
5.1
|
|
Opinion of Kaye Scholer
LLP
|
|
|
|
23.1
|
|
Consent of Kaye Scholer
LLP (included in such firms opinion filed as Exhibit 5.1)
|
|
|
|
23.2
|
|
Consent of
Ernst & Young LLP
|
|
|
|
23.3
|
|
Consent of
PricewaterhouseCoopers LLP
|
|
|
|
24.1
|
|
Power of Attorney
(included on
the signature page of this Registration Statement)
|
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 the registration
statement:
(i)
To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii)
To reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement; and
(iii)
to include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
registration statement;
Provided, however
that paragraphs (1)(i), (ii) and (iii) do not apply if the
information required to be included in a post-effective amendment by these
paragraphs is contained in reports filed with or furnished to the SEC 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, or is contained in a form of prospectus filed pursuant to Rule 424(b) that
is part of the registration statement.
II-2
(2)
That, for the purpose of determining any
liability under the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3)
To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby
undertakes that, for purposes of determining any liability under the Securities
Act:
(1)
each filing of the registrants 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
plans 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 herein, and the offering of such securities at that time
shall be deemed to be the bona fide offering thereof;
(2)
the information omitted from the form of
prospectus filed as part of the registration statement in reliance upon Rule 430A
and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of
the registration statement as of the time it was declared effective; and
(3)
each post effective
amendment that contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the registrant pursuant to the provisions
described in Item 15, 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 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 of whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
(d) The
undersigned registrant hereby undertakes, for the purpose of determining
liability under the Securities Act to any purchaser in the initial distribution
of the securities, t
hat in a primary offering of securities of the
undersigned registrant pursuant to this registration statement, regardless of
the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(1)
Any preliminary prospectus or prospectus
of the undersigned registrant relating to the offering required to be filed
pursuant to Rule 424;
(2)
Any free writing prospectus relating to
the offering prepared by or on behalf of the undersigned registrant or used or
referred to by the undersigned registrant;
(3)
The portion of any other free writing
prospectus relating to the offering containing material information about the
undersigned registrant or its securities provided by or on behalf of the
undersigned registrant; and
II-3
(4)
Any other
communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act,
the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized,
in the City of Greenwood Village, State of
Colorado, on
January 30,
2008.
|
EMERGENCY
MEDICAL SERVICES CORPORATION
|
|
|
|
|
By:
|
/s/
William A. Sanger
|
|
|
William A. Sanger
|
|
|
Chairman, President and
Chief Executive Officer
|
POWER
OF ATTORNEY
We the
undersigned directors and officers of Emergency Medical Services Corporation do
hereby constitute and appoint William A. Sanger, Randel G. Owen and Todd G.
Zimmerman, or either of them, our true and lawful attorneys and agents, to do
any and all such acts and things in our name and on our behalf in our
capacities as directors and officers and to execute any and all instruments for
us and in our names in the capacities indicated below, which said attorneys and
agents, or either of them, may deem necessary or advisable to enable said
corporation to comply with the Securities Act, and any rules, regulations and
requirements of the Securities and Exchange Commission, in connection with the
registration statement, including specifically, but without limitation, power
and authority to sign for us or in any of our names and in the capacities
indicated below any and all amendments (including post effective amendments) to
this registration statement, or any related registration statement that is to
be effective upon filing pursuant to Rule 462(b) under the Securities
Act; and we do hereby ratify and confirm all that the said attorneys and
agents, or either of them, shall do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act, this registration statement has been
signed by the following persons in the capacities and on the dates indicated.
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ William A. Sanger
|
|
Chairman,
President, Chief Executive
|
|
January 30, 2008
|
William A.
Sanger
|
|
Officer and
Director (Principal Executive Officer)
|
|
|
|
|
|
|
|
/s/ Randel G. Owen
|
|
Chief Financial
Officer (Principal
|
|
January 30, 2008
|
Randel G. Owen
|
|
Financial and
Accounting Officer)
|
|
|
|
|
|
|
|
/s/ Robert M. Le Blanc
|
|
Director
|
|
January 30, 2008
|
Robert M. Le Blanc
|
|
|
|
|
|
|
|
|
|
/s/ Steven B. Epstein
|
|
Director
|
|
January 30, 2008
|
Steven B.
Epstein
|
|
|
|
|
II-5
/s/ James T. Kelly
|
|
Director
|
|
January 30, 2008
|
James T. Kelly
|
|
|
|
|
|
|
|
|
|
/s/ Michael L. Smith
|
|
Director
|
|
January 30, 2008
|
Michael L. Smith
|
|
|
|
|
|
|
|
|
|
/s/ Paul B. Iannini, M.D.
|
|
Director
|
|
January 30, 2008
|
Paul B. Iannini, M.D.
|
|
|
|
|
II-6
EXHIBIT
INDEX
Exhibit No.
|
|
Description of Exhibit
|
|
|
|
4.1
|
|
Emergency Medical
Services Corporation 2007 Long-Term Incentive Plan (incorporated by reference
to Annex B to EMSCs Form DEF 14A filed with the SEC on
April 16, 2007)
|
|
|
|
5.1
|
|
Opinion of Kaye Scholer
LLP
|
|
|
|
23.1
|
|
Consent of Kaye Scholer
LLP (included in such firms opinion filed as Exhibit 5.1)
|
|
|
|
23.2
|
|
Consent of
Ernst & Young LLP
|
|
|
|
23.3
|
|
Consent of
PricewaterhouseCoopers LLP
|
|
|
|
24.1
|
|
Power of Attorney
(included on
the signature page of this Registration Statement)
|
II-7
Grafico Azioni Emergency medical (NYSE:EMS)
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Grafico Azioni Emergency medical (NYSE:EMS)
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