As filed with the Securities and Exchange Commission on March 20, 1998
Registration No. 333-__________
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
UNITED PAYORS & UNITED PROVIDERS, INC.
(exact name of registrant as specified in its certificate of incorporation)
DELAWARE
(state or other jurisdiction of
incorporation or organization)
6411
(Primary Standard
Classification Code Number)
51-0374698
(IRS Employer Identification No.)
2275 Research Boulevard, 6th Floor, Rockville, Maryland 20850
(301) 548-1000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
UNITED PAYORS & UNITED PROVIDERS, INC.
1996 STOCK OPTION PLAN
(Full Title of the Plan)
Copies to:
Edward S. Civera Thomas J. Haggerty, Esquire
President and Chief Operating Officer Muldoon, Murphy & Faucette
United Payors & United Providers, Inc. 5101 Wisconsin Avenue, N.W.
2275 Research Boulevard, 6th Floor Washington, DC 20016
Rockville, Maryland 20850 (202) 362-0840
(301) 548-1000
-------------------------------------------------------------------------
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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, check the following box. / X /
================================================================
Title of each Class of Amount to be Proposed Purchase
Securities to be Registered Registered(1) Price Per Share(2)
--------------------------- ------------- ------------------
Common Stock 1,550,000 $15.84
$.01 Par Value Shares (3)
================================================================
Estimated Aggregate Registration
Offering Price Fee
------------------- ------------
$24,552,000 $7,440.00
=====================================
(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
the United Payors & United Providers, Inc. 1996 Stock Option Plan (the
"Plan") as the result of a stock split, stock dividend or similar
adjustment of the outstanding Common Stock of United Payors & United
Providers, Inc. pursuant to 17 C.F.R. Section 230.416(a).
(2) Weighted average price determined by the average exercise price of $11.85
per share at which options for 1,200,000 shares under the Plan have been
granted to date and by $29.50, the market value of the Common Stock on
March 13, 1998 as determined by the average of the high and low prices
listed on the Nasdaq Stock Market as reported in the Wall Street Journal,
for 350,000 shares for which options have not yet been granted under the
Plan.
(3) Represents the total number of shares currently reserved or available for
issuance pursuant to the Plan.
This Registration Statement shall become effective immediately upon filing in
accordance with Section 8(a) of the Securities Act of 1933, as amended, (the
"Securities Act") and 17 C.F.R. Section 230.462.
Number of Pages 12
Exhibit Index begins on Page 9
1
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEMS 1 & 2. The documents containing the information for the United Payors &
United Providers, Inc. 1996 Stock Option Plan (the "Plan") required by Part I of
the Registration Statement will be sent or given to the participants in the Plan
as specified by Rule 428(b)(1). Such documents are not filed with the Securities
and Exchange Commission (the "SEC") either as a part of this Registration
Statement or as a prospectus or prospectus supplement pursuant to Rule 424 in
reliance on Rule 428.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed or to be filed with the SEC are incorporated
by reference in this Registration Statement:
(a) United Payors & United Providers, Inc. (the "Company" or the
"Registrant") Annual Report on Form 10-K for the fiscal year ended
December 31, 1997, which includes the consolidated balance sheets
of the Company as of December 31, 1997 and 1996, and the related
consolidated statements of operations, stockholders' equity and
cash flows for the years ended December 31, 1997 and 1996, and the
period from January 3, 1995 (date of incorporation) to December
31, 1995, together with the related notes and the report of
Coopers & Lybrand L.L.P., public accountants, filed with the SEC
on March 17, 1998 (File No. 0-20905).
(b) The description of Registrant's Common Stock contained in
Registrant's Form 8-A (File No. 0-20905), as filed with the SEC,
pursuant to Section 12(g) of the Securities Exchange Act of 1934
(the "Exchange Act") and Rule 12b-15 promulgated thereunder, on
June 20, 1996.
(c) All documents filed by the Registrant pursuant to Section 13(a)
and (c), 14 or 15(d) of the Exchange Act after the date hereof and
prior to the filing of a post-effective amendment which
deregisters all securities then remaining unsold.
Any statement contained in this Registration Statement, or in a
document incorporated or deemed to be incorporated by reference herein,
shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein, or
in any other subsequently filed document which also is incorporated or
deemed to be incorporated by reference herein, modifies or supersedes such
statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
The common stock to be offered pursuant to the Plan has been registered
pursuant to Section 12 of the Exchange Act. Accordingly, a description of the
common stock is not required herein.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock has been passed upon for the Company by
Muldoon, Murphy & Faucette, Washington, D.C., special counsel to the Company.
Douglas P. Faucette, a partner in Muldoon, Murphy & Faucette, beneficially owns
63,600 shares of the Company's Common Stock.
2
<PAGE>
The consolidated balance sheets of the Company and subsidiary as of
December 31, 1997 and 1996, and the related consolidated statements of
operations, stockholders' equity and cash flows for the years ended December 31,
1997 and 1996, and for the period from January 3, 1995 (date of incorporation)
to December 31, 1995, together with the related notes and the report of Coopers
& Lybrand L.L.P., public accountants, incorporated by reference in this
Registration Statement, have been incorporated herein in reliance upon the
authority of said firm as experts in accounting and auditing.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Directors and officers of the Registrant are indemnified and held harmless
against liability to the fullest extent permissible by the general corporation
law of Delaware as it currently exists or as it may be amended provided any such
amendment provides broader indemnification provisions than currently exists.
This indemnification applies to the Board of Directors who administers the Plan.
In accordance with the General Corporation Law of the State of Delaware
(being Chapter 1 of Title 8 of the Delaware Code), Articles 10 and 11 of the
Registrant's Certificate of Incorporation provide as follows:
TENTH:
A. Each person who was or is made a party or is threatened to be made a
party to or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she is or was a Director or
an Officer of the Corporation or is or was serving at the request of the
Corporation as a Director, Officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan (hereinafter an
"indemnitee"), whether the basis of such proceeding is alleged action in an
official capacity as a Director, Officer, employee or agent or in any other
capacity while serving as a Director, Officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to
the extent that such amendment permits the Corporation to provide broader
indemnification rights than such law permitted the Corporation to provide
prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid in settlement) reasonably incurred or suffered
by such indemnitee in connection therewith; provided, however, that, except
as provided in Section C hereof with respect to proceedings to enforce
rights to indemnification, the Corporation shall indemnify any such
indemnitee in connection with a proceeding (or part thereof) initiated by
such indemnitee only if such proceeding (or part thereof) was authorized by
the Board of Directors of the Corporation.
B. The right to indemnification conferred in Section A of this Article
TENTH shall include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final
disposition (hereinafter an "advancement of expenses"); provided, however,
that, if the Delaware General Corporation Law requires, an advancement of
expenses incurred by an indemnitee in his or her capacity as a Director or
Officer (and not in any other capacity in which service was or is rendered
by such indemnitee, including, without limitation, services to an employee
benefit plan) shall be made only upon delivery to the Corporation of an
undertaking (hereinafter an "undertaking"), by or on behalf of such
indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right
to appeal (hereinafter a "final adjudication") that such indemnitee is not
entitled to be indemnified for such expenses under this Section or
otherwise. The rights to indemnification and to the advancement of expenses
conferred in Sections A and B of this Article TENTH shall be contract
rights and such rights shall continue as to an indemnitee who has ceased to
be a Director, Officer, employee or agent and shall inure to the benefit of
the indemnitee's heirs, executors and administrators.
C. If a claim under Section A or B of this Article TENTH is not paid in
full by the Corporation within sixty days after a written claim has been
received by the Corporation, except in the case of a claim for an
advancement of expenses, in which case the applicable period shall be
twenty days, the indemnitee may at any
3
<PAGE>
time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim. If successful in whole or in part in any such suit, or
in a suit brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the indemnitee shall be entitled
to be paid also the expenses of prosecuting or defending such suit. In: (1)
any suit brought by the indemnitee to enforce a right to indemnification
hereunder (but not in a suit brought by the indemnitee to enforce a right
to an advancement of expenses) it shall be a defense that; and (2) in any
suit by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking the Corporation shall be entitled to recover
such expenses upon a final adjudication that, the indemnitee has not met
any applicable standard for indemnification set forth in the Delaware
General Corporation Law. Neither the failure of the Corporation (including
its Board of Directors, independent legal counsel, or its stockholders) to
have made a determination prior to the commencement of such suit that
indemnification of the indemnitee is proper in the circumstances because
the indemnitee has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel,
or its stockholders) that the indemnitee has not met such applicable
standard of conduct, shall create a presumption that the indemnitee has not
met the applicable standard of conduct or, in the case of such a suit
brought by the indemnitee, be a defense to such suit. In any suit brought
by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden
of proving that the indemnitee is not entitled to be indemnified, or to
such advancement of expenses, under this Article TENTH or otherwise shall
be on the Corporation.
D. The rights to indemnification and to the advancement of expenses
conferred in this Article TENTH shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, the
Corporation's Certificate of Incorporation, Bylaws, agreement, vote of
stockholders or Disinterested Directors or otherwise.
E. The Corporation may maintain insurance, at its expense, to protect
itself and any Director, Officer, employee or agent of the Corporation or
subsidiary or Affiliate or another corporation, partnership, joint venture,
trust or other enterprise against any expense, liability or loss, whether
or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the Delaware General
Corporation Law.
F. The Corporation may, to the extent authorized from time to time by
the Board of Directors, grant rights to indemnification and to the
advancement of expenses to any employee or agent of the Corporation to the
fullest extent of the provisions of this Article TENTH with respect to the
indemnification and advancement of expenses of Directors and Officers of
the Corporation.
ELEVENTH:
A. Director of this Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except for liability: (1) for any breach of
the Director's duty of loyalty to the Corporation or its stockholders; (2)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (3) under Section 174 of the
Delaware General Corporation Law; or (4) for any transaction from which the
Director derived an improper personal benefit. If the Delaware General
Corporation Law is amended to authorize corporate action further
eliminating or limiting the personal liability of Directors, then the
liability of a Director of the Corporation shall be eliminated or limited
to the fullest extent permitted by the Delaware General Corporation Law, as
so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a Director of the Corporation existing at the time of such
repeal or modification.
The Registrant is also permitted to maintain directors' and officers'
liability insurance covering its directors and officers and has obtained a
directors' and officers' liability and corporation reimbursement policy which
(subject to
4
<PAGE>
certain limits and deductibles) (i) insures officers and directors of the
Registrant against loss arising from certain claims made against them by reason
of their being such directors or officers, and (ii) insures the Registrant
against loss which it may be required or permitted to pay as indemnification due
its directors or officers for certain claims.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Securities Act") may be permitted to directors, officers or
persons controlling the Registrant, the Registrant has been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. LIST OF EXHIBITS
The following exhibits are filed with or incorporated by reference into
this Registration Statement on Form S-8 (numbering corresponds generally to
Exhibit Table in Item 601 of Regulation S-K):
Exhibit No. Exhibit
----------- -------
4 Stock Certificate of United Payors & United Providers,
Inc. (1)
5 Opinion of Muldoon, Murphy & Faucette, re: Legality
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Muldoon, Murphy & Faucette
24 Power of Attorney is located on the signature pages.
- ---------
(1) Incorporated herein by reference from the Exhibit of the same number
contained in the Registration Statement on Form S-1 (SEC No. 33-3814), as
amended, filed with the SEC on April 19, 1996.
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which it offers or sells
securities, a post-effective amendment to this Registration
Statement to:
(i) Include any Prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) 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 in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
Registration Statement; and
(iii) 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;
5
<PAGE>
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference into this
Registration Statement.
(2) That, for the purpose of determining 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 the 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 registered that remain unsold
at the termination of the Offering.
(b) The undersigned hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the Registrant's or the Plan's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act that is incorporated by
reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to trustees, 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 trustee, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
trustee, 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.
6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, United Payors & United
Providers, Inc. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Rockville, State of Maryland, on March 18, 1998.
UNITED PAYORS & UNITED PROVIDERS, INC.
By: /s/ Thomas L. Blair
---------------------------------------
Thomas L. Blair
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below constitutes and appoints Thomas L. Blair and Edward S. Civera, and each of
them as the true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities to sign any or all amendments to the Form S-8
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the U.S. Securities and Exchange
Commission, respectively, granting unto said attorney-in-fact and agent full
power and authority to do and perform each and every act and things 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.
Name Title Date
---- ----- ----
/s/ Thomas L. Blair
- ------------------- Chairman of the Board and March 18, 1998
Thomas L. Blair Chief Executive Officer
(Principal Executive Officer)
/s/ Edward S. Civera
- -------------------- President, Chief Operating Officer March 18, 1998
Edward S. Civera and Director
/s/ S. Joseph Bruno
- -------------------- Vice President and March 18, 1998
S. Joseph Bruno Chief Financial Officer
(Principal Financial Officer)
/s/ Eduardo V. Feito
- -------------------- Chief Accounting Officer March 18, 1998
Eduardo V. Feito
/s/ Bette B. Anderson
- --------------------- Director March 18, 1998
Bette B. Anderson
/s/ William E. Brock
- --------------------- Director March 18, 1998
William E. Brock
7
<PAGE>
/s/ David J. Drury
- --------------------- Director March 18, 1998
David J. Drury
/s/ Thomas J. Graf
- --------------------- Director March 18, 1998
Thomas J. Graf
/s/ Frederick H. Graefe
- ----------------------- Director March 18, 1998
Frederick H. Graefe
/s/ Julia Lawler
- --------------------- Director March 18, 1998
Julia Lawler
/s/ Kenneth J. Linde
- --------------------- Director March 18, 1998
Kenneth J. Linde
8
<PAGE>
EXHIBIT INDEX
Sequentially
Numbered
Page
Exhibit Description Method of Filing Location
No.
- ------- ------------------- -------------------------------------- --------
4 Stock Certificate Incorporated herein by reference from --
of United Payors the Exhibits to the Registrant's
& United Providers, Registration Statement on Form S-1
Inc. (333-3814), as amended, filed with the
SEC on April 19, 1996.
5 Opinion of Muldoon, Filed herewith. 10-11
Murphy & Faucette,
re: Legality
23.1 Consent of Coopers Filed herewith. 12
& Lybrand L.L.P.
23.2 Consent of Muldoon, Included under Exhibit 5. 10-11
Murphy & Faucette
24 Power of Attorney Located on the signature page. 7
9
<PAGE>
EXHIBIT 5
[LETTERHEAD OF MULDOON, MURPHY & FAUCETTE]
March 16, 1998
Board of Directors
United Payors & United Providers, Inc.
2275 Research Boulevard
Sixth Floor
Rockville, MD 20850
Re: United Payors & United Providers, Inc. 1996 Stock Option Plan
Ladies and Gentlemen:
We have been requested by United Payors & United Providers, Inc. (the
"Company") to issue a legal opinion in connection with the registration under
the Securities Act of 1933 on Form S-8 of 1,550,000 shares of the Company's
Common Stock, $.01 par value (the "Shares"), to be issued under the United
Payors & United Providers, Inc. 1996 Stock Option Plan (the "Plan").
We have made such legal and factual examinations and inquiries as we
deemed advisable for the purpose of rendering this opinion. In our examination,
we have assumed and have not verified (i) the genuineness of all signatures,
(ii) the authenticity of all documents submitted to use as originals, (iii) the
conformity with the originals of all documents supplied to us as copies, and
(iv) the accuracy and completeness of all corporate records and documents and of
all certificates and statements of fact, in each case given or made available to
us by the Company.
Based on the foregoing and limited in all respects to Delaware law, it
is our opinion that the Shares reserved under the Plan have been duly authorized
and upon payment for and issuance of the Shares in the manner described in the
Plan, will be legally issued, fully paid and nonassessable.
The following provisions of the Certificate of Incorporation may not be
given effect by a court applying Delaware law, but in our opinion the failure to
give effect to such provisions will not affect the duly authorized, validly
issued, fully paid and nonassessable status of the Shares:
10
<PAGE>
Board of Directors
March 16, 1998
Page 2
(a) The provisions of Subsection C.7 of Article EIGHTH authorizing the
Board to determine the Fair Market Value of property offered or paid for the
Company's stock by an Interested Stockholder, to the extent, if any, that a
court applying Delaware law were to impose equitable limitations upon such
authority; and
(b) Article NINTH of the Certificate of Incorporation, which authorizes
the Board to consider the effect of any offer to acquire the Company on
constituencies other than stockholders in evaluating any such offer.
We hereby consent to the filing of this opinion as an exhibit to the
Company's Registration Statement on Form S-8, and we consent to the use of our
name under the heading "Interests of Named Experts and Counsel."
Very truly yours,
MULDOON, MURPHY & FAUCETTE
11
<PAGE>
EXHIBIT 23.1
CONSENT OF
PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of United Payors & United Providers, Inc. regarding the United Payors &
United Providers, Inc. 1996 Stock Option Plan of our report dated February 6,
1998, except for Note 17, as to which the date is March 2, 1998, on our audits
of the consolidated balance sheets of United Payors & United Providers, Inc. as
of December 31, 1997 and 1996, and the related consolidated statements of
operations, stockholders' equity and cash flows for the years ended December 31,
1997 and 1996, and for the period from January 3, 1995 (date of incorporation)
to December 31, 1995, which report is included in the Annual Report on Form 10-K
of United Payors & United Providers, Inc. for the year ended December 31, 1997.
We also consent to the reference to our Firm under the caption "Interests of
Named Experts and Counsel."
COOPERS & LYBRAND L.L.P.
Washington, D.C.
March 17, 1998
12
