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As filed with the Securities and Exchange
Commission on August 17, 2000 Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PACIFICARE HEALTH SYSTEMS, INC.
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(Exact name of issuer as specified in its charter)
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Delaware 95-4591529
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<S> <C>
(State or other jurisdiction of (I.R.S Employer Identification Number)
incorporation or organization)
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3120 Lake Center Drive, Santa Ana, California 92704
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(Address of principal executive offices) (Zip Code)
2000 Employee Plan
2000 Non-Employee Directors Plan
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(Full titles of the Plans)
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Joseph S. Konowiecki, Esq. Barbara Borden, Esq./Frederick Muto, Esq.
General Counsel and Secretary Cooley Godward LLP
PacifiCare Health Systems, Inc. 4365 Executive Drive
3120 Lake Center Drive Suite 1100
Santa Ana, California 92704 San Diego, California 92121
(714) 825-5200 (858) 550-6000
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(Name, address and telephone number,
including area code, of agents for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities to Amount to be Offering Price Aggregate Amount of
be Registered Registered Per Share(1) Offering Price(1) Registration Fee
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Common Stock, par 1,500,000 $ 54.0625 $81,093,750 $ 21,409
value $0.01 per
share(2)
Common Stock, par 400,000 $ 54.0625 $21,625,000 $ 5,709
value $0.01 per
share(3)
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(1) Estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457(h), on the basis of the average of the
high and low prices of the Registrant's Common Stock as reported
on the Nasdaq National Market System on a date within five days
of the filing hereof with respect to the shares being
registered.
(2) Underlying shares of Common Stock issued under PacifiCare's 2000
Employee Plan.
(3) Underlying shares of Common Stock issued under PacifiCare's 2000
Non-Employee Directors Plan.
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PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents which have been filed by PacifiCare Health
Systems, Inc., a Delaware corporation (the "Registrant"), with the Securities
and Exchange Commission are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999 (the "Form 10-K"), which is the Registrant's
latest Annual Report on Form 10-K filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and
which contains audited financial statements for the Registrant's latest
fiscal year for which a Form 10-K was required to have been filed.
(b) The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 2000 and June 30, 2000.
All documents subsequently filed by the Registrant pursuant to Section
13, 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be a part hereof
from the time of filing of such documents.
Item 4. Description of Securities.
Our certificate of incorporation authorizes us to issue 200,000,000
shares of common stock, par value $0.01 per share and 40,000,000 shares of
preferred stock, par value $0.01 per share. As of July 31, 2000, approximately
34,904,000 shares of common stock were outstanding and no shares of preferred
stock were outstanding.
COMMON STOCK
Voting. Common stockholders are entitled to one (1) vote per share for
the election of directors and on all other matters that require stockholder
approval. Under our certificate of incorporation, the affirmative vote of the
holders of a majority of the outstanding shares of common stock entitled to vote
is required (i) to amend the certificate of incorporation; (ii) to authorize
additional shares of common stock; (iii) to approve any merger or consolidation
of PacifiCare with or into any other corporation; and (iv) to approve the
dissolution of PacifiCare.
Dividends and Other Distributions. Holders of PacifiCare common stock
are entitled to equal cash dividends and dividends per share paid in PacifiCare
common stock or property, when, as and if dividends are declared by our board of
directors and paid out of legally available assets.
Distribution on Dissolution, Etc. In the event of a liquidation,
dissolution or winding up of PacifiCare, holders of PacifiCare common stock are
entitled to share ratably in the assets remaining after payment of liabilities
and the liquidation preferences of any outstanding preferred stock.
Preemptive Rights. PacifiCare common stock does not carry any preemptive
rights enabling a holder to subscribe for, or receive shares of any class of
PacifiCare common stock or any other securities convertible into shares of any
class of PacifiCare common stock.
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STOCKHOLDER RIGHTS AGREEMENT
In November 1999, our board of directors adopted a stockholder rights
agreement to protect stockholder rights in the event of a proposed takeover. The
board of directors declared a dividend of one right for each share of our common
stock outstanding as of November 19, 1999. The right entitles the registered
holder to purchase from PacifiCare 1/100th of a share of Series A junior
participating preferred stock at a price of $180 per 1/100th of a preferred
share. Similar rights will generally be issued in respect of common stock issued
after November 19, 1999.
PREFERRED STOCK
The Board of Directors may issue shares of the preferred stock at any
time, in one or more series without stockholder approval. The Board of Directors
determines the designation, relative rights, preferences and limitations of each
series of preferred stock.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under Section 145 of the Delaware General Corporation Law, the
Registrant has broad powers to indemnify its directors and officers against
liabilities they may incur in such capacities, including liabilities under the
Securities Act of 1933, as amended. The Registrant's bylaws provide that the
Registrant will indemnify its directors, officers, employees or agents in a
manner consistent with the provisions of the Delaware General Corporation Law.
In addition, the Registrant's Certificate of Incorporation provides
that, pursuant to Delaware law, its directors shall not be liable for monetary
damages for breach of the directors' fiduciary duty of care to the Registrant
and its stockholders. This provision in the Certificate of Incorporation does
not eliminate the duty of care, and in appropriate circumstances equitable
remedies such as injunctive or other forms of non-monetary relief will remain
available under Delaware law. In addition, each director will continue to be
subject to liability for breach of the director's duty of loyalty to the
Registrant, for acts or omissions not in good faith or involving intentional
misconduct or a knowing violation of law, for actions leading to improper
personal benefit to the director, and for payment of dividends or approval of
stock repurchases or redemptions that are unlawful under Delaware law. The
provision also does not affect a director's responsibilities under any other
law, such as the federal securities laws or state or federal environmental laws.
The Registrant maintains a policy providing directors' and officers'
liability insurance, which insures directors and officers of the Registrant in
certain circumstances.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions, 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.
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Item 8. Exhibits.
The following exhibits are filed as part of this registration statement:
4.1 2000 Employee Stock Plan.
4.2 2000 Non-Employee Directors Stock Option Plan.
4.3 Form of Specimen Certificate for Registrant's Common Stock
[incorporated by reference to Exhibit 4.02 to Registrant's Form
10-K for the year ended December 31, 1999].
4.4 Rights Agreement, dated as of November 19, 1999, between the
Registrant and ChaseMellon Shareholder Services, L.L.C
[incorporated by reference to Exhibit 99.1 to Registrant's Form
8-K, dated November 22, 1999].
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Cooley Godward LLP (included in Exhibit 5.1).
24.1 Power of Attorney (appears on signature page).
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes;
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(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;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement:
provided, however, that paragraphs (a)(1)(i) and (ii) do not apply if
the registration statement is on Form S-3, Form S-8 and 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 Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
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(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 the purposes
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Santa Ana, State of California, on this 17th day of August, 2000.
PACIFICARE HEALTH SYSTEMS, INC.
By: Robert W. O'Leary
Title: President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that each of the undersigned whose
signature appears below constitutes and appoints Robert W. O'Leary and Howard G.
Phanstiel, and each of them (with full power of each of them to act alone), his
or her true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution for him and on his behalf, and in his name,
place and stead, in any all capacities to execute and sign any and all
amendments or post-effective amendments to this registration statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission granting unto said
attorneys-in fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorneys-in
fact and agents or any of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof and the Registrant hereby
confers like authority on its behalf.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons on behalf
of the Registrant and in the capacities and on the dates indicated.
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Signature Title Date
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/s/ DAVID A. REED
-------------------------- Chairman of the Board August 17, 2000
David A. Reed
/s/ ROBERT W. O'LEARY
-------------------------- President, Chief August 17, 2000
Robert W. O'Leary Executive Officer and Director
(Principal Executive Officer)
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/s/ HOWARD G. PHANSTIEL
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Howard G. Phanstiel Executive Vice President August 17, 2000
and Chief Financial Officer
(Principal Financial Officer)
/s/ MARY C. LANGSDORF
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Mary C. Langsdorf Senior Vice President and August 17, 2000
Corporate Controller
(Principal Accounting Officer)
/s/ BRADLEY C. CALL
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Bradley C. Call Director August 17, 2000
/s/ DAVID R. CARPENTER
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David R. Carpenter Director August 17, 2000
/s/ TERRY O. HARTSHORN
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Terry O. Hartshorn Director August 17, 2000
/s/ GARY L. LEARY
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Gary L. Leary Director August 17, 2000
/s/ WARREN E. PINCKERT, II
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Warren E. Pinckert, II Director August 17, 2000
/s/ LLOYD E. ROSS
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Lloyd E. Ross Director August 17, 2000
/s/ JEAN B. SMITH
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Jean Bixby Smith Director August 17, 2000
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PACIFICARE HEALTH SYSTEMS, INC.
FORM S-8
REGISTRATION STATEMENT
EXHIBIT INDEX
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Exhibit
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4.1 2000 Employee Stock Plan.
4.2 2000 Non-Employee Directors Stock Option Plan.
4.3 Form of Specimen Certificate for Registrant's Common Stock
[incorporated by reference to Exhibit 4.02 to Registrant's Form
10-K for the year ended December 31, 1999].
4.4 Rights Agreement, dated as of November 19, 1999, between the
Registrant and ChaseMellon Shareholder Services, L.L.C
[incorporated by reference to Exhibit 99.1 to Registrant's Form
8-K, dated November 22, 1999].
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Cooley Godward LLP (included in Exhibit 5.1).
24.1 Power of Attorney (appears on signature page).
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