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As filed with the Securities and Exchange Commission on June 26, 2000
Registration Statement No. 333-37410
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1 TO PART II OF FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AMERIGROUP CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 6324 54-1739323
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
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4425 CORPORATION LANE
VIRGINIA BEACH, VIRGINIA 23462
(757) 490-6900
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
JEFFREY L. MCWATERS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
4425 CORPORATION LANE
VIRGINIA BEACH, VIRGINIA 23462
(757) 490-6900
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPIES TO:
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STACY J. KANTER, ESQ. WILLIAM J. GRANT, JR., ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP WILLKIE FARR & GALLAGHER
FOUR TIMES SQUARE 787 SEVENTH AVENUE
NEW YORK, NEW YORK 10036-6522 NEW YORK, NEW YORK 10019
(212) 735-3000 (212) 728-8000
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Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 of the Securities Act of
1933, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED
TITLE OF EACH CLASS OF MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED OFFERING PRICE(1) REGISTRATION FEE
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Common Stock, par value $0.01............... $86,250,000 $22,770(2)
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) of the Securities Act of 1933, as amended.
(2) Previously paid with the initial filing on May 19, 2000.
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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 AN AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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PART II
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table indicates the expenses to be incurred in connection
with the offering described in this Registration Statement, other than
underwriting discounts and commissions, all of which will be paid by the
Company. All amounts are estimates, other than the registration fee and the NASD
fee.
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Registration fee............................................ $27,770
NASD fee.................................................... 9,125
Nasdaq National Market application and listing fee.......... *
Accounting fees and expenses................................ *
Legal fees and expenses..................................... *
Printing and engraving...................................... *
Transfer Agent fees and expenses............................ *
Blue sky fees and expenses.................................. *
Miscellaneous expenses...................................... *
-------
Total............................................. $ *
=======
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* To be completed by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102 of the Delaware General Corporation Law ("DGCL") as amended
allows a corporation to eliminate the personal liability of directors of a
corporation to the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, except where the director breached his
duty of loyalty, failed to act in good faith, engaged in intentional misconduct
or knowingly violated a law, authorized the payment of a dividend or approved a
stock repurchase in violation of Delaware corporate law or obtained an improper
personal benefit.
Section 145 of the DGCL provides, among other things, that we may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding (other than an
action by or in the right of AMERIGROUP) by reason of the fact that the person
is or was a director, officer, agent or employee of the AMERIGROUP or is or was
serving at our request as a director, officer, agent, or employee of another
corporation, partnership, joint venture, trust or other enterprise against
expenses, including attorneys' fees, judgment, fines and amounts paid in
settlement actually and reasonably incurred by the person in connection with
such action, suit or proceeding. The power to indemnify applies (a) if such
person is successful on the merits or otherwise in defense of any action, suit
or proceeding, or (b) if such person acted in good faith and in a manner he
reasonably believed to be in the best interest, or not opposed to the best
interest, of AMERIGROUP, and with respect to any criminal action or proceeding
had no reasonable cause to believe his conduct was unlawful. The power to
indemnify applies to actions brought by or in the right of the AMERIGROUP as
well but only to the extent of defense expenses (including attorneys' fees but
excluding amounts paid in settlement) actually and reasonably incurred and not
to any satisfaction of judgment or settlement of the claim itself, and with the
further limitation that in such actions no indemnification shall be made in the
event of any adjudication of negligence or misconduct in the performance of his
duties to AMERIGROUP, unless the court believes that in light of all the
circumstances indemnification should apply.
Section 174 of the DGCL provides, among other things, that a director, who
willfully or negligently approves of an unlawful payment of dividends or an
unlawful stock purchase or
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redemption, may be held liable for such actions. A director who was either
absent when the unlawful actions were approved or dissented at the time, may
avoid liability by causing his or her dissent to such actions to be entered in
the books containing the minutes of the meetings of the board of directors at
the time such action occurred or immediately after such absent director receives
notice of the unlawful acts.
Our Amended and Restated Certificate of Incorporation includes a provision
that eliminates the personal liability of its directors for monetary damages for
breach of fiduciary duty as a director, except for liability:
- for any breach of the director's duty of loyalty to AMERIGROUP or its
stockholders;
- for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
- under section 174 of the Delaware General Corporation Law regarding
unlawful dividends and stock purchases; or
- for any transaction from which the director derived an improper personal
benefit.
These provisions are permitted under Delaware law.
Our Amended and Restated Bylaws provide that:
- we must indemnify our directors and officers to the fullest extent
permitted by Delaware law;
- we may indemnify our other employees and agents to the same extent that
we indemnified our officers and directors, unless otherwise determined by
our Board of Directors; and
- we must advance expenses, as incurred, to our directors and executive
officers in connection with a legal proceeding to the fullest extent
permitted by Delaware law.
The indemnification provisions contained in our Amended and Restated
Certificate of Incorporation and Amended and Restate By-laws are not exclusive
of any other rights to which a person may be entitled by law, agreement, vote of
stockholders or disinterested directors or otherwise. In addition, we maintain
insurance on behalf of its directors and executive officers insuring them
against any liability asserted against them in their capacities as directors or
officers or arising out of such status.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
In the past three years, AMERIGROUP Corporation has issued and sold the
following securities:
- 2,000,000 shares of Series E Redeemable Preferred Stock and warrants to
purchase 2,250,000 shares of common stock to institutional investors in
two tranches, the first of which was in July 1998 and the second of which
was in January 1999 for a total consideration of $10 million.
- warrants to purchase 50,000 shares of common stock to Silicon Valley Bank
in connection with securing a $10 million Loan and Security Agreement in
May 1998.
- 4,500,000 shares of Series D Convertible Preferred Stock issued in escrow
in connection with the purchase by AMERIGROUP of the businesses of
Prudential Health Care in 1999.
- options to purchase 831,503 shares of common stock issued to employees in
1997; options to purchase 542,000 shares of common stock issued to
employees in 1998 and options to purchase 779,191 shares of common stock
issued to employees in 1999.
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The issuances described above in this Item 15 were deemed exempt from
registration under the Securities Act in reliance on either: (1) Rule 701
promulgated under the Securities Act as offers and sales of securities pursuant
to certain compensatory benefit plans and contracts relating to compensation in
compliance with Rule 701; or (2) Section 4(2) of the Securities Act, including
Regulation D thereunder, as transactions by an issuer not involving any public
offering.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
a. Exhibits
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EXHIBIT
NUMBER DESCRIPTION
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1.0 Form of Underwriting Agreement.*
3.1 Amended and Restated Certificate of Incorporation of the
Company.*
3.2 By-Laws of the Company.*
3.3 Form of share certificate for common stock.*
3.4 AMERIGROUP Corporation Second Restated Investor Rights
Agreement, dated July 28, 1998.
3.5 Silicon Valley Registration Rights Agreement, entered into
as of May 15, 1998.
3.6 Stock Restriction and Registration Rights Agreement, between
AMERIGROUP Corporation and Prudential Health Care Plan, Inc.
3.7 Form of warrant issued in connection with the sale of Series
E Redeemable Preferred Stock.
3.8 Common Stock Purchase Warrant Issued to Silicon Valley Bank,
dated May 15, 1998.
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.*
10.1 1999 Contract for Services between the Texas Department of
Health ("TDH") and HMO (Harris Service Area), dated August
9, 1999.
10.2 1999 Contract For Services between the TDH and HMO (Tarrant
Service Area), dated August 9, 1999.
10.3 1999 Contract for Services between TDH and HMO (Harris
County Service Area, STAR+PLUS Contract).
10.4 1999 Contract For Services between TDH and HMO (Dallas
Service Area).
10.5 Children's Health Insurance Program Agreement for the
Provision of Health Care Services between the Texas
Department of Health and Human Services Commission and
AMERICAID Texas, Inc., d/b/a Amerikids, dated January 19,
2000.
10.6 Contract between State of New Jersey, Department of Human
Services, Division of Medical Assistance and Health Services
and [Americaid New Jersey, Inc.], Contractor, (expiring,
October 2000), as amended.
10.7 State of Illinois, Department of Public Aid Contract for
Furnishing Health Services by a Health Maintenance
Organization, dated April 1, 2000.
10.8 Managed Care Organization HealthChoice Provider Agreement,
dated as of January 1, 2000.
10.9 District of Columbia Medicaid Managed Care Program,
Department of Health, Prepaid, Capital Risk Contract.
10.10 1994 Stock Plan.
10.11 2000 Equity Incentive Plan.*
10.12 Employee Stock Purchase Plan.*
10.13 Management Incentive Plan.*
10.14 Employment Agreement of Jeffrey L. McWaters.
10.15 Employment Agreement of Lorenzo Childress, Jr., M.D.
10.16 Form of Officer and Director Indemnification Agreement.
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EXHIBIT
NUMBER DESCRIPTION
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10.17 CCPN and HMO Medicaid Agreement By and Between Americaid
Texas Inc., d/b/a Americaid Community Care, and Cook
Children's Physician Network, A Texas 5.01 Non-profit
Corporation, dated as of October 9, 1997, as amended.
10.18 Third Medical Assistance Medical Services Agreement between
Prudential Health Care Plan, Inc. and Johns Hopkins Medical
Services Corporation, dated August 2, 1996, assigned to the
Company pursuant to the Amendment and Assignment of Third
Medical Assistance Medical Service Agreement, as of April
30, 1999.
10.19 Loan and Security Agreement, between AMERIGROUP Corporation,
as borrower, and The Financial Institutions Party Thereto
From Time to Time, as Lender and Fleet Capital Corporation,
as Agent, dated November 9, 1999.
21.1 List of Subsidiaries.*
23.1 Consent of KPMG LLP with respect to the financial statements
of the registrant.+
23.2 Consent of KPMG LLP with respect to the Medicaid Business of
Oxford Health Plans (NJ), Inc.+
23.3 Consent of Skadden, Arps, Slate, Meagher & Flom LLP.*
24.1 Power of Attorney (included on signature page of the
Registration Statement).
27 Financial Data Schedule.+
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* To be filed by amendment.
+ Previously filed.
b. Financial Statement Schedule
ITEM 17. UNDERTAKINGS.
The undersigned registrants hereby undertake to provide to the underwriters
at the closing certificates in such denominations and registered in such names
as required by the underwriters to permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers, and controlling persons of the
registrants pursuant to the provisions described in Item 14, or otherwise, the
registrants have been informed 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 by the registrants 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 registrants will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this 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 this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new
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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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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this amendment to the registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of New York,
State of New York, on June 26, 2000.
AMERIGROUP CORPORATION
By: /s/ JEFFREY L. MCWATERS
------------------------------------
Name: Jeffrey L. McWaters
Title: 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.
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TITLE DATE
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/s/ JEFFREY L. MCWATERS Chairman, Chief Executive June 26, 2000
--------------------------------------------------- Officer and President
Jeffrey L. McWaters
* Chief Financial Officer June 26, 2000
---------------------------------------------------
Sherri E. Lee
* Chief Accounting Officer June 26, 2000
---------------------------------------------------
Kathleen K. Toth
* Director June 26, 2000
---------------------------------------------------
C. Sage Givens
* Director June 26, 2000
---------------------------------------------------
William J. McBride
* Director June 26, 2000
---------------------------------------------------
Carlos A. Ferrer
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TITLE DATE
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* Director June 26, 2000
---------------------------------------------------
Kay Coles James
* Director June 26, 2000
---------------------------------------------------
Charles W. Newhall III
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*By Jeffrey L. McWaters, Attorney-in-Fact.
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SCHEDULE II
AMERIGROUP CORPORATION
SCHEDULE OF VALUATION AND QUALIFYING ACCOUNTS
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ADDITIONS - DEDUCTIONS -
BALANCE, AMOUNTS AMOUNTS
BEGINNING CHARGED TO CREDITED TO BALANCE,
OF YEAR EXPENSE EXPENSE END OF YEAR
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Valuation Allowance on Deferred Tax Assets
Year Ended December 31, 1997................... $5,443 $3,267 $ -- $8,710
Year Ended December 31, 1998................... $8,710 $ -- $(1,342) $7,368
Year Ended December 31, 1999................... $7,368 $ -- $(7,368) $ --
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EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION
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1.0 Form of Underwriting Agreement.*
3.1 Amended and Restated Certificate of Incorporation of the
Company.*
3.2 By-Laws of the Company.*
3.3 Form of share certificate for common stock.*
3.4 AMERIGROUP Corporation Second Restated Investor Rights
Agreement, dated July 28, 1998.
3.5 Silicon Valley Registration Rights Agreement, entered into
as of May 15, 1998.
3.6 Stock Restriction and Registration Rights Agreement, between
AMERIGROUP Corporation and Prudential Health Care Plan, Inc.
3.7 Form of warrant issued in connection with the sale of Series
E Redeemable Preferred Stock.
3.8 Common Stock Purchase Warrant Issued to Silicon Valley Bank,
dated May 15, 1998.
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.*
10.1 1999 Contract for Services between the Texas Department of
Health ("TDH") and HMO (Harris Service Area), dated August
9, 1999.
10.2 1999 Contract For Services between the TDH and HMO (Tarrant
Service Area), dated August 9, 1999.
10.3 1999 Contract for Services between TDH and HMO (Harris
County Service Area, STAR+PLUS Contract).
10.4 1999 Contract For Services between TDH and HMO (Dallas
Service Area).
10.5 Children's Health Insurance Program Agreement for the
Provision of Health Care Services between the Texas
Department of Health and Human Services Commission and
AMERICAID Texas, Inc., d/b/a Amerikids, dated January 19,
2000.
10.6 Contract between State of New Jersey, Department of Human
Services, Division of Medical Assistance and Health Services
and [Americaid New Jersey, Inc.], Contractor, (expiring,
October 2000), as amended.
10.7 State of Illinois, Department of Public Aid Contract for
Furnishing Health Services by a Health Maintenance
Organization, dated April 1, 2000.
10.8 Managed Care Organization HealthChoice Provider Agreement,
date as of January 1, 2000.
10.9 District of Columbia Medicaid Managed Care Program,
Department of Health, Prepaid, Capital Risk Contract.
10.10 1994 Stock Plan.
10.11 2000 Equity Incentive Plan.*
10.12 Employee Stock Purchase Plan.*
10.13 Management Incentive Plan.*
10.14 Employment Agreement of Jeffrey L. McWaters.
10.15 Employment Agreement of Lorenzo Childress, Jr., M.D.
10.16 Form of Officer and Director Indemnification Agreement.
10.17 CCPN and HMO Medicaid Agreement By and Between Americaid
Texas Inc., d/b/a Americaid Community Care, and Cook
Children's Physician Network, A Texas 5.01 Non-profit
Corporation, dated as of October 9, 1997, as amended.
10.18 Third Medical Assistance Medical Services Agreement between
Prudential Health Care Plan, Inc. and Johns Hopkins Medical
Services Corporation, dated August 2, 1996, assigned to the
Company pursuant to the Amendment and Assignment of Third
Medical Assistance Medical Service Agreement as of April 30,
1999.
10.19 Loan and Security Agreement, between AMERIGROUP Corporation,
as borrower, and The Financial Institutions Party Thereto
From Time to Time, as Lender and Fleet Capital Corporation,
as Agent, dated November 9, 1999.
21.1 List of Subsidiaries.*
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EXHIBIT
NUMBER DESCRIPTION
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23.1 Consent of KPMG LLP with respect to the financial statements
of the registrant.+
23.2 Consent of KPMG LLP with respect to the Medicaid Business of
Oxford Health Plans (NJ), Inc.+
23.3 Consent of Skadden, Arps, Slate, Meagher & Flom LLP.*
24.1 Power of Attorney (included on signature page of the
Registration Statement).
27 Financial Data Schedule.+
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* To be filed by amendment.
+ Previously filed.
