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FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 14, 2000
REGISTRATION NO. 333-41510
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MAXICARE HEALTH PLANS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 95-3615709
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
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1149 SOUTH BROADWAY STREET
LOS ANGELES, CALIFORNIA 90015
(213) 765-2000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
RICHARD A. LINK
CHIEF OPERATING OFFICER
CHIEF FINANCIAL OFFICER
MAXICARE HEALTH PLANS, INC.
1149 SOUTH BROADWAY STREET
LOS ANGELES, CALIFORNIA 90015
(213) 765-2000
(NAME AND ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF AGENT FOR SERVICE)
COPY TO:
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BARRY L. BURTEN, ESQ. AARON A. GRUNFELD, ESQ.
JEFFER, MANGELS, BUTLER & MARMARO LLP RESCH POLSTER ALPERT & BERGER LLP
2121 AVENUE OF THE STARS, 10TH FLOOR 10390 SANTA MONICA BOULEVARD,
LOS ANGELES, CALIFORNIA 90067 LOS ANGELES, CALIFORNIA 90025
(310) 203-8080 (310) 277-8300
FAX (310) 203-0567 FAX (310) 552-3209
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If the registrant elects to deliver its latest annual report to
securityholders, or a complete and legible facsimile thereof, pursuant to Item
11(a)(1) of this Form, 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(d)
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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TITLE OF AMOUNT TO BE PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) AGGREGATE OFFERING PRICE(2) REGISTRATION FEE
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Common Stock, par value $.01 per share...... 28,088,072(3) $28,088,072 $7,415.25
Common Stock, par value $.01 per share...... 1,000,000(4) $ 1,660,000 $ 438.24(5)
Common Stock, par value $.01 per share...... 800,000(6) $ 1,328,000 $ 300.58(7)
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(1) This Registration Statement also includes an indeterminable number of
additional shares of common stock that may become issuable (i) pursuant to
the anti-dilution provisions of the underwriter's warrant, and (ii) by
reason of the fact that fractional shares will be rounded upward in the
rights offering.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933, as amended.
(3) Consists of 28,088,072 shares to be offered by the Registrant pursuant to
this partially underwritten rights offering.
(4) Consists of 1,000,000 shares issuable upon exercise of the underwriter's
warrant.
(5) Pursuant to Rule 457(b) of the Securities Act of 1933, the registration fee
is calculated on the basis of (i) the greater of the average of the high and
low prices of the common stock as reported on the Nasdaq National Market as
of July 11, 2000 or (ii) $1.50 per share, the exercise price of the
underwriter's warrant. In this case it is $1.66 per share.
(6) Consists of 800,000 shares which are being registered on behalf of a selling
shareholder.
(7) Pursuant to Rule 457(c) of the Securities Act of 1933, the registration fee
is calculated on the basis of the average of the high and low prices of the
common stock as reported on the Nasdaq National Market as of July 11, 2000.
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 OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SECTION 8(a), MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. 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, all of which will be
paid by us. All amounts are estimates, other than the Securities and Exchange
Commission registration fee, the National Association of Securities Dealers,
Inc. fee and the Nasdaq listing fee.
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Securities and Exchange Commission registration fee......... $ 8,255
National Association of Securities Dealers, Inc. fee........ 3,409
Nasdaq listing fee.......................................... 17,500
Standby underwriter's accountable expenses.................. 100,000
Standby underwriter fee..................................... 1,000,000
Accounting fees and expenses................................ 50,000
Legal fees and expenses..................................... 150,000
Printing and engraving expenses............................. 50,000
Transfer agent and registrar fees and expenses.............. 25,000
Blue Sky fees and expenses (including counsel fees)......... 25,000
Miscellaneous expenses...................................... 70,836
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Total............................................. $1,500,000
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Article Eighth of the Registrant's Restated Certificate of
Incorporation, each person who is a director or officer of the Registrant shall
be indemnified by the Registrant to the fullest extent permitted by section 145
of the Delaware General Corporation Law ("DGCL").
Section 145(a) of the DGCL permits a corporation to indemnify any director,
officer, employee or agent of the corporation against expenses, judgments, fines
and amounts paid in settlement or incurred by him or her in connection with any
proceeding arising out of his or her status as director, officer, employee or
agent if such person acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action, had no reasonable cause to believe his or
her conduct was unlawful. To the extent that such a person has been successful
in defense of any such action or claim, section 145(c) provides that he or she
shall be indemnified against expenses incurred by him or her in connection
therewith.
Under section 145(e), a corporation also has the power to purchase and
maintain insurance on behalf of any director, officer, employee or agent against
any liability arising out of his or her status as such, whether or not the
corporation would have the power to indemnify him or her against such liability.
The Registrant maintains an officers and directors' liability policy
insuring its officers and directors against certain liabilities and expenses
incurred by them in their capacities as such, and insuring the Registrant under
certain circumstances to the extent that indemnification payments are made by
the Registrant to such officers and directors.
The Registrant has entered into employment and indemnification agreements
(the "Indemnification Agreements") with certain of its officers (individually,
an "Indemnitee"). The Indemnification Agreements provide, among other things,
for indemnification to the fullest extent permitted by law against any and all
costs, claims, judgments, fines, settlements, liabilities, and fees or expenses
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(including attorney fees) incurred in connection with any proceedings arising
out of the Indemnitee's actions or in the actions in his capacity as an officer
of the Registrant. In the event the Indemnitee is no longer employed by the
Registrant at the time his attendance is required at a proceeding pursuant to
which he is entitled to be indemnified, then the Indemnitee shall be entitled to
be paid a stipend in the amount of $1,000 per day to reimburse the Indemnitee
for all reasonable travel, hotel and living expenses incurred by him in
connection with such attendance. The Indemnification Agreements provide for the
prompt advancement of all expenses to the Indemnitee and for reimbursement to
Registrant if it is found that such Indemnitee is not entitled to such
indemnification under applicable law.
ITEM 16. EXHIBITS.
(a) EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION
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1.1 Form of Standby Underwriting Agreement
1.2 Form of Underwriter's Warrant
4.1 Certificate of Incorporation, as amended and restated, which
includes, Restated Certificate of Incorporation of
Healthcare USA Inc. filed with the Office of the Secretary
of State of Delaware on July 19, 1985, Certificate of Merger
of MHP Acquisition Corp into Healthcare USA Inc. filed with
the Office of the Secretary of State of Delaware on
September 13, 1986, Certificate of Change of Registered
Agent and Registered Office filed with the Office of
Secretary of State of Delaware on August 17, 1987
Certificate of Merger Merging Maxicare Health Plans, Inc.
with and into Healthcare USA Inc. (including as Exhibit A
thereto the Restated Certificate of Incorporation of
Healthcare USA Inc. filed with the Office of the Secretary
of State of Delaware on May 17, 1991, Certificate of
Ownership and Merger Merging HealthAmerica Corporation into
Maxicare Health Plans, Inc. filed with the Office of the
Secretary of State of Delaware on November 22 1991,
Certificate of Amendment of Restated Certificate of
Incorporation of Maxicare Health Plans, Inc. filed with the
Office of the Secretary of State of Delaware on March 9,
1992, Certificate of Ownership and Merger Merging HCS
Computer, Inc. into Maxicare Health Plans, Inc. filed with
the Office of the Secretary of State of Delaware on November
6, 1992, and Certificate of Designation of Series B
Preferred Stock of Maxicare Health Plans, Inc. filed with
the Office of the Secretary of State of Delaware on February
27, 1998, Certificate of Amendment of Certificate of
Incorporation of Maxicare Health Plans, Inc. filed with the
Office of the Secretary of State of Delaware on July 30,
1998. Incorporated by reference from the Company's Quarterly
Report on Form 10-Q for the quarterly period ended September
30, 1998 in which this exhibit bore exhibit number 3.5
4.2A Rights Agreement, dated as of February 24, 1998, between
Maxicare Health Plans, Inc. and American Stock Transfer &
Trust Company as Rights Agent, which includes, as Exhibit A
thereto, the Certificate of Designation of Series B
Preferred Stock of Maxicare Health Plans, Inc., as Exhibit B
thereto, the Form of Right Certificate, Form of Assignment,
and Form of Election to Purchase, and as Exhibit C thereto,
the Summary of Rights Agreement. Incorporated by reference
from the Company's Report on Form 8-K dated May 4, 1999 in
which this exhibit bore exhibit number 4.13.
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EXHIBIT
NUMBER DESCRIPTION
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4.2B First Amendment to Rights Agreement of Maxicare Health
Plans, Inc., entered into and between Maxicare Health Plans,
Inc. and American Stock Transfer & Trust Company as of
October 9, 1999. Incorporated by reference from the
Company's Quarterly Report on Form 10-Q for the three months
ended September 30, 1998 in which this exhibit bore exhibit
number 4.13a.
4.2C Second Amendment to Rights Agreement of Maxicare Health
Plans, Inc., entered into and between Maxicare Health Plans,
Inc. and American Stock Transfer & Trust Company as of June
6, 2000.
4.3 Form of Rights Subscription Certificate
5.1 Opinion of Jeffer, Mangels, Butler & Marmaro LLP*
13.1 Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2000
13.2 Registrant's Annual Report on Form 10-K for the year ended
December 31, 1999
23.1 Consent of Ernst & Young LLP Independent Auditors
23.2 Consent of Jeffer, Mangels, Butler & Marmaro LLP (included
in Exhibit 5.1)*
24.1 Power of Attorney (included in Part II -- Signatures of this
Registration Statement)
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* To be filed by amendment
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(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). Notwithstanding the forgoing, 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% change in the
maximum aggregate offering price set forth in "Calculation of
Registration Fee" table in the effective 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;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to
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section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) The undersigned registrant hereby undertakes to supplement the
prospectus, after the expiration of the rights subscription period, to set forth
the results of the rights offering, the transactions by the Standby Underwriter
during the rights subscription period, the amount of unsubscribed securities to
be purchased by the Standby Underwriter, and the terms of any subsequent
reoffering thereof. If any public offering by the Standby Underwriter is to be
made on terms differing from those set forth on the cover page of the
prospectus, a post-effective amendment will be filed to set forth the terms of
such offering.
(d) 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 foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the SEC 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 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.
(e) The undersigned registrant hereby undertakes 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 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
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-2 and has duly caused this Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the City of Los Angeles, State of California, on
this 14th day of July, 2000.
MAXICARE HEALTH PLANS, INC.
By: /s/ RICHARD A. LINK
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Richard A. Link
Chief Operating Officer and
Chief Financial Officer
(Principal Financial Officer)
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
Each person whose signature appears below appoints Richard A. Link and Paul
R. Dupee, Jr., and each of them, with full power of substitution and
resubstitution, his true and lawful attorneys-in-fact, for him in any and all
capacities, to sign any amendments (including post-effective amendments) to this
Registration Statement and to file the same, with exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission.
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SIGNATURE TITLE DATE
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/s/ PAUL R. DUPEE, JR. Chief Executive Officer and July 14, 2000
-------------------------------------------------------- Chairman of the Board of
Paul R. Dupee, Jr. Directors (Principal
Executive Officer and
Director)
/s/ RICHARD A. LINK Chief Operating Officer and July 14, 2000
-------------------------------------------------------- Chief Financial Officer
Richard A. Link (Principal Financial Officer
and Principal Accounting
Officer)
/s/ GEORGE H. BIGELOW Director July 14, 2000
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George H. Bigelow
/s/ CLAUDE S. BRINEGAR Director July 14, 2000
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Claude S. Brinegar
/s/ ROBERT M. DAVIES Director July 14, 2000
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Robert M. Davies
/s/ CHARLES E. LEWIS Director July 14, 2000
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Charles E. Lewis
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SIGNATURE TITLE DATE
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/s/ THOMAS W. FIELD, JR. Director July 14, 2000
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Thomas W. Field, Jr.
/s/ ELWOOD I. KLEAVER Director July 14, 2000
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Elwood I. Kleaver
/s/ SIMON J. WHITMEY Director July 14, 2000
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Simon J. Whitmey
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