<PAGE> 1
As filed with the Securities and Exchange Commission on January 9, 2001
Registration No. 333-77529
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Amendment No. 3 to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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OXFORD HEALTH PLANS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 06-1118515
(STATE OR OTHER JURISDICTION OF INCORPORATION OR (I.R.S. EMPLOYER IDENTIFICATION NO.)
ORGANIZATION)
</TABLE>
48 MONROE TURNPIKE
TRUMBULL, CT 06611
(203) 459-6000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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DANIEL N. GREGOIRE, ESQ.
EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
OXFORD HEALTH PLANS, INC.
48 MONROE TURNPIKE
TRUMBULL, CT 06611
(203) 459-6000
(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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DANIEL DUNSON, ESQ. PAUL J. SHIM, ESQ.
SULLIVAN & CROMWELL CLEARY, GOTLIEB, STEEN & HAMILTON
125 BROAD STREET ONE LIBERTY PLAZA
NEW YORK, NEW YORK 10004 NEW YORK, NEW YORK 10006
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this registration statement.
If the securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
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 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, please 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. [ ]
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CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
TO BE TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED PER SHARE PRICE REGISTRATION FEE(1)(4)
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<S> <C> <C> <C> <C>
Common Stock....................... 10,829,507 $17.96875(2)(3) $194,592,703.90(2)(3) $54,096.77
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(1) Previously paid.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(a) under the Securities Act.
(3)Estimated solely for the purpose of calculating the registration fee pursuant
to Rule 457(c) under the Securities Act based on the average high and low
price of Oxford Health Plans, Inc.'s common stock, par value $.01 per share,
on April 23, 1999 as reported on the Nasdaq National Market.
(4)Registration fee in the amount of $189,985.01 was initially paid in
connection with the filing of the original registration statement on April
30, 1999. Such registration fee also covered our cumulative preferred stock,
junior subordinated debentures and warrants which are not being registered
under this Amendment.
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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 OF 1933, AS AMENDED, 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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<PAGE> 2
SUBJECT TO COMPLETION, PROSPECTUS DATED JANUARY , 2001
OXFORD HEALTH PLANS LOGO
10,829,507 Shares of Common Stock
The shares of common stock are being offered under this prospectus by certain
selling stockholders.
We will not receive any of the proceeds from the sale of the common stock by the
selling stockholders.
You should carefully read this prospectus and the prospectus supplement, if any,
before you invest.
Our common stock is traded on the Nasdaq National Market under the symbol
"OXHP." On January 8, 2001, the last reported sale price of our common stock was
$35.25 per share. We urge you to obtain a current sale price for our common
stock before you buy the common stock offered under this prospectus.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THESE
SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
THE DATE OF THIS PROSPECTUS IS JANUARY , 2001
<PAGE> 3
TABLE OF CONTENTS
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Summary.......................... 1
Business......................... 3
Registration Rights Agreement.... 6
Use of Proceeds.................. 7
Certain United States Tax
Consequences to Non-U.S.
Holders of Common Stock........ 8
Selling Stockholders............. 12
Plan of Distribution............. 15
Validity of Securities........... 16
Experts.......................... 17
Where You Can Find More
Information.................... 17
Forward-Looking Statements....... 19
</TABLE>
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REFERENCES TO ADDITIONAL INFORMATION
This prospectus incorporates important business and financial information
about us from documents that are not included in or delivered with this
document. You can obtain documents incorporated by reference in this prospectus,
other than certain exhibits to those documents, by requesting them in writing or
by telephone from us at the following address:
Oxford Health Plans, Inc.
48 Monroe Turnpike
Trumbull, CT 06611
Attention: Investor Relations
Telephone: (203) 459-6000
YOU WILL NOT BE CHARGED FOR ANY OF THE DOCUMENTS THAT YOU REQUEST.
See "Where You Can Find More Information" on page 17.
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<PAGE> 5
SUMMARY
This brief summary highlights selected information from this prospectus and
documents we have incorporated in this prospectus by reference. It does not
contain all of the information that is important to you. We urge you to read
carefully the entire prospectus, the documents incorporated in this prospectus
by reference and the other documents to which this prospectus refers, including
our consolidated financial statements and the notes to those consolidated
financial statements which are incorporated in this prospectus by reference.
OXFORD HEALTH PLANS, INC.
Oxford Health Plans, Inc. was incorporated under the laws of the State of
Delaware on September 17, 1984. We are a health care benefit company currently
providing health care benefit plans primarily in New York, New Jersey and
Connecticut. Our product line includes:
- traditional health maintenance organizations which require the member to
choose a health care provider from the network of providers under
contract with us;
- traditional indemnity health insurance plans;
- health care benefit plans for Medicare beneficiaries;
- health care benefit plans, known as point-of-service plans, which provide
the member with the option of using a provider who is under contract with
us or one who is not under contract with us;
- health care benefit plans for individuals; and
- administrative services for groups that provide their own health care
insurance, known as self-funded plans.
We offer our products primarily through our health maintenance organization
subsidiaries, Oxford Health Plans (NY), Inc., Oxford Health Plans (NJ), Inc. and
Oxford Health Plans (CT), Inc., and through Oxford Health Insurance, Inc., our
health insurance subsidiary.
Our principal executive offices are located at 48 Monroe Turnpike,
Trumbull, CT 06611, and our main telephone number is (203) 459-6000.
SECURITIES BEING OFFERED
This prospectus covers the offer and sale of 10,829,507 shares of common
stock, par value $.01 per share.
We issued the common stock offered hereby, which we sometimes refer to as
the "offered common stock," in a private placement on December 22, 2000 to the
selling stockholders named on page 14 in exchange for a combination of our
warrants and preferred stock previously issued in a private placement on May 13,
1998 and pursuant to a share exchange agreement on February 13, 1999. See
"Selling Stockholders" on Page 12. We made the private placement of the common
stock offered hereby pursuant to an exchange and repurchase agreement, dated as
of October 25, 2000, among Oxford, the selling stockholders and certain other
investors. The exchange and repurchase agreement has been filed with the SEC as
an exhibit to the registration statement of which this prospectus is a part.
Selling Stockholders............ The offered common stock may be offered and
sold by the selling stockholders named on
page 14. We will not receive any proceeds
from the sales of
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<PAGE> 6
the offered common stock by the selling
stockholders.
Shelf Registration Statement.... Under the registration rights agreement,
dated as of February 23, 1998, among us and
TPG Partners II, one of the selling
stockholders and certain other permitted
assigns of TPG Partners II, including the
other selling stockholders, we have agreed
to use our reasonable best efforts to keep
effective a shelf registration statement
under which the offered common stock, which
we sometimes refer to as the "registrable
securities," may be offered and sold.
Generally, we are required to keep the shelf
registration statement effective until:
- 10 years after the date it is first
declared effective; or
- if earlier, the date that all
registrable securities have been sold
under the shelf registration
statement or the date on which all of
the selling stockholders are
permitted to sell their registrable
securities without registration under
Rule 144(k) under the Securities Act.
Generally, we intend the shelf registration
statement to permit the selling stockholders
named in this prospectus to resell the
registrable securities from time to time.
Purchasers of the registrable securities
offered by means of this prospectus will not
have any rights under the registration
rights agreement, although, once sold under
the shelf registration statement, the
registrable securities should be freely
tradeable except by purchasers who are our
"affiliates" or are "underwriters" of the
registrable securities for purposes of the
Securities Act. We have filed the shelf
registration statement of which this
prospectus is a part with the Securities and
Exchange Commission in order to meet our
obligations under the registration rights
agreement.
Trading......................... Our common stock currently trades on the
Nasdaq National Market under the symbol
"OXHP."
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<PAGE> 7
BUSINESS
GENERAL
We provide health care benefit plans through our HMO and insurance
subsidiaries primarily in New York, New Jersey and Connecticut. Our product line
includes:
- traditional health maintenance organizations which require the member to
choose a health care provider from the network of providers under
contract with us;
- traditional indemnity health insurance;
- health care benefit plans for Medicare beneficiaries;
- health care benefit plans, known as point-of-service plans, which provide
the member with the option of using a provider who is under contract with
us or one who is not under contract with us;
- health care benefit plans for individuals; and
- administrative services for groups that provide their own health care
insurance, known as self-funded plans.
We distribute our products through several different internal channels,
including direct sales representatives, business representatives, inbound
telemarketing representatives and executive account representatives, as well as
through external insurance agents, brokers and consultants.
As of the date of this prospectus, we had a network of more than 53,000
providers under contract with us. The majority of the primary care physicians,
specialists and hospitals in our network have contracted directly with us. We
also have contracts with groups of providers such as physician hospital
organizations, individual practice associations and other physician groups. We
have entered into risk transfer agreements for the provision of health benefits
to some of our Medicare beneficiaries as well as for pharmacy benefits
management and laboratory and radiology services and we continue to seek to
enter into similar arrangements for services.
For a fuller description of our business, including the risks involved in
our business, refer to our most recently filed annual and quarterly reports
which, as of the date of this prospectus, are our Form 10-K for the year ended
December 31, 1999, and our Form 10-Q for the quarter ended September 30, 2000
which are incorporated into this prospectus by reference.
RECENT DEVELOPMENTS
PURCHASE AND RETIREMENT OF OUR 11% SENIOR NOTES DUE 2005
On December 21, 2000, we acquired all of our outstanding 11% Senior Notes
due 2005 with an aggregate outstanding principal amount of $193,535,000 for an
aggregate purchase price in cash of $215,880,292 pursuant to our Offer to
Purchase and Consent Solicitation Statement, dated November 22, 2000. The
primary purpose of the repurchase of these notes was to eliminate certain
restrictive covenants in the indenture governing the notes.
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EXCHANGE AND REPURCHASE OF OUR PREFERRED STOCK AND WARRANTS
The following summarizes certain provisions of the exchange and repurchase
agreement, dated as of October 25, 2000, between us and the investors. This
summary is not complete and is subject to, and qualified in its entirety by
reference to, the exchange and repurchase agreement, a copy of which is on file
with the SEC.
On October 25, 2000, we entered into an exchange and repurchase agreement
with the holders, who we sometimes refer to as, the "investors", of all of the
outstanding shares of our Series D cumulative preferred stock and Series E
cumulative preferred stock, and all of our outstanding Series A warrants and
Series B warrants. Pursuant to the exchange and repurchase agreement, on
December 22, 2000, we acquired from the investors all of the outstanding shares
of Series D and E cumulative preferred stock and all Series A and B Warrants for
an aggregate payment of $220 million in cash and the issuance of 10,986,455
shares of our common stock to the investors, of which 10,829,507 are being
offered under this prospectus. Immediately following the exchange and
repurchase, pursuant to the terms of the exchange and repurchase agreement, the
investment agreement, dated as of February 23, 1998, between us and TPG Oxford
LLC, as amended, pursuant to which the investors had purchased our cumulative
preferred stock and Series A and B warrants terminated except for certain
indemnification provisions which survived. The investment agreement has been
filed with the SEC as an exhibit to the registration statement of which this
prospectus is a part.
OUR NEW CREDIT FACILITIES
On December 22, 2000, we entered into a credit agreement with a group of
lenders including Credit Suisse First Boston and Bankers Trust Company. The
credit agreement provides for senior credit facilities, lead arranged by Credit
Suisse First Boston and Deutsche Bank Securities, Inc. The maximum amount which
may be advanced under the senior credit facilities is $250.0 million. We have
used $175.0 million of the proceeds from the credit facilities, together with
existing cash on hand, to make cash payments to the investors pursuant to the
exchange and repurchase transactions as described above, and intend to use the
balance of the loan proceeds for general corporate purposes.
The credit facilities provided to us consist of a term loan facility and a
revolving credit facility. The term loans are in an original principal amount of
$175.0 million and mature on June 30, 2006. The term loan facility was made
available in a single borrowing concurrently with the consummation of the
exchange and repurchase transactions described above. Under the term loan
facility, we are scheduled to make principal payments in increasing amounts on a
quarterly basis beginning on March 31, 2001. Once we repay the term loans, we
may not re-borrow any funds under the term loan facility.
The revolving credit facility is in an original amount of $75.0 million and
matures on December 31, 2005 and under certain circumstances prior to that date.
The revolving credit facility will be automatically reduced to $50.0 million on
January 1, 2005. No revolving loans were made on the consummation of the
exchange and repurchase transactions described above. We may use a portion of
the revolving credit facility in an amount of up to $5.0 million as a swing line
facility and up to $20.0 million of the facility may be used for Letters of
Credit.
Guaranty and Security. One of our subsidiaries, Oxford Benefit Management,
Inc. guarantees the credit facilities. In addition, the credit facilities are
secured by a first-priority perfected lien on all of our property and assets
including those of Oxford Benefit
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<PAGE> 9
Management, Inc., including the capital stock (or similar equity interests) of
our HMO subsidiaries. The principal subsidiaries have not guaranteed the
facilities nor have they pledged any assets.
Interest. At our option, the term loans and the revolving loans bear
interest at either (i) the Base Rate plus the Applicable Base Rate Margin or
(ii) the LIBO Rate plus the Applicable LIBOR Margin. The Base Rate means the
higher of Credit Suisse First Boston's prime lending rate, as in effect from
time to time, or the rate which is 1/2 of 1% in excess of the federal funds
effective rate, as published by the Federal Reserve Bank of New York, from time
to time. LIBO Rate means the rate per annum determined by reference to the
British Bankers' Association Interest Settlement Rates for deposits in U.S.
dollars. The Applicable Base Margin and the Applicable LIBOR Margin means a
percentage per annum ranging from 1.50% to 2.25% for revolving loans at the Base
Rate, 2.25% to 2.75% for term loans at the Base Rate, 2.50% to 3.25% for
revolving loans at the LIBO Rate and 3.25% to 3.75% for term loans at the LIBO
Rate, depending on our credit rating at the time of the determination of the
relevant interest rate. Swing line loans bear interest at the Base Rate plus the
Applicable Base Rate Margin for revolving loans minus 0.50% per annum. We
initially borrowed funds under the credit facility at an annual interest rate
determined by reference to the Base Rate and the Applicable Base Rate Margin.
After the occurrences and during the continuation of an event of default,
interest will accrue at the applicable interest rate plus an additional two
percentage points (2.00%) per annum and will be payable on demand.
Prepayments and Commitment Reductions. We may voluntarily prepay the term
loans or reduce the revolving credit commitment in whole or in part without
premium or penalty other than certain break funding costs.
We must prepay the loans under the credit facilities and/or the commitments
under the revolving credit facility will be reduced (with the exception of
certain ordinary course of business transactions and other limited exceptions
and basket amounts) in amounts equal to:
- Asset Sale Proceeds: 100% of the net after-tax cash proceeds of the sale
or other disposition of any property or assets of Oxford or any of our
non-regulated subsidiaries which proceeds are not utilized within 364 days
of receipt to make investments permitted under the credit agreement;
- Proceeds of Equity Offerings: 50% of the net cash proceeds received from
the issuance of equity securities, other than proceeds received from the
exercise of employee, director and contractor stock options, of Oxford or
any of our non-regulated subsidiaries;
- Proceeds of Debt Issuances: 100% of the net cash proceeds received from
certain issuances of debt securities by Oxford or any of our non-regulated
subsidiaries;
- Excess Cash Flow: 50% of excess cash flow of Oxford for each fiscal
quarter commencing with the first fiscal quarter ending June 30, 2001;
- Change of Control: 101% of the principal amount of all outstanding loans.
Also, at such time as we make settlement payments in respect of certain
pending securities litigation proceedings, the revolving credit facility
commitments will be permanently reduced to an amount equal to the sum of $50.0
million plus the then outstanding credit extensions under the revolving credit
facility, less our cash in excess of
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$35 million determined on a pro forma basis after giving effect to the making of
such settlement payments, and will be further permanently reduced from time to
time thereafter to the extent of any repayment or reduction of such outstanding
credit extensions thereunder. The mandatory reductions and the scheduled
reductions to the revolving credit facility will not reduce the revolving credit
facility commitments below $50.0 million.
Covenants. Under the credit agreement, we are subject to customary
affirmative and negative covenants, including but not limited to limitations on
other indebtedness, liens, investments, guarantees, restricted junior payments,
mergers and acquisitions, sales of assets, capital expenditures, leases and
transactions with our affiliates, as well as financial performance covenants,
including
- a maximum leverage ratio;
- a minimum interest coverage ratio;
- a minimum consolidated net worth requirement;
- maximum consolidated capital expenditures; and
- minimum statutory net worth requirements for regulated subsidiaries.
The credit agreement has been filed with the SEC as an exhibit to the
registration statement of which this prospectus is a part.
REGISTRATION RIGHTS AGREEMENT
The following summarizes certain provisions of the registration rights
agreement, dated as of February 23, 1998, among us and TPG Partners II, one of
the selling stockholders and certain other permitted assigns of TPG Partners II,
including the other selling stockholders. This summary is not complete and is
subject to, and qualified in its entirety by reference to, the registration
rights agreement, a copy of which is on file with the SEC.
We are a party to a registration rights agreement with TPG Partners II, one
of the selling stockholders and the permitted assigns, including the other
selling stockholders. Under the registration rights agreement, we have agreed to
use our reasonable best efforts to keep effective a shelf registration statement
at our expense, covering offers and sales of the offered common stock. We
sometimes refer to the securities covered by the registration rights agreement
generally as the "registrable securities." We filed the shelf registration
statement of which this prospectus is a part with the SEC to comply with our
obligations under the registration rights agreement. Under the registration
rights agreement, we are required to keep the shelf registration statement
effective until 10 years after the date it is declared effective or, if earlier,
the date that all offered common stock has been sold under the shelf
registration statement or on which all of the selling stockholders are permitted
to sell their offered common stock without registration pursuant to Rule 144(k)
under the Securities Act.
We will provide each selling stockholder with copies of this prospectus,
notify each holder when the shelf registration statement has been declared
effective and take other actions described in the registration rights agreement
as are required to permit unrestricted sales of the offered common stock. A
holder that sells registrable securities under the shelf registration statement
is required to be named as a selling securityholder in this prospectus and to
deliver this prospectus to purchasers. Those holders also will be subject to
certain civil liability provisions under the Securities Act in connection with
these sales and are
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bound by the provisions of the registration rights agreement, including certain
indemnification obligations. We have agreed to indemnify the selling
stockholders against certain liabilities (and to contribute to payments in
respect of those liabilities), including liabilities arising under the
Securities Act. See "Plan of Distribution" on page 15.
If we file a registration statement under the Securities Act for an
underwritten offering of our securities for our own account or for the account
of holders, or if we offer securities convertible into or exchangeable for any
of our equity securities, the holders of registrable securities have agreed, if
requested, not to publicly sell or distribute any securities that are the same
as or similar to those being registered by us in connection with their sale, or
any securities convertible or exchangeable or exercisable for any such
securities, during the period beginning seven days before and ending no more
than 90 days after the effective date of the registration statement filed by us.
We have agreed, in the case of an underwritten offering of registrable
securities, if requested, not to effect any public sale or distribution of any
securities the same as or similar to those registrable securities being sold in
the underwritten offering, or any securities convertible into or exchangeable or
exercisable for securities that are the same as or similar to those registrable
securities being sold, during the period beginning seven days before and ending
no more than 90 days after the date of the related underwriting agreement.
Purchasers of the registrable securities offered by means of this
prospectus will not have any rights under the registration rights agreement.
Once sold under the registration statement, the registrable securities should be
freely tradeable except by purchasers that are our "affiliates" or are
"underwriters" of the registrable securities for purposes of the Securities Act.
USE OF PROCEEDS
We will not receive any proceeds from any sale by selling stockholders of
shares of common stock offered by this prospectus.
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CERTAIN UNITED STATES TAX CONSEQUENCES
TO NON-U.S. HOLDERS OF COMMON STOCK
This section summarizes certain United States federal income and estate tax
consequences of the ownership and disposition of common stock by a non-U.S.
holder. It is the opinion of Sullivan & Cromwell, our counsel. You are a
non-U.S. holder if you are, for United States federal income tax purposes:
- a nonresident alien individual,
- a foreign corporation,
- a foreign partnership, or
- an estate or trust that in either case is not subject to United States
federal income tax on a net income basis on income or gain from common
stock.
This section does not consider the specific facts and circumstances that
may be relevant to a particular non-U.S. holder and does not address the
treatment of a non-U.S. holder under the laws of any state, local or foreign
taxing jurisdiction. This section is based on the tax laws of the United States,
including the Internal Revenue Code of 1986, as amended, existing and proposed
regulations, and administrative and judicial interpretations, all as currently
in effect. These laws are subject to change, possibly on a retroactive basis.
You should consult a tax advisor regarding the United States federal tax
consequences of acquiring, holding and disposing of common stock in your
particular circumstances, as well as any tax consequences that may arise under
the laws of any state, local or foreign taxing jurisdiction.
DIVIDENDS
Except as described below, if you are a non-U.S. holder of common stock,
dividends paid to you are subject to withholding of United States federal income
tax at a 30% rate or at a lower rate if you are eligible for the benefits of an
income tax treaty that provides for a lower rate. Even if you are eligible for a
lower treaty rate, we and other payors will generally be required to withhold at
a 30% rate (rather than the lower treaty rate) on dividend payments to you,
unless you have furnished to us or another payor:
- a valid Internal Revenue Service Form W-8BEN or an acceptable substitute
form upon which you certify, under penalties of perjury, your status as a
non-United States person and your entitlement to the lower treaty rate
with respect to such payments, or
- in the case of payments made outside the United States to an offshore
account (generally, an account maintained by you at an office or branch of
a bank or other financial institution at any location outside the United
States), other documentary evidence establishing your entitlement to the
lower treaty rate in accordance with U.S. Treasury regulations.
If you are eligible for a reduced rate of United States withholding tax under a
tax treaty, you may obtain a refund of any amounts withheld in excess of that
rate by filing a refund claim with the United States Internal Revenue Service.
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If dividends paid to you are "effectively connected" with your conduct of a
trade or business within the United States, and, if required by a tax treaty,
the dividends are attributable to a permanent establishment that you maintain in
the United States, we and other payors generally are not required to withhold
tax from the dividends, provided that you have furnished to us or another payor
a valid Internal Revenue Service Form W-8ECI or an acceptable substitute form
upon which you certify, under penalties of perjury, that:
- you are a non-United States person, and
- the dividends are effectively connected with your conduct of a trade or
business within the United States and are includible in your gross income.
"Effectively connected" dividends are taxed at rates applicable to United States
citizens, resident aliens and domestic United States corporations.
If you are a corporate non-U.S. holder, "effectively connected" dividends
that you receive may, under certain circumstances, be subject to an additional
"branch profits tax" at a 30% rate or at a lower rate if you are eligible for
the benefits of an income tax treaty that provides for a lower rate.
GAIN ON DISPOSITION OF COMMON STOCK
If you are a non-U.S. holder, you generally will not be subject to United
States federal income tax on gain that you recognize on a disposition of common
stock unless:
- the gain is "effectively connected" with your conduct of a trade or
business in the United States, and the gain is attributable to a permanent
establishment that you maintain in the United States, if that is required
by an applicable income tax treaty as a condition for subjecting you to
United States taxation on a net income basis,
- you are an individual, you hold the common stock as a capital asset, you
are present in the United States for 183 or more days in the taxable year
of the sale and certain other conditions exist, or
- we are or have been a United States real property holding corporation for
federal income tax purposes and you held, directly or indirectly, at any
time during the five-year period ending on the date of disposition, more
than 5% of the common stock and you are not eligible for any treaty
exemption.
If you are a corporate non-U.S. holder, "effectively connected" gains that
you recognize may also, under certain circumstances, be subject to an additional
"branch profits tax" at a 30% rate or at a lower rate if you are eligible for
the benefits of an income tax treaty that provides for a lower rate.
We have not been, are not and do not anticipate becoming a United States
real property holding corporation for United States federal income tax purposes.
FEDERAL ESTATE TAXES
Common stock held by a non-U.S. holder at the time of death will be
included in the holder's gross estate for United States federal estate tax
purposes, unless an applicable estate tax treaty provides otherwise.
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BACKUP WITHHOLDING AND INFORMATION REPORTING
If you are a non-U.S. holder, you are generally exempt from backup
withholding and information reporting requirements with respect to:
- dividend payments and
- the payment of the proceeds from the sale of common stock effected at a
United States office of a broker,
as long as the income associated with such payments is otherwise exempt from
United States federal income tax, and:
- the payor or broker does not have actual knowledge or reason to know that
you are a United States person and you have furnished to the payor or
broker:
- a valid Internal Revenue Service Form W-8BEN or an acceptable
substitute form upon which you certify, under penalties of perjury,
that you are a non-United States person, or
- other documentation upon which it may rely to treat the payments as
made to a non-United States person in accordance with U.S. Treasury
regulations, or
- you otherwise establish an exemption.
Payment of the proceeds from the sale of common stock effected at a foreign
office of a broker generally will not be subject to information reporting or
backup withholding. However, a sale of common stock that is effected at a
foreign office of a broker will be subject to information reporting and backup
withholding if:
- the proceeds are transferred to an account maintained by you in the
United States,
- the payment of proceeds or the confirmation of the sale is mailed to you
at a United States address, or
- the sale has some other specified connection with the United States as
provided in U.S. Treasury regulations,
unless the broker does not have actual knowledge or reason to know that you are
a United States person and the documentation requirements described above are
met or you otherwise establish an exemption.
In addition, a sale of common stock will be subject to information
reporting, but not backup withholding, if it is effected at a foreign office of
a broker that is:
- a United States person,
- a controlled foreign corporation for United States tax purposes,
- a foreign person 50% or more of whose gross income is effectively
connected with the conduct of a United States trade or business for a
specified three-year period, or
- a foreign partnership, if at any time during its tax year:
- one or more of its partners are "U.S. persons", as defined in U.S.
Treasury regulations, who in the aggregate hold more than 50% of the
income or capital interest in the partnership, or
- such foreign partnership is engaged in the conduct of a United States
trade or business,
10
<PAGE> 15
unless the broker does not have actual knowledge or reason to know that you are
a United States person and the documentation requirements described above are
met or you otherwise establish an exemption.
You generally may obtain a refund of any amounts withheld under the backup
withholding rules that exceed your income tax liability by filing a refund claim
with the Internal Revenue Service.
11
<PAGE> 16
SELLING STOCKHOLDERS
This section sets forth information with respect to each selling
stockholder for whom we are registering shares of our common stock for offer and
sale to the public under the registration statement of which this prospectus is
a part.
In addition to the information included in this section, if shares of
common stock are offered by a selling stockholder under this prospectus, a
prospectus supplement, if required, will include the following information:
- the amount of shares of common stock to be offered for the selling
stockholder's account;
- the amount of shares of common stock to be owned by the selling
stockholder after completion of the offering; and
- the percentage of the common stock, if one percent or more, to be owned
by the selling stockholder after completion of the offering.
Under an investment agreement, dated as of February 23, 1998, the selling
stockholders named in this prospectus and certain other investors purchased
shares of our Series A preferred stock, shares of our Series B preferred stock
and Series A and Series B warrants. The investment agreement has been filed with
the SEC as an exhibit to the registration statement of which this prospectus is
a part. On February 13, 1999, we entered into a share exchange agreement with
the selling stockholders to redistribute the total amount of the dividends
payable among the shares of Series A preferred stock and Series B preferred
stock. Under the share exchange agreement, all shares of Series A preferred
stock owned by the selling stockholders were exchanged for shares of Series D
cumulative preferred stock, and all shares of Series B preferred stock owned by
the selling stockholders were exchanged for shares of Series E cumulative
preferred stock. On February 29, 2000, we repurchased some shares of Series E
cumulative preferred stock and Series D cumulative preferred stock from the
selling stockholders. Such repurchased shares of preferred stock were canceled.
On May 13, 2000 we issued additional shares of Series D cumulative preferred
stock as a dividend to existing holders of the Series D cumulative preferred
stock.
On October 25, 2000 we entered into the exchange and repurchase agreement
with the selling stockholders and the other holders of the Series D and Series E
cumulative preferred stock and the Series A and Series B warrants, under which,
on December 22, 2000, we repurchased from the selling stockholders, and the
other holders of these securities, certain of the outstanding Series D
cumulative preferred stock and the Series A warrants for a cash payment and
exchanged all remaining outstanding Series D and Series E cumulative preferred
stock and warrants for our common stock, by the exercise by the selling
stockholders, and the other holders, of certain of the warrants and the delivery
to us by such selling stockholders, and the other holders, of the preferred
stock in payment of the exercise price of the warrants. The selling stockholders
received a total of 10,829,507 shares of common stock pursuant to this
transaction.
As of the date of this prospectus, the selling stockholders held a total of
10,829,507 shares of common stock.
Under the investment agreement, we agreed to increase the number of our
directors to a minimum of 11 directors and a maximum of 13 directors and to
appoint Norman C. Payson, M.D., as our chief executive officer and as a
director. We also agreed that TPG Partners II and its affiliates would be
entitled to nominate four directors to our board of directors, subject to
adjustment based on the number of warrants and warrant stock
12
<PAGE> 17
beneficially owned by TPG Partners II and its affiliates. Dr. Payson was elected
chief executive officer and joined our board of directors in May 1998. David
Bonderman, Jonathan J. Coslet and James G. Coulter were nominated by TPG
Partners II and its affiliates pursuant to the investment agreement and joined
our board of directors in May 1998. Kent J. Thiry was also nominated by TPG
Partners II and its affiliates pursuant to the investment agreement and joined
our board of directors in August 1998. This entitlement of TPG Partners II and
its affiliates to nominate directors to our board was terminated on December 22,
2000, under the terms of the exchange and repurchase agreement.
Mr. Bonderman is a director and president of TPG Advisors II, Inc., Mr.
Coulter is a director and vice president of TPG Advisors II, Inc., and Mr.
Coslet is an executive of TPG Advisors II, Inc. TPG Advisors II, Inc. is the
general partner of TPG GenPar II, L.P., which is the general partner of each of
TPG Partners II, L.P., TPG Parallel II, L.P. and TPG Investors II, L.P., each a
selling stockholder.
In connection with the investment agreement, we also entered into the
registration rights agreement pursuant to which we agreed to register the
offered common stock under the Securities Act for offer and sale by the selling
stockholders and to certain holders to whom they may transfer those securities.
For a summary of certain provisions of the registration rights agreement, see
"Registration Rights Agreement" on page 6.
Immediately following the exchange and repurchase, pursuant to the terms of
the exchange and repurchase agreement the investment agreement terminated except
for certain indemnification provisions which survived.
We have filed with the SEC under the Securities Act a shelf registration
statement on Form S-3, of which this prospectus is a part, with respect to the
offer and sale of the shares of common stock covered by this prospectus. We have
agreed, among other things, to bear certain expenses in connection with the
registration and sale of the securities being offered by the selling
stockholders. For more information regarding these expenses, see "Plan of
Distribution" beginning on page 15.
13
<PAGE> 18
The following table provides the name of each selling stockholder and the
number of shares of offered common stock held by each selling stockholder as of
the date of this prospectus. All of these securities have been registered for
offer and sale under the shelf registration statement of which this prospectus
is a part.
<TABLE>
<CAPTION>
NUMBER OF SHARES
OF OFFERED
NAME OF BENEFICIAL OWNER COMMON STOCK HELD
------------------------ -----------------
<S> <C>
TPG Partners II, L.P........................................ 7,495,758
TPG Parallel II, L.P. ...................................... 511,530
TPG Investors II, L.P. ..................................... 781,885
Chase Equity Associates, L.P................................ 470,847
DLJ Merchant Banking Partners II, L.P....................... 790,932
DLJ Merchant Banking Partners II-A, L.P..................... 31,498
DLJ Offshore Partners II, C.V............................... 38,893
DLJ Diversified Partners, L.P............................... 46,241
DLJ Diversified Partners-A, L.P............................. 17,172
DLJMB Funding II, Inc....................................... 140,426
DLJ Millennium Partners, L.P................................ 12,788
DLJ Millennium Partners-A, L.P.............................. 2,494
DLJ EAB Partners, L.P....................................... 3,550
UK Investment Plan 1997 Partners............................ 20,926
DLJ ESC II L.P.............................................. 171,884
DLJ First ESC, L.P.......................................... 1,521
DLJ Capital Corporation..................................... 4,170
Sprout Growth II, L.P....................................... 192,465
The Sprout CEO Fund, L.P.................................... 3,183
Sprout Capital VIII, L.P.................................... 86,143
Sprout Venture Capital, L.P................................. 5,201
Total....................................................... 10,829,507
</TABLE>
14
<PAGE> 19
PLAN OF DISTRIBUTION
As of the date of this prospectus, the selling stockholders held the shares
of offered common stock covered by this prospectus. As used in the rest of this
section of this prospectus, the term "selling stockholders" includes the selling
stockholders named in the table under "Selling Stockholders" beginning on page
12 of this prospectus and some of their pledgees, donees, transferees or other
successors in interest selling securities received from a named selling
stockholder after the date of this prospectus. The shares of offered common
stock covered by this prospectus are referred to in this section as the
"registrable securities." The selling stockholders may offer and sell, from time
to time, some or all of the registrable securities under this prospectus. The
selling stockholders may also offer and sell the registrable securities other
than pursuant to the registration statement of which this prospectus is a part
in the event that an exemption from the registration requirements of the
Securities Act is available for such offers and sales. We have registered the
registrable securities for offer and sale by the selling stockholders so that
the registrable securities will be freely tradeable by them. Registration of the
registrable securities does not mean, however, that the registrable securities
necessarily will be offered or sold. We will not receive any proceeds from any
sale by the selling stockholders of the registrable securities. We will pay all
costs, expenses and fees in connection with the registration of the registrable
securities, including fees of our counsel and accountants, fees payable to the
SEC, listing fees and the reasonable fees and disbursements of one law firm
selected as counsel for the selling stockholders in connection with the
registration. The selling stockholders will pay all underwriting discounts and
commissions and similar selling expenses, if any, attributable to the sale of
the registrable securities.
The selling stockholders may sell the registrable securities from time to
time, at market prices prevailing at the time of sale, at prices related to
market prices, at a fixed price, at prices subject to change or at negotiated
prices, by a variety of methods, including the following:
- on markets where our securities are traded or on an exchange in
accordance with the rules of the exchange;
- in privately negotiated transactions;
- through broker-dealers, which may act as agents or principals;
- in a block trade in which a broker-dealer will attempt to sell a block of
registrable securities as agent but may position and resell a portion of
the block as principal to facilitate the transaction;
- through one or more underwriters on a firm commitment or best-efforts
basis;
- directly to one or more purchasers;
- through agents;
- through option transactions, forward contracts, equity swaps or other
derivative transactions relating to the registrable securities;
- through short sales of the registrable securities;
- in any combination of the above; or
- by any other legally available means.
15
<PAGE> 20
In effecting sales, brokers or dealers engaged by the selling stockholders
may arrange for other brokers or dealers to participate. Broker-dealer
transactions may include:
- purchases of the registrable securities by a broker-dealer as principal
and resales of the registrable securities by the broker-dealer for its
account pursuant to this prospectus;
- ordinary brokerage transactions; or
- transactions in which the broker-dealer solicits purchasers.
If we or the selling stockholders enter into a material arrangement with
any underwriter, broker, dealer or other agent for the sale of any registrable
securities through a secondary distribution or a purchase by a broker or dealer,
or if we or the selling stockholders make other material changes in the plan of
distribution of the registrable securities, we will file a prospectus
supplement, if necessary, under the Securities Act disclosing the material terms
and conditions of such arrangement. If we or the selling stockholders use an
underwriter or underwriters in the sale of registrable securities, we and the
selling stockholders expect to execute an underwriting agreement with the
underwriter or underwriters at the time an agreement for the sale is reached. We
will set forth the underwriter or underwriters with respect to an underwritten
offering of registrable securities and the other material terms and conditions
of the underwriting in a prospectus supplement relating to such offering and, if
we or the selling stockholders use an underwriting syndicate, we will set forth
the managing underwriter or underwriters on the cover of the prospectus
supplement. In connection with the sale of registrable securities, underwriters
will receive compensation in the form of underwriting discounts or commissions
and may also receive commissions from purchasers of registrable securities for
whom they may act as agent. Underwriters may sell to or through dealers, and
such dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agent.
The selling stockholders and any underwriters, broker-dealers or agents
participating in the distribution of the registrable securities may be deemed to
be "underwriters" within the meaning of the Securities Act, and any profit on
the sale of the registrable securities by the selling stockholders and any
commissions received by any such underwriters, broker-dealers or agents may be
deemed to be underwriting commissions under the Securities Act. We have agreed
to indemnify the selling stockholders and each person or entity which
participates as or may be deemed to be an underwriter in the offering or sale of
the selling stockholders' registrable securities against certain liabilities
(and to contribute to payments in respect of those liabilities), including
liabilities arising under the Securities Act. The selling stockholders may agree
to indemnify any agent or broker-dealer that participates in transactions
involving offers or sales of the registrable securities against certain
liabilities, including liabilities arising under the Securities Act.
VALIDITY OF SECURITIES
The validity of the shares of common stock offered hereby will be passed
upon for us by Sullivan & Cromwell, New York, New York.
16
<PAGE> 21
EXPERTS
The consolidated financial statements of Oxford Health Plans, Inc. at
December 31, 1999 and 1998 and for each of the years in the two-year period
ended December 31, 1999, included in Oxford Health Plans, Inc.'s annual report
on Form 10-K for the year ended December 31, 1999, which is incorporated in this
prospectus by reference, have been audited by Ernst & Young LLP, independent
auditors, and for the year ended December 31, 1997, by KPMG LLP, independent
auditors, as set forth in their respective reports thereon included therein and
incorporated in this prospectus by reference. These consolidated financial
statements are incorporated in this prospectus by reference in reliance upon
such reports given on the authority of these firms as experts in accounting and
auditing.
With respect to the unaudited condensed consolidated interim financial
information for the three-month periods ended March 31, 2000 and 1999, the
three-month and six-month periods ended June 30, 2000 and 1999 and the
three-month and nine-month periods ended September 30, 2000 and 1999
incorporated by reference in this prospectus, Ernst & Young LLP has reported
that it has applied limited procedures in accordance with professional standards
for a review of such information. Ernst & Young LLP's separate reports, included
in Oxford Health Plans, Inc.'s quarterly report on Form 10-Q for the quarter
ended March 31, 2000 with respect to the unaudited financial information as of
March 31, 2000 and the three-month periods ended March 31, 2000 and 1999. Oxford
Health Plans, Inc.'s quarterly report on Form 10-Q for the quarter ended June
30, 2000 with respect to the unaudited financial information as of June 30, 2000
and the three-month and six-month periods ended June 30, 2000 and 1999, and
Oxford Health Plans, Inc.'s quarterly report on Form 10-Q for the quarter ended
September 30, 2000 with respect to the unaudited financial information as of
September 30, 2000 and the three-month and nine-month periods ended September
30, 2000 and 1999, and incorporated in this prospectus by reference, state that
it did not audit and it does not express an opinion on that interim financial
information. Accordingly, the degree of reliance on its reports on such
information should be restricted considering the limited nature of the review
procedures applied. The independent auditors are not subject to the liability
provisions of Section 11 of the Securities Act of 1933 for its reports on the
unaudited interim financial information because those reports are not a "report"
or a "part" of the registration statement prepared or certified by the auditors
within the meaning of Sections 7 and 11 of the Securities Act of 1933.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. We have also filed with the SEC a registration
statement on Form S-3 to register the common stock. This prospectus, which forms
part of the registration statement, does not contain all of the information
included in that registration statement. For further information about Oxford
and the securities offered in this prospectus, you should refer to the
registration statement and its exhibits.
You may read and copy any document we file with the SEC at the SEC's Public
Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call
the SEC at 1-800-SEC-0330 for further information on the operation of the Public
Reference Room. We file our SEC materials electronically with the SEC, so you
can also review our filings by accessing the web site maintained by the SEC at
http://www.sec.gov. This site contains reports, proxy and information statements
and other information regarding issuers that file electronically with the SEC.
17
<PAGE> 22
Our principal executive offices are located at 48 Monroe Turnpike,
Trumbull, CT 06611, and our main telephone number is (203) 459-6000.
The SEC allows us to "incorporate by reference" the information we file
with them, which means we can disclose important information to you by referring
you to those documents. The information included in the following documents is
incorporated by reference and is considered to be a part of this prospectus. The
most recent information that we file with the SEC automatically updates and
supersedes more dated information. We have previously filed the following
documents with the SEC and are incorporating them by reference into this
prospectus:
- Our Annual Report on Form 10-K for the fiscal year ended December 31,
1999, filed on March 24, 2000;
- Our Quarterly Reports on Form 10-Q for the three-month period ended March
31, 2000, filed on April 28, 2000, for the three-month and six-month
periods ended June 30, 2000, filed on July 28, 2000 and for the
three-month and nine-month periods ended September 30, 2000, filed on
October 27, 2000, as amended;
- Our Registration Statements on Form S-8 filed on March 24, 2000 and
August 3, 2000;
- Our Current Reports on Form 8-K filed on January 5, 2000, February 24,
2000, March 1, 2000, March 20, 2000, April 26, 2000, May 17, 2000, as
amended May 26, 2000, July 27, 2000 and October 26, 2000 and December 27,
2000; and
- The description of our common stock contained in the Registration
Statement on Form 8-A dated August 1, 1991, filed pursuant to Section 12
of the Securities Exchange Act of 1934.
We also are incorporating into this prospectus all documents subsequently
filed by us pursuant to Section 13(a), 13(c) 14 or 15(d) of the Securities
Exchange Act of 1934.
We will provide without charge to each person, including any person having
a control relationship with that person, to whom a prospectus is delivered, a
copy of any or all of the information that has been incorporated by reference in
this prospectus but not delivered with this prospectus. If you would like to
obtain this information from us, please direct your request, either in writing
or by telephone, to:
Investor Relations
Oxford Health Plans, Inc.
48 Monroe Turnpike
Trumbull, CT 06611
(203) 459-6000
18
<PAGE> 23
FORWARD-LOOKING STATEMENTS
Some statements and information contained in this prospectus are not
historical facts, but are "forward-looking statements," as such term is defined
in the Private Securities Litigation Reform Act of 1995. We wish to caution you
that these forward-looking statements are only predictions, and actual events or
results may differ materially as a result of risks that we face, including those
risks set forth in our annual report on Form 10-K for the year ended December
31, 1999, under the heading "Cautionary Statement Regarding Forward-Looking
Statements", and any risks set forth in any prospectus supplement. These
forward-looking statements can be identified by the use of forward-looking
terminology such as "believes," "expects," "plans," "may," "will," "would,"
"could," "should," or "anticipates" or the negative of these words or other
variations of these words or other comparable words, or by discussions of
strategy that involve risks and uncertainties. Such forward-looking statements
include, but are not limited to, statements concerning future results of our
operations or financial position.
19
<PAGE> 24
------------------------------------------------------
------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS IN
CONNECTION WITH THE OFFERING COVERED BY THIS PROSPECTUS. IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY US OR THE SELLING STOCKHOLDERS. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER
TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, SHARES OF OFFERED COMMON STOCK IN
ANY JURISDICTION WHERE, OR TO ANY PERSON TO WHOM, IT IS UNLAWFUL TO MAKE SUCH
OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS
NOT BEEN ANY CHANGE IN THE FACTS SET FORTH IN THIS PROSPECTUS OR IN OUR AFFAIRS
SINCE THE DATE HEREOF.
-------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Summary............................... 1
Business.............................. 3
Registration Rights Agreement......... 6
Use of Proceeds....................... 7
Certain United States Tax Consequences
to Non-U.S. Holders of Common
Stock............................... 8
Selling stockholders.................. 12
Plan of Distribution.................. 15
Validity of Securities................ 16
Experts............................... 17
Where You Can Find More Information... 17
Forward-Looking Statements............ 19
</TABLE>
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
[OXFORD HEALTH PLANS LOGO]
Shares of Common Stock
-------------
Prospectus
-------------
, 2001
------------------------------------------------------
------------------------------------------------------
<PAGE> 25
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the issuance and distribution of
the securities being registered are:
<TABLE>
<S> <C>
Registration Fee.......................................... $189,985.01
Fees and Expenses of Accountants.......................... 107,000.00
Fees and Expenses of Counsel.............................. 200,000.00
Blue Sky Fees and Expenses................................ 0
Printing and Engraving Expenses........................... 150,000.00
Rating Agency Fees........................................ 0
Agent's Fees.............................................. 0
Miscellaneous............................................. 0
-----------
Total........................................... $646,985.01
===========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law permits indemnification
against expenses, fines, judgments and settlements incurred by any director,
officer or employee of Oxford in the event of pending or threatened civil,
criminal, administrative or investigative proceedings, if such person was, or
was threatened to be made, a party by reason of the fact that he is or was a
director, officer or employee of Oxford. Section 145 also provides that the
indemnification provided for therein shall not be deemed exclusive of any other
rights to which those seeking indemnification may otherwise be entitled.
Article Eighth of the Second Amended and Restated Certificate of
Incorporation, as amended, of Oxford provides that Oxford shall indemnify its
officers and directors to the fullest extent permitted by law. Article Ninth of
the Second Amended and Restated Certification of Incorporation, as amended, of
Oxford provides that to the fullest extent permitted by the Delaware General
Corporation Law as the same exists or may hereafter be amended, a director of
Oxford shall not be liable to Oxford or its stockholders for monetary damages
for breach of fiduciary duty as a director.
Section 6.4 of the Amended and Restated By-laws of Oxford states:
"Section 6.4. INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES. The
Corporation shall indemnify to the fullest extent permitted by law any person
made or threatened to be made a party to any action, suit or proceeding, whether
criminal, civil, administrative or investigative, including any action
instituted by or on behalf of the Corporation, by reason of the fact that such
person or such person's testator or intestate is or was a director or officer of
the Corporation or serves or served at the request of the Corporation any other
enterprise as a director or officer. Expenses incurred by any such person in
defending any such actions, suit or proceeding shall be paid or reimbursed by
the Corporation promptly upon receipt by it of an undertaking of such person to
repay such expense if it shall ultimately be determined that such person is not
entitled to be indemnified by the Corporation. The rights provided to any person
by this by-law shall be enforceable against the Corporation by such person who
shall be presumed to have relied upon it in serving or continuing to serve as a
director or officer as provided above. No amendment of this
II-1
<PAGE> 26
by-law shall impair the rights of any person arising at any time with respect to
events occurring prior to such amendment. To the extent permitted by Delaware
law, the Board may cause the Corporation to indemnify and reimburse other
employees of the Corporation as it deems appropriate. For purposes of this
by-law, the term "Corporation" shall include any predecessor of the Corporation
and any constituent corporation (including any constituent of a constituent)
absorbed by the Corporation in a consolidation or merger; the term "other
enterprise" shall include any corporation, partnership, joint venture, trust or
employee benefit plan; service "at the request of the Corporation" shall include
service as a director or officer of the Corporation, which imposes duties on, or
involves services by, such director or officer with respect to any other
enterprise or any employee benefit plan, its participants or beneficiaries; any
excise taxes assessed on a person with respect to an employee benefit plan,
shall be deemed to be indemnifiable expenses; and action by a person with
respect to any employee benefit plan which such person reasonably believes to be
in the interest of the participants and beneficiaries of such plan shall be
deemed to be action not opposed to the best interests of the Corporation."
Section 145 of the Delaware General Corporation Law permits the
indemnification provided for by the above by-law provision. The statute further
permits Oxford to insure itself for such indemnification.
Oxford maintains insurance coverage for its directors and officers with
respect to certain liabilities incurred in their capacities as such and for
Oxford with respect to any payments which it becomes obligated to make to such
persons under the foregoing by-law and statutory provisions.
II-2
<PAGE> 27
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<S> <C>
2 Investment Agreement, dated February 23, 1998, between
Oxford Health Plans, Inc. and TPG Oxford LLC, incorporated
by reference to Exhibit 10(r) of Oxford's Annual Report on
Form 10-K/A for the period ended December 31, 1998 (File No.
0-19442)
4.1 Second Amended and Restated Certificate of Incorporation, as
amended, of Oxford Health Plans, Inc., incorporated by
reference to Exhibit 3(a) of Oxford's Amended Quarterly
Report on Form 10-Q/A for the three months ended September
30, 2000, filed on November 15, 2000 (File No. 0-19442)
4.2 Amended and Restated By-laws of Oxford Health Plans, Inc.,
incorporated by reference to Exhibit 3(b) of Oxford's Annual
Report on Form 10-K/A for the period ended December 31, 1998
(File No. 0-19442)
5 Opinion of Sullivan & Cromwell as to legality*
8 Opinion of Sullivan and Cromwell as to tax matters*
10.1 Registration Rights Agreement, dated as of February 23,
1998, between Oxford Health Plans, Inc. and TPG Oxford LLC,
incorporated by reference to Exhibit 10(s) of Oxford's
Annual Report on Form 10-K/A for the period ended December
31, 1998 (File No. 0-19442)
10.2 Exchange and Repurchase Agreement, dated as of October 25,
2000, between Oxford Health Plans, Inc., TPG Partners II,
L.P., and the other parties thereto, incorporated by
reference to Exhibit 10 of Oxford's Amended Quarterly Report
on Form 10-Q/A for the three months ended September 30,
2000, filed on November 15, 2000 (File No. 0-19442).
10.3 Credit Agreement, dated as of December 22, 2000, among
Oxford Health Plans, Inc., the financial institutions listed
therein as Lenders, Credit Suisse First Boston, as
Administrative Agent and the other parties thereto*
15 Letter of Ernst & Young LLP re: unaudited condensed
consolidated interim financial information*
23.1 Consent of Ernst & Young LLP*
23.2 Consent of KPMG LLP*
23.3 Consent of Sullivan & Cromwell (included in their opinion
filed as Exhibit 5)
</TABLE>
-------------------------
* Filed herewith
II-3
<PAGE> 28
ITEM 17. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) 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
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 and of the estimated maximum offering range may be
reflected in the form of a prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 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) 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;
(b) 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.
(c) 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.
2. 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 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.
3. 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 provisions referred to in Item 15 of this
Registration Statement, 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 of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification by the
registrant 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
II-4
<PAGE> 29
connection with the securities being registered, the registrant will, unless in
the opinion of their counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by them is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
4. The undersigned registrant hereby undertakes that:
(a) 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 of 1933 shall be deemed to be part of this registration
statement as of the time it was declared effective.
(b) 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.
II-5
<PAGE> 30
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 Trumbull, State of Connecticut, on January 9, 2001.
Oxford Health Plans, Inc.
By: /s/ NORMAN C. PAYSON, M.D.
-----------------------------------
Norman C. Payson, M.D.
Chief Executive Officer
II-6
<PAGE> 31
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ NORMAN C. PAYSON, M.D. Principal Executive January 9, 2001
------------------------------------------------ Officer and Chairman
Norman C. Payson, M.D. of the Board
/s/ KURT B. THOMPSON Principal Financial January 9, 2001
------------------------------------------------ Officer
Kurt B. Thompson
/s/ MARC M. KOLE Principal Accounting January 9, 2001
------------------------------------------------ Officer
Marc M. Kole
/s/ DAVID BONDERMAN Director January 9, 2001
------------------------------------------------
David Bonderman
/s/ JOSEPH W. BROWN, JR. Director January 9, 2001
------------------------------------------------
Joseph W. Brown, Jr.
/s/ JONATHAN J. COSLET Director January 9, 2001
------------------------------------------------
Jonathan J. Coslet
/s/ JAMES G. COULTER Director January 9, 2001
------------------------------------------------
James G. Coulter
/s/ ROBERT B. MILLIGAN, JR. Director January 9, 2001
------------------------------------------------
Robert B. Milligan, Jr.
/s/ FRED F. NAZEM Director January 9, 2001
------------------------------------------------
Fred F. Nazem
Director January 9, 2001
------------------------------------------------
Benjamin H. Safirstein, M.D.
/s/ THOMAS A. SCULLY Director January 9, 2001
------------------------------------------------
Thomas A. Scully
/s/ KENT J. THIRY Director January 9, 2001
------------------------------------------------
Kent J. Thiry
</TABLE>
II-7
<PAGE> 32
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
2 Investment Agreement, dated February 23, 1998, between
Oxford Health Plans, Inc. and TPG Oxford LLC, incorporated
by reference to Exhibit 10(r) of Oxford's Annual Report on
Form 10-K/A for the period ended December 31, 1998 (File No.
0-19442)
4.1 Second Amended and Restated Certificate of Incorporation, as
amended, of Oxford Health Plans, Inc., incorporated by
reference to Exhibit 3(a) of Oxford's Amended Quarterly
Report on Form 10-Q/A for the three months ended September
30, 2000, filed on November 15, 2000 (File No. 0-19442)
4.2 Amended and Restated By-laws of Oxford Health Plans, Inc.,
incorporated by reference to Exhibit 3(b) of Oxford's Annual
Report on Form 10-K/A for the period ended December 31, 1998
(File No. 0-19442)
5 Opinion of Sullivan & Cromwell as to legality*
8 Opinion of Sullivan and Cromwell as to tax matters*
10.1 Registration Rights Agreement, dated as of February 23,
1998, between Oxford Health Plans, Inc. and TPG Oxford LLC,
incorporated by reference to Exhibit 10(s) of Oxford's
Annual Report on Form 10-K/A for the period ended December
31, 1998 (File No. 0-19442)
10.2 Exchange and Repurchase Agreement, dated as of October 25,
2000, between Oxford Health Plans, Inc., TPG Partners II,
L.P., and the other parties thereto, incorporated by
reference to Exhibit 10 of Oxford's Amended Quarterly Report
on Form 10-Q/A for the three months ended September 30,
2000, filed on November 15, 2000 (File No. 0-19442).
10.3 Credit Agreement, dated as of December 22, 2000, among
Oxford Health Plans, Inc., the financial institutions listed
therein as Lenders, Credit Suisse First Boston, as
Administrative Agent and the other parties thereto*
15 Letter of Ernst & Young LLP re: unaudited condensed
consolidated interim financial information*
23.1 Consent of Ernst & Young LLP*
23.2 Consent of KPMG LLP*
23.3 Consent of Sullivan & Cromwell (included in their opinion
filed as Exhibit 5)
</TABLE>
-------------------------
* Filed herewith
