AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 16, 2006
REGISTRATION NO. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
HEALTHMARKETS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 75-2044750
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
9151 BOULEVARD 26
NORTH RICHLAND HILLS, TEXAS 76180
(Address of Principal Executive (Zip Code)
Offices)
Registrant's Telephone Number, Including Area Code:
(817) 255-5200
HEALTHMARKETS 2006 MANAGEMENT OPTION PLAN
(Full Title of the Plan)
GLENN W. REED, ESQ.
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
HEALTHMARKETS, INC.
9151 BOULEVARD 26
NORTH RICHLAND HILLS, TEXAS 76180
(817) 255-5200
(Name, Address and Telephone Number of Agent for Service)
CALCULATION OF REGISTRATION FEE
===============================================================================
PROPOSED
MAXIMUM PROPOSED
AMOUNT OFFERING MAXIMUM
TITLE OF TO BE PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED PER SHARE OFFERING REGISTRATION
REGISTERED (1) (2) (3) PRICE FEE
----------------- ---------- ----------- --------- ------------
Class A-1 Common
Stock, par value
$.01 per share 2,339,341 $ 37.00 $ 86,555,617 $ 9,261.46
===============================================================================
(1) In addition, pursuant to Rule 416(c) promulgated under the Securities Act of
1933, this registration statement also covers an indeterminate amount of
additional securities in order to adjust the number of securities registered
as a result of a stock split, stock dividend or similar transaction
affecting the class A-1 common stock.
(2) We are registering 2,339,341 shares of our class A-1 common stock that we
may issue upon the exercise of stock options issued or to be issued pursuant
to the HealthMarkets 2006 Management Option Plan (the "Plan"). The Plan
authorizes the issuance of a maximum of 1,489,741 shares of our class A-1
common stock pursuant to stock options granted to eligible employees, plus
up to 849,600 shares that may be granted pursuant to Tandem Options (as
defined in the Plan). All of the shares issuable under the Plan are being
registered under this registration statement on Form S-8.
(3) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h) of the Securities Act of 1933 based upon the
exercise price of the options to be issued pursuant to the Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have heretofore been filed by HealthMarkets,
Inc. (the "Company" or "Registrant") with the Securities and Exchange
Commission (File No. 1-14953) are incorporated by reference herein and shall
be deemed to be a part hereof:
(a) Annual Report on Form 10-K for the fiscal year ended December 31,
2005;
(b) Quarterly Report on Form 10-Q for the three months ended on March 31,
2006; and
(c) Current Reports on Form 8-K filed on February 17, 2006, March 20,
2006, March 30, 2006, April 5, 2006, April 10, 2006, April 11, 2006,
April 17, 2006, May 12, 2006, and May 16, 2006.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 prior to the
termination of the offering of the offered securities shall be deemed to be
incorporated by reference in this registration statement and to be a part of
this registration statement from the date of filing of such documents. Any
statement contained in this registration statement or in a document incorporated
or deemed to be incorporated by reference in this registration statement shall
be deemed to be modified or superseded for purposes of this registration
statement to the extent that a statement contained in this registration
statement, or in any subsequently filed document which is incorporated or deemed
to be incorporated by reference in this registration statement, modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
The class A-1 common stock is subject to the following terms:
DIVIDEND RIGHTS
The board of directors of the Company may, but is not obligated to, declare
dividends at its discretion. Before any dividends are paid on the Company's
common stock, the holders of any preferred stock that may be issued will be
entitled to receive their dividends at the rates provided for the shares of
their series. Any dividends that may be declared on the common stock will be
paid in an equal amount for each share of class A-1 and class A-2 common stock.
Restrictions on the payment of cash dividends may be imposed in connection with
future issuances of preferred stock and indebtedness by the Company. Any
decisions as to the payment of cash dividends will be made by the board in light
of then current conditions, including earnings, operations, capital
requirements, liquidity, financial condition, restrictions in financing
arrangements and any other relevant factors as determined by the board.
VOTING RIGHTS
Each outstanding share of class A-1 common stock and class A-2 common stock is
entitled to one vote per share on each matter submitted to a vote of the
stockholders, voting together as a single
class. The affirmative vote of a majority of the common stock present in person
or by proxy and entitled to vote, voting as a single class, is required to
approve any act or action requiring a vote of the common stockholders.
Pursuant to Delaware law, any amendment to the charter also requires approval by
the affirmative vote of holders of a majority of the voting power of each
affected class voting separately as a class, in addition to the affirmative vote
of holders of a majority of the voting power of all classes of common stock,
voting together as a single class.
LIQUIDATION RIGHTS
Upon the liquidation, dissolution or winding up of the Company, after payment of
creditors and any liquidation preference of preferred stock that may be issued,
the remaining net assets of the Company will be distributed pro rata to the
holders of the common stock.
TRANSFER RESTRICTIONS
The holders of class A-1 common stock have entered into a stockholders agreement
(the "Stockholders Agreement") which provides that shares of class A-1 common
stock may only be transferred, and the holder may only agree to transfer shares
of class A-1 common stock, as follows:
o to the Company;
o upon the death of the holder, pursuant to applicable laws of descent and
distribution;
o for estate planning purposes, pursuant to a transfer to the holder's
immediate family, whether directly or indirectly by means of a trust or
partnership or other bona fide estate-planning vehicle the only beneficiaries
of which the holder's immediate family;
o after an initial public offering of the Company (and subject to the
provisions of the registration rights and coordination agreement into which
the holders of class A-1 common stock have entered), in a registered public
offering; pursuant to Rule 144 promulgated under the Securities Act of 1933,
as amended (the "Securities Act"); in a distribution of shares by a private
equity investor to its general or limited partners, members, managers or
shareholders; or with the approval of the private equity investors holding a
majority of the shares held by the private equity investors; and
o pursuant to the provisions in "-- Required Sale of Shares" set forth below.
REQUIRED SALE OF SHARES
If affiliates of The Blackstone Group, Goldman Sachs Capital Partners and DLJ
Merchant Banking Partners collectively own at least fifty percent (50%) of the
Company's outstanding class A-1 common stock, and affiliates of these private
equity firms owning at least thirty-five percent (35%) of the Company's class
A-1 common stock enter into a definitive written agreement to sell shares of the
Company's common stock to any third party which, taking into account all shares
to be transferred in this and all related transactions, would result in the
transfer of greater than 50% of the outstanding common stock of the Company,
then the selling affiliates will have the option pursuant to the Stockholders
Agreement to obligate each holder of class A-1 common stock to sell the same
proportion of the holder's shares as is sold by the selling affiliates. Upon the
exercise of this required sale option, each holder of class A-1 common stock
will be subject to the same terms as those applicable to shares held by the
selling affiliates, including, but not limited to, the obligation to have a
portion of the purchase price held back or held in escrow pending the
satisfaction of any indemnity obligations.
REDEMPTION
-2-
The certificate of incorporation does not provide for redemption rights with
respect to class A-1 common stock.
TRANSFER AGENT
The transfer agent for the Company's class A-1 common stock is Mellon Investor
Services LLC.
STOCK EXCHANGE LISTING
The Company's class A-1 common stock is not listed on any stock exchange.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The consolidated financial statements and schedules of the Company as of
December 31, 2005 and 2004, and for each of the years in the three-year period
ended December 31, 2005, and management's assessment of the effectiveness of
internal control over financial reporting as of December 31, 2005 have been
incorporated by reference herein, in reliance upon the reports of KPMG LLP,
independent registered public accounting firm, incorporated by reference herein,
and upon the authority of said firm as experts in accounting and auditing.
The legality of the shares of class A-1 common stock of the Company to be issued
in connection with the Plan is being passed upon for the Company by Glenn W.
Reed, Executive Vice President and General Counsel of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145(a) of the Delaware General Corporation Law provides that a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding if the person acted in good
faith and in a manner the person reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his or her conduct was
unlawful.
Section 145(b) of the Delaware General Corporation Law provides that a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the
fact that such person acted in any of the capacities set forth above, against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action or suit if
the person acted in good faith and in a manner the person reasonably believed to
be in or not opposed to the best interests of the corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation,
unless and only to the extent that the court in which such action or suit was
brought shall determine that, despite the adjudication of liability but in view
of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem proper.
-3-
Further subsections of Delaware General Corporation Law Section 145 provide
that:
o to the extent a present or former director or officer of a corporation has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in subsections (a) and (b) of Section 145 or in
defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith;
o the indemnification and advancement of expenses provided for pursuant to
Section 145 shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or
otherwise; and
o the corporation shall have the power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against any liability asserted
against such person and incurred by such person in any such capacity, or
arising out of such person's status as such, whether or not the corporation
would have the power to indemnify such person against such liability under
Section 145.
Article IX of the Company's certificate of incorporation (i) authorizes the
indemnification of directors and officers (the "Indemnitees") under specified
circumstances to the fullest extent authorized by the Delaware General
Corporation Law, (ii) provides for the advancement of expenses to the
Indemnitees for defending any proceedings related to the specified
circumstances, (iii) gives the Indemnitees the right to bring suit against the
Company to enforce the foregoing rights to indemnification and advancement of
expenses, and (iv) authorizes the Company to maintain certain policies of
insurance to protect itself and any of its directors, officers or employees. The
Registrant has an insurance policy covering its directors and officers against
certain personal liability, which may include liabilities under the Securities
Act of 1933.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See the Index to Exhibits, which is incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
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
together, represent a fundamental change in the
-4-
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in the
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 Securities and Exchange Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii)To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a) (i) and (a) (ii) do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Securities and Exchange Commission by the
Registrant pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference 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
treated to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be treated to be the initial bona fide offering thereof.
(c) To file a post-effective amendment to remove from registration any of
the securities being registered that remain unsold at the termination
of the offering.
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.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 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 of 1933 and will be governed by the final adjudication of such issue.
-5-
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-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of North Richland Hills, State of Texas, on May 16, 2006.
HEALTHMARKETS, INC.
By: /s/ Glenn W. Reed
--------------------------
Name: Glenn W. Reed
Title: Executive Vice President
and General Counsel
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 date indicated.
SIGNATURE TITLE DATE
*
---------------------------
William J. Gedwed President, Chief Executive May 16, 2006
Officer and Director
*
---------------------------
Mark D. Hauptman Vice President, Chief May 16, 2006
Financial Officer and
Chief Accounting Officer
(principal financial
officer and principal
accounting officer)
*
---------------------------
Chinh E. Chu Director May 16, 2006
*
---------------------------
Matthew Kabaker Director May 16, 2006
*
---------------------------
Adrian M. Jones Director May 16, 2006
*
---------------------------
Nathaniel Zilkha Director May 16, 2006
-6-
*
---------------------------
Kamil M. Salame Director May 16, 2006
*
---------------------------
Mural R. Josephson Director May 16, 2006
*By:
/s/ Glenn W. Reed
----------------------------
Glenn W. Reed May 16, 2006
(Attorney-In-Fact)
-7-
INDEX TO EXHIBITS
EXHIBIT DESCRIPTION
-------------- ---------------------------------------------------------------
3.1 Certificate of Incorporation of the Registrant (incorporated by
reference to Exhibit 1 to the Registrant's Registration
Statement on Form 8-A filed on April 5, 2006)
3.2 Certificate of Amendment to Certificate of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 to the
Registrant's Current Report on Form 8-K filed on April 17,
2006)
3.3 By-Laws of the Registrant (incorporated by reference to Exhibit
2 to the Registrant's Registration Statement on Form 8-A filed
on April 5, 2006)
4.1 Stockholders' Agreement, dated as of April 5, 2006, by and
among the Company and certain stockholders named therein
(incorporated by reference to Exhibit 4.1 to the Registrant's
Post-Effective Amendment No. 1 to Registration Statement on
Form S-8 for the UICI Restated and Amended 1987 Stock Option
Plan filed on April 6, 2006)
4.2 Specimen stock certificate of class A-1 common stock
(incorporated by reference to Exhibit 4.2 to the Registrant's
Post-Effective Amendment No. 1 to Registration Statement on
Form S-8 for the UICI Restated and Amended 1987 Stock Option
Plan filed on April 6, 2006)
4.3 Registration Rights and Coordination Committee Agreement, dated
as of April 5, 2006, by and among the Company and certain
stockholders named therein (incorporated by reference to
Exhibit 10.3 to the Registrant's Current Report on Form 8-K
filed on April 11, 2006)
5.1 Opinion of Glenn W. Reed regarding legality of securities
10.1 HealthMarkets 2006 Management Option Plan (incorporated by
reference to Exhibit 10.1 to the Registrant's Current Report
on Form 8-K filed on May 12, 2006)
23.1 Consent of Registered Public Accounting Firm -- KPMG LLP
23.2 Consent of Glenn W. Reed (included in Exhibit 5.1)
24.1 Powers of Attorney