-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, EmCoZzTWBZQvm4IVd/4Ow8pWWSfdJqPIXZA1imojNWXjksTU9VPTzIiS2Hn1R6x1 PVdMcc1GB30RyohKICElrA== 0000892569-01-501275.txt : 20020412 0000892569-01-501275.hdr.sgml : 20020412 ACCESSION NUMBER: 0000892569-01-501275 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20011211 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: PACIFICARE HEALTH SYSTEMS INC /DE/ CENTRAL INDEX KEY: 0001027974 STANDARD INDUSTRIAL CLASSIFICATION: HOSPITAL & MEDICAL SERVICE PLANS [6324] IRS NUMBER: 954591529 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-50601 FILM NUMBER: 1811487 BUSINESS ADDRESS: STREET 1: 3120 LAKE CENTER DRIVE CITY: SANTA ANA STATE: CA ZIP: 92704 BUSINESS PHONE: 7148255200 MAIL ADDRESS: STREET 1: 3120 LAKE CENTER DRIVE CITY: SANTA ANA STATE: CA ZIP: 92704 FORMER COMPANY: FORMER CONFORMED NAME: N T HOLDINGS INC DATE OF NAME CHANGE: 19961204 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: UNIHEALTH FOUNDATION CENTRAL INDEX KEY: 0001125245 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 955004033 STATE OF INCORPORATION: CA FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 5959 TOPANGA CANYON BLVD STREET 2: #390 CITY: WOODLAND HILLS STATE: CA ZIP: 91367 BUSINESS PHONE: 8188884090 MAIL ADDRESS: STREET 1: 5959 TOPANGA CANYON BLVD STREET 2: #390 CITY: WOODLAND HILLS STATE: CA ZIP: 91367 SC 13D/A 1 a77833a9sc13da.txt AMENDMENT NO. 9 TO SCHEDULE 13D UniHealth Foundation (95-5004033) Schedule 13-D; December 10, 2001 Amendment 9 Item #1 Security and Issuer The title of the class of the equity securities to which this statement relates is common stock ($.01 par value) of PacifiCare Health Systems, Inc. PacifiCare's principal offices are at 3120 West Lake Center Drive, Santa Ana, CA 92704. Item #2 - Identity and Background The corporation filing this statement is UniHealth Foundation, a California non-profit public benefit corporation. UniHealth Foundation is a private grantmaking organization whose mission is to support and facilitate activities that significantly improve the health and well being of individuals and communities within its service area. UniHealth Foundation's principal business and office address is 5959 Topanga Canyon Boulevard #390, Woodland Hills, CA 91367. (d) During the last five years UniHealth Foundation has not been convicted in a criminal proceeding. (e) During the last five years UniHealth Foundation has not been a party to a civil proceeding as a result of which it was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or State securities laws or finding any violation with respect to such laws. Item #3 - Source and amount of funds or other consideration Not applicable Item #4 - Purpose of transaction. UniHealth Foundation sold 757,500 shares of common stock in the open market and 1,019,500 shares of common stock in private transactions pursuant to a Purchase Agreement dated as of November 27, 2001 between UniHealth Foundation and Acqua Wellington North American Equities Fund, Ltd. The purpose of the sales was to provide additional liquidity to UniHealth Foundation and to further diversify its assets. (b) - (j) Not applicable. Item #5 - Interest in Securities of the Issuer. (a) Prior to these transactions UniHealth Foundation directly owned 2,897,000 shares of PacifiCare common stock or 8.57% of the outstanding shares as of November 2, 2001. Subsequent to this transaction, UniHealth Foundation owns 1,120,000 shares of PacifiCare common stock or 3.24% of the outstanding shares. (b) UniHealth Foundation has the sole power to direct the vote of all shares it owns. (c) UniHealth Foundation sold the following shares of PacifiCare common stock in the open market.
Date Number of Shares Price per Share Total - -------------------------------------------------------------------------------- 11/2/01 50,000 $19.2509 $ 960,008.01 11/6/01 50,000 22.1613 1,105,523.16 11/6/01 50,000 22.7668 1,135,797.15 11/7/01 50,000 22.2401 1,109,463.03 11/8/01 50,000 20.9787 1,046,395.13 11/9/01 50,000 20.0468 999,840.00 11/12/01 50,000 20.0456 999,780.00 11/13/01 50,000 20.1984 1,007,420.00 11/14/01 50,000 18.8809 941,545.00 11/15/01 50,000 15.8514 790,570.00 11/16/01 50,000 16.5330 824,650.00 11/19/01 50,000 16.7197 833,985.00 11/20/01 50,000 17.6771 881,855.00 11/21/01 50,000 17.9054 893,270.00 11/23/01 7,500 18.0000 134,700.00 11/26/01 50,000 17.8326 891,630.00
UniHealth Foundation sold the following shares of PacifiCare common stock in private transactions pursuant to a Purchase Agreement between UniHealth Foundation and Acqua Wellington North American Equities Fund, Ltd.
Date Number of Shares Price per Share Total - -------------------------------------------------------------------------------- 11/30/01 219,500 $16.9046 $3,710,568.48 12/3/01 160,000 16.6994 2,671,902.72 12/4/01 160,000 17.5803 2,812,846.08 12/5/01 160,000 17.4390 2,790,236.16 12/6/01 160,000 17.2874 2,765,982.72 12/7/01 160,000 17.3302 2,772,833.28
(d) No other person has the right to receive or the power to direct the receipt of dividends or the proceeds from the sale of securities described in (a) above. (e) UniHealth Foundation ceased to be the owner of more than 5% of the outstanding shares of PacifiCare on December 4, 2001. Item #6 - Contracts, arrangements, understandings or relationships with respect to securities of the Issuer. UniHealth Foundation and Acqua Wellington North American Equities Fund, Ltd. have entered into a Purchase Agreement dated as of November 27, 2001 providing for the purchase by Acqua Wellington North American Equities Fund, Ltd. of up to an aggregate of 2,139,500 shares of common stock of PacifiCare held by UniHealth Foundation over a period of up to thirteen consecutive trading days at prices equal to 96% of the daily volume weighted average price of the common stock of PacifiCare on the applicable trading day. Jefferies & Company, Inc. acted as placement agent and is entitled to a placement fee equal to 1% of the aggregate purchase price. Item #7 - Materials to be filed as exhibits. 99.1 Purchase Agreement dated as of November 27, 2001 between UniHealth Foundation and Acqua Wellington North American Equities Fund, Ltd. Signature After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Date: December 11, 2001 --------------------- By: /s/ Mary Odell ---------------------- Mary Odell, President EXHIBIT INDEX Exhibit Description - ------- ----------- 99.1 Purchase Agreement dated as of November 27, 2001 between UniHealth Foundation and Acqua Wellington North American Equities Fund, Ltd. EX-99.1 3 a77833a9ex99-1.txt EXHIBIT 99.1 EXHIBIT 99.1 PURCHASE AGREEMENT THIS PURCHASE AGREEMENT (this "Agreement"), dated as of November 27, 2001 by and between the UNIHEALTH FOUNDATION (the "Seller") and AQUA WELLINGTON NORTH AMERICAN EQUITIES FUND, LTD., a limited liability company organized under the laws of the Commonwealth of The Bahamas (the "Buyer"). 1. The Seller is the beneficial and record owner of shares of common stock, par value $0.01 per share (the "Common Stock") of PacifiCare Health Systems, Inc., a Delaware corporation (the "Issuer"). The Seller now wishes to sell up to 2,139,500 shares of Common Stock (the "Shares"). 2. The Buyer desires to purchase from the Seller, and the Seller desires to sell to the Buyer, the Seller's entire right, title and interest in and to the Shares, in accordance with the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the representations, warranties and agreements contained herein and for other good and valuable consideration, the receipt and legal adequacy of which is hereby acknowledged, the parties agree: 1. Agreement to Purchase The Buyer hereby agrees to purchase, and the Seller hereby agrees to sell, its Shares pursuant to the conditions set forth herein. This agreement shall become effective upon delivery by facsimile of executed signature pages of this Agreement such date shall be the (the "Closing Date"). 2. Representations, Warranties and Covenants of Buyer. The Buyer represents and warrants to the Seller, and covenants for the benefit of the Seller, as follows: (a) This Agreement constitutes a valid and binding agreement and obligations of the Buyer enforceable against the Buyer in accordance with its terms, subject to limitations on the enforcement by general principles of equity and bankruptcy or other laws affecting the enforcement of creditor's rights generally; (b) This Agreement has been duly authorized, validly executed and delivered on behalf of the Buyer and is a valid and binding agreement and obligation of the Buyer enforceable against the Buyer in accordance with its terms, subject to limitations on enforcement by general principles of equity and by bankruptcy or other laws affecting the enforcement of creditor's rights generally, and the Buyer has full power and authority to execute and deliver this Agreement and the other agreements and documents contemplated hereby and to perform its obligations hereunder and thereunder; (c) The execution and delivery of this Agreement, the purchase of the Shares and this communication of the transactions contemplated by this Agreement by the Buyer, will not conflict with or result in a breach of or a default under any of the terms or provisions of, the Buyers certificate of limited liability company, or of any material provision of any indenture, mortgage, deed of trust or other material agreement or instrument to which the Buyer is a party or by which it or any of its material properties or assets is bound, any material provision of any law, statute, rule, regulation, or any existing applicable decree, judgment or order by any court, federal or state regulatory body, administrative agency, or other governmental body having jurisdiction over the Buyer, or any of its material properties or assets or will result in the creation or imposition of any material lien, charge or encumbrance upon any material property or assets of the Buyer pursuant to the terms of any agreement or instrument to which any of the them is a party or by which any of them be bound or to which any of their property or any of them is subject. 3. Representations, Warranties and Covenants of the Seller. The Seller represents and warrants to the Buyer, and covenants for the benefit of the Buyer, as follows: (a) The offer and sale of the Shares is intended to be exempt from registration under the Securities Act, by virtue of Section 4(1) of the Securities Act, as amended; (b) To the Seller's knowledge, the Shares have been duly authorized and validly issued and are fully paid and nonassessable; (c) The Shares are not "restricted securities" as defined under Rule 144(a)(3) promulgated under the Securities Act of 1933, as amended, and the Shares have been beneficially owned by the Seller for more than two (2) years; (d) The Seller is not an "affiliate" (as such term is defined under Rule 144(a)(1) of the Issuer; (e) This Agreement has been duly authorized, validly executed and delivered on behalf of the Seller and is a valid and binding agreement and obligation of the Seller enforceable against the Seller in accordance with its terms, subject to limitations on enforcement by general principles of equity and by bankruptcy or other laws affecting the enforcement of creditors' rights generally, and the Seller has full power and authority to execute and deliver this Agreement and the other agreements and documents contemplated hereby and to perform its obligations hereunder and thereunder; (f) The execution and delivery of this Agreement, the sale of the Shares and the consummation of the transactions contemplated by this Agreement by the Seller, will not conflict with or result in a breach of or a default under any of the terms or provisions of, the Seller's articles of incorporation, by-laws or organizational documents, or of any material provision of any indenture, mortgage, deed of trust or other material agreement or instrument to -2- which the Seller is a party or by which it or any of its material properties or assets is bound, any material provision of any law, statute, rule, regulation, or any existing applicable decree, judgment or order by any court, federal or state regulatory body, administrative agency, or other governmental body having jurisdiction over the Seller, or any of its material properties or assets or will result in the creation or imposition of any material lien, charge or encumbrance upon any material property or assets of the Seller pursuant to the terms of any agreement or instrument to which any of them is a party or by which any of them may be bound or to which any of their property or any of them is subject; (g) No authorization, approval, filing with or consent of any governmental body is required for the sale of the Shares to the Buyer pursuant to this Agreement; (h) The Seller is the legal and beneficial owner of the Shares, free and clear of any liens, charges or encumbrances. At the Closing, upon payment of the Purchase Price, the Buyer will acquire all right, title and interest in the Shares, free and clear of all liens, charges or encumbrances. 4. Pricing Terms. Subject to the satisfaction of the conditions set forth in this Agreement, the parties agree as follows: (a) The purchase price of the Shares shall be determined over a period of thirteen (13) consecutive Trading days (the "Pricing Period"); (b) The Pricing Period will commence on November 30, 2001 but at no time prior to the date following the escrow agents receipt of 2,139,500 Shares to be purchased for such Pricing Period. (c) The lowest price that will be used to calculate the purchase price of the Shares during the Pricing Period shall be $15.25 (the "Threshold Price"); (d) During the Pricing Period, the Buyer shall be obligated to purchase 160,000 Shares (the "Pro-Rata Shares") at the end of each Trading Day for each Trading Day that the VWAP is at or above the Threshold Price. For each Trading Day during the Pricing Period that the VWAP is below the Threshold Price, the Buyer shall have the right but not the obligation until the end of the Pricing Period to purchase up to the Pro-Rata Shares (the "Below Threshold Shares") at the price equal to ninety-six percent (96%) of the Threshold Price. The Pro-Rata Shares for the first Trading Day shall mean 219,500 Shares. (e) The price per share to be paid for the Shares to be purchased shall be determined on a daily basis during the Pricing Period. For each Trading Day during the Pricing Period on which the VWAP is equal to or greater than the Threshold Price, the Buyer shall purchase the Pro-Rata Shares at a price equal to ninety-six percent (96%) of the VWAP for such Trading Day. On any Trading Day during the Pricing Period, the Buyer may in addition choose -3- to purchase up to any Below Threshold Shares at a price equal to ninety-six (96%) of the Threshold Price. (f) For each Trading Day, the "Daily Purchase Agreement" shall be equal the (i) the Pro-Rata Shares, if any, multiplied by 96% of such day's VWAP and (ii) any Below Threshold Shares, if any, multiplied by 96% of the Threshold Price that the Buyer chooses to purchase on such Trading Day; (g) Seller's Option to Terminate the Pricing Period. On any Trading day, the Seller may terminate the Pricing period, such that the Seller must deliver a notice of termination to the Buyer and Escrow Agent which receipt shall be confirmed in writing by the Buyer, before 10:30 a.m. (New York time) on such Trading day (the "Termination Notice"). If the Buyer fails to deliver receipt by 10:30 a.m. then the Escrow Agent must confirm such Termination to the Buyer and Seller before 12:00 p.m. (New York time). If the Termination notice is received after 9:30 a.m. (New York time) on a Trading Day, such Trading day shall be the last Trading day of the Pricing Period, unless otherwise mutually agreed upon (the "Termination Date"). In the event the Pricing Period is terminated, both the Buyer and the Seller shall still be obligated to settle all purchased but unsettled Daily Purchase Amounts. (h) Buyer's Option to Shorten the Pricing Period. On the tenth (10th) Trading Day of the Pricing Period and any Trading Day thereafter, the Buyer with the consent of the Seller, may deliver a written notice to the Seller to shorten the Pricing Period such that the Pricing Period ends on the Trading Day the notice is delivered (the "Shortening Notice"), provided that the Buyer purchases the Remaining Shares on such Trading Day (the "Shortened Pricing Period"). The Remaining Shares shall be equal (i) 2,139,500 Shares minus (x) all previously settled and purchased but unsettled (i) Pro-Rata Shares and (ii) Below Threshold Shares. Price per share of the purchase shall be equal the Average Price, calculated by dividing (iii) all previously purchased Daily Purchase Amounts by (iv) all previously settled and purchased but unsettled Pro-Rata Shares and Below Threshold Shares. (i) The Shares purchased during the Pricing Period shall be settled on (i) the first Trading Day following each Trading Day of the Pricing Period and (ii) the first Trading day immediately after the last Trading Day of the Pricing Period, Shortened Pricing Period, or a Termination Date (each, a "Settlement Date"). On each Settlement Date, the Escrow Agent shall deliver to the Buyer the Pro-Rata Shares and any Below Threshold Shares purchased by the Buyer on the previous Trading Day, simultaneous with the Buyer's writing of the Daily Purchase Amount to the Escrow Agent for the Shares purchased but at no time later then upon receipt of the Daily Purchase Amount by the Escrow Agent. (j) For purposed of this Agreement, "VWAP" shall mean the daily volume weighted average price (based on a Trading Day from 9:30 a.m. to 4:00 p.m., eastern time) of the Common Stock on the NASDAQ National Market or an Alternate Market as reported by Bloomberg Financial LP using the AQR function, and "Alternate Market" shall mean the OTC Bulletin Board, the Nasdaq Small Cap Market, the American Stock Exchange, or the New York -4- Stock Exchange, whichever is at the time the principal trading exchange or market for the Common Stock. (k) For the purposes of this Agreement, "Trading Day" shall mean a day on which the Common Stock is traded on the NASDAQ National market or an Alternate Market. If the trading in the Common Stock is suspended for any reason for more than three (3) hours in any Trading Day or trading in securities in the United States has been halted for any reason, at the Buyer's option, such day shall not be deemed a Trading day. (l) The obligation of the Buyer to purchase and the Seller to sell the shares pursuant to this Agreement shall terminate on the earliest of: (i) the close of business on the first Trading Day immediately after the last Trading Day of the Pricing Period, (ii) the close of business on the first Trading Day immediately after the last Trading Day of the Shortened Pricing Period and (iii) the close of business on the first Trading Day immediately after the Termination Date; provided that the termination of such obligation shall not relieve either party from any liability for failure to perform such obligation prior to such date. 5. Conditions Precedent to the Obligations of the Seller to Sell the Shares. The obligation hereunder of the Seller to sell the Shares to the Buyer is subject to the satisfaction or waiver, on or before the Closing, of each of the conditions set forth below. These conditions are for the Seller's sole benefit and may be waived by the Seller at any time in its sole discretion. (a) This Agreement shall have been executed by the Buyer and delivered to the Seller; (b) The representations and warranties of the Buyer shall be true and correct in all material respects as of the date when made and as of the Closing and as of each Settlement Date; (c) No statute, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction, which prohibits the consummation of any of the transactions contemplated by this Agreement; and 6. Conditions Precedent to the Obligations of the Buyer to Purchase the Shares. The obligation hereunder of the Buyer to purchase the Shares is subject to the satisfaction or waiver, at or before the Closing, of each of the conditions set forth below. These conditions are for the Buyer's sole benefit and may be waived by the Buyer at any time in its sole discretion: (a) This Agreement shall have been executed by the Seller and delivered to the Buyer; -5- (b) The representations and warranties of the Seller shall be true and correct in all material respects as of the date when made and as of this Closing and as of each Settlement Date; (c) No statute, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement; (d) Prior to the first Trading Day of the Pricing Period, the Seller and the Buyer shall have entered into an Escrow Agreement (the "Escrow Agreement") substantially in the form of Exhibit 1 attached hereto, and the Seller shall have delivered 2,139,500 shares of Common Stock to Jefferies and Company, Inc., as Escrow Agent, which Shares shall be free of all legends; 7. Indemnification. (a) The Seller hereby agrees to indemnify and hold harmless the Buyer and its officer, directors, shareholders, employees, agents and attorneys against any and all losses, claims, damages, liabilities and expenses incurred by each such person in connection with defending or investigating any such claims or liabilities, whether or not resulting in any liability to such person, to which any such indemnified party may become subject under the Securities Act, or under any other statute, at common law or otherwise, insofar as such losses, claims, demands, liabilities and expenses arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact made by the Seller (ii) any omission or alleged omission of a material fact with respect to the Seller or (iii) any breach of any representation, warranty or agreement made by the Seller in this Agreement; (b) The Buyer hereby agrees to indemnify and hold harmless the Seller and its officers, directors, shareholders, employees, agents and attorneys against any and all losses, claims, damages, liabilities and expenses incurred by each such person in connection with defending or investigating any such claims or liabilities, whether or not resulting in any liability to such person, to which any such indemnified party may become subject under the Securities Act, or under any other statute, at common law or otherwise, insofar as such losses, claims, demands, liabilities and expenses arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact made by the Seller (ii) any omission or alleged omission of a material fact with respect to the Seller or (iii) any breach of any representation, warranty or agreement made by the Seller in this Agreement; 8. (a) Expenses. Each of the parties agrees to pay its own expenses incident to this Agreement and the performance of its obligations hereunder. (b) The Seller shall pay Jeffries & Co (the "Placement Agent") a placement fee of 1% of the aggregate amount purchased. -6- 9. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Delaware without giving effect to the rules governing the conflicts of laws. The Buyer and Seller agree that any suit or proceeding by either of them with respect to this Agreement shall be brought in a state or federal court located in the State of Delaware and hereby consent to the exclusive jurisdiction of such court and to service of process being made upon the Buyer or the Seller, as the same may be by mail at the address specified in Section 10. Each of the Buyer and the Seller hereby waives any objection that it may now or hereafter have in the venue or any such suit or proceeding or any such court or that such suit is brought in an inconvenient court. 10. Notices. All notice and other communications provided for or permitted hereunder shall be made in writing by hand delivery, express overnight courier, registered first class mail, overnight courier, or telecopier, initially to the address set forth below, and thereafter at such other address, notice of which is given in accordance with the provisions of this Section. if to the Seller: UniHealth Foundation 5959 Topanga Canyon Boulevard Woodland Hills, CA 91367 Attn: David R. Carpenter, Chairman Telephone 818-888-4090 Fax 818-888-4094 if to the Buyer: Acqua Wellington North American Equities Fund, Ltd. c/o Fortis Fund Services (Bahamas) Ltd. Montague Sterling Centre East Bay Street, P.O. Box SS-6238 Nassau, Bahamas Attn: Anthony L.M. Inder Rieden Telephone 242-394-9601 Fax 242-934-8348 All such motions and communications shall be deemed to have been duly given: when delivered by hand, if personally delivered; three (3) business days after being deposited in the mail, postage prepaid, if mailed; the next business day after being deposited with an overnight courier, if deposited with a nationally recognized, overnight courier service; when receipt is acknowledged, if telecopied. 11. Entire Agreement. This Agreement constitutes this entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes all prior and/or -7- contemporaneous oral or written proposals or agreements relating thereto all of which are merged herein. This Agreement may not be amended or any provisions hereof waived in whole or in parts, except by a written amendment signed by both of the parties. 12. Counterpart. This Agreement may be executed by facsimile signature and in counterparts, each of which shall be deemed an original, but all of which together shall constitute on and the same instrument. -8- IN WITNESS WHEREOF, this Agreement was duly executed on the date first written above. UNIHEALTH FOUNDATION By: ______________________________________ Name: David R. Carpenter Title: Chairman AQUA WELLINGTON NORTH AMERICAN EQUITIES FUND, LTD. By: ______________________________________ Name: Richard Colpron Title: Vice President -9- -----END PRIVACY-ENHANCED MESSAGE-----