SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
8-A
FOR
REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT
TO SECTION 12(b) OR (g) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Universal
American Financial Corp.
[Exact name of registrant as specified in its charter]
New York
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11-2580136
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(State of incorporation or organization)
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(I.R.S. Employer Identification No.)
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Six
International Drive, Rye Brook, New York
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10573
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(Address of principal executive offices)
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(Zip Code)
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Securities to be
registered pursuant to Section 12(b) of the Act:
Title of
each class to be so registered:
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Name of
each exchange on which each class is to be registered:
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Common
Stock, par value $0.01 per share
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New
York Stock Exchange
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If this form relates to
the registration of a class of securities pursuant to Section 12(b) of the
Exchange Act and is effective pursuant to General Instruction A.(c), check the
following box.
x
.
If this form relates to
the registration of securities pursuant to Section 12(g) of the Exchange
Act and is effective pursuant to General Instruction A.(d), check the following
box.
o
Securities Act
registration statement file number to which this form relates:
N/A
Securities to be
registered pursuant to Section 12(g) of the Act:
None
(Title of class)
This registration
statement relates to the shares of common stock, par value $0.01 per share (the
Common Stock), of Universal American
Financial Corp. (the Company). This registration statement is filed
with the Securities and Exchange Commission (the SEC) in connection with the
filing by the Company on October 9, 2007 of an application to list the Common
Stock on the New York Stock Exchange.
Item 1.
Description of Registrants Securities to be Registered
.
Set forth below is a
description of the material terms of our capital stock. This description is not
complete and is qualified by reference to our certificate of incorporation
(including our certificates of amendment designating the rights and preferences
of our preferred stock), as amended, and our bylaws, as amended. Copies of
these documents have been filed with the SEC as exhibits to our periodic
reports and are incorporated by reference into this registration statement.
Authorized
Capital Stock
Our authorized capital
stock consists of 200,000,000 shares of Common Stock, par value $0.01 each,
3,000,000 shares of Preferred Stock, par value $1.00 each, and 30,000,000
shares of non-voting Common Stock, par value $0.01 per share.
Common
Stock
Voting Rights.
All holders of Common Stock
are entitled to one vote in person or by proxy for each share of Common Stock
held by such shareholder, but no proxy may be voted on after three years from
its date, unless the proxy provides for a longer period. The vote of the
holders of a majority of the stock represented at a meeting at which a quorum
is present is generally required to take stockholder action, unless a greater
vote is required by law. The holders are not entitled to cumulative voting in
the election of directors. Directors are elected by plurality vote.
Dividends, Distributions and Stock Splits; Liquidation.
Holders of the Companys Common Stock are entitled to receive such dividends as
may be declared by the board of directors from time to time from funds legally
available therefor (subject to covenants contained in debt instruments to which
we are a party) and, in the event of liquidation, to share pro rata in any
distribution after the payment in full of all creditors.
Fully Paid.
All shares of common stock
outstanding are fully paid and nonassessable.
Other Rights.
Holders of common stock
have no redemption or conversion rights and no preemptive or other rights to
subscribe for our securities.
Preferred
Stock
Our board of directors
has the authority to issue 30,000,000 shares of undesignated preferred stock.
As of the date of this registration statement, 30,473 shares of series A preferred stock are outstanding and
144,527
shares
of series B preferred stock are outstanding. We may issue preferred stock from
time to time in one or more series, without stockholder approval, when
authorized by our board of directors.
Any or all of the rights
of our preferred stock may be greater than the rights of our common stock. Our
preferred stock may be issued in series, and the number, designations, relative
rights (including voting rights), preferences and limitations of shares of each
such series is fixed by our board of directors. To date, our board of directors
has duly authorized and approved, and created and provided for the issuance of,
two series of preferred stock, in the amount and with the designation,
preferences, voting powers, and relative, participating, optional and other
special rights, as set forth below. Our board of directors ability to
authorize, without stockholder approval, the issuance of preferred stock with
conversion and other rights, may affect adversely the rights of holders of our
common stock or other series of preferred stock that may be outstanding.
The following description of our preferred stock
does not purport to be complete and is qualified in its entirety by reference
to our certificate of incorporation, as currently amended.
Series A
Participating Convertible Preferred Stock
The board of
directors has
designated 300,000 shares of preferred stock as series A preferred stock.
Subject to the exceptions described below, each share of series A preferred
stock ranks equally in all respects and has the same rights, powers and
preferences, and the same qualifications, and limitations, as our series B
preferred stock:
Rank.
The
series A preferred stock ranks
(i) senior and prior to our common stock and each other class or series of
our equity securities, whether currently issued or issued in the future, that
by its terms ranks junior to the series A preferred stock (whether with respect
to payment of dividends, rights upon liquidation, dissolution or winding up of
our affairs, or otherwise) (ii) on a parity with each other class or
series of our equity securities, whether currently issued or issued in the future,
that do not by their terms expressly provide that they rank senior to or junior
to the series A preferred stock whether with respect to payment of dividends,
rights upon liquidation, dissolution or winding up of our affairs, or otherwise
(all of such equity securities are collectively referred to herein as the Parity
Securities), and (iii) junior to each other class or series of our equity
securities, whether currently issued or issued in the future, that by their
terms rank senior to the series A preferred stock.
Dividends.
Holders
of shares of series A preferred stock are entitled to participate equally and
ratably with the holders of shares of common stock in all dividends and
distributions paid on the shares of common stock as if, immediately prior to
each record date for payment of such dividend or distribution on the common
stock, the shares of series A preferred stock then outstanding were converted
into shares of common stock.
Liquidation
Preference
.
In the
event that we voluntarily or involuntarily liquidate, dissolve or wind up, the
holders of shares of series A preferred stock are, with respect to each such
share of series A
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preferred stock, entitled to receive the greater of (i) (A) prior
to the first anniversary of the original issuance in respect of such share of series
A preferred stock, $2,000 per share and (B) on or after the first
anniversary of the original issuance in respect of such share of series A
preferred stock, $1.00 per such share of series A preferred stock, in each case
plus an amount equal to any dividends or distributions payable thereon and
remaining unpaid thereon and (ii) at any time, the payment such holders
would have received had such holders, immediately prior to our liquidation,
dissolution or winding up, converted such share of series A preferred stock
into shares of common stock, in each case before any payment or distribution is
made on any shares of common stock. Neither a consolidation or merger nor a
sale or transfer of all or any part of our assets for cash, securities or other
property, is considered a liquidation, dissolution or winding up.
Voting Rights.
Holders
of shares of series A preferred stock are not entitled to vote on any matter submitted
to a vote of our shareholders, but are entitled to prior written notice of, and
are entitled to attend and observe, all special and annual meetings of our
shareholders. Notwithstanding the foregoing and so long as any shares of series
A preferred stock are outstanding, we will not, without the written consent or
affirmative vote by holders of at least a majority of the outstanding shares of
series A preferred stock, voting as a single and separate class:
(i) amend, alter or repeal any provision of our certificate of
incorporation (by any means, including by merger, consolidation,
reclassification, or otherwise) so as to, or in a manner that would, adversely
affect the preferences, rights, privileges or powers of the series A preferred
stock; or (ii) increase the authorized or issued number of shares of series
A preferred stock.
Merger or
Consolidation.
Unless approved
by holders of the shares of series A preferred stock, we will not merge or
consolidate into, or sell, transfer or lease all or substantially all of our
property to any other entity, unless the successor, transferee or lessee entity
(i) expressly assumes the due and punctual performance and observance of
each and every covenant and condition described above to be performed and observed
by us and (ii) expressly agrees to exchange, at the holders option,
shares of series A preferred stock for shares of the surviving entitys capital
stock on terms substantially similar to the terms described above.
Conversion upon
Transfer.
Any share of series A
preferred stock owned by any equity investor or any affiliate of an equity
investor shall not be convertible into common stock so long as such share of series
A preferred stock is owned by such equity investor or such affiliate of an
equity investor. At any time when a share of series A preferred stock is not or
ceases to be owned by an equity investor or an affiliate of an equity investor,
such share of series A preferred stock, without any further action or deed on
our part or any other individual, entity or group, shall automatically convert
into the number of fully paid and non-assessable shares of common stock
determined by dividing (A) $2,000 by (B) the conversion price in
effect at the time of conversion. The initial conversion price is $20.
Series B
Participating Convertible Preferred Stock
The board of directors has designated 300,000
shares of preferred stock as series B preferred stock. Subject to the
exceptions described below, each share of our series B preferred stock ranks
equally in all respects and has the same rights (including with respect to
dividends), powers and preferences (including liquidation preference), and the
same qualifications, limitations and restrictions as our series A preferred
stock.
Voting Rights.
In
addition to the voting rights described above, holders of our series B
preferred stock may vote with holders of our common stock (together as one
class) on all matters submitted for a vote of holders of our common stock.
Holders of our series B preferred stock are entitled to a number of votes equal
to the number of votes to which the shares of our common stock issuable upon
conversion of such shares of series B preferred stock would have been entitled
if such shares of common stock had been outstanding at the time of the
applicable record date.
Right to Convert
.
A holder of our series B preferred stock has the right, at any time and from
time to time, to convert any or all of such holders shares of series B
preferred stock into the number of fully paid and non-assessable shares of
common stock determined by dividing (A) $2,000 by (B) the conversion
price in effect at the time of conversion. The initial conversion price is $20.
We have the right to require the holder of
each share of our series B preferred stock, from and after the first
anniversary of the date of original issuance of such share, from time to time,
at our option, to convert such share of series B preferred stock into fully
paid and non-assessable shares of our common stock at the applicable conversion
price. The number of shares of common stock into which one share of the series
B
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preferred stock shall be convertible shall be determined by dividing
(A) the preferred share price by (B) the conversion price in effect
at the time of conversion.
Non-Voting
Common Stock
Subject to the exceptions described below,
each share of our non-voting common stock ranks equally in all respects and has
the same rights, powers and preferences, and the same qualifications,
limitations and restrictions as our common stock.
Dividends.
Holders
of our non-voting common stock shall be entitled to receive dividends and
distributions on parity in all respects with holders of our common stock;
provided, however
, that if holders of
shares of our common stock become entitled to receive a distribution or
dividend of shares of our common stock, holders of our non-voting common stock
shall be entitled to receive, in lieu of shares of common stock, shares of
non-voting common stock.
Voting Rights.
Except
as set forth below, holders of shares of our non-voting common stock shall not
be entitled to vote on any matter submitted to a vote of our shareholders, but
shall be entitled to prior written notice of, and entitled to attend and
observe, all special and annual meetings of our shareholders. So long as any
shares of non-voting common stock are outstanding, we shall not, without the
written consent or affirmative vote at a meeting called for that purpose by
holders of at least a majority of the outstanding shares of our non-voting
common stock, voting as a single and separate class:
amend, alter or
repeal any provision of our certificate of incorporation so as to, or in a
manner that would, adversely affect the preferences, rights, privileges or
powers of our non-voting common stock; or
increase the
authorized or issued number of shares of our non-voting common stock.
Merger or
Consolidation
.
We
will not merge or consolidate into, or sell, transfer or lease all or
substantially all of our property to, any other entity, unless the successor,
transferee or lessee entity, as the case may be (if not us), (i) expressly
assumes the due and punctual performance and observance of each and every
covenant and condition to be performed and observed by us and
(ii) expressly agrees to exchange, at the holders option, shares of our
non-voting common stock for shares of the surviving entitys capital stock on
terms substantially similar to the terms described herein.
Conversions upon
Transfer.
At any time when a
share of our non-voting common stock is not or ceases to be owned by an initial
holder or an affiliate of an initial holder, such share of non-voting common
stock, shall without the requirement of any further action on our part or any
other person, automatically convert into one fully paid and non-assessable
share of our common stock.
Dividend Restrictions
In connection with the acquisition of MemberHealth,
Inc. on September 21, 2007, we entered into a credit agreement to finance the
cash portion of the acquisition consideration. This agreement contains a restricted
payments covenant that prohibits the payment of dividends in excess of
$125,000,000 in the aggregate in the event that a rating condition exists. A
rating condition will exist if we do not have a corporate rating of BBB- or
higher by Standard & Poors or do not have a corporate rating by S&P. If
no rating condition exists, we may pay dividends so long as we are in
compliance with the consolidated leverage ratio test contained in the credit
agreement.
The indentures governing our outstanding debentures
limit our ability to pay dividends if we fail to make the required interest
payments under the debentures.
Transfer
Agent and Registrar
The transfer agent and
registrar for the shares of our Common Stock is American Stock
Transfer & Trust Co.
New York
Anti-Takeover Law and Certain Charter and Bylaw Provisions
Our certificate of
incorporation, bylaws and the New York Business Corporation Law (NYBCL) contain
certain provisions that could discourage potential takeover attempts and make
it more difficult for stockholders to change management or receive a premium
for their shares.
New York Law
.
We are subject to the NYBCL. Section 912 of the NYBCL,
entitled Requirements Relating to Certain Business Combinations, and Article
16, entitled Security Takeover Disclosure Act, contain anti-takeover
provisions. Among other things, Section 912 of the NYBCL prohibits a publicly
held New York corporation from engaging in a business combination with an interested
shareholder for a
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period of five years
after the date of the transaction in which the person became an interested
shareholder, unless one of the following conditions is met:
the
business combination is approved by a majority of the non-interested
shareholders;
the
transaction in which such person became an interested shareholder was approved
by the board of directors of the corporation; or
the
cash and other consideration to be delivered to the holder of each are of
common stock of the corporation meets the minimum value criteria determined in
accordance with the statute.
As used in Section 912:
a
business combination includes a merger, an asset sale and any other
transaction resulting in a financial benefit to the shareholder; and
an
interested shareholder is a person who, together with affiliates and
associates, owns (or, in the case of affiliates and associates of the issuer,
did own within the last five years) 20% or more of the corporations voting
stock.
Among other things,
Article 16 of the NYBCL requires specified persons making a tender offer or a
takeover bid for outstanding shares of certain New York corporations to file a
registration statement with the New York State Attorney General and with the
corporation for whose stock the tender offer is being made. The statute imposes
additional requirements to takeover bids not subject to the requirements of
Section 14(d) of the U.S. Securities Exchange Act. As used in Article 16, takeover
bid means the acquisition of or offer to acquire, pursuant to a tender offer
or request or invitation for tenders, any equity security of a target company,
if after acquisition, the offeror would, directly or indirectly, be a
beneficial owner of more than five percent of any class of the issued and
outstanding equity securities of such target company. A takeover bid does not
include:
bids
made by a dealer for his or her own account in the ordinary course of business
of buying and selling such security;
an
offer to acquire such equity security solely in exchange for other securities,
or the acquisition of such equity security pursuant to such offer, for the sole
account of the offeror, in good faith and not for the purpose of avoiding this
Section, and not involving any public offering of such other securities within
the meaning of the Securities Act;
any
other offer to acquire an equity security, or the acquisition of such equity
security pursuant to such offer, for the sole account of the offeror, from not
more than fifty offerees, in good faith and not for the purpose of avoiding
provisions of this article; or
any offer where,
prior to making the offer, the offeror owns a majority of the voting equity
securities of the target company.
Charter Provision
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Our certificate of incorporation, as
amended, provides that in the event that it is proposed that we enter into a
merger or consolidation with any other corporation and such other corporation
or its affiliates singly or in the aggregate own or control directly or
indirectly 5% or more of the outstanding voting power of our capital stock, or
that we shall sell substantially all of our assets or business to such other
corporation, the affirmative vote of the holders on not less than 66 2/3% of
the total voting power of all of our outstanding shares of capital stock shall
be required for the approval of any such proposal, provided, however, that the
foregoing shall ot apply to any such merger, consolidation or sale of assets or
business which was approved by resolutions of or board of directors prior to
the acquisition of the ownership or control of 5% of our outstanding shares by
such other corporation or its affiliates, nor shall it apply to any such
merger, consolidation or sale of assets or business between us and another
corporation 50% or more of the total voting power of which is owned by us. This
could have the effect of deterring an acquisition proposal.
Limitation of liability; indemnification
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Pursuant to the statues of the State of New
York, a director or officer of a corporation is entitled, under specified
circumstances, to indemnification by the corporation against reasonable
expenses, including attorneys fees, incurred by him in connection with the
defense of a civil or criminal proceeding to which he has been made, or
threatened to be made, a party by reason of the fact that he was such a
director or officer. In certain circumstances, indemnity is provide against
judgments, fines and amounts paid in settlement. In general, indemnification is
available where the director or officer acted in good faith, for a purpose such
director or officer reasonably believed to be in the best interest of
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the corporation. Specific
court approval is required in some cases. The foregoing statement is qualified
in its entirety by reference to Sections 715, 717 and 721 through 725 of the
NYBCL.
As permitted by Sections
722 and 723 of the NYBCL, Article 6 of our by-laws requires us to
indemnify to the greatest extent allowable by law, each of our directors,
officers and employees and persons serving as an officer, director, employee or
agent of another corporation at our request, against liability, whether by
judgment or settlement, and reasonable expenses, including attorneys fees,
necessarily incurred in defending any action or proceeding brought or
threatened against him, by reason of his service as such officer, director,
employee or agent.
Our certificate of
incorporation, as amended, supplements the indemnification rights of directors
under our by-laws so that none of our directors shall be held personally liable
to us or to our shareholders for damages for any breach of duty while acting as
a director, unless (a) it is found, by a judgment of a court of competent
jurisdiction, of by other adjudication, (i) that said breach of duty,
whether an act or omission, was committed in bad faith, or involved intentional
misconduct or knowing violation of law; (ii) that said director personally
gained a financial profit or other advantage to which the director was not
legally entitled; or (iii) that the directors acts violated
Section 719 of the NYBCL; or (b) that the act or omission was
committed before the adoption of such provision on October 16, 1988.
Item 2.
Exhibits.
Not applicable.
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SIGNATURE
Pursuant to the
requirements of Section 12 of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereto duly authorized.
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Universal
American Financial Corp.
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By:
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/s/ Mitchell J. Stier
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Mitchell J. Stier, Senior Vice
President and General Counsel
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Dated: November 20, 2007
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