-----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, SdKp29HAxha2MymeuEz70UclLUhEcmzE8bcH5SP94AyCMXpqZ5/1QNY2cpzrpWQc 9uArMeISj8REWsn2O22dHQ== 0000950172-01-501292.txt : 20020724 0000950172-01-501292.hdr.sgml : 20020724 20011207124033 ACCESSION NUMBER: 0000950172-01-501292 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20011207 DATE AS OF CHANGE: 20020724 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMERIGROUP CORP CENTRAL INDEX KEY: 0001064863 STANDARD INDUSTRIAL CLASSIFICATION: HOSPITAL & MEDICAL SERVICE PLANS [6324] FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 POS SEC ACT: 1933 Act SEC FILE NUMBER: 333-37410 FILM NUMBER: 01808552 BUSINESS ADDRESS: STREET 1: 4425 CORPORATION LANE STREET 2: SUITE 100 CITY: VIRGINIA BEACH STATE: VA ZIP: 23462 BUSINESS PHONE: 7574906900 MAIL ADDRESS: STREET 1: 4425 CORPORATION LN CITY: VIRGINIA BEACH STATE: VA ZIP: 23462 POS AM 1 s412507.txt As filed with the Securities and Exchange Commission on December 7, 2001 Registration No. 333-37410 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------------------------- Post Effective Amendment No. 1 to Form S-1 on FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 AMERIGROUP Corporation (Exact Name of Registrant as Specified in Its Charter) Delaware 54-1739323 (State of Incorporation) (I.R.S. Employer Identification No.) -------------------------- 4425 Corporation Lane Virginia Beach, Virginia 23462 (757) 490-6900 (Address of Principal Executive Offices) (Zip Code) EMPLOYEE STOCK PURCHASE PLAN (Full Titles of the Plan) -------------------------- Stanley F. Baldwin Senior Vice President and General Counsel AMERIGROUP Corporation 4425 Corporation Lane Virginia Beach, Virginia 23462 (757) 490-6900 (Name, Address and Telephone Number, Including Area Code, of Agent for Service) EXPLANATORY NOTE The 600,000 shares (the "Shares") of common stock, par value $0.01 per share (the "Common Stock") of AMERIGROUP Corporation (the "Registrant") relating to this registration statement represent shares of Common Stock issuable pursuant to the Registrant's Employee Stock Purchase Plan (the "Plan"). The maximum number of shares which may be issued under the Plan is subject to equitable adjustment upon the occurrence of certain events pursuant to the Plan. Accordingly, pursuant to Rule 416 under the Securities Act of 1933, as amended (the "Securities Act"), this registration statement includes, in addition to the Shares, an indeterminate number of shares which may be subject to grant or otherwise issuable after the occurrence of any such corporate transaction or event. The registration fee relating to the Shares was previously paid in connection with the Registrant's Amendment Nos. 3 and 7 to Form S-1 (File No. 333-37410), filed on July 24, 2000 and August 14, 2001, respectively. PART I The information called for by Part I of this registration statement on post-effective amendment No. 1 to Form S-1 on Form S-8 is included in the description of the the Plan to be delivered to persons eligible to participate in the Plan. Pursuant to the Note in the Instructions to Part I of Form S-8, this information is not being filed with or included in this registration statement. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents By Reference The following documents which have been filed by the Registrant with the Securities and Exchange Commission (the "Commission"), pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated by reference in this registration statement as of their respective dates. (1) The Registrant's final prospectus dated November 5, 2001 and filed with the Commission on November 6, 2001 pursuant to Rule 424(b)(4) of the Securities Act of 1933, as amended (the "Securities Act"). (2) The Registrant's Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2001. (3) The Registrant's Form 8-A filed with the Commission on July 24, 2000 pursuant to Section 12(g) of the Exchange Act, including any amendment or reports filed for the purpose of updating such information. All documents filed or subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of this registration statement and prior to the filing of a post-effective amendment which indicates that all securities described herein have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part thereof from the date of filing of such documents with the Commission. Any statement in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein 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 Not Applicable. Item 5. Interests of Named Experts and Counsel The validity of the issuance of the shares of common stock to be registered in connection with this registration statement will be passed upon by Stanley F. Baldwin, Senior Vice President, General Counsel and Secretary of the Registrant. Mr. Baldwin directly or indirectly owns 39,450 shares of Common Stock and has options to acquire an aggregate of 45,750 shares of Common Stock. Item 6. Indemnification of Directors and Officers Section 145 of the Delaware General Corporation Law ("DGCL") authorizes a corporation's board of directors to grant indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities, including reimbursement for expenses incurred, arising under the Securities Act. As permitted by Delaware law, Article Sixth of the Registrant's Amended and Restated Certificate of Incorporation, a copy of which is filed as Exhibit 3.1 to the Registration Statement on Form S-1, as amended (File No. 333-37410), which is incorporated herein by reference, includes a provision that eliminates, to the maximum extent permitted by Delaware law, the personal liability of its directors for monetary damages for breach of fiduciary duty as a director. This provision in the Amended and Restated Certificate of Incorporation does not eliminate the directors' fiduciary duty, and in appropriate circumstances equitable remedies such as injunctive or other forms of non-monetary relief will remain available under Delaware law. In addition, each director will continue to be subject to liability for breach of the director's duty of loyalty to the Registrant for acts or omissions not in good faith or involving intentional misconduct, for knowing violations of law, for actions leading to improper personal benefit to the director, and for payment of dividends or approval of stock repurchases or redemptions that are unlawful under Delaware law. The provision also does not affect a director's responsibilities under any other law, such as the federal securities laws or state or federal environmental laws. As permitted by Delaware law, Article Seventh of the Registrant's Amended and Restated Certificate of Incorporation provides that (1) the Registrant is required to indemnify its directors and officers to the fullest extent authorized or permitted by law, subject to certain very limited exceptions; (2) the Registrant is permitted, to the extent authorized by its board of directors, to provide rights to indemnification to its employees and agents similar to those conferred to its directors and officers; (3) the Registrant is required to advance expenses, as incurred, to its directors and officers in connection with a legal proceeding to the fullest extent permitted by Delaware law, subject to certain very limited exceptions; and (4) the rights conferred in the Amended and Restated Certificate of Incorporation are not exclusive. As permitted by Delaware law, the Registrant's Amended and Restated By-Laws, a copy of which is filed as Exhibit 3.2 to the Registration Statement on Form S-1, as amended (File No. 333-37410), which is incorporated herein by reference, provides that (1) the Registrant is required to indemnify its directors and officers to the fullest extent authorized by the DGCL, subject to certain very limited exceptions; (2) the Registrant is required to advance expenses, as incurred, to its directors and officers in connection with a legal proceeding to the fullest extent permitted by Delaware law, subject to certain very limited exceptions; and (3) the rights to indemnification conferred in the Amended and Restated By-Laws are not exclusive. As permitted by the Delaware law, and pursuant to the Registrant's Amended and Restated By-Laws, the Registrant maintains insurance covering the Registrant's directors and officers against any such expense, liability or loss asserted against them in their capacity as such. Item 7. Exemption From Registration Claimed. Not Applicable. Item 8. Exhibits. 3.1* Amended and Restated Certificate of Incorporation. 3.2* Amended and Restated By-Laws. 3.3* Form of share certificate for common stock. 5.1 Opinion of Stanley F. Baldwin, Esq. 10.12* Employee Stock Purchase Plan. 23.1 Consent of KPMG LLP with respect to the financial statements of the Registrant. 23.2 Consent of KPMG LLP with respect to the Medicaid Business of Oxford Health Plans (N.J.), Inc. 23.3* Consent of Stanley F. Baldwin, Esq. (included with Exhibit 5.1). 24.1 Powers of Attorney (included on the signature page). * Incorporated by reference to the Registrant's Registration Statement on Form S-1 (Registration Number 333-37410), as amended, originally filed with the Securities and Exchange Commission on May 19, 2000, and declared effective on November 5, 2001. Item 9. Required Undertakings. (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (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 end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 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; provided, however, that paragraphs (a)(1)(i) and (a)(1)(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 Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 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 city of Virginia Beach, state of Virginia, on this 7th day of December, 2001. AMERIGROUP CORPORATION By /s/ Scott M. Tabakin --------------------------------- Name: Scott M. Tabakin Title: Chief Financial Officer POWER OF ATTORNEY Each person whose signature appears below hereby constitutes and appoints Stanley F. Baldwin and Scott M. Tabakin, and each of them, his true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities to sign the registration statement on Form S-8 to be filed in connection with the offerings of ordinary shares of AMERIGROUP Corporation and any and all amendments (including post-effective amendments) to this registration statement, and any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and the other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, each acting alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as they might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or his substitutes, each acting alone, may lawfully do or cause to be done by virtue thereof. 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.
Name Title Date /s/ Jeffrey L. McWaters Chairman, Chief Executive Officer December 7, 2001 - ------------------------------------ and President Jeffrey L. McWaters (Principal Executive Officer) /s/ Scott M. Tabakin Chief Financial Officer December 7, 2001 - ------------------------------------ Sherri E. Lee /s/ Kathleen K. Toth Chief Accounting Officer December 7, 2001 - ------------------------------------ Kathleen K. Toth /s/ C. Sage Givens Director December 7, 2001 - ------------------------------------ C. Sage Givens /s/ William J. McBride Director December 7, 2001 - ------------------------------------ William J. McBride /s/ Carlose A. Ferrer Director December 7, 2001 - ------------------------------------ Carlos A. Ferrer Director - ------------------------------------ Charles W. Newhall, III
Exhibit Index 3.1* Amended and Restated Certificate of Incorporation. 3.2* Amended and Restated By-Laws. 3.3* Form of share certificate for common stock. 5.1 Opinion of Stanley F. Baldwin, Esq. 10.12* Employee Stock Purchase Plan. 23.1 Consent of KPMG LLP with respect to the financial statements of the Registrant. 23.2 Consent of KPMG LLP with respect to the Medicaid Business of Oxford Health Plans (N.J.), Inc. 23.3 Consent of Stanley F. Baldwin, Esq. (included with Exhibit 5.1). 24.1 Powers of Attorney (included on the signature page). * Incorporated by reference to the Registrant's Registration Statement on Form S-1 (Registration Number 333-37410), as amended, originally filed with the Securities and Exchange Commission on May 19, 2000, and declared effective on November 5, 2001. EX-5.1 OPINION RE: L 3 s574097.txt OPINION OF AMERIGROUP GENERAL COUNSEL Stanley F. Baldwin AMERIGROUP Corporation 4425 Corporation Lane Virginia Beach, VA 23462 December 7, 2001 Ladies and Gentlemen: I am the Senior Vice President, General Counsel and Secretary of AMERIGROUP Corporation, a Delaware corporation (the "Company"). I have acted as counsel to the Company in connection with the Registration Statement on post-effective Amendment No. 1 to Form S-1 on Form S-8 (together with all exhibits thereto, the "Registration Statement"), filed with the Securities and Exchange Commission (the "Commission") on the date hereof under the Securities Act of 1933, as amended, for the registration of 600,000 shares (the "Shares") of Common Stock, par value $0.01 per share, of the Company (the "Common Stock") pursuant to the Company's Employee Stock Purchase Plan (the "Plan"). This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the "Act"). In rendering the opinions set forth herein, I have examined originals or copies, certified or otherwise identified to my satisfaction, of (i) the Registration Statement, (ii) the Company's registration statement on Form S-1 (No. 333-37410) and all amendments thereto, relating to the Company's initial public offering, (iii) the Plan, (iv) the Amended and Restated Certificate of Incorporation of the Company, as amended to date and currently in effect, (v) the Amended and Restated By-Laws of the Company, as amended to date and currently in effect, (vi) a specimen certificate representing the Shares, and (vii) certain resolutions of the Board of Directors of the Company relating to the Plan and the filing of the Registration Statement. I also have examined originals or copies, certified or otherwise identified to my satisfaction, of such records of the Company and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and others, and such other documents as I have deemed necessary or appropriate as a basis for the opinions set forth herein. In my examination, I have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as certified or photostatic copies and the authenticity of the originals of such copies. In making my examination of executed documents, I have assumed that the parties thereto, other than the Company, had the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents and the validity and binding effect thereof on such parties. As to any facts material to the opinions expressed herein that I did not independently establish or verify, I have relied upon statements and representations of officers and other representatives of the Company and others and of public officials. The opinions expressed herein are limited to the federal laws of the United States of America and the General Corporation Law of the State of Delaware ("DGCL"), and I express no opinion with respect to the laws of any other country, state or jurisdiction. Based upon and subject to the foregoing, I am of the opinion that the Shares have been duly authorized and when the Shares have been issued, delivered and paid for upon pursuant to the terms of the Plan, and certificates representing the Shares in the form of the specimen certificate examined by me have been manually signed by an authorized officer of the transfer agent and registrar for the Common Stock and registered by such transfer agent and registrar, such Shares will be validly issued, fully paid and nonassessable. I hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. In giving this consent, I do not thereby admit that I am included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission. Very truly your, /s/ Stanley F. Baldwin EX-23.1 4 s416789.txt INDEPENDENT AUDITORS' CONSENT Exhibit 23.1 Independent Auditors' Consent The Board of Directors AMERIGROUP Corporation We consent to incorporation by reference in the registration statement (No. 333-37410) on post effective amendment No. 1 to Form S-1 on Form S-8 of our report dated March 1, 2001, relating to the consolidated balance sheets of AMERIGROUP Corporation and subsidiaries as of December 31, 1999 and 2000, and the related consolidated state ments of operations, stockholders' equity (deficit) and cash flows for each of the years in the three-year period ended December 31, 2000, and the related financial statement schedule, Schedule II - Schedule of Valuation and Qualifying Accounts, which reports appear in AMERIGROUP Corporation's registration statement (No. 333-37410) on Form S-1. /s/ KPMG LLP Norfolk, Virginia December 7, 2001 EX-23.2 5 s416788.txt INDEPENDENT AUDITORS' CONSENT Exhibit 23.2 Independent Auditors' Consent The Board of Directors Oxford Health Plans (NJ), Inc.: We consent to incorporation by reference in the registration statement (No. 333-37410) on post effective amendment No. 1 to Form S-1 on Form S-8 of AMERIGROUP Corpora tion of our report dated November 16, 1998, relating to the statements of revenues and expenses of contracts acquired of the Medicaid business of Oxford Health Plans (NJ), Inc. for the six months ended June 30, 1998, and the year ended December 31, 1997, which reports appear in AMERIGROUP Corporation's registration statement (No. 333-37410) on Form S-1. /s/ KPMG LLP Norfolk, Virginia December 7, 2001 -----END PRIVACY-ENHANCED MESSAGE-----