Exhibit 10
ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT (the "Agreement"), dated as of
April 28, 1998, by and between TPG Oxford LLC, a Delaware limited
liability company ("TPG"), and Oxford Acquisition Corp. ("Bear").
W I T N E S S E T H:
WHEREAS, pursuant to the Investment Agreement, dated
as of February 23, 1998 (the "Investment Agreement"), between TPG
and Oxford Health Plans, Inc. (the "Company"), TPG has the right
to purchase the Securities in accordance with the terms of the
Investment Agreement;
WHEREAS, Bear desires to purchase from the Company
certain of the Securities as a Designated Purchaser in accordance
with the terms of the Investment Agreement; and
WHEREAS, TPG desires to assign to Bear its right to
purchase certain of the Securities from the Company in accordance
with the terms of the Investment Agreement;
NOW, THEREFORE, in consideration of the premises and
the mutual representations, warranties, covenants and agreements
contained herein, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used but not
defined herein shall have the meanings set forth in the
Investment Agreement.
Section 2. Assignment. (a) TPG hereby assigns (the
"Assignment") to Bear its right to purchase pursuant to the
Investment Agreement, and Bear hereby agrees to purchase from the
Company at the Closing pursuant to and in accordance with the
terms of the Investment Agreement, the following Securities (the
"Assigned Securities"): (i) 3,500 shares of Series A Preferred
Stock, together with Series A Warrants to purchase, subject to
adjustment as set forth therein, 225,714 shares of Common Stock,
and (ii) 1,500 shares of Series B Preferred Stock, together with
Series B Warrants to purchase, subject to adjustment as set forth
therein, (A) prior to the Shareholder Approval, 96 shares of
Junior Preferred Stock, or (B) following the Shareholder
Approval, 96,142 shares of Common Stock.
(b) Bear acknowledges and agrees that the Assignment
is made pursuant to and in accordance with the terms of the
Investment Agreement, including without limitation Section
11.10(b) thereof, and is limited solely to the right to purchase
the Assigned Securities. Bear shall have no other rights of TPG
under the Investment Agreement or any rights of TPG (other than
rights that by their terms are available to all holders of the
relevant Securities generally) under the Certificates of
Designations or the Warrants, including, without limitation,
general voting rights or the right to designate directors of the
Company; provided, however, that nothing
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contained herein shall limit Bear's rights as a Designated
Purchaser under the Investment Agreement.
Section 3. Investment. (a) Bear has independently, and
without reliance on TPG or any of TPG's Affiliates or any of
their respective partners, officers, directors, members,
employees, agents or representatives (collectively, the "TPG
Parties"), made its own analysis and decision regarding whether
to enter this Agreement and purchase the Assigned Securities.
Bear acknowledges that no TPG Party has provided any information
to Bear, nor made any statement, representation or warranty to
Bear, with respect to the Company or the Assigned Securities.
Bear agrees that it will, independently and without reliance on
any TPG Party, continue to make its own decisions regarding the
Assigned Securities, and Bear acknowledges that its exclusive
rights and remedies with respect to the Assigned Securities shall
be those rights and remedies accorded a Designated Purchaser
under the Investment Agreement.
(b) Bear is acquiring the Assigned Securities for its
own account solely for the purpose of investment and not with a
view to, or for sale in connection with, any distribution thereof
in violation of the Securities Act. Bear acknowledges that the
Securities and the Warrant Shares have not been registered under
the Securities Act and may be sold or disposed of in the absence
of such registration only pursuant to an exemption from the
registration requirements of the Securities Act.
Section 4. Transfer Restrictions. (a) Neither Bear nor
any of its Affiliates will, without the prior written consent of
TPG, during the period commencing on the date hereof and ending
on the date that is one year after the date hereof, offer, sell
or contract to sell, or otherwise dispose of (or enter into any
transaction which is designed to, or might reasonably be expected
to, result in the disposition of (whether by actual disposition
or effective economic disposition due to cash settlement or
otherwise)), directly or indirectly, the Assigned Securities.
Section 5. Agency. Bear hereby appoints TPG and
authorizes TPG to act as Bear's sole and exclusive agent with
respect to the administration of the indemnification provisions
set forth in Section 11.05 of the Investment Agreement; provided,
however, no TPG Party shall have any responsibility or liability
to Bear with respect any action taken or omitted to be taken by
such TPG Party in connection with this Section 5, absent gross
negligence or willful misconduct on the part of such TPG Party.
Section 6. Confidentiality. Except as required by Law,
neither Bear nor any of its Affiliates will, without the prior
written consent of TPG, which consent shall not be unreasonably
withheld or delayed, make any public announcement or issue any
press release with respect to the transactions contemplated by
this Agreement or the Investment Agreement. Prior to making any
public disclosure required by applicable Law, Bear shall consult
with TPG, to the extent feasible, as to the content and timing of
such public announcement or press release.
Section 7. Delivery of Letter. Bear agrees that at or
prior to the Closing it will execute and deliver to the Company
the letter attached as Exhibit I hereto.
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Section 8. No Assignment. Neither this Agreement nor
any rights hereunder shall be assignable by any party hereto
without the prior written consent of the other party hereto.
Section 9. Entire Agreement. This Agreement sets forth
the entire agreement between the parties hereto with respect to
the transactions contemplated by this Agreement. Any provision of
this Agreement may be amended, modified or supplemented in whole
or in part at any time by an agreement in writing among the
parties hereto executed in the same manner as this Agreement.
Section 10. Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall be
deemed to constitute an original, but all of which together shall
constitute one and the same document.
Section 11. Governing Law. This Agreement shall be
governed by, and interpreted in accordance with, the laws of the
State of New York applicable to contracts made and to be
performed in that State without reference to its conflict of laws
rules.
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IN WITNESS WHEREOF, this Assignment Agreement has been
executed on behalf of the parties hereto by their respective duly
authorized officers, all as of the date first above written.
TPG OXFORD LLC
By /s/ Xxxxx X. X'Xxxxx
-----------------------
Name: Xxxxx X. X'Xxxxx
Title: Vice President
OXFORD ACQUISITION CORP.
By /s/ Xxxx X. Xxxxxx
-----------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
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Exhibit I
Oxford Acquisition Corp.
_________, 0000
Xxxxxx Health Plans, Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
Reference is hereby made to the Investment Agreement,
dated as of February 23, 1998 (the "Investment Agreement"),
between TPG Oxford LLC ("TPG") and Oxford Health Plans, Inc. (the
"Company"), and the Assignment Agreement, dated as of April __,
1998 (the "Assignment Agreement"), between TPG and Oxford
Acquisition Corp. ("Bear"). Capitalized terms used but not
defined herein shall have the meanings set forth in the
Investment Agreement or the Assignment Agreement, as the case may
be.
In connection with the assignment contemplated by the
Assignment Agreement, Bear hereby represents and warrants to, and
agrees with, the Company, as follows:
(i) Bear is acquiring the Assigned Securities for its
own account solely for the purpose of investment and not with a
view to, or for sale in connection with, any distribution thereof
in violation of the Securities Act. Bear acknowledges that the
Assigned Securities and the Warrant Shares have not been
registered under the Securities Act and may be sold or disposed
of in the absence of such registration only pursuant to an
exemption from the registration requirements of the Securities
Act;
(ii) Bear agrees to comply with the provisions of
Section 8.06 of the Investment Agreement as if it were the
Investor thereunder; and
(iii) Pursuant to the Assignment Agreement, Bear has
appointed TPG as its exclusive agent for the purpose of
administering the indemnification provisions set forth in Section
11.05 of the Investment Agreement.
Very truly yours,
Oxford Acquisition Corp.
By
-----------------------------
Name:
Title:
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