Exhibit 9
ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT (the "Agreement"), dated as of
April 23, 1998, by and among TPG Oxford LLC, a Delaware limited
liability company ("TPG"), and the DLJ Entities listed on the
signature pages hereto (each, a "DLJ Entity," and collectively
"DLJ").
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, each DLJ Entity 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 DLJ 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 DLJ its right to purchase pursuant to the
Investment Agreement, and DLJ 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) 35,000 shares of Series A Preferred
Stock, together with Series A Warrants to purchase, subject to
adjustment as set forth therein, 2,257,143 shares of Common
Stock, and (ii) 15,000 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, 961 shares of Junior Preferred Stock, or (B) following
the Shareholder Approval, 961,429 shares of Common Stock.
(b) Each DLJ Entity 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. No DLJ Entity shall have any 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;
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provided, however, that nothing contained herein shall limit any
DLJ Entity's rights as a Designated Purchaser under the
Investment Agreement.
Section 3. Investment. (a) Each DLJ Entity 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. Each DLJ Entity acknowledges that no TPG
Party has provided any information to any DLJ Entity, nor made
any statement, representation or warranty to any DLJ Entity, with
respect to the Company or the Assigned Securities. Each DLJ
Entity agrees that it will, independently and without reliance on
any TPG Party, continue to make its own decisions regarding the
Assigned Securities, and each DLJ Entity 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) Each DLJ Entity 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. Each DLJ Entity 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) Except in
connection with any sale made pursuant to Section 5 hereof, as
provided in Section 4(b) hereof or pursuant to a Piggyback
Registration (as such term is defined in the Registration Rights
Agreement), no DLJ Entity will, without the prior written consent
of TPG, during the period (the "Restricted Period") commencing on
the date hereof and ending on the earlier of (i) the date (the
"Anniversary Date") that is one year after the date hereof and
(ii) the date on which the Shelf Registration Statement (as such
term is defined in the Registration Rights Agreement) is declared
effective by the Commission, 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 (any of such
transactions, a "Sale Transaction"); provided, however, that
notwithstanding the foregoing, in the event that the Restricted
Period ends on a date that is earlier than the Anniversary Date,
prior to the Anniversary Date, if TPG in good faith informs DLJ
that TPG or its Affiliates is actively engaged in bona fide
negotiations regarding a sale of Securities, no DLJ Entity may
enter into a Sale Transaction during the period commencing on the
date DLJ is informed of such negotiations and ending on the
earlier of (A) the date a sale is effected as a result of such
negotiations, (B) the date such negotiations are terminated, (C)
the Anniversary Date, and (D) 30 days from the date DLJ is
informed of such negotiations.
(b) Notwithstanding anything herein to the contrary,
any DLJ Entity may at any time transfer any or all of its
Assigned Securities to one or more of its Permitted Transferees
without the consent of TPG so long as (a) such Permitted
Transferee shall have agreed in a
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writing delivered to TPG to be bound by the terms of this
Agreement, (b) such Permitted Transferee shall have delivered a
letter to the Company in the form of Exhibit I hereto, and (c)
the transfer to such Permitted Transferee would not be in
violation of applicable Federal or state securities laws. For
purposes hereof, the term "Permitted Transferee" shall mean (i)
any general or limited partner of any DLJ Entity (a "DLJ
Partner"), and any corporation, partnership or other entity that
is an Affiliate of any DLJ Partner or DLJ Entity (collectively,
the "DLJ Affiliates"), (ii) any managing director, general
partner, director, limited partner or employee of a DLJ Affiliate
or the heirs, executors, administrators, testamentary trustees,
legatees or beneficiaries of any of such persons referred to in
this clause (collectively, the "DLJ Associates"), and (iii) any
trust, the beneficiaries of which, or any corporation, limited
liability company or partnership, the stockholders, members or
general or limited partners of which include only such XXX
Xxxxxx, XXX Xxxxxxxxxx, XXX Associates, their spouses or their
lineal descendants.
Section 5. Tag-Along Rights. (a) In the event that TPG
proposes to sell or transfer for value any Securities to any
Person (other than an Affiliate of TPG) which sale or transfer is
proposed to be effected during the Restricted Period, TPG shall
deliver a notice (the "Tag-Along Notice") to DLJ which shall
include (i) the principal terms of the proposed sale insofar as
it relates to the Securities, including the purchase price
thereof (or formula for computing the purchase price) and the
name and address of the proposed buyer, and (ii) an offer to
include in such sale, at the option of DLJ, such number of
Assigned Securities owned by DLJ determined in accordance with
Section 5(b) hereof, on the same terms and conditions as TPG
shall sell or transfer Securities in such sale. Notwithstanding
anything herein to the contrary, DLJ shall have the right to
include in any such sale only those series of Securities to be
sold by TPG in such sale.
(b) If DLJ desires to accept the offer contained in
the Tag-Along Notice, DLJ shall send a written commitment (the
"Commitment") to TPG specifying the number of shares or warrants,
or the principal amount, as the case may be, of each series of
Securities (not in any event to exceed in the aggregate, with
respect to any series of Security, the total of that series of
Security to be sold in such sale (subject to the proviso to
Section 5(e) hereof) multiplied by a fraction, the numerator of
which shall be the total number of that series of Security held
by DLJ as of the Closing, and the denominator of which shall be
the total number of that series of Security issued by Company at
the Closing pursuant to the Investment Agreement) which DLJ
desires to have included in such sale. A Commitment shall be
delivered by DLJ within five (5) days after delivery of the
related Tag-Along Notice; provided, however, that in the event
the underlying offer to buy Securities is open or valid for a
period shorter than five (5) days after delivery of the related
Tag-Along Notice, the Commitment shall be delivered by DLJ within
two (2) days after delivery of the related Tag-Along Notice. If
DLJ does not so deliver a Commitment, DLJ shall be deemed to have
waived all of its rights with respect to the sale referred to in
the Tag-Along Notice, and TPG shall thereafter be free to sell
Securities to the proposed buyer, at a price no greater than the
purchase price (or price determined pursuant to the formula) set
forth in the Tag-Along Notice and otherwise on terms
substantially no more favorable (considered as a whole) than as
set forth in the Tag-Along Notice, without any further obligation
to DLJ.
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(c) The acceptance by DLJ of any offer set forth in a
Tag-Along Notice shall be irrevocable except as hereinafter
expressly provided, and DLJ shall be bound and obligated to sell
in the sale referred to in such Tag-Along Notice such number of
Assigned Securities as DLJ shall have specified in the related
Commitment.
(d) If at the end of the sixtieth (60th) day following
the date of the effectiveness of a Tag-Along Notice TPG has not
completed the sale referred to therein, DLJ shall be released
from its obligations under the related Commitment, the Tag-Along
Notice shall be null and void, and it shall be necessary for a
separate Tag-Along Notice to be furnished, and the terms and
provisions of this Section 5 separately complied with, in order
to consummate such sale pursuant to this Section 5.
(e) Notwithstanding anything in the foregoing
provisions to the contrary, except in connection with a Market
Transaction, TPG shall not be obligated to deliver a Tag-Along
Notice, and DLJ shall not have any right to include Securities in
any sale by TPG, until such time as TPG and its Affiliates shall
own less than $180,000,000 (one hundred eighty million dollars)
worth of Securities (valued at the prices paid for such
Securities at the Closing pursuant to the Investment Agreement)
in the aggregate (the "Threshold Amount"); provided, however,
that in the event that TPG and its Affiliates' aggregate
ownership would fall below the Threshold Amount pursuant to any
sale, TPG shall be required to deliver a Tag-Along Notice and DLJ
shall have the right to participate in such sale to the extent,
but only to the extent, that TPG and its Affiliates' aggregate
ownership falls below the Threshold Amount pursuant to such sale.
For purposes of this Section 5(e), the term "Market Transaction"
shall mean any sale of Securities by TPG or its Affiliates
pursuant to an offer to sell Securities that is made by TPG or
its Affiliates through an underwriter, placement agent or similar
intermediary.
Section 6. Agency. Each DLJ Entity hereby appoints TPG
and authorizes TPG to act as such DLJ Entity'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 any DLJ Entity with respect any
action taken or omitted to be taken by such TPG Party in
connection with this Section 6, absent gross negligence or
willful misconduct on the part of such TPG Party.
Section 7. Confidentiality. Except as required by Law,
no DLJ Entity 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, the DLJ Entity
making such disclosure shall consult with TPG, to the extent
feasible, as to the content and timing of such public
announcement or press release.
Section 8. Delivery of Letter. Each DLJ Entity agrees
that at or prior to the Closing it will execute and deliver to
the Company the letter attached as Exhibit I hereto.
Section 9. 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.
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Section 10. 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 11. 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 12. 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.
Section 13. Notices. All notices and other
communications hereunder shall be in writing and shall be deemed
to have been duly given, if delivered personally, by telecopier
or sent by first class mail, postage prepaid, as follows:
(a) If to TPG, to:
TPG OXFORD LLC
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxxxxx X. Xxxxxx
With a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxx, Esq.
Facsimile: 212-225-3999
(b) If to a DLJ Entity, to:
DLJ
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxx/Xxxxxx Xxxxxxxxx
Facsimile: 000-000-0000
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Section 14. Termination. This Agreement shall be
terminated and shall be of no further force or effect if the
Investment Agreement is validly terminated in accordance with
Section 10.01 thereof, except for Sections 7 and 12 hereof which
shall survive any termination of this Agreement.
Section 15. Other Assignments. In the event that TPG
shall assign any rights to purchase Securities under the
Investment Agreement to a Designated Purchaser (other than any
DLJ Entity or Permitted Transferees or Affiliates of any DLJ
Entity) which assignment contains terms and provisions in respect
of the matters set forth in Section 4 or 5 hereof which are
materially more favorable to the Designated Purchaser than those
set forth in Section 4 or 5 hereof, respectively, then this
agreement shall be deemed amended without any further action by
the parties hereto in order to include such more favorable terms
and provisions.
Section 16. Joint and Several Obligations. The
obligations of the DLJ Entities hereunder shall be joint and
several obligations of such entities.
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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
DLJ ENTITIES:
DLJMB FUNDING II, INC.
/s/ Xxxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Secretary
DLJ MERCHANT BANKING PARTNERS II,
L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
/s/ Xxxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Secretary
DLJ MERCHANT BANKING PARTNERS II-
A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
/s/ Xxxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Secretary
7
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DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ Diversified Partners, L.P.
Managing General Partner
/s/ Xxxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Secretary
DLJ DIVERSIFIED PARTNERS-A, L.P.
By: DLJ Diversified Partners, L.P.
Managing General Partner
/s/ Xxxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Secretary
DLJ MILLENIUM PARTNERS, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
/s/ Xxxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Secretary
DLJ MILLENIUM PARTNERS-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
/s/ Xxxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Secretary
8
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DLJ FIRST ESC L.P.
By: DLJ LBO Plans Management
Corporation
General Partner
/s/ Xxxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Secretary
DLJ OFFSHORE PARTNERS II, C.V.
By: DLJ Merchants Banking II, Inc.
Managing General Partner
/s/ Xxxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Secretary
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management
Corporation
General Partner
/s/ Xxxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Secretary
By: UK Investment Plan 1997 Partners, Inc.
Managing General Partner
/s/ Xxxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Secretary
9
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DLJ ESC II L.P.
By: DLJ LBO Plans Management
Corporation
General Partner
/s/ Xxxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Secretary
10
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DLJ CAPITAL CORPATION
/s/ Art Xxxxxxxxx
--------------------------
Name: Art Xxxxxxxxx
Title: Vice President
SPROUT GROWTH II, L.P.
By: DLJ Capital Corporation
Managing General Partner
/s/ Art Xxxxxxxxx
--------------------------
Name: Art Xxxxxxxxx
Title: Vice President
THE SPROUT CEO FUND, L.P.
By: DLJ Capital Corporation
General Partner
/s/ Art Xxxxxxxxx
--------------------------
Name: Art Xxxxxxxxx
Title: Vice President
SPROUT CAPITAL VIII, L.P.
By: DLJ Capital Corporation
Managing General Partner
/s/ Art Xxxxxxxxx
--------------------------
Name: Art Xxxxxxxxx
Title: Vice President
11
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Exhibit I
[DLJ Entity]
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
_________, 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 [DLJ Entity]
("DLJ Entity"). 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, DLJ hereby represents and warrants to, and
agrees with, the Company, as follows:
(i) DLJ Entity 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. DLJ Entity
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) DLJ Entity 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, DLJ Entity
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,
[DLJ Entity]
By
--------------------------
Name:
Title:
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