Exhibit 11
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 Chase Equity Associates, L.P., a
California limited partnership ("Chase").
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, Chase 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 Chase 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 Chase its right to purchase pursuant to the
Investment Agreement, and Chase 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) 10,500 shares of Series A Preferred
Stock, together with Series A Warrants to purchase, subject to
adjustment as set forth therein, 677,142 shares of Common Stock,
and (ii) 4,500 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, 288.428 shares of
Junior Preferred Stock, or (B) following the Shareholder
Approval, 288,428 shares of Common Stock.
(b) Chase 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. Chase 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; provided, however, that nothing
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contained herein shall limit Chase's rights as a Designated
Purchaser under the Investment Agreement.
Section 3. Investment. (a) Chase 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.
Chase acknowledges that no TPG Party has provided any information
to Chase, nor made any statement, representation or warranty to
Chase, with respect to the Company or the Assigned Securities.
Chase agrees that it will, independently and without reliance on
any TPG Party, continue to make its own decisions regarding the
Assigned Securities, and Chase 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 and those rights and remedies
accorded holders of securities generally in the other agreements
and documents contemplated by the Investment Agreement.
(b) Chase 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. Chase 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 pursuant
to Section 5 hereof, neither Chase 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; provided,
however, that Chase may sell or transfer all or any part of the
Assigned Securities to any of its Affiliates, if prior to such
sale or transfer such Affiliate (i) agrees in writing to be bound
by the terms hereof and (ii) delivers a letter to the Company in
the form of Exhibit I hereto.
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 Chase 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 Chase, such number of
Assigned Securities owned by Chase 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, Chase shall have the right to
include in any such sale only those series of Securities to be
sold by TPG in such sale.
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(b) If Chase desires to accept the offer contained in
the Tag-Along Notice, Chase 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 Chase 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 Chase
desires to have included in such sale. A Commitment shall be
delivered by Chase within five (5) days after delivery of the
related Tag-Along Notice. If Chase does not so deliver a
Commitment, Chase 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 Chase.
(c) The acceptance by Chase of any offer set forth in
a Tag-Along Notice shall be irrevocable except as hereinafter
expressly provided, and Chase shall be bound and obligated to
sell in the sale referred to in such Tag-Along Notice such number
of Assigned Securities as Chase 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, Chase 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, TPG shall not be obligated to deliver
a Tag-Along Notice, and Chase 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
Chase 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.
Section 6. Agency. Chase hereby appoints TPG and
authorizes TPG to act as Chase'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 Chase with respect to 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.
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Section 7. Confidentiality. Except as required by Law,
neither Chase 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, Chase 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. Chase 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.
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. 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.
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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 Presidient
CHASE EQUITY ASSOCIATES, L.P.
By: Chase Capital Partners
Its General Partner
By /s/ Xxxxxxxx X. Xxxx
---------------------
Name: Xxxxxxxx X. Xxxx
Title: Executive Partner
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Exhibit I
CHASE EQUITY ASSOCIATES, L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
May 13, 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 28,
1998 (the "Assignment Agreement"), between TPG and Chase Equity
Associates, L.P. ("Chase"). 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, Chase hereby represents and warrants to,
and agrees with, the Company, as follows:
(i) Chase 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. Chase 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) Chase agrees to comply with the provisions of
Section 8.06 of the Investment Agreement as if it were the
Investor thereunder; and
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(iii) Pursuant to the Assignment Agreement, Chase 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,
CHASE EQUITY ASSOCIATES, L.P.
By: Chase Capital Partners
Its General Partner
By
---------------------------
Name:
Title:
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