scheduleto2009.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
SCHEDULE
TO
TENDER
OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF
THE SECURITIES EXCHANGE ACT OF 1934
WELLCARE
HEALTH PLANS, INC.
(Name
of Subject Company (Issuer) and Filing Persons (Offeror))
Options to Purchase Common Stock, $0.01 Par Value, with an Exercise Price Greater than or
Equal to
$40.00 Per Share
(Title
of Class of Securities)
94946T106
(CUSIP
Number of Class of Securities (Underlying Common Stock))
Timothy
S. Susanin
Senior
Vice President, General Counsel and Secretary
WellCare
Health Plans, Inc.
8735
Henderson Road, Renaissance One
Tampa,
Florida 33634
(813) 290-6200
(Name,
address and telephone number of person authorized to receive notices and
communications on behalf of filing persons)
Copies
to:
J.
Warren Gorrell, Jr.
Stuart
A. Barr
Hogan
& Hartson LLP
555
Thirteenth Street, NW
Washington,
DC 20004
(202) 637-5600
CALCULATION
OF FILING FEE
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Transaction
Valuation (1)
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Amount of Filing Fee
(2)
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$7,990,031
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$446
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(1)
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Estimated
solely for purposes of calculating the amount of the filing fee. The
calculation assumes that all options to purchase shares of the Issuer’s
common stock that are eligible for exchange in the offer will be tendered
pursuant to the offer. These options have an aggregate value of $7,990,031
calculated using a binomial lattice model.
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(2)
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The
Amount of Filing Fee, calculated in accordance with the Securities
Exchange Act of 1934, as amended, equals $55.80 per $1,000,000 of the
aggregate amount of the Transaction Valuation. The Transaction
Valuation set forth above was calculated for the sole purpose of
determining the Amount of Filing Fee and should not be used for any other
purpose.
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¨
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Check
the box if any part of the fee is offset as provided by
Rule 0-11(a)(2) and identify the filing with which the offsetting fee
was previously paid. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its
filing.
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Amount
Previously Paid: Not
applicable. Form
or Registration No.: Not applicable.
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Filing
Party: Not
applicable.
Date Filed: Not applicable.
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¨
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Check
the box if the filing relates solely to preliminary communications made
before the commencement of a tender offer.
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Check
the appropriate boxes below to designate any transactions to which the
statement relates:
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¨
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third-party
tender offer subject to Rule 14d-1.
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x
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issuer
tender offer subject to Rule 13e-4.
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¨
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going-private
transaction subject to Rule 13e-3.
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¨
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amendment
to Schedule 13D under
Rule 13d-2.
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Check the
following box if the filing is a final amendment reporting the results of the
tender offer: ¨
Item 1. Summary Term Sheet.
The
information set forth under “Summary Term Sheet and Questions and Answers” in
the Offer to Exchange Certain Outstanding Stock Options for Restricted Stock
Units, dated August 17, 2009, attached hereto as Exhibit (a)(1)(A) (the “Offer
to Exchange”), is incorporated herein by reference.
Item 2. Subject
Company Information.
(a) Name and Address. The issuer
is WellCare Health Plans, Inc., a Delaware corporation (the “Company”). The
Company’s principal executive offices are located at 8735 Henderson Road,
Renaissance One, Tampa, Florida 33634 and the telephone number of its principal
executive offices is (813) 290-6200.
(b) Securities. This Tender Offer
Statement on Schedule TO relates to an offer by the Company to exchange
certain outstanding options to purchase shares of the Company’s common stock
previously granted under the WellCare Health Plans, Inc. 2004 Equity Incentive
Plan (the “Plan”) that have an exercise price per share greater than or equal to
$40.00 (the “eligible options”) for newly issued restricted stock units
(“RSUs”). Each new RSU will be issued under the Plan. As of August 14, 2009,
options to purchase approximately 1,372,812 shares of the Company’s common stock
were eligible for exchange in the exchange offer. The Company is making the
offer upon the terms and subject to the conditions set forth in the Offer to
Exchange and in the related accompanying Election Form, attached hereto as
Exhibit (a)(1)(B).
The
information set forth in the Offer to Exchange under “Summary Term Sheet and
Questions and Answers,” “Risks of Participating in the Offer,” Section 2 –
“Number of options; expiration date,” Section 6 – “Acceptance of options
for exchange and issuance of RSUs,” Section 8 – “Price range of shares
underlying the options” and Section 9 – “Source and amount of
consideration; terms of RSUs” is incorporated herein by reference.
(c) Trading Market and Price. The
information set forth in the Offer to Exchange under Section 8 – “Price
range of shares underlying the options” is incorporated herein by
reference.
Item 3. Identity and Background of Filing
Person.
The
Company is both the filing person and the subject company. The information set
forth under Item 2(a) above and in the Offer to Exchange under
Section 11 – “Interests of directors and executive officers; transactions
and arrangements concerning the options” is incorporated herein by
reference.
Item 4. Terms of the
Transaction.
(a) Material Terms. The
information set forth in the Offer to Exchange under “Summary Term Sheet and
Questions and Answers,” Section 1 – “Eligibility,” Section 2 – “Number of
options; expiration date,” Section 4 – “Procedures for electing to exchange
options,” Section 5 – “Withdrawal rights and change of election,”
Section 6 – “Acceptance of options for exchange and issuance of RSUs,”
Section 7 – “Conditions of the offer,” Section 9 – “Source and amount of
consideration; terms of RSUs,” Section 12 – “Status of options acquired by
us in the offer; accounting consequences of the offer,” Section 13 – “Legal
matters; regulatory approvals,” Section 14 – “Material income tax
consequences” and Section 15 – “Extension of offer; termination; amendment”
is incorporated herein by reference.
(b) Purchases. Members of the
Company’s Board of Directors and certain of the Company’s executive officers are
not eligible to participate in the exchange offer; however, certain of the
Company’s executive officers are eligible to participate. The information set
forth in the Offer to Exchange under Section 11 – “Interests of directors
and executive officers; transactions and arrangements concerning the options” is
incorporated herein by reference.
Item 5. Past Contacts, Transactions,
Negotiations and Agreements.
Agreements Involving the Subject
Company’s Securities. The information set forth in the Offer to Exchange
under Section 2 – “Number of options; expiration date” and Section 11
– “Interests of directors and executive officers; transactions and arrangements
concerning the options” is incorporated herein by reference. The Plan and the
related form of RSU award agreement attached hereto as Exhibits (d)(1)-(d)(2)
also contain information regarding the Company’s securities.
Item 6. Purposes of the Transaction and Plans
or Proposals.
(a) Purposes. The information set
forth in the Offer to Exchange under Section 3 – “Purposes of the offer;
plans, proposals and negotiations” is incorporated herein by
reference.
(b) Use of Securities Acquired.
The information set forth in the Offer to Exchange under Section 6 –
“Acceptance of options for exchange and issuance of RSUs” and Section 12 –
“Status of options acquired by us in the offer; accounting consequences of the
offer” is incorporated herein by reference.
(c) Plans. The information set
forth in the Offer to Exchange under “Summary Term Sheet and Questions and
Answers” and Section 3 – “Purposes of the offer; plans, proposals and
negotiations” is incorporated herein by reference.
Item 7. Source and Amount of Funds or Other
Consideration.
(a) Source of Funds. The
information set forth in the Offer to Exchange under Section 9 – “Source
and amount of consideration; terms of RSUs” and Section 16 – “Fees and
expenses” is incorporated herein by reference.
(b) Conditions. The information
set forth in the Offer to Exchange under Section 7 – “Conditions of the
offer” and Section 9 – “Source and amount of consideration; terms of RSUs”
is incorporated herein by reference.
(d) Borrowed Funds. Not
applicable.
Item 8.
Interest in Securities of the Subject
Company.
(a) Securities Ownership. The
information set forth in the Offer to Exchange under Section 11 –
“Interests of directors and executive officers; transactions and arrangements
concerning the options” is incorporated herein by reference.
(b) Securities Transactions. The
information set forth in the Offer to Exchange under Section 11 –
“Interests of directors and executive officers; transactions and arrangements
concerning the options” is incorporated herein by reference.
Item 9. Persons/Assets, Retained, Employed,
Compensated or Used.
Not
applicable.
Item 10. Financial
Statements.
(a) Financial Information. The
information set forth in Item 8. Financial Statements and
Supplementary Data in the Company’s Annual Report on Form 10-K for the
fiscal year ended December 31, 2008 and in Item 1. Financial Statements in the
Company’s Quarterly Report on Form 10-Q for the quarterly period ended June 30,
2009 is incorporated herein by reference. The financial information contained in
the Offer to Exchange under Section 18 – “Financial Information” and
referenced in Section 17 – “Additional information” is incorporated herein
by reference.
(b) Pro Forma Information. Not
applicable.
Item 11. Additional
Information.
(a) Agreements, Regulatory Requirements
and Legal Proceedings. The information set forth in the Offer to Exchange
under “Risks of Participating in the Offer,” Section 11 – “Interests of
directors and executive officers; transactions and arrangements concerning the
options,” Section 13 – “Legal matters; regulatory approvals” and
Section 14 – “Material income tax consequences” and the information
attached hereto as Exhibit 99.1 is incorporated herein by
reference.
(b) Other Material Information.
Not applicable.
Item 12. Exhibits.
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Exhibit No.
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Description
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(b)
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Not
applicable.
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(d)(1)
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WellCare
Health Plans, Inc. 2004 Equity Incentive Plan (incorporated by reference
to the Company’s quarterly report on Form 10-Q for the quarterly period
ended June 30, 2004).
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(g)
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Not
applicable.
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(h)
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Not
applicable.
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99.1
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Risk
Factors related to the Company and its business (incorporated by reference
to the Company’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2008 and Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 2009 and June 30,
2009).
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Item 13. Information Required by
Schedule 13E-3.
Not
applicable.
SIGNATURE
After due
inquiry and to the best of my knowledge and belief, I certify that the
information set forth in this statement is true, complete, and
correct.
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Date: August 17,
2009
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WELLCARE
HEALTH PLANS, INC.
/s/ Heath
Schiesser
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Heath
Schiesser
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President
and Chief Executive Officer
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EXHIBIT
INDEX
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Exhibit No.
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Description
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(b)
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Not
applicable.
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(d)(1)
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WellCare
Health Plans, Inc. 2004 Equity Incentive Plan (incorporated by reference
to the Company’s quarterly report on Form 10-Q for the quarterly period
ended June 30, 2004).
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(g)
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Not
applicable.
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(h)
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Not
applicable.
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99.1
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Risk
Factors related to the Company and its business (incorporated by reference
to the Company’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2008 and Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 2009 and June 30,
2009).
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