Registration No. 333-             

As filed with the Securities and Exchange Commission on June 10, 2008

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

UNITEDHEALTH GROUP INCORPORATED

(Exact name of registrant as specified in its charter)

 

Minnesota   41-1321939

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

 

UnitedHealth Group Center

9900 Bren Road East

Minnetonka, Minnesota

  55343
(Address of Principal Executive Offices)   (Zip Code)

UNITEDHEALTH GROUP 1993 EMPLOYEE STOCK PURCHASE PLAN

(Full title of the plan)

 

 

Christopher J. Walsh

Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary

UnitedHealth Group Center

9900 Bren Road East

Minnetonka, Minnesota 55343

(Name and address of agent for service)

(952) 936-1300

(Telephone number, including area code, of agent for service)

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act (check one):

 

Large accelerated filer   x    Accelerated filer   ¨
Non-accelerated filer   ¨ (Do not check if a smaller reporting company)    Smaller reporting company   ¨

CALCULATION OF REGISTRATION FEE

 

 

Title of securities to be registered   Amount to
be registered (1)
  Proposed maximum
offering price per
share (2)
  Proposed maximum
aggregate offering
price (2)
  Amount of
registration fee (2)

Common Stock ($.01 par value per share)

  13,871,559   $33.89   $470,107,134   $18,475.21

 

 

(1) Pursuant to Rule 416(a) under the Securities Act of 1993, this Registration Statement also covers an indeterminate number of additional shares of that may be offered or issued pursuant to the UnitedHealth Group 1993 Employee Stock Purchase Plan (the “Plan”) in connection with any stock split, stock dividend or similar transaction.

 

(2) Estimated solely for the purpose of determining the registration fee in accordance with Rules 457(h) and (c) of the Securities Act of 1933, as amended. The proposed maximum offering price, per share and in the aggregate, is based upon the average of the high and low sales prices of the common stock as reported on the New York Stock Exchange on June 4, 2008.

 

 

 


EXPLANATORY NOTE

This Registration Statement is filed by UnitedHealth Group Incorporated (the “Company” or the “Registrant”) to register additional securities issuable pursuant to the Plan and consists of only those items required by General Instruction E to Form S-8. The Registration Statements on Form S-8 relating to the Plan, previously filed with the Securities and Exchange Commission (the “SEC”) on May 31, 1996 (File No. 333-04875) and August 27, 1993 (File No. 033-68158), are incorporated by reference herein.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

The following documents of the Company filed with the SEC are incorporated by reference in this Registration Statement (other than, in each case, documents or information deemed to have been furnished and not filed in accordance with SEC rules):

 

  (a) The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2007, filed with the SEC on February 21, 2008 (File No. 001-10864);

 

  (b) The Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2008, filed with the SEC on May 2, 2008 (File No. 001-10864);

 

 

(c)

The Company’s Current Reports on Form 8-K, filed with the SEC on June 6, 2008, April 28, 2008, April 22, 2008, February 14, 2008 and February 7, 2008 (each, File No. 001-10864); and

 

  (d) The description of the Company’s Common Stock contained in the Company’s Registration Statement on Form 8-A, filed with the SEC on September 23, 1991 (File No. 0-13253), and any other amendment or report filed for the purpose of updating such description.

All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with SEC rules shall not be deemed incorporated by reference in this Registration Statement. Any statement contained herein or in a document incorporated by reference in this Registration Statement 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 amended, to constitute a part of this Registration Statement.

 

Item 5. Interests of Named Experts and Counsel.

Christopher J. Walsh, Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary of the Company, who is passing on the validity of the common stock offered pursuant to the Plan, is a full-time employee of the Company and owns shares of the Company’s common stock and is eligible to participate in various employee stock-based benefit plans, including the Plan.

 

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Item 8. Exhibits.

 

5.1

   Opinion of Christopher J. Walsh, Deputy General Counsel of UnitedHealth Group Incorporated

23.1

   Consent of Deloitte & Touche LLP

23.2

   Consent of Christopher J. Walsh, Deputy General Counsel of UnitedHealth Group Incorporated (included as part of Exhibit 5.1)

24.1

   Power of Attorney

99.1

   UnitedHealth Group 1993 Employee Stock Purchase Plan

 

Item 9. 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 of 1933;

 

  (ii) To reflect in the prospectus any facts or events arising after the effective date of this 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 this 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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 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 this Registration Statement or any material change to such information in the Registration Statement;

provided , however , that paragraphs (1)(i) and (1)(ii) of this Item 9 do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement.

 

  (2) That, for the purpose of determining any liability under the Securities Act of 1933, 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

 

II-2


 

Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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 of 1933 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of such issue.

 

II-3


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 the City of Minnetonka, State of Minnesota, on the 10th day of June, 2008.

 

UNITEDHEALTH GROUP INCORPORATED

By:

 

/s/    Stephen J. Hemsley

 

Stephen J. Hemsley

President and Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on the 10th day of June, 2008.

 

Signature

       

Title

/s/    Stephen J. Hemsley

Stephen J. Hemsley

      Director, President and Chief Executive Officer (principal executive officer)

/s/    George L. Mikan III

George L. Mikan III

      Executive Vice President and Chief Financial Officer (principal financial officer)

/s/    Eric S. Rangen        

Eric S. Rangen

     

Senior Vice President and Chief Accounting Officer

(principal accounting officer)

*

William C. Ballard, Jr.

      Director

*

Richard T. Burke

      Director

*

Robert J. Darretta

      Director

*

Michele J. Hooper

      Director

*

Douglas W. Leatherdale

      Director

*

Glenn M. Renwick

      Director

 

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*

      Director

Gail R. Wilensky, Ph.D.

     

 

* The undersigned, by signing his name hereto, does hereby execute this registration statement on behalf of the directors of UnitedHealth Group Incorporated listed above pursuant to the Power of Attorney filed herewith as Exhibit 24.1.

 

*By:

 

/s/    Christopher J. Walsh

 

Christopher J. Walsh

As Attorney-in-Fact

 

II-5


EXHIBIT INDEX

 

Exhibit
Number

  

Description

5.1

   Opinion of Christopher J. Walsh, Deputy General Counsel of UnitedHealth Group Incorporated

23.1

   Consent of Deloitte & Touche LLP

23.2

   Consent of Christopher J. Walsh, Deputy General Counsel of UnitedHealth Group Incorporated (included as part of Exhibit 5.1)

24.1

   Power of Attorney

99.1

   UnitedHealth Group 1993 Employee Stock Purchase Plan

Exhibit 5.1

[UnitedHealth Group Letterhead]

June 10, 2008

Board of Directors

UnitedHealth Group Incorporated

9900 Bren Road East

Minnetonka, Minnesota 55343

 

  Re: Registration Statement on Form S-8

Ladies and Gentlemen:

I have acted as Deputy General Counsel to UnitedHealth Group Incorporated, a Minnesota corporation (the “Company”), in connection with the preparation of its registration statement on Form S-8 (the “Registration Statement”) relating to the registration of 13,871,559 shares of the Company’s Common Stock, par value $.01 per share (the “Shares”), which may be issued from time to time pursuant to the UnitedHealth Group 1993 Employee Stock Purchase Plan (as in effect on the date of this opinion, the “Plan”). This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. § 229.601(b)(5), in connection with the Registration Statement.

For purposes of this opinion letter, I, or attorneys in the legal department of the Company under my direction, have examined originals or copies of those corporate and other records of the Company we considered appropriate for the purposes of this opinion. In rendering this opinion, I have assumed the authenticity of all documents submitted to me as originals, the genuineness of all signatures and the conformity to authentic originals of all documents submitted to me as copies (including telecopies). I have also assumed the legal capacity for all purposes relevant hereto of all natural persons. As to questions of fact material to my opinion, I have relied upon certificates of officers of the Company and of public officials.

This opinion letter is given, and all statements herein are made, in the context of the foregoing.

Based on the foregoing, I am of the opinion that the Shares have been duly authorized by all requisite corporate action and, upon issuance, delivery and payment therefore in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable.

This opinion letter has been prepared for your use in connection with the Registration Statement and speaks as of the date hereof. I assume no obligation to advise you of any changes in the foregoing subsequent to the effective date of the Registration Statement.

The opinions expressed above are limited to the laws of the State of Minnesota.

I hereby consent to the filing of this opinion as an exhibit to the Registration Statement.

 

Very truly yours,

/s/    Christopher J. Walsh

Christopher J. Walsh

Deputy General Counsel

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated February 21, 2008, relating to the consolidated financial statements of UnitedHealth Group Incorporated and subsidiaries, and the effectiveness of UnitedHealth Group Incorporated and subsidiaries’ internal control over financial reporting, appearing in the Annual Report on Form 10-K of UnitedHealth Group Incorporated and subsidiaries for the year ended December 31, 2007.

/s/ DELOITTE & TOUCHE LLP

Minneapolis, MN

June 10, 2008

Exhibit 24.1

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Thomas L. Strickland, Christopher J. Walsh and Dannette L. Smith, and each of them, his or her true and lawful attorneys-in-fact and agents, each acting alone, with full power of substitution and resubstitution, to sign, execute and file with the Securities and Exchange Commission (or any other governmental or regulatory authority), for us and in our names in the capacities indicated below, a registration statement on Form S-8, and any and all amendments (including post-effective amendments) thereto, relating to the UnitedHealth Group 1993 Employee Stock Purchase Plan with all exhibits and any and all documents required to be filed with respect thereto, granting unto said attorneys-in-fact and agents and each of them, full power and authority to do and to perform each and every act and thing necessary or desirable to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as he himself or she herself might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, may lawfully do or cause to be done by virtue hereof.

IN WITNESS WHEREOF, the undersigned have executed this Power of Attorney as of the date set forth below.

 

/s/ Stephen J. Hemsley

Stephen J. Hemsley

Director, President and Chief Executive Officer

(principal executive officer)

Dated: June 10, 2008

    

/s/ Robert J. Darretta

Robert J. Darretta

Director

Dated: June 10, 2008

    

/s/ George L. Mikan

George L. Mikan III

Executive Vice President and Chief Financial Officer

(principal financial officer)

Dated: June 10, 2008

    

/s/ Michele J. Hooper

Michele J. Hooper

Director

Dated: June 10, 2008

    

/s/ Eric S. Rangen

Eric S. Rangen

Senior Vice President and Chief Accounting Officer

(principal accounting officer)

Dated: June 10, 2008

    

/s/ Douglas W. Leatherdale

Douglas W. Leatherdale

Director

Dated: June 10, 2008

    

/s/ William C. Ballard, Jr.

William C. Ballard, Jr.

Director

Dated: June 10, 2008

    

/s/ Glenn M. Renwick

Glenn M. Renwick

Director

Dated: June 10, 2008

    

/s/ Richard T. Burke

Richard T. Burke

Director

Dated: June 10, 2008

    

/s/ Gail R. Wilensky

Gail R. Wilensky, Ph.D.

Director

Dated: June 10, 2008

Exhibit 99.1

ESPP

UNITEDHEALTH GROUP

1993

EMPLOYEE STOCK PURCHASE PLAN,

February 19, 2008

ARTICLE I

PURPOSE

Section 1.01 . The purpose of the UnitedHealth Group 1993 Employee Stock Purchase Plan (the “Plan”) is to enhance employee commitment to the goals of the Company, by providing a means of achieving stock ownership on advantageous terms to eligible employees of the Company or a Participating Affiliate.

ARTICLE II

DEFINITIONS

Section 2.01 . For purposes of the Plan the following terms shall be defined as follows:

 

(a) “Adoption Date” means February 19, 2008.

 

(b) “Affiliate” means any subsidiary corporation of the Company, as defined in Section 424(o) of the Code, whether now or hereafter acquired.

 

(c) “Board of Directors” means the Board of Directors of UnitedHealth Group Incorporated.

 

(d) “Code” means the Internal Revenue Code of 1986, as amended.

 

(e) “Code Section 423 Plan” means an employee stock purchase plan which is designed to meet the requirements set forth in Section 423 of the Code, as amended. The provisions of the Code Section 423 Plan shall be construed, administered and enforced in accordance with Section 423.

 

(f) “Common Stock” means the Common Stock, par value $.01 per share, of UnitedHealth Group Incorporated.

 

(g) “Committee” means the Compensation and Human Resources Committee of the Company’s Board of Directors, or such successor committee as is made up of three or more directors of the Company, none of whom shall be officers or employees of the Company and all of whom shall be “Non-Employee Directors” with respect to the Plan within the meaning of Rule 16(b)-3 under the Securities Exchange Act of 1934, as amended, and any successor rule.

 

(h) “Company” means UnitedHealth Group Incorporated.

 

(i) “Compensation” means the Eligible Employee’s annualized rate of salary in effect at any time during the term of the Plan, exclusive of all overtime earnings, shift differentials, bonus payments and all other forms of remuneration not required by the Eligible Employee’s employment relationship.

 

(j) “Eligible Employees” means all employees of the Company or a Participating Affiliate except (i) employees customarily employed less than twenty (20) hours weekly; (ii) employees whose customary employment is for not more than 5 months in any calendar year; and (iii) employees who, immediately after a right to purchase is granted, would be deemed for purposes of Section 423(b)(3) of the Code to own stock possessing five percent (5%) or more of the total combined voting power or value of all classes of the shares of the Company.

 

(k) “Maximum Offering” shall mean, with respect to some or all participants in the Non-423 Plan, a maximum number or value of shares of the Company stock made available for purchase in specified countries, locations or Participating Affiliates. Such maximum shall be determined by the Committee or its designate to comply with securities laws, to achieve tax objectives or to meet other Company objectives.

 

(l) “Non-423 Plan” means an employee stock purchase plan which does not meet the requirements set forth in Section 423 of the Code, as amended.


(m) “Participant” means an Eligible Employee who has elected to participate in the Plan in the manner set forth in the Plan, and whose participation in the Plan has not ended as set forth in and pursuant to Article VII.

 

(n) “Participating Affiliate” means an Affiliate which has been designated by the Committee in advance of the Purchase Period in question as a corporation whose Eligible Employees may participate in the Plan. The Committee may determine that employees of any Participating Affiliate shall participate in the Non-Section 423 Plan.

 

(o) “Permanent Employee” means an employee of the Company or a Participating Affiliate as of the first day of the Purchase Period, including an officer or director who is also an employee.

 

(p) “Plan” means the UnitedHealth Group 1993 Employee Stock Purchase Plan, Amended and Restated as of February 19, 2008, which includes a Code Section 423 Plan and a Non-423 Plan component.

 

(q) “Plan Quarter” means each of the following three-month periods: (i) January 2 to April 1, (ii) April 2 to July 1, (iii) July 2 to October 1, and (iv) October 2 to January 1.

 

(r) “Plan Year” means the twelve month period, beginning January 2, 1999, that commences each January 2 and ends on January 1 of the next succeeding year.

 

(s) “Purchase Date” means the last day of a Purchase Period.

 

(t) “Purchase Period” means each of the two 26 week periods in each Plan Year, i.e. the 26-week period from January 2 to July 1 and the 26-week period from July 2 to January 1, during the term of this Plan and during which time payroll deductions are made from the Compensation of Eligible Participants in the Plan.

 

(u) “Stock Purchase Account” means the individual account established by the Company for each Participant to which payroll deductions are credited.

ARTICLE III

ELIGIBLE EMPLOYEES; ELECTION TO PARTICIPATE; PAYROLL DEDUCTIONS

Section 3.01 . Each employee of the Company or a Participating Affiliate shall become eligible to participate in the Plan commencing with the first day of a Purchase Period following the date on which he or she becomes an Eligible Employee.

Section 3.02 .

a. Election to Participate . An Eligible Employee may elect to participate in the Plan by completing the appropriate enrollment procedures authorizing regular payroll deductions from the employee’s Compensation, such deductions to begin with the first payroll period ending on or after the eligibility date determined in accordance with Section 3.01, and shall become a Participant effective on the first day of such payroll period.

b. Contribution and Payroll Deduction Election . A Participant may elect contributions and payroll deductions from his or her Compensation in amounts not less than one percent (1%) or more than ten percent (10%) of his or her Compensation.

c. Change in Payroll Deduction Election . A Participant may not increase his or her contributions and payroll deductions during a Purchase Period. A Participant may discontinue contributions and payroll deductions during a Purchase Period as explained in Section 7.02.a. A Participant may increase or reduce his or her contributions and payroll deductions for a future Purchase Period as explained in Section 7.02.b.

ARTICLE IV

PAYROLL DEDUCTIONS; STOCK PURCHASE ACCOUNT

Section 4.01 . Payroll deductions shall be credited to the Participant’s Stock Purchase Account. A Participant may not make any separate cash payment into his or her Stock Purchase Account.

Section 4.02 . The Stock Purchase Account is established solely for accounting purposes, and all amounts credited to the Stock Purchase Account will remain part of the general assets of the Company, or the Participating Affiliate (as the case may be). No amounts credited to any Participant’s Stock Purchase Account nor any benefit received by a Participant under the Plan shall be subject to the debts, contracts, liabilities, engagements or torts of the Participant. No interest shall be paid on amounts credited to a Participant’s Stock Purchase Account.

Section 4.03 . Participants are responsible for paying all income taxes, employment, social insurance, welfare and other taxes under applicable law relating to any amounts deemed under the laws of the country of their residence or of the organization of the Participating Affiliate which employs them to constitute (i) income arising out of the Plan, (ii) the purchase and sale of shares of Common Stock pursuant to the Plan and the distribution of Common Stock or (iii) cash to the Participant in accordance with this Plan. By participating in the Plan, each Participant authorizes the relevant Participating Affiliate to make appropriate withholding deductions from the Participant’s compensation, which shall be in addition to any payroll deductions made pursuant to Section 4.01, and to pay such amounts to the tax authorities in the relevant country or countries in order to satisfy any of the above tax liabilities of the Participant under applicable law.

 

2


ARTICLE V

PURCHASE PRICE

Section 5.01 . Subject to the provision of Section 7.01.b.ii., each Participant shall have the right to purchase on the Purchase Date for the applicable Purchase Period, that number of whole and fractional shares of Common Stock as can be purchased at a price equal to the price specified in Section 5.02 on such date, with the funds then present in the Participant’s Stock Purchase Account on the last day of such Purchase Period; provided, however, that no Participant shall be allowed to purchase more than 1,000 shares in any one Purchase Period. No Participant shall be allowed to purchase Common Stock under the Plan (and under all other employee stock purchase plans, if any, of the Company and any Affiliate) at a rate which exceeds $25,000 in fair market value of Common Stock (determined at the beginning of each Purchase Period) in any calendar year.

If Participants elect during any given Purchase Period to purchase shares of Common Stock which would result in aggregate elections to purchase more than the number of shares of Common Stock then available under the Plan, the Committee will allocate the remaining shares of Common Stock available under the Plan, on a pro rata basis, in accordance with the elections previously filed by each Participant.

Section 5.02 . The purchase price shall be the lesser of (i) 85% of the fair market value of the Common Stock on the first day of the applicable Purchase Period; or (ii) 85% of the fair market value of the Common Stock on the last day of the applicable Purchase Period, in each case rounded up to the next higher full cent. The fair market value on any day shall be (i) the closing price of the Common Stock as reported for composite transactions if the Common Stock is then traded on a national securities exchange; (ii) the last sale price if the Common Stock is then quoted on the NASDAQ National Market; or (iii) the average of the closing representative bid and asked prices if the Common Stock is then reported on NASDAQ, in each case on the date as of which the fair market value is being determined. If the Common Stock is not traded, quoted or reported on any of the above exchanges or reporting systems on such date, the Committee shall make a good faith attempt to establish the fair market value of the Common Stock and in connection therewith shall take such action as it deems necessary or advisable. If the first day or last day of any Purchase Period is a Saturday, Sunday or holiday on which NASDAQ or the applicable national securities exchange is closed, the fair market value shall be determined as of the immediately preceding day on which the NASDAQ or the applicable national securities exchange was open.

ARTICLE VI

PURCHASE

Section 6.01 . Except as provided in Section 7.01, on the Purchase Date for each Purchase Period, the funds in each Participant’s Stock Purchase Account shall be used to purchase the largest number of whole and fractional shares of Common Stock that can be purchased with such funds (not to exceed 1,000 shares in each such Purchase Period).

Section 6.02 . Any funds remaining in a Participant’s Stock Purchase Account after each such purchase shall be refunded to him or her as soon as practicable after the end of the applicable Purchase Period.

ARTICLE VII

RENEWAL OF ELECTION TO CONTRIBUTE; ELECTION TO DISCONTINUE CONTRIBUTIONS; TERMINATION OF RIGHT TO CONTRIBUTE; TERMINATION OF RIGHT TO PURCHASE COMMON STOCK

Section 7.01 .

a. Automatic Renewal of Election to Contribute . Once an Eligible Employee becomes a Participant, his or her contribution and payroll deduction election remains in effect from Purchase Period to Purchase Period, and is automatically renewed, except as provided in Section 7.02.a, until the Participant’s right to contribute to the Plan ends as provided in Section 7.01.b.i.

b. Termination of Right to Participate .

 

  i. Termination of Right to Contribute . A Participant’s right to contribute to the Plan ends as of the date on which he or she (a) no longer is an Eligible Employee, (b) is no longer employed by the Company or a Participating Affiliate, or (c) elects to discontinue contributions as provided in Sections 7.02.a and b.

 

  ii. Termination of Right to Purchase . When a Participant’s right to contribute to the Plan ends because he or she (a) no longer is an Eligible Employee, or (b) is no longer employed by the Company or a Participating Affiliate, the Participant’s right to purchase Common Stock for the current Purchase Period ends at the same time.

Section 7.02 .

a. Election to Discontinue Contributions For Remainder of Current Purchase Period .

 

  i.

Each Participant has the right to elect to discontinue contributions to the Plan up to and until the last day of the fifth month of the current Purchase Period. Such election must be made in accordance with the Company’s administrative procedures and shall be effective

 

3


 

with the first payroll period that is administratively feasible following the receipt of the Participant’s election, and shall be irrevocable for the remainder of the current Purchase Period.

 

  ii. The Participant’s contributions, made during the current Purchase Period, will be used to purchase Common Stock on the Purchase Date for the current Purchase Period, unless the Participant elects a refund pursuant to Section 7.02.c.

b. Election to Increase, Decrease or Discontinue Contributions in Future Purchase Period . Each Participant has the right to elect to increase, decrease or discontinue contributions to the Plan effective as of the next succeeding Purchase Period. Such election must be made in accordance with the Company’s administrative procedures, shall be effective with the first payroll period in the subsequent Purchase Period. Except as provided in Section 7.02.a.i, such election shall be irrevocable for the duration of the subsequent Purchase Period.

c. Election of Refund of Uninvested Contributions . Each Participant has the right to elect to have the funds that exist in his or her Stock Purchase Account up to and until the last day of the fifth month of the Purchase Period refunded to him or her instead of being used to purchase Common Stock; notwithstanding, the Committee shall have the administrative discretion to alter this date in accordance with Section 11.01. Such election shall be made in accordance with the Company’s administrative procedures. Such refund will be made as provided in Section 7.03.

d. Election to Resume Contributions . A Participant who elects in accordance with Section 7.02.a.i to discontinue contributions to the Plan for the remainder of a current Purchase Period may elect to resume contributions to the Plan only for a subsequent Purchase Period, and such election must be made in accordance with the Company’s administrative procedures.

Section 7.03 Timing of Refund of Uninvested Contributions . When a Participant’s right to purchase Common Stock ends as provided in Section 7.01.b, or when a Participant elects a refund of uninvested contributions pursuant to Section 7.02.c, the Company shall refund in cash to the Participant all uninvested contributions that remain in the Participant’s Stock Purchase Account. Such refund will be made as soon as is administratively feasible and in accordance with the Company’s administrative procedures.

ARTICLE VIII

TRANSFERABILITY

Section 8.01 . A Participant’s rights hereunder are exercisable during his or her lifetime only by him or her and may not be assigned, transferred, pledged or hypothecated (whether by operation of law or otherwise) in any manner, other than by will or the laws of descent and distribution and shall not be subject to execution, attachment or similar process. Any attempted assignment, transfer, pledge, hypothecation or other disposition or levy of attachment or similar process upon the right to purchase shall be null and void and without effect.

Section 8.02 . The funds accumulated in a Stock Purchase Account may not be assigned, transferred, pledged or hypothecated in any way, and any attempted assignment transfer, pledge, hypothecation or other disposition of the funds accumulated in the Stock Purchase Account shall be null and void and without effect.

ARTICLE IX

ACCOUNT STATEMENTS; CERTIFICATES

Section 9.01 . As soon as practicable after each Purchase Period the Company will cause to be delivered to the Participant an account statement describing the Common Stock purchased with respect to such Purchase Period. Upon request from the Participant, as soon as practicable after each Purchase Period the Company shall cause to be delivered to the Participant a Certificate representing the Common Stock purchased.

Section 9.02 . The Company shall not be required to issue any Common Stock purchased hereunder prior to registration under the Securities Act of 1933, as amended, or registration, or qualification under any state law if such registration is required.

Section 9.03 . A Participant shall have no interest in, and will not be entitled to any of the rights or privileges of a shareholder of the Company with respect to the Common Stock purchased by him or her pursuant to the Plan, including the right to receive any dividends which may be declared by the Company, until such time as he or she has actually paid the purchase price for the shares and the Company has so credited the Participant’s Stock Purchase Account. Cash dividends received in respect of Common Stock held in a Participant’s Stock Purchase Account shall be credited to the Participant’s Stock Purchase Account, net of applicable United States withholding taxes on such dividends, which shall be withheld by the Company and paid to the appropriate United States tax authorities. Such cash dividends shall be reinvested in shares of Common Stock as promptly as practicable following crediting thereof. The Company or the Participating Affiliate employing the Participant shall notify each Participant annually as part of its periodic reporting obligations of the amount of such US tax withholding applicable to each Participant’s Stock Purchase Account in order to enable the Participant to apply for any applicable tax credit in the Participant’s country of residence.

 

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Section 9.04 . The Common Stock issued under the Plan shall be registered in the ‘name of the Participant purchasing such shares.

ARTICLE X

AMENDMENT; TERMINATION OF PLAN

Section 10.01 . The Board of Directors of the Company may at any time terminate or amend the Plan except that no amendment shall be made without prior approval of the shareholders which would (i) authorize an increase in the number of shares which may be purchased under the Plan, except as provided in Section 12.01; (ii) permit the issuance of Common Stock before payment therefore in full; (iii) increase the rate of payroll deductions above ten percent (10%) of Compensation; (iv) reduce the price per share at which Common Stock may be purchased; (v) withdraw administration of the Plan from the Committee; or (vi) change the definition of subsidiaries eligible to participate in the Plan.

Section 10.02 . The Plan may be terminated (i) on the day when no further shares of Common Stock remain under the Plan; or (ii) at any time in the discretion of the Board of Directors after 30 days’ notice has been given to Eligible Employees. Upon termination of the Plan, the applicable Purchase Period shall be deemed closed, and shares of Common Stock will be issued to Participants in accordance with Section 5.01.

ARTICLE XI

ADMINISTRATION

Section 11.01 . The Plan shall be administered by the Committee which is authorized to interpret and construe any provision of the Plan, to establish deadlines and procedures by which the various administrative processes must be completed in order to be effective and to adopt such other rules and regulations for administering the Plan as it may deem appropriate. The Committee shall, to the extent necessary or desirable, establish any special rules for Eligible Employees, former employees, or Participants located in any particular country other than the United States. In administering the Plan, it may be necessary, from time to time, to change or waive requirements of the Plan to conform with the law, to meet special circumstances not anticipated or covered in the Plan, or to carry on successful operations of the Plan. Therefore, the Company reserves the right, exercisable by the Committee, to make variations in the provisions of the Plan for such purposes. The Committee will determine any questions arising in the administration, interpretations and application of the Plan, and all determinations will be conclusive and binding on all parties.

ARTICLE XII

STOCK DIVIDEND OR RECLASSIFICATION; MERGER OR CONSOLIDATION

Section 12.01 . If a record date for a stock dividend, stock-split or for a reclassification by way of split-up or reduction in the number of shares of Common Stock shall occur during a Purchase Period, appropriate adjustments in the number of shares of Common Stock and purchase prices shall be made to give effect thereto on an equitable basis. Similarly, on the payment of any stock dividend, stock-split or reclassification by way of split-up or reduction in the number of shares, the total number of shares authorized by Section 14.01 to be sold under the Plan shall be adjusted accordingly.

Section 12.02 . If the Company is merged into or consolidated with one or more corporations during a Purchase Period, appropriate adjustments shall be made to give effect thereto on an equitable basis in terms of issuance of shares of the corporation surviving the merger or of the consolidated corporation, as the case may be.

ARTICLE XIII

CHANGE IN CONTROL

Section 13.01 . A “Change in Control” shall mean the sale of all or substantially all of the Company’s assets or any merger, reorganization, or exchange or tender offer which, in each case, will result in a change in the power to elect 50% or more of the members of the Board of Directors of the Company.

Section 13.02 .

a. Rights and Obligations Under the Plan . In the event of a Change in Control, the surviving, continuing, successor, or purchasing corporation or parent corporation thereof, as the case may be (the “Acquiring Corporation”), may assume the Company’s rights and obligations under the Plan. If the Acquiring Corporation elects not to assume the Company’s rights and obligations under the Plan and with respect to Participants’ rights to purchase stock, the Purchase Date of the then current Purchase Period shall be accelerated to a date before the date of the Change in Control specified by the Board of Directors, but the number of shares of Common Stock that may be purchased with the outstanding funds accumulated in the Stock Purchase Account shall not be adjusted.

b. Non-423 Plan . Notwithstanding Section 13.02.a, the Purchase Date with respect to Participants’ rights to purchase Common Stock granted pursuant to a Non-423 Plan to a Participant who would otherwise be subject to Code Section 409A shall be accelerated as contemplated by the foregoing sentence only to the extent the event constituting the Change in Control qualifies as a “change in ownership” or “change in effective control” of the Company or a “change in ownership of a

 

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substantial portion of the assets” of the Company, as these concepts are defined in U.S. Treas. Reg. § 1.409A-3(i)(5) or successor provisions.

c. Termination of Purchase Rights. All Participants’ rights to purchase Common Stock which are neither assumed by the Acquiring Corporation in connection with the Change in Control nor exercised as of the date of the Change in Control shall terminate and cease to be outstanding effective as of the date of the Change in Control.

ARTICLE XIV

SHARES TO BE SOLD

Section 14.01 . The Common Stock to be issued and sold under the Plan may be authorized but unissued shares, or the Company may go into the market and purchase shares for sale under the Plan. Except as provided in Section 12.01, the aggregate number of shares of authorized but unissued Common Stock to be sold under the Plan on or after the Adoption Date shall not exceed 15,000,000. If on a given Purchase Date the number of shares to be purchased exceeds the number of shares then available under the Plan or the Maximum Offering, if any, that may be issued on any given Purchase Date, the Company shall make a pro rata allocation of the shares remaining available for purchase in as uniform a manner as shall be practicable and as it shall determine to be equitable. The pro rata allocation shall be limited, in the case of exceeding the Maximum Offering, to those Participants in the countries, locations or Participating Affiliates in the specified Maximum Offering.

ARTICLE XV

NOTICES; CONSTRUCTION

Section 15.01 . Notices under the Plan shall be addressed as follows:

UnitedHealth Group Incorporated

Attention: Corporate Benefits - ESPP

UnitedHealth Group Center

9900 Bren Road East

Minnetonka, Minnesota 55343

Section 15.02 . The Company intends that the Code Section 423 Plan qualify as an “employee stock purchase plan” under Section 423 of the Code and, therefore, the Plan shall be construed in a manner consistent therewith. All Participants in the Code Section 423 Plan shall have the same rights and privileges under the terms of the Code Section 423 Plan.

ARTICLE XVI

GOVERNMENTAL REGULATIONS AND LISTING

Section 16.01 . All rights granted to Participants under this Plan are expressly subject to all applicable laws, regulations and the approval of all governmental authorities required for the authorization, issuance, sale or transfer of the shares of Common Stock reserved for the Plan. This includes, without limitation, a current registration statement of the Company under the Securities Act of 1933, as amended, covering the shares of Common Stock that may be purchased under the Plan. If a registration statement is not effective on the last day of a Purchase Period, the Purchase Period shall be extended until the first business day after the effective date of a registration statement, or post-effective amendment; provided, however, that a Purchase Period for a Participant in a Non-423 Plan who would otherwise be subject to Section 409A of the Code shall be extended only to the extent that such extension would not cause a violation under Section 409A of the Code.

ARTICLE XVII

MISCELLANEOUS

Section 17.01 . This Plan will not be deemed to constitute a contract of employment between the Company or a Participating Affiliate and any Eligible Employee, nor will it interfere with the right of the Company to terminate any Eligible Employee and treat him or her without regard to the effect that termination might have upon him or her under the Plan. Nothing in this Plan shall confer on any Participant any express or implied (i) right to continued employment by the Company or any Affiliate, whether for the duration of the Plan or otherwise, (ii) legal or equitable right against the Company or any Affiliate, directly or indirectly or (iii) cause of action at law or equity against the Company or any Affiliate. Neither the Common Stock acquired under this Plan nor any other benefits conferred hereby, including the acquisition of Common Stock at a discount, will form any part of the wages or salary of any Eligible Employee for purposes of severance pay or termination indemnities, irrespective of the reason for termination of employment. Under no circumstances shall any person ceasing to be an employee of the Company or any Affiliate be entitled to any compensation for any loss of any right or benefit under this Plan which such employee might otherwise have enjoyed but for termination of employment, whether such compensation is claimed by way of damages for wrongful or unfair dismissal, breach of contract or otherwise.

 

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Section 17.02 . By participating in the Plan, each Participant shall be deemed to have accepted all the conditions of the Plan and the terms and conditions of any rules and regulations adopted by the Committee and shall be fully bound thereby.

Section 17.03 . The Code Section 423 Plan is exempt from the application of Section 409A of the Code. The Non-423 Plan is intended to comply and shall be administered in a manner that is intended to comply with Section 409A of the Code and shall be construed and interpreted in accordance with such intent. To the extent an option or rights under the Non-423 Plan or the vesting, payment, settlement or deferral thereof is subject to Section 409A of the Code, the option or right shall be granted, paid, exercised, settled or deferred in a manner that will comply with Section 409A of the Code, including the final regulations and other guidance issued with respect thereto, except as otherwise determined by the Committee. Any provision of the Non-423 Plan that would cause the grant of an option or right or the payment, settlement or deferral thereof to fail to satisfy Section 409A of the Code shall be amended to comply with Section 409A of the Code on a timely basis, which amendment may be made on a retroactive basis, in accordance with the final regulations and guidance issued under Section 409A of the Code. Notwithstanding the foregoing, the Company shall have no liability to a Participant or any other party if an option or right granted under the Plan that is intended to be exempt from, or compliant with Section 409A of the Code is not so exempt or compliant or for any action taken by the Committee with respect thereto.

 

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