As filed with the Securities and Exchange Commission on August 18, 1999
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
PROVANTAGE HEALTH SERVICES, INC.
(Exact Name of Registrant as Specified in Charter)
Delaware 54-1508848
(State of Incorporation) (I.R.S. Employer Identification No.)
13555 Bishops Court, Suite 201
Brookfield, Wisconsin 53005
(Address of Principal Executive Offices) (Zip Code)
____________________________________
PROVANTAGE HEALTH SERVICES, INC.
1999 STOCK INCENTIVE PLAN
____________________________________
Jeffrey A. Jones
ProVantage Health Services, Inc.
13555 Bishops Court, Suite 201
Brookfield, Wisconsin 53005
(414) 784-4600
(Name, address and telephone number, including area code, of agent for service)
With copies to:
<TABLE>
Randall J. Erickson Patricia Nussle Richard D. Schepp
<S> <C> <C>
Godfrey & Kahn, S.C. ProVantage Health Services, Inc. ShopKo Stores, Inc.
780 North Water Street 13555 Bishops Court, Suite 201 700 Pilgrim Way
Milwaukee, Wisconsin 53202 Brookfield, Wisconsin 53005 Green Bay, Wisconsin 54304
(414) 273-3500 (414) 784-4600 (920) 497-2211
</TABLE>
CALCULATION OF REGISTRATION FEE
Title Amount Proposed Proposed Amount of
of securities to be maximum offering maximum aggregate Registration
to be registered registered price per share offering price fee
Common Stock,
$0.01 par value 1,750,000 $12.22(1) $21,385,000.00 $5,945.03(1)
(1) The registration fee is calculated pursuant to
Rule 457(c) under the Securities Act of 1933, as
amended. The registration fee is based on the
average of the high and low price of a share of
ProVantage Health Services, Inc. common stock on
August 16, 1999 on the New York Stock Exchange, as
reported in the Midwest Edition of The Wall Street
Journal on August 17, 1999.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents are incorporated by
reference in this Registration Statement:
(a) The Registrant's Prospectus dated July 14, 1999
filed pursuant to Rule 424(b)(4) under the Securities
Act of 1933, as amended (the "Securities Act"); and
(b) The description of the Registrant's
common stock contained in the Registrant's
Registration Statement on Form 8-A filed pursuant
to Section 12 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), including
any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act prior to the filing of a post-effective
amendment which indicates that all shares offered have
been sold or which deregisters all securities then
remaining unsold, shall be deemed incorporated by
reference in this Registration Statement and to be part
hereof from the date of filing of such documents.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation
Law (the "DGCL") permits a Delaware corporation to
indemnify any person who was or is a party or is
threatened to be made a party to any threatened,
pending, or completed action, suit or proceeding,
whether civil, criminal, administrative or
investigative (other than an action by or in the right
of the corporation) by reason of the fact that such
person is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably
incurred by such person in connection with such action,
suit or proceeding if such person acted in good faith
and in a manner such person reasonably believed to be
in or not opposed to the best interests of the
corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe such
person's conduct was unlawful.
In the case of an action by or in the right of the
corporation, Section 145 permits the corporation to
indemnify any person who was or is a party or is
threatened to be made a party to any threatened,
pending or completed action or suit by or in the right
of the corporation to procure a judgment in its favor
by reason of the fact that such person is or was a
director, officer, employee or agent of the
corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture,
trust or other enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by
such person in connection with the defense or
settlement of such action or suit if such person acted
in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interest
of the corporation. No indemnification may be made in
respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the
corporation unless and only to the extent that the
Delaware Court of Chancery or the court in which such
action or suit was brought shall determine upon
application that, despite the adjudication of liability
but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity
for such expenses which the Delaware Court of Chancery
or such other court shall deem proper.
To the extent that a present or former director or
officer of a corporation has been successful on the
merits or otherwise in defense of any action, suit or
proceeding referred to in the preceding two paragraphs,
Section 145 requires that such person be indemnified
against expenses (including attorneys' fees) actually
and reasonably incurred by such person in connection
therewith.
Section 145 provides that expenses (including
attorneys' fees) incurred by an officer or director in
defending any civil, criminal, administrative, or
investigative action, suit or proceeding may be paid by
the corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an
undertaking by
<PAGE>
or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the
corporation as authorized in Section 145.
The Registrant's Restated Certificate of
Incorporation provides that an officer or director of
the Registrant will not be personally liable to the
Registrant or its stockholders for monetary damages for
any breach of his fiduciary duty as an officer or
director, except in certain cases where liability is
mandated by the DGCL. The provision has no effect on
any non-monetary remedies that may be available to the
Registrant or its stockholders, nor does it relieve the
Registrant or its officers or directors from compliance
with federal or state securities laws.
The Registrant's Amended and Restated Bylaws
generally provide that the Registrant shall indemnify,
to the fullest extent permitted by the DGCL, each
person who was or is made a party to or is threatened
to be made a party to or is involved in any threatened,
pending or completed action, suit or proceeding (each,
a "Proceeding") by reason of the fact that such person
is or was a director, officer or employee of the
Registrant, or is or was serving at the request of the
Registrant as a director, officer or employee of
another entity, against all expenses, liabilities and
losses reasonably incurred or suffered by such person
in connection with such Proceeding.
An officer or director shall not be entitled to
indemnification by the Registrant if (i) the officer or
director did not act in good faith and in a manner
reasonably believed to be in, or not opposed to, the
best interests of the Registrant, or (ii) with respect
to any criminal action or proceeding, the officer or
director had reasonable cause to
believe his conduct was unlawful.
The Registrant has entered into agreements to
indemnify its directors and certain officers, in
addition to the indemnification provided for in the
Amended and Restated Bylaws. These agreements will,
among other things, indemnify the Registrant's
directors and certain of its officers to the full
extent permitted by Delaware law for any claims,
liabilities, damages, judgments, penalties, fines,
settlements, disbursements or expenses (including
attorneys' fees) incurred by such person in any action
or proceeding, including any action by or in the right
of the Registrant, on account of services as a director
or officer of the Registrant.
In addition, the Registrant has directors' and
officers' liability insurance that insures against
certain liabilities, including liabilities under the
Securities Act, subject to applicable restrictions.
Item 8. Exhibits
4 ProVantage Health Services, Inc. 1999 Stock Incentive Plan
5 Opinion of Godfrey & Kahn, S.C.
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Godfrey & Kahn, S.C. (included in Exhibit 5)
24 Powers of Attorney
Item 9. Undertakings *
The Registrant hereby undertakes:
(a) (1) To file, during any period in which
offers or sales are being made, a post-effective
amendment to this Registration Statement to
include any material information with respect to
the plan of distribution not previously disclosed
in the Registration Statement or any material
change to such information in the Registration
Statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-
effective amendment shall be deemed to be a new
registration statement relating to the securities
offered
<PAGE>
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) That, for purposes of determining any
liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act 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.
(h) Insofar as indemnification for liabilities
arising under the Securities Act may be permitted
to directors, officers and controlling persons of
the Registrant pursuant to the provisions
described in Item 6 of this Registration Statement
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 Securities 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
Securities Act and will be governed by the final
adjudication of such issue.
* Paragraphs correspond to Item 512 of Regulation S-K.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act
of 1933, as amended, 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 Milwaukee, State of Wisconsin, on August 16, 1999.
PROVANTAGE HEALTH SERVICES, INC.
By: /s/ Jeffrey A. Jones*
--------------------------
Jeffrey A. Jones,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act
of 1933, as amended, this Registration Statement has
been signed by the following persons in the capacities
and on the dates indicated.
Signature Title Date
/s/ Dale P. Kramer* Chairman of the Board August 16, 1999
- --------------------
Dale P. Kramer
/s/ Jeffrey A. Jones* President and Chief Executive August 16, 1999
- ----------------------- Officer and a Director
Jeffrey A. Jones (Principal Executive Officer
and Principal Financial Officer)
/s/ Peter J. Beste* Vice President and Controller August 16, 1999
- ----------------------- (Prinicipal Accounting Officer)
Peter J. Beste
/s/ Jeffrey C. Girard* Director August 16, 1999
- -----------------------
Jeffrey C. Girard
/s/ William J. Podany* Director August 16, 1999
- -----------------------
William J. Podany
Director August ___, 1999
- -----------------------
Gregory H. Wolf
By: /s/ Patricia Nussle August 16, 1999
- ------------------------
Patricia Nussle
Attorney-In-Fact*
* Pursuant to authority granted by powers of attorney,
copies of which are filed herewith.
<PAGE>
EXHIBIT INDEX
Exhibits
4 ProVantage Health Services, Inc. 1999 Stock Incentive Plan
5 Opinion of Godfrey & Kahn, S.C.
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Godfrey & Kahn, S.C. (included in Exhibit 5)
24 Powers of Attorney
Exhibit 4
PROVANTAGE HEALTH SERVICES, INC.
1999 STOCK INCENTIVE PLAN
SECTION 1
GENERAL
1.1. Purpose. The ProVantage Health Services,
Inc. 1999 Stock Incentive Plan (the "Plan") has been
established by ProVantage Health Services, Inc. (the
"Company") (i) to attract and retain high quality
individuals eligible to participate in the Plan; (ii)
to motivate Participants, by means of appropriate
incentives, to achieve long-range goals; (iii) to
provide incentive compensation opportunities that are
competitive with those of other similar companies; and
(iv) to further align Participants' interests with
those of the Company's shareholders through
compensation that is based on the Company's common
stock; and thereby promote the long-term financial
interests of the Company and the Related Companies,
including the growth in value of the Company's equity
and enhancement of long-term shareholder return.
1.2. Participation. Subject to the terms and
conditions of the Plan, the Committee shall determine
and designate, from time to time, from among the
Eligible Employees and the Eligible Directors, those
persons who will be granted one or more Awards under
the Plan, and thereby become "Participants" in the
Plan. In the discretion of the Committee, a Participant
may be granted any Award permitted under the provisions
of the Plan, and more than one Award may be granted to
a Participant. Awards may be granted as alternatives to
or replacement of awards outstanding under the Plan, or
any other plan or arrangement of the Company or a
Related Company (including a plan or arrangement of a
business or entity, all or a portion of which is
acquired by the Company or a Related Company).
1.3. Operation and Administration. The operation
and administration of the Plan, including the Awards
made under the Plan, shall be subject to the provisions
of Section 4 (relating to operation and
administration). Subject to subsection 5.5 (relating to
the Board's authority), the authority to control and
manage the operation and administration of the Plan
shall be vested in a committee of the Board (the
"Committee") in accordance with Section 5.
1.4. Definitions. Capitalized terms used herein
which are not defined where such terms first appear
shall be defined as set forth in Section 7.
SECTION 2
OPTIONS
2.1. Options. The grant of an "Option" entitles
the Participant to purchase shares of Stock at an
Exercise Price established by the Committee. Options
granted under this Section 2 may be either Incentive
Stock Options or Non- Qualified Stock Options, as
determined in the discretion of the Committee. An
"Incentive Stock Option" is an Option that is intended
to satisfy the requirements applicable to an "incentive
stock option" described in section 422(b) of the
<PAGE>
Code. A "Non-Qualified Option" is an Option that is not
intended to be an "incentive stock option" as that term
is described in section 422(b) of the Code.
2.2. Exercise Price. The "Exercise Price" of
each Option granted under this Section 2 shall be
established by the Committee; except that the Exercise
Price shall not be less than 100% of the Fair Market
Value of a share of Stock as of the Pricing Date. For
purposes of the preceding sentence, the "Pricing Date"
shall be the date on which the Option is granted.
2.3. Exercise. An Option shall be exercisable in
accordance with such terms and conditions and during
such periods as may be established by the Committee.
2.4. Payment of Option Exercise Price. The
payment of the Exercise Price of an Option granted
under this Section 2 shall be subject to the following:
(a) Subject to the following provisions of this
subsection 2.4, the full Exercise Price for shares of
Stock purchased upon the exercise of any Option shall
be paid at the time of such exercise (except that, in
the case of an exercise arrangement approved by the
Committee and described in subsection 2.4(c), payment
may be made as soon as practicable after the exercise).
(b) The Exercise Price shall be payable in cash
or by tendering shares of Stock (by either actual
delivery of shares or by attestation, with such shares
valued at Fair Market Value as of the day of exercise),
or in any combination thereof, as determined by the
Committee.
(c) The Committee may permit a Participant to
elect to pay the Exercise Price upon the exercise of an
Option by authorizing a third party to sell shares of
Stock (or a sufficient portion of the shares) acquired
upon exercise of the Option and remit to the Company a
sufficient portion of the sale proceeds to pay the
entire Exercise Price and any tax withholding resulting
from such exercise.
2.5. Expiration Date. The "Expiration Date" with
respect to an Option means the date established as the
Expiration Date by the Committee at the time of the
grant; provided, however, that the Expiration Date with
respect to any Option shall not be later than the
earliest to occur of:
(a) the tenth anniversary of the date on which
the Option is granted;
(b) if the Participant is an Eligible Employee
and the Participant's Date of Termination occurs by
reason of death or Disability, the first anniversary of
such Date of Termination;
(c) if the Participant is an Eligible Employee
and the Participant's Date of Termination occurs by
reason of Retirement, the second anniversary of such
Date of Termination;
(d) if the Participant is an Eligible Employee
and the Participant's Date of Termination occurs for
reasons other than Retirement, death or Disability, the
90-day anniversary of such Date of Termination; or
(e) if the Participant is an Eligible Director,
the third anniversary of the Participant's Date of
Termination.
<PAGE>
Notwithstanding the foregoing provisions of this
subsection 2.5, if the Participant dies while the
Option is otherwise exercisable, the Expiration Date
may be later than the dates set forth above, provided
that it is not later than the first anniversary of the
date of death.
2.6. Settlement of Award. The distribution
following exercise of an Option of shares of Stock,
shall be subject to such conditions, restrictions and
contingencies as the Committee may establish. The
Committee, in its discretion, may impose such
conditions, restrictions and contingencies with respect
to shares of Stock acquired pursuant to the exercise of
an Option as the Committee determines to be desirable.
SECTION 3
OTHER STOCK AWARDS
3.1. Definition. A Stock Award is a grant of
shares of Stock or of a right to receive shares of
Stock (or their cash equivalent or a combination of
both) in the future.
3.2. Restrictions on Stock Awards. Each Stock
Award shall be subject to such conditions, restrictions
and contingencies as the Committee shall determine.
These may include continuous service and/or the
achievement of performance measures. The Committee may
designate a single goal criterion or multiple goal
criteria for performance measurement purposes, with the
measurement based on absolute Company or business unit
performance and/or on performance as compared with that
of other publicly-traded companies. The performance
measures for such awards may include: stock price,
total shareholder return, earnings, earnings per share,
return on equity, and return on assets. The Committee
may define the performance measures, including, without
limitation, defining such performance measures to
exclude non-recurring or extraordinary terms or
events.
SECTION 4
OPERATION AND ADMINISTRATION
4.1. Effective Date. The Plan shall be effective
as of the date it is approved by the Company's
shareholders (the "Effective Date"). The Plan shall be
unlimited in duration and, in the event of Plan
termination, shall remain in effect as long as any
Awards under it are outstanding; provided, however,
that, to the extent required by the Code, no Incentive
Stock Options may be granted under the Plan on a date
that is more than ten years from the date the Plan is
adopted or, if earlier, the date the Plan is approved
by shareholders.
4.2. Shares Subject to Plan.
(a) (i) Subject to the following provisions of
this subsection 4.2, the maximum number shares of
Stock that may be delivered to Participants and
their beneficiaries under the Plan shall be
1,750,000 shares of Stock.
(ii) Any shares of Stock granted under the
Plan that are forfeited because of the failure to
meet an Award contingency or condition shall again
be available for delivery pursuant to new Awards
granted under the Plan. To the extent any shares
of Stock covered by an Award are not delivered to
a Participant or beneficiary because the Award
<PAGE>
is forfeited or canceled, such shares shall not be
deemed to have been delivered for purposes of
determining the maximum number of shares of Stock
available for delivery under the Plan.
(b) Subject to subsection 4.2(c), the following
additional maximums are imposed under the Plan.
(i) The maximum number of shares of Stock
that may be issued by Options intended to be
Incentive Stock Options shall be 500,000 shares.
(ii) The maximum number of shares that may
be covered by Awards granted to any one individual
pursuant to Section 2 (relating to Options) shall
be 500,000 shares in any one calendar year.
(iii) The maximum payment that can be made
for awards granted to any one individual pursuant
to Section 3 (relating to Stock Awards) shall be
$5,000,000. If an Award granted under Section 3
is, at the time of grant, denominated in shares,
the value of the shares of Stock for determining
this maximum individual payment amount will be the
Fair Market Value of a share of Stock on the date
of grant multiplied by the number of shares
granted.
(c) In the event of a corporate transaction
involving the Company including, without limitation,
any stock dividend, stock split, extraordinary cash
dividend, recapitalization, reorganization, merger,
consolidation, split-up, spin-off, combination or
exchange of shares), the Committee may adjust Awards to
preserve the benefits or potential benefits of the
Awards. Action by the Committee may include adjustment
of: (i) the number and kind of shares which may be
delivered under the Plan; (ii) the number and kind of
shares subject to outstanding Awards; and (iii) the
Exercise Price of outstanding Options; as well as any
other adjustments that the Committee determines to be
equitable.
4.3. Acceleration on Change of Control. Subject
to the provisions of subsection 4.2(c) (relating to the
adjustment of shares), and except as otherwise provided
in the Plan or the Agreement reflecting the applicable
Award, upon the occurrence of a Change of Control:
(a) All outstanding Options shall become fully exercisable.
(b) All Stock Awards shall become fully vested.
4.4. Limit on Distribution. Distribution of
shares of Stock or other amounts under the Plan shall
be subject to the following:
(a) Notwithstanding any other provision of the
Plan, the Company shall have no liability to deliver
any shares of Stock under the Plan or make any other
distribution of benefits under the Plan unless such
delivery or distribution would comply with all
applicable laws (including, without limitation, the
requirements of the Securities Act of 1933), and the
applicable requirements of any securities exchange or
similar entity.
<PAGE>
(b) To the extent that the Plan provides for
issuance of stock certificates to reflect the issuance
of shares of Stock, the issuance may be effected on a
noncertificated basis, to the extent not prohibited by
applicable law or the applicable rules of any stock
exchange.
4.5. Tax Withholding. Whenever the Company
proposes or is required to distribute Stock under the
Plan, the Company may require the recipient to remit to
the Company an amount sufficient to satisfy any
Federal, state and local tax withholding requirements
prior to the delivery of any certificate for such
shares or, in the discretion of the Committee, the
Company may withhold from the shares to be delivered
shares sufficient to satisfy all or a portion of such
tax withholding requirements. Whenever under the Plan
payments are to be made in cash, such payments may be
net of an amount sufficient to satisfy any Federal,
state and local tax withholding requirements.
4.6. Payment Shares. Subject to the overall
limitation on the number of shares of Stock that may be
delivered under the Plan, the Committee may use
available shares of Stock as the form of payment for
compensation, grants or rights earned or due under any
other compensation plans or arrangements of the Company
or a Related Company, including the plans and
arrangements of the Company or a Related Company
acquiring another entity (or an interest in another
entity).
4.7. Dividends and Dividend Equivalents. An
Award may provide the Participant with the right to
receive dividends or dividend equivalent payments with
respect to Stock which may be either paid currently or
credited to an account for the Participant, and may be
settled in cash or Stock as determined by the
Committee. Any such settlements, and any such crediting
of dividends or dividend equivalents or reinvestment in
shares of Stock, may be subject to such conditions,
restrictions and contingencies as the Committee shall
establish, including the reinvestment of such credited
amounts in Stock equivalents.
4.8. Transferability. Except as otherwise
provided by the Committee or in the Agreement
reflecting the applicable Award, Awards under the Plan
are not transferable except as designated by the
Participant by will or by the laws of descent and
distribution.
4.9. Form and Time of Elections. Unless
otherwise specified herein, each election required or
permitted to be made by any Participant or other person
entitled to benefits under the Plan, and any permitted
modification, or revocation thereof, shall be in
writing filed with the Committee at such times, in such
form, and subject to such restrictions and limitations,
not inconsistent with the terms of the Plan, as the
Committee shall require.
4.10. Agreement With Company. At the time of an
Award to a Participant under the Plan, the Committee
may require a Participant to enter into an agreement
with the Company (the "Agreement") in a form specified
by the Committee, agreeing to the terms and conditions
of the Plan and to such additional terms and
conditions, not inconsistent with the Plan, as the
Committee may, in its sole discretion, determine.
4.11. Limitation of Implied Rights.
(a) Neither a Participant nor any other person
shall, by reason of the Plan, acquire any right in or
title to any assets, funds or property of the Company
or any Related Company
<PAGE>
whatsoever, including, without
limitation, any specific funds, assets, or other
property which the Company or any Related Company, in
their sole discretion, may set aside in anticipation of
a liability under the Plan. A Participant shall have
only a contractual right to the stock or amounts, if
any, payable under the Plan, unsecured by any assets of
the Company or any Related Company. Nothing contained
in the Plan shall constitute a guarantee that the
assets of such companies shall be sufficient to pay any
benefits to any person.
(b) The Plan does not constitute a contract of
employment, and selection as a Participant will not
give any employee the right to be retained in the
employ of the Company or any Related Company, nor any
right or claim to any benefit under the Plan, unless
such right or claim has specifically accrued under the
terms of the Plan. Selection as a Participant will not
give any director the right to be retained or nominated
as a director of the Company or any Related Company.
Except as otherwise provided in the Plan, no Award
under the Plan shall confer upon the holder thereof any
right as a shareholder of the Company prior to the date
on which the individual fulfills all conditions for
receipt of such rights.
4.12. Evidence. Evidence required of anyone
under the Plan may be by certificate, affidavit,
document or other information which the person acting
on it considers pertinent and reliable, and signed,
made or presented by the proper party or parties.
4.13. Action by Company or Related Company. Any action
required or permitted to be taken by the Company or any
Related Company shall be by resolution of its board of
directors, or by action of one or more members of the
board (including a committee of the board) who are duly
authorized to act for the board, or (except to the
extent prohibited by applicable law or applicable rules
of any stock exchange) by a duly authorized officer of
the Company.
4.14. Gender and Number. Where the
context admits, words in any gender shall include any
other gender, words in the singular shall include the
plural and the plural shall include the singular.
SECTION 5
COMMITTEE
5.1. Selection of Committee. The Committee shall
be selected by the Board, and shall consist of two or
more members of the Board.
5.2. Powers of Committee. The authority to
manage and control the operation and administration of
the Plan shall be vested in the Committee, subject to
subsection 5.5 hereof and to the following:
(a) Subject to the provisions of the Plan, the
Committee will have the authority and discretion to
select from among the Eligible Employees and the
Eligible Directors those persons who shall receive
Awards, to determine the time or times of receipt, to
determine the types of Awards and the number of shares
covered by the Awards, to establish the terms,
conditions, performance criteria, restrictions, and
other provisions of such Awards, and (subject to the
restrictions imposed by Section 6) to cancel or suspend
Awards. In making such Award determinations, the
Committee may take into account the nature of services
rendered by the
<PAGE>
individual, the individual's present
and potential contribution to the Company's success and
such other factors as the Committee deems relevant.
(b) Subject to the provisions of the Plan, the
Committee will have the authority and discretion to
determine the extent to which Awards under the Plan
will be structured to conform to the requirements
applicable to performance-based compensation as
described in Code section 162(m), and to take such
action, establish such procedures, and impose such
restrictions at the time such Awards are granted as the
Committee determines to be necessary or appropriate to
conform to such requirements.
(c) The Committee will have the authority and
discretion to establish terms and conditions of Awards
as the Committee determines to be necessary or
appropriate to conform to applicable requirements or
practices of jurisdictions outside of the United
States.
(d) The Committee will have the authority and
discretion to interpret the Plan, to establish, amend,
and rescind any rules and regulations relating to the
Plan, to determine the terms and provisions of any
agreements made pursuant to the Plan, and to make all
other determinations that may be necessary or advisable
for the administration of the Plan.
(e) Any interpretation of the Plan by the
Committee and any decision made by it under the Plan is
final and binding.
(f) In controlling and managing the operation and
administration of the Plan, the Committee shall act by
a majority of its then members, by meeting or by
writing filed without a meeting. The Committee shall
maintain and keep adequate records concerning the Plan
and concerning its proceedings and acts in such form
and detail as the Committee may decide.
5.3. Delegation by Committee. Except to the
extent prohibited by applicable law or the applicable
rules of a stock exchange, the Committee may allocate
all or any portion of its responsibilities and powers
to any one or more of its members and may delegate all
or any part of its responsibilities and powers to any
person or persons selected by it. Any such allocation
or delegation may be revoked by the Committee at any
time.
5.4. Information to be Furnished to Committee.
The Company and Related Companies shall furnish the
Committee with such data and information as may be
required for it to discharge its duties. The records
of the Company and Related Companies as to an
employee's or Participant's employment, termination of
employment, leave of absence, reemployment and
compensation shall be conclusive on all persons unless
determined to be incorrect. Participants and other
persons entitled to benefits under the Plan must
furnish the Committee such evidence, data or
information as the Committee considers desirable to
carry out the terms of the Plan.
5.5. Board Administration. The Board shall have
the authority to exercise all of the powers of the
Committee under the Plan (i) prior to the establishment
of the Committee, (ii) at such other times as the Board
determines, and (iii) with respect to any Award to an
Eligible Director. The determination by the Board to
make an Award to an Eligible Director shall not limit
the authority of the Committee to also make Awards to
Eligible Directors.
<PAGE>
SECTION 6
AMENDMENT AND TERMINATION
The Board may, at any time, amend or terminate the
Plan; provided, however, that
(a) subject to subsection 4.2(c) (relating to the
adjustments of shares), no amendment or termination
may, in the absence of written consent to the change by
the affected Participant (or, if the Participant is not
then living, the affected beneficiary), adversely
affect the rights of any Participant or beneficiary
under any Award granted under the Plan prior to the
date such amendment is adopted by the Board; and
(b) without further approval of the shareholders
of the Company, no amendment shall materially increase
the number of shares of Stock which may be delivered
pursuant to Awards hereunder, except for increases
resulting from subsection 4.2(c) (relating to the
adjustment of shares).
SECTION 7
DEFINED TERMS
For purposes of the Plan, the terms listed below
shall be defined as follows:
(a) Award. The term "Award" shall mean any award
or benefit granted to any Participant under the Plan,
including, without limitation, the grant of Options and
Stock Awards.
(b) Board. The term "Board" shall mean the Board
of Directors of the Company.
(c) Change of Control. The term "Change of
Control" shall mean any of the following events:
(1) individuals who, as of the date hereof,
constitute the Board (the "Incumbent Board") cease
for any reason to constitute at least a majority
of the Board; provided, however, that any
individual becoming a director subsequent to the
date hereof whose election, or nomination for
election by the Company's shareholders, was
approved by a vote of at least a majority of the
directors then constituting the Incumbent Board
shall be considered as though such individual were
a member of the Incumbent Board, but excluding,
for this purpose, any such individual whose
initial assumption of office occurs as a result
of: (A) an actual or threatened election contest
with respect to the election or removal of
directors or other actual or threatened
solicitation of proxies or consents by or on
behalf of a person other than the Board, or (B) a
Control Acquisition (as defined below); or
(2) consummation of a reorganization,
merger, statutory share exchange, or consolidation
or sale or other disposition of all or
substantially all of the assets of the Company for
which approval of the shareholders of the Company
is required (a "Business Combination"), in each
case, unless, immediately following such Business
Combination, (A) all or substantially all of the
individuals and entities who were the beneficial
owners, respectively, of the then outstanding
shares of common stock of the
<PAGE>
Company (the "Outstanding Company Common Stock") and
the combined voting power of the then outstanding
voting securities of the Company entitled to vote
generally in the election of directors (the
"Outstanding Company Voting Securities")
immediately prior to such Business Combination
beneficially own, directly or indirectly, more
than 50% of, respectively, the then outstanding
shares of common stock and the combined voting
power of the then outstanding voting securities
entitled to vote generally in the election of
directors, as the case may be, of the corporation
resulting from such Business Combination
(including, without limitation, a corporation
which as a result of such transaction owns the
Company or all or substantially all of the
Company's assets either directly or through one or
more subsidiaries) in substantially the same
proportions as their ownership, immediately prior
to such Business Combination, of the Outstanding
Company Common Stock and Outstanding Company
Voting Securities, as the case may be, (B) no
individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended) (excluding any
employee benefit plan (or related trust) of the
Company or such corporation resulting from such
Business Combination) beneficially owns, directly
or indirectly, 20% or more of, respectively, the
then outstanding Common Stock of the Corporation
resulting from such Business Combination or the
combined voting power of the then outstanding
voting securities of such corporation except to
the extent that such ownership existed prior to
the Business Combination, and (C) at least a
majority of the members of the Board of Directors
of the corporation resulting from such Business
Combination were members of the Incumbent Board at
the time of the execution of the initial
agreement, or of the action of the Board,
providing for such Business Combination; or
(3) approval by the shareholders of the
Company of a complete liquidation or dissolution
of the Company.
(d) Control Acquisition. A "Control Acquisition"
means the acquisition by an individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 50% or more of either (i) the then
outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (ii) the
combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in
the election of directors (the "Outstanding Company
Voting Securities"); provided, however, that the
following acquisitions shall not constitute a Control
Acquisition: (i) any acquisition directly from the
Company (including, without limitation, any acquisition
through an underwritten public offering of the
Company's securities by the Company), (ii) any
acquisition by the Company, (iii) any acquisition by
any employee benefit plan (or related trust) sponsored
or maintained by the Company or any corporation
controlled by the Company, (iv) any acquisition by
ShopKo Stores, Inc., a Wisconsin corporation
("ShopKo"), or any corporation controlled by ShopKo, or
any employee benefit plan (or related trust) sponsored
or maintained by ShopKo or any corporation controlled
by ShopKo, (v) any acquisition pursuant to a public
distribution of the Company's securities as a dividend
to ShopKo's shareholders, or (vi) any acquisition by
any corporation pursuant to a transaction which
complies with clauses (A), (B) and (C) of Section
7(c)(2) above.
<PAGE>
(e) Code. The term "Code" means the Internal
Revenue Code of 1986, as amended. A reference to any
provision of the Code shall include reference to any
successor provision of the Code.
(f) Date of Termination.
(1) With respect to a Participant who is an
Eligible Employee, the Participant's "Date of
Termination" shall be the first day occurring on
or after the Agreement Date on which the
Participant's employment with the Company and all
Related Companies terminates for any reason;
provided that a termination of employment shall
not be deemed to occur by reason of a transfer of
the Participant between the Company and a Related
Company or between two Related Companies; and
further provided that the Participant's employment
shall not be considered terminated while the
Participant is on a leave of absence from the
Company or a Related Company approved by the
Participant's employer. If, as a result of a sale
or other transaction, the Participant's employer
ceases to be a Related Company (and the
Participant's employer is or becomes an entity
that is separate from the Company), the occurrence
of such transaction shall be treated as the
Participant's Date of Termination caused by the
Participant being discharged by the employer.
(2) With respect to a Participant who is an
Eligible Director, the Participant's "Date of
Termination" shall be the first day occurring on
or after the Agreement Date on which the
Participant ceases to be a director of any of the
Company and any Related Companies for any reason.
(g) Disability. Except as otherwise provided by
the Committee, the Participant shall be considered to
have a "Disability" during the period in which the
Participant is unable, by reason of a medically
determinable physical or mental impairment, to engage
in any substantial gainful activity, which condition,
in the opinion of a physician selected by the
Committee, is expected to have a duration of not less
than 120 days.
(h) Eligible Director. The term "Eligible
Director" shall mean any director (or person holding
authority comparable to that of a director for business
entities which do not have directors) of the Company or
a Related Company who is not an employee of the Company
or a Related Company.
(i) Eligible Employee. The term "Eligible
Employee" shall mean any employee of the Company or a
Related Company.
(j) Fair Market Value. For purposes of
determining the "Fair Market Value" of a share of
Stock, the following rules shall apply:
(i) If the Stock is at the time listed or
admitted to trading on any stock exchange or in
the over-the-counter market, then the "Fair Market
Value" shall be the last reported sale price of
the Stock on the date in question on the principal
exchange on which the Stock is then listed or
admitted to trading or in the over-the-counter
market, as the case may be. If no reported sale of
Stock takes place on the date in question, then
the most recent reported sale of the Stock shall
be determinative of "Fair Market Value."
<PAGE>
(ii) If the Stock is not listed or admitted
to trading on any stock exchange or traded in the
over-the-counter market, the "Fair Market Value"
shall be as determined in good faith by the
Committee.
(k) Related Companies. The term "Related Company" means:
(i) any corporation, joint venture, limited
liability company, or other business entity in
which the Company has a significant direct or
indirect equity interest, or
(ii) any corporation, joint venture, limited
liability company, or other business entity which
owns a significant direct or indirect equity
interest in the Company, as determined by the
Committee in its sole discretion.
(l) Retirement. "Retirement" of the Participant
shall mean the occurrence of the Participant's Date of
Termination after age 55 with ten (10) or more years of
service with the Company or a Related Company, or as
otherwise expressly approved by the Committee.
(m) Stock. The term "Stock" shall mean shares of
common stock of the Company.
Adopted as of March 12, 1999.
Exhibit 5
G O D F R E Y & K A H N, S. C.
ATTORNEYS AT LAW
780 NORTH WATER STREET
MILWAUKEE, WI 53202-3590
www.gklaw.com
PHONE: 414-273-3500 FAX: 414-273-5198
August 16, 1999
ProVantage Health Services, Inc.
13555 Bishops Court, Suite 201
Brookfield, WI 53005
Ladies and Gentlemen:
We have acted as your counsel in connection with
the offer by ProVantage Health Services, Inc., a
Delaware corporation (the "Company"), of up to
1,750,000 shares of common stock, $.01 par value (the
"Shares"). The Shares are to be issued pursuant to the
Company's 1999 Stock Incentive Plan (the "Plan") as
described in the Company's Prospectus (the
"Prospectus"), including all amendments and supplements
thereto, which relates to the Company's Registration
Statement on Form S-8, to be filed with the Securities
and Exchange Commission on or about August 17, 1999
(the "Registration Statement").
We have examined: (a) the Prospectus and the
Registration Statement, (b) the Company's Restated
Certificate of Incorporation and Amended and Restated
By-Laws, (c) certain resolutions of the Company's Board
of Directors, and (d) such other proceedings, documents
and records as we have deemed necessary to enable us to
render this opinion.
Based on the foregoing, we are of the opinion that
the Shares are duly authorized and, upon issuance in
accordance with the terms of the Plan, will be validly
issued, fully paid and nonassessable, subject to
Section 180.0622(2)(b) of the Wisconsin Statutes, or
any successor provision. Section 180.0622(2)(b) of the
Wisconsin Statutes provides that shareholders of a
corporation may be assessed up to the par value of
their shares to satisfy the obligations of such
corporation to its employees for services rendered, but
not exceeding six months service in the case of any
individual employee. Certain Wisconsin courts have
interpreted "par value" to mean the full amount paid by
the purchaser of shares upon issuance thereof. The
Supreme Court of the State of Wisconsin has interpreted
the substantially similar predecessor to Section
180.0622(2)(b) of the Wisconsin Statutes to apply to
foreign corporations licensed to do business in
Wisconsin.
We consent to the use of this opinion as an
exhibit to the Registration Statement. In giving this
consent, however, we do not admit that we are "experts"
within the meaning of Section 11 of the Securities Act
of 1933, as amended, or within the category of persons
whose consent is required by Section 7 of said Act.
Very truly yours,
/s/ Godfrey & Kahn, S.C.
GODFREY & KAHN, S.C.
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of ProVantage Health Services,
Inc, on Form S-8 of our report dated March 12, 1999
(June 21, 1999 as to the effects of matters discussed
in Note K to the financial statements), appearing in
the Registration Statement of ProVantage Health
Services, Inc. dated June 24, 1999.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Milwaukee, Wisconsin
August 17, 1999
Exhibit 24
POWER OF ATTORNEY
Each of the undersigned hereby constitutes and
appoints Jeffrey A. Jones, Patricia Nussle and Richard
D. Schepp, and each of them, the undersigned's true and
lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned
and in the undersigned's name, place and stead, in any
and all capacities with ProVantage Health Services,
Inc. (the "Company"), to sign for the undersigned and
in the undersigned's name the Registration Statement on
Form S-8 relating to the Company's 1999 Stock Incentive
Plan and any and all amendments (including post-
effective amendments) and/or supplements thereto, and
to file the same, with all exhibits thereto, other
documents in connection therewith, and any amendments
to any of the foregoing, with the Securities and
Exchange Commission and any other regulatory authority,
granting unto said attorney-in-fact and agent full
power and authority to do and perform each and every
act and thing requisite and necessary to be done in and
about the premises, as fully and to all intents and
purposes as the undersigned might or could do in
person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or the undersigned's
substitute, may lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned have each
executed this Power of Attorney, on one or more
counterparts, as of this 16th day of August, 1999.
/s/ Dale P. Kramer
- -------------------- ---------------------
Dale P. Kramer Gregory H. Wolf
/s/ William J. Podany /s/ Jeffrey A. Jones
- ---------------------- -----------------------
William J. Podany Jeffrey A. Jones
/s/ Jeffrey C. Girard /s/ Peter J. Beste
- ----------------------- ------------------------
Jeffrey C. Girard Peter J. Beste
