As filed with the Securities and Exchange Commission on December 6, 2000
Registration No. 333-____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
________________________________
RIGHTCHOICE MANAGED CARE, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 43-0303080
(State or Other (IRS Employer
Jurisdiction of Identification No.)
Incorporation or
Organization)
1831 Chestnut Street, St. Louis, Missouri 63103-2275
(Address of Principal Executive Offices) (Zip Code)
RIGHTCHOICE MANAGED CARE, INC. AMENDED AND RESTATED
NONEMPLOYEE DIRECTORS' NONQUALIFIED DEFERRED COMPENSATION PLAN
(Full Title of the Plan)
Angela F. Braly, Esq.
Executive Vice President, General Counsel and Corporate Secretary
RightCHOICE Managed Care, Inc.
1831 Chestnut Street, St. Louis, Missouri 63103-2275
(314) 923-4444
(Name, Address, and Telephone Number, Including Area Code, of Agent For
Service)
CALCULATION OF REGISTRATION FEE
Title of Each Amount to be Proposed Proposed Amount of
Class of Registered(2) Maximum Maximum Registration
Securities to Offering Aggregate Fee(5)
be Registered Price Per Offering
Unit(3) Price(5)
Common Stock , 30,000 $29.29 $878,700 $232
par value
$0.01 per
share
Deferred $1,000,000 100%(4) $1,000,000 $264
Compensation
Obligations(1)
(1) The deferred compensation obligations being registered are general
unfunded and unsecured obligations of the Registrant to pay deferred
compensation in the future to participating members of the RightCHOICE
Managed Care, Inc. Amended and Restated Nonemployee Directors'
Nonqualified Deferred Compensation Plan (the "Plan").
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
as amended, this Registration Statement shall also be deemed to cover an
indeterminate amount of interests offered and to be offered or sold
pursuant to the Plan and any additional securities to be offered or
issued to prevent dilution resulting from stock splits, stock dividends
and similar transactions.
(3) The securities registered hereunder were and are to be offered pursuant
to the Plan.
(4) The deferred compensation obligations being registered represent the
maximum amount of compensation deferrals which were and it is
anticipated may be made by participants in the Plan during the
approximate twenty-four month period following the initial offering date
under the Registration Statement.
(5) The amount set forth herein is estimated solely for purposes of
calculating the registration fee in accordance with Rule 457(h)(1).
Pursuant to Rule 457(c), the amount set forth herein represents the
average of the high and low prices of the Registrant's Common Stock as
of December 1, 2000, such date being within five business days of the
filing of this Registration Statement.
PART I - INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information required in Part I
of the registration statement will be provided to each plan
participant as required by Rule 428(b)(1). Such documents are
not being filed with the Commission in accordance with the
instructions to Form S-8 but constitute (along with the documents
incorporated by reference into the registration statement
pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act of 1933.
PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, as filed with the Commission, are
incorporated by reference herein:
(1) The Registrant's final prospectus/proxy statement dated
October 4, 2000 filed with the Commission on October 6, 2000; and
(2) The description of the Registrant's common stock
contained in its Registration Statement on Form 8-A filed with
the Commission on May 24, 2000.
All reports and other documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, prior to the filing of a post-
effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of
the filing of such reports and documents.
Item 4. Description of Securities.
Under the RightCHOICE Managed Care, Inc. Amended and
Restated Nonemployee Directors' Nonqualified Deferred
Compensation Plan, a nonemployee director of the Registrant may
defer the annual compensation paid by the Registrant or any of
its majority owned subsidiaries (a "Subsidiary") to the
participant for his or her service as a director and may defer
the compensation received for attendance at board and committee
meetings of the Registrant and its Subsidiaries.
Participants may defer their fees into either a deferred
cash account or a stock unit account. The number of stock units
credited to a participant's stock unit account equals the
quotient of the amount of the annual fee and/or meeting fee that
would have otherwise been payable divided by the reported closing
price per share of the Registrant's common stock on the New York
Stock Exchange.
Participants are entitled to distribution following their
termination of service as a member of the Registrant's or a
Subsidiary's board of directors. A participant may elect to
receive the value of his or her deferred cash account in one lump
sum payment or annual installment payments over a period up to
five years. A nonemployee director may elect to receive the
balance of his or her stock unit account in shares of the
Registrant's common stock in a single distribution or in a series
of distributions over a period up to five years.
If a participant elects to receive a lump-sum distribution
from his or her stock unit account, the distribution will be a
number of shares of the Registrant's stock equal to the number of
the participant's stock units. If a participant elects to
receive annual installments from his or her stock unit account,
the amount of each distribution will be shares of the
Registrant's common stock equal in number to the number of stock
units credited to a participant's stock unit account as of the
date immediately preceding the date of distribution divided by
the number of installments remaining to be paid.
The plan is administered by a committee approved by the
Registrant's board of directors.
The foregoing discussion is qualified in its entirety by
reference to the Plan.
Item 5. Interests of Named Experts and Counsel.
Certain legal matters in connection with the deferred
compensation obligations to be registered hereby and the shares
of common stock to be issued through the RightCHOICE Managed
Care, Inc. Amended and Restated Nonemployee Directors'
Nonqualified Deferred Compensation Plan have been passed upon for
the Registrant by Lewis, Rice & Fingersh, L.C., St. Louis,
Missouri 63102.
Item 6. Indemnification of Directors And Officers.
The certificate of incorporation and bylaws of the
Registrant provide for directors and officers of the company who
are or were parties to any threatened, pending or completed
civil, criminal, administrative or investigative action to be
indemnified against expenses, judgements, fines and amounts paid
in settlement to the fullest extent permitted by Delaware law.
Pursuant to Delaware law, a director or officer will be
indemnified against liability, provided he or she acted in good
faith and in a manner he or she reasonably believed to be in the
best interests of the company. Furthermore, a director or
officer will be indemnified against criminal action expenses and
fines, provided he or she had no reasonable cause to believe his
or her conduct was unlawful. However, a director or officer who
is involved in litigation initiated by or in the right of the
company who is adjudged to be liable to the company will not be
entitled to indemnification, unless (i) he or she acted in good
faith and in a manner he or she reasonably believed to be in the
best interests of the company, or in a criminal action he or she
had no reasonable cause to believe his or her conduct was
unlawful, and (ii) the court in which the finding of liability
was rendered determines that despite the adjudication of
liability, the director of officer is fairly and reasonably
entitled to indemnification.
To the extent that a director or officer is successful on
the merits in defense of a suit or proceeding brought against him
or her by reason of the fact that he or she is or was a director
or officer of the company, or serves or served any other
enterprise or organization at the request of the Registrant, he
or she will be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred in connection with such
action. Additionally, the company may advance funds to a
director or officer prior to a final disposition of the matter,
provided the director or officer agrees to repay any such
advancements if it is determined that the director or officer is
not entitled to indemnification by the company.
The Registrant's bylaws also authorize it to obtain
insurance to protect officers and directors from certain
liabilities, including liabilities against which the company
cannot indemnify its directors and officers. The Registrant
currently has in effect a directors' and officers' liability
insurance policy. The bylaws also provide for the company to
indemnify persons other than its officers and directors to the
fullest extent permitted by Delaware law, however, any such
indemnification is at the company's absolute discretion.
In addition to the provision for indemnification discussed
above, the Registrant's certificate of incorporation contains a
provision that eliminates the personal liability of a director of
the Registrant and its stockholders for monetary damages
resulting from a breach of his or her fiduciary duty. However, a
director is not relieved from liability for (i) any breach of the
duty of loyalty to the company or its shareholders, (ii) acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) payment of an
improper dividend or improper repurchase of the Registrant's
common stock under Section 174 of the Delaware General
Corporation Law, or (iv) any transaction from which the director
derived an improper personal benefit.
Under the terms of an Indemnification Agreement between the
Registrant and The Missouri Foundation For Health, The Missouri
Foundation For Health will indemnify all directors and officers
of the Registrant from any income tax liabilities which may arise
in or for any claims arising out of the reorganization of
RightCHOICE Managed Care Inc., a Missouri corporation, or the
events that gave rise to the litigation between Blue Cross and
Blue Shield of Missouri and the State of Missouri.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are submitted herewith or
incorporated by reference herein.
Exhibit Exhibit
Number
4(a) Certificate of Incorporation of RightCHOICE
Managed Care, Inc. (incorporated by reference to
Exhibit 3(a) of Registrant's Registration
Statement on Form S-4 (File No. 333-34750)).
4(b) Bylaws of RightCHOICE Managed Care Inc.
(incorporated by reference to Exhibit 3(b) of
Registrant's Registration Statement on Form S-4
(File No. 333-34750)).
4(c) RightCHOICE Managed Care, Inc. Amended and
Restated Nonemployee Directors' Nonqualified
Deferred Compensation Plan.
5 Opinion of Lewis, Rice & Fingersh, L.C.
23(a) Consent of Lewis, Rice & Fingersh, L.C. (included
in Exhibit 5).
23(b) Consent of PricewaterhouseCoopers LLP.
24 Powers of Attorney.
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 the
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 the registration statement;
(iii) 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.
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) of this Section do not apply if the registration
statement is on Form S-3, Form S-8 or Form F-3 and the
information required to be included in a post-effective
amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission 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 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.
SIGNATURES
The Registrant. 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 St. Louis,
State of Missouri, on December 4, 2000.
RightCHOICE Managed Care, Inc.
(Registrant)
By: /s/ John O'Rourke
John A. O'Rourke
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed on December 4, 2000
by the following persons in the capacities indicated.
Name Title
/s/ John O'Rourke
John A. O'Rourke President , Chief Executive
Officer, and Director (principal
executive officer)
/s/ Sandra A. Van Trease
Sandra A. Van Trease Senior Executive Vice President
and Chief Financial Officer and
Chief Operating Officer (principal
financial and accounting officer)
*
William H.T. Bush Director
*
Earle H. Harbison, Jr. Director
*
Roger B. Porter, Ph.D. Director
*
William J. Schicker Director
*
Gloria W. White Director
*By:/s/ Angela F. Braly
Attorney in Fact
INDEX TO EXHIBITS
Reg. S-K Exhibit
Item 601
Exhibit
No.
4(a) Certificate of Incorporation of RightCHOICE
Managed Care, Inc. (incorporated by reference to
Exhibit 3(a) of Registrant's Registration
Statement on Form S-4 (File No. 333-34750)).
4(b) Bylaws of RightCHOICE Managed Care Inc.
(incorporated by reference to Exhibit 3(b) of
Registrant's Registration Statement on Form S-4
(File No. 333-34750)).
4(c) RightCHOICE Managed Care, Inc. Amended and
Restated Nonemployee Directors' Nonqualified
Deferred Compensation Plan.
5 Opinion of Lewis, Rice & Fingersh, L.C.
23(a) Consent of Lewis, Rice & Fingersh, L.C. (included
in Exhibit 5).
23(b) Consent of PricewaterhouseCoopers LLP.
24 Powers of Attorney.
