<PAGE> 1
As filed with the Securities and Exchange Commission on September 19, 1995
Registration No. 33-________
===========================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
HEALTHCARE COMPARE CORP.
(Exact name of registrant as specified in its charter)
DELAWARE 36-3307583
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
3200 HIGHLAND AVENUE, DOWNERS GROVE, ILLINOIS 60515
(Address of principal executive offices) (Zip Code)
HEALTHCARE COMPARE CORP. 1995 STOCK OPTION PLAN
(Full title of the plan)
WILLIAM M. HOLZMAN, ESQ.
NEAL GERBER & EISENBERG
2 NORTH LASALLE STREET
CHICAGO, ILLINOIS 60602
(Name and address of agent for service)
(312) 269-8000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================
Proposed
Maximum Proposed
Offering Maximum Amount of
Title of Securities Amount to be Price Aggregate Registration
To be Registered Registered Per Share Offering Price Fee
---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.01
per share 2,000,000 shs.(1) $38.625(2) $77,250,000(2) $26,637.93(2)
===============================================================================================================
</TABLE>
<PAGE> 2
(1) Plus an indeterminate number of shares which may be issued as a result
of anti-dilution provisions contained in the Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933,
as amended (the "Act"), on the basis of the average of the high and
low prices of the Company's Common Stock as reported by the NASDAQ
National Market System on September 14, 1995.
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<PAGE> 3
PART I
NOT APPLICABLE TO DOCUMENT
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are incorporated in this Registration
Statement by reference:
1. The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1994.
2. Quarterly Reports on Form 10-Q for the quarters ended March
31, 1995 and June 30, 1995.
3. The description of the Registrant's Common Stock set forth
under the caption "Description of Registrant's Securities to
be Registered" in the Company's Registration Statement on Form
8-A (No. 0-15846) filed pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and any reports
or amendments to the foregoing filed with the Commission for
the purpose of updating such description.
4. All documents filed by the Registrant pursuant to Sections 13,
14 or 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and before the Registrant files a
post-effective amendment which indicates that all shares of
Common Stock being offered hereby have been sold or which
deregisters all shares of Common Stock then remaining unsold.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Burton W. Kanter, a director of the Company, is of counsel to the law
firm of Neal Gerber & Eisenberg, which firm performs legal services for the
Company on a regular basis. In addition, William M. Holzman, a partner of Neal
Gerber & Eisenberg, is Assistant Secretary of the Company. Furthermore,
certain other attorneys associated with Neal Gerber & Eisenberg own shares of
Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law empowers the
Company to indemnify officers and directors in certain instances. Article
Seventh, Section 2 of the Restated Certificate of Incorporation of the Company
provides as follows: "The directors, as well as the officers, employees and
agents of the Company shall be indemnified by the Company to the fullest extent
permitted by the Delaware General Corporation Law as the same exists or may
hereafter be amended." As a consequence, directors of the Company will be
insulated for liability for monetary damages for breach of fiduciary duty as a
director, including monetary liabilities for negligent or grossly negligent
business decisions, except for liability (i) for any breach of the director's
duty of loyalty to the Company or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) for the payment of unlawful dividends or unlawful stock
repurchases or redemptions, or (iv) for transactions in which the director
received an improper personal benefit. The exculpation provided with respect
to liability by the foregoing is effective for actions taken after April 16,
1987.
The By-Laws of the Company contain provisions whereby the Company will
indemnify its directors, officers, employees and agents against liabilities
incurred in connection with, and related expenses resulting from, any claim,
action or suit brought against such persons as a result of their relationship
with the Company, provided that it is determined that such persons acted in
accordance with a stated standard of conduct in connection with the acts or
events upon which such claim, action or suit is based. Such determination will
be made either by a quorum of disinterested directors, if available, or by
independent legal counsel in a written opinion, or by the vote of the Company's
stockholders. The
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<PAGE> 5
finding of either criminal or civil liability on the part of such persons in
connection with such acts or events is not necessarily determinative of the
question of whether such persons have met the required standard of conduct and
are, accordingly, entitled to be indemnified.
Insofar as indemnification for liabilities arising under the Act may
be permitted to directors, officers or persons controlling the Company pursuant
to the foregoing provisions, the Company has been informed 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.
The Registrant has purchased for the benefit of its officers and
directors an insurance policy, whereby the insurance company agrees, among
other things, to make payment to the Company in the event any such officer or
director becomes legally obligated to make a payment in connection with an
alleged wrongful act. Wrongful acts means any breach of duty, neglect, error,
misstatement, misleading statement, omission or other act done or wrongfully
attempted by an officer or director of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description of Document Page No.
------ ----------------------- --------
<S> <C> <C>
4.1 HealthCare COMPARE Corp. 1995 Stock
Option Plan.......... 9
5 Opinion of Neal Gerber &
Eisenberg............................. 17
23.1 Consent of Deloitte & Touche LLP...... 19
23.2 Consent of Neal Gerber &
Eisenberg (included in Exhibit 5
</TABLE>
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<TABLE>
<S> <C> <C>
to this Registration Statement)
24 Powers of Attorney.................... 20
</TABLE>
ITEM 9. UNDERTAKINGS
The undersigned hereby undertakes:
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 of 1933, as amended, each post-effective
amendment to this 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.
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.
4. That, for purposes of determining any liability under the
Securities Act of 1933, as amended, each filing of the
Registrant's annual report pursuant to Sections 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended, that is
incorporated by reference in this 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.
5. To deliver or cause to be delivered with the prospectus, to
each person to whom the prospectus is sent or given, a copy of
the registrant's annual report to stockholders for its last
fiscal year, unless such person has
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otherwise received a copy of such report, in which case the
registrant shall state in the prospectus that it will promptly
furnish, without charge, a copy of such report on the written
request of the person. If the last fiscal year of the
registrant has ended within 120 days prior to the use of the
prospectus, the annual report of the registrant for the
preceding fiscal year may be so delivered, but within such
120-day period the annual report for the last fiscal year will
be furnished to each such person.
6. To transmit or cause to be transmitted to all persons
participating in the plan who do not otherwise receive such
material as stockholders of the registrant, at the time and in
the manner as such material is sent to its stockholders,
copies of all reports, proxy statements and other
communications distributed to its stockholders generally.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors, officers or
persons controlling 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.
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<PAGE> 8
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, thereto duly authorized, in the City of Downers Grove, State of
Illinois, on the 15th day of September, 1995.
HEALTHCARE COMPARE CORP.
(REGISTRANT)
By: /s/ Joseph E. Whitters
-----------------------
Joseph E. Whitters,
Chief Financial Officer
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<PAGE> 9
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 indicated on the 15th day of September, 1995.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
------------------------------- Chairman of the Board and
Thomas J. Pritzker Director
/s/ James C. Smith
------------------------------- President, Chief Executive
James C. Smith Officer and Director (Principal
Executive Officer)
/s/ Ronald H. Galowich
------------------------------- Secretary, General Counsel and
Ronald H. Galowich Director
/s/ Joseph E. Whitters
------------------------------- Vice President, Finance,
Joseph E. Whitters Chief Financial Officer and
Treasurer (Principal Accounting
and Principal Financial Officer)
/s/ Robert J. Becker
------------------------------- Director
Robert J. Becker, M.D.
/s/ Michael J. Boskin
------------------------------- Director
Michael J. Boskin, Ph.D.
/s/ Daniel S. Brunner
------------------------------- Director
Daniel S. Brunner
------------------------------- Director
J. Patrick Foley
/s/ Burton W. Kanter
------------------------------- Director
Burton W. Kanter
/s/ Robert S. Colman
------------------------------- Director
Robert S. Colman
</TABLE>
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<PAGE> 10
<TABLE>
<S> <C>
/s/ David E. Simon
------------------------------- Director
David E. Simon
By:
---------------------------
Joseph E. Whitters,
Attorney-in-fact
</TABLE>
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<PAGE> 1
EXHIBIT 4.1
HEALTHCARE COMPARE CORP.
1995 STOCK OPTION PLAN
1. PURPOSE. The purpose of the 1995 Stock Option Plan (the
"Plan") is to aid HealthCare COMPARE Corp. and its subsidiaries (collectively,
the "Company"), in securing and retaining salaried officers and other key
employees and consultants and to motivate such persons to exert their best
efforts on behalf of the Company. In addition, the Company expects that it
will benefit from the added interest which the respective optionees will have
in the welfare of the Company as a result of their proprietary interest in the
Company's success.
2. ADMINISTRATION.
(a) The Compensation Committee (the "Committee") of the
Board of Directors (the "Board") which shall at all times be comprised of two
or more "disinterested persons," as that term is defined in Rule 16b-3 or any
successor rule promulgated under the Securities Exchange Act of 1934, as
amended, appointed by the Board from time to time to serve at the pleasure of
the Board shall have full power and authority, subject to such orders or
resolutions not inconsistent with the provisions of the Plan as may from time
to time be issued or adopted by the Board, to interpret the provisions and
supervise the administration of the Plan.
(b) In accordance with the provisions of this Plan, the
Committee shall select the key employees and consultants to whom options shall
be granted, shall determine, in the case of key employees, whether such options
shall be incentive stock options ("Incentive Options") granted pursuant to
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), or
nonstatutory stock options ("Nonstatutory Options"), and shall determine the
number of shares of Common Stock, $.01 par value, of the Company (the "Common
Stock") to be subject to each option and the time at which the option is to be
granted. Subject to the express provisions of the Plan, the Committee shall
have authority to adopt administrative regulations and procedures which are
consistent with the terms of the Plan; to adopt and amend option agreements as
they deem advisable; to determine the terms and provisions of such option
agreements (including the period during which the option is exercisable, the
option price, and the manner
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<PAGE> 2
in which options become exercisable; to construe and interpret such option
agreements; to impose such limitations and restrictions as are deemed necessary
or advisable by counsel for the Company so that compliance with the Federal
securities and tax laws and with the securities laws of the various states may
be assured; and to make all other determinations necessary or advisable for
administering the Plan. The Committee may designate any officers or employees
of the Company to assist the Committee in the administration of the Plan and to
execute documents on its behalf, and the Committee may delegate to them such
other ministerial and limited discretionary duties as it sees fit. All
determinations and selections made by the Committee shall be by the affirmative
vote of a majority of its members, but any determination reduced to writing and
signed by a majority of the members shall be fully as effective as if it had
been made by a majority vote at a meeting duly called and held.
(c) Each option shall be evidenced by a written
instrument duly executed by the Company and optionee which shall contain such
terms and conditions not inconsistent with the Plan as the Committee, upon the
advice of counsel for the Company, shall determine; provided, however, that
such terms need not be identical as between any two agreements.
(d) All determinations and selections made by the
Committee pursuant to the provisions of the Plan shall be final and conclusive.
3. ELIGIBILITY AND PARTICIPATION. The group of persons eligible
to receive options shall consist of salaried officers and other key employees
of, and consultants to, the Company (whether or not such persons are directors
of the Company). As used herein, the terms "key employee" and "key consultant"
shall mean any employee of, or consultant to, the Company who, in the opinion
of the Committee, has demonstrated a capacity for contributing in a substantial
measure to the success of the Company. No Incentive Option may be granted to a
key consultant nor may an Incentive Option be granted to an officer or employee
of the Company who, immediately after such grant, owns directly or indirectly
stock possessing more than 10% of the total combined voting power or value of
all classes of outstanding stock of the Company or any subsidiary or parent
corporation, unless, in the case of an individual who is not a consultant, the
option exercise price is at
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least 110% of the fair market value (as of the date of the grant) of the Common
Stock subject thereto and the term of the option is limited to five years from
the date of grant. No purported grant of an option to any person whose
employment or consulting arrangement with the Company has terminated on or
before the date on which the grant of such option is approved by the Committee
shall be effective.
4. SHARES SUBJECT TO THE PLAN. The stock subject to the Plan
shall be shares of the Company's authorized Common Stock and may be authorized
but unissued shares or treasury shares, as the Board may from time to time
determine in its sole discretion. Subject to adjustment as provided in
paragraph 9 hereof, the aggregate number of shares to be delivered upon
exercise of all options shall not exceed 2,000,000 shares; and, subject to like
adjustment, the aggregate number of shares for which an option or options may
be granted to any optionee shall not exceed 10% of the total number of shares
permitted to be issued under the Plan. If an option expires or terminates for
any reason during the period in which options may be granted under the Plan and
prior to the exercise thereof in full, the shares subject to, but not delivered
under, such option shall, except as hereinafter provided, be available for
options thereafter granted.
5. EXERCISE PRICE; FAIR MARKET VALUE. Nonstatutory Options
granted hereunder shall have a per share exercise price of not less than 85% of
the "fair market value" of a share of Common Stock on the date on which the
grant of such option is approved by the Committee (such date being the effective
date of the grant of such option). Incentive Options granted hereunder shall
have a per share exercise price of not less than 100% of the "fair market value"
of a share of Common Stock on the effective date of the grant of such option;
provided, however, if a participant owns (including constructive ownership
pursuant to Section 424(d) of the Code) more than 10% of the total combined
voting power or value of all classes of outstanding shares of stock of the
Company or any subsidiary or parent corporation (within the meaning of Section
424(e) of the Code), then an Incentive Option granted under this Plan to such
participant shall by its terms fix the option price per share of Common Stock to
be at least 110% of the fair market value of the shares of Common Stock on the
date of the grant of such option and such Incentive Option shall terminate and
become non-exercisable upon the expiration of five years from the date of
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<PAGE> 4
the grant of such option. Subject to the foregoing, the option price shall be
determined by the Committee.
For purposes of this Plan, "fair market value" of a share of
Common Stock shall mean: (i) if the Common Stock is traded on a national stock
exchange on the effective date of the grant of such option, fair market value
shall be the closing price reported by the applicable composite transactions
report on such day, or if the Common Stock is not traded on such date, the mean
between the closing bid-and-asked prices thereof on such exchange; (ii) if the
Common Stock is traded over-the-counter and is classified as a national market
issue on the date of the grant of such option, fair market value shall be the
closing sale price quoted by the NASDAQ on that day; (iii) if the Common Stock
is traded over-the-counter and is not classified as a national market issue on
the date of the grant of such option, fair market value shall be the mean
between the last representative bid-and-asked prices quoted by the NASDAQ on
that day; or (iv) if none of the foregoing provisions is applicable, fair
market value shall be determined by the Committee in good faith on such basis
as it deems appropriate. In all cases, the determination of fair market value
shall be binding and conclusive on all persons.
6. TERM AND EXERCISE OF OPTIONS.
(a) Options shall be exercisable in such installments and
during such period as may be fixed by the Committee at the time of grant, but
no option shall be exercisable after the expiration of ten years from the date
of grant of such option and, in the case of an individual who, immediately
after the grant of an Incentive Option, owns directly or indirectly stock
possessing more than 10% of the total combined voting power or value of all
classes of outstanding stock of the Company or any subsidiary, after the
expiration of five years from the date of grant of such option; further
provided that in the case of Incentive Options which are exercisable in more
than one installment, the aggregate fair market value (determined at the time
the option is granted) of the Common Stock with respect to which such Incentive
Options are exercisable for the first time by any optionee during any calendar
year may not exceed $100,000.
(b) No option shall be granted hereunder and no option
granted hereunder shall be exercisable, unless, at the time of any
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<PAGE> 5
grant or exercise of an option, such grant or exercise is in full compliance
with all Federal and state securities laws. Upon the exercise of an option,
the optionee shall be required to make payment in full to the Company of the
exercise price therefor (and any required tax withholding payment relative to
Nonstatutory Options) (i) in cash or (ii) with previously acquired shares of
Common Stock or a combination of cash and Common Stock having an aggregate fair
market value equal to the exercise price (and any required tax withholding
payment). No holder of any option, or his legal representative, legatee, or
distributee shall be or be deemed to be a holder of any shares of Common Stock
subject to such option unless and until he has received a certificate or
certificates therefor. If, on the date on which any option granted hereunder
is exercised, a registration statement relating to the shares of Common Stock
issuable pursuant to the Plan is not in effect, as a condition to the exercise
of such option, the Company may require the person exercising such option to
represent and warrant at the time of any such exercise that the Common Stock is
being purchased for investment purposes only and without any present intention
to sell or distribute such Common Stock, and the certificate evidencing shares
of Common Stock acquired upon exercise of such option shall contain upon its
face, or on the reverse thereof, the following legend:
"These shares have not been registered under the Securities Act of
1933, as amended, or under any applicable state law. They may not be
offered for sale, sold, transferred, or pledged without (1)
registration under the Securities Act of 1933, as amended, and any
applicable state law, or (2) an opinion (satisfactory to the
corporation) that registration is not required."
(c) The proceeds received by the Company from the sale of
stock subject to an option are to be added to the general funds of the Company
and used for general business purposes as the Board shall, in its sole
discretion, determine.
(d) No later than the date as of which an amount first
becomes includible in the gross income of the optionee for Federal income tax
purposes with respect to any grant under the Plan, the optionee shall pay to
the Company, or make arrangements satisfactory to the Company regarding the
payment of, any Federal, state, local or foreign taxes of any kind required by
law to be
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<PAGE> 6
withheld with respect to such amount. Unless otherwise determined by the
Committee, withholding obligations may be settled with Common Stock, including
Common Stock that is part of the grant that gives rise to the withholding
requirement. The obligations of the Company under the Plan shall be
conditional on such payment or arrangements, and the Company shall, to the
extent permitted by law, have the right to deduct any such taxes from any
payment otherwise due to the optionee. The Committee may establish such
procedures as it deems appropriate, including the making of irrevocable
elections, for the settlement of withholding obligations with Common Stock.
(e) If an Option granted hereunder is exercised or
transferred or stock issued pursuant to the exercise of an Incentive Option
disposed of within (i) two years from the date of granting of the Incentive
Option or (ii) one year from the date of issuing such stock, the holder of the
Option must notify the Company within five (5) business days of the exercise or
transfer, as the case may be.
7. TRANSFERABILITY OF OPTIONS. Incentive Options may only be
transferred by will or pursuant to the laws or descent or distribution and may
only be exercised by the optionholder. Nonstatutory Options granted under the
Plan may not be transferred except by will, the laws of descent and
distribution or pursuant to a qualified domestic relations order as defined by
the Code and, during the lifetime of the holder, may be exercised only by the
optionholder; provided, however, that, if permitted by an optionholder's option
agreement, a Nonstatutory Option may be transferred by the optionee to, and
exercised by, (i) member(s) of the optionee's immediate family (as such term is
defined in Rule 16a-1(e) or any successor rule promulgated under the Securities
Exchange Act of 1934, as amended, (ii) one or more trusts for the benefit of
such persons or (iii) one or more partnerships in which such family members are
the only partners, so long as the optionee does not receive any consideration
for the transfer.
8. DEATH, DISABILITY, RETIREMENT AND TERMINATION OF EMPLOYMENT.
Any option, the exercise period of which has not theretofore expired, shall
terminate at the time of an optionee's death, the optionee's disability or
termination of an optionee's employment or consulting arrangement with the
Company, and no
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<PAGE> 7
shares of Common Stock may thereafter be delivered pursuant to such option
except as set forth below:
(a) In the case of any employee or consultant who has
been employed or retained by the Company continuously from the effective date
of the grant of such option to the date of termination due to disability (as
defined in Section 22(e)(3) of the Code), such optionee may, within two years
(or such shorter period of time as is specified in the Option Agreement) after
the date of such termination (one year in the case of an Incentive Option in
order for such option to qualify for treatment as an incentive stock option
under the Code) but before expiration of the original exercise period, purchase
some or all of the shares subject to an option immediately prior to such
termination, to the extent the optionee was then entitled to exercise such
option, giving effect to any acceleration of exercisability triggered by such
disability; and
(b) Upon the death of any such employee while in active
service or of any such disabled or retired employee within such two-year period
(or such shorter period of time as is specified in the Option Agreement), the
person or persons to whom his rights under the option are transferred by will
or the laws of descent and distribution may within two years after the date of
death, but before the expiration of the original exercise period, purchase some
or all of the shares with respect to which the optionee was then entitled to
exercise such option immediately prior thereto, giving effect to any
acceleration of exercisability triggered by such death. Leaves of absence for
those periods and purposes conforming to the personnel policy of the Company
and as may be approved by the Committee, shall not be deemed terminations or
interruptions of employment.
In the case of any optionee who has been employed or retained
by the Company continuously from the date of grant to the date of termination
and whose employment or consulting arrangement is terminated due to retirement,
resignation or termination, such optionee may, within two years (or such
shorter period of time as is specified in the Option Agreement) after the date
of any such termination not "due to cause" (three months in the case of an
Incentive Option in order for such option to qualify for treatment as an
incentive stock option under the Code), but before the expiration of the
original exercise period, purchase some or all of
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<PAGE> 8
the shares with respect to which the optionee was then entitled to exercise
such option immediately prior to retirement, resignation or termination, giving
effect to any acceleration of exercisability triggered by such termination;
provided, however, in the case of a termination of employment or consulting
arrangement of an optionee "due to cause", all outstanding options of the
optionee shall be cancelled and terminated as of the date on which such
optionee is given notice of termination. For purposes of this Plan,
termination "due to cause" shall have the same meaning as ascribed thereto in
any employment, consulting or similar agreement then in effect between the
optionee and the Company, or if none, shall mean, in the reasonable belief of
the Committee, the commission of fraud, embezzlement or theft against: (i) the
Company; (ii) employees of the Company; or (iii) a customer or business
associate of the Company.
9. CHANGES IN COMMON STOCK. In the event that, prior to the
delivery by the Company of all of the shares of Common Stock which may be
delivered hereunder and after the effective date of the Plan, there shall be
any change in the outstanding Common Stock of the Company by reason of the
recapitalization, merger, reorganization, consolidation, stock split, stock
dividend or stock right distribution, the number and kind of shares deliverable
hereunder and the exercise price shall be adjusted (but without regard to
fractions) in a fair and equitable manner by the Committee, which determination
in each case shall be conclusive and binding on the Company and the optionee
and his legal representative.
10. MERGER, CONSOLIDATION, OR SALE OF ASSETS. In the event that
provision is not made in connection with any merger, reorganization,
consolidation or other change in corporate structure, for the continuation of
the Plan and assumption of the options theretofore granted hereunder (or the
substitution of substantially identical options of the surviving corporation or
successor employer or a parent thereof), then each holder of an option shall be
entitled, prior to the effective date of any such transaction, to exercise such
option for the full number of shares of Common Stock covered thereby which the
holder would otherwise have been entitled to acquire during the remaining term
of such option.
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<PAGE> 9
11. RIGHTS AS A STOCKHOLDER. No person participating in the Plan
shall have any rights of a stockholder of the Company as to shares subject to
an option until such option is exercised and certificates representing such
shares are received by the optionee.
12. IMPLIED CONSENT OF PARTICIPANTS. Every optionee, by his
acceptance of an option under the Plan, shall be deemed to have consented to be
bound, on his own behalf and on behalf of his heirs and legal representatives,
by all of the terms and conditions of the Plan.
13. THE COMPANY'S RESPONSIBILITY. All expenses of the Plan,
including the cost of maintaining records hereunder, shall be borne by the
Company. The Company shall have no responsibility or liability (other than
under applicable securities laws) for any act or thing done or left undone with
respect to the determination to grant (or not grant) an option hereunder or the
exercise price, number of shares or other terms and conditions of any option
granted under the Plan, so long as the Company acts in good faith.
14. AMENDMENT AND DISCONTINUANCE. The Board may alter, suspend,
or discontinue the Plan at any time and from time to time, without obtaining
the approval of the Company's stockholders, but may not, without the approval
of the holders of a majority of the Company's outstanding capital stock, make
any alteration or amendment thereof which operates to (a) abolish the
Committee, change the qualification of its members, or withdraw the
administration of the Plan from the Committee's supervision, (b) make any
material change in the class of eligible optionees as defined in paragraph 3
hereof, (c) increase the total number of shares reserved for purposes of this
Plan except as provided in paragraph 9 hereof, (d) increase the total number of
shares for which an option or options may be granted to any employee or
consultant, (e) extend the term of the Plan or the maximum option exercise
periods provided in paragraph 6 hereof, (f) decrease the minimum option price
provided in paragraph 5 hereof except as provided in paragraph 9 hereof, (g)
change the definition of fair market value specified in paragraph 5 hereof, or
(h) materially increase the benefits accruing to employees participating under
the Plan. No amendment to or termination of the Plan shall affect outstanding
options theretofore granted under the Plan, and, unless the option agreements
relating to such options are amended, such
-17-
<PAGE> 10
options shall remain in full force and effect as if the Plan had not been
amended or terminated.
15. EFFECTIVE DATE. Subject to stockholder approval, the Plan
shall become effective on May 24, 1995.
16. TERMINATION. The period during which options may be granted
under the Plan expires on May 23, 2005 unless the Plan is terminated by the
Board prior to such date.
-18-
<PAGE> 1
Exhibit 5
September 15, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: HealthCare COMPARE Corp.
Registration Statement on Form S-8
Ladies and Gentlemen:
We are counsel to HealthCare COMPARE Corp., a Delaware corporation
(the "Company"), and in such capacity we have assisted in the preparation and
filing with the Securities and Exchange Commission under the Securities Act of
1933, as amended (the "Act"), of the Company's Registration Statement on Form
S-8 (the "Registration Statement") relating to the issuance pursuant to the
Company's 1995 Stock Option Plan (the "Plan") of up to an aggregate of
2,000,000 shares of Common Stock, $.01 par value (the "Common Stock"), of the
Company.
As such counsel, we have examined the Plan, the Company's Restated
Certificate of Incorporation, as amended, and Amended and Restated By-Laws, as
amended, the minute books of the Company, and such other documents as we deemed
relevant and necessary as the basis for the opinions hereafter expressed. In
such examinations, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity
to original documents of all documents submitted to us as conformed or
photostatic copies.
-19-
<PAGE> 2
Securities and Exchange Commission
September 15, 1995
Page 2
Based upon the foregoing, we are of the opinion that (i) the issuance
by the Company of up to an aggregate of 2,000,000 shares of Common Stock upon
the exercise of options to be granted pursuant to the Plan has been duly and
validly authorized by all necessary corporate action on the part of the Company
and (ii) when issued and paid for as described in the Plan and the respective
option agreements, such shares will be duly and validly issued and outstanding,
fully paid and non-assessable shares of Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption
"Interests of Named Experts and Counsel" in Item 5 of the Registration
Statement.
Please be advised that Burton W. Kanter, of counsel to our firm, is a
director of the Company. In addition, William M. Holzman, a partner of our
firm, is an Assistant Secretary of the Company, and certain other partners of,
and attorneys associated with, our firm own shares of Common Stock.
Very truly yours,
Neal Gerber & Eisenberg
-20-
<PAGE> 1
Exhibit 23.1
[D&T LETTERHEAD]
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
HealthCare COMPARE Corp. on Form S-8 of our reports, dated February 13,
1995, appearing in and incorporated by reference in the Annual Report on Form
10-K of the HealthCare COMPARE Corp. for the year ended December 31, 1994.
DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Chicago, Illinois
September 14, 1995
-21-
<PAGE> 1
Exhibit 23.1
[D&T LETTERHEAD]
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
HealthCare COMPARE Corp. on Form S-8 of our reports, dated February 13,
1995, appearing in and incorporated by reference in the Annual Report on Form
10-K of the HealthCare COMPARE Corp. for the year ended December 31, 1994.
DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Chicago, Illinois
September 14, 1995
-21-
<PAGE> 2
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of HealthCare COMPARE Corp., a corporation organized under the laws of
the State of Delaware (the "Company"), hereby constitutes and appoints Joseph
E. Whitters, Ronald H. Galowich and William M. Holzman and each of them (with
full power to each of them to act alone), his true and lawful attorneys-in-fact
and agents for him and on his behalf and in his name, place and stead, in any
and all capacities, to sign, execute and file with the Securities and Exchange
Commission (or any other governmental or regulatory authority) a Registration
Statement on Form S-8 (including all amendments thereto) with all exhibits and
any and all documents required to be filed with respect thereto, relating to
the registration under the Securities Act of 1933, as amended, of shares of the
Company's common stock to be issued upon exercise of options to be granted by
the Company pursuant to the Company's 1995 Stock Option Plan, 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 requisite and necessary to be
done in and about the premises in order to effectuate the same as fully to all
intents and purposes as he himself 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.
___________________________________
Thomas J. Pritzker
Dated: September ___, 1995
<PAGE> 3
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of HealthCare COMPARE Corp., a corporation organized under the laws of
the State of Delaware (the "Company"), hereby constitutes and appoints Joseph
E. Whitters, Ronald H. Galowich and William M. Holzman and each of them (with
full power to each of them to act alone), his true and lawful attorneys-in-fact
and agents for him and on his behalf and in his name, place and stead, in any
and all capacities, to sign, execute and file with the Securities and Exchange
Commission (or any other governmental or regulatory authority) a Registration
Statement on Form S-8 (including all amendments thereto) with all exhibits and
any and all documents required to be filed with respect thereto, relating to
the registration under the Securities Act of 1933, as amended, of shares of the
Company's common stock to be issued upon exercise of options to be granted by
the Company pursuant to the Company's 1995 Stock Option Plan, 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 requisite and necessary to be
done in and about the premises in order to effectuate the same as fully to all
intents and purposes as he himself 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.
___________________________________
James C. Smith
Dated: September ___, 1995
<PAGE> 4
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of HealthCare COMPARE Corp., a corporation organized under the laws of
the State of Delaware (the "Company"), hereby constitutes and appoints Joseph
E. Whitters, Ronald H. Galowich and William M. Holzman and each of them (with
full power to each of them to act alone), his true and lawful attorneys-in-fact
and agents for him and on his behalf and in his name, place and stead, in any
and all capacities, to sign, execute and file with the Securities and Exchange
Commission (or any other governmental or regulatory authority) a Registration
Statement on Form S-8 (including all amendments thereto) with all exhibits and
any and all documents required to be filed with respect thereto, relating to
the registration under the Securities Act of 1933, as amended, of shares of the
Company's common stock to be issued upon exercise of options to be granted by
the Company pursuant to the Company's 1995 Stock Option Plan, 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 requisite and necessary to be
done in and about the premises in order to effectuate the same as fully to all
intents and purposes as he himself 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.
___________________________________
Ronald H. Galowich
Dated: September ___, 1995
<PAGE> 5
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of HealthCare COMPARE Corp., a corporation organized under the laws of
the State of Delaware (the "Company"), hereby constitutes and appoints Joseph
E. Whitters, Ronald H. Galowich and William M. Holzman and each of them (with
full power to each of them to act alone), his true and lawful attorneys-in-fact
and agents for him and on his behalf and in his name, place and stead, in any
and all capacities, to sign, execute and file with the Securities and Exchange
Commission (or any other governmental or regulatory authority) a Registration
Statement on Form S-8 (including all amendments thereto) with all exhibits and
any and all documents required to be filed with respect thereto, relating to
the registration under the Securities Act of 1933, as amended, of shares of the
Company's common stock to be issued upon exercise of options to be granted by
the Company pursuant to the Company's 1995 Stock Option Plan, 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 requisite and necessary to be
done in and about the premises in order to effectuate the same as fully to all
intents and purposes as he himself 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.
/s/ Robert J. Becker
-----------------------------------
Robert J. Becker, M.D.
Dated: September ___, 1995
<PAGE> 6
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of HealthCare COMPARE Corp., a corporation organized under the laws of
the State of Delaware (the "Company"), hereby constitutes and appoints Joseph
E. Whitters, Ronald H. Galowich and William M. Holzman and each of them (with
full power to each of them to act alone), his true and lawful attorneys-in-fact
and agents for him and on his behalf and in his name, place and stead, in any
and all capacities, to sign, execute and file with the Securities and Exchange
Commission (or any other governmental or regulatory authority) a Registration
Statement on Form S-8 (including all amendments thereto) with all exhibits and
any and all documents required to be filed with respect thereto, relating to
the registration under the Securities Act of 1933, as amended, of shares of the
Company's common stock to be issued upon exercise of options to be granted by
the Company pursuant to the Company's 1995 Stock Option Plan, 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 requisite and necessary to be
done in and about the premises in order to effectuate the same as fully to all
intents and purposes as he himself 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.
___________________________________
Michael J. Boskin, Ph.D
Dated: September ___, 1995
<PAGE> 7
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of HealthCare COMPARE Corp., a corporation organized under the laws of
the State of Delaware (the "Company"), hereby constitutes and appoints Joseph
E. Whitters, Ronald H. Galowich and William M. Holzman and each of them (with
full power to each of them to act alone), his true and lawful attorneys-in-fact
and agents for him and on his behalf and in his name, place and stead, in any
and all capacities, to sign, execute and file with the Securities and Exchange
Commission (or any other governmental or regulatory authority) a Registration
Statement on Form S-8 (including all amendments thereto) with all exhibits and
any and all documents required to be filed with respect thereto, relating to
the registration under the Securities Act of 1933, as amended, of shares of the
Company's common stock to be issued upon exercise of options to be granted by
the Company pursuant to the Company's 1995 Stock Option Plan, 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 requisite and necessary to be
done in and about the premises in order to effectuate the same as fully to all
intents and purposes as he himself 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.
___________________________________
Daniel Brunner
Dated: September ___, 1995
<PAGE> 8
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of HealthCare COMPARE Corp., a corporation organized under the laws of
the State of Delaware (the "Company"), hereby constitutes and appoints Joseph
E. Whitters, Ronald H. Galowich and William M. Holzman and each of them (with
full power to each of them to act alone), his true and lawful attorneys-in-fact
and agents for him and on his behalf and in his name, place and stead, in any
and all capacities, to sign, execute and file with the Securities and Exchange
Commission (or any other governmental or regulatory authority) a Registration
Statement on Form S-8 (including all amendments thereto) with all exhibits and
any and all documents required to be filed with respect thereto, relating to
the registration under the Securities Act of 1933, as amended, of shares of the
Company's common stock to be issued upon exercise of options to be granted by
the Company pursuant to the Company's 1995 Stock Option Plan, 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 requisite and necessary to be
done in and about the premises in order to effectuate the same as fully to all
intents and purposes as he himself 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.
___________________________________
J. Patrick Foley
Dated: September ___, 1995
<PAGE> 9
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of HealthCare COMPARE Corp., a corporation organized under the laws of
the State of Delaware (the "Company"), hereby constitutes and appoints Joseph
E. Whitters, Ronald H. Galowich and William M. Holzman and each of them (with
full power to each of them to act alone), his true and lawful attorneys-in-fact
and agents for him and on his behalf and in his name, place and stead, in any
and all capacities, to sign, execute and file with the Securities and Exchange
Commission (or any other governmental or regulatory authority) a Registration
Statement on Form S-8 (including all amendments thereto) with all exhibits and
any and all documents required to be filed with respect thereto, relating to
the registration under the Securities Act of 1933, as amended, of shares of the
Company's common stock to be issued upon exercise of options to be granted by
the Company pursuant to the Company's 1995 Stock Option Plan, 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 requisite and necessary to be
done in and about the premises in order to effectuate the same as fully to all
intents and purposes as he himself 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.
___________________________________
Burton W. Kanter
Dated: September ___, 1995
<PAGE> 10
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of HealthCare COMPARE Corp., a corporation organized under the laws of
the State of Delaware (the "Company"), hereby constitutes and appoints Joseph
E. Whitters, Ronald H. Galowich and William M. Holzman and each of them (with
full power to each of them to act alone), his true and lawful attorneys-in-fact
and agents for him and on his behalf and in his name, place and stead, in any
and all capacities, to sign, execute and file with the Securities and Exchange
Commission (or any other governmental or regulatory authority) a Registration
Statement on Form S-8 (including all amendments thereto) with all exhibits and
any and all documents required to be filed with respect thereto, relating to
the registration under the Securities Act of 1933, as amended, of shares of the
Company's common stock to be issued upon exercise of options to be granted by
the Company pursuant to the Company's 1995 Stock Option Plan, 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 requisite and necessary to be
done in and about the premises in order to effectuate the same as fully to all
intents and purposes as he himself 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.
/s/ Robert S. Colman
-----------------------------------
Robert S. Colman
Dated: September ___, 1995
<PAGE> 11
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of HealthCare COMPARE Corp., a corporation organized under the laws of
the State of Delaware (the "Company"), hereby constitutes and appoints Joseph
E. Whitters, Ronald H. Galowich and William M. Holzman and each of them (with
full power to each of them to act alone), his true and lawful attorneys-in-fact
and agents for him and on his behalf and in his name, place and stead, in any
and all capacities, to sign, execute and file with the Securities and Exchange
Commission (or any other governmental or regulatory authority) a Registration
Statement on Form S-8 (including all amendments thereto) with all exhibits and
any and all documents required to be filed with respect thereto, relating to
the registration under the Securities Act of 1933, as amended, of shares of the
Company's common stock to be issued upon exercise of options to be granted by
the Company pursuant to the Company's 1995 Stock Option Plan, 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 requisite and necessary to be
done in and about the premises in order to effectuate the same as fully to all
intents and purposes as he himself 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.
___________________________________
David Simon
Dated: September ___, 1995
<PAGE> 12
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of HealthCare COMPARE Corp., a corporation organized under the laws of
the State of Delaware (the "Company"), hereby constitutes and appoints Joseph
E. Whitters, Ronald H. Galowich and William M. Holzman and each of them (with
full power to each of them to act alone), his true and lawful attorneys-in-fact
and agents for him and on his behalf and in his name, place and stead, in any
and all capacities, to sign, execute and file with the Securities and Exchange
Commission (or any other governmental or regulatory authority) a Registration
Statement on Form S-8 (including all amendments thereto) with all exhibits and
any and all documents required to be filed with respect thereto, relating to
the registration under the Securities Act of 1933, as amended, of shares of the
Company's common stock to be issued upon exercise of options to be granted by
the Company pursuant to the Company's 1995 Stock Option Plan, 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 requisite and necessary to be
done in and about the premises in order to effectuate the same as fully to all
intents and purposes as he himself 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.
___________________________________
Joseph E. Whitters
Dated: September ___, 1995
