As filed with the Securities and Exchange Commission on August 8,
1997
Registration No. 333-
UNITED STATES
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)
Missouri 43-1674052
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1831 Chestnut Street, St. Louis, Missouri 63103-2275
(Address of Principal Executive Offices) (Zip Code)
RIGHTCHOICE MANAGED CARE, INC.
NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
(Full title of the plan)
Janice C. Forsyth, 1831 Chestnut Street, St. Louis, Missouri
63103-2275
(Name and address of agent for service)
(314) 923-4444
(Telephone number, including area code, of agent for service)
Please send copies of all correspondence to:
STINSON, MAG & FIZZELL, P.C.
1201 Walnut Street
Kansas City, Missouri 64106
Attention: James W. Allen
(816) 842-8600
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount to offering aggregate Amount of
to be be price per offering registration
registered registered share /1/ price /1/ fee
Class A Common
Stock $0.01
par value 60,000 $11.2813 $676,878 $203.06
shares (2)
/1/ Estimated solely for purposes of calculating registration
fee, based on the average of the high and low prices on
August 6, 1997, pursuant to Rule 457(h) under the Securities
Act of 1933.
/2/ The provisions of Rule 416 shall apply to this Registration
Statement and the number of shares registered on this
Registration Statement automatically shall increase or
decrease as a result of stock splits, stock dividends, or
similar transactions.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
RightCHOICE Managed Care, Inc. (the "Registrant") hereby
incorporates by reference into this Registration Statement the
following documents: (i) the Registrant's annual report on Form
10-K for the year ended December 31, 1996; (ii) the Registrant's
quarterly report on Form 10-Q for the quarter ended March 31,
1997; and (iii) the description of the Class A Common Stock, $.01
par value, of the Registrant contained in the Registrant's
Registration Statement on Form 8-A (No. 1-13248). All documents
filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934 after the date
hereof and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or
which deregisters all securities offered hereby 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
filing of such documents, except that any information included in
any such document in response to Item 402(i), (k) or (l) of
Regulation S-K shall not be deemed to constitute a part of this
Registration Statement. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained
herein or in any other subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or
supersedes such statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of the Registrant's Class A
Common Stock registered pursuant to this Registration Statement
and certain other matters has been passed upon by Janice C.
Forsyth, Senior Vice President, General Counsel and Corporate
Secretary for the Registrant. Ms. Forsyth owns 2,400 shares of
the Registrant's Class A Common Stock, and has been granted stock
options exercisable with respect to an additional 34,174 shares
of the Registrant's Class A Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 351.355 of The General and Business Corporation Law
of Missouri provides for indemnification by a corporation of its
officers and directors and certain other persons as follows:
1. A corporation created under the laws of this state
may 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 <PAGE> investigative, other than an
action by or in the right of the corporation, by reason of
the fact that he 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 him in
connection with such action, suit, or proceeding if he acted
in good faith and in a manner he 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 his conduct was unlawful.
The termination of any action, suit, or proceeding by
judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good
faith and in a manner which he 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
reasonable cause to believe that his conduct was unlawful.
2. The corporation may 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 he 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, and amounts paid in settlement
actually and reasonably incurred by him in connection with
the defense or settlement of the action or suit if he acted
in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation;
except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall
have been adjudged to be liable for negligence or misconduct
in the performance of his duty to the corporation unless and
only to the extent that the court in which the action or
suit was brought determines upon application that, despite
the adjudication of liability and in view of all the
circumstances of the case, the person is fairly and
reasonably entitled to indemnity for such expenses which the
court shall deem proper.
3. To the extent that a director, officer, employee
or agent of the corporation has been successful on the
merits or otherwise in defense of any action, suit or
proceeding referred to in subsections 1 and 2 of this
section, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses, including
attorney's fees, actually and reasonably incurred by him in
connection with the action, suit, or proceeding.
4. Any indemnification under subsections 1 and 2 of
this section, unless ordered by a court, shall be made by
the corporation only as authorized in the specific case upon
a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set
forth in this section. The determination shall be made by
the board of directors by a majority vote of a quorum
consisting of directors who were not parties to the action,
suit, or proceeding, or if such a quorum is not obtainable,
or even if obtainable a quorum of <PAGE> disinterested directors so
directs, by independent legal counsel in a written opinion,
or by the shareholders.
5. Expenses incurred in defending a civil or criminal
action, suit or proceeding may be paid by the corporation in
advance of the final disposition of the action, suit, or
proceeding as authorized by the board of directors in the
specific case upon receipt of an undertaking by or on behalf
of the director, officer, employee or agent to repay such
amount unless it shall ultimately be determined that he is
entitled to be indemnified by the corporation as authorized
in this section.
6. The indemnification provided by this section shall
not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under the articles
of incorporation or bylaws or any agreement, vote of
shareholders or disinterested directors or otherwise, both
as to action in his official capacity and as to action in
another capacity while holding such office, and shall
continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of
the heirs, executors and administrators of such a person.
7. A corporation created under the laws of this state
shall have the power to give any further indemnity, in
addition to the indemnity authorized or contemplated under
other subsections of this section, including subsection 6,
to any person who is or was a director, officer, employee or
agent, or to any person who 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, provided such further indemnity is either
(i) authorized, directed, or provided for in the articles of
incorporation of the corporation or any duly adopted
amendment thereof or (ii) is authorized, directed, or
provided for in any bylaw or agreement of the corporation
which has been adopted by a vote of the shareholders of the
corporation, and provided further that no such indemnity
shall indemnify any person from or on account of such
person's conduct which was finally adjudged to have been
knowingly fraudulent, deliberately dishonest or willful
misconduct. Nothing in this subsection shall be deemed to
limit the power of the corporation under subsection 6 of
this section to enact bylaws or to enter into agreements
without shareholder adoption of the same.
8. The corporation may purchase and maintain
insurance on behalf of any person who 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 any liability asserted against him and incurred by
him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of
this section.
9. Any provision of this chapter to the contrary
notwithstanding the provisions of this section shall apply
to all existing and new domestic corporations, including but
not limited to banks, trust companies, insurance companies,
building and <PAGE> loan associations, savings bank and safe
deposit companies, mortgage loan companies, corporations
formed for benevolent, religious, scientific or educational
purposes and nonprofit corporations.
10. For the purpose of this section, references to
"the corporation" include all constituent corporations
absorbed in a consolidation or merger as well as the
resulting or surviving corporation so that any person who is
or was a director, officer, employee or agent of such a
constituent corporation or is or was serving at the request
of such constituent corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise shall stand in the same
position under the provisions of this section with respect
to the resulting or surviving corporation as he would if he
had served the resulting or surviving corporation in the
same capacity.
11. For purposes of this section, the term "other
enterprise" shall include employee benefit plans; the term
"fines" shall include any excise taxes assessed on a person
with respect to an employee benefit plan; and the term
"serving at the request of the corporation" shall include
any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services
by, such director, officer, employee, or agent with respect
to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to
the best interests of the corporation" as referred to in
this section.
Article IX of the Registrant's Articles of Incorporation
contains a provision permitting the Registrant to indemnify
directors, officers, trustees, employees, agents or persons in
any comparable office or position to the fullest extent permitted
by Missouri law. In the event that the laws (including statutes,
case law or principles of equity) of the state of Missouri are
amended or changed to permit broader rights of indemnification,
then the Registrant automatically shall be deemed authorized to
indemnify such persons to the fullest extent permitted by such
law, as so changed, without the need for any further action by
the Registrant's directors or shareholders.
Bylaw 5.1 of the Registrant's Bylaws requires the Registrant
to indemnify any person against all liabilities and expenses
actually and reasonably incurred by such person in connection
with any action, suit or proceeding by reason of the fact that
such person is or was serving as a director or officer of the
Registrant or, at the Registrant's request, as a director,
officer, trustee or in any other comparable position of another
enterprise; provided that such person acted in good faith and in
a manner such person reasonably believed to be in or not opposed
to the Registrant's best interests and, with respect to any
criminal action or proceeding, that such person had no reasonable
cause to believe such person's conduct was unlawful; and
provided, further, that the Registrant shall not be required to
indemnify or advance expenses to any such person in connection
with an action, suit or proceeding initiated by such person
unless the initiation of such action, suit or proceeding was
authorized in advance by the Registrant's Board of Directors.
The Bylaws further provide that such persons are entitled to
indemnity in any <PAGE> action initiated by or in the right of the
Registrant for amounts paid in settlement (provided that the
settlement and all amounts paid in connection therewith are
approved in advance by the Registrant, which approval shall not
be unreasonably withheld) and expenses actually and reasonably
incurred in connection therewith by him if the standards of
conduct specified above are satisfied; provided that the
Registrant shall not indemnify any person for any liabilities or
expenses incurred by such person in connection with an action,
suit or proceeding by or in the right of the Registrant in
respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable for negligence or
misconduct in the performance of such person's duty to the
Registrant, unless and only to the extent that the court in which
the action, suit or proceeding is brought determines that the
person is entitled to indemnity for such expenses.
Bylaw 5.7 of the Registrant's Bylaws permits the Board of
Directors to authorize the Registrant to purchase and maintain
insurance against any liability asserted against any person
against any liability incurred by such person by reason of the
fact that such person is or was serving as a director or officer
of the Registrant or, at the Registrant's request, as a director,
officer, trustee or in any other comparable position of another
enterprise, whether or not the Registrant would have the power or
obligation to indemnify such person under the provisions
described above. Said Bylaw 5.7 further provides that the
Registrant shall not be obligated to indemnify any person for any
amounts which have been paid directly to such person by any
insurance maintained by the Registrant; and any indemnification
provided pursuant to said Bylaw 5.7 shall not be used as a source
of contribution to, or as a substitute for, or as a basis for
recoupment of any payments pursuant to, any indemnification
obligation or insurance coverage which is available from another
enterprise, and payments shall be required to be made thereunder,
only to the extent that the amounts in question have not been
fully paid by any indemnification obligation or insurance
coverage which is available from another enterprise.
The indemnification authorized and provided for by the
Registrant's Articles of Incorporation and Bylaws is not
exclusive of any other rights to which those seeking
indemnification may be entitled under any statute, agreement,
vote of shareholders or disinterested directors, policy of
insurance or otherwise, both as to action in their official
capacities and as to action in other capacities while holding
their respective offices.
The Registrant has obtained directors' and officers'
liability insurance (the "Insurance Policies") which (subject to
certain limits and deductibles) (i) insures officers and
directors of the Registrant against loss arising from certain
claims made against them by reason of their being directors or
officers, and (ii) insures the Registrant against loss which it
may be required or permitted to pay as indemnification due its
directors or officers for certain claims. Such insurance
provides coverage for certain matters as to which the Registrant
may not be permitted by law to provide indemnification.
The Registrant has entered into indemnification agreements
(the "Agreements") with the directors and officers (the
"Indemnitees") of the Registrant. The Agreements provide that
the Registrant will either maintain the Insurance Policies or
self-insure against directors' and officers' liabilities to be
insured under said Insurance Policies. Under the Agreements, the
Registrant provides indemnity against any and all liabilities and
expenses actually and reasonably incurred by <PAGE> Indemnitees in
connection with any threatened, pending or completed action, suit
or proceeding whether civil, criminal, administrative,
investigative or appellate (including an action by or in the
right of the Registrant) to which the Indemnitee is, was or at
any time becomes a party, or is threatened to be made a party, by
reason of the fact that the Indemnitee is, was or at any time
becomes a director or officer of the Registrant, or is or was
serving at the request of or on behalf of the Registrant as a
director, officer, trustee or in any other comparable position of
any other enterprise. The Registrant will not hold Indemnitees
harmless or provide indemnification pursuant to the Agreements:
(a) except to the extent that the aggregate amount of
losses indemnified thereunder exceeds the amount of such
losses for which the Indemnitee is indemnified (i) pursuant
to the Registrant's Articles of Incorporation, Bylaws, vote
of shareholders or disinterested directors or other
agreement or (ii) otherwise than pursuant to the Agreements;
(b) in respect of remuneration paid to Indemnitees if
it shall be determined by a final judgment or other final
adjudication that such remuneration was in violation of law;
(c) on account of any suit for an accounting of
profits made from the purchase or sale by Indemnitees of
securities of the Registrant pursuant to Section 16(b) of
the Securities Exchange Act of 1934 and amendments thereto
or similar provisions of any federal, state or local law;
(d) on account of Indemnitees' conduct which is
finally adjudged by a court to have been knowingly
fraudulent, deliberately dishonest or a knowing violation of
law;
(e) if a final adjudication by a court having
jurisdiction in the matter shall determine that such
indemnification is not lawful;
(f) in connection with an action, suit or proceeding
initiated by Indemnitees prior to a change in control of the
Registrant unless (i) the initiation of such action, suit or
proceeding was authorized by the Registrant's Board of
Directors, (ii) the Indemnitee is successful in maintaining
an action in a court of competent jurisdiction against the
Registrant in determining that the Indemnitee is entitled to
indemnification under the Agreements following a
determination made under the terms of the Agreements that
the Indemnitee is not so entitled or (iii) the Board of
Directors finds such indemnification appropriate under the
specific circumstances and such indemnification is otherwise
consistent with the Agreements; or
(g) for any amounts which have been paid directly to
such person by any insurance maintained by the Registrant;
and any indemnification provided pursuant to the Agreements
shall not be used as a source of contribution to, or as a
substitute for, or as a basis for recoupment of any payments
pursuant to, any indemnification obligation or insurance
coverage which is available from another enterprise, and
payments shall be required to be made hereunder, only to the
extent that the amounts in question have not <PAGE> been fully paid
by any indemnification obligation or insurance coverage
which is available from another enterprise.
For information regarding the Registrant's undertaking to
submit to adjudication the issue of indemnification for violation
of the securities laws, see "Undertakings," Item 9 hereof.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in
the Index to Exhibits on page E-1 of this Registration Statement,
which Index is incorporated herein by reference.
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 (1)(i) and
(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those
paragraphs is contained in periodic reports filed 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 <PAGE> 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, 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of St. Louis, State of Missouri, on July 31, 1997.
RIGHTCHOICE MANAGED CARE, INC.
By /s/ John A. O'Rourke
John A. O'Rourke
President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below hereby severally constitutes and appoints
John A. O'Rourke, Norman J. Tice and Janice C. Forsyth, and each
of them, his or her true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him or
her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and all
documents relating thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, full power and authority to do and
perform each and every act and thing necessary or advisable to be
done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and
agents, or his or her substitute or substitutes, lawfully may do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the date indicated.
Signature and Title Date
/s/ John A. O'Rourke July 31, 1997
John A. O'Rourke
Chairman, President, Chief Executive Officer
and Director (Principal Executive Officer)
<PAGE>
/s/ Sandra Van Trease July 31, 1997
Sandra Van Trease
Senior Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
July ___, 1997
Frederic C. Brussee
Director
/s/ Norman J. Tice July 27, 1997
Norman J. Tice
Vice Chairman and Director
/s/ William H. T. Bush July 31, 1997
William H. T. Bush
Director
/s/ Ronald G. Evens, M.D. July 28, 1997
Ronald G. Evens, M.D.
Director
/s/ Edward C. Gomes, Jr. July 24, 1997
Edward C. Gomes, Jr.
Director
/s/ Earle H. Harbison, Jr. July 28, 1997
Earle H. Harbison, Jr.
Director
<PAGE>
/s/ Roger B. Porter, Ph.D. July 28, 1997
Roger B. Porter, Ph.D.
Director
/s/ Gloria W. White July 28, 1997
Gloria W. White
Director
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Description Page
4.1 Articles of Incorporation of the Registrant *
(filed with the Registrant's Registration
Statement on Form S-1 (File No. 33-77798) as
Exhibit 3.1 and incorporated herein by reference).
4.1.1 Amendment to Articles of Incorporation of the *
Registrant (filed with Amendment No. 2 to the
Registrant's Registration Statement on Form S-1
(File No. 33-77798) as Exhibit 3.1.1 and
incorporated herein by reference)
4.2 Amended and Restated Bylaws of the Registrant *
(filed with the Registrant's Annual Report on
Form 10-K for the year ended December 31, 1995 as
Exhibit 3.2 and incorporated herein by reference)
4.3 Specimen Class A Common Stock *
Certificate (filed with Amendment No. 1
to the Registrant's Registration
Statement on Form S-1 (File
No. 33-77798) as Exhibit 4.1 and
incorporated herein by reference).
4.4 Non-Employee Directors' Stock Option Plan *
(filed with Amendment No. 3 to the Registrant's
Registration Statement on Form S-1 (File No. 33-
77798) as Exhibit 10.18 and incorporated herein by
reference).
4.5 Form of Non-Qualified Stock Option Agreement __
between the Registrant and the optionee
5 Opinion of Janice C. Forsyth, Senior Vice ___
President, General Counsel and Corporate
Secretary for the Registrant, with respect to
the legality of the Class A Common Stock
being registered hereby.
23.1 Consent of Price Waterhouse LLP, the ___
Registrant's independent public accountants.
<PAGE>
23.2 Consent of Janice C. Forsyth, Senior Vice ___
President, General Counsel and Corporate
Secretary for the Registrant (contained in the
Opinion filed herewith as Exhibit 5).
24 Power of Attorney (included on signature ___
page hereto).
______________
* Incorporated herein by reference
Exhibit 4.5
RightCHOICE MANAGED CARE, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
PURSUANT TO THE RightCHOICE MANAGED CARE, INC.
NONEMPLOYEE DIRECTORS' STOCK OPTION PLAN
This NON-QUALIFIED STOCK OPTION AGREEMENT (the "Agreement")
is made as of the ____ day of ______________, 199__, by and
between RightCHOICE Managed Care, Inc. ("RightCHOICE"), a
Missouri corporation (the "Corporation"), and
_______________________________ ("Nonemployee Director").
W I T N E S S E T H:
The Corporation has determined that it is in the best
interests of the Corporation and its shareholders to encourage
ownership in the Corporation by each member of the Corporation's
Board of Directors (the "Board") who is not otherwise an employee
of the Corporation or an Affiliate of the Corporation, to secure
and retain the services of persons capable of serving in such
capacity, and to provide incentives for such persons to exert
maximum efforts for the success of the Corporation. To that end,
a non-qualified stock option is granted to the Nonemployee
Director pursuant, and subject to, the RightCHOICE Managed Care,
Inc. Nonemployee Directors' Stock Option Plan (the "Plan") on the
following terms and conditions:
I.
Defined Terms
Unless otherwise defined herein or, unless the context
requires a different definition, capitalized terms used herein
shall have the meanings assigned to them in the Plan.
II.
Shares Optioned, Option Price and Time of Exercise
Effective as of __________________, 199__, the Nonemployee
Director, subject to the terms and provisions set forth
hereinafter and in the Plan, has been granted the right and
option to purchase all or any part of the number of shares set
forth in Exhibit A of the presently authorized but unissued class
A common stock, $.01 per share par value ("Common Stock"), of the
Corporation at the purchase price per share set forth as the
Option Price in Exhibit A (the option hereby granted being
hereinafter referred to as the "Option").
<PAGE>
The Option shall not be considered granted (as of the
effective date described above) or become exercisable unless and
until Nonemployee Director delivers to the Corporation a fully
executed counterpart of this Agreement. Thereafter, the Option
shall be exercisable in accordance with the Exercise Schedule set
forth on Exhibit A, subject to any termination, acceleration or
change in such Exercise Schedule set forth in this Agreement.
Neither the Option nor any other rights granted under this
Agreement may be exercised after the Expiration Date set forth on
Exhibit A and, before that time, the Option may be terminated as
hereinafter provided. No partial exercise of the Option may be
for less than 100 full shares unless the remaining shares that
have become purchasable are less than 100 shares.
III.
Exercise Procedure and Withholding
Nonemployee Director shall exercise the Option by notifying
the Corporation of the number of shares that he desires to
purchase and by delivering with such notice the full payment for
the purchase price of the shares being purchased. Such purchase
price shall be payable in cash, in Common Stock or in a
combination of cash and Common Stock. For purposes of
determining the amount, if any, of the purchase price satisfied
by payment in Common Stock, such Common Stock shall be valued at
its Fair Market Value on the date of exercise, as determined by
the Administrator. Any Common Stock delivered in satisfaction of
all or a portion of the purchase price shall be appropriately
endorsed for transfer and assignment to the Corporation.
The Corporation will, as soon as is reasonably possible,
notify the Nonemployee Director of the amount of withholding tax,
if any, that must be paid under federal, state and local law due
to exercise of the Option. The Corporation shall have no
obligation to deliver certificates for the shares purchased until
Nonemployee Director pays to the Corporation in cash or in Common
Stock the amount of withholding specified in the Corporation's
notice. Alternatively, Nonemployee Director may direct the
Corporation to withhold that number of shares of Common Stock
(valued at Fair Market Value on the date of withholding)
sufficient to satisfy such obligation, subject to such
restrictions or procedures as the Administrator deems necessary
to satisfy Rule 16b-3.
IV.
Termination as a Director
(a) Termination. In the event the Nonemployee Director
ceases to be a member of the Board, including a termination that
is voluntary on the part of the Nonemployee Director, other than
a termination for Cause or death, the Nonemployee Director may
exercise the <PAGE> Option at any time within three (3) months of such
termination, but in no event prior to the date set forth on the
Exercise Schedule on Exhibit A and after the Expiration Date set
forth on Exhibit A hereto. In the event of a termination of the
employment of the Nonemployee Director that is for Cause, the
Option, to the extent not previously exercised, shall forthwith
terminate on the date of such termination.
(b) Death. In the event of the Nonemployee Director's
termination by reason of death, the Option (to the extent not
previously terminated or forfeited) shall be fully exercisable as
to all remaining shares subject to it and the beneficiary
designated in Exhibit B hereto or absent such beneficiary the
legal representative of the Nonemployee Director's estate, may
exercise the Option at any time within one (1) year after
termination due to death, but in no event after the Expiration
Date set forth on Exhibit A hereto.
(c) Notwithstanding any other provision of this Agreement
to the contrary, no portion of the Option may be exercised
earlier than six (6) months from the effective date of the grant
of the Option.
VI.
Non-Assignability and Term of Option
The Option shall not be transferrable or assignable by the
Nonemployee Director, otherwise than as provided under Section
X(a), hereof, and the Option shall be exercisable, during the
Nonemployee Director's lifetime, only by him or, during periods
of legal disability, by the Nonemployee Director's guardian or
other legal representative. No Option shall be subject to
execution, attachment, or similar process.
In no event may the Option be exercisable to any extent by
anyone after the Expiration Date specified in Exhibit A. It is
expressly agreed that, anything contained herein to the contrary
notwithstanding, this Agreement shall not confer upon any
Nonemployee Director any right to continue on the Board of the
Corporation or shall affect any right of the Corporation, its
Board or stockholders or any Affiliate to terminate the service
of any Nonemployee Director with or without cause.
VII.
Rights of Nonemployee Director in Stock
Neither Nonemployee Director, nor his successor in interest,
shall have any of the rights of a shareholder of the Corporation
with respect to the shares for which the Option is issued until
such Option is exercised in accordance with the Plan and this
Agreement and such shares are delivered by the Corporation.
<PAGE>
VIII.
Notices
Any notice to be given hereunder shall be in writing and
shall be addressed to the Corporation, to the attention of its
Senior Vice President and General Counsel at 1831 Chestnut, St.
Louis, Missouri, 63103; and any notice to be given to the
Nonemployee Director shall be addressed to the address designated
below the signature appearing hereinafter, or at such other
address as either party may hereafter designate in writing to the
other. Any such notice shall have been deemed duly given when
enclosed in a properly sealed envelope, addressed as aforesaid,
registered or certified and deposited (with the proper postage
and registration or certificate fee prepaid) in the United States
mail.
IX.
Successor or Assigns of the Corporation
The Option shall be binding upon and shall inure to the
benefit of any successor of the Corporation.
X.
Miscellaneous
(a) Designation of Beneficiary. The Nonemployee Director
shall have the right to appoint any individual or legal entity in
writing, on Exhibit B hereto, as his beneficiary to receive any
Option (to the extent not previously terminated or forfeited)
under this Agreement upon the Nonemployee Director's death. Such
designation under this Agreement may be revoked in writing by the
Nonemployee Director at any time and a new beneficiary may be
appointed by the Nonemployee Director by execution and submission
to the Administrator of a revised Exhibit B to this Agreement.
In order to be effective, a designation of beneficiary must be
completed by the Nonemployee Director on Exhibit B and,
notwithstanding Section VIII, received by the Administrator, or
its designee, prior to the date of the Nonemployee Director's
death. In the absence of such designation, the Nonemployee
Director's beneficiary shall be the legal representative of the
Nonemployee Director's estate.
(b) Incapacity of Nonemployee Director or Beneficiary. If
any person entitled to a distribution under this Agreement is
incapable of making an election hereunder or of personally
receiving and giving a valid receipt for such distribution
hereunder, then, an election or claim therefore may be made by
and a distribution may be made to a duly appointed guardian or
other legal representative of such person. Any distribution made
pursuant to the above shall be a distribution for the account of
such person and a complete discharge of any liability of the
Administrator, the Corporation and the Plan therefore.
<PAGE>
(c) Incorporation of the Plan. The terms and provisions of
the Plan are hereby incorporated in this Agreement. Unless
otherwise specifically stated herein, the terms and provisions of
the Plan shall control in the event of any inconsistency between
the Plan and this Agreement.
(d) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY THE
LAW OF THE STATE OF MISSOURI AND ALL APPLICABLE FEDERAL LAW.
(e) Gender. References to the masculine herein shall be
deemed to include the feminine, wherever appropriate.
(f) Counterparts. This Agreement may be executed in one or
more counterparts, which shall together constitute a valid and
binding agreement.
IN WITNESS WHEREOF, this Agreement has been executed by the
Corporation and the Nonemployee Director as of the date and year
first written above.
RightCHOICE Managed Care, Inc.
By:_______________________________
Title:____________________________
Nonemployee Director
___________________________________
Address: ___________________________________
___________________________________
<PAGE>
EXHIBIT A
NON-QUALIFIED STOCK OPTION AGREEMENT
PURSUANT TO THE RightCHOICE MANAGED CARE, INC.
NONEMPLOYEE DIRECTORS' STOCK OPTION PLAN
1. Date of Grant: ___________(Date of Agreement)
2. Nonemployee Director: ______________________________
3. Number of Shares: _____________(________) shares
of Common Stock.
4. Option Price per Share: _____________ ($_______) (Fair
Market Value as of the Date of
Grant).
5. Exercise Schedule: The options subject to this
Agreement shall first be
exercisable on ______________.
6. Expiration Date: __________________ (ten (10)
years from Date of Grant).
<PAGE>
EXHIBIT B
DESIGNATION OF BENEFICIARY FOR THE
NON-QUALIFIED STOCK OPTION AGREEMENT
PURSUANT TO THE RightCHOICE MANAGED CARE, INC.
NONEMPLOYEE DIRECTORS' STOCK OPTION PLAN
Name of Nonemployee Director: _______________________________
Original Date of Agreement: ________________________________
If I shall cease to be a Nonemployee Director of the Corporation
by reason of my death, or if I shall die after I have terminated
service as a Nonemployee Director, but prior to the expiration of
the Option (as provided in the Agreement), then all rights to the
Option granted under this Agreement that I hereby hold upon my
death, to the extent not previously terminated or forfeited,
shall be transferred to _________________________________________
(insert name of beneficiary) in the manner provided for in the
Plan and the Agreement.
__________________ ___________________________________
Date Nonemployee Director's Signature
Receipt acknowledged on behalf of RightCHOICE Managed Care, Inc.
by:
__________________ ___________________________________
Date Representative of the Administrator
Exhibit 5
August 8, 1997
Board of Directors
RightCHOICE Managed Care, Inc.
1831 Chestnut Street
St. Louis, MO 63103-2275
Ladies and Gentlemen:
Reference is made to the Registration Statement on Form
S-8 (the "Registration Statement") of RightCHOICE Managed Care,
Inc., a Missouri corporation (the "Company"), to be filed with
the Securities and Exchange Commission on or about August 8, 1997,
for the purpose of registering under the Securities Act of 1933,
as amended, 60,000 shares of Class A Common Stock, par value $.01
per share ("Common Stock"), of the Company. Said 60,000 shares
of Common Stock are proposed to be issued upon the exercise of
stock options granted or to be granted pursuant to the
RightCHOICE Managed Care, Inc. Non-Employee Directors' Stock
Option Plan.
I have examined the Company's Articles of Incorporation
and all amendments thereto, the Bylaws of the Company, as
presently in effect, minutes of the applicable meetings of the
Board of Directors, Compensation Committee of the Board of
Directors and shareholders of the Company, together with such
other corporate records, certificates of public officials and
other documents as I have deemed relevant to this opinion.
Based upon the foregoing, it is my opinion that:
1. The Company is a corporation duly organized,
validly existing and in good standing under the
laws of the State of Missouri.
2. All necessary corporate action has been taken to
authorize the issuance of the aforesaid 60,000
shares of Common Stock and all such shares as
shall be issued and paid for as described in the
Registration Statement shall be, when so issued,
legally issued, fully paid and nonassessable.
<PAGE>
I hereby consent to the reference to myself under the
heading "Interests of Named Experts and Counsel" in the
Registration Statement. I also consent to the inclusion of this
opinion in the Registration Statement as an exhibit thereto.
Sincerely,
/s/ Janice C. Forsyth
Janice C. Forsyth
Senior Vice President, General
Counsel and Corporate Secretary
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 RightCHOICE Managed Care,
Inc. of our report dated February 14, 1997 appearing in the
1996 Annual Report to Shareholders of RightCHOICE Managed
Care, Inc., which is incorporated by reference in this
Annual Report on Form 10-K. We also consent to the
incorporation by reference of our report on the Financial
Statement Schedules, which appears on such Annual Report
Form 10-K.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
St. Louis, Missouri
August 5, 1997
