S-1/A 1 ds1a.htm AMENDMENT NO. 5 TO FORM S-1 Amendment No. 5 to Form S-1
As filed with the Securities and Exchange Commission on October 28, 2002
Registration No. 333-99051
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 
 
AMENDMENT NO. 5
TO
FORM S-1
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
 
 
WELLCHOICE, INC.
(Exact Name of Registrant as Specified in its Charter)
 
 
Delaware
  
6324
  
71-0901607
(State or Other Jurisdiction of Incorporation or Organization)
  
(Primary Standard Industrial Classification Code Number)
  
(I.R.S. Employer
Identification Number)
11 West 42nd Street
New York, New York 10036
(212) 476-7800
(Address, including Zip Code, and Telephone Number, including Area Code, of Registrant’s Principal Executive Offices)
 
 
Michael A. Stocker, M.D.
Chief Executive Officer
WellChoice, Inc.
11 West 42nd Street
New York, New York 10036
(212) 476-7800
(Name, Address, including Zip Code, and Telephone Number, including Area Code, of Agent for Service)
 
 
Copies to:
 
Ira M. Millstein, Esq.
  
Linda V. Tiano, Esq.
  
Serge Benchetrit, Esq.
Matthew Bloch, Esq.
  
Seth I. Truwit, Esq.
  
Willkie Farr & Gallagher
Weil, Gotshal & Manges LLP
  
WellChoice, Inc.
  
787 Seventh Avenue
767 Fifth Avenue
  
11 West 42nd Street
  
New York, New York 10019
New York, New York 10153
 
New York, New York 10036
  
(212) 728-8000
(212) 310-8000
  
(212) 476-7800
   
 
 
Approximate date of commencement of proposed sale to the public:    As soon as practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box.  ¨
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ¨                     
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ¨                     
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ¨                     
If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box.  ¨
 
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to Section 8(a), may determine.
 

 
EXPLANATORY NOTE
 
The purpose of this Amendment No. 5 to the Registration Statement is solely to file certain exhibits to the Registration Statement, as set forth below in Item 16(a) of Part II.

 
PART II
 
INFORMATION NOT REQUIRED IN PROSPECTUS
 
Item 13.    Other Expenses of Issuance and Distribution
 
The following table sets forth the expenses to be incurred in connection with the issuance and distribution of the securities being registered under this Registration Statement, other than underwriting discount. All amounts, except the Securities and Exchange Commission registration fee, the National Association of Securities Dealers, Inc. filing fee and the Transfer Agent fee are estimated. All amounts will be paid by the registrant:
 
Securities and Exchange Commission Registration Fee
   
$
36,800
National Association of Securities Dealers, Inc. Filing Fee
   
$
30,500
New York Stock Exchange Listing Fee
   
$
160,000
Transfer Agent Fee
   
$
25,000
Blue Sky Fee
   
$
25,000
Printing and Engraving
   
$
510,000
Legal Fees and Expenses
   
$
1,250,000
Accounting Fees and Expenses
   
$
1,275,000
Miscellaneous (includes fees and expenses of advisors to the selling stockholders)
   
$
2,375,000
    
Total
   
$
5,687,300
    
 
Item 14.    Indemnification of Directors and Officers
 
The Delaware General Corporation Law (the “DGCL”) provides for the power to indemnify any directors, officers, employees and agents and to purchase and maintain insurance with respect to liability arising out of their capacity or status as directors, officers, employees and agents. The indemnification provisions are not exclusive of any other rights to which directors and officers may be entitled under a corporation’s certificate of incorporation or bylaws, any agreement, a vote of stockholders or otherwise.
 
Our certificate of incorporation provides that our directors will not be personally liable to us or our stockholders for damages for breach of any duty owed to us or our stockholders except for liability for:
 
 
•
 
any breach of the director’s duty of loyalty to us or our stockholders;
 
 
•
 
acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
 
 
•
 
under section 174 of the DGCL; or
 
 
•
 
for any transaction from which the director derived an improper personal benefit.
 
Under our certificate of incorporation, a director will not be deemed to breach any fiduciary duty or other obligation owed to our stockholders or any other person by reason of:
 
 
•
 
failing to vote for (or voting against) any proposal or course of action that, in the director’s judgment, would breach any requirement imposed on us or any of our subsidiaries or affiliates by Blue Cross Blue Shield Association or its successors, or could lead to termination of any license granted to us or any of our subsidiaries or affiliates by Blue Cross Blue Shield Association; or
 
 
•
 
voting in favor of any proposal or course of action that, in the director’s judgment, is necessary to prevent a breach of any requirement imposed on us or any of our subsidiaries or affiliates by Blue Cross Blue Shield Association or that could prevent termination of any license granted to us or any subsidiary or affiliate by Blue Cross Blue Shield Association.
 
Our bylaws also permit us to secure insurance on behalf of any officer, director, employee or agent for any liability asserted against or incurred by these individuals in their capacity, or arising out of their status, as our officer, director or employee, regardless of whether the DGCL would permit indemnification.

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Item 15.    Recent Sales of Unregistered Securities
 
Described below are unregistered securities sold by the Company during the three years preceding the filing of this Registration Statement:
 
None.
 
Item 16.    Exhibits and Financial Statement Schedules
 
(a)    Exhibits.
 
Number
     
Description
1.1
 
   
Form of Underwriting Agreement
2.1
**
   
New York State Superintendent of Insurance’s Opinion and Decision approving Plan of Conversion, dated October 8, 2002
2.2.1
 
   
Form of Transfer and Exchange Agreement between the Fund and WellChoice, Inc.
2.2.2
 
   
Form of Transfer and Exchange Agreement between the Foundation and WellChoice, Inc.
2.3
**
   
Form of Transfer Agreement between WellChoice, Inc., as transferee, and Empire HealthChoice, Inc., as transferor
3.1
 
   
Form of Amended and Restated Certificate of Incorporation of WellChoice, Inc.
3.2
 
   
Form of Amended and Restated Bylaws of WellChoice, Inc.
4.1
 
   
Specimen Common Stock certificate
4.2
 
   
Form of Registration Rights Agreement to be entered into by and among WellChoice, Inc., the Members of the Board of the New York Public Asset Fund and The New York Charitable Asset Foundation                 
5.1
**
   
Opinion of Weil, Gotshal & Manges LLP
8.1
**
   
Opinion of Weil, Gotshal & Manges LLP as to certain U.S. federal income tax matters
9.1
 
   
Form of Voting Trust and Divestiture Agreement to be entered into by and among WellChoice Inc., the Members of the Board of the New York Public Asset Fund and The Bank of New York, as trustee
10.1
**
   
Empire HealthChoice, Inc. Annual Executive Incentive Compensation Plan—2000 Plan Description
10.2
**
   
Empire HealthChoice, Inc. Annual Executive Incentive Compensation Plan—2001 Plan Description
10.3
**
   
Empire HealthChoice, Inc. Annual Executive Incentive Compensation Plan—2002 Plan Description
10.4
**
   
Empire HealthChoice, Inc. Executive Savings Plan, as Amended and Restated effective January 1, 1999
10.5
**
   
Empire HealthChoice, Inc. 1998-2000 Long-Term Incentive Compensation Plan
10.6
**
   
Empire HealthChoice, Inc. 1999-2001 Long-Term Incentive Compensation Plan
10.7
**
   
Empire HealthChoice, Inc. 2000-2002 Long-Term Incentive Compensation Plan
10.8
**
   
WellChoice, Inc. (f/k/a Empire HealthChoice, Inc.) Long-Term Incentive Compensation Plan
10.9
**
   
Letter Agreement, dated July 21, 2000, between Empire HealthChoice, Inc. and Kenneth Klepper
10.10
**
   
Form of Blue Cross License Agreement
10.11
**
   
Form of Blue Shield License Agreement
10.12
†**
   
Master Services Agreement, dated June 1, 2002, between Empire HealthChoice, Inc. and International Business Machines Corporation
10.13
**
   
Software License and Support Agreement, dated June 1, 2002, between Empire HealthChoice, Inc. and International Business Machines Corporation
10.14
**
   
Agreement of Lease, dated January 17, 2002, between Forest City Myrtle Associates, LLC as Landlord and Empire HealthChoice, Inc. d/b/a Blue Cross Blue Shield as Tenant
10.15
**
   
Credit and Guaranty Agreement, dated as of October 17, 2002
10.16
 
   
Form of Empire Blue Cross/Blue Shield License Addendum to Blue Cross and Blue Shield License Agreements
21.1
**
   
Subsidiaries of the Registrant
23.1
**
   
Consent of Ernst & Young
23.2
**
   
Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5.1)
23.3
**
   
Consent of Weil, Gotshal & Manges LLP (included in Exhibit 8.1)
24.1
**
   
Power of Attorney (included in Part II of this registration statement)
*
 
To be supplied by amendment.
**
 
Previously filed.
†
 
Confidential treatment has been requested for portions of this exhibit.

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(b)  Financial Statement Schedules
 
Schedule I       Summary of Investments—Other than Investments in Related Parties
 
Schedule III    Supplementary Insurance Information
 
Schedule V      Valuation and Qualifying Accounts
 
Item 17.    Undertakings
 
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
 
The undersigned hereby undertakes that:
 
(a)(1)    For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective.
 
(2)    For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus 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.
 
(b)    The undersigned will provide to the underwriters at the closing specified in the underwriting agreement certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.

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SIGNATURES
 
Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of New York, state of New York on this 28th day of October, 2002.
 
WELLCHOICE, INC.
By:
  
/S/    LINDA V. TIANO
   
Name:    Linda V. Tiano
Title:    Senior Vice President and General Counsel
 
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 dates indicated.
 
Signature
   
Title
  
Date
/S/    MICHAEL A. STOCKER, M.D.*
Michael A. Stocker, M.D.
   
Chief Executive Officer and Director
  
October 28, 2002
/S/    JOHN W. REMSHARD*
John W. Remshard
   
Senior Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)
  
October 28, 2002
/S/    PHILIP BRIGGS*
Philip Briggs
   
Chairman of the Board of Directors
  
October 28, 2002
Hermes L. Ames, III
   
Director
  
                 , 2002
/S/    JOHN R. GUNN*
John R. Gunn
   
Director
  
October 28, 2002
/S/    WILLIAM T. LEE*
William T. Lee
   
Director
  
October 28, 2002
/S/    EDWARD J. MALLOY*
Edward J. Malloy
   
Director
  
October 28, 2002
/S/    JOHN F. MCGILLICUDDY*
John F. McGillicuddy
   
Director
  
October 28, 2002
/S/    ROBERT R. MCMILLAN*
Robert R. McMillan
   
Director
  
October 28, 2002
/S/    ROBERT D. PAUL*
Robert D. Paul
   
Director
  
October 28, 2002
/S/    VERONICA C. SANTILLI, M.D.*
Veronica C. Santilli, M.D.
   
Director
  
October 28, 2002

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Signature
   
Title
  
Date
/S/    STEPHEN S. SCHEIDT, M.D.*
Stephen S. Scheidt, M.D.
   
Director
  
October 28, 2002
/S/    FREDERICK O. TERRELL*
Frederick O. Terrell
   
Director
  
October 28, 2002
/S/    FAYE WATTLETON*
Faye Wattleton
   
Director
  
October 28, 2002
/S/    JOHN E. ZUCCOTTI*
John E. Zuccotti
   
Director
  
October 28, 2002
*By:
  
/S/    LINDA V. TIANO
   
Linda V. Tiano
Senior Vice President and General Counsel
Attorney-in-Fact

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