-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, E8AAFJIkbrqQWRLKa2SE7WuWEcq6xYrKjQFJOqw9eAEmis33wXP9NAtL8Ygwt/wP 4WkiXUPPQBl3z6M1dah4SQ== 0000950137-01-503131.txt : 20010816 0000950137-01-503131.hdr.sgml : 20010816 ACCESSION NUMBER: 0000950137-01-503131 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20010815 EFFECTIVENESS DATE: 20010815 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FIRST HEALTH GROUP CORP CENTRAL INDEX KEY: 0000812910 STANDARD INDUSTRIAL CLASSIFICATION: HOSPITAL & MEDICAL SERVICE PLANS [6324] IRS NUMBER: 363307583 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-67566 FILM NUMBER: 1715201 BUSINESS ADDRESS: STREET 1: 3200 HIGHLAND AVE STREET 2: HEALTH COMPARE CORP CITY: DOWNERS GROVE STATE: IL ZIP: 60515 BUSINESS PHONE: 6302417900 MAIL ADDRESS: STREET 1: 3200 HIGHLAND AVENUE STREET 2: 3200 HIGHLAND AVENUE CITY: DOWNERS GROVE STATE: IL ZIP: 60515 FORMER COMPANY: FORMER CONFORMED NAME: HEALTHCARE COMPARE CORP/DE/ DATE OF NAME CHANGE: 19920703 S-8 1 c64563s-8.txt REGISTRATION STATEMENT 1 As filed with the Securities and Exchange Commission on August 15, 2001 Registration No. 333-_______ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------- FIRST HEALTH GROUP CORP. (Exact name of Registrant as specified in its charter) -------- DELAWARE 36-3307583 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 3200 HIGHLAND AVENUE DOWNERS GROVE, ILLINOIS 60515 (630) 737-7900 (Address, including zip code, and telephone number, including area code, of Registrant's executive offices) -------- FIRST HEALTH GROUP CORP. 2001 STOCK OPTION PLAN (Full title of the plan) BANSARI M. SHAH, ESQ. NEAL, GERBER & EISENBERG TWO NORTH LASALLE STREET CHICAGO, ILLINOIS 60602 (312) 269-8000 (Name, address, including zip code, and telephone number, including area code, of agent for service) -------- 2 CALCULATION OF REGISTRATION FEE
---------------------------------------------------------------------------------------------------------------- PROPOSED MAXIMUM PROPOSED MAXIMUM TITLE OF SECURITIES TO BE AMOUNT OFFERING PRICE AGGREGATE OFFERING AMOUNT OF REGISTERED TO BE REGISTERED (1) PER SHARE (2) PRICE (2) REGISTRATION FEE ---------------------------------------------------------------------------------------------------------------- Common Stock, $0.01 par 5,000,000 value shares $26.29 $131,450,000.00 $32,863.00 ----------------------------------------------------------------------------------------------------------------
(1) Adjusted to reflect the Registrant's 2-for-1 Common Stock split paid on June 25, 2001. Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this Registration Statement shall also cover such additional shares as may hereinafter be offered or issued from future stock splits, stock dividends or similar transactions. (2) Estimated solely for the purpose of calculating the Registration Fee pursuant to Rule 457(c) and Rule 457(h) under the Securities Act of 1933, as amended, on the basis of the average of the high and low prices of the Registrant's Common Stock as reported on the Nasdaq National Market on August 9, 2001. 3 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents are incorporated into this Registration Statement by reference: 1. The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2000. 2. The Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2001. 3. The Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 2001. 4. The Company's Current Report on Form 8-K, dated May 21, 2001. 5. The description of the Company'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 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any reports or amendments to the foregoing filed with the Securities and Exchange Commission for the purpose of updating such description. 6. All documents filed by the Company pursuant to Sections 13, 14, or 15(d) of the Exchange Act subsequent to the date of this Registration Statement and before the Company files a post-effective amendment hereto which indicates that all shares of Common Stock being offered pursuant to this Registration Statement have been sold or which deregisters all shares of Common Stock then remaining unsold. ITEM 4. DESCRIPTION OF SECURITIES Not Applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Certain partners of and 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 from 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 discrimination will be made either by quorum of 4 disinterested directors, if available, or by independent legal counsel in a written opinion, or by the vote of the Company's stockholders. The 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. The Company 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 Exhibit Number Description of Document - ------- ----------------------- 4 First Health Group Corp. 2001 Stock Option Plan 5 Opinion of Neal, Gerber & Eisenberg 23.1 Consent of Deloitte & Touche LLP 23.2 Consent of Neal, Gerber & Eisenberg (included in Exhibit 5 to this Registration Statement) 24 Power of Attorney (included as part of the signature page of this Registration Statement) 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 (the "Act"), 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 Act, each filing of the Company's annual report pursuant to Sections 13(a) or 15(d) of the Exchange Act 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 5. To deliver or cause to be delivered with the prospectus, to each employee to whom the prospectus is sent or given, a copy of the Company's annual report to stockholders for its last fiscal year, unless such employee has otherwise received a copy of such report, in which case the Company shall state in the prospectus that it will promptly furnish, without charge, a copy of such report on the written request of the employee. If the last fiscal year of the Company has ended within 120 days prior to the use of the prospectus, the annual report of the Company 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 such employee. 6. To transmit or cause to be transmitted to all employees participating in the plan who do not otherwise receive such material as stockholders of the Company, at the time and in the manner as such material is sent to its stockholders, copies of all reports, proxy statement and other communications distributed to its stockholders generally. Insofar as indemnification for liabilities arising under the Act may be permitted to directors, officers or persons controlling the Company pursuant to the Delaware General Corporation Law, the Restated Certificate of Incorporation of the Company, the By-Laws of the Company or otherwise, the Company 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 Company of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company 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. 6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Downers Grove, State of Illinois on the 10th day of August, 2001. FIRST HEALTH GROUP CORP. (Registrant) By: /s/ James C. Smith --------------------------------- James C. Smith, Chairman of the Board and Chief Executive Officer POWER OF ATTORNEY Each person whose signature appears below constitutes and appoints Joseph E. Whitters and Edward L. Wristen, and each of them, as his true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for him and his name, place and stead, in any and all capacities, to sign this registration statement and any or all amendments (including post-effective amendments) to this registration statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the foregoing, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or their substitutes, may lawfully 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 below by the following persons in the capacities indicated on the 10th day of August, 2001. Signature Title --------- ----- /s/ James C. Smith Chairman of the Board and - ------------------------------- Chief Executive Officer James C. Smith (Principal Executive Officer) /s/ Joseph E. Whitters Vice President, Finance and - ------------------------------- Chief Financial Officer Joseph E. Whitters (Principal Accounting and Principal Financial Officer) /s/ Michael J. Boskin, Ph. D. Director - ------------------------------- Michael J. Boskin, Ph. D. Director - ------------------------------- Daniel S. Brunner /s/ Robert S. Colman Director - ------------------------------- Robert S. Colman /s/ Ronald H. Galowich Director - ------------------------------- Ronald H. Galowich /s/ Harold S. Handelsman Director - ------------------------------- Harold S. Handelsman 7 /s/ Don Logan Director - ------------------------------- Don Logan /s/ Thomas J. Pritzker Director - ------------------------------- Thomas J. Pritzker /s/ David E. Simon Director - ------------------------------- David E. Simon /s/ Edward L. Wristen Director - ------------------------------- Edward L. Wristen EX-4 3 c64563ex4.txt 2001 STOCK OPTION PLAN 1 EXHIBIT 4 FIRST HEALTH GROUP CORP. 2001 STOCK OPTION PLAN 1. PURPOSE. The purpose of the 2001 Stock Option Plan (the "Plan") is to aid First Health Group 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 directors, 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. Each member of the Committee shall be (i) a "Non-Employee Director" as determined under Rule 16b-3(b)(3)(i) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and (ii) an outside director as determined under Treasury Regulation 26, CFR Section 1.162-27(e)(3). (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 (each, an "Option Agreement") 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 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 2 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, at the time the option is granted, owns directly or indirectly stock possessing more than 10% of the total combined voting power 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 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 2,500,000 shares; and, subject to like adjustment, the aggregate number of shares for which options may be granted to any one 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 100% 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 an optionee owns (including constructive ownership pursuant to Section 424(d) of the Code) more than 10% of the total combined voting power of all classes of outstanding shares of stock of the Company or any subsidiary or parent corporation (within the meaning of Section 424 of the Code), then an Incentive Option granted under this Plan to such optionee 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 the grant of such option. Subject to the foregoing, the option price shall be determined by the Committee. Other than adjustments pursuant to Section 9 hereof, neither the Board nor the Committee shall make any alteration or amendment to any options granted hereunder which operates to reprice, replace, regrant through cancellation or lower the exercise price of a previously granted option without the approval of the Company's stockholders. 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 on the Nasdaq National Market on the date of the grant of such option, fair market value shall be the closing sale price on that day; (iii) if the Common Stock is traded over-the-counter and not on the Nasdaq National Market 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 seven 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 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 3 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 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 which have been owned by the optionee for more than six (6) months prior to the date of surrender or a combination of cash and such Common Stock having an aggregate fair market value equal to the exercise price (and any required tax withholding payment). The Committee may permit the holder of an option to elect to pay the exercise price of such option by authorizing a third-party to sell shares of Common Stock (or a sufficient portion of the shares) acquired upon exercise of such option and remit to the Company a sufficient portion of the sale proceeds to pay the entire exercise price and any tax withholding resulting from such exercise. 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 (i) such person is an "accredited investor" within the meaning of Regulation D promulgated under the Securities Act of 1933, as amended, or either alone or with his purchaser representative has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and lists of exercising the option, and (ii) 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 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. 4 7. TRANSFERABILITY OF OPTIONS. No option shall be transferable by an optionholder other than by will or by the laws of descent and distribution or, in the case of an option other than an Incentive Option, to a "family member" pursuant to a domestic relations order (within the meaning of Rule 16a-12 promulgated under the Exchange Act). Notwithstanding the foregoing sentence, the Committee may set forth in an Option Agreement evidencing an option (other than an Incentive Option), that the option may be transferred by gift to a "family member" of the optionholder. For purposes of this paragraph 7, "family member" means any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships, any person sharing the optionholder's household (other than as a tenant or employee), a trust in which these persons have more than fifty percent of the beneficial interest, a foundation in which these persons (or the optionholder) control the management of assets, and any other entity in which these persons (or the optionholder) own more than fifty percent of the voting interests. During the lifetime of the optionholder, an option may be exercised only by the optionholder or by persons to whom the option was transferred as specified above. 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 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. (c) 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, up to one year in the case of resignation or termination or up to two years in the case of retirement (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 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. 5 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. 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 OPTIONEE. 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 Company's stockholders, make any alteration or amendment thereof which operates to (a) increase the total number of shares reserved for purposes of this Plan except as provided in paragraph 9 hereof, or (b) increase the total number of shares for which an option or options may be granted to any single employee or consultant. No amendment to or termination of the Plan shall impair the rights of optionholders under outstanding options theretofore granted under the Plan without the consent of the optionholders affected thereby, and, unless the Option Agreements relating to such options are amended, such 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 22, 2001. 16. TERMINATION. The period during which options may be granted under the Plan expires on May 22, 2008 unless the Plan is terminated by the Board prior to such date. EX-5 4 c64563ex5.txt OPINION OF NEAL, GERBER & EISENBERG 1 EXHIBIT 5 August 14, 2001 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 Re: First Health Group Corp. Registration Statement on Form S-8 Ladies and Gentlemen: We are counsel to First Health Group 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, of the Company's Registration Statement on Form S-8 (the "Registration Statement") relating to the issuance from time to time by the Company of up to 5,000,000 shares of the Company's common stock, $.01 par value per share (the "Common Stock"), pursuant to the First Health Group Corp. 2001 Stock Option Plan (the "Plan"). As such counsel, we have examined the Plan, the Company's Certificate of Incorporation, as amended, the Bylaws of the Company, the minute books of the Company and such other papers, documents and certificates of public officials and certificates of officers of the Company as we have deemed relevant and necessary as the basis for the opinions hereinafter 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. Based on the foregoing, we are of the opinion that: 1. The issuance from time to time by the Company of up to 5,000,000 shares of Common Stock pursuant to the Plan has been duly and validly authorized by all necessary corporate action on the part of the Company. 2. When issued and paid for in accordance with the Plan, the shares of Common Stock available for issuance under the Plan 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. Please be advised that certain partners of, attorneys associated with and/or of counsel to our firm beneficially own shares of Common Stock. The opinions expressed above are limited to the Delaware General Corporation Law and the federal laws of the United States, and are limited to the specific legal matters expressly addressed herein. No opinion is expressed with respect to the laws of any other jurisdiction or any legal matter not addressed herein. This opinion speaks only as of the date hereof and we undertake no obligation to update this opinion. Very truly yours, /s/ Neal, Gerber & Eisenberg EX-23.1 5 c64563ex23-1.txt CONSENT OF DELOITTE & TOUCHE LLP 1 EXHIBIT 23.1 Independent Auditors' Consent We consent to the incorporation by reference in this Registration Statement of First Health Group Corp. on Form S-8 related to the First Health Group Corp. 2001 Stock Option Plan of our reports dated February 19, 2001, appearing in and incorporated by reference in the Annual Report on Form 10-K of First Health Group Corp. and subsidiaries for the year ended December 31, 2000. /s/ Deloitte & Touche LLP Chicago, Illinois August 14, 2001 -----END PRIVACY-ENHANCED MESSAGE-----