Exhibit 4.5
INCENTIVE STOCK OPTION AGREEMENT
PURSUANT TO THE RightCHOICE MANAGED CARE, INC.
1994 EQUITY INCENTIVE PLAN
This INCENTIVE 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 ____________________
("Employee").
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 qualified employees and officers
of the Corporation and its affiliates, thereby providing
additional incentive for them to continue in the employ of the
Corporation or its affiliates. To that end, an incentive stock
option is granted by the Committee to Employee pursuant, and
subject to, the RightCHOICE Managed Care, Inc. 1994 Equity
Incentive 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 Corporation
grants to Employee, subject to the terms and provisions set forth
hereinafter and in the Plan, 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").
The Option shall not be considered granted (as of the
effective date described above) or become exercisable unless and
until Employee delivers to the Corporation a fully executed
counterpart hereof. 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 apart from
Exhibit A.
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. If Employee does not purchase the full
number of shares to which he is entitled in any one year, he may
purchase such shares in the next year specified in the Exercise
Schedule hereto, in addition to the shares which he is otherwise
entitled to purchase in the next year. 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
Employee 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 Committee at the time of exercise. 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.
IV.
Termination of Employment
In the event of the termination of the employment of the
Employee for reasons other than: (a) a termination for Cause;
(b) a termination by reason of retirement or disability; or
(c) death, the Employee may exercise the Option at any time
within three (3) months of such termination of employment, but in
no event after the earlier of the expiration date specified on
Exhibit A or the date that is ten (10) years from the date of
this Agreement, as specified on Exhibit A, but only to the extent
of the number of shares for which the Option is exercisable by
him at the date of the termination of employment. In the event
of a termination of the employment of the Employee that is for
Cause, the Option, to the extent not previously exercised, shall
forthwith terminate on the date of such termination of
employment. Except as may be otherwise provided in this
Agreement, the Option granted hereunder shall not be affected by
any change of employment so long as Employee continues to be
employed by the Corporation or a Subsidiary.
"Cause" shall mean, as determined by the Committee, in its
sole discretion exercised in a nondiscriminatory manner: (i) the
continued failure of the Employee to substantially perform his
duties to the Corporation or a Subsidiary (other than any such
failure resulting from disability as defined below); (ii) the
engaging by the Employee in willful, reckless or grossly
negligent misconduct which is determined by the Committee to be
materially injurious to the Corporation or any of its affiliates,
monetarily or otherwise; (iii) the Employee's pleading guilty to
or conviction of a felony or any other crime involving moral
turpitude; or (iv) the Employee's violation of the Employee's
Statement of Compliance and Authorizations which incorporates the
Company Statement of Ethics, as each may be amended from time to
time.
V.
Acceleration of Exercise
(a) Retirement and Disability. In the event of the
Employee's retirement or termination by reason of disability, the
Option (to the extent not previously terminated or forfeited)
shall become fully exercisable as to all remaining shares subject
to it and the Employee may exercise the Option at any time within
three (3) months of such retirement (or within one year after
termination of employment due to disability), but in no event
after the Expiration Date set forth on Exhibit A. For purposes
of the Agreement, "retirement" shall mean the termination of
employment with the Corporation or a Subsidiary on or after the
Employee's attainment of age 65 or age 62 and twenty (20) years
of "credited service" as taken into consideration under the
Corporation's qualified defined benefit plan in effect as of the
date of the adoption of the Plan. "Disability" shall be
determined by the Committee in its sole discretion, and shall
occur when the Committee determines that the Employee is
receiving, or is entitled to receive benefits under the
Corporation's long-term disability plan or Social Security
benefits on account of disability.
(b) Death. In the event the Employee dies during his
employment by the Corporation or a Subsidiary the Option (to the
extent not previously terminated or forfeited) shall become fully
exercisable as to all remaining shares subject to it. Such
Option may be exercised by the beneficiary of the Employee as
determined in accordance with Section X (a) hereto; but in no
event after the earlier of: (i) the date one year following the
Employee's date of death; or (ii) the Expiration Date set forth
on Exhibit A hereto.
(c) Corporate Change. Upon the occurrence of a Corporate
Change, the Committee shall notify Employee of the course of
action, if any, chosen by the Committee in accordance with
Section 9(e) of the Plan.
(d) Six Month Waiting Period. 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
Employee, except as otherwise provided under Section X(a),
hereof, and the Option shall be exercisable, during the
Employee's lifetime, only by him or, during periods of legal
disability, by his 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 constitute, or be
evidence of, any agreement or understanding, express or implied,
that the Corporation or any Subsidiary will employ Employee for
any period of time or in any position or for any particular
compensation.
VII.
Rights of Employee in Stock
Neither Employee, 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 exercised until
such Option is exercised in accordance with the Plan and this
Agreement and such shares are delivered by the Corporation.
VIII.
Notices
Any notice to be given to the Corporation or the Committee
hereunder shall be in writing and shall be addressed to the
Corporation, to the attention of its Senior Vice President and
General Counsel, at 0000 Xxxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000; and
any notice to be given to the Employee 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.
Successors 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 Employee 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 Employee's death. Such designation under this
Agreement may be revoked by the Employee at any time and a new
beneficiary may be appointed by the Employee by execution and
submission to the Committee of a revised Exhibit B to this
Agreement. In order to be effective, a designation of
beneficiary must be completed by the Employee on Exhibit B and,
notwithstanding the provisions of Section VIII, received by the
Committee, or its designee, prior to the date of the Employee's
death. In the absence of such designation, the Employee's
beneficiary shall be the legal representative of the Employee's
estate.
(b) Incapacity of Employee or Beneficiary. If any person
entitled to a distribution under this Agreement is deemed by the
Committee to be 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 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 Committee, the
Corporation and the Plan therefore.
(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 HEREOF, this Agreement has been executed by the
Corporation and the Employee as of the date and year first
written above.
RightCHOICE Managed Care, Inc.
By:________________________________
Title:_____________________________
Employee
___________________________________
Address: ___________________________________
___________________________________
EXHIBIT A
INCENTIVE STOCK OPTION AGREEMENT
PURSUANT TO
THE RightCHOICE MANAGED CARE, INC.
1994 EQUITY INCENTIVE PLAN
1. Date of Grant: ____________________(Date of Agreement)
2. Employee: _______________________________________
3. Number of Shares: ________________________(_______) shares
of Common Stock.
4. Option Price per
Share: _________________________($_______) (not
less than Fair Market Value; 110 percent
of Fair Market Value for 10 percent or
more shareholders).
5. Exercise Schedule: __________________ percent (__________%)
of the options subject to this Agreement
shall first be exercisable on __________
(the date __________ (_____) years after
the Date of Grant specified above).
__________________ percent (__________%)
of the options subject to this Agreement
shall first be exercisable on __________
(the date __________ (_____) years after
the Date of Grant specified above).
__________________ percent (__________%)
of the options subject to this Agreement
shall first be exercisable on __________
(the date __________ (_____) years after
the Date of Grant specified above).
6. Expiration Date: __________________________(not more than
ten (10) years from Date of Grant; (5)
years from Date of Grant for 10 percent
or more shareholders).
To qualify for Incentive Stock Option tax treatment, the Employee
must not dispose of shares obtained on exercise of an Option
until at least two years after the date of grant and one year
after the date of exercise of the Option. If these holding
periods are not met, the sale or other disposition of shares will
be a disqualifying disposition pursuant to Code Section 422(c).
EXHIBIT B
DESIGNATION OF BENEFICIARY FOR THE
INCENTIVE STOCK OPTION AGREEMENT
PURSUANT TO
THE RightCHOICE MANAGED CARE, INC.
1994 EQUITY INCENTIVE PLAN
Name of Employee: ___________________________________
Original Date of Agreement: __________________________
If I shall cease to be an Employee of the Corporation or a
Subsidiary by reason of my death, or if I shall die after I have
terminated my employment with the Corporation or a Subsidiary,
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 Employee's Signature
Receipt acknowledged on behalf of RightCHOICE Managed Care, Inc.
by:
__________________ ___________________________________
Date Representative of the Committee
