As filed with the Securities and Exchange Commission on November 8, 2002
Registration No. 333-_____________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
COBALT CORPORATION
(Exact name of registrant as specified in its charter)
Wisconsin 39-1931212
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
401 West Michigan Street
Milwaukee, Wisconsin 53203
(414) 226-6900
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
-----------------------------------------------
Stephen E. Bablitch
President and Chief Operating Officer
401 West Michigan Street
Milwaukee, Wisconsin 53203
(414) 226-6900
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
with copies to:
Joseph C. Branch
John M. Olson
Foley & Lardner
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
(414) 271-2400
-------------------------------
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
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, other than securities offered only in connection with
dividend or interest reinvestment plans, please check the following box. [X]
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) of 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. [ ]
------------------
CALCULATION OF REGISTRATION FEE
=======================================================================================================
Title of Each Amount Proposed Maximum Proposed Maximum
Class of Securities to be Offering Price Aggregate Offering Amount of
to be Registered Registered(1) Per Share (2) Price (2) Registration Fee
- --------------------- ------------------- ------------------ --------------------- --------------------
Common Stock,
no par value ..... 7,000,000 shares $16.53 $115,710,000 $10,645.32 (3)
=======================================================================================================
(1) Includes 500,000 shares to be offered by the Registrant and 6,500,000 shares to be offered by the
Wisconsin United For Health Foundation, Inc.
(2) Estimated in accordance with Rule 457(c) under the Securities Act of 1933 solely for purposes of
calculating the registration fee, based on the average of the high and low prices of the common
stock of Cobalt Corporation on the New York Stock Exchange on November 4, 2002.
(3) Pursuant to Rule 457(p) under the Securities Act of 1933, the registration fee of $10,645.32 due
with respect to this Registration Statement is offset by the registration fee of $16,663.50
previously paid in connection with Registration Statement No. 333-90866 initially filed by the
Registrant on June 20, 2002 and withdrawn on August 8, 2002 prior to its effectiveness and prior
to the issuance of any of the shares registered thereby.
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 this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
================================================================================
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES NOR A SOLICITATION OF AN OFFER TO BUY THESE SECURITIES
IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED NOVEMBER 8, 2002
PROSPECTUS
7,000,000 Shares
COBALT
Common Stock
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission using a "shelf" registration process.
Under this shelf registration process, we may from time to time sell up to
500,000 shares of our common stock and Wisconsin United for Health Foundation,
Inc. (which we refer to as the "Foundation") may from time to time sell up to
6,500,000 shares of our common stock. This prospectus provides you with a
general description of the securities we may offer. Each time we or the
Foundation sells common stock, we will provide you with a prospectus supplement
that will contain more specific information. We may also add, update or change
in the prospectus supplement any of the information contained in this
prospectus. Please carefully read both this prospectus and any prospectus
supplement together with the additional information described below under
"Information Incorporated by Reference" and "Where You Can Find More
Information."
Our common stock is traded on the New York Stock Exchange under the
symbol "CBZ." On November 5, 2002, the closing sale price of our common stock
was $16.62 per share.
Investing in our common stock involves risks. Before buying any shares,
you should read the discussion of material risks of investing in our common
stock incorporated by reference herein or contained in any accompanying
prospectus supplement. See "Risk Factors," beginning on page 4.
The common stock may be sold directly to investors, through agents
designated from time to time or to or through underwriters or dealers. For
additional information on the methods of sale, you should refer to the section
entitled "Plan of Distribution." If any underwriters are involved in the sale of
any common stock to which this prospectus relates, the names of such
underwriters and any applicable commissions or discounts will be set forth in a
prospectus supplement. The net proceeds, if any, we expect to receive from such
sale will also be set forth in a prospectus supplement.
Our principal executive offices are located at 401 West Michigan
Street, Milwaukee, Wisconsin 53203, and our telephone number is (414) 226-6900.
-----------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
-----------------------
The date of this prospectus is , 2002.
TABLE OF CONTENTS
Page
FORWARD-LOOKING STATEMENTS...................................................2
COBALT CORPORATION...........................................................3
RISK FACTORS.................................................................4
USE OF PROCEEDS..............................................................4
SELLING SHAREHOLDER..........................................................4
PRICE RANGE OF COMMON STOCK..................................................5
DIVIDEND POLICY..............................................................5
PLAN OF DISTRIBUTION.........................................................6
LEGAL MATTERS................................................................7
EXPERTS .....................................................................8
INFORMATION INCORPORATED BY REFERENCE........................................8
WHERE YOU CAN FIND MORE INFORMATION..........................................9
------------------------
Unless the context otherwise requires, references in this prospectus to
"we," "us," "our" or "ours" refer collectively to Cobalt Corporation and its
subsidiaries.
No person has been authorized to give any information or to make any
representations other than those contained or incorporated by reference in this
prospectus or any applicable prospectus supplement and, if given or made, such
information or representations must not be relied upon as having been
authorized. This prospectus does not constitute an offer to sell or the
solicitation of an offer to buy any securities in any jurisdiction in which such
offer or solicitation is unlawful. Neither the delivery of this prospectus nor
any sale made hereunder shall, under any circumstances, create any implication
that the information contained herein is correct as of any time after the date
of such information.
FORWARD-LOOKING STATEMENTS
This prospectus contains and incorporates by reference forward-looking
statements that involve risks and uncertainties. We intend these forward-looking
statements to be covered by the safe harbor provisions for forward-looking
statements contained in the Private Securities Litigation Reform Act of 1995,
and we are including this statement for purposes of those safe harbor
provisions. These forward-looking statements are often accompanied by words such
as "believe," "anticipate," "plan," "expect," "estimate," "intend," "seek,"
"goal," "may," "will," "could" and similar expressions. These statements
include, without limitation, statements about our plans and expectations for
improving our capital position and operating results, our market opportunities,
our growth strategies, competition, expected activities and future acquisitions
and investments and the adequacy of our available cash resources. We caution
investors that matters subject to forward-looking statements involve risks and
uncertainties, including economic, regulatory, competitive and other factors
that may affect our business. These statements are not guarantees of future
performance.
Our actual results may differ from projections or estimates due to a
variety of important factors. Our results of operations and projections of
future earnings depend in large part on accurately predicting and effectively
managing our business. A variety of factors may in the future affect our
operating results, including:
o loss of existing customer relationships and an ongoing decline in
membership;
o competition;
o changes in health care practices;
o changes in federal or state laws and regulations or their
interpretations;
o medical cost inflation;
o provider contract changes;
o new technologies;
o changes in our management;
o government-imposed surcharges;
o taxes or assessments;
o major epidemics;
o disasters; and
o numerous other factors affecting the delivery and cost of health
care, such as major health care providers' inability to maintain
their operations.
Due to these factors and risks, no assurance can be given with respect
to our future premium levels or our ability to control our future medical costs.
2
COBALT CORPORATION
We are the leading managed care company in Wisconsin, offering a broad
portfolio of managed care and insurance products to employers, individuals and
government entities. We have an exclusive license to utilize the Blue Cross(R)
and Blue Shield(R) service marks in Wisconsin, giving us a unique position in
that market.
Our Blue Cross & Blue Shield United of Wisconsin subsidiary provides
underwritten products, including preferred provider organizations and indemnity
options, as well as self-funded, administrative services only programs. Our
health maintenance organizations (HMOs) are Compcare Health Services Insurance
Corporation, which we refer to as "CompcareBlue," Valley Health Plan, Inc., and
Unity Health Plans Insurance Corporation. Our CompcareBlue subsidiary operates
the oldest HMO in Wisconsin.
We offer the largest provider network in Wisconsin. All of our
customers, including HMO members, have the ability to access the leading
physicians and hospitals in their respective service areas, including Mayo
Health Systems, University Health Care and Aurora Health Care. We believe that
our ability to offer a full spectrum of products and a broad provider network to
meet the needs and objectives of a wide range of customers provides us with a
competitive advantage.
We offer a variety of specialty managed care products, including
dental, life and disability insurance. We are one of the largest providers of
dental HMO and dental indemnity coverage in Wisconsin. We also offer workers'
compensation insurance and a variety of specialty managed care services,
including cost containment, health care electronic data interchange and
receivables management services. These specialty products and services are
designed to complement our customers' employee benefit packages. We also process
Medicare claims as a Medicare Part A fiscal intermediary and a Regional Home
Health intermediary for providers in numerous states and several U.S.
territories and as a national intermediary for the Federally Qualified Health
Centers in all 50 states.
We market our medical and dental products through a salaried sales
force located throughout Wisconsin, as well as through independent agents and
brokers, and directly to customers via the internet. By integrating the
marketing of our medical products, we are able to offer a broad range of product
choices to health care consumers. We sell our specialty managed care products
and services through a variety of distribution channels to employer groups and
providers, principally in Wisconsin.
3
RISK FACTORS
Investing in our common stock involves risks. Before buying any shares,
you should read the discussion of the material risks of investing in our common
stock contained in our annual and other reports filed with the Securities and
Exchange Commission and incorporated by reference herein, as well as in any
accompanying prospectus supplement.
USE OF PROCEEDS
Unless otherwise stated in the applicable prospectus supplement, we
intend to use all or a portion of the net proceeds from the sale by us of common
stock offered by this prospectus and any accompanying prospectus supplement for
general corporate purposes. General corporate purposes may include the repayment
of outstanding indebtedness, the purchase of our common shares, capital
expenditures, mergers, acquisitions and other strategic investments. We have not
made specific allocations of the proceeds for such purposes at this time.
We will not receive any of the proceeds from the sale of common stock
by the Foundation, if any.
SELLING SHAREHOLDER
The following table sets forth information regarding the beneficial
ownership of our common stock by the Foundation as of November 5, 2002 and as
adjusted to give effect to the sale of all of the shares which may be offered
and sold from time to time under this prospectus. Each time the Foundation sells
shares, a prospectus supplement will provide specific information about the
Foundation's beneficial ownership of our common stock before and after such
sale.
Shares of Common Stock
Beneficially Owned
Shares of Common Stock Maximum After Sale of the
Beneficially Owned Prior to Number Maximum Number of
this Offering of Shares Shares Being Offerred
--------------------------------- Being -----------------------------
Name and Address Number Percent Offered Number Percent
- ---------------------------------- ------------------ ----------- -------------- ------------- -----------
Wisconsin United for Health
Foundation, Inc.
10 East Doty Street,
Suite 600
Madison, WI 53703 31,313,390(1) 75.4% 6,500,000 24,813,390 59.0%
(1) Based on the Schedule 13D filed by the Foundation pursuant to the Securities Exchange Act of 1934, as amended.
4
PRICE RANGE OF COMMON STOCK
Our common stock is traded on the New York Stock Exchange under the
symbol "CBZ". The following table sets forth the per share high and low sale
prices for our common stock as reported on the New York Stock Exchange for the
periods presented, along with the cash dividends paid per share for those
periods. Prior to March 31, 2001, we were named United Wisconsin Services, Inc.,
and our common stock traded on the New York Stock Exchange under the symbol
"UWZ."
Cash
High Low Dividends Paid
---- --- --------------
2000:
First Quarter............................... $ 6.31 $ 3.94 --
Second Quarter.............................. 5.81 4.81 --
Third Quarter............................... 6.00 4.63 --
Fourth Quarter.............................. 5.25 3.31 $ 0.05
2001:
First Quarter............................... $ 7.99 $ 3.38 --
Second Quarter.............................. 8.00 4.90 --
Third Quarter............................... 9.05 4.37 --
Fourth Quarter.............................. 6.95 3.99 --
2002:
First Quarter............................... $ 9.05 $ 5.33 --
Second Quarter.............................. 23.45 8.65 --
Third Quarter............................... 23.40 14.11 --
Fourth Quarter (through November 5, 2002)... 18.70 15.34 --
As of November 5, 2002, there were 197 shareholders of record of our
common stock. Based on information obtained from our transfer agent and from
participants in security position listings and otherwise, we have reason to
believe there are more than 1700 beneficial owners of shares of our common
stock.
DIVIDEND POLICY
We do not currently pay cash dividends and we do not plan to declare or
pay any dividends in the foreseeable future, but will instead retain cash for
working capital needs, for possible acquisitions, to reduce outstanding debt or
for other corporate purposes. Our ability to pay dividends to our shareholders
in the future will depend primarily upon the receipt of dividends from our
insurance subsidiaries. Currently, our insurance subsidiaries are prohibited
from paying dividends to us without the approval of the Office of the
Commissioner of Insurance of the State of Wisconsin.
5
PLAN OF DISTRIBUTION
We or the Foundation may sell the shares of common stock covered by
this prospectus through underwriters or dealers, through agents, or directly to
one or more purchasers. A prospectus supplement will describe the terms of any
offering of shares of the common stock, including:
o the name or names of the underwriters, if any;
o the purchase price of the common stock and the proceeds we will
receive from the sale;
o any over-allotment options under which underwriters may purchase
additional common stock from us or from the Foundation;
o any agency fees or underwriting discounts and other items
constituting agents' or underwriters' compensation;
o the public offering price, if applicable; and
o any discounts or concessions allowed or reallowed or paid to
dealers.
If underwriters are used in a sale, they will acquire the shares of
common stock for their own account and may resell them from time to time in one
or more transactions at a fixed public offering price or at varying prices
determined at the time of sale. The obligations of the underwriters to purchase
the common stock will be subject to the conditions set forth in the applicable
underwriting agreement. We or the Foundation may offer the common stock to the
public through underwriting syndicates represented by managing underwriters or
by underwriters without a syndicate. Subject to certain conditions, the
underwriters may be obligated to purchase all of the shares of common stock
offered by the prospectus supplement. Any public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may change from
time to time. We or the Foundation may use underwriters with whom we have a
material relationship. We or the Foundation will describe the nature of any such
relationship in the prospectus supplement, naming the underwriter.
We or the Foundation may sell the common stock directly or through
agents we or the Foundation may designate from time to time. We will name any
agent involved in the offering and sale of securities and we will describe any
commissions we will pay the agent in the prospectus supplement.
Unless the prospectus supplement states otherwise, our or the
Foundation's agent will act on a best-efforts basis for the period of its
appointment.
We or the Foundation may authorize agents or underwriters to solicit
offers by certain types of institutional investors to purchase shares of common
stock from us at the public offering price set forth in the prospectus
supplement pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. We will describe the conditions to
any such contracts and the commissions we must pay for solicitation of these
contracts in the prospectus supplement.
We or the Foundation may provide agents and underwriters with
indemnification against certain civil liabilities, including liabilities under
the Securities Act, or contribution with respect to payments that the agents or
underwriters may make with respect to such liabilities. Agents and underwriters
may engage in transactions with, or perform services for, us or the Foundation
in the ordinary course of business.
6
In connection with any underwritten offering covered by a supplement to
this prospectus, the underwriters may purchase and sell shares of our common
stock in the open market. These transactions may include stabilizing
transactions, short sales and purchases to cover positions created by short
sales. Stabilizing transactions consist of bids or purchases made for the
purpose of preventing or retarding a decline in the market price of our common
stock while the offering is in progress. These transactions may also include
short sales and purchases to cover positions created by short sales. Short sales
involve the sale by the underwriter of a greater number of shares than it is
required to purchase in the offering. Short sales may be either "covered short
sales" or "naked short sales." Covered short sales are sales made in an amount
not greater than the underwriter's over-allotment option to purchase additional
shares in this offering. An underwriter may close out any covered short position
by either exercising its over-allotment option or purchasing shares in the open
market. In determining the source of shares to close out the covered short
position, an underwriter will consider, among other things, the price of shares
available for purchase in the open market as compared to the price at which it
may purchase shares through the over-allotment option. Naked short sales are
sales in excess of the over-allotment option. An underwriter must close out any
naked short position by purchasing shares in the open market. A naked short
position is more likely to be created if an underwriter is concerned there may
be downward pressure on the price of shares in the open market after pricing
that could adversely affect investors who purchase our common stock in this
offering.
The underwriters, if any, also may impose a penalty bid. This occurs
when a particular underwriter repays to the underwriters a portion of the
underwriting discount received by it because a managing underwriter (if there is
one), on behalf of the underwriters, has repurchased shares sold by or for the
account of that underwriter in stabilizing or short covering transactions.
These activities by underwriters may stabilize, maintain or otherwise
affect the market price of our common stock. As a result, the price of our
common stock may be higher than the price that otherwise might exist in the open
market. If these activities are commenced, they may be discontinued by the
underwriters at any time. These transactions may be effected on the New York
Stock Exchange or otherwise.
In compliance with National Association of Securities Dealers, Inc., or
"NASD," guidelines, the maximum consideration or discount to be received by any
NASD member or independent broker dealer may not exceed 8% of the aggregate
amount of the securities offered pursuant to this prospectus and any applicable
prospectus supplement.
Robert W. Baird & Co. Incorporated has been retained by the Foundation
to provide financial advisory services and will be entitled, upon completion of
any sale by the Foundation of our common stock, to a fee equal to 1.25% of the
net proceeds to be received by the Foundation up to $100 million and 1% of the
net proceeds to be received by the Foundation between $100 million and $200
million, as well as reimbursement of expenses. The NASD has deemed this fee to
be underwriting compensation in connection with a sale by the Foundation of our
common stock in an underwritten offering in which Robert W. Baird & Co.,
Incorporated participates as an underwriter.
LEGAL MATTERS
The validity of our common stock offered by this prospectus will be
passed upon for us by Foley & Lardner, Milwaukee, Wisconsin.
7
EXPERTS
The consolidated financial statements of Cobalt Corporation appearing
in Cobalt Corporation's Annual Report (Form 10-K) for the year ended December
31, 2001, have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon included therein and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given on the authority of such firm as
experts in accounting and auditing.
INFORMATION INCORPORATED BY REFERENCE
We are "incorporating by reference" specified documents that we file
with the SEC, which means:
o incorporated documents are considered part of this prospectus;
o we are disclosing important information to you by referring you to
those documents; and
o information we file with the SEC will automatically update and
supersede information contained in this prospectus.
We incorporate by reference the documents listed below and any future
filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 after the date of this prospectus and before the
end of the offering of our common stock:
o Our Annual Report on Form 10-K for the year ended December 31, 2001,
as amended by our Form 10-K/A filed April 18, 2002;
o Our Quarterly Reports on Form 10-Q for the quarters ended March 31,
2002 and June 30, 2002;
o Our Current Report on Form 8-K dated March 26, 2002; our Current
Report on Form 8-K dated April 2, 2002, as amended by our Form 8-K/A
filed on May 28, 2002; our Current Report on Form 8-K dated July 9,
2002; and our Current Report on Form 8-K dated November 8, 2002; and
o The description of our common stock contained in our Registration
Statement on Form 10, filed with the SEC on May 29, 1998, as
amended, including any amendment or report filed for the purpose of
updating such information.
You may request a copy of any of these filings, including exhibits, at
no cost by writing to or calling Cobalt Corporation, Attn: Corporate Secretary,
401 West Michigan Street, Milwaukee, Wisconsin 53202, phone number (414)
226-6900.
8
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements, and
other information with the SEC. We have also filed a registration statement on
Form S-3, including exhibits, under the Securities Act of 1933 with respect to
the common stock offered by this prospectus. This prospectus is a part of the
registration statement, but does not contain all of the information included in
the registration statement or the exhibits. You may read and copy the
registration statement and any other document that we file at the SEC's public
reference rooms at 450 Fifth Street, N.W., Washington D.C., and at regional SEC
offices in New York, New York and Chicago, Illinois. You can call the SEC at
1-800-SEC-0330 for further information on the operation of the public reference
rooms. You can also find our public filings with the SEC on the Internet at a
web site maintained by the SEC located at http://www.sec.gov. Our common stock
is listed on the New York Stock Exchange and reports, proxy statements and other
information concerning us can be inspected at the New York Stock Exchange
located at 11 Wall Street, New York, New York 10005.
9
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses to be borne by
the Registrant in connection with the sale and distribution of the securities
being registered hereby.
Securities and Exchange Commission registration fee...... $10,645.32
Accounting fees and expenses............................. *
Legal fees and expenses.................................. *
NASD Fee................................................. *
Miscellaneous............................................ *
-------
Total................................................ $ *
=======
- ----------
* To be provided by amendment.
Item 15. Indemnification of Directors and Officers.
Under Cobalt's Amended and Restated Bylaws and Wisconsin law, Cobalt's
directors and officers are entitled to mandatory indemnification from Cobalt
against certain liabilities and expenses (a) to the extent such officers or
directors are successful in the defense of a proceeding, and (b) in proceedings
in which the director or officer is not successful in the defense thereof,
unless it is determined the director or officer breached or failed to perform
such person's duties to Cobalt and such breach or failure constituted: (i) a
willful failure to deal fairly with Cobalt or its shareholders in connection
with a matter in which the director or officer had a material conflict of
interest; (ii) a violation of criminal law, unless the director or officer had
reasonable cause to believe his or her conduct was lawful or had no reasonable
cause to believe his or her conduct was unlawful; (iii) a transaction from which
the director or officer derived an improper personal profit; or (iv) willful
misconduct. Wisconsin law specifically states that it is the public policy of
Wisconsin to require or permit indemnification, allowance of expenses and
insurance in connection with a proceeding involving securities regulation, as
described therein, to the extent required or permitted as described above.
Under Wisconsin law, unless its Amended and Restated Articles of
Incorporation provide otherwise, directors of Cobalt are not subject to personal
liability to Cobalt, its shareholders, or any person asserting rights on behalf
thereof for certain breaches or failures to perform any duty resulting solely
from their status as directors, unless the person asserting liability proves
that the breach or failure constituted: (i) a willful failure to deal fairly
with the corporation or its shareholders in connection with a matter in which
the director had a material conflict of interest, (ii) a violation of criminal
law, unless the director had reasonable cause to believe his or her conduct was
lawful or no reasonable cause to believe that his or her conduct was unlawful,
(iii) a transaction from which the director derived an improper personal profit,
or (iv) willful misconduct. Cobalt's Amended and Restated Articles of
Incorporation do not limit a director's immunity provided by Wisconsin law. The
above provisions pertain only to breaches of duty by directors as directors and
not in any other corporate capacity, such as officers. As a result of such
provisions, shareholders may be unable to recover monetary damages against
directors for actions taken by them which constitute negligence or gross
negligence or which are in violation of their fiduciary duties, although it may
be possible to obtain injunctive or other equity relief with respect to such
actions. If equitable remedies are found not to be available to shareholders in
any particular case, shareholders may not have any effective remedy against the
challenged conduct.
II-1
Item 16. Exhibits.
Exhibit Number Description
5.1 Opinion of Foley & Lardner (to be filed by amendment).
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Foley & Lardner (included in Exhibit 5.1 hereto).
24. Powers of Attorney (included on signature page hereof).
Item 17. 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. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective 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 (a)(i) and (a)(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 with or furnished to the
Commission by the registrant pursuant to Section 13 or 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 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.
II-2
(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 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 or controlling
persons of the registrant pursuant to the provisions set forth or described in
Item 15 of this registration statement, or otherwise, the registrant has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 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 Securities
Act of 1933 and will be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(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 of 1933 shall be
deemed to be part of this registration statement as of the time it was
declared effective; and
(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.
II-3
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Milwaukee, State of Wisconsin, November 8, 2002.
COBALT CORPORATION
By: /s/ Thomas R. Hefty
-------------------------------
Thomas R. Hefty
Chairman of the Board and
Chief Executive Officer
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. Each person whose signature appears below
constitutes and appoints Thomas R. Hefty, Stephen E. Bablitch, Gail L. Hanson,
and each of them individually, 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 any additional registration statement to be filed pursuant to
Rule 462(b) under the Securities Act of 1933, 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, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
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
any of them, or their or his or her substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Signature Title Date
/s/ Thomas R. Hefty Chairman of the Board, November 8, 2002
- ----------------------------- Chief Executive Officer and
Thomas R. Hefty Director (Principal Executive
Officer)
/s/ Gail L. Hanson Senior Vice President, November 8, 2002
- ----------------------------- Treasurer and Chief Financial
Gail L. Hanson Officer (Principal Accounting
and Financial Officer)
/s/ Richard A. Abdoo Director November 8, 2002
- -----------------------------
Richard A. Abdoo
/s/ Barry K. Allen Director November 8, 2002
- -----------------------------
Barry K. Allen
/s/ James L. Forbes Director November 8, 2002
- -----------------------------
James L. Forbes
/s/ Michael S. Joyce Director November 8, 2002
- -----------------------------
Michael S. Joyce
S-1
Signature Title Date
/s/ Dr. D. Keith Ness Director November 8, 2002
- -----------------------------
Dr. D. Keith Ness
/s/ Dr. William C. Rupp Director November 8, 2002
- -----------------------------
Dr. William C. Rupp
/s/ Janet D. Steiger Director November 5, 2002
- -----------------------------
Janet D. Steiger
/s/ Dr. Kenneth M. Viste, Jr. Director November 4, 2002
- -----------------------------
Dr. Kenneth M. Viste, Jr.
S-2
EXHIBIT INDEX
Exhibit
Number Description
5.1 Opinion of Foley & Lardner (to be filed by amendment).
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Foley & Lardner (included in Exhibit 5.1 hereto).
24. Powers of Attorney (included on signature page hereof).
E-1