VOTING TRUST AGREEMENT
VOTING TRUST AGREEMENT, dated as of February 11, 2000 (this
"Agreement"), among UICI, a Delaware corporation (the "UICI"), which is
concurrently herewith depositing shares of common stock, no par value (the
"Common Stock"), of XxxxxxXxxx.xxx, Inc., a Pennsylvania corporation
("HealthAxis"), in the Voting Trust created hereunder, and Xxxxxxx Xxxxxx,
Xxxxxx X. XxXxxxx, Xx. and Xxxxxx X. Xxxxxxx as Trustees (the "Trustees").
WHEREAS, UICI has entered into that certain Agreement and Plan of
Merger, dated as of January 26, 2000 (the "Merger Agreement"), by and among
HealthAxis, Inc. (f/k/a Provident American Corporation), a Pennsylvania
corporation (the "Company"), HealthAxis, and HealthAxis Acquisition Corp., a
Pennsylvania corporation ("Newco"), pursuant to which HealthAxis will be merged
with and into Newco (the "Merger") and each share of Common Stock will be
exchanged for 1.127 shares of common stock, $0.10 par value per share, of the
Company (the "Shares"); and
WHEREAS, the Trustees have consented to act as trustees under and in
accordance with the Voting Trust created hereunder.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Delivery of Stock to Trustees.
(a) Concurrently with the execution of this Agreement, UICI is
depositing with the Trustees a certificate or certificates representing
10,103,207 shares of Common Stock either endorsed to the Trustees or accompanied
by appropriate stock transfer powers duly executed in blank for the transfer
thereof to the Trustees. The Trustees shall cause the Common Stock represented
by such certificate to be registered in the names of the Trustees on the books
of HealthAxis and shall cause such Common Stock to be exchanged for the Shares
and registered in the names of the Trustees on the books of the Company.
(b) All certificates representing the Shares or the Common
Stock subject to this Agreement (the "Trust Securities") shall be registered in
the name of the Trustees and shall bear the following legend:
"This certificate has been issued pursuant to, and the shares of Common
Stock represented hereby are subject to, the terms of that certain
Voting Trust Agreement, dated February 11, 2000, among UICI, a Delaware
corporation, and Xxxxxxx Xxxxxx, Xxxxxx X. XxXxxxx, Xx. and Xxxxxx X.
Xxxxxxx as Trustees."
A similar legend shall be placed in the stock ledger of HealthAxis or
the Company, as the case may be, with respect to each certificate representing
the Trust Securities subject to this Agreement.
(c) Upon any transfer of Trust Securities in accordance with
this Agreement, the Common Stock or Shares, as the case may be, will be released
from this Voting Trust and no longer constitute Trust Securities. The Trustees
will remove the legend set forth in Section 1(b) from the stock ledger of
HealthAxis or the Company, as the case may be, and will issue a new certificate
representing the Common Stock or Shares, as the case may be, to the transferee
of the Common Stock or Shares, as the case may be.
2. Creation of Voting Trust.
(a) There is hereby created a voting trust (the "Voting
Trust") in respect of all of the Trust Securities. Upon receipt of the
certificate or certificates representing the Trust Securities deposited with the
Trustees hereunder, the Trustees shall deliver to UICI a Voting Trust
Certificate in the form attached hereto as Exhibit A, evidencing such Trust
Securities registered in UICI's name.
(b) The Voting Trust shall be known as the "UICI Voting
Trust."
3. Voting and Other Rights.
(a) The Trustees shall have the full and unqualified right and
power in their discretion, until the Trust Securities are no longer subject to
the provisions of this Agreement, (i) to vote the Trust Securities either in
person or by proxy for every purpose for which the Trust Securities may be voted
according to HealthAxis' or the Company's, as the case may be, Certificate of
Incorporation and the Pennsylvania Business Corporation Law of 1988, as amended,
and/or to give written consent in lieu of voting thereon to any corporate act of
HealthAxis or the Company, as the case may be, including, without limitation,
the election of directors by the holders of Common Stock or Shares, as the case
may be, any amendments of HealthAxis' or the Company's, as the case may be,
Certificate of Incorporation, the merger or consolidation of HealthAxis or the
Company, as the case may be, into or with any other corporation or corporations,
a share exchange of the Common Stock or Shares, as the case may be, the sale of
all or substantially all of the assets of HealthAxis or the Company, as the case
may be, and the liquidation or dissolution of HealthAxis or the Company, as the
case may be, (ii) to waive, with respect to the Trust Securities, notice of any
regular or special meeting of stockholders of HealthAxis or the Company, as the
case may be, (iii) to call meetings of stockholders, and (iv) to exercise all
UICI's rights and powers in respect to the Trust Securities.
(b) The Trustees shall not take any action under this
Agreement unless the action to be taken has been concurred in by a majority of
the Trustees. When there are less than three Trustees, concurrence of all the
Trustees shall be required for any action by them. The Trustees may act at a
meeting (which may be by telephone or similar means of communication), or in
writing approved by at least the minimum number of Trustees that would be
necessary to authorize or take such action.
(c) The Trustees in their discretion may appoint an agent or
agents to hold the certificates representing the Trust Securities, to act as
transfer agent with respect to the certificates, to keep suitable transfer and
other records and otherwise to act as agent, subject to the direction of the
Trustees.
4. Dividends, Etc. All dividends on and distributions in respect of any
of the Trust Securities (including dividends, distributions or other payments
made in shares of voting stock or other securities of HealthAxis or the Company,
as the case may be) shall, upon receipt by the Trustees, be promptly paid over
to UICI (less any income or other taxes which may be required by law to be
deducted); provided, that the Trustees may direct HealthAxis or the Company, as
the case may be, to make payment of dividends and distributions directly to
UICI.
5. Transfers.
(a) Subject to Sections 5(b), 5(c) and 5(d) of this Agreement,
UICI shall not have any right to, and the Trustees shall not, sell, pledge or
otherwise dispose of the Trust Securities, or any beneficial interest in any of
the Trust Securities, so long as the Voting Trust is in existence in accordance
with the terms of Section 6 of this Agreement.
(b) UICI may cause the Trustees to sell Trust Securities so
long as, giving effect to such sale, UICI will not beneficially own a number of
Common Stock or Shares, as the case may be, which are not deposited with the
Trustees hereunder, in excess of the number of Trust Securities held by the
Trustees after such sale.
(c) Upon the sale of any of the Common Stock or Shares, as the
case may be, beneficially owned by UICI which are not deposited with the
Trustees hereunder, UICI shall have the right, but not the obligation, to
require the Trustees to sell an equal number of Trust Securities. The proceeds
from the sale of such Trust Securities shall be distributed to UICI by the
Trustees.
(d) In connection with any tender offer for the Trust
Securities, UICI shall have the right to require the Trustees to tender all of
the Trust Securities held by the Voting Trust so long as UICI, concurrently with
such tender, tenders all of the Common Stock or Shares, as the case may be,
beneficially owned by UICI which are not deposited with the Trustees hereunder.
The proceeds from the tender of such Trust Securities shall be distributed to
UICI by the Trustees.
The term "beneficially owned" shall have the meaning ascribed
thereto in Rule 13d-3 under the Securities Exchange Act of 1934. For the
avoidance of doubt, UICI shall be deemed to beneficially own the Trust
Securities.
6. Termination.
(a) This Agreement shall terminate and be of no further force
and effect upon the earliest to occur of (i) February 11, 2020, (ii) such time
as UICI beneficially owns less than 20% of the issued and outstanding Common
Stock or Shares, as the case may, be on a fully diluted basis, (iii) such time
as any person or persons acting as a group (within the meaning of Rule 13d-5)
owns 51% or more of the issued and outstanding Common Stock or Shares, as the
case may, on a fully diluted basis and (iv) July 31, 2000, if the transactions
contemplated by the Merger Agreement have not been consummated or earlier if the
Merger Agreement is otherwise terminated.
(b) Upon any filing of bankruptcy, dissolution or total or
partial liquidation of HealthAxis or the Company, as the case may be, whether
voluntary or involuntary, the Trustees shall direct that all moneys, securities,
rights or property attributable to the Trust Securities be delivered to UICI.
7. No Compensation. The Trustees shall not be entitled to any
compensation for services rendered as trustees in connection with their duties
under this Agreement.
8. Successor Trustee.
(a) The number of Trustees of the Voting Trust shall be three
or such lesser number as determined by the Trustees; provided, however, that the
number of Trustees of the Voting Trust shall not be less than two.
(b) Each of the members of the Board of Directors (the "Board
of Directors") of HealthAxis or the Company, as the case may be, who are not
affiliated with UICI, shall be eligible to serve as a Trustee (an "Eligible
Person"). The term "affiliated" shall have the meaning ascribed thereto in Rule
405 under the Securities Act of 1933.
(c) Any Trustee may resign at any time, for any reason, by
mailing to HealthAxis or the Company, as the case may be, the other Trustees and
UICI a written resignation to take effect 20 days thereafter or upon the prior
acceptance thereof. If any Trustee ceases to be an Eligible Person for any
reason, such event shall be deemed to be a resignation of such Trustee hereunder
effective immediately upon such event.
(d) Upon the resignation, death or permanent disability of a
Trustee, the continuing Trustees may unanimously select any Eligible Person to
serve as a Trustee.
9. Procedures to Follow on Mergers, Consolidation, Shares, etc. The
Trustees' right to vote (or consent thereto in lieu of voting) any of the Trust
Securities on any merger, consolidation, share exchange or sale of all or
substantially all of the assets of HealthAxis or the Company, as the case may,
or to sell the Trust Securities is subject to satisfaction of the following
conditions:
(a) The Trustees must give UICI notice, specifying full
details of the proposed transaction, including the identity of the other parties
thereto and the consideration to be received thereon, of such proposed vote,
consent or proposed sale at least 20 days before taking action thereon.
(b) The Trustees shall not, except with the consent of UICI,
directly or indirectly, have any interest as the purchaser of the Trust
Securities or in any other party (other than HealthAxis or the Company, as the
case may) to a transaction to which this Section 9 is subject or receive any
benefit from such transaction that is not available to all stockholders pro
rata. As used in this Section 9(b), "interest" means any direct or indirect
interest, whether as owner, shareholder, partner, employee, officer, director or
consultant.
(c) The Trustees shall not vote on (or consent to) any
transaction nor shall the Trustees sell the Trust Securities, unless HealthAxis
or the Company, as the case may be, has received the opinion of a nationally
recognized investment banking firm that the terms of the transaction or sale are
fair to the shareholders of HealthAxis or the Company, as the case may be.
(d) Unless consented to by UICI, the consideration to be
received by UICI on account of its Common Stock or Shares, as the case may, in
any merger, consolidation, share exchange, sale of assets or sale of Trust
Securities subject to this Agreement shall consist entirely of either or both
(x) cash, or (y) securities of a corporation which are either listed on a
national securities exchange or actively traded in an over-the-counter market
and, for which UICI shall have the agreement of the issuing corporation to
register (at such corporation's expense (except for expenses normally assumed by
the holder of registration rights, such as attorneys' fees) and within a
reasonable time) such securities under the Securities Exchange Act of 1933
and/or applicable state securities laws, which allows UICI to sell such
securities. Any such cash or securities received by the Trustees shall promptly
be distributed to UICI.
10. Amendments. This Agreement may be amended from time to time by a
written instrument executed by UICI and a majority of the Trustees.
11. Exculpation and Indemnification. The Trustees hereby accept the
trust created hereby, but assume no responsibility for the management of
HealthAxis or the Company, as the case may be, or for any action taken by any of
them, by any person they have elected as a director of Newco, HealthAxis or the
Company, as the case may be, or UICI or by HealthAxis or the Company, as the
case may be, pursuant to any vote cast or consent given by the Trustees. The
Trustees, whether or not acting upon the advice of counsel, shall incur no
liability because of any error of law or fact, mistake of judgment or any matter
or thing done or omitted under this Agreement, except for their own individual
malfeasance. The Trustees may in their discretion consult with counsel, who may
be counsel for HealthAxis or the Company, as the case may be, and anything done
or suffered in good faith by the Trustees in accordance with the opinion of
counsel shall be conclusive in favor of the Trustees against HealthAxis or the
Company, as the case may be, UICI and any other interested party. The Trustees
shall be indemnified by HealthAxis or the Company, as the case may be, against
any liability or expense, including legal expense, incurred them in carrying out
their duties; except that they shall not be indemnified for their own individual
malfeasance, where such malfeasance is the result of gross negligence or bad
faith, as defined by a non-appealable order of a court of competent
jurisdiction.
12. Conflicts of Interest. Any Trustee may be a creditor or shareholder
of HealthAxis or the Company, as the case may be, and may act as an officer or
employee of HealthAxis or the Company, as the case may be, and receive
compensation therefor. In addition, any Trustee and any firm of which he may be
a member or equity owner may contract with HealthAxis or the Company, as the
case may be, or buy or become pecuniarily interested in any matter or
transaction to which the corporation may be a party or in which it may be in any
way concerned, as fully as if he were not the Trustee.
13. Successors. This Agreement shall inure to the benefit of and be
binding upon the Trustees and UICI and its legal representatives, successors and
assigns.
14. Construction. The Trustees are authorized and empowered to construe
this Agreement, and their construction of the same in good faith shall be final,
conclusive and binding upon them, UICI and any other interested party.
15. Governing Law. This Agreement shall be construed in accordance with
the internal law (and not the law of conflicts) of the Commonwealth of
Pennsylvania.
16. Severability. In case any one or more of (a) the provisions
contained in this Voting Trust Agreement or (b) the deposits of the Trust
Securities by UICI with the Trustees of the Voting Trust, should be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions and deposits shall not in any way be
affected or impaired thereby.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
* * * * * * *
IN WITNESS WHEREOF, the undersigned Shareholder and the Trustees have
executed this Voting Trust Agreement as of the date first above written.
TRUSTEES
/s/ Xxxxxxx Xxxxxx
----------------------------
Xxxxxxx Xxxxxx
/s/ Xxxxxx X. XxXxxxx, Xx.
----------------------------
Xxxxxx X. XxXxxxx, Xx.
/s/ Xxxxxx X. Xxxxxxx
----------------------------
Xxxxxx X. Xxxxxxx
UICI
By: /s/ Xxxxx X. Xxxx
------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President
and General Counsel
Acknowledged and accepted:
HEALTHAXIS, INC.
By: /s/ Xxxxxxx X. Xxxxxx III
---------------------------
Name: Xxxxxxx X. Xxxxxx III
Title: Chief Financial Officer
XXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
EXHIBIT A
VOTING TRUST CERTIFICATE
No._______________ ________ Shares
This certifies that UICI, a Delaware corporation ("UICI"), has
deposited or caused to be deposited _____ shares of the Common Stock of
[XxxxxxXxxx.xxx, Inc./HealthAxis, Inc.], a Pennsylvania corporation
("Corporation"), with the Trustees under a Voting Trust Agreement, dated as of
February 11, 2000 (the "Agreement"), among UICI and the Trustees. In accordance
with the Agreement, the Trustees shall possess and be entitled to exercise the
rights and powers of ownership pertaining to such shares, including the right to
vote and to sell the same as stated in the Agreement.
This certificate shall be transferable only on the books and records of
the Trust on surrender hereof by UICI in person or by attorney duly authorized
and, until so transferred, the Trustees may treat UICI as the owner of this
certificate for all purposes whatsoever.
This certificate is issued pursuant to, and the rights of UICI are
subject to, and limited by the terms and conditions of, the Agreement. UICI, by
the acceptance hereof, assents to and agrees to be bound by, all the terms and
provisions of the Agreement. Copies of the Agreement are on file at the
registered office of the Corporation and at the offices of the Trustees.
IN WITNESS WHEREOF, this certificate has been duly executed on behalf
of the Trustees this ___ day of __________, 2000.
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_____________________, Trustee
ASSIGNMENT
FOR VALUE RECEIVED, ____________________________ hereby assigns the
within certificate, and all rights and interests represented thereby, to
_____________________ and appoints ________________________ attorney to transfer
this certificate on the books of the Trustees mentioned therein, with full power
of substitution.
Dated:
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