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EXHIBIT 99.2
AMENDED AND RESTATED
VOTING TRUST AGREEMENT
This Amended and Restated Voting Trust Agreement ("Agreement") is made
and entered into as of the 4th day of August, 1997, by and between the
California HealthCare Foundation (formerly Western Health Partnerships, the
"Beneficiary") and Wilmington Trust Company, a Delaware corporation, as trustee
(hereinafter, with any successor trustee, referred to as "Trustee").
WITNESSETH:
WHEREAS, pursuant to an Agreement and Plan of Reorganization dated
July 22, 1997 (the "Reorganization Agreement") among WellPoint Health Networks
Inc., a Delaware corporation (the "Company" or "WellPoint Delaware"), WellPoint
Health Networks Inc., a California corporation, and WLP Acquisition Corp., a
wholly owned subsidiary of WellPoint Delaware ("Merger Sub"), Merger Sub was
merged into WellPoint California, the capital stock of WellPoint California was
converted into capital stock of WellPoint Delaware and the stockholders of
WellPoint California became stockholders of WellPoint Delaware and the
outstanding stock of Merger Sub was converted into stock of WellPoint
California and thereby WellPoint California became a wholly owned subsidiary of
WellPoint Delaware (the "Reorganization");
WHEREAS, as a result of the Reorganization, the parties hereto desire
to enter into this Agreement which amends and restates the Voting Trust
Agreement dated May 20, 1996 by and between the Beneficiary and Wilmington
Trust Company (the "Voting Trust Agreement") and sets forth the terms of the
voting trust established by this Agreement (the "Voting Trust");
WHEREAS, as of the date hereof, the Foundation, pursuant to the
Reorganization, owns approximately 43.0% of the outstanding equity securities
of the Company, representing approximately 43.0% of the voting power of the
outstanding stock of the Company;
WHEREAS, the Beneficiary wishes for its investment in the Company to
be as valuable as possible so long as such investment is maintained and
believes that the Company's primary license to use the "Blue Cross" name and
related rights (the "Blue Cross marks") contributes substantially to the
Company's value and its future prospects;
WHEREAS, the Blue Cross and Blue Shield Association ("BCBSA") has
conditioned the Company's license to continue to use the Blue Cross marks upon
the Company maintaining certain Basic Protections (as defined in the License
Addendum between the Company and BCBSA) which are intended by the BCBSA to
enable the Company to remain independent of the Beneficiary and any other
stockholder who may in the future acquire Capital Stock (as defined below) in
the Company in excess of the Ownership Limit (as defined below); and
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WHEREAS, the Beneficiary has agreed to be bound by:
(i) a requirement that the Beneficiary make such
deposits into the voting trust established by this Agreement
(the "Voting Trust") as may be necessary to maintain the
shares of Capital Stock Beneficially Owned (as defined below)
by the Beneficiary outside the Voting Trust at a level which
does not exceed 50% of the voting power of the Company's
outstanding Capital Stock at all times from May 20, 1996 to
but not including May 20, 1999;
(ii) a requirement that the Beneficiary make such
additional deposits into the Voting Trust as may be necessary
to maintain the number of shares of Capital Stock Beneficially
Owned by the Beneficiary outside the Voting Trust at a level
which does not exceed 20% of the voting power of the Company's
outstanding Capital Stock from time to time from and including
May 20, 1999, to but not including May 20, 2001; and
(iii) a requirement that the Beneficiary make such
additional deposits into the Voting Trust as may be necessary
to prevent the Beneficiary from having Beneficial Ownership
outside the Voting Trust of any shares of Capital Stock in
excess of the Ownership Limit at any time on or after May 20,
2001.
The requirements for contributions into this Voting Trust described in
(i), (ii) and (iii) above of the preceding recital are herein called the
"Contributions Timetable."
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree that the Voting Trust Agreement shall be amended and restated as
of the Effective Date as follows:
1. DEPOSIT OF STOCK AND ISSUANCE OF VOTING TRUST CERTIFICATES.
1.1 DELIVERY OF STOCK CERTIFICATES. The Beneficiary shall make
such contributions of VA Shares (as defined below) which the Beneficiary may
Beneficially Own such that the number of shares Beneficially Owned by the
Beneficiary outside of the Voting Trust shall never exceed the number permitted
by the Contributions Timetable. Every certificate delivered by the Beneficiary
to the Trustee shall be duly endorsed for transfer or accompanied by duly
executed instruments of transfer sufficient to convey to the Trustee record
ownership of such shares and the power to vote such shares specified in this
Agreement. The Beneficiary shall pay any taxes and costs imposed upon such
transfers to the Trustee. Immediately upon each receipt of certificates
pursuant to this paragraph, the Trustee shall
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cause the certificates to be surrendered to the Company's transfer agent and
canceled and new certificates therefor to be issued to the Trustee.
1.2 DELIVERY OF VOTING TRUST CERTIFICATE. The Trustee shall issue
and deliver one or more Voting Trust Certificates, in the form attached as
Exhibit "A" hereto (a "Certificate"), to the Beneficiary in respect of the
shares deposited with and held by the Trustee for the benefit of the
Beneficiary under this Agreement. The Trustee shall sign these certificate(s).
1.3 CERTIFICATE BOOK AND INSPECTION OF AGREEMENT. The Trustee
shall keep at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000- 001 correct
books of account of all the Trustee's business and transactions relating to the
Voting Trust, and a book (the "Certificate Book") setting forth the number of
shares represented by the Certificate(s) held by the Beneficiary, and the date
of issuance of such Certificate(s). A duplicate of this Agreement and any
extension thereof shall be filed with the secretary of the Company and shall be
open to inspection by a stockholder, a holder of a Certificate or the agent of
either, upon the same terms as the record of stockholders of the Company is
open to inspection.
1.4 LOST CERTIFICATE. If a Certificate shall be lost, stolen,
mutilated or destroyed, the Trustee, in its discretion, may issue a duplicate
of such Certificate upon receipt of evidence of such fact satisfactory to the
Trustee, indemnity satisfactory to it, and the existing Certificate, if
mutilated.
1.5 WITHDRAWAL OF SHARES FROM TRUST. The Beneficiary shall be
entitled at any time to withdraw shares from the Voting Trust: (i) to the
extent that after giving effect to such withdrawal, the Beneficiary would not
Beneficially Own shares outside the Voting Trust in excess of the number
required for the Beneficiary to be in compliance with the Contributions
Timetable or (ii) to enable the Beneficiary to sell, assign or transfer its
entire Beneficial Ownership interest in each of the shares withdrawn promptly
after such withdrawal. Any share withdrawn in accordance with (i) or (ii)
above shall cease upon withdrawal to be subject to the terms and conditions
hereof.
1.6 PLEDGE, ENCUMBER OR GRANT OPTIONS. The Beneficiary shall be
entitled at any time to pledge, encumber or grant any option in any shares
subject to the Voting Trust hereunder, provided that such shares remain subject
to the provisions of this Agreement, so long as the Beneficiary or any
affiliate of the Beneficiary shall retain any interest therein.
2. TRUSTEE'S POWERS AND DUTIES.
2.1 LIMITS ON TRUSTEE'S POWERS. The Trustee shall have only the
powers set forth in this Agreement. It is expressly understood and agreed by
the parties hereto that under no circumstances shall the Trustee be personally
liable for the payment of any indebtedness or expenses of this Agreement except
as set forth in Section 5.2 of this Agreement, or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the Trustee under this Agreement or the other related agreement
or document, except as set forth in Section 5.6 of this Agreement.
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2.2 EXECUTION BY TRUSTEE. The Trustee shall execute all documents
as follows:
By: Wilmington Trust Company, not in its individual
capacity, but solely as Trustee
By:
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2.3 VOTING. With respect to all shares held in the Voting Trust,
the Beneficiary shall retain the entire economic and beneficial ownership
rights therein, including without limitation the right to receive dividends and
distributions on the shares and the right to direct the Trustee in any order
whatsoever to sell, assign, transfer, encumber or grant any option therein to
or in favor of any person other than the Beneficiary or an affiliate of the
Beneficiary or agree to do any such thing, except that the Trustee shall have
the exclusive and absolute right in respect of such shares to vote, assent or
consent such shares at all times during the term of this Agreement, including
without limitation the right to vote at any election of directors and in favor
of or in opposition to any resolution, any dissolution, liquidation, merger or
consolidation of the Company, any sale of all or substantially all of the
Company's assets, any issuance or authorization of securities, or any action of
any character whatsoever which may be presented at any meeting or require the
consent of stockholders of the Company. In exercising the Trustee's powers and
duties hereunder, the Trustee shall at all times vote, assent or consent in
respect of any action as follows, subject to the following paragraph: (i) if
the matter concerned is the election of directors, then the Trustee shall vote,
assent or consent the whole number of shares held by the Voting Trust in favor
of each nominee to the Board of Directors of the Company who has been nominated
by the Nominating Committee, the remaining BCC Designees, or the remaining
WellPoint Designees pursuant to Article IV, Section 2 of the bylaws of the
Company in effect as of the effective time of the Reorganization (the "Bylaws")
or any successor provision thereto, and, with respect to every Board position
for which no nominee is presented in accordance with the preceding provisions
in this clause (i), shall vote for the nominee selected by a majority of the
incumbent members of the Board of Directors of the Company and vote against any
candidate for the Board of Directors of the Company for whom no competing
candidate has been nominated in one of the methods prescribed in this clause
(i); (ii) where the matter under state law or the Restated Certificate of
Incorporation or the Bylaws requires at least an absolute majority of all
outstanding shares of common stock of the Company in order to be effected, then
the Trustee shall vote, assent or consent all of such shares in favor of or in
opposition to such matter as the majority of all Nontrust Votes (as defined
below) are cast; and (iii) on all other matters, the Trustee shall at all times
vote, assent or consent all of such shares in the identical proportions in
favor of or in opposition to such matters as Nontrust Votes are cast. If any
calculation of votes under the preceding sentence would require a fractional
vote, the Trustee shall vote the next lower number of whole shares.
With respect to (i), (ii) and (iii), the Trustee, unless such action
is initiated by or with the consent of the Board of Directors of the Company,
shall (a) vote against removal of any director of the Company, except in the
case of fraudulent or dishonest acts or gross abuse of authority or discretion
with reference to the Company (which acts or gross abuse shall have been
determined by a majority of those holders of Nontrust Votes entitled to vote at
a duly
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held meeting of the stockholders of the Company at which a quorum is present),
(b) vote against adoption of new bylaws or certificate of incorporation of the
Company or any alteration, amendment, change or addition to or repeal of the
Bylaws or Restated Certificate of Incorporation, (c) not nominate any candidate
to fill any vacancy on the Board of Directors of the Company, (d) not call any
special meeting of the stockholders of the Company, and (e) not take any action
by voting shares held by the Voting Trust that would be inconsistent with or
would have the effect, directly or indirectly, of defeating or subverting the
board nomination procedures identified in clause (i) above. Before voting,
assenting or consenting, the Trustee shall at all times be entitled to receive
(x) any proxy or other written materials identifying any action on which the
Trustee's vote, assent or consent is requested and whether or not any action is
initiated by or with the consent of the Board of Directors of the Company and
(y) a certificate of the Secretary or other authorized officer of the Company
tabulating any votes cast at a meeting before the Trustee shall have voted and
identifying the number and percentage of votes cast by Nontrust Votes. The
Trustee shall use all reasonable commercial efforts to ensure, with respect to
the shares held in the Voting Trust hereunder, that such shares are counted as
being present for the purposes of any quorum required for stockholder action of
the Company and to vote, assent or consent as set forth above so long as the
Trustee has reasonable notice of the time to vote, assent or consent. For
purposes of this Agreement, Nontrust Votes shall mean the votes cast by
stockholders other than the Trust.
2.4 SALES. The Trustee shall have no authority to sell
or otherwise dispose of or to pledge, encumber or hypothecate, any of the stock
deposited pursuant to the provisions of this Agreement, unless directed to do
so by the Beneficiary. The Beneficiary shall have the right to direct the
Trustee to sell or otherwise dispose of or to pledge, encumber or hypothecate
all or any part of the shares held by the Voting Trust.
3. DIVIDENDS AND DISTRIBUTIONS.
3.1 CASH. The Beneficiary shall be entitled to receive payments
equal to the amount of cash dividends, if any, collected or received by the
Trustee or its successor upon the number of shares in respect of which any
Certificate was issued, subject to deduction in respect of expenses, charges or
fees pursuant to Section 5.2 or 5.3 below. The Trustee shall arrange with the
Company for the direct payment by the Company of such cash dividends to the
Beneficiary.
3.2 STOCK. In case the Trustee shall receive, as a dividend or
other distribution upon any shares of stock held by the Trustee under this
Agreement, any shares of stock of the Company, the Trustee shall hold the same
and said shares shall be subject to all of the terms and conditions of this
Agreement to the same extent as if originally deposited hereunder. The Trustee
shall issue Certificate(s) in respect of such additional shares to the
Beneficiary.
3.3 OTHER DISTRIBUTIONS. If at any time during the continuation
of this Agreement the Trustee shall receive or collect any monies through a
distribution by the Company to its stockholders, other than in payment of cash
dividends, or shall receive any property (other than shares of stock or
securities convertible into voting stock of the Company) through a distribution
by the Company to its stockholders, the Trustee shall distribute the same to
the
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Beneficiary, subject to deduction in respect of expenses, charges or fees
pursuant to Section 5.2 or 5.3 below.
4. RIGHTS TO SUBSCRIBE.
In case any securities of the Company shall be offered for
subscription to the holders of stock held by the Trustee under this Agreement,
the Trustee, promptly upon receipt of notice of such offer, shall mail a copy
thereof to the Beneficiary. Upon receipt by the Trustee, two (2) days (or any
shorter time if this is feasible) prior to the last date fixed by the Company
for subscription, of a request from the Beneficiary of any Certificate to
subscribe in its behalf, accompanied by the sum of money (in immediately
available funds) required to be paid for such securities, the Trustee shall
make such subscription and payment on behalf of the Beneficiary, and upon
receiving from the Company the certificates for the securities so subscribed
for, the Trustee shall deliver the same to the Beneficiary, unless such
securities be voting stock or securities convertible into voting stock, in
which case the Trustee shall issue to the Beneficiary a Certificate in respect
thereof, and such securities shall be held by the Trustee for the benefit of
the Beneficiary subject to the terms of this Agreement.
5. THE TRUSTEE.
5.1 USE OF PROXIES. The Trustee may vote, assent or consent with
respect to all shares held in the Voting Trust in person or by such person or
persons as it may from time to time select as its proxy provided that the
Trustee shall at all times do so in conformity with the provisions of Section
2.3 hereof.
5.2 EXPENSES. The Trustee is expressly authorized to incur and
pay such reasonable expenses and charges, to employ and pay such agents,
attorneys and counsel, and to incur and pay such other charges and expenses as
the Trustee may deem reasonably necessary and proper for administering this
Agreement. The Beneficiary agrees to reimburse the Trustee for any such
expenses and charges, and any such expenses or charges may be deducted from the
cash dividends or other monies received by the Trustee on the shares deposited
hereunder, to the extent unreimbursed.
5.3 COMPENSATION. The Trustee shall be entitled to a fee for its
services as Trustee hereunder as provided in a separate fee agreement between
the parties hereto and such fee may be deducted from the cash dividends or
monies received by Trustee on the shares deposited hereunder, to the extent
otherwise unpaid by the Beneficiary.
5.4 SUCCESSOR TRUSTEE. The Trustee may resign after giving thirty
(30) days' advance written notice of its resignation to the Beneficiary. The
Beneficiary may in addition terminate the Trustee after giving thirty (30)
days' advance written notice thereof to the Trustee provided that such
termination of the Trustee shall not become effective until a Successor Trustee
(as defined below) becomes bound by this Agreement. If the Trustee shall
resign or be so terminated by the Beneficiary, the Trustee shall be replaced by
a reasonably competent alternate (who is an institution duly authorized to act
as such a trustee in the State of Delaware) (the "Successor Trustee"). The
Successor Trustee shall be designated by the
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Trustee and approved by the Beneficiary. The Beneficiary shall not
unreasonably withhold its approval of any qualified Successor Trustee. The
Successor Trustee shall enjoy all the rights, powers, interests and immunities
of the Trustee originally designated and shall agree in writing to be bound by
this Agreement.
5.5 INTERESTS OF TRUSTEE. The Trustee and any firm, corporation,
trust or association of which it may be a member, trustee, stockholder, agent
or affiliate may contract with the Company or any affiliate and may be or
become pecuniarily interested in any matter to which the Company or any
affiliate may be a party or in which it may be concerned, as fully and freely
as though the Trustee were not the Trustee hereunder. Directors and officers
of the Trustee may act as directors and/or officers of the Company or any
affiliate.
5.6 TRUSTEE'S LIABILITY. The Trustee shall not be liable for any
act or omission undertaken in connection with its powers and duties under this
Agreement, except for any willful misconduct or gross negligence by Trustee.
No Successor Trustee shall be liable for actions or omissions of the Trustee or
any other Successor Trustee. The Trustee shall not be liable in acting on any
notice, request, consent, certificate, instruction, or other paper or document
or signature reasonably believed to be genuine and to have been signed by the
proper party. The Trustee may consult with legal counsel (reasonably competent
for the purpose) and any act or omission undertaken by it in good faith in
accordance with the opinion of such legal counsel shall not result in any
liability of the Trustee. The Beneficiary covenants and agrees to indemnify
and hold harmless the Trustee and its affiliates, directors, officers,
employees, agents and advisors (each an "Indemnified Party"), without
duplication, from and against any and all claims, damages, losses, liability,
obligations, actions, suits, costs, disbursements and expenses (including
without limitation reasonable fees and expenses of counsel) incurred by any
Indemnified Party, in any way relating to or arising out of or in connection
with or by reason of the preparation for a defense of any investigation,
litigation or proceeding arising out of this Agreement or the shares of the
Beneficiary held pursuant to this Agreement, the administration of this
Agreement or the action or inaction of the Trustee hereunder; except to the
extent such claim, damage, loss, liability, obligation, action, suit, cost,
disbursement or expense results from such Indemnified Parties' gross negligence
or willful misconduct. The indemnity set forth in this Section 5.6 shall be in
addition to any other obligation or liabilities of the Beneficiary hereunder or
at common law or otherwise and shall survive the termination of this Agreement.
Notwithstanding anything contained herein to the contrary, the Trustee
shall not be required to take any action in any jurisdiction other than in the
State of Delaware if the taking of such action will (i) require the consent or
approval or authorization or order of or the giving of notice to, or the
registration with or the taking of any action in respect of, any state or other
governmental authority or agency of any jurisdiction other than the State of
Delaware; (ii) result in any fee, tax or other governmental charge under the
laws of any jurisdiction or any political subdivisions thereof in existence on
the date hereof other than the State of Delaware becoming payable by the
Trustee; or (iii) subject the Trustee to personal jurisdiction in any
jurisdiction other than the State of Delaware for causes of action arising from
acts unrelated to the consummation of the transactions by the Trustee
contemplated hereby.
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6. TERMINATION.
6.1 TERM. This Agreement shall terminate upon written notice by
the Beneficiary to the Trustee of such termination (a) if the Company no longer
licenses the Blue Cross marks from BCBSA, or (b) if the Beneficiary and its
affiliates cease to Beneficially Own Capital Stock in excess of the Ownership
Limit. Except as otherwise provided herein, the trust created by this Agreement
is hereby expressly declared to be and shall be irrevocable.
6.2 DELIVERY OF SHARE CERTIFICATE(S). As soon as practicable
after the termination of this Agreement, the Trustee shall deliver to the
Beneficiary, certificate(s) representing the number of shares beneficially
owned by the Beneficiary at the date of termination, upon the surrender of such
Certificate(s) properly endorsed and upon payment by the Beneficiary of any and
all taxes and other expenses relating to the transfer or delivery of such
certificates.
7. MISCELLANEOUS.
7.1 MERGER. If the Company shall merge into or consolidate with
another corporation or corporations, or if all or substantially all of the
assets of the Company are transferred to another corporation, the shares of
which are issued to stockholders of the Company in connection with such
transfer, then the terms "WellPoint Health Networks Inc." or the "Company"
shall be construed, so long as the "Blue Cross" name and xxxx continues to be
licensed by such entity from BCBSA, to include such successor corporation and
the Trustee shall receive and hold under this Agreement any shares of such
successor corporation received by it on account of its ownership as Trustee of
shares held by it hereunder prior to such merger, consolidation or transfer.
Certificates issued and outstanding at the time of such merger, consolidation
or transfer may remain outstanding, but the Trustee may, in its discretion,
substitute new Certificates in appropriate form.
7.2 SUCCESSORS. This Agreement shall bind and inure to the
benefit of the Trustee and each and all of its respective heirs, executors,
administrators, successors and assigns. Notwithstanding any provision of this
Agreement, the provisions of this Agreement shall not be binding on any offeree
or purchaser from the Beneficiary (other than such a person who is an affiliate
of the Beneficiary and except that any and all shares sold in violation of
paragraph 12 of that certain Amended and Restated Registration Rights Agreement
dated as of August 1, 1997 between the Company and the Beneficiary shall remain
subject to this Agreement). In case at any time the Trustee shall resign and
no successor Trustee shall have been appointed within thirty days after notice
of such resignation has been filed and mailed as required by Section 7.3, the
resigning Trustee may forthwith apply to a court of competent jurisdiction for
the appointment of a successor Trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and appropriate, appoint a successor
Trustee.
7.3 NOTICES. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made as of the date delivered or mailed if delivered personally or mailed by
registered or certified mail (postage
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prepaid, return receipt requested) to the parties at the following addresses
(or at such other address for a party as shall be specified by like changes of
address which shall be effective upon receipt) or sent by electronic
transmission, with confirmation received, to the telecopy number specified
below:
(a) If to the Beneficiary:
California HealthCare Foundation
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Vice President and Secretary
With a copy to:
Xxxxxx, Xxxxxx & Xxxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Esq.
Xxxxxx, Xxxx & Xxxxxx LLP
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: E. Xxxxx Xxxx, Esq.
(b) If to the Trustee:
Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Administration
With a copy to:
Xxxxxxxx, Xxxxxx & Finger P.A.
One Xxxxxx Xxxxxx
Xxxx Xxxxxx Xxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
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7.4 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without
reference to conflicts of laws principles.
7.5 ATTORNEYS' FEES. In the event of any suit or other proceeding
between the parties hereto with respect to any of the transactions contemplated
hereby or the subject matter hereof, the prevailing party shall, in addition to
such other relief as the court may award, be entitled to recover reasonable
attorneys' fees, expenses and costs of investigation, all as actually incurred,
including, without limitation, attorneys' fees, costs and expenses of
investigation incurred in appellate proceedings or in any action or
participation in, or in connection with, any case or proceeding under Chapters
7, 11 and 13 of the Bankruptcy Code or any successor thereto.
7.6 FAIR CONSTRUCTION. This Agreement is the product of
negotiation and shall be deemed to have been drafted by all of the parties. It
shall be construed in accordance with the fair meaning of its terms and its
language shall not be strictly construed against, nor shall ambiguities be
resolved against, any particular party.
7.7 ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties hereto regarding the subject matter hereof, and
may not be amended, altered or modified except by a writing signed by the
parties hereto and consented to by the Company. This Agreement supersedes all
prior agreements, representations, warranties, statements, promises,
information, arrangements and understandings, whether oral or written, express
or implied, with respect to the subject matter hereof, all of which are
specifically integrated into this Agreement. No party hereto shall be bound by
or charged with any oral or written agreements, representations, warranties,
statements, promises, information, arrangements or understandings, express or
implied, not specifically set forth herein; and the parties hereto further
acknowledge and agree that in entering into this Agreement they have not in any
way relied and will not rely in any way on any of the foregoing not
specifically set forth herein.
7.8 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.9 CERTAIN DEFINITIONS. For purposes of this Agreement, the
term:
(a) "Beneficially Own" has the meaning set forth in
Section 14 of Article VII of the Company's Restated Certificate of
Incorporation.
(b) "Capital Stock" has the meaning set forth in Section
14 of Article VII of the Company's Restated Certificate of Incorporation.
(c) "Ownership Limit" has the meaning set forth in
Section 14 of Article VII of the Company's Restated Certificate of
Incorporation, but without disregarding any shares Beneficially Owned by the
Beneficiary.
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(d) "VA Shares" means all of the shares of the Company's
Capital Stock Beneficially Owned by the Health Foundation at any particular
time, except that (i) shares of Capital Stock which are held in the Voting
Trust and are voted as required by the terms of this Agreement shall not be
deemed VA Shares so long as they are so held in the Voting Trust and voted and
(ii) the Health Foundation shall be entitled to Beneficially Own at any
particular time shares of Capital Stock of the Company representing up to the
Ownership Limit free of and without being subject in any way to either this
Agreement or the Voting Agreement and none of the shares of Capital Stock
Beneficially Owned by the Health Foundation at or below the Ownership Limit
shall be deemed VA Shares. Without limiting by implication the generality of
the preceding sentence, any share of Capital Stock which shall be Beneficially
Owned by the Health Foundation at any particular time in excess of the
Ownership Limit shall be deemed a VA Share, unless at that particular time it
is on deposit in the Voting Trust and is required to be voted in accordance
with the terms of this Agreement.
IN WITNESS WHEREOF, the Trustee and the Beneficiary have executed this
Agreement on the day and year first above written.
WILMINGTON TRUST COMPANY CALIFORNIA HEALTHCARE
FOUNDATION
By: /s/ Authorized Signatory By: /s/ XXXX X. XXXXX
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Its: Financial Services Officer Its: President
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EXHIBIT A
[COMPANY NAME]
VOTING TRUST CERTIFICATE
CERTIFICATE NO. __________________ _________ SHARES
This certifies that the undersigned trustee (the "Trustee") holds
________ shares of common stock ("Shares") of [the recapitalized entity to be
known as WellPoint Health Networks Inc.] (the "Company") beneficially owned by
Western Health Partnerships (the "Beneficiary") subject to the terms and
conditions of a Voting Trust Agreement ("Agreement") dated as of August 1,
1997, between the Beneficiary and Trustee. This certificate is Exhibit A to
the Agreement, a copy of which is on file with the secretary of the Company in
Woodland Hills, California.
1. During the term of the Agreement, Trustee has the exclusive
and absolute right to vote the Shares as provided in the Agreement.
2. During the term of the Agreement, the Beneficiary shall be
subject to the terms and conditions of the Agreement and entitled to the
benefits of the Beneficiary under the Agreement.
3. As soon as practicable after the termination of the Agreement
and subject to its terms and conditions, the Trustee shall deliver to the
Beneficiary share certificates representing the number of shares of stock of
the Company beneficially owned by the Beneficiary at the date of termination of
the Agreement, upon the surrender of this certificate properly endorsed and
upon payment by the Beneficiary of any and all taxes and other expenses
relating to the transfer or delivery of share certificates to the Beneficiary
pursuant to the termination of the Agreement.
Dated as of ______________, 19___.
Wilmington Trust Company, not in its individual
capacity, but solely as Trustee
By:
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Its:
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