Exhibit 10.89a
Form of Voting Agreement
VOTING AGREEMENT dated as of May 8, 1998 between
____________________ (the "Shareholder") and Maxicare Health Plans,
Inc. (the "Company").
WHEREAS, the board of directors of the Company (the
"Board") has increased the number of directors which constitutes
the Board to nine and has filled the one existing vacancy and two
newly created directorships on the Board with Xxxxxx Xxxxxxx and
Xxxx X. Xxxxx, Xx. (the "Soliciting Shareholder"), who have been
named Class II directors with terms expiring in 1998 and Xxxxxx X.
Xxxxxx who has been named a Class I director with a term expiring
in 2000, and the Board has added the Soliciting Shareholder to the
Board's executive committee which has been increased from three to
four members;
WHEREAS, the Board intends that Xx. Xxxxxxx and the
Soliciting Shareholder and Xx. Xxxxxxxx X. Xxxxxxxxxx shall be the
slate of nominees recommended by the Board for election as
directors (the "Board Slate") at the Company's 1998 annual meeting
of shareholders ("1998 Annual Meeting"); and
WHEREAS, the Board has approved the amendments to the
Bylaws, Certificate and the rights agreement between the Company
and American Stock Transfer & Trust Company, as Rights Agent, dated
as of February 24, 1998 (the "Rights Agreement") attached as
Exhibit A (the "Amendments"), subject to approval of the Amendments
by a majority of the outstanding shares of common stock, par value
$.01 per share (the "Shares") at the 1998 Annual Meeting; and
WHEREAS, in connection with the termination of a
solicitation of written consents from the Company's shareholders by
the Soliciting Shareholder (the "Consent Solicitation"), the
Company has agreed to reimburse the Soliciting Shareholder's fees
and expenses (not to exceed $450,000) related to the Consent
Solicitation and the negotiation of related agreements (the
"Expense Reimbursement") promptly after the satisfaction of the
conditions to such reimbursement subject to reasonable
documentation of such fees and expenses and approval of such
reimbursement by (a) holders of at least 50% of the outstanding
Shares (with such approval deemed to have been given by all Shares
covered by agreements with the Company to vote in favor of the
Expense Reimbursement at the 1998 Annual Meeting), or (b) the
affirmative vote of the majority of the Shares present in person or
by proxy at the 1998 Annual Meeting and entitled to vote on such
matter; and
WHEREAS, the parties desire to agree on certain actions to
be taken at the 1998 Annual Meeting,
NOW, THEREFORE, in consideration of the agreements
contained herein, the parties agree as follows:
1. Proposals By the Company. The Company will propose
the election of the Board Slate, the adoption of the
Amendments and the approval of the Expense
Reimbursement at the 1998 Annual Meeting.
2. Voting Agreement of Shareholder. The Shareholder
agrees that all shares of Common Stock of the
Company ("Shares") as to which the Shareholder or
any of its affiliates has the power to direct the
vote on the record date for the 1998 Annual Meeting,
shall be voted at such meeting in favor of the Board
Slate, the Amendments and the Expense Reimbursement,
and the Shareholder shall not execute a written
consent of shareholders in lieu of a meeting or vote
to call a special meeting prior to the 1998 Annual
Meeting which will be held by July 31, 1998. Such
record date shall be June 8, 1998 or the earliest
possible date thereafter and, in no event, later
than June 12, 1998. If any Shares as to which the
Shareholder has the power to direct the vote are
transferred prior to such record date, the
Shareholder shall obtain an agreement from the
transferee assuming the Shareholder's obligations
under this sentence and the immediately preceding
sentence; provided, however, that the Shareholder
shall not be required to obtain such an agreement
from the transferee of Shares which the Shareholder
sells as a result of instructions from clients or
customers requiring the Shareholder to sell such
Shares, or to liquidate such clients' accounts in
whole or in part or changing the investment
objectives of such accounts.
3. Miscellaneous.
(a) This agreement shall not be
altered, amended, changed, waived, terminated or
otherwise modified except by a writing signed by the
party to be charged.
(b) This agreement shall be
interpreted and enforced in accordance with the laws
of the State of Delaware applicable to contracts
made and to be performed there, and any legal action
or proceeding with respect to this agreement may be
brought in the courts of the State of Delaware or the United States
District Court for the District of Delaware, and each party accepts
the exclusive jurisdiction of such courts.
(c) This agreement may be executed
in several counterparts, each of which will be
deemed an original.
(d) Each of the parties acknowledges
and agrees that irreparable damages would occur if
any of the provisions of this agreement were not
performed in accordance with their specific terms or
were otherwise breached. Accordingly, it is agreed
that the parties shall be entitled to an injunction
or injunctions to prevent breaches of this agreement
and to enforce specifically the terms of this
agreement in any court having jurisdiction, in
addition to any other remedy to which they may be
entitled at law or equity.
(e) The parties acknowledge and
agree that this Agreement is not an agreement,
arrangement or understanding of the type referred to
in Section 1(d)(iii) of the Company's Shareholders
Rights Plan, and the Shareholder and other
shareholders entering into agreements containing the
covenants contained in Section 2 shall not be deemed
an Acquiring Person as that term is used in the
Shareholders Rights Plan by virtue of anything
contained in this Agreement or those agreements or
any acts or transactions contemplated thereby.
(f) This Agreement shall inure to
the benefit of, and be enforceable by, the
Soliciting Shareholder, as if he were a party
hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed as of the date first above written.
MAXICARE HEALTH PLANS, INC.
By:________________________
___________________________
[Shareholder]
EXHIBIT "A"
RESOLUTIONS TO BE ADOPTED BY THE SHAREHOLDERS OF
MAXICARE HEALTH PLANS, INC. AT THE 1998 ANNUAL MEETING
RESOLVED, that subject to the election of Xxxxxxxx Xxxxxxxxxx,
Xxxx Xxxxx, and Xxxxxx Xxxxxxx at this 1998 Annual Meeting of
Shareholders of Maxicare Health Plans, Inc. (the "Company") for
three year terms ending at the Company's 2001 Annual Meeting of
Shareholders ("Board Nominees"), the Shareholders of the Company
hereby authorize and approve amendments to the Company's
Certificate of Incorporation which would amend Article FIFTH
thereof and to add new Article THIRTEENTH as follows (the
"Amendments to the Articles"):
a. Article FIFTH shall be amended to delete the
existing Section "A." thereof and to replace such Section "A."
with the following:
"A. Number of Directors. From the effective
date of this amendment until the
conclusion of the Corporation's 1999
Annual Meeting of Stockholders (the
"Amendment Termination Date"), the
number of directors who shall constitute
the board of directors of the
Corporation (the "Board") shall be nine
(9); thereafter, the number of directors
who shall constitute the Board shall be
fixed in accordance with the Bylaws of
the Corporation."
b. New Article THIRTEENTH shall be added as
follows:
"Article THIRTEENTH: Written Consents and
Special Meetings of
Stockholders.
A. Sunset Provision. The provision of this
Article THIRTEENTH shall terminate and
be of no force and effect after the
Amendment Termination Date.
B Written Consents. From the effective
date of this amendment until the
Amendment Termination Date (the "Written
Consent Period"), the stockholders of
this Corporation shall not be able to
take any action by written consent.
During the Written Consent Period
stockholders may only take action at an
annual or special meeting of
stockholders.
C. Special Meetings of Stockholders.
During the Written Consent Period
stockholders of this Corporation may not
call any special meetings of
stockholders and special meetings of
stockholders may only be called by the
Board as provided for in the Bylaws of
this Corporation.
BE IT FURTHER RESOLVED, that solely in the event the stockholders
of the Company approve the election of the Board Nominees at this
Annual Meeting of Stockholders and adoption of Amendments to the
Articles as provided for above; then the Company's Amended and
Restated Bylaws dated January 28, 1994, as amended on March 20,
1998 (the "Bylaws"), shall be further amended as follows (the
"Bylaw Amendments"):
1. Article II, Section 3. SPECIAL MEETINGS.
Article II, Section 3 shall be amended to add at the end thereof
the following:
"Notwithstanding anything to the
contrary contained above from and after
the effective date of this amendment
until the conclusion of the
Corporation's 1999 Annual Meeting of
Stockholders, the Stockholders of the
Corporation may not call any special
meeting of stockholders and special
meetings of stockholders may only be
called by the Board of Directors of the
Corporation."
2. Article II. A new Section 15 shall be added
to Article II as follows:
"Section 15. 1999 ANNUAL MEETING OF
STOCKHOLDERS. Prior to the conclusion
of the 1999 Annual Meeting of
Stockholders, the Board of Directors
will not adopt any Bylaws or take any
other actions that interfere with the
rights of stockholders to nominate and
elect three directors at such meeting in
accordance with the existing Bylaws,
unless such actions have been approved
by the stockholders."
3. Article III, Section 2. NUMBER OF DIRECTORS.
Article III, Section 2 shall be amended to delete the remainder
of the second sentence after "directors" on the fourth line and
insert in lieu thereof:
"or a majority vote of the outstanding
shares entitled to vote thereon."
4. Article IX, Section 1. AMENDMENT BY
STOCKHOLDERS. Article IX, Section 1 shall be amended to delete
"Sections 3 and 14 of Article II, Section 2 of Article III and
Sections 1 and 2 of Article IX" commencing on the fifth line
thereof and insert in lieu thereof:
"Section 3 of Article II and Sections 1
and 2 of Article IX"
5. Except as expressly set forth herein the
Bylaws shall remain in full force and effect.
BE IT FURTHER RESOLVED, that solely in the event the stockholders
of the Company approve the election of the Board Nominees at this
Annual Meeting of Stockholders, the adoption of Amendments to the
Articles and the Bylaw Amendments, as provided for above, then
the following amendments to the Shareholders Rights Plan
previously adopted by the Board shall be submitted to the
stockholders for approval (the "Rights Plan Amendments"):
1. Sections 1(h) and 1(i) of the Rights Agreement
between this Corporation and American Stock Transfer & Trust
Corporation, as rights agent, dated February 24, 1998 is hereby
amended to read as follows:
"(h) "Continuing Directors" shall have the
same meaning as "Disinterested Director" as
defined in Section 1(i) hereof.
(i) "Disinterested Directors" shall mean
the members of the Board of Directors who are
not (i) officers or employees of the
Corporation, (ii) Acquiring Persons or their
Affiliates or Associates or representatives of
any of them, or (iii) any Person who was
directly or indirectly proposed or nominated
as a director of the Corporation by an
Acquiring Person or a Transaction Person."
2. Except as specifically set forth herein, the
Rights Agreement shall remain in full force and effect, except
that any amendment to Sections 1(h) or 1(i) shall require the
approval of the shareholders.
BE IT FURTHER RESOLVED, that the officers of this Company, or
any of them, be and they hereby are authorized, empowered and
directed in the name of and on behalf of this Company to take all
such actions and to execute and deliver all such documents as
they or any of them may deem necessary or appropriate in their
opinion to carry out the purpose and comply with and effectuate
the intent of the foregoing resolutions, including but not
limited to filing any necessary amendments to the Certificate of
Incorporation with the Delaware Secretary of State and filing the
Bylaw Amendments in the Minute Books of the Company; and
BE IT FURTHER RESOLVED, that any actions previously taken by any
officer of the Company on behalf of the Company in connection
with any of the foregoing resolutions be, and they hereby are,
ratified, adopted and approved in all particulars as acts of the
Company.
