VOTING TRUST AGREEMENT
VOTING TRUST AGREEMENT, dated as of January __, 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 Insurdata Incorporated, a Texas corporation and a subsidiary
of UICI ("Insurdata"), in the Voting Trust created hereunder, and the members
from time to time of the Board of Directors of XxxxxxXxxx.xxx, Inc., a
Pennsylvania corporation ("HealthAxis"), who are not nominees solely of UICI
pursuant to the Shareholders Agreement (the "Shareholders Agreement") to be
entered into in connection with the Merger (as defined below), who initially are
Xxxxxxx Xxxxxx, Xxxxx X. Xxxxxxx, Xxxxxx X. XxXxxxx, Xx. and Xxxxx Xxxxx as
Trustees (the "Trustees").
WHEREAS, UICI has sponsored the Insurdata Founder's Program (the
"Founder's Program") pursuant to which UICI has granted options to purchase
shares of Common Stock owned by UICI (the "Options") to certain employees of
Insurdata, and UICI has reserved an appropriate amount of such Common Stock to
be distributed upon the exercise of the Options;
WHEREAS, Insurdata and UICI have entered into that certain Agreement
and Plan of Merger, dated as of December 6, 1999, by and among Provident
American Corporation, a Pennsylvania corporation ("Provident"), HealthAxis, UICI
and Insurdata pursuant to which Insurdata will be merged with and into
HealthAxis (the "Merger") and each share of Common Stock will be exchanged for
1.33 shares of common stock, no par value, of HealthAxis (the "Merger
Consideration"); 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
1,834,500 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 Insurdata and shall cause such Common Stock to be exchanged for the Merger
Consideration and registered in the names of the Trustees on the books of
HealthAxis.
(b) The Merger Consideration into which such Common Stock will
be converted is referred to herein as the "Shares."
(c) All certificates representing the Shares 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 January __, 2000, among UICI, a Delaware
corporation, and Xxxxxxx Xxxxxx, Xxxxx X. Xxxxxxx, Xxxxxx X. XxXxxxx,
Xx. and Xxxxx Xxxxx as Trustees."
A similar legend shall be placed in the stock ledger of HealthAxis with respect
to each certificate representing the Shares subject to this Agreement.
2. Creation of Voting Trust.
(a) There is hereby created a voting trust (the "Voting
Trust") in respect of all of the Shares; provided however, that the Voting Trust
shall be effective only upon the consummation of the Merger.
(b) The Voting Trust shall be known as the "Founder's Program
Voting Trust."
3. Voting and Other Rights.
(a) The Trustees shall have the full and unqualified right and
power in their discretion, until the Shares are no longer subject to the
provisions of this Agreement, (i) to vote the Shares either in person or by
proxy for every purpose for which the Shares may be voted according to
HealthAxis' Certificate of Incorporation and Bylaws and the Pennsylvania
Business Corporation Law of 1988, and/or to give written consent in lieu of
voting thereon to any corporate act of the Corporation, including, without
limitation, the election of directors by the holders of the Shares, any
amendment or amendments of HealthAxis' Certificate of Incorporation, the merger
or consolidation of HealthAxis into or with any other corporation or
corporations, the sale of all or substantially all of the assets of HealthAxis
and the liquidation or dissolution of HealthAxis, (ii) to waive notice of any
regular or special meeting of shareholders of HealthAxis, (iii) to call meetings
of shareholders and (iv) to exercise all shareholders' rights and powers in
respect of the Shares.
(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.
-2-
(c) The Trustees in their discretion may appoint an agent or
agents to hold the certificates representing the Shares, 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 Shares (including dividends, distributions or other payments made in
shares of voting stock or other securities of HealthAxis) 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 to make payment of dividends and distributions directly to
UICI.
5. Transfers; Reversion.
(a) Subject to Sections 5(b) and 5(c) of this Agreement, UICI
shall not have any right to, and the Trustees shall not, sell, pledge or
otherwise dispose of the Shares, or any beneficial interest in any of the
Shares, so long as the Voting Trust is in existence in accordance with the terms
of Section 6 of this Agreement.
(b) Upon the exercise of any Option granted pursuant to the
Founder's Program, the Trustees shall cause to issued to the holders of such
Option a certificate for the Shares purchased pursuant to such Option; provided,
that the Trustees shall not be required to cause such certificate to be issued
unless they have received evidence from UICI reasonably satisfactory to them
that such Option was exercised in accordance with the provisions of the
Founder's Program.
(c) On the 61st day following the termination of employment
with HealthAxis or its successor of any Option holder, the Trustees shall cause
to be issued a certificate to UICI for the number of Shares corresponding to the
Options which expire in accordance with the provisions of the Founder's Program
upon the termination of such holder's employment; provided, that the Trustees
shall not be required to cause such certificate to be issued to UICI unless they
have received evidence from HealthAxis reasonably satisfactory to them that such
employment was terminated and from UICI that such Options have expired.
6. Termination.
(a) This Agreement shall terminate and be of no further force
and effect upon the earlier to occur of (i) such time as all of the Shares have
been distributed in accordance with the provisions of Section 5 of this
Agreement and (ii) July 1, 2003.
(b) Upon the termination of this Agreement or upon any
dissolution or total or partial liquidation of HealthAxis, whether voluntary or
involuntary, the Trustees shall direct that
-3-
all Shares remaining in the Trust and all moneys, securities, rights or property
attributable to the Shares be distributed 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) A member of the Board of Directors (the "Board of
Directors") of HealthAxis who is not solely a nominee of UICI pursuant to the
Shareholders Agreement (an "Eligible Person") shall become a Trustee upon such
director's election to the Board of Directors.
(b) Any Trustee may resign at any time by mailing to
HealthAxis, 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.
9. Amendments. This Agreement may be amended from time to time by a
written instrument executed by the UICI and a majority of the Trustees.
10. Exculpation and Indemnification. The Trustees hereby accept the
trust created hereby, but assume no responsibility for the management of
HealthAxis or for any action taken by any of them, by any person they have
elected as a director of HealthAxis, Insurdata or UICI or by HealthAxis 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, 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, UICI, holders of Options and any other interested party. The
Trustees shall be indemnified by the HealthAxis 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.
11. Conflicts of Interest. Any Trustee may be a creditor or shareholder
of HealthAxis and may act as an officer or employee of HealthAxis 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 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.
-4-
12. Successors. This Agreement shall inure to the benefit of and be
binding upon the Trustees and UICI and its legal representatives, successors and
assigns.
13. 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.
14. Governing Law. This Agreement shall be construed in accordance with
the internal law (and not the law of conflicts) of the State of Pennsylvania.
15. Severability. In case any one or more of (a) the provisions
contained in this Voting Trust Agreement or (b) the deposits of shares of Common
Stock 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.
16. 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.
* * * * * * * * * * *
-5-
IN WITNESS WHEREOF, the undersigned Shareholder and the Trustees have
executed this Voting Trust Agreement as of the date first above written.
TRUSTEES
__________________________________________
__________________________________________
__________________________________________
UICI
By: ______________________________________
Name:
Title:
Acknowledged and accepted:
XXXXXXXXXX.XXX, INC.
By: ______________________________________
Name:
Title:
-6-
