STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is made and entered
into effective as of the 29th day of June, 1999 by and between WellPoint Health
Networks Inc., a Delaware corporation ("Buyer"), and the California HealthCare
Foundation, a California nonprofit public benefit corporation ("Seller").
RECITALS
WHEREAS, Seller is the record and beneficial owner of 17,910,000 shares
of common stock (the "Common Stock") of Buyer, representing approximately 26.5%
of the issued and outstanding common stock of Buyer;
WHEREAS, Seller currently intends to effect the sale of up to
11,500,000 shares of Common Stock owned by Seller in a registered public
offering (the "Equity Offering");
WHEREAS, Buyer currently intends to effect a public offering (the "Debt
Offering") of up to $299,000,000 in aggregate principal amount of its Zero
Coupon Subordinated Convertible Debentures Due 2019 (the "Debentures"); and
WHEREAS, Seller desires to sell an aggregate of up to 2,000,000 shares
of Common Stock (the "Shares") to Buyer, and Buyer desires to purchase the
Shares from Seller with the net proceeds of the Debt Offering, on the terms and
conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1. PURCHASE OF SHARES. On the Closing Date (as defined in
Section 2 hereof), Seller hereby agrees to sell, transfer, convey, assign and
deliver to Buyer, and Buyer hereby agrees to purchase, acquire and accept from
Seller, the Shares.
Section 2. CLOSING DATE; PURCHASE PRICE; NUMBER OF SHARES.
(a) The initial closing date (the "Closing Date") of the
purchase and sale of the Shares shall take place as soon as practicable
following consummation of the Debt Offering and in no event more than five
business days thereafter. In the event that the underwriters in the Debt
Offering are granted an over-allotment option to purchase additional
Debentures and such over-allotment option is exercised on a date subsequent
to the initial consummation of the Debt Offering, there shall be a Second
Closing Date (the "Second Closing Date") hereunder, which shall take place
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as soon as practicable following consummation of the sale of Debentures
pursuant to the exercise of such over-allotment option.
(b) The purchase price per share for the Shares (the
"Purchase Price") shall equal the price to the public at which shares of
Common Stock are initially sold by the underwriters as set forth in the
underwriting agreement to be executed in connection with the Equity Offering.
(c) The number of Shares which shall be purchased by Buyer
on the Closing Date (and the Second Closing Date, if applicable) shall be
that number of Shares equal to the quotient of the Net Proceeds (as defined
in the next sentence) divided by (ii) the Purchase Price. The "Net Proceeds"
shall mean the net amount received by Seller for the sale of the Debentures
in the Debt Offering (including any Debentures sold pursuant to the exercise
of any over-allotment option granted to the underwriters in connection
therewith). Notwithstanding the foregoing, the total number of Shares to be
purchased by Buyer pursuant to this Agreement shall not exceed 2,000,000 in
the aggregate.
(d) On the Closing Date (and the Second Closing Date, if
applicable) and subject to the terms and conditions set forth in this
Agreement, Seller shall deliver a certificate or certificates representing
all of the Shares duly endorsed in blank or accompanied by stock powers duly
executed in blank and in consideration of the sale, assignment, transfer and
delivery of the Shares, Buyer shall pay to Seller the Purchase Price by wire
transfer of immediately available funds to an account or accounts designated
by Seller.
Section 3. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller represents and warrants to Buyer that:
(a) Seller has all requisite corporate power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby.
(b) This Agreement has been duly executed and delivered by
Seller, has been effectively authorized by all necessary action, and
constitutes the legal, valid and binding obligation of Seller, enforceable
against Seller in accordance with its terms, except as such enforceability
may be limited by laws relating to bankruptcy, insolvency, reorganization or
other laws relating to creditors' rights generally or by general principles
of equity.
(c) Seller has good and marketable title to the Shares, free
and clear of all security interests, covenants, conditions, restrictions,
pledges, liens, charges, encumbrances, options and adverse claims or rights of
any kind whatsoever, other than pursuant to the Amended and Restated Voting
Trust Agreement dated as of August 4, 1997 (as amended by that Amendment No. 1
dated as of June 12, 1998) and the Amended and Restated Voting Agreement dated
as of August 4, 1997. Assuming Buyer has no notice of any adverse claim, Buyer
shall acquire from Seller as of the Closing Date good and marketable title to
the Shares, free and clear of all security interests, covenants, conditions,
restrictions, pledges, liens, charges, encumbrances, options and adverse
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claims or rights of any kind whatsoever.
(d) The execution and delivery of this Agreement by Seller
and the consummation by Seller of the transactions contemplated hereby do not
and will not result in a breach of any of the terms or provisions of, or
constitute a default under, or conflict with (i) the articles of
incorporation or bylaws of Seller, (ii) any material agreement to which
Seller is a party or by which it is bound, (iii) any judgment, decree, order
or award of any court, governmental body or arbitrator by which Seller is
bound or (iv) any material Federal or State law, rule or regulation
applicable to Seller or its property.
(e) No broker or finder has acted for Seller in connection
with this Agreement or the sale of the Shares contemplated hereby, and no
broker or finder is entitled to any brokerage or finder's fees or other
commissions in respect of such transactions.
(f) In connection with Seller's sale of the Shares, Seller has
had the opportunity to ask Buyer any and all relevant questions regarding, among
other things, the business and operations of Buyer and Seller has received
answers from the Buyer which the Seller considers to be reasonably responsive
and adequate to such questions. The Seller has, to the extent deemed necessary
by the Seller, consulted with the Seller's advisors (including the Seller's
attorney, accountant or investment advisors) regarding the sale of the Shares to
Buyer. The Seller understands and acknowledges that events or circumstances may
occur after the date hereof or after the Closing Date that may be favorable or
unfavorable to the Buyer's earnings, business affairs or operations, and that
such events or circumstances may result in changes in the fair market value of
the Common Stock.
Section 4. REPRESENTATION AND WARRANTIES OF BUYER. Buyer
represents and warrants to Seller that:
(a) Buyer has all requisite corporate power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby.
(b) This Agreement has been duly executed and delivered by
Buyer, has been effectively authorized by all necessary action, and constitutes
the legal, valid and binding obligation of Buyer, enforceable against Buyer in
accordance with its terms, except as such enforceability may be limited by laws
relating to bankruptcy, insolvency, reorganization or other laws relating to
creditors' rights generally or by general principles of equity.
(c) The execution and delivery of this Agreement by Buyer
and the consummation by Buyer of the transactions contemplated hereby do not
and will not result in a breach of any of the terms or provisions of, or
constitute a default under, or conflict with (i) the certificate of
incorporation or bylaws of Buyer, (ii) any material agreement to which Buyer
is a party or by which it is bound, (iii) any judgment, decree, order or
award of any court, governmental body or arbitrator by which Buyer is bound
or (iv) any material Federal or State law, rule or regulation
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applicable to Buyer or its property.
(d) No broker or finder has acted for Buyer in connection
with this Agreement or the purchase of the Shares contemplated hereby, and no
broker or finder is entitled to any brokerage or finder's fee or other
commissions in respect of such transaction.
Section 5. CONDITIONS TO CLOSING.
(a) BUYER'S CONDITION. Buyer's obligations to consummate
the transactions contemplated by this Agreement shall be subject to the
representations and warranties of Seller contained herein being true and
correct at and as the Closing Date (and the Second Closing Date, if
applicable) as if made at and as of such time
(b) SELLER'S CONDITION. Seller's obligation to consummate
the transactions contemplated by this Agreement shall be subject to the
representations and warranties of Buyer contained herein being true and
correct at and as of the Closing Date (and the Second Closing Date, if
applicable) as if made at and as of such time.
Section 6. TERMINATION. This Agreement may be terminated as
follows:
(a) At any time on or prior to the Closing Date or Second
Closing Date, by mutual written consent of Seller and Buyer; or
(b) After September 1, 1999, at the election of either party
by written notice to the other party, if the Closing Date shall not have
occurred pursuant to Section 2 on or prior to September 1, 1999 (other than by
failure of the electing party to comply fully with its obligations under this
Agreement).
In the event this Agreement is terminated pursuant to this Section 6,
this Agreement shall terminate without any liability or further obligation of
either party to the other.
Section 7. TERMINATION OF PREVIOUS STOCK PURCHASE AGREEMENT. The
parties hereto agree that the Stock Purchase Agreement dated as of November 20,
1998 shall be terminated as of the date of this Agreement and neither party
shall have any further obligation with respect thereto.
Section 8. NOTICES. All notices and other communication hereunder
shall be in writing and shall be deemed given if delivered personally or by
facsimile or three business days following being mailed by certified or
registered mail, postage prepaid, return-receipt requested, address as
follows:
If to Seller: California HealthCare Foundation
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
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Attention: President
Facsimile: (000) 000-0000
If to the Buyer: WellPoint Health Networks Inc.
0 XxxxXxxxx Xxx
Xxxxxxxx Xxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Section 9. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns.
Section 10. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of California,
without reference to choice or conflict of law principles thereof.
Section 11. COUNTERPARTS. This Agreement may be executed simultaneously
in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
Section 12. ENTIRE AGREEMENT. This Agreement contains the entire
Agreement between the parties hereto with respect to the transactions
contemplated herein and supersedes all previous oral and written, and all
contemporaneous oral negotiations, commitments and understandings.
Section 13. SEVERABILITY. Any provision of this Agreement that is
invalid, illegal or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability, without affecting in any way the remaining provisions hereof
in such jurisdiction or rendering that or any other provision or this Agreement
invalid, illegal or unenforceable in any other jurisdiction.
Section 14. EXPENSES. Seller, on the one hand, and Buyer, on the other
hand, shall pay their respective fees and expenses incurred by them in
connection with the transactions contemplated herein.
Section 15. FURTHER ASSURANCES. Each of Seller and Buyer agrees
promptly to execute and deliver such documents and to do such other acts as are
reasonably necessary appropriate to effectuate the purposes of this Agreement.
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IN WITNESS WHEREOF, each of the parties hereto have caused this
Agreement to be executed as of the date first above written.
SELLER: CALIFORNIA HEALTHCARE FOUNDATION
By: /s/ Xxxxx Xxxxxxx
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Its: Chief Financial Officer
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BUYER: WELLPOINT HEALTH NETWORKS INC.
By: /s/ Xxxxxx X. Xxxxxx
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Its: Executive Vice President
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