EXHIBIT 10.5
AMENDMENT NO. 1 TO
AMENDED AND RESTATED
VOTING TRUST AGREEMENT
This Amendment No. 1, dated as of November 7, 2001, to the Amended and
Restated Voting Trust Agreement, dated as of July 31, 2000 (the "Voting Trust
Agreement"), among UICI, a Delaware corporation ("UICI"), and Xxxxxxx Xxxxxx,
Xxxxxx X. XxXxxxx, Xx. and Xxxxxx X. Xxxxxxx as Trustees (the "Trustees").
WHEREAS, in accordance with the terms of the Voting Trust Agreement,
UICI has deposited 8,581,714 shares of common stock, $0.10 par value per share,
of Healthaxis, Inc. (the "Company") in the UICI Voting Trust created thereby;
WHEREAS, Section 10 of the Voting Trust Agreement provides, in part,
that UICI may propose any amendment to the Voting Trust Agreement and such
amendment will be effective if, in the opinion of the independent auditors of
XxxxxxXxxx.xxx, Inc. ("Healthaxis") or the Company, such amendment will (i)
permit HealthAxis or the Company, as the case may be, to continue to report its
financial results consistent with the way in which they have theretofore been
reported and (ii) not require restatement of the financial statements of
HealthAxis or the Company, as the case may be, or result in any substantial or
material change to such financial statements;
WHEREAS, Section 10 of the Voting Trust Agreement further provides that
the Trustees agree to execute any amendment to the Voting Trust Agreement
proposed by UICI that meets the foregoing criteria;
WHEREAS, UICI has proposed the following amendment to the Voting Trust
Agreement (the "Proposal") and submitted such Proposal for consideration by
Ernst & Young LLP, the Company's independent public accountants;
WHEREAS, Ernst & Young LLP has reviewed the Proposal and opined that
the Proposal submitted by UICI will (i) permit the Company to continue to report
its financial results consistent with the way in which they have theretofore
been reported and (ii) not require restatement of the financial statements of
the Company or result in any substantial or material change to such financial
statements, and Ernst & Young LLP has so advised the Company of its
determination;
WHEREAS, the parties desire to formally adopt the Proposal by amending
the Voting Trust Agreement as hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements herein contained, the parties hereto hereby agree to
amend and restate the Original Agreement in its entirety as follows:
1. Capitalized Terms. Capitalized terms not otherwise defined herein
shall have the respective meanings assigned to them in the Voting Trust
Agreement.
2. Amendment. Section 6(a) of the Voting Trust Agreement is hereby
deleted in its entirety and the following new Section 6(a) is inserted in lieu
thereof:
"(a) This Agreement shall terminate and be of no further force and
effect on November 7, 2001."
3. Termination of Voting Trust Agreement. UICI and the Trustees agree
and acknowledge that, upon execution of this Amendment No. 1, the Voting Trust
Agreement and the UICI Voting Trust created thereby shall terminate effective as
of November 7, 2001 and be of no further force and effect, and the Trustees
agree to execute and deliver any and all stock powers and other documents of
transfer sufficient to vest title to the Trust Securities in UICI.
4. Governing Law. This Amendment No. 1 shall be construed in accordance
with the internal law (and not the law of conflicts) of the Commonwealth of
Pennsylvania.
5. Severability. In case any one or more of (a) the provisions
contained in this Amendment No. 1 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.
6. Counterparts. This Amendment No. 1 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:
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Xxxxxxx Xxxxxx
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Xxxxxx X. XxXxxxx, Xx.
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Xxxxxx X. Xxxxxxx
UICI
By:
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Name: Xxxxx X. Xxxx
Title: Executive Vice President and
General Counsel
Acknowledged and accepted:
HEALTHAXIS, INC.
By:
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Name: Xxxxx X. XxXxxxx
Title: President and CEO
