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EXHIBIT 3.3
AGREEMENT OF MERGER
This Agreement of Merger, dated as of July 22, 1997 ("Merger
Agreement"), is made and entered into by WellPoint Health Networks Inc., a
California corporation ("WellPoint California"), and WLP Acquisition Corp., a
California corporation ("Merger Sub") (WellPoint California and Merger Sub
being collectively referred to as the "Constituent Corporations") and
WellPoint Health Networks Inc., a Delaware corporation ("WellPoint
Delaware").
WITNESSETH:
WHEREAS, the Constituent Corporations and WellPoint Delaware
previously have entered into an Agreement and Plan of Reorganization (the
"Reorganization Agreement") providing for certain representations, warranties
and agreements in connection with the transactions contemplated; and
WHEREAS, the Boards of Directors of the Constituent
Corporations deem it advisable and in the best interests of the Constituent
Corporations and in the best interests of the shareholders of the Constituent
Corporations that WellPoint California and Merger Sub be combined through a
merger (the "Merger") of Merger Sub into WellPoint California.
NOW, THEREFORE, the Constituent Corporations and WellPoint
Delaware hereby agree as follows:
ARTICLE I.
The Constituent Corporations
1.01 (a) WellPoint California was incorporated under
the laws of the State of California on June 8, 1982.
(b) WellPoint California is authorized to issue
an aggregate of 300,000,000 Common Shares (the "WellPoint California Common
Stock") and 50,000,000 Preferred Shares (the "WellPoint California Preferred
Stock").
(c) As of the date and time immediately prior to
the consummation of the Merger, there will be an aggregate of 69,621,826 shares
of WellPoint California Common Stock and no shares of WellPoint California
Preferred Stock outstanding.
1.02 (a) Merger Sub was incorporated under the laws of
the State of California on May 7, 1997.
(b) Merger Sub is authorized to issue an
aggregate of 1,000 shares of Common Stock ("Merger Sub Common Stock").
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(c) As of the date and time immediately prior to
the consummation of the Merger, an aggregate of 1,000 shares of Merger Sub
Common Stock will be outstanding and owned by WellPoint Delaware.
ARTICLE II.
The Merger
2.01 (a) This Merger Agreement shall be submitted to
the shareholders of WellPoint California and Merger Sub. If adopted and
approved by the vote of the shareholders of WellPoint California and by the
written consent of the shareholders of Merger Sub, and if all of the conditions
precedent to the consummation of the Merger specified in the Reorganization
Agreement shall have been satisfied or duly waived by the party entitled to
satisfaction thereof, then, unless terminated as provided in the Reorganization
Agreement, this Merger Agreement, along with certificates meeting the
requirements of the California General Corporation Law, shall be filed with the
Secretary of State of California. Upon such filing, the Merger shall become
effective ("Effective Time of the Merger").
(b) At the Effective Time of the Merger, Merger
Sub shall be merged into WellPoint California and the separate corporate
existence of Merger Sub shall thereupon cease. WellPoint California shall be
the surviving corporation in the Merger (the "Surviving Corporation") and the
separate corporate existence of WellPoint California, with all of its purposes,
objects, rights, privileges, powers, immunities and franchises, shall continue
unaffected and unimpaired by the Merger.
2.02 (a) The Surviving Corporation shall succeed to
all of the rights, privileges, powers, immunities and franchises of Merger Sub,
all of the properties and assets of Merger Sub and all of the debts, choses in
action and other interests due or belonging to Merger Sub and shall be subject
to, and responsible for, all of the debts, liabilities and obligations of
Merger Sub with the effect set forth in the California General Corporation Law.
(b) If, at any time after the Effective Time of
the Merger, the Surviving Corporation shall consider or be advised that any
deeds, bills of sale, assignments, assurances or any other actions or things
are necessary or desirable to vest, perfect or confirm of record or otherwise
in the Surviving Corporation its right, title or interest in, to or under any
of the rights, properties or assets of Merger Sub acquired or to be acquired by
the Surviving Corporation as a result of, or in connection with, the Merger or
to otherwise carry out this Merger Agreement, the officers and directors of the
Surviving Corporation shall and will be authorized to execute and deliver, in
the name and on behalf of Merger Sub or otherwise, all such deeds, bills of
sale, assignments and assurances and to take and do, in the name and on behalf
of Merger Sub or otherwise, all such other actions and things as may be
necessary or desirable to vest, perfect or confirm any and all right, title and
interest in, to and under such rights, properties or assets in the Surviving
Corporation or to otherwise carry out this Merger Agreement.
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ARTICLE III.
Articles of Incorporation
3.01 The Articles of Incorporation of WellPoint California
in effect immediately prior to the Effective Time of the Merger shall be the
Articles of Incorporation of the Surviving Corporation.
ARTICLE IV.
Manner And Basis Of Converting Shares
Of The Constituent Corporations
4.01 At the Effective Time of the Merger:
(a) Each share of Merger Sub Common Stock which
is outstanding immediately prior to the Effective Time of the Merger shall be
converted at the Effective Time of the Merger into one (1) share of WellPoint
California Common Stock.
(b) Each share of WellPoint California Common
Stock which is outstanding immediately prior to the Effective Time of the
Merger shall be converted into one (1) fully-paid and non-assessable share of
Common Stock, $.01 par value per share of WellPoint Delaware ("WellPoint
Delaware Common Stock").
(c) Each Share of WellPoint Delaware Common Stock
which is outstanding immediately prior to the Effective Time of the Merger
shall be cancelled.
4.02 On and after the Effective Date, all of the
outstanding certificates which prior to that time represented shares of
WellPoint California Common Stock shall be deemed for all purposes to evidence
ownership of and to represent the shares of WellPoint Delaware Common Stock
into which the shares of WellPoint California Common Stock represented by such
certificates have been converted as herein provided and shall be so registered
on the books and records of WellPoint Delaware or its transfer agents. The
registered owner of any such outstanding stock certificate shall, until such
certificate shall have been surrendered for transfer or conversion or otherwise
accounted for to WellPoint Delaware or its transfer agent, have and be entitled
to exercise any voting and other rights with respect to and to receive any
dividend and other distributions upon the shares of WellPoint Delaware
evidenced by such outstanding certificate as above provided.
4.03 If any certificate for shares of WellPoint Delaware
Common Stock is to be issued in a name other than that in which the certificate
surrendered in exchange therefor is registered, it shall be a condition of the
issuance thereof that the certificate so surrendered shall be properly endorsed
and otherwise in proper form for transfer, that such transfer otherwise be
proper and that the person requesting such transfer pay to the Exchange Agent
any transfer or other taxes payable by reason of the issuance of such new
certificate in any name other than that of the registered holder of the
certificate surrendered or establish to the satisfaction of WellPoint Delaware
that such tax has been paid or is not payable.
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ARTICLE V.
General
5.01 This Merger 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.
5.02 Notwithstanding approval of this Merger Agreement by
the shareholders of either of the Constituent Corporations, this Merger
Agreement shall terminate forthwith in the event that the Reorganization
Agreement shall be terminated as therein provided.
5.03 This Merger Agreement may be amended by the parties
hereto at any time before or after approval hereof by the shareholders of
either of the Constituent Corporations, but, after any such approval, no
amendment shall be made which would have a material adverse effect on the
shareholders of either of the Constituent Corporations, or change any of the
principal terms of the Reorganization Agreement, without the further approval
of such shareholders. This Merger Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto. Without
limiting the foregoing, the parties hereto acknowledge and agree that any
modification of the manner or basis of exchanging shares of WellPoint
California Common Stock into WellPoint Delaware Common Stock shall require
further approval of the Boards of Directors (or appropriate committee thereof
empowered to so act) of WellPoint Delaware and WellPoint California and the
stockholders of WellPoint California.
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IN WITNESS WHEREOF, the parties have duly executed this Merger
Agreement as of the date first written above.
WELLPOINT HEALTH NETWORKS INC.
a California corporation
By: /s/ XXXXXXX X. XXXXXXXXX
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Xxxxxxx X. Xxxxxxxxx
Chairman of the Board and
Chief Executive Officer
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Secretary
WELLPOINT HEALTH NETWORKS INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXXXX
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Xxxxxxx X. Xxxxxxxxx
Chief Executive Officer
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Secretary
WLP ACQUISITION CORP.,
a California corporation
By: /s/ XXXXXXX X. XXXXXXXXX
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Xxxxxxx X. Xxxxxxxxx
President
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Secretary
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