EXHIBIT 10.1
AMENDED AND RESTATED
VOTING TRUST AGREEMENT
AMENDED AND RESTATED VOTING TRUST AGREEMENT, dated as of July 31, 2000
(this "Agreement"), among UICI, a Delaware corporation ("UICI"), which has
heretofore deposited shares of common stock, no par value (the "Common Stock"),
of HealthAxis.com, Inc., a Pennsylvania corporation ("HealthAxis"), in the
Voting Trust created hereunder, and Michael Ashker, Edward W. LeBaron, Jr. and
Dennis B. Maloney as Trustees (the "Trustees").
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated
as of January 26, 2000 (the "Merger Agreement"), by and among HealthAxis, Inc.
(f/k/a Provident American Corporation), a Pennsylvania corporation (the
"Company"), HealthAxis, and HealthAxis Acquisition Corp., a Pennsylvania
corporation ("Newco"), HealthAxis will be merged with and into Newco (the
"Merger") and each share of Common Stock will be exchanged for shares of common
stock, $0.10 par value per share, of the Company (the "Shares");
WHEREAS, on February 11, 2000, the parties entered into a Voting Trust
Agreement (the "Original Agreement") pursuant to which UICI deposited with the
Voting Trust 10,103,207 shares of Common Stock and the Trustees consented to act
as trustees under and in accordance with the Voting Trust created thereunder;
WHEREAS, on March 14, 2000, UICI sold 1,000,000 shares of Common Stock
and caused the Trust to sell 1,000,000 shares of Common Stock to an unaffiliated
third party; and
WHEREAS, the parties desire to amend and restate the Original Agreement
in its entirety as herein provided to, among other things, reflect the current
number of shares of Common Stock held in the Voting Trust and an extension to
the term of this Trust in certain circumstances.
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. Delivery of Stock to Trustees.
(a) Concurrently with the execution of this Agreement, the
Voting Trust will deliver to UICI a certificate or certificates representing
2,670,138 shares of Common Stock either endorsed to UICI or accompanied by
appropriate stock transfer powers duly executed in blank for the transfer
thereof to UICI. Immediately after the transfer described in the preceding
sentence, the Voting Trust shall hold 6,433,069 shares of Common Stock
registered in the names of the Trustees on the books of HealthAxis. The Trustees
shall cause such Common Stock to be exchanged for the Shares pursuant to the
Merger and registered in the names of the Trustees on the books of the Company.
(b) All certificates representing the Shares or the Common
Stock subject to this Agreement (the "Trust Securities") 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 Amended and Restated Voting Trust Agreement,
dated July 31, 2000, among UICI, a Delaware corporation, and
Michael Ashker, Edward W. LeBaron, Jr. and Dennis B. Maloney
as Trustees."
A similar legend shall be placed in the stock ledger of HealthAxis or the
Company, as the case may be, with respect to each certificate representing the
Trust Securities subject to this Agreement.
(c) Upon any transfer of Trust Securities in accordance with
this Agreement, the Common Stock or Shares, as the case may be, will be released
from this Voting Trust and no longer constitute Trust Securities. The Trustees
will remove the legend set forth in Section 1(b) from the stock ledger of
HealthAxis or the Company, as the case may be, and will issue a new certificate
representing the Common Stock or Shares, as the case may be, to the transferee
of the Common Stock or Shares, as the case may be.
2. Continuation of Voting Trust.
(a) There is hereby continued a voting trust (the "Voting
Trust") in respect of the Trust Securities. Concurrently with the delivery of
the certificate or certificates to UICI as described in Section 1, the Trustees
shall deliver to UICI a replacement Voting Trust Certificate in the form
attached hereto as Exhibit A, evidencing the Trust Securities deposited with the
Trustees hereunder, registered in UICI's name.
(b) The Voting Trust shall be known as the "UICI Voting
Trust."
3. Voting and Other Rights.
(a) The Trustees shall have the full and unqualified right and
power in their discretion, until the Trust Securities are no longer subject to
the provisions of this Agreement, (i) to vote the Trust Securities either in
person or by proxy for every purpose for which the Trust Securities may be voted
according to HealthAxis' or the Company's, as the case may be, Certificate of
Incorporation and the Pennsylvania Business Corporation Law of 1988, as amended,
and/or to give written consent in lieu of voting thereon to any corporate act of
HealthAxis or the Company, as the case may be, including, without limitation,
the election of directors by the holders of Common Stock or Shares, as the case
may be, any amendments of HealthAxis' or the Company's, as the case may be,
Certificate of Incorporation, the merger or consolidation of HealthAxis or the
Company, as the case may be, into or with any other corporation or corporations,
a share exchange of the Common Stock or Shares, as the case may be, the sale of
all or substantially all of the assets of HealthAxis or the Company, as the case
may be, and the liquidation or dissolution of HealthAxis or the Company, as the
case may be, (ii) to waive, with respect to the Trust Securities, notice of any
regular or special meeting of stockholders of HealthAxis or the Company, as the
case may be, (iii) to call meetings of stockholders, and (iv) to exercise all
UICI's rights and powers in respect to the Trust Securities.
(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. Notwithstanding the foregoing, in
the event that any matter or transaction is proposed for a vote by the holders
of the Common Stock or Shares, as the case may be, and one or more of the
Trustees has a financial interest in that matter or transaction (apart from
acting solely as a director or an employee of HealthAxis or the Company, as the
case may be), only those Trustees which do not have a financial interest in such
matter or transaction shall participate in directing the voting of the Trust
Securities; provided, however, that if all of the Trustees have such a financial
interest in the matter or transaction proposed for a vote of the holders of the
Common Stock or Shares, as the case may be, then the Trust Securities shall be
voted by the Trustees strictly in the same proportion that the Common Stock or
Shares are cast by other holders of the Common Stock or Shares, as the case may
be, in favor and against the proposed matter or transaction; unless UICI shall
provide such Trustee(s) a written waiver of any such conflict in which case the
Trustee(s) shall be entitled to vote on any such matter as they deem in the best
interests of HealthAxis or the Company, as the case may be.
(c) The Trustees in their discretion may appoint an agent or
agents to hold the certificates representing the Trust Securities, 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 Trust Securities (including dividends, distributions or other
payments made in shares of voting stock or other securities of HealthAxis or the
Company, as the case may be) 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 or the
Company, as the case may be, to make payment of dividends and distributions
directly to UICI.
5. Transfers.
(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 Trust Securities, or any beneficial interest in any of
the Trust Securities, so long as the Voting Trust is in existence in accordance
with the terms of Section 6 of this Agreement.
(b) UICI may cause the Trustees to sell all or any portion of
the Trust Securities to any person or entity unaffiliated (within the meaning of
Rule 405 under the Securities Act of 1933, as amended) with UICI. Without
limiting the generality of the foregoing, UICI may cause the Trustees to pledge
all or any portion of the Trust Securities as security for a loan to UICI or its
affiliates. The proceeds from the sale or transfer of such Trust Securities
shall be distributed to UICI by the Trustees.
(c) In connection with any tender offer for the Trust
Securities, UICI shall have the right to require the Trustees to tender all of
the Trust Securities held by the Voting Trust so long as UICI, concurrently with
such tender, tenders all of the Common Stock or Shares, as the case may be,
beneficially owned by UICI which are not deposited with the Trustees hereunder.
The proceeds from the tender of such Trust Securities shall be distributed to
UICI by the Trustees.
The term "beneficially owned" shall have the meaning ascribed
thereto in Rule 13d-3 under the Securities Exchange Act of 1934. For the
avoidance of doubt, UICI shall be deemed to beneficially own the Trust
Securities.
6. Termination.
(a) This Agreement shall terminate and be of no further force
and effect upon the earliest to occur of (i) February 11, 2020, (ii) such time
as UICI beneficially owns less than 25% of the issued and outstanding Common
Stock or Shares, as the case may, be on a fully diluted basis (including, solely
for purposes of this clause (ii), the Common Stock or Shares owned by the
Trust), (iii) such time as any person or persons acting as a group (within the
meaning of Rule 13d-5) owns a greater percentage of the issued and outstanding
Common Stock or Shares, as the case may, on a fully diluted basis, than the
percentage beneficially owned by UICI (including, solely for purposes of this
clause (iii), the Common Stock or Shares owned by the Trust) and (iv) December
31, 2000, if the transactions contemplated by the Merger Agreement have not been
consummated or earlier if the Merger Agreement is otherwise terminated.
(b) Upon any filing of bankruptcy, dissolution or total or
partial liquidation of HealthAxis or the Company, as the case may be, whether
voluntary or involuntary, the Trustees shall direct that all moneys, securities,
rights or property attributable to the Trust Securities be delivered 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) The number of Trustees of the Voting Trust shall be three
or such lesser number as determined by the Trustees; provided, however, that the
number of Trustees of the Voting Trust shall not be less than two.
(b) Any Trustee may resign at any time, for any reason, by
mailing to HealthAxis or the Company, as the case may be, the other Trustees and
UICI a written resignation to take effect 20 days thereafter or upon the prior
acceptance thereof.
(c) Within 10 business days of the resignation, death or
permanent disability of a Trustee, the continuing Trustees shall send written
notice thereof to UICI, HealthAxis and the Company. Within 20 business days
after receiving such notice UICI shall propose in writing to the Board of
Directors (the "Board of Directors") of HealthAxis and the Company three
candidates (none of whom may be affiliated with or employed by UICI or its
affiliates) to fill each vacant Trustee position. Such notice shall also include
a letter from the independent auditors of HealthAxis or the Company to the
effect that any such candidate serving as Trustee of the Voting Trust would (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. The Board of Directors, acting by
majority decision of the members thereof who are unaffiliated with UICI, shall
select the replacement Trustee from such list of candidates. In the event that
the Board of Directors does not so select a replacement Trustee within 10
business days after delivery of such notice by UICI, the parties will submit the
selection of such replacement Trustee to binding arbitration before a panel of
three arbitrators in Dallas, Texas in accordance with the rules of the American
Arbitration Association. The costs of such arbitration shall be borne by
HealthAxis and the Company.
9. Procedures to Follow on Mergers, Consolidation, Share
Exchanges, etc. The Trustees' right to vote (or consent thereto in lieu of
voting) any of the Trust Securities on any merger, consolidation, share exchange
or sale of all or substantially all of the assets of HealthAxis or the Company,
as the case may, or to sell the Trust Securities is subject to satisfaction of
the following conditions:
(a) The Trustees must give UICI notice, specifying full
details of the proposed transaction, including the identity of the other parties
thereto and the consideration to be received thereon, of such proposed vote,
consent or proposed sale at least 20 days before taking action thereon.
(b) The Trustees shall not, except with the consent of UICI,
directly or indirectly, have any interest as the purchaser of the Trust
Securities or in any other party (other than HealthAxis or the Company, as the
case may) to a transaction to which this Section 9 is subject or receive any
benefit from such transaction that is not available to all stockholders pro
rata. As used in this Section 9(b), "interest" means any direct or indirect
interest, whether as owner, shareholder, partner, employee, officer, director or
consultant.
(c) The Trustees shall not vote on (or consent to) any
transaction nor shall the Trustees sell the Trust Securities, unless HealthAxis
or the Company, as the case may be, has received the opinion of a nationally
recognized investment banking firm that the terms of the transaction or sale are
fair to the shareholders of HealthAxis or the Company, as the case may be.
(d) Unless consented to by UICI, the consideration to be
received by UICI on account of its Common Stock or Shares, as the case may, in
any merger, consolidation, share exchange, sale of assets or sale of Trust
Securities subject to this Agreement shall consist entirely of either or both
(x) cash, or (y) securities of a corporation which are either listed on a
national securities exchange or actively traded in an over-the-counter market
and, for which UICI shall have the agreement of the issuing corporation to
register (at such corporation's expense (except for expenses normally assumed by
the holder of registration rights, such as attorneys' fees) and within a
reasonable time) such securities under the Securities Exchange Act of 1933
and/or applicable state securities laws, which allows UICI to sell such
securities. Any such cash or securities received by the Trustees shall promptly
be distributed to UICI.
10. Amendments. Subject to the following provisions of this
Section 10, this Agreement may be amended from time to time by a written
instrument executed by UICI and a majority of the Trustees. The Trustees may
propose any amendment to this Agreement and such amendment will be effective if
approved in writing by UICI. UICI may propose any amendment to this Agreement
and such amendment will be effective if, in the opinion of the independent
auditors of HealthAxis or the Company, such amendment will (i) permit HealthAxis
or the Company, as the case may be, to continue to report its financial result
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. The Trustees agree to execute any amendment to this
Agreement proposed by UICI that meets the foregoing criterion.
11. Exculpation and Indemnification. The Trustees hereby accept
the trust created hereby, but assume no responsibility for the management of
HealthAxis or the Company, as the case may be, or for any action taken by any of
them, by any person they have elected as a director of Newco, HealthAxis or the
Company, as the case may be, or UICI or by HealthAxis or the Company, as the
case may be, 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 or the Company, as the case may be, 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 or the
Company, as the case may be, UICI and any other interested party. The Trustees
shall be indemnified by HealthAxis or the Company, as the case may be, 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, where such malfeasance is the result of gross negligence or bad
faith, as defined by a non-appealable order of a court of competent
jurisdiction. All costs of legal counsel and similar type expenses incurred by
UICI in connection with this Section 11 will be paid by HealthAxis or the
Company, as the case may be.
12. Conflicts of Interest. Any Trustee may be a creditor or
shareholder of HealthAxis or the Company, as the case may be, and may act as an
officer or employee of HealthAxis or the Company, as the case may be, 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 the Company, as
the case may be, 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; provided, that the
restrictions set forth in Section 3(b) concerning recusal from directing the
voting of the Voting Trust Securities shall nevertheless apply.
13. Successors. This Agreement shall inure to the benefit of and
be binding upon the Trustees and UICI and its legal representatives, successors
and assigns.
14. 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.
15. Governing Law. This Agreement shall be construed in
accordance with the internal law (and not the law of conflicts) of the
Commonwealth of Pennsylvania.
16. Severability. In case any one or more of (a) the provisions
contained in this Voting Trust Agreement or (b) the deposits of the Trust
Securities 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.
17. 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.
* * * * * * *
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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/s/ Michael Ashker
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Michael Ashker
/s/ Edward W. LeBaron, Jr.
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Edward W. LeBaron, Jr.
/s/ Dennis B. Maloney
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Dennis B. Maloney
UICI:
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UICI
By: /s/ Glen Reed
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Name: Glen Reed
Title: Executive Vice President and General Counsel
Acknowledged and accepted:
HEALTHAXIS, INC.
By: /s/ Michael Ashker
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Name: Michael Ashker
Title: President and CEO
HEALTHAXIS.COM, INC.
By: /s/ Michael Ashker
-------------------------
Name: Michael Ashker
Title: President and CEO