Exhibit 2.2
EXECUTION COPY
VOTING AGREEMENT
VOTING AGREEMENT, dated as of
September 27, 2005 (this “ Agreement ”), by
and between WellPoint, Inc., an Indiana corporation (“
Purchaser ”), and The New York Public Asset Fund, the
“public asset fund” established by Chapter One of the
New York Laws of 2002, and specifically §4301(j) and
§7317 of the New York Insurance Law (“
Stockholder ”), a stockholder of WellChoice, Inc., a
Delaware corporation (“ Company ”).
WITNESSETH:
WHEREAS, concurrently with the
execution of this Agreement, Purchaser, WellPoint Holding Corp.
(“ Merger Sub ”) and Company are entering into
an Agreement and Plan of Merger (the “ Merger
Agreement ”), pursuant to which Company will be merged
with and into Merger Sub, Merger Sub will be the surviving
corporation in the merger and will be a wholly owned subsidiary of
Purchaser, all upon the terms and subject to the conditions set
forth in the Merger Agreement (the “ Merger ”),
unless a Reverse Merger Election is made by Purchaser in accordance
with the Merger Agreement, in which case Merger Sub will be merged
with and into Company, Company will be the surviving corporation in
the Merger and will be a wholly owned subsidiary of Purchaser.
Unless otherwise indicated, capitalized terms not defined herein
have the meanings given to them in the Merger Agreement;
WHEREAS, Stockholder is a
stockholder of Company and, with respect to the Merger, has the
power to vote or direct the voting of (a) 52,001,903 shares of
the common stock, $0.01 par value, of Company owned of record
and beneficially by Stockholder and (b) 1 share of the Class B
common stock, $0.01 par value, of Company owned of record and
beneficially by Stockholder, which represent all of the shares of
common stock of Company owned by it (collectively, the “
Shares ” and, together with any additional securities
of Company described in Section 1.2, being referred to herein
as the “ Subject Shares ”);
WHEREAS, prior to the date hereof,
the Board of Directors of Company has approved this Agreement and
the transactions contemplated hereby for purposes of
Section 203 of the Delaware General Corporation Law;
and
WHEREAS, as a material inducement to
enter into the Merger Agreement and to consummate the Merger,
Purchaser desires Stockholder to agree, and Stockholder is willing
to agree (i) subject to the terms of this Agreement,
including, without limitation, Section 6 of this Agreement, to
Vote (as defined in Section 1.1(b) below) or cause to be Voted
the Subject Shares so as to facilitate the consummation of the
Merger and (ii) to comply in all respects with all of the
terms of this Agreement.
NOW, THEREFORE, for good and
valuable consideration, the receipt, sufficiency and adequacy of
which is hereby acknowledged, and intending to be legally bound,
the parties agree as follows:
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1.
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Voting of
Subject Shares .
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Section 1.1 Voting
Agreement . (a) At every meeting of the stockholders of Company
called with respect to any of the following, and at every
adjournment or postponement thereof,
and on every action or approval by written
consent of the stockholders of Company with respect to any of the
following, Stockholder shall Vote or cause to be Voted the Subject
Shares in favor of adoption and approval of the Merger Agreement
and the terms thereof, the Merger and each of the other
transactions contemplated thereby and any other action reasonably
requested by Purchaser in furtherance thereof. Furthermore,
Stockholder shall not enter into any agreement, arrangement or
understanding with any Person to Vote or give instructions
inconsistent with this Section 1.1(a), and shall not take any
other action that would, or would reasonably be expected to, in any
manner compete with, interfere with, impede, frustrate, prevent,
burden, delay or nullify the Merger, the Merger Agreement or any of
the other transactions contemplated by the Merger
Agreement.
(b) In addition to the foregoing, at
any meeting of Company stockholders or at any adjournment or
postponement thereof or in any other circumstances upon which their
Vote, consent or other approval is sought, Stockholder shall Vote
(or cause to be Voted) all of the Subject Shares against
(i) the approval of any Alternative Transaction or the
adoption of any agreement relating to any Alternative Transaction
or (ii) any amendment of Company’s Certificate of
Incorporation or Bylaws or any other action, agreement, proposal or
transaction involving Company or any of its Subsidiaries which
amendment or other action, agreement, proposal or transaction
would, or would reasonably be expected to, result in a breach of
any covenant, representation or warranty or any other obligation or
agreement of Company contained in the Merger Agreement or of
Stockholder contained in this Agreement or would, or would
reasonably be expected to, in any manner compete with, interfere
with, impede, frustrate, prevent, burden, delay or nullify the
Merger, the Merger Agreement or any of the other transactions
contemplated by the Merger Agreement. Stockholder further agrees
not to commit or agree to take any action inconsistent with the
foregoing. For purposes of this Agreement, “ Vote
” shall mean voting in person or by proxy in favor of or
against any action, otherwise consenting or withholding consent in
respect of any action (including, without limitation, consenting in
accordance with Section 228 of the DGCL) or taking other
action in favor of or against any action; “ Voting
” and “ Voted ” shall have correlative
meanings. Any such Vote shall be cast or consent shall be given for
purposes of this Section 1 in accordance with such procedures
relating thereto as shall ensure that it is duly counted for
purposes of determining that a quorum is present and for purposes
of recording in accordance herewith the results of such Vote or
consent.
Section 1.2 Adjustments;
Additional Shares . In the event (a) of any stock
dividend, stock split, recapitalization, reclassification,
subdivision, combination or exchange of shares on, of or affecting
the Subject Shares, or (b) that Stockholder shall have become
the beneficial owner of any additional shares of common stock or
other securities of Company, then all shares of common stock or
other securities of Company held by Stockholder immediately
following the effectiveness of the events described in clause
(a) or Stockholder becoming the beneficial owner of the shares
or other securities as described in clause (b), shall in each case
become Subject Shares hereunder.
Section 1.3 Stockholder
Capacity . Stockholder is entering into this Agreement only in
its capacity as the “public asset fund” established by
Chapter One of the New York Laws of 2002, and specifically
§4301(j) and §7317 of the New York Insurance Law and the
record and beneficial owner of the Subject Shares, and nothing
herein shall prevent any representative of Stockholder from
discharging his or her fiduciary duties as a member of the Board of
Directors of Company.
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Section 1.4 Waiver of
Appraisal Rights . Stockholder hereby irrevocably and
unconditionally waives any rights of appraisal, dissenters’
rights or similar rights that Stockholder may have in connection
with the Merger.
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2.
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Transfer
Restrictions and Obligations
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Section 2.1 Lock-Up .
After the execution of this Agreement until the Expiration Date,
Stockholder will not:
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(a)
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sell, transfer,
exchange, pledge, assign, hypothecate, encumber, tender or
otherwise dispose of (collectively, a “ Transfer
”), or enforce or permit the execution of the provisions of
any redemption, share purchase or sale, recapitalization or other
agreement with Company or any other Person or enter into any
contract, option or other agreement, arrangement or understanding
with respect to the Transfer of, directly or indirectly, any of the
Subject Shares or any securities convertible into or exercisable or
exchangeable for Subject Shares, any other capital stock of Company
or any interest in any of the foregoing with any Person, or join in
any registration statement under the Securities Act with respect to
any of the foregoing;
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(b)
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enter into swap
or any other agreement or any transaction that transfers, in whole
or in part, directly or indirectly, the economic consequence of
ownership of Subject Shares; or
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(c)
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create or
permit to exist any liens, claims, options, charges or other
encumbrances on or otherwise affecting any of the Subject
Shares.
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Section 2.2 Other
Obligations . From and after the date of this Agreement,
Stockholder agrees (a) not to, and to cause any investment
banker, attorney or other advisor or representative of Stockholder
not to, directly or indirectly, solicit, initiate, encourage or
facilitate, or furnish or disclose non-public information in
furtherance of, any inquiries or the making of any proposal or
offer with respect to any Alternative Transaction, or negotiate,
explore or otherwise engage in discussions with any Person with
respect to any Alternative Transaction, or approve, endorse or
recommend any Alternative Transaction, or enter into any agreement,
arrangement or understanding with respect to any Alternative
Transaction and (b) not to take any action which would make
any representation or warranty of Stockholder herein untrue or
incorrect. Stockholder shall notify Purchaser promptly (but in any
event within 24 hours) of any such inquiries, proposals or
offers received by, or any such discussions or negotiations sought
to be initiated or continued with, Stockholder or any of its
representatives, indicating the name of such Person and providing
to Purchaser a summary of the material terms of such proposal or
offer for an Alternative Transaction.
Section 2.3 Voting Trust and
Divestiture Agreement . Immediately following the closing of
the Merger, Purchaser and Stockholder shall jointly notify, in
writing, the trustee under the Voting Trust and Divestiture
Agreement, dated as of November 7, 2002, by and
among
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Company, Stockholder and The Bank of New
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