<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 12, 1999
REGISTRATION NO. 333-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------
WELLPOINT HEALTH NETWORKS INC.
(Exact name of Registrant as specified in its charter)
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DELAWARE 95-4635504
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
1 WELLPOINT WAY
THOUSAND OAKS, CA 91362
(Address of principal executive offices) (zip code)
-------------
401(K) RETIREMENT SAVINGS PROGRAM OF WELLPOINT HEALTH NETWORKS INC.
(Full title of the plan)
-------------
THOMAS C. GEISER, ESQ.
Executive Vice President and General Counsel
WELLPOINT HEALTH NETWORKS INC.
1 WellPoint Way, Thousand Oaks, CA 91362
(Name and address of agent for service)
(818) 703-4000
(Telephone number, including area code, of agent for service)
Copies to:
Barry W. Homer, Esq.
Brobeck, Phleger & Harrison LLP
One Market Plaza
Spear Street Tower
San Francisco, California 94105
This Registration Statement shall become effective immediately upon filing with
the Securities and Exchange Commission in accordance with Section 8(a) of the
Securities Act of 1933 and Rule 462 thereunder.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------
Proposed Proposed
Title of Amount Maximum Maximum
Securities to be Offering Aggregate Amount of
to be Registered Price Offering Registration
Registered (1) (2) per Share (3) Price (3) Fee
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value,
issued pursuant to:
401(k) Retirement Savings 500,000 $63.44 $31,720,000 $8,818.16
Program of WellPoint
Health Networks Inc. (1)
- --------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of plan
interests to be offered or sold pursuant to the 401(k) Retirement Savings
Program of WellPoint Health Networks Inc.
(2) This Registration Statement also covers any additional shares of Common
Stock that are acquired under the employee benefit plans listed above by
reason of any stock dividend, stock split, recapitalization or other
similar transaction effected without the receipt of consideration which
results in an increase in the number of the Registrant's outstanding shares
of Common Stock.
(3) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933 on the basis of the average of the high and low
selling price per share of Common Stock of WellPoint Health Networks Inc.
on November 8, 1999, as reported by the New York Stock Exchange.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of the Registrant filed with the Commission
(File No. 001-13803) are incorporated by reference:
(a) The Registrant's Registration Statement on Form 8-B filed on June 12,
1997, pursuant to Section 12(g) of the Exchange Act;
(b) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1998;
(c) The Registrant's Quarterly Report on Form 10-Q for the quarters ended
March 31, 1999 and June 30, 1999; and
(d) The 401(k) Retirement Savings Program's latest annual report on
Form 11-K filed with the Commission on June 29, 1999.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934 after the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which designates all securities then remaining unsold shall be
deemed to be incorporated by reference into this Registration Statement and to
be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is deemed to
be incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant is a Delaware corporation. Section 145 of the
Delaware General Corporation Law (the "Delaware Law") empowers a Delaware
corporation to indemnify any persons who are, or are threatened to be made,
parties to any threatened, pending or completed legal action, suit or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of such corporation), by reason of the fact
that such person was an officer or director of such corporation, or is or was
serving at the request of such corporation as a director, officer, employee
or agent of another corporation or enterprise. The indemnity may include
expenses (including attorney's fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding, provided that such officer or director acted
in good faith and in a manner he reasonably believed to be in or not opposed
to the corporation's best interests, and, for criminal
II-1
<PAGE>
proceedings, had no reasonable cause to believe his conduct was illegal. A
Delaware corporation may indemnify officers and directors in an action by or
in the right of the corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation in the performance of
his duty. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation
must indemnify him against the expenses which such officer or director
actually and reasonably incurred.
The Registrant's Certificate of Incorporation provides that the
liability of the Registrant's directors to the Registrant or the Registrant's
stockholders for monetary damages for breach of fiduciary duty will be
eliminated to the fullest extent permissible under Delaware law except for (i)
breaches of duty of loyalty; (ii) acts or omissions not in good faith or
involving intentional misconduct or knowing violations of the law; (iii) the
payment of unlawful dividends or unlawful stock repurchases or redemptions; or
(iv) transactions in which a director received an improper personal benefit.
The effect of these provisions is to eliminate the rights of the
Registrant and its stockholders (through stockholders' derivative suits on
behalf of the Registrant) to recover monetary damages against a director for
breach of fiduciary duty of care as a director (including breaches resulting
from negligent or grossly negligent behavior) except in certain limited
situations. These provisions do not limit or eliminate the rights of the
Registrant or any stockholder to seek non-monetary relief such as an injunction
or rescission in the event of a breach of a director's duty of care. These
provisions will not alter the liability of directors under federal securities
law.
The Registrant's Bylaws provide that the Registrant will indemnify each
present and former director and officer of the registrant or a predecessor
company and each of their respective subsidiaries, as such companies exist or
have existed, and such agents of the Registrant as the Board of Directors shall
determine, to the fullest extent provided by Delaware law.
In addition, the Registrant has entered into indemnification agreements
with its directors and certain officers that provide for the maximum
indemnification permitted by law.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
Item 8. EXHIBITS
EXHIBIT NUMBER EXHIBIT
4.1 Restated Certificate of Incorporation of the Registrant.
Incorporated by reference to Exhibit 3.1 to the Registrant's
Current Report on Form 8-K, filed August 5, 1997.
4.2 Bylaws of the Registrant.
4.3 Specimen Stock Certificate of the Registrant incorporated by
reference to Exhibit 4.4 of Registrant's Registration
Statement No. 000-13083 on Form 8-B.
5.1 Internal Revenue Service determination letter, dated November
8, 1995, that the WellPoint Health Networks Inc. Salary
Deferral Savings Program (now known as the 401(k) Retirement
Savings Program) is qualified under Section 401 of the
Internal Revenue Code. Incorporated by reference to Exhibit
5.2 of Registrant's Registration Statement on Form S-8
(Registration No. 333-05111).
23.1 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney. Reference is made to the signature page of
this Registration
II-2
<PAGE>
Statement.
Item 9. UNDERTAKINGS.
A. The undersigned Registrant hereby undertakes: (1) to file,
during any period in which offers or sales are being made, a post-effective
amendment to this registration statement (i) to include any prospectus required
by Section 10(a)(3) of the Securities Act of 1933, (ii) to reflect in the
prospectus any facts or events arising after the effective date of the
registration statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement, and (iii) to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement; PROVIDED, however, that clauses
(1)(i) and (1)(ii) shall not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference into the
Registration Statement; and (2) that for the purpose of determining any
liability under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial BONA FIDE offering thereof; and (3) to remove from
registration by means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the offering.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference into the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-3
<PAGE>
SIGNATURES
REGISTRANT. Pursuant to the requirements of the Securities Act of 1933,
as amended, Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Thousand Oaks, State of California, on this 10th
day of November, 1999.
WELLPOINT HEALTH NETWORKS INC.
By: /s/ Leonard D. Schaeffer
------------------------
Leonard D. Schaeffer
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of WellPoint Health
Networks Inc., a Delaware corporation, do hereby constitute and appoint Leonard
D. Schaeffer, Chairman of the Board of Directors and Chief Executive Officer and
Thomas C. Geiser, Esq., Executive Vice President, General Counsel and Secretary,
or any one of them, the lawful attorney-in-fact and agent, each with full power
and authority to do any and all acts and things and to execute any and all
instruments which said attorney and agent determines may be necessary or
advisable or required to enable said corporation to comply with the Securities
Act of 1933, as amended, and any rules or regulation or requirements of the
Commission in connection with this Registration Statement. Without limiting the
generality of the foregoing power and authority, the powers granted include the
power and authority to sign the names of the undersigned officers and directors
in the capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement and to any and all instruments or documents filed as part
of or in conjunction with this Registration Statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
all that said attorneys and agents, or any one of them, shall do or cause to be
done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C> <C>
/s/ Leonard D. Schaeffer - Chairman of the Board of Directors November 10, 1999
- ------------------------ and Chief Executive Officer
Leonard D. Schaeffer (Principal Executive Officer)
/s/ David C. Colby Executive Vice President and November 10, 1999
- ------------------------ - Chief Financial Officer (Principal
David C. Colby Financial Officer)
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Signatures Title Date
- ---------- ----- ----
/s/ S. Louise McCrary - Senior Vice President and November 10, 1999
- --------------------- Chief Accounting Officer
S. Louise McCrary (Principal Accounting Officer)
/s/ W. Toliver Besson - Director November 10, 1999
- ---------------------
W. Toliver Besson, Esq.
/s/ Roger E. Birk - Director November 10, 1999
- -----------------
Roger E. Birk
/s/ Sheila P. Burke - Director November 10, 1999
- -------------------
Sheila P. Burke
/s/ Stephen L. Davenport - Director November 10, 1999
- ------------------------
Stephen L. Davenport
/s/ Julie A. Hill - Director November 10, 1999
- ------------------------
Julie A. Hill
/s/ Elizabeth A. Sanders - Director November 10, 1999
- ------------------------
Elizabeth A. Sanders
</TABLE>
II-5
<PAGE>
SALARY DEFERRAL SAVINGS PROGRAM. Pursuant to the requirements of the
Securities Act of 1933, as amended, the Salary Deferral Savings Program of
WellPoint Health Networks Inc. has caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Thousand Oak, State of California, on this 10th day of November, 1999.
SALARY DEFERRAL SAVINGS PROGRAM OF WELLPOINT
HEALTH NETWORKS INC.
By: /s/ Thomas C. Geiser
--------------------
<PAGE>
EXHIBIT INDEX
Exhibit Number Exhibit
- -------------- -------
4.1 Restated Certificate of Incorporation of the Registrant.
Incorporated by reference to Exhibit 3.1 to the Registrant's
Current Report on Form 8-K, filed August 5, 1997.
4.2 Bylaws of the Registrant.
4.3 Specimen Stock Certificate of the Registrant incorporated by
reference to Exhibit 4.4 of Registrant's Registration
Statement No. 000-13083 on Form 8-B.
5.1 Internal Revenue Service determination letter, dated November
8, 1995, that the WellPoint Health Networks Inc. Salary
Deferral Savings Program (now known as the 401(k) Retirement
Savings Plan) is qualified under Section 401 of the Internal
Revenue Code. Incorporated by reference to Exhibit 5.2 of
Registrant's Registration Statement on Form S-8 (Registration
No. 333-05111).
23.1 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney. Reference is made to the signature page of
this Registration Statement.
<PAGE>
Exhibit 4.2
BYLAWS OF WELLPOINT HEALTH NETWORKS INC.
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL OFFICE
The Board of Directors shall fix the location of the principal executive
office of the Corporation at any place within or outside the State of
Delaware. If the principal executive office is located outside this state,
and the Corporation has one or more business offices in this state, the Board
of Directors shall fix and designate a principal business office in the State
of Delaware.
SECTION 2. OTHER OFFICES
The Board of Directors may at any time establish branch or subordinate
offices at any place or places within or outside the State of Delaware as the
Board of Directors may from time to time determine or as the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS
Meetings of stockholders shall be held at any place within or outside
the State of Delaware designated by the Board of Directors. In the absence
of any such designation by the Board of Directors, stockholders' meetings
shall be held at the principal executive office of the Corporation.
SECTION 2. ANNUAL MEETINGS
The annual meeting of the stockholders for the election of directors and
for the transaction of such other business as may properly come before such
meeting shall be held on the second Tuesday of May each year at 10:00 A.M.,
if not a legal holiday under the laws of the place where such meeting is to
be held, and if a legal holiday, then on the next succeeding day not a legal
holiday under the laws of that place, or on such other date and at such hour
as may be fixed from time to time by the Board of Directors.
SECTION 3. SPECIAL MEETINGS
Subject to the rights of holders of any class or series of stock having
a preference over the Corporation's common stock (the "Common Stock"), a
special meeting of the stockholders may be called at any time by a majority
of the entire Board of Directors, the Chairman of the Board, the President or
the holders of shares entitled to cast not less than 10% of the votes at the
meeting.
If a special meeting is called by any person or persons other than the
Board of Directors, the Chairman of the Board or the President, the request
shall be in writing, specifying the time of such
1.
<PAGE>
meeting and the general nature of the business proposed to be transacted, and
shall be delivered personally or sent by registered mail or by telegraphic or
other facsimile transmission to the Chairman of the Board, the President, any
Vice President, or the Secretary of the Corporation.
SECTION 4. NOTICE OF STOCKHOLDERS' MEETINGS
All notices of meetings of stockholders shall be sent or otherwise given
in accordance with Section 5 of this Article II not less than 10 nor more
than 60 days before the date of the meeting. The notice shall specify the
place, date and hour of the meeting and (i) in the case of a special meeting,
the general nature of the business to be transacted, and no other business
may be transacted or (ii) in the case of the annual meeting, those matters
which the Board of Directors, at the time of giving the notice, intends to
present for action by the stockholders. The notice of any meeting at which
directors are to be elected shall include the names of nominees intended at
the time of the notice to be presented by the Board of Directors for election.
If action is proposed to be taken at any meeting for approval of (i)
amendment of the Certificate of Incorporation, pursuant to Section 242 of the
Delaware General Corporation Law (the "DGCL"), (ii) a merger or
consolidation of the Corporation, pursuant to Subchapter IX of the DGCL, or
(iii) a voluntary dissolution of the Corporation, pursuant to Subchapter X of
the DGCL; the notice shall also state the general nature of that proposal.
SECTION 5. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Notice of any meeting of stockholders shall be given either personally
or by first-class mail or telegraphic or other written communication, charges
prepaid, addressed to the stockholder at the address of that stockholder
appearing on the books of the Corporation or given by the stockholder to the
Corporation for the purpose of notice. If no such address appears on the
Corporation's books or is given, notice shall be deemed to have been given if
sent to that stockholder by first-class mail or telegraphic or other written
communication to the Corporation's principal executive office, or if
published at least once in a newspaper of general circulation in the county
in which that office is located. Notice shall be deemed to have been given
at the time when delivered personally or deposited in the mail or sent by
telegram or other means of written communication.
If any notice addressed to a stockholder at the address of that
stockholder appearing on the books of the Corporation is returned to the
Corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the notice to the
stockholder at that address, all future notices or reports shall be deemed to
have been duly given without further mailing if such notices or reports shall
be available to the stockholder on written demand of the stockholder at the
principal executive office of the Corporation for a period of one year from
the date of the giving of such notice or report to other stockholders.
An affidavit of the mailing or other means of giving any notice of any
stockholders' meeting shall be executed by the Secretary, Assistant
Secretary, or any transfer agent of the Corporation giving the notice, and
shall be filed and maintained in the minute book of the Corporation.
2.
<PAGE>
SECTION 6. QUORUM
The presence in person or by proxy of the holders of a majority of the
shares entitled to vote at any meeting of stockholders shall constitute a
quorum (unless reduced by an amendment to the Certificate of Incorporation of
the Corporation, but in any case no fewer than one-third of the shares
entitled to vote) for the transaction of business. The stockholders present
at a duly called or held meeting at which a quorum is present may continue to
do business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum, if any action taken (other than
adjournment) is approved by at least a majority of the shares required to
constitute a quorum.
SECTION 7. ADJOURNED MEETING; NOTICE
Any stockholders' meeting, annual or special, whether or not a quorum is
present, may be adjourned from time to time by the vote of the majority of
the shares represented at that meeting, either in person or by proxy, but in
the absence of a quorum, no other business may be transacted at that meeting,
except as provided in Section 6 of this Article II.
When any meeting of stockholders, either annual or special, is adjourned
to another time or place, notice need not be given of the adjourned meeting
if the time and place are announced at a meeting at which the adjournment is
taken, unless a new record date for the adjourned meeting is fixed, or unless
the adjournment is for more than 30 days from the date set for the original
meeting, in which case the Board of Directors shall set a new record date.
Notice of any such adjourned meeting shall be given to each stockholder of
record entitled to vote at the adjourned meeting in accordance with the
provisions of Sections 4 and 5 of this Article II. At any adjourned meeting
the Corporation may transact any business which might have been transacted at
the original meeting.
SECTION 8. VOTING
The stockholders entitled to vote at any meeting of stockholders shall
be determined in accordance with the provisions of Section 11 of this Article
II, subject to the provisions of Section 217 of the DGCL (relating to voting
shares held by a fiduciary, pledges or in joint ownership). The
stockholders' vote may be by voice vote (unless required by law or determined
by a majority of the Board of Directors to be unadvisable) or by ballot;
PROVIDED, HOWEVER, that any election for directors must be by ballot if
demanded by any stockholder before the voting has begun. Any stockholder may
vote part of the shares in favor of the proposal and refrain from voting the
remaining shares or vote them against the proposal, but, if the stockholder
fails to specify the number of shares which such stockholder is voting
affirmatively, it will be conclusively presumed that the stockholder's
approving vote is with respect to all shares that such stockholder is
entitled to vote. If a quorum is present, the affirmative vote of the
majority of the shares represented at the meeting and entitled to vote on any
matter (other than the election of directors) shall be the act of the
stockholders, unless the vote of a greater number or voting by classes is
required under applicable law or by the Certificate of Incorporation.
At a stockholders' meeting at which directors are to be elected, no
stockholder shall be entitled to cumulate votes.
3.
<PAGE>
At any meeting of stockholders at which shares of Common Stock are voted
that are held of record by the trustee pursuant to the Voting Trust Agreement
(the "Foundation Voting Trust") effective as of May 20, 1996 by and between
California HealthCare Foundation and Wilmington Trust Company, as trustee
(the "Foundation Trust Shares") (or any successor agreement thereto) or
held by the Share Escrow Agent pursuant to Article VII of the Corporation's
Certificate of Incorporation ("Excess Shares"), the polls at such meeting
shall be conditionally closed following such time as stockholders have cast
their votes either by proxy or by ballot. Thereafter, following a
preliminary tabulation of the votes cast at such meeting, the polls shall be
reopened solely for the purpose of permitting the Foundation Trust Shares,
and any Excess Shares pursuant to Article VII of the Corporation's
Certificate of Incorporation, if any, to be voted in accordance with the
Foundation Voting Trust, or Article VII of the Corporation's Certificate of
Incorporation, as the case may be.
SECTION 9. WAIVER OF NOTICE OR CONSENT BY ABSENT STOCKHOLDERS
The transactions of any meeting of the stockholders, either annual or
special, however called and noticed, and wherever held, shall be as valid as
though had at a meeting duly held after regular call and notice, if a quorum
be present either in person or by proxy, and if, either before or after the
meeting, each person entitled to vote thereat, not present in person or by
proxy, signs a written waiver of notice or a consent to the holding of the
meeting or an approval of the minutes thereof. The waiver of notice or
consent need not specify either the business to be transacted or the purpose
of any annual or special meeting of stockholders. All such waivers, consents
or approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
Attendance by a person at a meeting shall also constitute a waiver of
notice of that meeting, except when the person objects, at the beginning of
the meeting, to the transaction of any business because the meeting is not
lawfully called or convened, and except that attendance at a meeting is not a
waiver of any right to object to the consideration of matters not included in
the notice of the meeting if that objection is expressly made at the meeting.
SECTION 10. STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Notwithstanding anything contained in these Bylaws to the contrary, no
action required or permitted to be taken at any meeting of stockholders of
the Corporation may be taken by written consent without a meeting of
stockholders.
SECTION 11. RECORD DATE FOR STOCKHOLDER NOTICE AND VOTING
For purposes of determining the stockholders entitled to notice of any
meeting or to vote, the Board of Directors may fix, in advance, a record
date, which shall not be more than 60 days nor less than 10 days before the
date of any such meeting, and in this event only stockholders of record on
the date so fixed are entitled to notice and to vote, notwithstanding any
transfer of any shares on the books of the Corporation after the record date,
except as otherwise provided in the DGCL.
If the Board of Directors does not so fix a record date, the record date
for determining
4.
<PAGE>
stockholders entitled to notice of or to vote at a meeting of stockholders
shall be at the close of business on the business day next preceding the day
on which notice is given or, if notice is waived, at the close of business on
the business day next preceding the day on which the meeting is held.
SECTION 12. PROXIES
Every person entitled to vote for directors or on any other matter shall
have the right to do so either in person or by one or more agents authorized
by a written proxy signed by the person and filed with the Secretary of the
Corporation. A proxy shall be deemed signed if the stockholder's name is
placed on the proxy (whether by manual signature, typewriting, telegraphic
transmission, or otherwise) by the stockholder or the stockholder's attorney
in fact. A validly executed proxy which does not state that it is
irrevocable shall continue in full force and effect unless (i) revoked by the
person executing it, before the vote pursuant to that proxy, by a writing
delivered to the Corporation stating that the proxy is revoked, or by a
subsequent proxy executed by, or attendance at the meeting and voting in
person by, the person executing the proxy; or (ii) written notice of the
death or incapacity of the maker of that proxy is received by the Corporation
before the vote pursuant to that proxy is counted; PROVIDED, HOWEVER, that no
proxy shall be valid after the expiration of three (3) years from the date of
the proxy, unless otherwise provided in the proxy. The revocability of a
proxy that states on its face that it is irrevocable shall be governed by the
provisions of Section 212 of the DGCL.
SECTION 13. INSPECTORS OF ELECTION
Before any meeting of stockholders, the Board of Directors shall appoint
a person other than nominees for office, directors or stockholders to act as
inspectors of election at the meeting or its adjournment. If any person
appointed as inspector fails to appear or fails or refuses to act, the
chairman of the meeting shall appoint a person to fill that vacancy.
The inspector shall:
(a) Determine the number of shares outstanding and the voting power of
each, the shares represented at the meeting, the existence of a quorum, and
the authenticity, validity, and effect of proxies;
(b) Receive votes or ballots;
(c) Hear and determine all challenges and questions in any way arising in
connection with the right to vote;
(d) Count and tabulate all votes;
(e) Determine when the polls shall close;
(f) Determine the result; and
(g) Do any other acts that may be proper to conduct the election or vote
with fairness to
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all stockholders.
ARTICLE III
DIRECTORS
SECTION 1. POWERS
Subject to the provisions of the DGCL and any limitations in the
Corporation's Certificate of Incorporation relating to action required to be
approved by the stockholders or by the outstanding shares, the business and
affairs of the Corporation shall be managed and all corporate powers shall be
exercised by or under the direction of the Board of Directors.
Without prejudice to these general powers, and subject to the same
limitations, the directors shall have the power to:
(a) Select and remove all officers, agents, and employees of the
Corporation; prescribe any powers and duties for them that are consistent
with law, with the Certificate of Incorporation, and with these Bylaws; fix
their compensation; and require from them security for faithful service.
(b) Change the registered office in the State of Delaware from one
location to another; cause the Corporation to be qualified to do business in
any other state, territory, dependency, or country and conduct business
within or outside the State of Delaware; and designate any place within or
outside the State of Delaware for the holding of any stockholders' meeting,
or meetings, including annual meetings.
(c) Adopt, make, and use a corporate seal; prescribe the forms of
certificates of stock; and alter the form of the seal and certificates.
(d) Authorize the issuance of shares of stock of the Corporation on any
lawful terms, in consideration of money paid, labor done, services actually
rendered, debts or securities cancelled, or tangible or intangible property
actually received.
(e) Borrow money and incur indebtedness on behalf of the Corporation,
and cause to be executed and delivered for the Corporation's purposes, in the
corporate name, promissory notes, bonds, debentures, deeds of trust,
mortgages, pledges, hypothecations, and other evidences of debt and
securities.
SECTION 2. NUMBER AND QUALIFICATION OF DIRECTORS
Until the expiration of the Initial Period, the Board of Directors shall
consist of nine (9) members. For purposes hereof, "Initial Period" shall
mean the period commencing as of May 20, 1996 and ending upon the date on
which California HealthCare Foundation and its affiliates, when taken
together, cease to Beneficially Own Capital Stock (as defined in Section
14(d) of Article VII of the Corporation's Certificate of Incorporation) in
excess of the Ownership Limit (as defined in Section 14(f) of Article VII of
the Corporation's Certificate of Incorporation).
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Each of the directors of the Corporation shall hold office for the term
for which he or she is elected and until (i) his or her successor has been
elected and qualified or (ii) his or her earlier death, resignation or
removal. The directors of the Corporation shall be classified, with respect
to the time for which they hold office, into three classes as nearly equal in
number as possible: Class I, consisting of Roger E. Birk, Elizabeth A.
Sanders and Sheila P. Burke, whose term expires at the annual meeting of
stockholders held in 2000, and Class II, consisting of David R. Banks and
Stephen L. Davenport, whose term expires at the annual meeting of
stockholders held in 1998 and Class III, consisting of Julie A. Hill, W.
Toliver Besson and Leonard D. Schaeffer, whose term expires at the annual
meeting of stockholders held in 1999, with each class to hold office until
its successors are elected and qualified. If the number of directors is
changed by the Board of Directors, then any newly created directorships or
any decrease in directorships shall be so apportioned among the classes as to
make all classes as nearly equal as possible; PROVIDED, that no decrease in
the number of directors shall shorten the term of any incumbent director. At
each annual meeting of the stockholders, subject to the rights of the holders
of any class or series of stock having a preference over the Common Stock as
to dividends or upon liquidation, the successors of the class of directors
whose term expires at that meeting shall be elected to hold office for a term
expiring at the annual meeting of stockholders held in the third year
following the year of their election.
Directors need not be stockholders. In any election of directors, the
persons receiving a plurality of the votes cast, up to the number of
directors to be elected in such election, shall be deemed to be elected.
SECTION 3. VACANCIES
In the case of any vacancy on the Board of Directors or in the case of
any newly created directorship, a director elected to fill the vacancy or the
newly created directorship for the unexpired portion of the term being
filled, shall be elected by a vote of not less than a majority of the
directors of the Corporation then in office, from a list of one or more
persons proposed in accordance with the nominating process specified in
Article IV, Section 2 of these Bylaws, or, in the absence of such list being
arrived at in accordance with the nominating process specified in Article IV,
Section 2 of these Bylaws, then by the vote of a majority of the Board of
Directors, PROVIDED, HOWEVER, during the Initial Period, in the case of
replacing or filling a vacancy of a BCC Designee (as such term is defined in
Article IV, Section 2), the vote shall be of not less than a majority of the
remaining BCC Designees and, in the case of replacing or filling a vacancy of
a WellPoint Designee (as such term is defined in Article IV, Section 2), the
vote shall be of not less than a majority of the remaining WellPoint
Designees. Each director so elected shall hold office until the next annual
meeting of the stockholders at which the class for which such director has
been chosen is elected and until a successor has been elected and
qualified. A vacancy or vacancies in the Board of Directors shall be deemed
to exist in the event of the death, resignation, or removal of any director,
or if the Board of Directors by resolution declares vacant the office of a
director who has been declared of unsound mind by an order of court or
convicted of a felony, or if the authorized number of directors is increased,
or if the stockholders fail, at any meeting of stockholders at which any
director or directors are elected, to elect the number of directors to be
voted for at that meeting.
The stockholders may elect a director or directors at any time to fill
any vacancy or
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vacancies not filled by the directors.
Any director may resign effective upon giving written notice to the
Chairman of the Board, the President, the Secretary, or the Board of
Directors, unless the notice specifies a later time for that resignation to
become effective. If the resignation of a director is effective at a future
time, the Board of Directors may elect a successor to take office when the
resignation becomes effective.
No reduction of the authorized number of directors shall have the effect
of removing any director before that director's term of office expires.
SECTION 4. REMOVAL OF DIRECTORS
Any or all of the directors may be removed, with or without cause, by
the affirmative vote of the holders of a majority of the voting power of the
shares of the Corporation's stock entitled to vote at an election of
directors. However, a director may not be removed without cause if the votes
cast against removal of the director would be sufficient to elect the
director if voted cumulatively (without regard to whether shares may
otherwise be voted cumulatively) at an election at which the same total
number of votes were cast and either the number of directors elected at the
most recent annual meeting of the stockholders, or if greater, the number of
directors for whom removal is being sought, were then being elected.
SECTION 5. PLACE OF MEETINGS AND MEETINGS BY TELEPHONE
Regular meetings of the Board of Directors may be held at any place
within or outside the State of Delaware that has been designated from time to
time by resolution of the Board of Directors. In the absence of such a
designation, regular meetings shall be held at the principal executive office
of the Corporation. Special meetings of the Board of Directors shall be held
at any place within or outside the State of Delaware that has been designated
in the notice of the meeting or, if not stated in the notice or if there is
no notice, at the principal executive office of the Corporation. Any
meeting, regular or special, may be held by conference telephone, electronic
video screen communication or other communications equipment, if (1) each
member participating in the meeting can communicate with all of the other
members concurrently, (2) each member is provided the means of participating
in all matters before the Board of Directors, including the capacity to
propose, or to interpose an objection, to a specific action to be taken by
the Corporation, and (3) the Corporation adopts and implements some means of
verifying that (a) a member communicating by telephone, electronic video
screen, or other communications equipment is a director entitled to
participate in the meeting and (b) all statements, questions, actions, or
votes were made by that director and not by another person not permitted to
participate as a director. Participation in a meeting as permitted by this
Section 5 constitutes presence in person at such meeting.
SECTION 6. REGULAR MEETINGS
Regular meetings of the Board of Directors shall be held without call at
such time as shall from time to time be fixed by the Board of Directors.
Such regular meetings may be held without notice.
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SECTION 7. SPECIAL MEETINGS
Special meetings of the Board of Directors for any purpose or purposes
may be called at any time by the Chairman of the Board, the President or by a
majority of directors.
Notice of the time and place of special meetings (but the purpose need
not be stated) shall be delivered personally or by telephone, facsimile, or
electronic mail message to each director or sent by first-class mail or
telegram, charges prepaid, addressed to each director at that director's
residence or usual place of business. In case the notice is mailed, it shall
be deposited in the United States mail at least two (2) calendar days before
the time of the holding of the meeting. In case the notice is delivered
personally, or by telephone, facsimile, electronic mail message, or telegram,
it shall be delivered personally or by telephone, facsimile, electronic mail
message, or to the telegraph company at least forty-eight (48) hours before
the time of the holding of the meeting. Any oral notice given personally or
by telephone may be communicated either to the director or to a person at the
office of the director who the person giving the notice has reason to believe
will promptly communicate it to the director. As used herein, notice by
telephone shall be deemed to include a voice messaging system or other system
or technology designed to record and communicate messages, or wireless, to
the recipient, including the recipient's designated voice mailbox or address
on such a system.
SECTION 8. QUORUM
A majority of the authorized number of directors shall constitute a
quorum for the transaction of business, except as so provided in Section 14
of this Article and as provided in Article IV. Every act done or decision
made by a majority of the directors present at a meeting duly held at which a
quorum is present shall be regarded as the act of the Board of Directors,
subject to the provisions of Section 144 of the DGCL (as to approval of
contracts or transactions in which a director has a direct or indirect
material financial interest), Section 141 of the DGCL (as to appointment of
committees), and Section 145 of the DGCL (as to indemnification of
directors). A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, if any action
taken is approved by at least a majority of the required quorum for that
meeting.
SECTION 9. WAIVER OF NOTICE
The transactions of any meeting of the Board of Directors, however
called and noticed or wherever held, shall be as valid as though had at a
meeting duly held after regular call and notice if a quorum is present and
if, either before or after the meeting, each of the directors not present
signs a written waiver of notice, a consent to holding the meeting or an
approval of the minutes. The waiver of notice or consent need not specify
the purpose of the meeting. All such waivers, consents, and approvals shall
be filed with the corporate records or made a part of the minutes of the
meeting. Notice of a meeting shall also be deemed given to any director who
attends the meeting without protesting before or at its commencement the lack
of notice to that director.
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SECTION 10. ADJOURNMENT
A majority of the directors present, whether or not constituting a
quorum, may adjourn any meeting to another time and place.
SECTION 11. NOTICE OF ADJOURNMENT
Notice of the time and place of holding an adjourned meeting need not be
given, unless the meeting is adjourned for more than 24 hours, in which case
notice of the time and place shall be given prior to the time of the
adjourned meeting, in the manner specified in Section 7 of this Article III,
to the directors who were not present at the time of the adjournment.
SECTION 12. ACTION WITHOUT MEETING
Any action required or permitted to be taken by the Board of Directors
may be taken without a meeting, if all members of the Board shall
individually or collectively consent in writing to that action. Such action
by written consent shall have the same force and effect as a unanimous vote
of the Board of Directors. Such written consent or consents shall be filed
with the minutes of the proceedings of the Board.
SECTION 13. FEES AND COMPENSATION OF DIRECTORS
Directors and members of committees may receive such compensation, if
any, for their services, and such reimbursement of expenses, as may be fixed
or determined by resolution of the Board of Directors. This Section 13 shall
not be construed to preclude any director from serving the Corporation in any
other capacity as an officer, agent, employee, or otherwise, and receiving
compensation for those services.
SECTION 14. RULES AND REGULATIONS
The Board of Directors may adopt such rules and regulations not
inconsistent with the provisions of the Certificate of Incorporation, these
Bylaws or applicable law for the conduct of its meetings and management of
the affairs of the Corporation as the Board of Directors may deem to be
proper.
SECTION 15. LOANS BY THE CORPORATION TO OFFICERS
The Board of Directors, acting alone (by a vote sufficient without
counting the vote of any interested director or directors), and without any
approval of the stockholders of the Corporation, shall be authorized to
approve the making of any loan of money or property by the Corporation to, or
the guarantee by the Corporation of the obligation of, any officer (whether
or not a director) of the Corporation, or an employee benefit plan
authorizing such a loan or guaranty to an officer (whether or not a
director), if the Board of Directors determines that such a loan or guaranty
or plan may reasonably be expected to benefit the Corporation.
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ARTICLE IV
COMMITTEES
SECTION 1. COMMITTEES
The Board may, by resolution adopted by a majority of the authorized
number of directors, designate one or more committees, each consisting of two
or more directors, to serve at the pleasure of the Board, PROVIDED, HOWEVER,
that any executive committee established pursuant to this provision shall,
during the Initial Period, have at least one member who shall be a BCC
Designee (as hereinafter defined) and a majority of members who shall be
non-BCC Designees. Subject to Section 2 of this Article IV, the Board may
designate one or more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of such
committee. Any committee, to the extent allowed by law and provided in these
Bylaws or the resolution establishing the committee, shall have all the
authority of the Board in the management and of the business and affairs of
the Corporation. Each committee shall keep regular minutes and report to the
Board when required.
SECTION 2. NOMINATING COMMITTEE
There shall be a Nominating Committee of the Board which shall consist
of three directors, at least one of whom shall be a BCC Designee and a
majority of members who shall be non-BCC Designees, and all of whom shall be
independent, but none of whom shall consist of the Chairman of the Board so
long as the Chairman of the Board is also an executive officer of the
Corporation. The Nominating Committee shall continue in existence, with the
power and authority specified in this Section 2, at least until the
expiration of the Initial Period. So long as it shall remain in existence,
the Nominating Committee shall have the power, acting by majority vote, to
nominate persons to serve as directors of the Corporation, subject (i) to any
rights of stockholders under law to nominate persons to serve as directors,
(ii) in the case of a person nominated to be a replacement for any BCC
Designee on the Board, the BCC Designee member(s) of the Nominating Committee
shall have a veto vote, (iii) in the case of a person nominated to be a
replacement for any WellPoint Designee on the Board, the Nominating Committee
shall not nominate such a person if a majority of the WellPoint Designee
members of the Nominating Committee oppose such a nomination, (iv) to any
contractual obligations of the Corporation, and (v) to the next paragraph
hereof.
So long as the Nominating Committee shall remain in existence, if the
Nominating Committee is unable to nominate a candidate for the Corporation's
Board of Directors as set forth above on a timely basis, nominations shall be
made by vote of a majority of the Board of Directors, PROVIDED, HOWEVER, in
the case of replacing a BCC Designee, by vote of a majority of the remaining
BCC Designees or, in the case of replacing a WellPoint Designee, by vote of a
majority of the remaining WellPoint Designees and with respect to any other
position on the Board, by a vote of a majority of the Board of Directors.
As used in these Bylaws, "BCC Designee" means each of W. Toliver
Besson, Stephen L. Davenport and Sheila P. Burke, or a direct or indirect
replacement thereof; "WellPoint Designees" shall mean Leonard D. Schaeffer,
David R. Banks, Roger E. Birk, Julie A. Hill and Elizabeth E. Sanders, or a
direct or indirect replacement thereof.
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SECTION 3. POWERS OF COMMITTEES
Any committee, to the extent allowed by law and provided in these Bylaws
or the resolution of the Board of Directors establishing the committee, shall
have all the authority of the Board of Directors, except with respect to:
(a) the approval of any action which, under the DGCL, also requires
stockholders' approval or approval of the outstanding shares;
(b) the filling of vacancies on the Board of Directors or in any
committee;
(c) the fixing of compensation of the directors for serving on the Board
of Directors or on any committee;
(d) the amendment or repeal of Bylaws or the adoption of new Bylaws;
(e) the amendment or repeal of any resolution of the Board of Directors;
(f) a distribution to the stockholders of the Corporation, except at a
rate or in a periodic amount or within a price range set forth in the
Corporation's Certificate of Incorporation or determined by the Board of
Directors; or
(g) the appointment of any other committees of the Board of Directors or
the members of these committees.
SECTION 4. MEETINGS AND ACTION OF COMMITTEES
Meetings and action of committees shall be governed by, and held and
taken in accordance with, the provisions of Article III of these Bylaws,
Section 5 (place of meetings), Section 6 (regular meetings), Section 7
(special meetings and notice), Section 8 (quorum), Section 9 (waiver of
notice), Section 10 (adjournment), Section 11 (notice of adjournment), and
Section 12 (action without meeting), with such changes in the context of
those Bylaws as are necessary to substitute the committee and its members for
the Board of Directors and its members, except that the time of regular
meetings of committees may be determined either by resolution of the Board of
Directors or by resolution of the committee; special meetings of committees
may also be called by resolution of the Board of Directors; and notice of
special meetings of committees shall also be given to all alternate members,
who shall have the right to attend all meetings of the committee. The Board
of Directors may adopt rules for the government of any committee not
inconsistent with the provisions of these Bylaws.
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ARTICLE V
OFFICERS
SECTION 1. OFFICERS
The officers of the Corporation shall be a Chairman of the Board, a
President, a Secretary, and a Chief Financial Officer. The Treasurer is the
Chief Financial Officer of the Corporation unless the Board of Directors has
by resolution determined a Vice President or other officer to be the Chief
Financial Officer. The Corporation may also have, at the discretion of the
Board of Directors, one or more vice presidents, one or more assistant
secretaries, one or more assistant treasurers, and such other officers as may
be appointed in accordance with the provisions of Section 3 of this Article
V. Any number of offices may be held by the same person.
SECTION 2. ELECTION OF OFFICERS
The officers of the Corporation, except such officers as may be
appointed in accordance with the provisions of Section 3 or Section 5 of this
Article V, shall be chosen by the Board of Directors, and each shall serve at
the pleasure of the Board, subject to the rights, if any, of any officer
under an express written contract of employment.
SECTION 3. SUBORDINATE OFFICERS
The Board of Directors may appoint, and may empower the President to
appoint, such other officers as the business of the Corporation may require,
each of whom shall hold office for such period, have such authority and
perform such duties as are provided in the Bylaws or as the Board of
Directors or the President may from time to time determine.
SECTION 4. REMOVAL AND RESIGNATION OF OFFICERS
Except as otherwise provided in these Bylaws and subject to the rights,
if any, of any officer under an express written contract of employment, any
officer may be removed, either with or without cause, by the Board of
Directors, at any regular or special meeting of the Board of Directors, or
except in the case of an officer chosen by the Board of Directors, by any
officer upon whom such power of removal may be conferred by the Board of
Directors.
Any officer may resign at any time by giving written notice to the
Corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless
otherwise specified in that notice, the acceptance of the resignation shall
not be necessary to make it effective. Any resignation is without prejudice
to the rights, if any, of the Corporation under any contract to which the
officer is a party.
SECTION 5. VACANCIES IN OFFICES
A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed
in these Bylaws for regular appointments to that office.
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SECTION 6. CHAIRMAN OF THE BOARD
The Chairman of the Board shall, when present, preside at meetings of
the Board of Directors and, when present, preside at the meetings of the
stockholders. The Chairman of the Board shall perform such duties and
possess such powers as are usually vested in the office of the Chairman of
the Board or as may be vested in the Chairman of the Board by the Board of
Directors, subject to the terms of his or her employment agreement.
SECTION 7. PRESIDENT/CHIEF EXECUTIVE OFFICER
The President shall be the chief operating officer of the Corporation.
He shall also be the chief executive officer of the Corporation, unless such
title is assigned to the Chairman of the Board. The President shall perform
such duties and possess such powers as are usually vested in the office of
the President or as may be vested in the President by the Board of Directors,
subject to the terms of his or her employment agreement.
SECTION 8. VICE PRESIDENT
In the absence or disability of the President, the vice presidents, if
any, in order of their rank as fixed by the Board of Directors or, if not
ranked, a vice president designated by the Board of Directors, shall perform
all the duties of the President, and when so acting shall have all the powers
of, and be subject to all the restrictions upon, the President. The vice
presidents shall have such other powers and perform such other duties as from
time to time may be prescribed for them respectively by the Board of
Directors or the Bylaws, and the President, or the Chairman of the Board.
SECTION 9. SECRETARY
The Secretary shall keep or cause to be kept, at the principal executive
office or such other place as the Board of Directors may direct, a book of
minutes of all meetings and actions of directors, committees of directors,
and stockholders, with the time and place of holding, whether regular or
special, and, if special, how authorized, the notice given, the names of
those present at directors' meetings or committee meetings, the number of
shares present or represented at stockholders' meetings, and the proceedings.
The Secretary shall keep or cause to be kept, at the principal executive
office or at such other place as designated by the Board of Directors, a
share register, or a duplicate share register, showing the names of all
stockholders and their addresses, the number and classes of shares held by
each, the number and date of certificates issued for the same, and the number
and date of cancellation of every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and of the Board of Directors required by the Bylaws or
by law to be given, and he shall keep the seal of the Corporation if one be
adopted, in safe custody, and shall have such other powers and perform such
other duties as may be prescribed by the Board of Directors or by the Bylaws.
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SECTION 10. CHIEF FINANCIAL OFFICER
The Chief Financial Officer shall keep and maintain, or cause to be kept
and maintained, adequate and correct books and records of accounts of the
properties and business transactions of the Corporation, including accounts
of its assets, liabilities, receipts, disbursements, gains, losses, capital,
retained earnings, and shares. The books of account shall at all reasonable
times be open to inspection by any director.
The Chief Financial Officer shall deposit all moneys and other valuables
in the name and to the credit of the Corporation with such depositaries as
may be designated by the Board of Directors. He shall disburse the funds of
the Corporation as may be ordered by the Board of Directors, shall render to
the President and directors, whenever they request it, an account of all of
his transactions as Chief Financial Officer and of the financial condition of
the Corporation, and shall have other powers and perform such other duties as
may be prescribed by the Board of Directors or by the Bylaws.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS, AGENTS AND FIDUCIARIES
SECTION 1. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Corporation shall be required, to the maximum extent permitted by
the DGCL, to indemnify each of its directors and officers against expenses,
judgments, fines, settlements, and other amounts actually and reasonably
incurred in connection with any proceeding arising by reason of the fact that
any such person is or was a director, officer, employee, or other agent of
the Corporation or a Predecessor Corporation or is or was serving at the
request of the Corporation or a Predecessor Corporation as a director,
officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise. For purposes hereof, "Predecessor
Corporation" shall mean WellPoint Health Networks Inc., a California
corporation ("WellPoint").
SECTION 2. INDEMNIFICATION OF OTHER AGENTS
The Corporation may, in its absolute discretion, up to the maximum
extent permitted by the DGCL, indemnify each of its agents who are not
required to be indemnified under Section 1 of this Article VI against
expenses, judgments, fines, settlements, and other amounts actually and
reasonably incurred in connection with any proceeding arising by reason of
the fact that any such person is or was an agent of the Corporation or a
Predecessor Corporation. For purposes of this Section 2, an "agent" of the
Corporation includes any person who is or was an employee or other agent of
the Corporation or a Predecessor Corporation, or is or was serving at the
request of the Corporation or a Predecessor Corporation as a director,
officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise.
SECTION 3. INDEMNIFICATION OF FIDUCIARIES
The Corporation shall indemnify any director, officer, employee, or
other agent of the
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Corporation against expenses, judgments, fines, settlements, and other
amounts actually and reasonably incurred in connection with any proceeding
arising by reason of the fact that any such person is or was a trustee,
investment manager, or other fiduciary under any employee benefit plan of the
Corporation (or a Predecessor Corporation). The provisions of this Section 3
shall be deemed to constitute a contract between the Corporation (or any
Predecessor Corporation) and any such indemnified person, or for the benefit
of any such indemnified person.
SECTION 4. ADVANCES OF EXPENSES
To the extent permitted by the DGCL, expenses incurred in defending any
proceeding in the cases described in Sections 1 and 3 of this Article VI
shall, and in the case described in Section 2 of this Article VI may, be
advanced by the Corporation prior to the final disposition of such proceeding
upon receipt of any undertaking by or on behalf of the agent to repay such
amount, if it shall be determined ultimately that the agent is not entitled
to be indemnified as authorized in this section.
ARTICLE VII
RECORDS AND REPORTS
SECTION 1. MAINTENANCE AND INSPECTION OF SHARE REGISTER
The Corporation shall keep at its principal executive office, or at the
office of its transfer agent or registrar, if either be appointed and as
determined by resolution of the Board of Directors, a record of its
stockholders, giving the names and addresses of all stockholders and the
number and class of shares held by each stockholder.
Any stockholder of the Corporation may upon written demand under oath
stating the proper purpose thereof (i) inspect and copy the records of
stockholders' names and addresses and shareholdings during usual business
hours upon five (5) days' prior written demand on the Corporation, or (ii)
obtain from the transfer agent of the Corporation, upon the tender of such
transfer agent's usual charges for such list, a list of the stockholders'
names and addresses entitled to vote for the election of directors, and their
shareholdings, as of the most recent record date for which that list has been
compiled or as of a date specified by the stockholder subsequent to the date
of demand. This list shall be made available to any such stockholder by the
transfer agent on or before the later of five days after the demand is
received or the date specified in the demand as the date as of which the list
is to be compiled. The record of stockholders shall also be open to
inspection on the written demand of any stockholder or holder of a voting
trust certificate, at any time during usual business hours, for a purpose
reasonably related to the holder's interests as a stockholder or as the
holder of a voting trust certificate. Any inspection and copying under this
Section 1 may be made in person or by an agent or attorney of the stockholder
or holder of a voting trust certificate making the demand.
SECTION 2. MAINTENANCE AND INSPECTION OF BYLAWS
The Corporation shall keep at its principal executive office the
original or a copy of the Bylaws as amended to date, which shall be open to
inspection by the stockholders at all reasonable
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times during office hours.
SECTION 3. MAINTENANCE AND INSPECTION OF OTHER CORPORATE RECORDS
The accounting books and records and minutes of proceedings of the
stockholders and the Board of Directors and any committee or committees of
the Board of Directors shall be kept at such place or places designated by
the Board of Directors, or, in the absence of such designation, at the
principal executive office of the Corporation. The minutes shall be kept in
written form and the accounting books and records shall be kept either in
written form or in any other form capable of being converted into written
form. The minutes and accounting books and records shall be open to
inspection upon the written demand of any stockholder or holder of a voting
trust certificate, at any reasonable time during usual business hours, for a
purpose reasonably related to the stockholder's interests as a stockholder or
as the holder of a voting trust certificate. The inspection may be made in
person or by an agent or attorney, and shall include the right to copy and to
make extracts.
SECTION 4. INSPECTION BY DIRECTORS
Every director shall have the absolute right at any reasonable time to
inspect all books, records, and documents of every kind and the physical
properties of the Corporation and each of its subsidiary corporations. This
inspection by a director may be made in person or by an agent or attorney and
the right of inspection includes the right to copy and make extracts of
documents.
ARTICLE VIII
GENERAL CORPORATE MATTERS
SECTION 1. RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING
For purposes of determining the stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights or entitled
to exercise any rights in respect of any other lawful action, the Board of
Directors may fix, in advance, a record date, which shall not be more than 60
nor less than 10 days before any such action, and in that case only
stockholders of record on the date so fixed are entitled to receive the
dividend, distribution, or allotment of rights or to exercise the rights, as
the case may be, notwithstanding any transfer of any shares on the books of
the Corporation after the record date so fixed, except as otherwise provided
in the DGCL.
If the Board of Directors does not so fix a record date, the record date
for determining stockholders for any such purpose shall be at the close of
business on the date on which the Board of Directors adopts the applicable
resolution.
SECTION 2. CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS
All checks, drafts, or other orders for payment of money, notes, or
other evidences of indebtedness, issued in the name of or payable to the
Corporation, shall be signed or endorsed by such person or persons and in
such manner as, from time to time, shall be determined by resolution of the
Board of Directors.
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SECTION 3. EXECUTING CORPORATE CONTRACTS AND INSTRUMENTS
The Board of Directors, except as otherwise provided in these Bylaws,
may authorize any officer or officers, agent or agents, to enter into any
contract or execute any instrument in the name of and on behalf of the
Corporation, and this authority may be general or confined to specific
instances; and, unless so authorized or ratified by the Board of Directors or
within the agency power of an officer, no officer, agent, or employee shall
have any power or authority to bind the Corporation by any contract or
engagement or to pledge its credit or to render it liable for any purpose or
for any amount.
SECTION 4. CERTIFICATES FOR SHARES
A certificate or certificates for shares of the capital stock of the
Corporation shall be issued to each stockholder when any of these shares are
fully paid, and the Board of Directors may authorize the issuance of
certificates or shares as partly paid provided that these certificates shall
state thereon the amount of the consideration to be paid for them and the
amount paid. All certificates shall be signed in the name of the Corporation
by the Chairman of the Board or the President or Vice President and by the
Chief Financial Officer or an Assistant Treasurer or the Secretary or any
Assistant Secretary, certifying the number of shares and the class or series
of shares owned by the stockholder. Any or all of the signatures on the
certificate may be facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed on a
certificate shall have ceased to be that officer, transfer agent, or
registrar before that certificate is issued, it may be issued by the
Corporation with the same effect as if that person were an officer, transfer
agent or registrar at the date of issue. Notwithstanding the foregoing, the
Board of Directors may provide by resolution or resolutions that some or all
of any or classes or series of capital stock of the Corporation shall be
issued in uncertificated form.
SECTION 5. LOST CERTIFICATES
Except as provided in this Section 5, no new certificates for shares
shall be issued to replace an old certificate unless the latter is
surrendered to the Corporation and cancelled at the same time. The Board of
Directors may, in case any share certificate or certificate for any other
security is lost, stolen, or destroyed, authorize the issuance of a
replacement certificate on such terms and conditions as the Board of
Directors may require, including provision for indemnification of the
Corporation secured by a bond or other adequate security sufficient to
protect the Corporation against any claim that may be made against it,
including any expense or liability, on account of the alleged loss, theft, or
destruction of the certificate or the issuance of the replacement certificate.
SECTION 6. REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The Chairman of the Board, the President, or any Vice President, or any
other person authorized by resolution of the Board of Directors or by any of
the foregoing designated officers, is authorized to vote on behalf of the
Corporation any and all shares of any other corporation or corporations,
foreign or domestic, standing in the name of the Corporation. The authority
granted to these officers to vote or represent on behalf of the Corporation
any and all shares held by the Corporation in any other corporation or
corporations may be exercised by any of these officers in person or by any
person authorized to do so by a proxy duly executed by these officers.
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SECTION 7. CONSTRUCTION AND DEFINITIONS
Unless the context requires otherwise, the general provisions, rules of
construction, and definitions in the DGCL shall govern the construction of
these Bylaws. Without limiting the generality of this provision, the
singular number includes the plural, the plural number includes the singular,
and the term "person" includes both a corporation and a natural person.
ARTICLE IX
AMENDMENTS
SECTION 1. AMENDMENT BY STOCKHOLDERS
New Bylaws may be adopted or these Bylaws may be amended or repealed by
the vote of holders of a majority of the outstanding shares entitled to vote,
except as otherwise provided by law or in the Certificate of Incorporation.
SECTION 2. AMENDMENT BY DIRECTORS
Subject to the rights of the stockholders as provided in Section 1 of
this Article IX, to adopt, amend, or repeal Bylaws, and subject to the
provisions of the Certificate of Incorporation, Bylaws may be adopted,
amended, or repealed by the Board of Directors; PROVIDED, HOWEVER, that the
Board of Directors may adopt a Bylaw or amendment of a Bylaw changing the
authorized number of directors only for the purpose of fixing the exact
number of directors within the limits specified in the Certificate of
Incorporation.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 (File No. 333- ) of our report dated February 11,
1999 relating to the financial statements, which appears in the WellPoint
Health Networks Inc.'s Annual Report on Form 10-K for the year ended December
31, 1998 and of our report dated May 28, 1999 relating to the financial
statements, which appears in the WellPoint 401(k) Retirement Savings Plan
Annual Report on Form 11-K for the year ended December 31, 1998.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Los Angeles, California
November 11, 1999
