CONFIRMATION AS TO CERTAIN MATTERS IN FURTHERANCE OF LIQUIDATION PROCEEDING
Exhibit 99.2
CONFIRMATION AS TO CERTAIN MATTERS
IN FURTHERANCE OF LIQUIDATION PROCEEDING
IN FURTHERANCE OF LIQUIDATION PROCEEDING
This Confirmation As to Certain Matters In Furtherance of Liquidation Proceeding
(“Confirmation”) is entered into between Indiana Insurance Commissioner ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, in his
capacity as Liquidator of Maxicare Indiana, Inc. (hereinafter, the “Liquidator”), and Maxicare
Health Plans, Inc. (“MHP”), collectively hereinafter, the “Parties”.
RECITALS
A. Maxicare Indiana, Inc. (“MI”) was a health maintenance organization licensed in the State
of Indiana, against which an Order of Rehabilitation was entered on May 4, 2001 by the ▇▇▇▇▇▇
Circuit Court (“Liquidation Court”) under Cause No. 49C01-0105-MI-001111, followed by the entry of
an Order of Liquidation on July 3, 2001;
B. Pursuant to Ind. Code 27-9, Indiana Insurance Commissioner ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ has been
appointed by the Liquidation Court as Liquidator of MI;
C. Maxicare Health Plans, Inc. (“MHP”) is a Delaware Corporation and was the
parent of MI as of the date the Order of Rehabilitation was entered against MI;
D. In order to promote and further the liquidation of MI in accordance with Ind.
Code 27-9, the Parties now enter into this Confirmation, under the terms and conditions
set forth below, as to matters relating to the “Pharmacy Rebates” and the interests of
the Parties in “MLH,” as those terms and matters are further defined and described in
this Confirmation; and
E. This Confirmation is limited solely to resolving matters relating to or arising
out of the Pharmacy Rebates and/or the interests of the Parties in MLH. The Parties
acknowledge and confirm that all claims between the Liquidator, on behalf of MI, and
MHP, other than the matters involving the Pharmacy Rebates and MLH, are being resolved
by the Parties in accordance with the terms and conditions of a Settlement and Release
Agreement (“Settlement Agreement”) being executed contemporaneous herewith, including,
but not limited to, resolution of all claims and affirmative defenses asserted as
between the Liquidator, on behalf of MI, and MHP in a lawsuit now pending before the
Liquidation Court under Cause No. 49C01-0105-MI-001111-1 (“Lawsuit”).
CONFIRMATION
Now, therefore , in reliance upon and in consideration of the mutual
covenants expressed herein, and intending to be legally bound, the Parties agree as follows:
1. The above stated Recitals and all the facts and circumstances alleged therein are
incorporated and made a part of this Confirmation.
2. MHP has previously asserted claims to any and all pharmacy rebates earned and/or later
accrued pursuant to the Pharmacy Benefit Services Agreement (“Pharmacy Agreement”) between MHP
and MedImpact Healthcare Systems, Inc. (“MedImpact”) as the result of prescriptions being
filled for current or former members under the prescription plans for current or former
subsidiaries of MHP, including MI, Maxicare Life & Health Insurance Company (“MLH”) and
Maxicare (California), which rebates are commonly referred to as MedImpact Pharmacy Rebates,
or MedDividend Program Rebate Management Services (hereinafter collectively “Pharmacy
Rebates”). The Liquidator has contested MHP’s prior position as to the Pharmacy Rebates and
has asserted that the MI Estate would sustain damage if MHP would persist in its position as
to the Pharmacy Rebates. MHP now agrees to waive and release its claims to all Pharmacy
Rebates, specifically including but not limited to the Pharmacy Rebates earned and/or later
accrued pursuant to the Pharmacy Agreement as the result of prescriptions being filled for
then current or former MI members under the prescription plan for MI (“Indiana Rebates”) and
to assign and transfer all its claims to and/or interests in the Indiana Rebates to MI or
third parties as designated by MI and approved by the Liquidation Court. It is, however,
expressly acknowledged and agreed that MHP’s waiver, release and assignment of its claims to
the Pharmacy Rebates is subject to and conditioned upon: (a) the Liquidation Court approving
the Joint Petition Seeking Approval for Payment, Settlement and Release of Certain Pharmacy
Claims (“Joint Petition”) that is now being negotiated by and between the Liquidator,
MedImpact, Advantage Health Solutions, Inc., Anthem Insurance Companies, Inc., M-Plan, Inc.,
and CVS Pharmacies, Inc. (with either no Motion to Correct Errors and/or Notice of Appeal
being timely filed with respect to such approval or such Motion and/or Notice, if timely
filed, resulting in a final, non-appealable Order affirming the Liquidation Court’s approval
of the Joint Petition); and (b) upon approval of the Joint Petition by the Liquidation Court
(with either no Motion to Correct Errors and/or Notice of Appeal being timely filed with
respect to such approval or such Motion and/or Notice, if timely filed, resulting in a final,
non-appealable Order affirming the Liquidation Court’s approval of the Joint Petition),
MedImpact and MHP executing and exchanging mutual general releases of any and all claims as
between them. MHP further agrees to advise the Liquidation Court that it supports the Joint
Petition, including the allocation, set-off, and/or payments of the Pharmacy Rebates as
described therein; provided, however, that the Liquidation Court shall be advised that MHP’s
support of such allocation, set-off and/or payments of the Pharmacy Rebates is specifically
conditioned upon approval of the Joint Petition, as filed, and MHP thereafter receiving a
general release from MedImpact. In order to so advise the Liquidation Court of MHP’s support
of the Joint Petition, and the conditions thereto, MHP hereby authorizes the Liquidator to
file with the Joint Petition the signed letter from MHP’s legal counsel, in the form attached
hereto as Exhibit 1.
3. In the event that the Joint Petition either is not approved by a final, non-appealable Order
or MedImpact fails to execute a general release in favor of MHP, then all claims and positions
which MHP, MedImpact, MLH, California and the Liquidator, on behalf of MI, possessed with
respect to the Pharmacy Rebates as of the date immediately preceding execution of this
Confirmation shall be deemed reinstated, with any statute of limitations, laches or other time
limitation which would otherwise bar the assertion of such claims to have been tolled or
suspended with respect to any claim to the Pharmacy Rebates that was not time barred
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as of the
date of execution of this Confirmation. However, even in the event that MHP does not waive
and release its claims to the Pharmacy Rebates, because one or both of the stated conditions
are not met, and all parties respective claims and positions with respect to such Pharmacy
Rebates that existed as of the date immediately proceeding the execution of this Confirmation
are reinstated, it is nevertheless acknowledged and agreed that all other provisions of this
Confirmation shall remain in full force and effect.
4. MHP hereby confirms and acknowledges that all outstanding shares of MLH stock were
effectively transferred and conveyed from MHP to MI as of December 31, 2000. The Liquidator
has asserted that the MI Estate would sustain damage if MHP were to withhold its confirmation
as to this stock transfer. Given MHP’s present acknowledgment and confirmation that the
outstanding stock of MLH was transferred and conveyed from MHP to MI effective as of December
31, 2000, MHP further confirms and commits that it will not pursue any claims in which MHP
purports to be a shareholder of MLH. MHP also waives and releases, whether as a shareholder
or otherwise, any and all rights or claims against any of the assets or surplus of MLH,
including those assets now or hereafter held in the MLH Liquidating Trust and/or MLH In
Rehabilitation or Liquidation accounts, whether at the Central Bank in Jefferson City,
Missouri or elsewhere, as part of any Rehabilitation and/or Liquidation proceedings brought by
the Missouri Director of Insurance as to MLH and/or the MLH Liquidating Trust.
5. With the exception of any claim for the breach of this Confirmation, for reinstated claims as
to the Pharmacy Rebates to the extent permitted under Paragraph 3 and subject to Paragraph 9,
the Liquidator on behalf of himself, the MI Estate, and their present agents, attorneys,
employees, shareholders, members, officers, directors, parents, subsidiaries, affiliates,
successors, predecessors and assigns and any and all other representatives, hereby RELEASES
AND FOREVER DISCHARGES MHP and, except as noted below, its former and present agents,
attorneys, employees, shareholders, members, officers, directors,1 parents,
subsidiaries, affiliates, successors, predecessors and assigns and all other affiliated or
related entities and corporations from any and all claims, demands, losses, costs, causes of
actions, debts, obligations, liabilities, or petitions of any kind which now exist or which
may exist in the future WHETHER KNOWN OR UNKNOWN in connection with or arising out of Pharmacy
Rebates and/or MLH. However, the release does not extend to bar any claims which have
been or could be asserted in the lawsuit against, specifically, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and/or ▇▇▇▇▇▇▇ ▇▇▇▇▇, Officers and Directors of
Maxicare Indiana, Inc., who are defendants in the lawsuit. Moreover, this release does not
extend to bar the Liquidator and/or MI from asserting and pursuing a claim, as shareholder or
otherwise, in the MLH receivership proceeding.
6. With the exception of any claim for the breach of this Confirmation, for reinstated claims to
the Pharmacy Rebates to the extent permitted under Paragraph 3 and subject to Paragraph 9, MHP
on behalf of itself, its present agents, attorneys, employees, shareholders, members,
officers, directors, parents, subsidiaries, affiliates, successors, predecessors and assigns
and any and all other representatives, hereby RELEASES AND FOREVER DISCHARGES
| 1 | Certain of the individual defendants were officers and directors of MHP as well as Maxicare Indiana, Inc. This release does not and is not intended to release or limit the Liquidator’s claims in any manner against the individual defendants in the Lawsuit, as officers and directors of Maxicare Indiana, Inc. |
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the Liquidator,
the MI Estate and their former and present agents, attorneys, employees, shareholders,
members, parents, subsidiaries, affiliates, successors, predecessors and assigns and all other
affiliated or related entities and corporations, from any and all claims, demands, losses,
costs, causes of actions, debts, obligations, liabilities, or petitions of any kind which now
exist or which may exist in the future WHETHER KNOWN OR UNKNOWN in connection with or arising
out of the Pharmacy Rebates and/or MLH.
7. This Confirmation may be raised as a defense to any claim, action, or other proceeding that
may be brought, instituted or taken by one of the Parties against the other in breach of this
Confirmation.
8. MHP acknowledges and agrees that an essential component of the consideration for the
Liquidator to enter into this Confirmation is the full, effective and final confirmation,
waiver and/or release of any and all claims by MHP relating to the Pharmacy Rebates and/or
MLH, subject only to the reinstatement of claims to the Pharmacy Rebates to the extent
permitted under Paragraph 3. Accordingly, notwithstanding any other term or provision of this
Confirmation, it is agreed that if MHP’s confirmation, waiver and/or release of any and
all claims relating to the Pharmacy Rebates and/or MLH is subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be repaid to a
trustee, receiver, or any other party under any Bankruptcy Act or Code, State or Federal law,
common law or equitable doctrine (“Clawback”), then:
| (a) | The Liquidator’s claims against MHP relating to the Pharmacy Rebates and/or MLH shall be reinstated as they existed immediately before the execution of this Confirmation (the “Liquidator Claims”), subject only to paragraph 9 below; | ||
| (b) | In addition, should a Clawback arise out of a bankruptcy, receivership or other proceeding that is voluntarily filed or commenced by MHP and/or its officers and directors within the 90-day period following execution of this Confirmation, then in that event the Liquidator’s claims against MHP’s present and former officers and/or directors relating to the Pharmacy Rebates and/or MLH, as they existed immediately before the execution of this Confirmation, shall also be reinstated and included in the definition of “Liquidator Claims” as used in this Confirmation. In the event the Liquidator hereafter seeks to disavow the terms and conditions of this Confirmation, it is agreed and acknowledged by the Liquidator that the release of the officers and directors of MHP, as contemplated by this Confirmation, shall remain in full force and effect; | ||
| (c) | To the extent of claims reinstated under Paragraphs 8(a) and/or 8(b) above, the Liquidator shall be entitled, in his sole discretion, to assert in any appropriate context or forum, including but not limited to the assertion and filing of a proof of claim within any case under Title 11, U.S. Code, or any similar State or Federal law for the relief of debtors or the enforcement of creditors’ rights, the Liquidator’s Claims; | ||
| (d) | The running of any statute of limitations, laches or other time limitation which otherwise would bar the assertion of the Liquidator Claims to the extent reinstated |
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| under Paragraphs 8(a) and/or 8(b) above, shall be deemed suspended and any defense related thereto shall be deemed waived by MHP and/or the officers and directors of MHP, as applicable, with respect to any claim that was not time barred as of the date of this Confirmation, and | |||
| (e) | To the extent that any judgment or award is thereafter entered against MHP and/or the officers and directors of MHP, as applicable, with respect to any of the Liquidator Claims, MHP and the officers and directors of MHP, as applicable, shall have a credit or offset against any such judgment or award in an amount equal to the value of the Indiana Rebates or the interest in MLH that was not repaid to MHP or to a trustee, receiver or other party on behalf of or for the benefit of MHP (the “Retained Amount”), together with interest on the Retained Amount from the date of the Liquidator’s receipt of the Indiana Rebates or the value of the interest in MHP, as applicable, unless in entering such judgment or award the Retained Amount and/or any interest accrued thereon was considered and the judgment or award was reduced accordingly. |
9. Contemporaneous with the execution of this Confirmation, the Liquidator, on behalf of MI, and
MHP are executing a Settlement Agreement relating to all claims between the Parties, other
than matters relating to Pharmacy Rebates and MLH, including but not limited to all claims and
defenses between MI and MHP asserted in the Lawsuit. While this Confirmation controls and
takes precedence as to all matters relating to the Pharmacy Rebates and MLH, the Parties
acknowledge and agree, notwithstanding anything to the contrary contained herein, that as to
all other matters and/or claims between MI and MHP, the terms and conditions of the Settlement
Agreement shall take precedence and control over the terms and conditions of this
Confirmation. For the avoidance of doubt, the Parties specifically agree and acknowledge that
all releases, waivers or other agreements relating to matters and claims as between MI and
MHP, other than matters specifically relating to the Pharmacy Rebates and MLH, shall be
governed by the terms and conditions of the Settlement Agreement and not by the terms and
conditions of this Confirmation.
10. This Confirmation shall be binding upon and shall inure to the benefit of heirs, executors,
assigns, and successors in interest of each of the Parties.
11. This Confirmation shall be governed by and interpreted in accordance with the laws of the
State of Indiana, without giving effect to the provisions, policies, or principles thereof
relating to choice of law or conflict of law.
12. This Confirmation contains all agreements, covenants, representations, and warranties,
express or implied, oral or written, of the parties hereto concerning the subject matter
hereof. No other agreements, covenants, representations or warranties, express or implied,
oral or written, have been made by any Party hereto to any other Party concerning the subject
matter hereof. All prior and contemporaneous conversations, negotiations, possible and
alleged agreements, representations, covenants and warranties concerning the subject matter
hereof are merged herein. This is an integrated agreement.
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13. No waiver, modification or amendment of any term, condition, or provision of this
Confirmation shall be valid or have any force or effect unless made in writing and signed by
the Parties. No failure to exercise and no delay in exercising any right, remedy or power
under this Confirmation shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, or power under this Confirmation preclude any other or further
exercise thereof, or the exercise of any other right, remedy, or power provided herein or by
law or in equity.
14. Each Party acknowledges and represents that it has been independently represented by counsel
and has had the opportunity to consult with counsel of its choice with respect to the terms
and subject matter of this Confirmation.
15. If any provision of this Confirmation is determined to be invalid or unenforceable, the
remainder of this Confirmation shall not be affected thereby.
16. The Parties warrant that they have read this Confirmation and are fully aware of its contents
and that they have entered into this Confirmation voluntarily and of their own accord, without
reliance on any inducement, promise, or representation by anyone or anything, except those
promises or representations which are expressly set forth in this Confirmation.
17. This Confirmation may be executed in one or more counterparts, each of which shall constitute
an original, but all of which shall constitute one and the same instrument.
18. The Parties represent that they have not assigned or transferred, or purported to assign or
transfer, to any person, entity or party any respective claim, cost or cause of action they
are releasing by this Confirmation, and they are the sole party in interest with respect to
the subject matter(s) of this Confirmation. Nothing contained in this Confirmation is
intended to confer any rights on any third party, except the releases set forth above.
19. It is expressly understood and agreed that as to the Pharmacy Rebates and MLH, this
Confirmation extends to all claims of every nature and kind whatsoever, and is intended to
cover and does cover not only all now known injuries and damages, but any future injuries or
damages not now known, suspected or anticipated, but which may later develop or be discovered,
including all the effects and consequences thereof; provided, however, that this Confirmation
does not: (a) waive or release claims asserted by the Liquidator against the individual
officers and directors of MI who are and remain named defendants in the Lawsuit and MHP does
not purport to and shall not compromise individual claims on behalf of the officers and/or
directors of MI who are and remain named defendants in the Lawsuit; (b) does not waive,
release or bar the Liquidator and/or MI from asserting and pursuing a claim, as shareholder or
otherwise, in the MLH receivership proceeding; (c) does not waive or release all claims and
positions that the parties may have against the Pharmacy Rebates to the extent such claims and
positions are reinstated per the terms of Paragraph 3; and (d) does not waive or release any
claims that are reinstated under Paragraphs 8(a) and/or 8(b).
20. The Parties agree to promptly execute and deliver any additional documents and/or information
and to perform such additional acts as are necessary, useful or appropriate to effectuate,
carry out and perform all of the terms, provisions, and conditions of this Confirmation
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and
the transactions contemplated by this Confirmation, and to comply with all applicable laws,
rules and regulations.
21. This Confirmation is binding when one or more counterparts, individually, or taken together,
is signed by each of the Parties. The Confirmation may be executed in any number of
counterparts. This Confirmation may be effected by facsimile transmission of executed copies
of the signature page delivered to counsel for the Parties.
22. The Parties warrant and represent that they are fully authorized to enter into and execute
this Confirmation.
In Witness Hereof , the parties have executed this Confirmation on the dates
listed below.
[This space intentionally left blank.]
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On Behalf of the Liquidator:
Date
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Special Deputy Liquidator |
Approved as to form this day of April 2006:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇▇ |
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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2700 Market Tower |
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▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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Indianapolis, IN 46204 |
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Attorneys for ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Commissioner |
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Indiana Department of Insurance |
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On Behalf of Maxicare Health Plans, Inc. |
Date
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Title |
Approved as to form this day of April 2006:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ |
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Esanu Katsky ▇▇▇▇▇▇ & Siger |
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▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ |
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New York, NY 10158-0038 |
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Attorneys for Maxicare Health Plans, Inc. |
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