STOCKHOLDER VOTING AGREEMENT
STOCKHOLDER VOTING AGREEMENT, dated as of May 27, 1998 (this
"Agreement"), between Xxxxx X. Xxxxx ("Stockholder") and United HealthCare
Corporation, a Minnesota corporation ("Purchaser").
WHEREAS, Humana Inc., a Delaware corporation (the "Company"), Purchaser
and UH-1 Inc., a Delaware corporation and a wholly owned subsidiary of Purchaser
("Merger Sub"), are contemporaneously herewith entering into an Agreement and
Plan of Merger, dated as of the date hereof (the "Merger Agreement"), which
provides, among other things, for the merger of Merger Sub with and into the
Company (the "Merger");
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Purchaser and Merger Sub have requested that Stockholder make certain
agreements with respect to 5,963,778 shares of Common Stock, par value $.162/3
per share ("Shares"), of the Company beneficially owned by Stockholder (the
"Stockholder Shares"), upon the terms and subject to the conditions hereof; and
WHEREAS, in order to induce Purchaser and Merger Sub to enter into the
Merger Agreement, Stockholder is willing to make certain agreements with respect
to the Stockholder Shares;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. Voting Agreements; Proxy.
(a) For so long as this Agreement is in effect, in any meeting of
stockholders of the Company, however called, and in any action by consent of the
stockholders of the Company, Stockholder shall vote, or, if applicable, give
consents with respect to, all of the Stockholder Shares (and any other Shares
over which Stockholder has voting power) that are held on the record date
applicable thereto in favor of the Merger Agreement and the Merger contemplated
by the Merger Agreement, as such agreement may be modified or amended from time
to time. Any such vote shall be cast or consent shall be given in accordance
with such procedures relating thereto as shall ensure that it is duly counted
for purposes of determining that a quorum is present and for purposes of
recording the results of such vote or consent.
(b) Upon the written request of Purchaser, Stockholder, in furtherance
of the transactions contemplated hereby and by the Merger Agreement, and in
order to secure the performance of Stockholder of his duties under this
Agreement, shall promptly execute, in accordance with the provisions of Section
212 of the Delaware General Corporation Law, and deliver to Purchaser an
irrevocable proxy, substantially in the form attached as Exhibit A hereto, and
irrevocably appoint Purchaser or its designees, with full power of substitution,
its attorney and proxy to vote or, if applicable, to give consent with respect
to, all Stockholder Shares with regard to any of the matters referred to in
paragraph (a) above at any meeting of the stockholders of the Company, however
called, or in connection with any action by written consent by the stockholders
of the Company. Stockholder acknowledges and agrees that such proxy, if and when
given, shall be coupled with an interest, shall constitute, among other things,
an inducement for Purchaser to enter into the Merger Agreement, shall be
irrevocable and shall not be terminated by operation of law or otherwise upon
the occurrence of any event (other than as provided in Section 14 hereof) and
that no subsequent proxies with respect to the Stockholder Shares shall be given
(and if given shall not be effective).
2. Covenants. (a) From and after the date of this Agreement,
Stockholder agrees not to (i) sell, transfer, pledge, assign, hypothecate,
encumber, tender or otherwise dispose of, or enter into any contract with
respect to the sale, transfer, pledge, assignment, hypothecation, encumbrance,
tender or other disposition of more than 1% of the Stockholder Shares; (ii)
grant any proxies with respect to any Stockholder Shares, deposit any such
Stockholder Shares into a voting trust or enter into a voting or option
agreement with respect to any of such Stockholder Shares; (iii) directly or
indirectly, solicit, initiate, encourage or otherwise facilitate any inquiries
or the making of any proposal or offer with respect to an Acquisition Proposal
or, except solely in his capacity as a director of the Company if permitted by
the proviso contained in Section 6.2 of the Merger Agreement, engage in any
negotiation concerning, or provide any confidential information or data to, or
have any discussions with any person relating to an Acquisition Proposal; or
(iv) take any action which would make any representation or warranty of
Stockholder herein untrue or incorrect or prevent, burden or materially delay
the consummation of the transactions contemplated by this Agreement. As used in
this Agreement, "person" shall have the meaning specified in Sections 3(a)(9)
and 13(d)(3) of the Exchange Act of 1934, as amended (the "Exchange Act").
(b) Stockholder agrees to execute and deliver to the Company or to
Purchaser an "affiliates letter," dated the date hereof, substantially in the
form attached as Exhibit C-1 of the Merger Agreement.
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3. Representations and Warranties of Stockholder. Stockholder
represents and warrants to Purchaser that:
(a) Capacity; No Violations. Stockholder has the legal capacity to
enter into this Agreement and to consummate the transactions contemplated
hereby. This Agreement has been duly executed and delivered by Stockholder, and
constitutes a valid and binding agreement of Stockholder enforceable against
Stockholder in accordance with its terms; and such execution and delivery and
performance by Stockholder of this Agreement will not (i) conflict with, require
a consent, waiver or approval under, or result in a breach or default under, any
of the terms of any contract, commitment or other obligation to which
Stockholder is a party or by which Stockholder is bound; (ii) violate any order,
writ, injunction, decree or statute, or any law, rule or regulation applicable
to Stockholder or the Stockholder Shares; or (iii) result in the creation of, or
impose any obligation on Stockholder to create, any Lien upon the Stockholder
Shares. In this Agreement, "Lien" shall mean any lien, pledge, security
interest, claim, third party right or other encumbrance.
(b) Stockholder Shares. As of the date of this Agreement, Stockholder
is the record holder of, and has good and valid title to, the Stockholder Shares
free and clear of all Liens. Other than the Shares held by Stockholder in a
fiduciary capacity or as a general partner, the Stockholder Shares are the only
shares of any class of capital stock of the Company which Stockholder has the
right, power or authority (sole or shared) to sell or vote, and, other than the
options on Shares held by Stockholder as of the date hereof, Stockholder does
not have any right to acquire, nor is it the beneficial owner of, any other
shares of any class of capital stock of the Company or any securities
convertible into or exchangeable or exercisable for any shares of any class of
capital stock of the Company. There are no options or rights to acquire or other
contracts (including proxies, voting trusts or voting agreements) relating to
the Stockholder Shares to which Stockholder is a party.
4. Adjustments; Additional Shares. In the event (i) of any stock
dividend, stock split, recapitalization, reclassification, combination or
exchange of Shares on, of or affecting the Stockholder Shares, or (ii)
Stockholder shall become the beneficial owner of any additional Shares or other
securities entitling the holder thereof to vote or give consent with respect to
the matters set forth in Section 1 hereof, then the terms of this Agreement
shall apply to the Shares held by Stockholder immediately following the
effectiveness of the events described in clause (i) or Stockholder becoming the
beneficial owner of the Shares or other securities, as described in clause (ii),
as though they were Stockholder Shares hereunder; provided that any Shares
acquired by Stockholder as described in clause (ii) and not held of record by
Stockholder shall be subject only to Section 1 hereof.
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5. Expenses. Each party hereto shall pay its own expenses incurred in
connection with this Agreement.
6. Specific Performance. Stockholder acknowledges and agrees that if it
fails to perform any of its obligations under this Agreement immediate and
irreparable harm or injury would be caused to Purchaser for which money damages
would not be an adequate remedy. In such event, Stockholder agrees that
Purchaser shall have the right, in addition to any other rights it may have, to
specific performance of this Agreement. Accordingly, if Purchaser should
institute an action or proceeding seeking specific enforcement of the provisions
hereof, Stockholder hereby waives the claim or defense that Purchaser has an
adequate remedy at law and hereby agrees not to assert in any such action or
proceeding the claim or defense that such a remedy at law exists. Stockholder
further agrees to waive any requirements for the securing or posting of any bond
in connection with obtaining any such equitable relief.
7. Notices. All notices or other communications under this Agreement
shall be in writing and shall be deemed duly given, effective (i) three business
days later, if sent by registered or certified mail, return receipt requested,
postage prepaid, (ii) when sent, if sent by telecopier or fax, provided that the
telecopy or fax is promptly confirmed by telephone confirmation thereof, (iii)
when served, if delivered personally to the intended recipient, and (iv) one
business day later, if sent by overnight delivery via a national courier
service, and in each case, addressed to the intended recipient at the address
set forth in the preamble hereof. Any party may change the address to which
notices or other communications hereunder are to be delivered by giving the
other party notice in the manner herein set forth:
If to the Purchaser:
--------------------
United HealthCare Corporation
0000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, General Counsel and Secretary
Fax: (000) 000-0000
With a copy to:
---------------
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
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If to Stockholder:
------------------
Xxxxx X. Xxxxx
c/o Humana Inc.
The Humana Building
000 Xxxx Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
With a copy to:
---------------
Humana Inc.
The Humana Building
000 Xxxx Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxx, Senior Vice President and General Counsel
Telecopy: (000) 000-0000
With a copy to:
---------------
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx, Esq.
Telecopy: (000) 000-0000
8. Parties in Interest. This Agreement shall inure to the benefit of
and be binding upon the parties named herein and their respective successors and
assigns; provided, however, that such successor in interest or assigns shall
agree to be bound by the provisions of this Agreement. Nothing in this
Agreement, express or implied, is intended to confer upon any Person other than
Purchaser, Stockholder or their successors or assigns, any rights or remedies
under or by reason of this Agreement.
9. Entire Agreement; Amendments. This Agreement contains the entire
agreement between Stockholder and Purchaser with respect to the subject matter
hereof and supersedes all prior and contemporaneous agreements and
understandings, oral or written, with respect to such transactions. This
Agreement may not be changed, amended or modified orally, but may be changed
only by an agreement in writing
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signed by the party against whom any waiver, change, amendment, modification or
discharge may be sought.
10. Assignment. No party to this Agreement may assign any of its rights
or obligations under this Agreement without the prior written consent of the
other party hereto, except that Purchaser may assign its rights and obligations
hereunder to any of its direct or indirect wholly owned subsidiaries (including
Merger Sub), but no such transfer shall relieve Purchaser of its obligations
hereunder if such transferee does not perform such obligations.
11. Headings. The section headings herein are for convenience only and
shall not affect the construction of this Agreement.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall constitute one and the same document.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware (regardless of the laws that
might otherwise govern under applicable Delaware principles of conflicts of
law).
14. Termination. This Agreement shall terminate at the earlier of (i)
the Effective Time (as defined in the Merger Agreement) and (ii) on the date the
Merger Agreement is terminated pursuant to the terms thereof.
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IN WITNESS WHEREOF, Purchaser and Stockholder have caused this
Agreement to be duly executed and delivered on the day and year first above
written.
UNITED HEALTHCARE CORPORATION
By: /s/ Xxxxxxx X. XxXxxxx
---------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: President & CEO
XXXXX X. XXXXX
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
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EXHIBIT A
IRREVOCABLE PROXY
In order to secure the performance of the duties of the
undersigned pursuant to the Stockholder Voting Agreement, dated as of _____,
1998 (the "Voting Agreement") between the undersigned and [Parent], a Minnesota
corporation ("Purchaser"), a copy of such agreement being attached hereto and
incorporated by reference herein, the undersigned hereby irrevocably appoints
___________________ _________________and __________________________________ and
__________________________, and each of the attorneys, agents and proxies,
with full power of substitution in each of them, for the undersigned and in the
name, place and stead of the undersigned, to vote or, if applicable, to give
written consent, in such manner as each such attorney, agent and proxy or his
substitute shall in his sole discretion deem proper to record such vote (or
consent) in the manner set forth in Section 1 of the Voting Agreement with
respect to all shares of Common Stock, par value $0.16-2/3 per share (the
"Shares"), of Humana Inc., a Delaware corporation (the "Company"), which the
undersigned is or may be entitled to vote at any meeting of the Company held
after the date hereof, whether annual or special and whether or to an adjourned
meeting, or, if applicable, to give written consent with respect thereto. This
Proxy is coupled with an interest, shall be irrevocable and binding on any
successor in interest of the undersigned and shall not be terminated by
operation of law or otherwise upon the occurrence of any event (other than as
provided in Section 14 of the Voting Agreement), including, without limitation,
the death or incapacity of the undersigned. This Proxy shall operate to revoke
any prior proxy as to the Shares heretofore granted by the undersigned. This
Proxy shall terminate upon the Termination Date (as defined in the Voting
Agreement). This Proxy has been executed in accordance with Section 212 of the
Delaware General Corporation Law.
Dated: _________________ ________________________
[Name]
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