VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement") is made and entered into as of
May ___, 2002 between WellCare Acquisition Company, a Delaware corporation
("Parent"), and the undersigned shareholder (the "Shareholder") of The WellCare
Management Group, Inc., a New York corporation (the "Company"). Capitalized
terms used and not otherwise defined herein shall have the respective meanings
set forth in the Merger Agreement (as defined below).
RECITALS
A. Pursuant to an Agreement and Plan of Merger of even date herewith
(as the same may from time to time be amended, the "Merger Agreement") among
Parent, WellCare Merger Sub, Inc., a New York corporation and a wholly-owned
subsidiary of Parent ("Merger Sub"), and the Company, Merger Sub will be merged
with and into the Company and the shareholders of the Company will receive cash
as set forth in the Merger Agreement (the "Merger").
B. As a condition to, and in consideration for, Parent's willingness to
enter into the Merger Agreement and to consummate the Merger, Parent has
required that the Shareholder enter into this Agreement.
C. The Shareholder is the owner of the number of shares of the
Company's Common Stock and/or the Company's Class A Common Stock indicated on
the signature page of this Agreement (collectively, the "Shares").
NOW, THEREFORE, in consideration of the covenants and promises set
forth herein, and for other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), intending to be legally bound
hereby, the Shareholder and Parent agree as follows:
1. Agreement to Retain Shares. Unless specifically required by court
order or operation of law, in which case the transferee shall agree to be bound
by this Agreement as if it were the Shareholder hereunder, the Shareholder
agrees not to transfer, sell, exchange, pledge or otherwise dispose of or
encumber any Shares or New Shares (as hereinafter defined), or any interest
therein, or to make any offer or enter into any agreement relating thereto, at
any time prior to the earlier to occur of (i) the Effective Time or (ii) the
termination of the Merger Agreement in accordance with the terms thereof (the
"Expiration Date").
2. Agreement to Vote Shares and Take Certain Other Actions.
(a) Prior to the Expiration Date, unless the Company's Board of
Directors shall have made an Adverse Recommendation Change under circumstances
expressly permitted by Section 5.5(b) of the Merger Agreement, which Adverse
Recommendation Change shall not have been subsequently withdrawn, at every
meeting of the shareholders of the Company at which any of the following matters
is considered or voted upon, and at every adjournment or postponement thereof,
and on every action or approval by written consent of the shareholders of the
Company with respect to any of the following matters, the Shareholder shall vote
the Shares and any New Shares: (i) in favor of the adoption of the Merger
Agreement and the terms thereof, and each of the other transactions contemplated
by the Merger Agreement, and any matter which
would, or could reasonably be expected to, facilitate the Merger or any of the
transactions contemplated by the Merger Agreement; (ii) against approval of any
proposal made in opposition to or in competition with the consummation of the
Merger or the Merger Agreement; (iii) against any Competing Proposed Transaction
involving the Company or either Company Subsidiary; (iv) against any liquidation
or winding up of the Company; and (v) against any other proposal or action which
would, or could reasonably be expected to, prohibit or discourage the Merger
(each of (ii) through (v) is hereinafter referred to as an "Opposing Proposal").
(b) Prior to the Expiration Date, the Shareholder, as the holder of
voting stock of the Company, shall be present, in person or by proxy, at all
meetings of shareholders of the Company at which any matter referred to in this
Section 2 is to be voted upon so that all Shares and New Shares are counted for
the purposes of determining the presence of a quorum at such meetings.
(c) This Agreement is intended to bind the Shareholder only with
respect to the specific matters set forth herein, and shall not prohibit the
Shareholder from acting in accordance with the Shareholder's fiduciary duties as
an officer or director of the Company, to the extent applicable.
3. Irrevocable Proxy. The Shareholder hereby agrees to timely deliver
to Parent a duly executed proxy in the form attached hereto as Annex A (the
"Proxy"), such Proxy to cover the Shares and all New Shares in respect of which
the Shareholder is entitled to vote at any meeting of the shareholders of the
Company (including, without limitation, each written consent in lieu of a
meeting) prior to the Expiration Date. In the event that the Shareholder is
unable to provide any such Proxy in a timely manner, the Shareholder hereby
grants Parent a power of attorney to execute and deliver such Proxy for and on
behalf of the Shareholder, such power of attorney, being coupled with an
interest, shall survive any death, disability, bankruptcy, or any other such
impediment of the Shareholder. Upon the execution of this Agreement by the
Shareholder, the Shareholder hereby revokes any and all prior proxies or powers
of attorney given by the Shareholder with respect to the voting of the Shares
and agrees not to, prior to the Expiration Date, (a) grant any subsequent
proxies or powers of attorney with respect to the voting of the Shares, (b)
deposit any of the Shares into a voting trust, or (c) enter into a voting
agreement with respect to any of the Shares.
4. New Shares. The Shareholder agrees that any shares of capital stock
or voting securities of the Company that the Shareholder purchases or with
respect to which the Shareholder otherwise acquires beneficial ownership after
the date of this Agreement and prior to the Expiration Date ("New Shares") shall
be subject to the terms and conditions of this Agreement to the same extent as
if they constituted Shares and to the extent that the nature of the
Shareholder's beneficial ownership of such New Shares enables the Shareholder to
grant such rights with respect thereto.
5. Representations and Warranties of Shareholder. The Shareholder
represents and warrants to Parent that (a) the Shareholder is a record or
beneficial owner of the Shares, with power to vote the Shares or cause the
Shares to be voted; (b) the Shares constitute the Shareholder's entire interest
in the outstanding capital stock and voting securities of the Company, other
than Shares that are subject to employee stock options or other rights to
acquire
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capital stock of the Company; (c) no other person or entity not a signatory to
this Agreement has a beneficial interest in or a right to acquire the Shares or
any portion of the Shares; (d) the Shares are, and will be at all times up until
the Expiration Date, free and clear of any liens, claims, options, charges or
other encumbrances; (e) the Shareholder's address is accurately set forth on the
signature page hereto; (f) the Shareholder has full power and legal capacity to
execute and deliver this Agreement and to perform his or her obligations
hereunder; (g) this Agreement has been duly and validly executed and delivered
by the Shareholder and constitutes the valid and binding obligation of the
Shareholder, enforceable against the Shareholder in accordance with its terms,
except as may be limited by (i) the effect of bankruptcy, insolvency,
conservatorship, arrangement, moratorium or other laws affecting or relating to
the rights of creditors generally or (ii) the rules governing the availability
of specific performance, injunctive relief or other equitable remedies and
general principles of equity, regardless of whether considered in a proceeding
in equity or at law; and (h) the execution and delivery of this Agreement by the
Shareholder does not, and the performance of the Shareholder's obligations
hereunder will not, result in any breach of or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or give
to others any right to terminate, amend, accelerate or cancel any right or
obligation under, or result in the creation of any lien or encumbrance on any
Shares or New Shares pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which the Shareholder is a party or by which the Shareholder or the Shares or
New Shares are or will be bound or affected.
6. Additional Agreements and Covenants of Shareholder.
(a) The Shareholder waives, as of the Effective Time, any claims it may
have in its capacity as a shareholder of the Company and has no knowledge of any
pending or threatened claims against the Company by any other security holder of
the Company.
(b) Subject to Section 2(c), until the Expiration Date, the Shareholder
will not: (i) solicit, initiate, encourage or take any other action to
facilitate, directly or indirectly, any Opposing Proposal; (ii) initiate,
directly or indirectly, any contact with any Person in an effort to or with a
view towards soliciting any Opposing Proposal; (iii) furnish information
concerning the business, properties or assets of the Company or either Company
Subsidiary to any Person or other entity or group (other than Parent, or any
associate, agent or representative of Parent) under any circumstances that could
reasonably be expected to relate to an actual or potential Opposing Proposal;
(iv) negotiate or enter into discussions or any agreement, directly or
indirectly, with any entity or group with respect to any potential Opposing
Proposal; or (v) otherwise cooperate in any way with, or assist or participate
in any effort or attempt by any Person with respect to any Opposing Proposal.
(c) The Shareholder agrees not to take any action that would make any
representation or warranty contained herein untrue or incorrect or have the
effect of impairing the ability of the Shareholder to perform his or her
obligations under this Agreement or preventing or delaying the consummation of
any of the transactions contemplated hereby or by the Merger Agreement.
(d) The Shareholder understands and agrees that if the Shareholder
attempts to transfer, vote or provide any other Person with the authority to
vote any of the Shares or New
3
Shares other than in compliance with this Agreement, the Company shall not, and
the Shareholder hereby unconditionally and irrevocably instructs the Company not
to, permit any such transfer on its books and records, issue a new certificate
representing any of the Shares or New Shares or record such vote unless and
until the Shareholder shall have complied with the terms of this Agreement.
7. Additional Documents. The Shareholder hereby covenants and agrees to
execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Parent, to carry out the purpose and intent of this
Agreement.
8. Consent and Waiver. The Shareholder hereby gives any consents or
waivers that are reasonably required for the consummation of the Merger under
the terms of any agreement to which the Shareholder is a party or pursuant to
any rights the Shareholder may have.
9. Termination. This Agreement and the Proxy delivered in connection
herewith, and all obligations of the Shareholder hereunder and thereunder, shall
terminate and shall have no further force or effect after the Expiration Date.
10. Miscellaneous.
(a) Entire Agreement; Modification. This Agreement constitutes the
entire agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof. This Agreement may be
amended or modified only by an instrument in writing duly executed by the
parties to this Agreement.
(b) Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Parent will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
the Shareholder set forth herein. Therefore, it is agreed that, in addition to
any other remedies that may be available to Parent upon any such violation,
Parent shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Parent at law
or in equity and the Shareholder hereby waives any and all defenses which could
exist in its favor in connection with such enforcement and waives any
requirement for the security or posting of any bond in connection with such
enforcement.
(c) Notices. All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if delivered
personally against written receipt or by facsimile transmission against
facsimile confirmation or mailed by internationally recognized overnight courier
prepaid, to the parties at the following addresses or facsimile numbers:
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If to Parent, to:
WellCare Acquisition Company
00 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxx Xxxxx, President and Chief Executive Officer
with a copy to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxxx Xxxxxxx, Esq.
If to the Shareholder to:
_____________________________
_____________________________
Facsimile No.: (___) ___-____
Attn: ________________
with a copy to:
Xxxxx & Xxxxxxx
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section 10(c), be deemed given
upon delivery, (ii) if delivered by facsimile transmission to the facsimile
number as provided for in this Section 10(c), be deemed given upon facsimile
confirmation, and (iii) if delivered by overnight courier to the address as
provided in this Section 10(c), be deemed given on the earlier of the first
Business Day following the date sent by such overnight courier or upon receipt
(in each case regardless of whether such notice, request or other communication
is received by any other Person to whom a copy of such notice is to be delivered
pursuant to this Section 10(c). Any party from time to time may change its
address, facsimile number or other information for the purpose of notices to
that party by giving notice specifying such change to the other party hereto.
(d) Binding Effect. This Agreement is binding upon, inures to the
benefit of and is enforceable by the parties hereto and their respective
successors and assigns.
(e) Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of New York, without giving
effect to any choice
5
of law or conflict of law provision or rule (whether of the State of New York or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York.
(f) Jurisdiction; Venue. All actions and proceedings arising out of or
relating to this Agreement shall be heard and determined in any New York state
or federal court sitting in the City of New York, and each party hereby
irrevocably accepts and consents to the exclusive personal jurisdiction of those
courts for such purpose. In addition, each party hereby irrevocably waives, to
the fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of venue of any action or proceeding arising out of or
relating to this Agreement or any judgment entered by any court in respect
thereof brought in any state or federal court sitting in the city of New York
and further irrevocably waives any claim that any action or proceeding brought
in any such court has been brought in an inconvenient forum.
(g) Waiver of Trial by Jury. IN ANY ACTION OR PROCEEDING ARISING
HEREFROM, THE PARTIES HERETO CONSENT TO TRIAL WITHOUT A JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY HERETO AGAINST THE OTHER OR
THEIR SUCCESSORS IN RESPECT OF ANY MATTER ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR PROCEEDING.
(h) Severability. Any term or provision of this Agreement that is
invalid, illegal or unenforceable in any situation in any jurisdiction shall not
affect the validity, legality or enforceability of the offending term or
provision in any other situation or in any other jurisdiction. If such
invalidity, illegality or unenforceability is caused by length of time or size
of area, or both, the otherwise invalid provision shall be, without further
action by the parties, automatically amended to such reduced period or area as
would cure such invalidity, illegality or unenforceability; provided, however,
that such amendment shall apply only with respect to the operation of such
provision in the particular jurisdiction in which such determinations is made.
(i) Interpretation. The parties hereto agree that this Agreement is the
product of negotiation between sophisticated parties and individuals, all of
whom were represented by counsel, and each of whom had an opportunity to
participate in and did participate in, the drafting of each provision hereof.
Accordingly, ambiguities in this Agreement, if any, shall not be construed
strictly or in favor of or against any party hereto but rather shall be given a
fair and reasonable construction.
(j) Headings. The headings and table of contents used in this Agreement
have been inserted for convenience of reference only and do not define or limit
the provisions hereof.
(k) Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Parent and the Shareholder executed this Agreement
as of the date first written above.
WELLCARE ACQUISITION COMPANY STOCKHOLDER
By:
--------------------------------------- -----------------------------------
Xxxx Xxxxx (Signature)
President and Chief Executive Officer
-----------------------------------
(Print Name of the Shareholder)
-----------------------------------
(Print Street Address)
-----------------------------------
(Print City, State and Zip)
-----------------------------------
(Print Telephone Number)
Total Number of Shares of the Company's Common Stock owned directly on the date
hereof:
----------------------------
Total Number of Shares of the Company's Class A Common Stock owned directly on
the date hereof:
----------------------------
[SIGNATURE PAGE TO VOTING AGREEMENT]
ANNEX A
IRREVOCABLE PROXY
TO VOTE STOCK OF
THE WELLCARE MANAGEMENT GROUP, INC.
The undersigned shareholder of The WellCare Management Group, Inc., a
New York corporation (the "Company"), hereby irrevocably appoints the members of
the Board of Directors of WellCare Acquisition Company, a Delaware corporation
("Parent"), and each of them, or any other designee of Parent, as the sole and
exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting rights (to the
full extent that the undersigned is entitled to do so) with respect to (i) all
of the issued and outstanding shares of capital stock of the Company that now
are owned of record by the undersigned and (ii) any and all other shares of
capital stock of the Company which the undersigned may acquire on or after the
date hereof (collectively, the "Shares") in accordance with the terms of this
Irrevocable Proxy. The Shares owned of record by the undersigned shareholder of
the Company as of the date of this Irrevocable Proxy are listed on the final
page of this Irrevocable Proxy. Upon the undersigned's execution of this
Irrevocable Proxy, any and all prior proxies given by the undersigned with
respect to the voting of any Shares are hereby revoked and the undersigned
agrees not to grant any subsequent proxies with respect to such Shares until
after the Expiration Date (as defined below).
This Irrevocable Proxy is irrevocable (to the fullest extent permitted
by law), is coupled with an interest, and is granted in consideration of Parent
entering into that certain Agreement and Plan of Merger (the "Merger Agreement")
by and among Parent, WellCare Merger Sub, Inc., a New York corporation ("Merger
Sub"), and the Company, which Merger Agreement provides for the merger of Merger
Sub with and into the Company (the "Merger"). As used herein, the term
"Expiration Date" shall mean the earlier to occur of (i) such date and time as
the Merger shall become effective in accordance with the terms and provisions of
the Merger Agreement and (ii) the termination of the Merger Agreement in
accordance with the terms thereof.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting rights of the undersigned with respect to the Shares
(including, without limitation, the power to execute and deliver written
consents), at every annual, special or adjourned meeting of the shareholders of
the Company and in every written consent in lieu of such meeting: (i) in favor
of the adoption of the Merger Agreement and the terms thereof, and each of the
other transactions contemplated by the Merger Agreement, and any matter which
would, or could reasonably be expected to, facilitate the Merger or any of the
transactions contemplated by the Merger Agreement; (ii) against approval of any
proposal made in opposition to or in competition with the consummation of the
Merger or the Merger Agreement; (iii) against any Competing Proposed Transaction
(as defined in the Merger Agreement) involving the Company or any subsidiary of
the Company; (iv) against any liquidation or winding up of the Company; and (v)
against any other proposal or action which would, or could reasonably be
expected to, prohibit or discourage the Merger.
The attorneys and proxies named above may not exercise this Irrevocable
Proxy on any other matter except as provided above. The undersigned shareholder
may vote the Shares on all other matters.
All authority herein conferred shall survive the death or incapacity of
the undersigned and any obligation of the undersigned hereunder shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned.
Dated: May __, 2002
-------------------------------------
(Signature of the Shareholder)
-------------------------------------
(Print Name of the Shareholder)
Shares owned of record:
_______________________ shares of
Common Stock of the Company
_______________________ shares of Class A Common Stock
of the Company
[SIGNATURE PAGE TO IRREVOCABLE PROXY]
