EXHIBIT 10.12
EXECUTION COPY
CONTRIBUTION AGREEMENT
This Contribution Agreement (this "Agreement"), is dated as of
July 31, 2002, by and between WellCare Holdings, LLC, a Delaware limited
liability company ("WellCare Holdings") and Xxxxx Private Equity Investors LP
("Xxxxx Fund"). Unless otherwise indicated herein, capitalized terms used in
this Agreement have the meanings set forth in Section 1 of this Agreement.
As of immediately prior to the consummation of the
transactions contemplated by this Agreement, Xxxxx Fund is the owner of one
Class A Common Unit, which Class A Common Unit was issued to Xxxxx Fund on May
13, 2002, pursuant to Section 4.1(a) of WellCare Holdings' Limited Liability
Company Agreement, dated as of May 13, 2002.
In consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties and
covenants herein contained, the parties agree as follows.
Section 1. Definitions. For the purposes of this Agreement,
the following terms have the meanings set forth below:
"Class A Common Units" means WellCare Holdings' Class A Common
Units (as such term is defined in the WellCare Holdings LLC Agreement).
"Securities Act" means the Securities Act of 1933, as amended,
and the rules promulgated thereunder.
"WellCare Holdings LLC Agreement" means the Amended and
Restated Limited Liability Company Agreement of WellCare Holdings, dated as of
the date hereof.
Section 2. Contributions to WellCare Holdings; Issuance of
Class A Common Units to Xxxxx Fund. Xxxxx Fund hereby contributes cash in the
amount of $69,999,000 to WellCare Holdings and, in exchange for such
contribution, WellCare Holdings hereby issues to Xxxxx Fund 69,999 Class A
Common Units.
Section 3. Representations and Warranties of Xxxxx Fund. Xxxxx
Fund hereby represents and warrants to WellCare Holdings that the following
statements contained in this Section 3 are true, correct and complete as of the
date hereof:
3A. Existence and Authorization. Xxxxx Fund is duly
organized and/or formed and validly existing and in good standing under the laws
of its jurisdiction of organization and/or formation, and has all requisite
powers and all material governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted. The execution,
delivery and performance by Xxxxx Fund of this Agreement have been duly
authorized by Xxxxx Fund. This Agreement constitutes a valid and binding
obligation of Xxxxx Fund enforceable in
accordance with its terms, except as such enforceability may be limited by: (i)
applicable insolvency, bankruptcy, reorganization, moratorium or other similar
laws affecting creditors' rights generally, or (ii) applicable equitable
principles (whether considered in a proceeding at law or in equity).
3B. No Breach. The execution, delivery and performance by
Xxxxx Fund of this Agreement will not result in any material breach of any terms
or provisions of, or constitute a material default under, any material contract,
agreement or instrument to which Xxxxx Fund is a party or by which Xxxxx Fund is
bound.
3C. Disclosure of Information. Xxxxx Fund has received
and reviewed information about WellCare Holdings, and has had an opportunity to
ask questions and receive answers from WellCare Holdings regarding the terms and
conditions of the offering of the Class A Common Units pursuant to this
Agreement and the business, properties, prospects and financial condition of
WellCare Holdings and its subsidiaries and to conduct such due diligence review
as it has deemed appropriate.
3D. Investment Experience. Xxxxx Fund acknowledges that
it is able to fend for itself, can bear the economic risk of its investment in
the Class A Common Units, and has such knowledge and experience in financial or
business matters that it is capable of evaluating the merits and risks of owning
an investment in the Class A Common Units.
3E. Accredited Investor. Xxxxx Fund is an "accredited
investor" as defined under Rule 501 promulgated under the Securities Act.
3F. Investment Intent. Xxxxx Fund is acquiring the
applicable Class A Common Units for its own account, with the present intention
of holding such securities for purposes of investment, and has no intention of
selling such securities in a public distribution in violation of the federal
securities laws or any applicable state securities laws.
3G. No Public Market. Xxxxx Fund understands that no
public market now exists for the Class A Common Units and that there is no
assurance that a public market will ever exist for the Class A Common Units.
Xxxxx Fund also understands that Rule 144 promulgated under the Securities Act
is not presently available with respect to the sale of any of the Class A Common
Units.
Section 4. Financial Statements and Access to Information
4A. Financial Statements. The Company shall deliver to
Xxxxx Fund:
(i) within 45 days after the end of each monthly
accounting period in each fiscal year of the Company (other than any
monthly accounting period ending on the last day of a fiscal quarter of
the Company), unaudited consolidated statements of income and cash
flows of the Company and its subsidiaries for such monthly period (as
well as unaudited consolidated statements of income of the Company and
its subsidiaries for the period from the beginning of the fiscal year
to the end of such month) and unaudited consolidated balance sheets of
the Company and its subsidiaries as of the end of such monthly period
(and such financial statements shall set forth in each case comparisons
to
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the Company's and its subsidiaries' corresponding period in the
preceding fiscal year and to the Company's and its subsidiaries' then
budget for such period). Such financial statements shall be prepared in
all material respects in accordance with generally accepted accounting
principles, consistently applied, subject to the absence of footnote
disclosures and to normal year-end adjustments;
(ii) within 45 days after the end of each
quarterly accounting period in each fiscal year of the Company (other
than any quarterly accounting period ending on the last day of a fiscal
year of the Company), unaudited consolidated statements of income and
cash flows of the Company and its subsidiaries for such quarterly
period (as well as unaudited consolidated statements of income of the
Company and its subsidiaries for the period from the beginning of the
fiscal year to the end of such quarter) and unaudited consolidated
balance sheets of the Company and its subsidiaries as of the end of
such quarterly period (and such financial statements shall set forth in
each case comparisons to the Company's and its subsidiaries'
corresponding period in the preceding fiscal year and to the Company's
and its subsidiaries' then budget for such period). Such financial
statements shall be prepared in all material respects in accordance
with generally accepted accounting principles, consistently applied,
subject to the absence of footnote disclosures and to normal year-end
adjustments; and
(iii) within 90 days after the end of each fiscal
year of the Company, audited consolidated statements of income and cash
flows of the Company and its subsidiaries for such fiscal year, and
audited consolidated balance sheets of the Company and its subsidiaries
as of the end of such fiscal year (and such financial statements shall
set forth in each case comparisons to the Company's and its
subsidiaries' corresponding period in the preceding fiscal year). Such
financial statement shall be prepared in all material respects in
accordance with generally accepted accounting principles, consistently
applied.
4B. Access to Information. The Company shall permit Xxxxx
Fund and its representatives (including, without limitation, its legal counsel
and accountants), during normal business hours and such other times as Xxxxx
Fund may reasonably request, to (i) visit and inspect any of the properties of
the Company and its subsidiaries, (ii) examine the corporate and financial
records of the Company and its subsidiaries and make copies thereof or extracts
therefrom and (iii) discuss the affairs, finances and accounts of any such
entities with any of the executive officers of the Company or any of its
subsidiaries.
4C. Termination. If at any time after the date hereof (i)
Xxxxx Fund and its affiliates collectively own less than 5% of the Company's (or
any of its successors') then number of issued and outstanding voting common
equity securities, then this Section 4 shall terminate as of such time or (ii)
the Company (or any of its successors) consummates an underwritten initial
public offering of its common equity securities, then clauses (ii) and (iii) of
Section 4A shall terminate as of such time.
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Section 5. Miscellaneous.
5A. Successors and Assigns. Xxxxx Fund shall not assign
any rights under this Agreement without the prior written consent of WellCare
Holdings (and any attempted assignment without such consent shall be null and
void). This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors, heirs and permitted assigns.
5B. Severability. Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
5C. Amendments. This Agreement may be amended only upon
the written consent of all of the parties hereto.
5D. Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, any one of which need not contain
the signatures of more than one party, but all such counterparts taken together
shall constitute one and the same agreement.
5E. Descriptive Headings; Interpretation. Section
headings used in this Agreement are for convenience only and are not to affect
the construction of, or to be taken into consideration in interpreting, such
agreement. The use of the word "including" or any variation or derivative
thereof in this Agreement is by way of example rather than by limitation.
5F. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the state of Delaware, without
giving effect to any rules, principles or provisions of choice of law or
conflict of laws.
5G. Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT
HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY
LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF
THIS AGREEMENT OR THE VALIDITY, PROTECTION, INTERPRETATION, COLLECTION OR
ENFORCEMENT THEREOF.
5H. No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
5I. Entire Agreement. This Agreement and the other
documents referred to herein contain the entire agreement between the parties
hereto and supersede any prior understandings, agreements or representations by
or between the parties hereto, written or oral, which may have related to the
subject matter hereof in any way.
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5J. Time of the Essence; Computation of Time. Time is of
the essence for each and every provision of this Agreement. Whenever the last
day for the exercise of any privilege or the discharge of any duty hereunder
shall fall upon a Saturday, Sunday, or any date on which commercial banks in the
State of Delaware are authorized to be closed, the party having such privilege
or duty may exercise such privilege or discharge such duty on the next
succeeding day which is a regular business day.
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IN WITNESS WHEREOF, the parties have executed this
Contribution Agreement as of the date first written above.
WELLCARE HOLDINGS, LLC
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
XXXXX PRIVATE EQUITY INVESTORS LP
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Attorney-in-Fact
