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
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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 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
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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 Shares other than in compliance with this
Agreement, the Company shall not, and the Shareholder hereby unconditionally
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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 of law or conflict of law provision or
rule (whether of the State of New York or any other jurisdiction) that would
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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]
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.
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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]
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