AGREEMENT
Exhibit
H
EXECUTION
COPY
This
AGREEMENT (this
“Agreement”) is made as of September 18, 2007, by and among Universal
American Financial Corp., a New York corporation (“Parent”), MH
Acquisition I Corp., a Delaware corporation and wholly owned subsidiary of
Parent (the “Delaware Corp. Merger Sub”), MH Acquisition II LLC, a
Delaware limited liability company and wholly owned subsidiary of Parent (the
“Delaware LLC Merger Sub” and, together with the Delaware Corp. Merger
Sub, collectively, the “Merger Subs”), MHRx LLC, a Delaware limited
liability company (“MHRx”), MemberHealth, Inc., an Ohio corporation and
wholly owned subsidiary of MHRx (the “Company”), Welsh, Carson, Xxxxxxxx
& Xxxxx IX, L.P., a Delaware limited partnership, as the “Shareholder
Representative” referred to in the Merger Agreement (as defined below) (the
“Shareholder Representative”; Parent, the Merger Subs, MHRx, the Company
and the Shareholder Representative are herein collectively referred to as the
“Merger Agreement Parties”), Xxx-Universal Holdings, LLC (“Xxx”),
Welsh, Carson, Xxxxxxxx & Xxxxx X, L.P. (“WCAS X”), Union Square
Universal Partners, L.P. (“Union Square”), Perry Partners, L.P., Perry
Partners International, Inc., Perry Private Opportunities Fund, L.P., Perry
Private Opportunities Offshore Fund, L.P. (the afore-named Perry entities are
referred to herein collectively as “Perry”; Parent, Xxx, WCAS X, Union
Square and Perry are herein collectively referred to as the “SPA Parties”
and Xxx, WCAS X, Union Square and Perry are herein collectively referred
to as
the “SPA Investors”), and Bank of America, N.A., in its capacity as
administrative agent (the “Administrative Agent”) for itself and certain
other lenders under the Credit Agreement dated as of the date hereof among
Parent, the Administrative Agent and the other lenders and agents from time
to
time party thereto (the “Credit Agreement”).
BACKGROUND
A. On
May 7, 2007, the Merger Agreement Parties entered into a certain Agreement
and
Plan of Merger and Reorganization (as the same may be amended from time to
time,
the “Merger Agreement”) pursuant to which Parent has agreed to acquire
the Company by means of certain mergers described therein involving the Merger
Subs and the Company (the “Mergers”);
B. Additionally,
on May 7, 2007, the SPA Parties entered into a certain Securities Purchase
Agreement (as the same may be amended from time to time, the “Securities
Purchase Agreement”) pursuant to which the Investors named therein have
severally agreed to purchase securities in connection with the consummation
of
the Mergers;
C. The
parties hereto have determined that all of the conditions to the consummation
of
the transactions contemplated by the Merger Agreement that are contained in
Article 6 of the Merger Agreement and all of the conditions to the consummation
of the transactions contemplated by the Securities Purchase Agreement that
are
contained in Article 6 of the Securities Purchase Agreement have either been
satisfied or are capable of satisfaction (and ready to be satisfied) on the
date
hereof but that it is in their mutual best interests to delay the delivery
of
the closing documentation under the Merger Agreement and the Securities Purchase
Agreement, the filing of the Certificates of Merger (such term being used herein
as defined in the Merger Agreement), the delivery of the Initial Merger
Consideration (such term being used herein as defined in the Merger Agreement)
under the Merger Agreement and the Convertible Shares (such term being used
herein as defined in the Securities Purchase Agreement) to be issued to the
SPA
Investors under the Securities Purchase Agreement and the cash purchase price
therefor until October 15, 2007 or the date of any earlier delivery of an Escrow
Release Certificate (such term being used herein as defined in the Closing
Escrow Agreement) (such date, the “Closing Escrow Release
Date”);
D. The
parties hereto desire to (i) enter into a certain Escrow Agreement (the
“Closing Escrow Agreement”), dated as of the date hereof, by and among
the parties hereto and The Bank of New York, a New York banking corporation,
as
escrow agent (the “Closing Escrow Agent”), pursuant to which the
transactions contemplated by the Merger Agreement and the Securities Purchase
Agreement will be consummated on the Closing Escrow Release Date and (ii) set
forth herein their mutual understanding and agreement that there shall be no
remaining conditions to the consummation of the transactions contemplated by
the
Merger Agreement or the Securities Purchase Agreement other than the passage
of
time (i.e., the occurrence of the Closing Escrow Release Date);
and
E. In
furtherance of the foregoing, on the date hereof:
1. the
SPA Investors are depositing cash in an aggregate amount of $250,000,000 with
the Closing Escrow Agent (the “Investor Cash). Parent is
borrowing under the Credit Agreement and the Administrative Agent is depositing,
at the request of Parent, additional cash in an aggregate amount of
$257,399,174.16 with the Closing Escrow Agent, of which $96,500,000 is referred
to as the “Merger Consideration Cash” and $160,899,174.16 is referred to
as the “Surplus Cash”. The Investors are depositing the
Investor Cash, and Parent is borrowing under the Credit Agreement and, at the
request of Parent, the Administrative Agent is depositing the Merger
Consideration Cash in order to provide all of the funds necessary for the
payment of the Initial Merger Consideration on the Closing Escrow Release Date
(all such funds being referred to herein as the “Closing Escrow
Cash”);
2. Parent is
depositing with the Closing Escrow Agent certificates representing all shares
of
its Common Stock that are necessary for purposes of delivering the Initial
Stock
Merger Consideration on the Closing Escrow Release Date (the “Merger Escrow
Shares”);
3. Parent is
depositing with the Closing Escrow Agent certificates representing all
Convertible Shares (such term being used herein as defined in the Securities
Purchase Agreement) to be sold to the SPA Investors on the Closing Escrow
Release Date (the “SPA Escrow Shares”);
4. the Merger
Agreement Parties are depositing with the Closing Escrow Agent fully executed
Certificates of Merger for purposes of effecting the Mergers on the Closing
Escrow Release Date; and
-2-
5. certain of
the parties hereto are depositing with the Closing Escrow Agent executed
versions of the other Escrow Documents (such term being used herein as defined
in the Closing Escrow Agreement) for purposes of delivery on the Closing Escrow
Release Date.
NOW,
THEREFORE, in consideration of the
mutual covenants contained herein, and intending to be legally bound hereby,
the
parties hereto agree as follows:
Section
1. Closing
of the Merger Agreement.
Capitalized
terms used in this Section
1 but not otherwise defined in this Agreement shall have the definitions
ascribed to such terms in the Merger Agreement.
a.
Simultaneously with the execution and delivery of this Agreement, (i) the
Closing Escrow Agreement is being executed and delivered by the parties thereto,
(ii) the Escrow Documents described under the heading “Merger Agreement Escrow
Documents” on Schedule I thereto (“Merger Escrow Documents”) are being
delivered by the parties thereto to the Closing Escrow Agent and (iii) the
Initial Merger Consideration is being delivered to the Closing Escrow
Agent. The parties hereto agree that, notwithstanding anything to the
contrary contained in Article 6 of the Merger Agreement, all conditions to
the
Closing set forth in Article 6 of the Merger Agreement have been irrevocably
and
unconditionally satisfied for all purposes and that from and after the date
hereof none of the obligations of the Merger Agreement Parties under the Merger
Agreement, this Agreement or the Closing Escrow Agreement shall be subject
to
any of the conditions to closing set forth in Article 6 of the Merger Agreement
or any other conditions except for the occurrence of the date October 15, 2007
or the earlier delivery of an Escrow Release
Certificate. Notwithstanding anything to the contrary contained
herein, nothing in this Agreement is intended to relieve the parties of their
obligations to effect the transactions contemplated by the Merger Agreement
and
the Escrow Agreement on the Escrow Release Date, including the filing of the
Certificates of Merger, as contemplated by Section 5 of the Escrow
Agreement.
b.
The covenants and agreements set forth in the Merger Agreement shall continue
in
full force and effect until the Closing Escrow Release Date, and all covenants
and agreement that survive the Closing (as defined in the Merger Agreement)
shall thereafter continue to survive in accordance with their
terms. For the avoidance of doubt it is acknowledged and agreed that
the Merger Agreement Parties’ compliance with the covenants and agreements set
forth in the Merger Agreement shall not constitute a condition to the
obligations of any of the Merger Agreement Parties to consummate the
transactions contemplated by the Merger Agreement, this Agreement or the Closing
Escrow Agreement; provided, however, that notwithstanding anything
to the contrary contained in this Section 1(b), no party hereby waives any
right
to any indemnity or damages to which it is entitled by reason of any other
party’s failure to comply with any applicable provision of the Merger
Agreement.
c. Notwithstanding
anything to the contrary in the Merger Agreement, any and all breaches of
representations set forth in the Merger Agreement that (i) are caused solely
by
the delay of the delivery of the closing documentation under the Merger
Agreement and the Securities Purchase Agreement, the filing of the Certificates
of Merger, the delivery of the Initial Merger Consideration under the Merger
Agreement and the Convertible Shares to be issued to the SPA Investors under
the
Securities Purchase Agreement until October 15, 2007 or an earlier date,
pursuant to this Agreement and the Closing Escrow Agreement or (ii) that arise
from a representation or warranty becoming inaccurate after the date hereof,
are
hereby irrevocably and unconditionally waived.
-3-
d. The
Merger Agreement Parties agree that the date October 7, 2007 contained in
Section 7.1(b) of the Merger Agreement is extended until all distributions
and
other transactions contemplated by the Merger Agreement and the Closing Escrow
Agreement have been completed on the Closing Escrow Release Date.
e. The
Closing Date under the Merger Agreement shall be deemed to be the Closing Escrow
Release Date which shall (i) be the date on which the Certificates of Merger
are
filed pursuant to Section 5(a) of the Closing Escrow Agreement and (ii) occur
no
later than October 15, 2007.
f.
On the Closing Escrow Release Date, the Initial Merger Consideration shall
be released from the escrow established pursuant to the Closing Escrow Agreement
and the Closing Escrow Agent shall (i) deliver to the members of MHRx (A) the
Initial Cash Merger Consideration (other than the Escrow Cash and subject to
any
tax withholdings permitted by the Merger Agreement and deductions for the
payment of expenses or establishment of reserves as permitted by the Merger
Agreement and directed by the Shareholder Representative) and (B) certificates
evidencing the Initial Parent Shares (other than the Escrow Shares) registered
in the names of the MHRx members, as required by, and in accordance with
instructions provided by MHRx as contemplated by Section 2.9 of the Merger
Agreement, and (ii) deposit the Escrow Cash and Escrow Shares (as such terms
are
defined in the Escrow Agreement) into the Escrow Fund as contemplated by the
Merger Agreement.
g. On
the Closing Escrow Release Date, the Merger Escrow Documents shall be delivered
by the Closing Escrow Agent to the Merger Agreement Parties entitled to receive
such documents under the Closing Escrow Agreement, the Merger Agreement or
such
Merger Escrow Documents. Notwithstanding anything else to the
contrary contained in such Merger Escrow Documents, the Merger Agreement, this
Agreement and the Closing Escrow Agreement, each of the Merger Escrow Documents
listed on Schedule I hereto shall be dated and effective upon such
release on the Closing Escrow Release Date and all other Merger Escrow Documents
shall be dated and effective as of the date hereof.
h.
On the Closing Escrow Release Date, all interest earned on the Escrow Cash
(as such term is defined in the Closing Escrow Agreement) shall be delivered
to
MHRx and the Board of Directors of Parent shall be reconstituted as contemplated
by the Shareholders Agreement.
Section
2. Closing
of the Securities Purchase Agreement.
Capitalized
terms used in this Section
2 but not otherwise defined in this Agreement shall have the definitions
ascribed to such terms in the Securities Purchase Agreement.
-4-
a. Simultaneously
with the execution and delivery of this Agreement, (i) the Escrow Agreement
is
being executed and delivered by the parties thereto, (ii) the Escrow Documents
described under the heading “Securities Purchase Agreement Escrow Documents” on
Schedule II thereto (“Securities Purchase Agreement Escrow Documents”)
are being delivered by the parties thereto to the Closing Escrow Agent and
(iii)
the Escrow Cash and the SPA Escrow Shares are being delivered to the Closing
Escrow Agent. The parties hereto agree that, notwithstanding anything
to the contrary contained in Article 6 of the Securities Purchase Agreement,
all
conditions to the Closing set forth in Article 6 of the Securities Purchase
Agreement have been irrevocably and unconditionally satisfied for all purposes
and that from and after the date hereof none of the obligations of the
Securities Purchase Agreement Parties under the Securities Purchase Agreement,
this Agreement or the Closing Escrow Agreement shall be subject to any of the
conditions to closing set forth in Article 6 of the Securities Purchase
Agreement or any other conditions except for the occurrence of the date October
15, 2007 or the earlier delivery of an Escrow Release Certificate.
Notwithstanding anything to the contrary contained herein, nothing in this
Agreement is intended to relieve the parties of their obligations to effect
the
transactions contemplated by the Securities Purchase Agreement and the Escrow
Agreement on the Escrow Release Date as contemplated by Section 5 of the Escrow
Agreement.
b. The
covenants and agreements set forth in the Securities Purchase Agreement shall
continue in full force and effect until the Closing Escrow Release Date, and
all
covenants and agreement that survive the Closing (as defined in the Securities
Purchase Agreement) shall thereafter continue to survive in accordance with
their terms. For the avoidance of doubt it is acknowledged and agreed
that the SPA Parties’ compliance with the covenants and agreements set forth in
the Securities Purchase Agreement shall not constitute a condition to the
obligations of any of the SPA Parties to consummate the transactions
contemplated by the Securities Purchase Agreement, this Agreement or the Closing
Escrow Agreement; provided, however, that notwithstanding anything to the
contrary contained in this Section 2(b), no party hereby waives any right to
any
indemnity or damages to which it is entitled by reason of any other party’s
failure to comply with any applicable provision of the Securities Purchase
Agreement.
c. Notwithstanding
anything to the contrary in the Securities Purchase Agreement, any and all
breaches of representations set forth in the Securities Purchase Agreement
that
(i) are caused solely by the delay of the delivery of the closing documentation
under the Merger Agreement and the Securities Purchase Agreement, the filing
of
the Certificates of Merger, the delivery of the Initial Merger Consideration
under the Merger Agreement and the Convertible Shares to be issued to the SPA
Investors under the Securities Purchase Agreement until October 15, 2007 or
an
earlier date, pursuant to this Agreement and the Closing Escrow Agreement or
(ii) that arise from a representation or warranty becoming inaccurate after
the
date hereof, are hereby irrevocably and unconditionally waived.
d. The
SPA Parties agree that the date October 7, 2007 contained in Section 7.1(b)
of
the Securities Purchase Agreement is extended until all distributions and other
transactions contemplated by the Securities Purchase Agreement and the Closing
Escrow Agreement have been completed on the Closing Escrow Release
Date.
-5-
e. The
Closing Date for purposes of the Securities Purchase Agreement shall be deemed
to be the Closing Escrow Release Date which shall be date on which the
Certificates of Merger are filed pursuant to Section 5(a) of the Escrow
Agreement and which shall occur no later than October 15, 2007.
f.
On the Closing Escrow Release Date, the SPA Escrow Shares shall be released
from
the escrow established pursuant to the Closing Escrow Agreement and delivered
by
the Closing Escrow Agent to the SPA Investors and the Securities Purchase
Agreement Escrow Documents shall be delivered by the Closing Escrow Agent to
the
SPA Parties entitled to receive such documents under the Closing Escrow
Agreement, the Securities Purchase Agreement or such Securities Purchase
Agreement Escrow Documents. Notwithstanding anything else to the
contrary contained in such Securities Purchase Agreement Escrow Documents,
the
Securities Purchase Agreement, this Agreement and the Closing Escrow Agreement,
each of the Securities Purchase Agreement Escrow Documents listed on Schedule
I hereto shall be dated and effective upon such release on the Closing
Escrow Release Date and all other Securities Purchase Agreement Escrow Documents
shall be dated and effective as of the date hereof.
g. On
the Closing Escrow Release Date, the Board of Directors of Parent shall be
reconstituted as contemplated by the Shareholders Agreement
Section
3. Execution
of the Closing Escrow Agreement. The parties hereto shall enter
into and perform their duties under the Closing Escrow Agreement, including
the
delivery of any required Escrow Items (as such term is defined in the Closing
Escrow Agreement) to the Closing Escrow Agent.
Section
4. Enforcement. The
provisions of Section 8.8 (Jurisdiction and Venue; Waiver of Jury Trial),
Section 8.14 (No Strict Construction) and Section 8.15 (Specific Performance)
of
the Merger Agreement shall apply mutatis mutandis to this
Agreement.
Section
5. Further
Assurances. From time to time after the date of this Agreement,
without the payment of any additional consideration, each party hereto shall
execute all such instruments and take all such actions as the other parties
shall reasonably request in connection with carrying out and effectuating the
intent and purpose hereof and all of transactions contemplated by this
Agreement.
Section
6. Assignability;
Successors and Assigns; Entire Agreement; No Third Party
Beneficiaries. No party hereto may make any assignment,
delegation or transfer of any of its rights, interests or obligations hereunder
without, in each case, obtaining the prior written consent of the other parties
hereto and any purported assignment, delegation or transfer without such consent
shall be of no force or effect. This Agreement and all of the
provisions hereof will be binding upon and inure to the benefit of the parties
hereto and their respective successors, permitted assigns and executors,
administrators and heirs. This Agreement (together with the Closing
Escrow Agreement) sets forth the entire agreement and understanding among the
parties as to the subject matter hereof and merges and supersedes all prior
discussions, agreements and understandings of any and every nature among
them. No course of dealing between or among any persons having any
interest in this Agreement will be deemed effective to modify, amend or
discharge any part of this Agreement or any rights or obligations of any person
under or by reason of this Agreement. This Agreement shall be for the
sole benefit of the parties to this Agreement and their respective heirs,
successors, permitted assigns and legal representatives and is not intended,
nor
shall be construed, to give any person, other than the parties hereto and their
respective heirs, successors, permitted assigns and legal representatives,
any
legal or equitable right, remedy or claim hereunder.
-6-
Section
7. Severability. In
the event that any provision of this Agreement or the application of any
provision hereof is declared to be illegal, invalid or otherwise unenforceable
by a court of competent jurisdiction, the remainder of this Agreement will
not
be affected except to the extent necessary to delete such illegal, invalid
or
unenforceable provision unless that provision held invalid will substantially
impair the benefits of the remaining portions of this Agreement.
Section
8. Notices. All
notices, requests, demands, claims and other communications required or
permitted hereunder will be in writing and will be sent by facsimile, nationally
recognized overnight courier, registered mail or certified mail. Any
notice, request, demand, claim or other communication required or permitted
hereunder will be deemed duly given, as applicable, (a) when so delivered by
facsimile, (b) one (1) Business Day following the date sent when sent by
overnight delivery or (c) five (5) Business Days following the date mailed
when
mailed by registered or certified mail return receipt requested and postage
prepaid to the following address:
(i)
If to Parent or either of the Merger Subs to:
Universal
American Financial Corp.
0
Xxxxxxxxxxxxx Xxxxx
Xxx
Xxxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxx
Xxxxx, Esq.
Telephone:
(000) 000-0000
Facsimile: (000)
000-0000
with
a
required copy to (which shall not constitute notice):
Dechert
LLP
00
Xxxxxxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxxxxx
Xxxxx, Esq.
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
(ii) If
to MHRx, the Company or the Shareholder Representative, to:
x/x
Xxxxx, Xxxxxx, Xxxxxxxx & Xxxxx
000
Xxxx
Xxxxxx, Xxxxx 0000
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Telephone
number: (000) 000-0000
Facsimile
number: (000) 000-0000
Attention: Xxxx
X. Xxxxxxx
-7-
with
a
required copy to (which shall not constitute notice):
Ropes
& Xxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telephone
Number: (000) 000-0000
Facsimile
Number: (000) 000-0000
Attn: Xxxxx
X. Xxxxxxx, Esq. and Xxxxxxxxxxx X. Xxxx, Esq.
(iii) If
to WCAS X, to:
Welsh,
Carson, Xxxxxxxx & Xxxxx
000
Xxxx
Xxxxxx, Xxxxx 0000
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Telephone
number: (000) 000-0000
Facsimile
number: (000) 000-0000
Attention: Xxxx
X. Xxxxxxx
with
required copies (which shall not constitute notice) to:
Ropes
& Xxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telephone
number: (000) 000-0000
Facsimile
number: (000) 000-0000
Attention: Xxxxx
X. Xxxxxxx, Esq. and Xxxxxxxxxxx X. Xxxx, Esq.
-
and-
Weil,
Gotshal & Xxxxxx LLP
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telephone
number: (000) 000-0000
Facsimile
number: (000) 000-0000
Attention: Xxxxxxx
Xxxxxx, Esq.
(iv) If
to Xxx:
Xxx
Equity Partners
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telephone
number: (000) 000-0000
Facsimile
number: (000) 000-0000
Attention: Xxxx
Xxxxxxx/Xxxxxxxx Xxxxxxxx
-8-
with
required copies (which shall not constitute notice) to:
Weil,
Gotshal & Xxxxxx LLP
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telephone
number: (000) 000-0000
Facsimile
number: (000) 000-0000
Attention: Xxxxxxx
Xxxxxx, Esq.
(v) If
to Perry:
Perry
Capital, LLC
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telephone
number: (000) 000-0000
Facsimile
number: (000) 000-0000
Attention: Xxxxxxx
X. Xxxx
with
required copies (which shall not constitute notice) to:
Cravath,
Swaine & Xxxxx LLP
000
Xxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Telephone
number: (000) 000-0000
Facsimile
number: (000) 000-0000
Attention: Xxxx
Xxxxxx, Esq.
-
and -
Weil,
Gotshal & Xxxxxx LLP
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telephone
number: (000) 000-0000
Facsimile
number: (000) 000-0000
Attention: Xxxxxxx
Xxxxxx, Esq.
(vi) If
to Union Square:
Union
Square Partners
000
Xxxx
Xxxxxx Xxxxx, 00xx xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telephone
number: (000) 000-0000
Facsimile
number: (000) 000-0000
Attention: Xxx
Spass/Xxxx Xxxxxxxx
with
required copies (which shall not constitute notice) to:
Weil,
Gotshal & Xxxxxx LLP
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telephone
number: (000) 000-0000
Facsimile
number: (000) 000-0000
Attention: Xxxxxxx
Xxxxxx, Esq.
-9-
(vii) If
to the Administrative Agent:
Bank
of
America, N.A.
000
Xxxxx
Xxxxx Xxxxxx
XXX-000-00-00
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention: Xxxxx
Xxxxxx
Section
9. Governing
Law. This Agreement, and all claims arising in whole or in part
out of, related to, based upon, or in connection herewith or the subject matter
hereof will be governed by and construed in accordance with the domestic
substantive laws of the State of New York, without giving effect to any choice
or conflict of law provision or rule that would cause the application of the
laws of any other jurisdiction.
Section
10. Headings;
Interpretation. The headings in this Agreement are for
convenience of reference only and will not constitute a part of this Agreement,
nor will they affect their meaning, construction or
effect. References herein to Sections, Exhibits, Schedules or Annexes
shall refer to Sections, Exhibits, Schedules or Annexes of or to this Agreement,
unless otherwise identified.
Section
11. Counterparts. This
Agreement may be executed in two or more counterparts and by the parties hereto
in separate counterparts, each of which when so executed will be deemed to
be an
original, and all of which taken together will constitute one and the same
instrument. Delivery of an executed counterpart of a signature page
to this Agreement by electronic means, such as facsimile or portable document
format, shall be as effective as delivery of a manually executed counterpart
of
this Agreement.
Section
12. No
Further Amendments. Except as amended hereby, the Merger
Agreement and the Securities Purchase Agreement shall remain in full force
and
effect enforceable in accordance with their terms.
Section
13. Amendments. This
Agreement may not be amended or modified at any time except by a written
instrument executed by each of the parties hereto.
-10-
IN
WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed as of the day and year first
above written.
| UNIVERSAL AMERICAN FINANCIAL CORP. | |||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxxxxx | |
| Name: Xxxxxx X. Xxxxxxxxx | |||
| Title: Executive Vice President and Chief Financial Officer | |||
| MH ACQUISITION I CORP. | |||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxxxxx | |
| Name: Xxxxxx X. Xxxxxxxxx | |||
| Title: Executive Vice President and Chief Financial Officer | |||
| MH ACQUISITION II LLC | |||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxxxxx | |
| Name: Xxxxxx X. Xxxxxxxxx | |||
| Title: President | |||
| MEMBERHEALTH, INC. | |||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | |||
| Title: Chief Executive Officer | |||
| MHRx LLC | |||
|
|
By:
|
/s/ Xxxx X. Xxxxxxx | |
| Name: Xxxx X. Xxxxxxx | |||
| Title: Member | |||
| WELSH, CARSON, XXXXXXXX & XXXXX IX, L.P., as Shareholder Representative | |||
| By: | WCAS IX ASSOCIATES LLC, its General Partner | ||
|
|
By:
|
/s/ Xxxx X. Xxxxxxx | |
| Name: Xxxx X. Xxxxxxx | |||
| Title: Managing Member | |||
| XXX-UNIVERSAL HOLDINGS, LLC | |||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxxx | |
| Name: Xxxxxx X. Xxxxxxx | |||
| Title: CFO | |||
| WELSH, CARSON, XXXXXXXX & XXXXX X, L.P., | |||
| By: | WCAS X ASSOCIATES LLC, its General Partner | ||
|
|
By:
|
/s/ Xxxx X. Xxxxxxx | |
| Name: Xxxx X. Xxxxxxx | |||
| Title: Managing Member | |||
| UNION SQUARE UNIVERSAL PARTNERS, L.P. | |||
| By: | Union Square Universal GP, LLC, its General Partner | ||
|
|
By:
|
/s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | |||
| Title: Aughorized Signatory | |||
| PERRY PARTNERS, L.P., | |||
| By: | Perry Corp., its General Partner | ||
|
|
By:
|
/s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | |||
| Title: General Counsel | |||
| PERRY PARTNERS INTERNATIONAL, INC., | |||
| By: | Perry Corp., its Investment Manager | ||
|
|
By:
|
/s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | |||
| Title: General Counsel | |||
| PERRY PRIVATE OPPORTUNITIES OFFSHORE FUND, L.P. | |||
| By: | PERRY PRIVATE OPPORTUNITIES OFFSHORE FUND (CAYMAN) GP, L.L.C., its General Partner, | ||
| By: | PERRY CORP., its Managing Member | ||
|
|
By:
|
/s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | |||
| Title: General Counsel | |||
| PERRY PRIVATE OPPORTUNITIES FUND, L.P. | |||
| By: | PERRY PRIVATE OPPORTUNITIES FUND GP, L.L.C., its General Partner, | ||
| By: | PERRY CORP., its Managing Member | ||
|
|
By:
|
/s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | |||
| Title: General Counsel | |||
| BANK OF AMERICA, N.A., as Administrative Agent | |||
|
|
By:
|
/s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | |||
| Title: Vice President | |||
Schedule
I
Escrow
Documents to be Dated and
Effective
as of the Closing Escrow Release Date
|
1.
|
Opinion
of Squire, Xxxxxxx & Xxxxxxx L.L.P. contemplated by Section 6.2(e)(iv)
of the
Merger
Agreement
|
|
2.
|
Opinion
of Dechert LLP contemplated by Section 6.3(i)(iii) of the Merger
Agreement
|
|
3.
|
Shareholders
Agreement
|
|
4.
|
Opinion
of Dechert LLP contemplated by Section 6.3(h)(iii) of the Securities
Purchase Agreement
|
|
5.
|
FIRPTA
Certificate of MemberHealth, Inc.
|
