Exhibit 10.30
PREPAYMENT AND AMENDMENT AGREEMENT
This PREPAYMENT AND AMENDMENT AGREEMENT (this "AGREEMENT") is made and
entered into as of May 11, 2004, by and among WellCare Holdings, LLC, a Delaware
limited liability company ("PARENT"); WellCare Health Plans, Inc., a Delaware
corporation f/k/a WellCare Acquisition Company ("WELLCARE"); and Xxxxx X. Xxxxx,
Xxxxxxx Xxxxx, Xxxxxx X. Xxxxx, Xxxxx Xxxxx, Xxxxxx Xxxx and Xxxx Xxxx (each, a
"STOCKHOLDER" and collectively, the "Stockholders"). Parent, WellCare and the
Stockholders are sometimes referred to in this Agreement individually as a
"PARTY" and collectively as the "PARTIES."
RECITALS
A. Parent, WellCare and the Stockholders are parties to that certain
Purchase Agreement, dated as of May 17, 2002 (as subsequently amended, the
"PURCHASE AGREEMENT"), pursuant to which WellCare acquired all of the
outstanding equity securities of Well Care HMO, Inc., a Florida corporation,
HealthEase of Florida, Inc., a Florida corporation, Comprehensive Health
Management, Inc., a Florida corporation, and Comprehensive Health Management of
Florida, L.C., a Florida limited liability company.
B. On February 12, 2004, the Parties entered into that certain Amendment
and Settlement Agreement (the "SETTLEMENT AGREEMENT"), pursuant to which the
Parties settled certain disputes among them and amended the Purchase Agreement
and certain other documents related thereto.
C. A portion of the purchase price under the Purchase Agreement was paid by
issuance of that certain Senior Subordinated Non-Negotiable Promissory Note
dated July 31, 2002, in the original principal amount of $53,000,000, issued by
WellCare to Xxxxx X. Xxxxx, as Stockholder Representative on behalf of the
Stockholders (the "STOCKHOLDER REPRESENTATIVE"), as subsequently amended and
restated in its entirety by that certain Amended and Restated Senior
Subordinated Non-Negotiable Promissory Note dated February 12, 2004, in the
original principal amount of $116,240,692, issued by WellCare to the Stockholder
Representative (the "RESTATED NOTE").
D. The obligations of WellCare under the Restated Note are secured by a
pledge of a portion of the capital stock of WellCare, as set forth in that
certain Pledge Agreement, dated as of July 31, 2002 (as subsequently amended,
the "PLEDGE AGREEMENT"), between Parent and the Stockholder Representative.
E. The Parties now desire to provide for the prepayment of a portion of the
principal amount of the Restated Note and to otherwise amend the Restated Note
and the Pledge Agreement, and to provide for certain other matters, all as set
forth herein.
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,
the Parties agree as follows:
1. Definitions. Capitalized terms used and not defined herein shall have
the respective meanings ascribed to them in the Purchase Agreement.
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2. Prepayment; Forgiveness of Indebtedness.
(a) On the Closing Date (as hereinafter defined), WellCare shall
prepay (without setoff for any reason) $85,000,000 of the outstanding principal
amount of the Restated Note (the "PREPAYMENT"), as follows:
(i) $60,000,000 of the Prepayment shall be paid to the
Stockholder Representative, on behalf of the Stockholders; and
(ii) the remaining $25,000,000 of the Prepayment (the "ESCROW
AMOUNT") shall be paid to Wachovia Bank, National Association ("WACHOVIA"), as
escrow agent (the "ESCROW AGENT"), to secure a portion of the indemnification
obligations of the Stockholders under the Purchase Agreement with respect to the
X.X. Xxxxxx Claim and any X.X. Xxxxxx Losses (as such terms are defined in the
Settlement Agreement), as set forth in that certain Escrow Agreement entered
into as of the date hereof among WellCare, the Stockholder Representative and
the Escrow Agent (the "ESCROW AGREEMENT").
The Parties acknowledge and agree that, notwithstanding anything to the contrary
in the Restated Note, the full amount of the Prepayment shall be credited to,
and shall reduce, the outstanding principal amount of the Restated Note in the
order of maturity.
(b) Effective upon, and in consideration for, the Prepayment,
$3,000,000 of the outstanding principal amount of the Restated Note shall be
forgiven, and the outstanding principal amount of the Restated Note shall
automatically be reduced by such amount, resulting in a remaining outstanding
principal amount of $28,240,692 which shall be payable on September 15, 2006.
3. Amendment of Restated Note. Effective upon the Closing Date, the
Restated Note shall be amended as follows:
(a) The outstanding principal amount of the Restated Note shall be
Twenty Eight Million Two Hundred Forty Thousand Six Hundred and Ninety-Two
United States Dollars (U.S. $28,240,692).
(b) The definition of "Qualified IPO" set forth in Sections 1(d) of
the Restated Note shall be deleted in its entirety.
(c) Section 2 of the Restated Note shall be deleted in its entirety
and replaced with the following:
"The principal amount hereunder shall be payable in full on the
Maturity Date."
(d) Clause (i) of Section 8(a) of the Restated Note shall be deleted
in its entirety.
(e) The parenthetical phrase "(subject to the Senior Debt Limit)" in
Section 8(k)(i) of the Restated Note shall be deleted.
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(f) The phrase "and the Maker's calculation of the applicable Senior
Debt Limit" and the parenthetical phrase "(provided that any payments of
dividends on account of any shares of its preferred stock shall lower the Senior
Debt Limit to the extent of such payments)" in Section 10 of the Restated Note
shall be deleted.
4. Amendment of Pledge Agreement; Release of Pledged Shares.
(a) Effective upon the Closing Date, the Pledge Agreement shall be
amended as follows:
(i) All references in the Pledge Agreement to the "Note" shall be
deemed to refer to the Restated Note, as amended by Section 3 of this Agreement.
(ii) The definition of "Pledged Shares" set forth in Section 1(b)
of the Pledge Agreement shall be deleted in its entirety and replaced with the
following:
""Pledged Shares" means 51% of the issued and outstanding capital
stock of Buyer."
(iii) Subclause (c) contained in clause (ii) of Section 2(b) of
the Pledge Agreement shall be deleted.
(iv) Section 2(e) of the Pledge Agreement shall be deleted in its
entirety.
(v) Section 4(c) of the Pledge Agreement shall be deleted in its
entirety and replaced with the following:
"Holdings shall cause Buyer to refrain from issuing to any person
(other than Holdings) any shares of Buyer's capital stock or any other
rights, options or warrants to acquire such stock, or any securities
convertible into stock; provided, however, that Buyer may issue shares of
stock and/or convertible securities so long as the Pledged Shares continue
to represent the then-applicable requisite percentage of the issued and
outstanding capital stock of Buyer set forth in the definition of "Pledged
Shares.""
(b) On the Closing Date, the Stockholder Representative shall execute
and deliver to WellCare an instruction letter, in the form attached hereto as
Exhibit A, to the Escrow Agent (as such term is defined in the Escrow Agreement,
dated as of July 31, 2002 (the "STOCK ESCROW AGREEMENT"), among the Parent, the
Stockholder Representative and National City Bank), directing the Escrow Agent
to release from escrow 49% of the Pledged Shares (as such term is defined in the
Pledge Agreement and in the Stock Escrow Agreement).
(c) From and after the Closing Date, all references in the Stock
Escrow Agreement to the Pledge Agreement shall be deemed to refer to the Pledge
Agreement as amended hereby.
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5. Security. In the event that any Buyer Indemnified Party shall be
required to post a bond or similar arrangement in connection with the X.X.
Xxxxxx Claim (as such term is defined in the Settlement Agreement), including,
without limitation, any bond required to be posted in connection with any appeal
that any Buyer Indemnified Party may determine to undertake with respect to any
ruling, judgment or other decree or binding statement of any court regarding,
related to or in connection with the X.X. Xxxxxx Claim, the Stockholder
Representative shall fully fund the Stockholders' collective pro-rata portion of
such bond or other arrangement, calculated based upon the proportion of the
total amount of X.X. Xxxxxx Losses for which the Stockholders are responsible
under the Purchase Agreement. Such funding may be provided in the form of cash
(including the amount then being held in escrow pursuant to the terms of the
Escrow Agreement) and/or such other collateral as may be acceptable to the
applicable bonding company or similar type entity. By way of example, in the
event that a bonding company were to require the deposit of collateral in the
amount of 125% of a judgment, the Stockholders would be required to provide
appropriate collateral for 125% of the portion of such judgment with respect to
which the Buyer Indemnified Parties would be entitled to recover from the
Stockholders pursuant to the terms of the Purchase Agreement (disregarding, for
this purpose only, any defenses the Stockholders may have to their
indemnification obligations under the Purchase Agreement). The Stockholders
shall, as of the Closing Date, cause any and all pledges and other Liens on the
Stockholders' interests in the Restated Note in excess of $10,000,000 to be
terminated and extinguished, and thereafter shall not pledge or otherwise permit
the imposition of any Liens on the Restated Note in excess of $10,000,000
without the prior written consent of WellCare, which consent may be granted or
denied in WellCare's sole discretion.
6. Closing; Termination. The closing of the transactions described herein
(the "CLOSING") shall occur on a date (the "CLOSING DATE") to be selected by
WellCare; provided that WellCare's obligation to consummate the transactions
contemplated herein is conditioned on WellCare's receipt of gross proceeds of
not less than $100,000,000 pursuant to a secured debt financing (the "QUALIFIED
FINANCING"). On the Closing Date, (a) WellCare shall make the Prepayment, and
(b) the Stockholder Representative shall execute and deliver to WellCare the
instruction letter referred to in Section 4(b) hereof. Either WellCare or the
Stockholder Representative (on behalf of the Stockholders) may terminate this
Agreement upon written notice to the other if the Closing shall not have
occurred by July 31, 2004, in which case this Agreement shall become void and of
no further force or effect.
7. Representations and Warranties.
(a) Each of the Stockholders hereby represents and warrants to
WellCare that (i) such Stockholder is under no obligation or restriction that
would in any way interfere or conflict with his or her performance hereunder,
and (ii) the execution and delivery of this Agreement and/or, if applicable, the
Escrow Agreement by such Stockholder will not result in a violation or breach
of, or constitute (with or without the giving of notice or lapse of time or
both) a default (or give rise to any right of termination, cancellation, payment
or acceleration) under, any Credit Agreement, note or any other contract or
agreement between any lender or any other Person, including Bank of America,
N.A., and any Stockholder.
(b) Each of Parent and WellCare hereby represents and warrants to each
Stockholder that (i) subject to the satisfaction of the condition set forth in
Section 6 hereof, such
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Party is under no obligation or restriction that would in any way interfere or
conflict with its performance hereunder, and (ii) subject to the receipt of
consents from Bank of America and GSC Partners, the execution and delivery of
this Agreement and/or the Escrow Agreement by such Party will not result in a
violation or breach of, or constitute (with or without the giving of notice or
lapse of time or both) a default (or give rise to any right of termination,
cancellation, payment or acceleration) under, any Credit Agreement, note or any
other contract or agreement between any lender or any other Person.
8. Confidentiality. Each of the Parties hereby agrees to keep the terms of
this Agreement confidential; provided, however, that the foregoing shall not
prevent or restrict any disclosure (a) to such Party's professional advisors,
financing sources or prospective financing sources, (b) which is required by
order of court or Governmental or Regulatory Authority with subpoena powers
(provided that the Party subject thereto shall have provided the other Parties
with prior notice of such order and an opportunity to object or seek a
protective order and take any other available action), (c) in the course of any
Action or Proceeding between any of the Parties hereto or (d) by WellCare or any
of its affiliates to the extent required or desirable under applicable Law or
the rules of any stock exchange.
9. Entire Agreement; Modification. This Agreement and the Exhibits hereto
constitute the entire agreement among the parties with respect to the subject
matter hereof and supersede 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.
10. Pledge Agreement, Restated Note, and Settlement Agreement Effective.
Except as otherwise specifically set forth in this Agreement, all provisions of
the Pledge Agreement and the Restated Note (including the calculation of
interest as provided therein) which are not in conflict with the terms of this
Agreement shall remain in full force and effect. The Settlement Agreement
remains in full force and effect. Without limiting the generality of the
previous sentence, the provisions of the Settlement Agreement relating to the
Buyer Indemnification Threshold, the Seller Indemnification Threshold, the Buyer
Indemnification Cap and the Stockholder Indemnification Cap are in full force
and effect and are not impacted in any manner by this Agreement or the Escrow
Agreement.
11. Purchase Agreement. Section 9.2(f) of the Purchase Agreement as well as
any other applicable provision of the Purchase Agreement, the Restated Note and
the Settlement Agreement are hereby amended to the extent necessary to provide
that cash and any other assets held in escrow pursuant to the Escrow Agreement
are a permissible source of recovery for any Buyer Indemnified Party with
respect to the X.X. Xxxxxx Claim and any X.X. Xxxxxx Losses.
12. Bank of America as Replacement Escrow Agent. If at any time during the
60-day period beginning on the day immediately following the Closing Date, (i)
Bank of America, N.A. ("BoA") is willing to enter into an escrow agreement
identical to the Escrow Agreement (except for the change of the escrow agent
from Wachovia to BoA), as reasonably determined by WellCare (such an escrow
agreement, an "IDENTICAL ESCROW AGREEMENT"), and (ii) the Stockholder
Representative desires that BoA replace Wachovia as the escrow agent under the
Escrow Agreement (in each case, which shall be evidenced by the Stockholder
Representative
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sending a written notice to WellCare stating such desire by the Stockholder
Representative along with a signed letter from BoA stating that BoA is willing
to enter into an Identical Escrow Agreement), then WellCare shall join with the
Stockholder Representative (A) to take reasonably appropriate actions to sign
such an Identical Escrow Agreement with BoA and (B) to move all property then in
the escrow account established with Wachovia pursuant to the Escrow Agreement to
the escrow account established with BoA pursuant to the Identical Escrow
Agreement. Notwithstanding anything contained herein to the contrary (I) all
costs of entering into an Identical Escrow Agreement shall be borne solely by
the Stockholder Representative, (II) WellCare shall have no obligations to enter
into any escrow agreement with the Stockholder Agreement and BoA other than an
Identical Escrow Agreement as expressly provided herein and (III) WellCare shall
have no obligation to convince or influence BoA to enter into an Identical
Escrow Agreement or to establish an escrow account pursuant thereto.
13. Waiver. Any term or condition of this Agreement may be waived at any
time by the Party that is entitled to the benefit thereof, but no such waiver
shall be effective unless set forth in a written instrument duly executed by or
on behalf of the Party waiving such term or condition. No waiver by any Party of
any term or condition of this Agreement, in any one or more instances, shall be
deemed to be or construed as a waiver of the same or any other term or condition
of this Agreement on any future occasion. All remedies, either under this
Agreement or by Law or otherwise afforded, will be cumulative and not
alternative.
14. Binding Effect. This Agreement is binding upon, inures to the benefit
of and is enforceable by the Parties and their respective successors and
assigns. The Stockholders acknowledge that WellCare Group, Inc., a Subsidiary of
Parent ("WCG"), has filed a registration statement under the Securities Act in
connection with a proposed initial public offering of the common stock of WCG
and that, subject to the consummation of such offering, it is expected that
Parent will be merged with and into WCG, in which case all references to Parent
in this Agreement, the Settlement Agreement, the Purchase Agreement and any
Ancillary Agreements shall be deemed to be references to WCG, as
successor-in-interest to Parent.
15. Headings. The headings used in this Agreement have been inserted for
convenience of reference only and do not define or limit the provisions hereof.
16. Invalid Provisions. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future Law, and if the
rights or obligations of any Party under this Agreement will not be materially
and adversely affected thereby, (a) such provision will be fully severable, (b)
this Agreement will be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof, (c) the remaining
provisions of this Agreement will remain in full force and effect and will not
be affected by the illegal, invalid or unenforceable provision or by its
severance herefrom and (d) in lieu of such illegal, invalid or unenforceable
provision, there will be added automatically as a part of this Agreement a
legal, valid and enforceable provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible.
17. 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
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or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York.
18. Jurisdiction; Venue. All actions and proceedings arising out of or
relating to this Agreement shall be heard and determined in any Florida state or
federal court sitting in the City of Tampa, Florida, 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 Tampa,
Florida and further irrevocably waives any claim that any action or proceeding
brought in any such court has been brought in an inconvenient forum.
19. Waiver of Jury Trial. 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.
20. 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, the parties hereto have executed this Prepayment and
Amendment Agreement as of the date first above written.
WellCare Health Plans, Inc. WellCare Holdings, LLC
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx Name: Xxxx X. Xxxxx
Title: President & Chief Executive Title: President & Chief Executive
Officer Officer
STOCKHOLDERS
/s/ Xxxxx X. Xxxxx /s/ Xxxxxxx Xxxxx
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Xxxxx X. Xxxxx Xxxxxxx Xxxxx
/s/ Xxxxxx X. Xxxxx /s/ Xxxxx Xxxxx
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Xxxxxx X. Xxxxx Xxxxx Xxxxx
/s/ Xxxxxx Xxxx /s/ Xxxx Xxxx
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Xxxxxx Xxxx Xxxx Xxxx
