EXHIBIT 2.1

 

EXECUTION COPY

AGREEMENT AND PLAN OF MERGER


by and among


WELLCARE HEALTH PLANS, INC.,


WIND MERGER SUB, INC.


and


UNIVERSAL AMERICAN CORP.

_________________________


Dated as of November 17, 2016

ARTICLE I THE MERGER		1
Section 1.1	The Merger	1
Section 1.2	Closing	1
Section 1.3	Effective Time	2
Section 1.4	Effects of the Merger	2
Section 1.5	Certificate of Incorporation	2
Section 1.6	Bylaws	2
Section 1.7	Directors	2
Section 1.8	Officers	2
ARTICLE II EFFECT OF THE MERGER ON CAPITAL STOCK		3
Section 2.1	Conversion of Capital Stock	3
Section 2.2	Redemption of Preferred Stock	4
Section 2.3	Surrender of Certificates and Book-Entry Shares	4
Section 2.4	Treatment of Equity Awards	7
Section 2.5	Dissenting Shares	9
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY		9
Section 3.1	Organization and Power	10
Section 3.2	Organizational Documents	10
Section 3.3	Governmental Authorizations	10
Section 3.4	Corporate Authorization	11
Section 3.5	Non-Contravention	11
Section 3.6	Capitalization	12
Section 3.7	Subsidiaries	13
Section 3.8	Voting	14
Section 3.9	SEC Reports	14
Section 3.10	Financial Statements; Internal Controls	14
Section 3.11	Undisclosed Liabilities	15
Section 3.12	Absence of Certain Changes	16
Section 3.13	Litigation	16
Section 3.14	Material Contracts	16
Section 3.15	Benefit Plans	18
Section 3.16	Labor Relations	21
Section 3.17	Taxes	21
Section 3.18	Environmental Matters	23
Section 3.19	Intellectual Property	23
Section 3.20	Real Property; Personal Property	24
Section 3.21	Permits; Compliance with Law	25
Section 3.22	Regulatory Matters	26

Section 3.23	Takeover Statutes	29
Section 3.24	Transactions with Affiliates	29
Section 3.25	Insurance	29
Section 3.26	Insurance Reports	29
Section 3.27	Insurance Laws	30
Section 3.28	Agents	31
Section 3.29	Reinsurance Agreements; Fronting Arrangements	31
Section 3.30	Capital or Surplus Maintenance	31
Section 3.31	Opinion of Financial Advisor	32
Section 3.32	Brokers	32
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB		32
Section 4.1	Organization and Power	32
Section 4.2	Governmental Authorizations	32
Section 4.3	Authorization	33
Section 4.4	Non-Contravention	33
Section 4.5	Capitalization; Interim Operations of Merger Sub; Ownership of Common Stock; Section 203 of the DGCL	34
Section 4.6	Sufficient Funds	35
Section 4.7	Litigation	35
Section 4.8	Reserved	35
Section 4.9	Absence of Arrangements with Management	35
Section 4.10	Brokers	35
Section 4.11	Independent Investigation	36
ARTICLE V COVENANTS		36
Section 5.1	Conduct of Business of the Company	36
Section 5.2	Conduct of Business of Parent	40
Section 5.3	Access to Information; Confidentiality	40
Section 5.4	Solicitation	41
Section 5.5	Company Proxy Statement	44
Section 5.6	Company Stockholders Meeting	46
Section 5.7	Employees; Benefit Plans	46
Section 5.8	Directors’ and Officers’ Indemnification and Insurance	50
Section 5.9	Reasonable Best Efforts	52
Section 5.10	Consents; Filings; Further Action	53
Section 5.11	Public Announcements	55
Section 5.12	NYSE De-listing	56
Section 5.13	Fees and Expenses	56
Section 5.14	Takeover Statutes	56
Section 5.15	Obligations of Merger Sub	56
Section 5.16	Rule 16b-3	56
Section 5.17	Resignation of Directors	56
Section 5.18	Notification of Certain Matters	56

Section 5.19	Certain Litigation	57
Section 5.20	Parent Standstill	57
Section 5.21	Convertible Notes	58
Section 5.22	Transition Matters	59
ARTICLE VI CONDITIONS		59
Section 6.1	Conditions to Each Party’s Obligation to Effect the Merger	59
Section 6.2	Conditions to Obligations of Parent and Merger Sub	59
Section 6.3	Conditions to Obligation of the Company	60
Section 6.4	Frustration of Closing Conditions	61
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER		61
Section 7.1	Termination by Mutual Consent	61
Section 7.2	Termination by Either Parent or the Company	61
Section 7.3	Termination by Parent	62
Section 7.4	Termination by the Company	63
Section 7.5	Effect of Termination	63
Section 7.6	Fees and Expenses Following Termination	63
ARTICLE VIII MISCELLANEOUS		65
Section 8.1	Certain Definitions	65
Section 8.2	Interpretation	73
Section 8.3	No Survival	74
Section 8.4	Governing Law	74
Section 8.5	Submission to Jurisdiction; Service	74
Section 8.6	Waiver of Jury Trial	75
Section 8.7	Notices	75
Section 8.8	Amendment	76
Section 8.9	Extension; Waiver	76
Section 8.10	Entire Agreement	77
Section 8.11	No Third-Party Beneficiaries	77
Section 8.12	Severability	77
Section 8.13	Rules of Construction	78
Section 8.14	Assignment	78
Section 8.15	Remedies	78
Section 8.16	Specific Performance	78
Section 8.17	Counterparts; Effectiveness	79
Disclosure Letters
Company Disclosure Letter
Parent Disclosure Letter

                                        

 

 

 

 

AGREEMENT AND PLAN OF MERGER, dated as of November 17, 2016 (this “Agreement”), by and among WellCare Health Plans, Inc., a Delaware corporation (“Parent”), Wind Merger Sub, Inc., a Delaware corporation and a direct or indirect wholly owned subsidiary of Parent (“Merger Sub”), and Universal American Corp., a Delaware corporation (the “Company”).

WHEREAS, the board of directors of the Company (the “Company Board”) at a meeting thereof duly called and held unanimously (a) approved and declared advisable this Agreement, the merger of Merger Sub with and into the Company on the terms and subject to the conditions of this Agreement (the “Merger”) and the transactions contemplated by this Agreement, (b) declared that it is in the best interests of the stockholders of the Company that the Company enter into this Agreement and consummate the Merger on the terms and subject to the conditions set forth in this Agreement, (c) directed that the adoption of this Agreement be submitted to a vote at a meeting of the stockholders of the Company and (d) recommended to the stockholders of the Company that they adopt this Agreement (the “Company Board Recommendation”); and

WHEREAS, the board of directors of Merger Sub has unanimously approved and declared advisable, and the board of directors of Parent has approved, this Agreement, the Merger and the transactions contemplated by this Agreement, on the terms and subject to the conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement, intending to be legally bound, agree as follows:

ARTICLE I

THE MERGER

satisfaction or waiver of those conditions) are satisfied or waived in accordance with this Agreement or (b) at such other place and time as Parent and the Company may agree in writing. The date on which the Closing occurs is referred to as the “Closing Date”.

 

 

ARTICLE II

EFFECT OF THE MERGER ON CAPITAL STOCK

 

 

Per Share Merger Consideration payable in accordance with Section 2.1(c)(i).  Such funds provided to the Paying Agent are referred to as the “Payment Fund.”

 

 

 

 

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Except as (i) set forth in the corresponding sections of the disclosure letter delivered by the Company to Parent before the execution of this Agreement (the “Company Disclosure Letter”), it being agreed that disclosure of any item in any section of the Company Disclosure Letter (whether or not an explicit cross reference appears) shall be deemed to be disclosure with respect to any other section to which the relevance of such item is reasonably apparent on its face (other than matters required to be disclosed on Section 3.6, Section 3.12(b) or Section 5.1 of the Company Disclosure Letter, which matters shall only be qualified by specific disclosure in the corresponding section of the Company Disclosure Letter) or (ii) disclosed in any of the Company SEC Reports filed or furnished and publicly available prior to the date of this Agreement (excluding all disclosures in any “Risk Factors,” “Disclosure Regarding Forward Looking Statements” or “Quantitative and Qualitative Disclosures about Market Risk” sections to the extent such disclosures are prospective or forward-looking) (provided, that

 

nothing disclosed in the Company SEC Reports shall be deemed to be a qualification of, or modification to, the representations and warranties set forth in Section 3.6, Section 3.12(b), Section 3.23, Section 3.31 and Section 3.32), the Company represents and warrants to Parent and Merger Sub that:

 

 

of any of the Subsidiaries of the Company, (b) assuming that the representations and warranties of Parent and Merger Sub contained in Section 4.5(c) are true and correct, contravene or conflict with, or result in any material violation or breach of, any Law applicable to the Company or any of its Subsidiaries or by which any Company Assets are bound, assuming that all Governmental Authorizations described in Section 3.3 have been obtained or made, (c) result in any violation, termination, acceleration of any material obligation, cancellation or breach of, or constitute a default (with or without notice or lapse of time or both) or require any notice or consent under, any Contracts to which the Company or any of its Subsidiaries is a party or by which any Company Assets are bound or (d) result in the creation of any Liens (other than Permitted Liens) upon any of the Company Assets, except, in the case of clauses (a)(ii), (b), (c) and (d), as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

 

other equity or voting interest in, the Company or any Equity Linked Securities (the items in clauses (i), (ii), (iii), (iv) and (v), the “Securities”). Since November 15, 2016, the Company has not issued any Securities other than as would be permitted in the period following the date of this Agreement in accordance with Sections 5.1(c) and (d), assuming this Agreement was in effect as of such date.

 

contribution or otherwise) in any Person (other than the Company with respect to its Subsidiaries).

 

designed and effective to ensure that all information relating to the Company and its Subsidiaries required to be disclosed in the Company’s periodic reports under the Exchange Act is made known to the Company’s principal executive officer and its principal financial officers by others within the Company or any of its Subsidiaries, and such disclosure controls and procedures are reasonably effective in timely alerting the Company’s principal executive officer and its principal financial officers to such information required to be included in the Company’s periodic reports required under the Exchange Act.  The Company maintains a system of “internal control over financial reporting” (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) reasonably designed to provide reasonable assurance (i) that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP consistently applied and (ii) that transactions are executed only in accordance with management’s general or specific authorization. From January 1, 2014 until the date of this Agreement, the Company has disclosed, based on the most recent evaluation of its principal executive officer and its principal financial officers prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company Board (A) all significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect the Company’s or any of its Subsidiaries’ ability to record, process, summarize and report financial information in any material respect and (B) any fraud or bona fide allegation of fraud, whether or not material, that involves management or other employees who have a significant role in the Company internal controls, in each case, if any (any such disclosures, the “Internal Controls Disclosures”).  The Company has made available to Parent copies of any Internal Controls Disclosures. Since January 1, 2014, to the Knowledge of the Company, neither the Company nor any of its Subsidiaries has received any material written complaint, allegation, assertion or claim regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or its Subsidiaries, or their respective internal accounting controls.

 

 

March 10, 2016 and before the date of this Agreement (in each case, other than any Company Benefit Plan);

 

remains subject to any material obligation (other than confidentiality and ordinary course obligations);

 

or equity-based compensation, severance, employment, consulting, change-of-control, bonus, incentive, deferred compensation and other employee benefit plan, agreement, program or policy, whether or not subject to ERISA, (iii) any other plan, agreement, program or policy providing employee benefits or compensation, including, any vacation benefits, insurance (including any self-insured arrangements), medical, dental, vision or prescription benefits, disability or sick leave benefits, life insurance, employee assistance program, workers’ compensation, supplemental unemployment benefits and post-employment or retirement benefits (including compensation, pension or insurance benefits) or (iv) any material loan to or for the benefit of an officer of the Company or any of its Subsidiaries, in each case (A) under which any current or former director, officer, employee or independent contractor of the Company or any of its Subsidiaries has any right to benefits or (B) which are maintained, sponsored or contributed to by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries makes or is required to make contributions or with respect to which the Company or any of its Subsidiaries has any Liability.

 

has been issued by the IRS with respect to such qualification under which the Company is currently entitled to rely upon, (ii) its related trust has been determined to be exempt from taxation under Section 501(a) of the Code and (iii) except as would not, individually or in the aggregate, reasonably be expected to result in material Damages to the Company and its Subsidiaries, taken as a whole, no event has occurred since the date of such qualification or exemption that would reasonably be expected to adversely affect such qualification or exemption.

 

Benefit Plan or any individual improperly being eligible to participate in any Company Benefit Plan.

 

 

Law) executed on or prior to the Closing Date, or (vi) any election made under Section 108(i) of the Code prior to the Closing.

 

Company and the consummation by the Company of the transactions contemplated by this Agreement do not and will not encumber, impair or extinguish any of the Company Intellectual Property.

 

in any material respect the Company’s or its Subsidiaries’ continued operations in the ordinary course of business, (i) the Company and its Subsidiaries have good and marketable title to, or have a valid and enforceable right to use or a valid and enforceable leasehold interest in, all Real Property (including all buildings, fixtures and other improvements thereto) used or intended to be used in, or otherwise related to, the business of the Company and its Subsidiaries and (ii) the ownership of or leasehold interest in any such property is not subject to any Lien (except in all cases for Permitted Liens).

 

 

Company Material Adverse Effect, none of the Company, its Subsidiaries, or any officers, directors, agents and employees of the Company or its Subsidiaries has been (i) excluded, suspended or debarred from participation in any Health Care Program, or (ii) party to or subject to any action or proceeding concerning any of the matters described in the foregoing clause (i).

 

and services in compliance with all applicable Health Care Laws, including specifically applicable Laws that relate to the compensation of such persons and the licensing of Persons to sell health insurance and health care benefit products.

 

of, and complies in all material respects with the terms and conditions of, the federal fraud and abuse waivers at 80 Fed. Reg. 66726 et seq. (Oct. 29, 2015), and (B) qualifies for the protection of, and complies in all material respects with the terms and conditions of, the antitrust safety zone jointly adopted by the Federal Trade Commission and the United States Department of Justice, appearing at 76 Fed. Reg. 67026 et seq. (Oct. 28, 2011).

 

the “SAP Statements”). The Company has delivered or made available to Parent copies of all such annual SAP Statements for the periods beginning January 1, 2014 and through the date hereof, each in the form (including exhibits, annexes and any amendments thereto) filed with state insurance regulatory authorities and true and complete copies of all examination reports of insurance departments and any insurance regulatory authorities received by the Company on or after January 1, 2014 and through the date hereof relating to the Insurance Entities. The financial statements included in SAP Statements and prepared on a statutory accounting basis, including the notes thereto, were prepared in all material respects in conformity with SAP prescribed or permitted by the applicable state insurance regulatory authority, in each case, consistently applied for the periods covered thereby (except as may be indicated in the notes to those financial statements) and fairly present in all material respects the statutory financial position of the relevant Insurance Entity as at the respective dates thereof and the results of operations of such Insurance Entity for the respective periods then ended. SAP Statements complied in all material respects with all applicable Law when filed. No material deficiency has been asserted to the Insurance Entities by any Governmental Authority with respect to any SAP Statements.  Except as indicated therein, all assets that are reflected as admitted assets on SAP Statements have been calculated and presented in compliance in all material respects with all applicable Law (including the filing of any required reports) regulating the business of insurance and all applicable orders and directives of insurance regulatory authorities (collectively, the “Insurance Laws”) with respect to admitted assets, as applicable. The statutory balance sheets and income statements included in SAP Statements have been audited by the Company’s independent auditors, and the Company has delivered or made available to Parent true and complete copies of all audit opinions related thereto for periods beginning January 1, 2014. The Insurance Entities comply in all material respects with all applicable solvency requirements, including risk-based capital requirements under applicable Insurance Laws. The loss reserves of the Insurance Entities, as of January 1, 2014, recorded in the SAP Statements: (i) were determined in all material respects in accordance with ASOPs in effect on that date (except as may be indicated in the notes thereto), (ii) were computed on the basis of methodologies consistent in all material respects with those used in computing the corresponding reserves in the prior fiscal year (except as may be indicated in the notes thereto) and (iii) include provisions for all actuarial reserves that were required at that time to be established in accordance with applicable Laws based on facts known to the Company as of such date; provided, however, that, no representation or warranty in this Agreement and nothing contained in this Agreement, including the Company Disclosure Letter, or any other agreement, document or instrument to be delivered in connection with this Agreement is intended or shall be construed to be a representation or warranty in respect of the adequacy or sufficiency of the reserves of the Company or any of its Subsidiaries.

 

nor is there any pending or, to the Knowledge of the Company, threatened investigation by any state insurance regulatory authority with respect to possible material violations by the Insurance Entities of, any applicable Insurance Laws, (b) each Insurance Entity has been duly authorized by the relevant state insurance regulatory authorities to issue the policies and/or Contracts of insurance related to the business of the Company and its Subsidiaries that it is currently writing and in the states in which it conducts its business, and (c) since January 1, 2014, the Insurance Entities have filed all material reports required to be filed by the Insurance Entities with any state insurance regulatory authority.  None of the Insurance Entities is subject to any order or decree of any insurance regulatory authority relating to such Insurance Entity that (A) would, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, or (B) except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (1) relates to material marketing, sales, trade or underwriting practices (other than routine correspondence) from and after January 1, 2014 or (2) seeks the revocation or suspension of any license or other permit issued pursuant to applicable Insurance Laws.  No action or proceeding is pending or, to the Knowledge of the Company, threatened that would reasonably be expected to result in the revocation or suspension of any such material license or permit.

 

stock, except for any such requirements or restrictions under applicable Laws, including insurance laws and regulations.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

Except as set forth in the corresponding sections of the disclosure letter delivered by Parent to the Company before the execution of this Agreement (the “Parent Disclosure Letter”), it being agreed that disclosure of any item in any section of the Parent Disclosure Letter shall be deemed to be disclosure with respect to any other section to which the relevance of such item is reasonably apparent on its face, Parent and Merger Sub represent and warrant to the Company that:

 

 

 

ARTICLE V

COVENANTS

 

with whom it has material business relationships. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated or expressly permitted by this Agreement (including the redemption of Series A Preferred Stock to the extent required by Section 6(a) of the COD), as set forth in Section 5.1 of the Company Disclosure Letter or required by applicable Law, from and after the date of this Agreement and prior to the Effective Time or the date, if any, on which this Agreement is earlier terminated pursuant to Article VII, the Company shall not, and shall not permit any of its Subsidiaries to, take any of the following actions, without the prior written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed:

 

 

or in the ordinary course of business or (iv) terminate, suspend, abrogate, amend or modify (A) any certificate of authority to conduct business as an insurance company, health maintenance organization or managed care plan issued by the applicable insurance or health regulatory Governmental Authority or (B) any other material Company Permit, in each case in a manner material and adverse to the Company or any of its Subsidiaries, taken as a whole;

 

 

 

writing of any material modifications to the financial or other material terms of such Takeover Proposal or inquiry, proposal, offer or request for information.

 

 

dissemination thereof to the stockholders of the Company, or responding to any comments from the SEC with respect thereto, the Company shall (i) provide Parent and its Representatives with an opportunity to review and to comment on such filing, document or response, (ii) consider in good faith including in such filing, document or response any reasonable comments proposed by Parent and its Representatives and (iii) promptly (and in no event later than the fifth Business Day following the date of this Agreement) conduct a “broker search” in accordance with Rule 14a-13 of the Exchange Act.

 

Statement and related correspondence and filings and (y) shall include in such drafts, correspondence and filings all comments reasonably proposed by Parent.

 

 

portion of the 2017 calendar year during which such Continuing Employee was employed by the Company and the Surviving Corporation and their respective Subsidiaries, (provided, that the provisions of this clause (iii) shall not result in the duplication of bonus payments to such Continuing Employee), such prorated 2017 Annual Bonus to be payable promptly following the date of such termination, but subject to such Continuing Employee’s timely execution and non-revocation of a release of claims, substantially in the form set forth on Section 5.7(d) of the Company Disclosure Letter, and (iv) any Continuing Employee who experiences a Qualifying Termination after the 60-day period following the Closing Date, but prior to January 1, 2018, will be entitled to receive a 2017 Annual Bonus equal to the greater of (x) such Continuing Employee’s Minimum Guaranteed 2017 Annual Bonus and (y) a prorated portion of the actual 2017 Annual Bonus applicable to such Continuing Employee based on the achievement of performance targets determined by the Company and based on the relative portion of the 2017 calendar year during which such Continuing Employee was employed by the Company and the Surviving Corporation and their respective Subsidiaries, (provided, that the provisions of this clause (iv) shall not result in the duplication of bonus payments to such Continuing Employee), such 2017 Annual Bonus to be payable promptly following the date of such termination, but subject to such Continuing Employee’s timely execution and non-revocation of a release of claims, substantially in the form set forth on Section 5.7(d) of the Company Disclosure Letter.

 

 

 

after or occurring before the Effective Time (including in connection with the negotiation and execution of this Agreement and the consummation of the transactions contemplated by this Agreement).  If any Indemnified Party is or becomes involved in any Legal Action in connection with any matter subject to indemnification hereunder, the Company shall or Parent shall cause the Surviving Corporation to, advance as incurred any Damages out of or incurred in connection with such Legal Action, subject to Parent’s or the Surviving Corporation’s, as applicable, receipt of a customary undertaking by or on behalf of such Indemnified Party, to repay such Damages if it is ultimately determined under applicable Law that such Indemnified Party is not entitled to be indemnified.  In the event of any such Legal Action, (i) each of Parent and the Surviving Corporation shall cooperate with the Indemnified Party in the defense of any such Legal Action and (ii) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action pending or threatened in writing to which an Indemnified Party is a party (and in respect of which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Legal Action or such Indemnified Party otherwise consents in writing.

 

 

 

Justice, as applicable, to request early termination of the applicable waiting period under the HSR Act with respect to the transactions contemplated by this Agreement, and shall promptly make any further filings pursuant thereto that may be necessary, proper or advisable and (ii) 30 Business Days after the date of this Agreement, each of Parent and the Company shall file (and not subsequently withdraw) all Form A or other filings required to be filed by it with respect to all Required Company Consents.

 

 Subsidiaries’ (including, after the Effective Time, the Surviving Corporation’s and its Subsidiaries’) freedom of action with respect to, or its ability to retain, one or more of their respective assets or businesses; provided, that nothing in this Section 5.10(e) shall require Parent to take any action that would reasonably be expected to, individually or in the aggregate have a material adverse effect on the business of Parent, Merger Sub and their respective Subsidiaries, taken as a whole. For the avoidance of doubt, Parent shall not require the Company to, and the Company shall not be required to, take any action with respect to any Order or any applicable Law that would bind the Company or its Subsidiaries irrespective of whether the Merger occurs.

 

 

proceeding, inquiry or investigation pending or, to the Knowledge of the Company or Parent, threatened that questions or challenges the validity of this Agreement or the ability of any party to consummate the transactions contemplated by this Agreement; provided, however, that the delivery of any notice pursuant to this Section 5.18 shall not limit or otherwise affect the remedies available hereunder to the party receiving such notice nor shall the party giving such notice be prejudiced with respect to any such matters solely by virtue of having given such notice.

 

directly or indirectly, acquire (a) any Securities of the Company or (b) any derivative contracts or derivative securities that give Parent or any Person acting on behalf of Parent the economic or voting equivalent of ownership of Securities of the Company.

 

ARTICLE VI

CONDITIONS

 

 

respects, as of the Closing as though made on the date thereof (except to the extent any such representation and warranty expressly speaks as of a specified date, in which case as of such date), and (ii) the remaining representations and warranties of each of Parent and Merger Sub contained in Article IV (Representations and Warranties of Parent and Merger Sub) shall be true and correct, in each case as of the Closing (except to the extent any such representation and warranty expressly speaks as of a specified date, in which case as of such date), except, in the case of clause (ii) only, where the failure of any such representations and warranties to be so true and correct (without regard to any materiality or Parent Material Adverse Effect qualifications set forth in any such representation or warranty) would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect.

ARTICLE VII

TERMINATION, AMENDMENT AND WAIVER

 

be satisfied at the Closing, are capable of being so satisfied) other than the conditions set forth in Section 6.1(b), Section 6.1(c) and Section 6.1(d) (in connection with the subject matter of the conditions set forth in Section 6.1(b) or Section 6.1(c) or other Legal Restraint arising from any Legal Action initiated by a Governmental Authority), and such conditions are reasonably capable of being satisfied, then the Termination Date shall be extended to November 17, 2017;

 

would result in the conditions to Closing set forth in Section 6.1 or Section 6.3 not being satisfied.

 

Termination Fee and the Expense Reimbursement pursuant to this Section 7.6 shall be the sole and exclusive remedy (whether at law, in equity, in contract, tort or otherwise) of Parent, Merger Sub and their respective Affiliates, if applicable, for (A) the Damages suffered as a result of the failure of the Merger to be consummated and (B) any other Damages suffered as a result of or in connection with this Agreement and the transactions contemplated by this Agreement, and upon payment of the Termination Fee and Expense Reimbursement in accordance with this Section 7.6, none of the Company or any of its Affiliates, respective current or former stockholders, directors, officers, employees, agents or Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement; provided, that the foregoing shall not impair the rights of Parent, if any, to obtain injunctive relief pursuant to Section 8.16 prior to any termination of this Agreement. For the avoidance of doubt, in no event shall the Company be required to pay the Termination Fee and Expense Reimbursement on more than one occasion.

ARTICLE VIII

MISCELLANEOUS

 

apply to references to “Company Material Adverse Effect” in the representations and warranties set forth in Section 3.3 and Section 3.5), or (L) the commencement, or threatened commencement, in and of itself of a program audit by CMS of the Company or any of its Subsidiaries (but, for the avoidance of doubt, not the results of any such audit), except, in the case of clauses (A) through (G) and (J), to the extent (and only to the extent) that the Company and its Subsidiaries, taken as a whole, are disproportionately affected thereby (relative to other similarly situated participants in the industries in which the Company and its Subsidiaries operate but only with respect of such participation (i.e., disregarding any other operations of such participants)).

 

 

whether of a Governmental Authority, commercial plan, employer-sponsored plan, or private plan that provides health benefits directly, through insurance, or otherwise.

 

 

 

investment bankers or other financial advisors, agents and other representatives of such Person.

 

similar effect to those described in clauses (i) through (iv), or any combination of the transactions in clauses (i) through (iv), in each case other than the transactions contemplated by this Agreement.

 

 

defeat such personal jurisdiction by motion or other request for leave from any such court, (c) agrees that any actions or proceedings arising in connection with this Agreement or the transactions contemplated by this Agreement shall be brought, tried and determined only in the Delaware Court of Chancery (or, only if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware), (d) waives any claim of improper venue or any claim that those courts are an inconvenient forum, and (e) agrees that it will not bring any action relating to this Agreement or the transactions contemplated hereunder in any court other than the aforesaid courts.  The parties to this Agreement agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 8.7 or in such other manner as may be permitted by applicable Law, shall be valid and sufficient service thereof.

If to Parent or Merger Sub, to:

c/o

WellCare Health Plans, Inc.

8735 Henderson Road, Renaissance One

Tampa, Florida 33634

Attention:         Anat Hakim, Senior Vice President, General  Counsel and Secretary

Facsimile:          (813) 206-2884

E-Mail:                 anat.hakim@wellcare.com

 

with a copy (which shall not constitute notice) to:

 

Kirkland & Ellis LLP

601 Lexington Avenue

New York, NY 10022

Attention:        Sarkis Jebejian, P.C.

 

 

                               Laura Sullivan

Facsimile:          (212) 446-6460

Email:                    sarkis.jebejian@kirkland.com

                              laura.sullivan@kirkland.com

 

If to the Company, to:

 

44 South Broadway, Suite 1200

White Plains, New York, 10601

Attention:        Anthony Wolk

                        Executive Vice President, General Counsel

Facsimile:          (914) 934-9239

 

with a copy (which shall not constitute notice) to:

 

Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, NY  10019-6064

Attention:        Robert B. Schumer

Ariel J. Deckelbaum

Facsimile:          (212) 757-3990

E-Mail:                 rschumer@paulweiss.com

                                   ajdeckelbaum@paulweiss.com

 

All such notices or communications shall be deemed to have been delivered and received: (a) if delivered in person, on the day of such delivery, (b) if by facsimile or electronic mail, on the day on which such facsimile or electronic mail was sent; provided, that receipt is personally confirmed by telephone, (c) if by certified or registered mail (return receipt requested), on the third Business Day after the mailing thereof or (d) if by reputable overnight delivery service, on the first Business Day after the sending thereof.

 

(c) subject to applicable Law, waive compliance with any of the covenants or conditions contained in this Agreement.  Any agreement on the part of a party to any extension or waiver shall be valid only if set forth in an instrument in writing signed by such party.  The failure of any party to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of such rights.

 

of this Agreement, or the application of that provision to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted for that provision in order to carry out, so far as may be valid and enforceable, the intent and purpose of the invalid or unenforceable provision and (b) the remainder of this Agreement and the application of that provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of that provision, or the application of that provision, in any other jurisdiction.  Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a reasonably acceptable manner so that the transactions contemplated by this Agreement may be consummated as originally contemplated to the fullest extent possible.

 

impossible to calculate, and (b) the right of specific performance is an integral part of this Agreement and without that right neither the Company nor Parent would have entered into this Agreement.  It is accordingly agreed that the parties to this Agreement shall be entitled to an injunction or injunctions, specific performance or other equitable relief to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the Court of Chancery of the State of Delaware or other court of the United States as specified in Section 8.5, this being in addition to any other remedy at law or in equity, and the parties to this Agreement hereby waive any requirement for the posting of any bond or similar collateral in connection therewith. Each party hereto agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that (x) the other party has an adequate remedy at law or (y) an award of specific performance is not an appropriate remedy for any reason at law or equity.

[Signature page follows]

 

 

 

IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties to this Agreement as of the date first written above.

	WELLCARE HEALTH PLANS, INC.
	By:	/s/ Andrew L. Asher
		Name: Andrew L. Asher
		Title:    Executive Vice President and Chief Financial Officer