VOTING AGREEMENT BY AND AMONG CVS CAREMARK CORPORATION AND THE SHAREHOLDERS PARTY HERETO DATED AS OF DECEMBER 30, 2010 TABLE OF CONTENTS

VOTING AGREEMENT

 

BY AND AMONG

 

CVS CAREMARK CORPORATION

 

AND

 

THE SHAREHOLDERS PARTY HERETO

 

 

 

 

 

 

 

 

ARTICLE I	GENERAL	1
1.1.	Defined Terms	1
ARTICLE II	VOTING	2
2.1.	Agreement to Vote	2
2.2.	No Inconsistent Agreements	3
ARTICLE III	REPRESENTATIONS AND WARRANTIES	4
3.1.	Representations and Warranties of the Shareholders	4
ARTICLE IV	OTHER COVENANTS	5
4.1.	Prohibition on Transfers	5
4.2.	Stock Dividends, etc	6
4.3.	No Solicitation	6
4.4.	Conversion of Preferred Stock	6
4.5.	Stockholders Agreement	6
4.6.	Further Assurances	6
ARTICLE V	MISCELLANEOUS	7
5.1.	Termination	7
5.2.	No Ownership Interest	7
5.3.	Fees and Expenses	7
5.4.	Notices	7
5.5.	Interpretation	8
5.6.	Counterparts; Effectiveness	9
5.7.	Entire Agreement	9
5.8.	Governing Law; Consent to Jurisdiction; Waiver of Jury Trial	9
5.9.	Amendment; Waiver	10
5.10.	Remedies	10
5.11.	Severability	11
5.12.	Successors and Assigns; Third Party Beneficiaries	11
5.13.	Rules of Construction	11
5.14.	Shareholder Capacity	11

 

Term	Section
Agreement	Preamble
Beneficial Ownership	1.1
Beneficially Own	1.1
Beneficially Owned	1.1
Common Stock	Recitals
Company	Recitals
control	1.1
controlled by	1.1
Covered Shares	1.1
Existing Shares	1.1
Merger	Recitals
Merger Agreement	Recitals
Merger Sub	Recitals
Parent	Preamble
Preferred Stock	Recitals
Shareholder	Preamble
Transfer	1.1
under common control with	1.1

 

VOTING AGREEMENT, dated as of December 30, 2010 (this “Agreement”), by and among CVS CAREMARK CORPORATION, a Delaware corporation (“Parent”), and Richard A. Barasch (the “Shareholder”).

 

 

WHEREAS, concurrently with the execution of this Agreement, Parent, ULYSSES MERGER SUB, L.L.C., a New York limited liability company and a direct or indirect wholly-owned subsidiary of Parent (“Merger Sub”), and UNIVERSAL AMERICAN CORP., a New York corporation (the “Company”), are entering into an Agreement and Plan of Merger, dated as of the date of this Agreement (the “Merger Agreement”), pursuant to which, among other things, Merger Sub will merge with and into the Company (the “Merger”);

 

WHEREAS, as of the date of this Agreement, the Shareholder is the Beneficial Owner of (i) the number of outstanding shares of common stock, par value $0.01 per share, of the Company (the “Common Stock”), set forth opposite the Shareholder’s name on Schedule 1 hereto, all of which shares such Shareholder controls the right to vote and (ii) the number of outstanding shares of Series A Preferred Stock, par value $1.00 per share, of the Company (the “Preferred Stock”), set forth opposite the Shareholder’s name on Schedule 1 hereto and (iii) options to purchase an aggregate of 704,042 shares of Common Stock (the “”);

 

WHEREAS, as a condition to the willingness of Parent and Merger Sub to enter into the Merger Agreement, Parent has required that the Shareholder agrees, and the Shareholder has agreed, to enter into this Agreement and abide by the covenants and obligations set forth herein, including with respect to the Covered Shares (as hereinafter defined) .

 

NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

 

 

 

 

1.1.           Defined Terms.  The following capitalized terms, as used in this Agreement, shall have the meanings set forth below.  Capitalized terms used but not otherwise defined herein shall have the meanings ascribed thereto in the Merger Agreement.

 

“Beneficial Ownership” by a Person of any securities includes ownership by any Person who, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has or shares (i) voting power which includes

 

 

 

“control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), when used with respect to any Person, means the power to direct or cause the direction of the management or policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.

 

“Covered Shares” means, the  Existing Shares Beneficially Owned by the Shareholder, together with the Options and any other shares of Common Stock or other voting capital stock of the Company and any securities convertible into or exercisable or exchangeable for shares of Common Stock or other voting capital stock of the Company, in each case that the Shareholder acquires Beneficial Ownership of on or after the date of this Agreement.

 

“Existing Shares” means, the number of shares of Common Stock and Preferred Stock set forth opposite the Shareholder’s name on Schedule 1 hereto.

 

“Permitted Transfer” means a Transfer by the Shareholder (or an Affiliate thereof) to an Affiliate of the Shareholder, provided that such transferee Affiliate agrees in writing to assume all of such transferring Shareholder’s obligations hereunder in respect of the securities subject to such Transfer and to be bound by, and comply with, the terms of this Agreement, with respect to the Covered Shares subject to such Transfer, to the same extent as such transferring Shareholder is bound hereunder.

 

“Transfer” means, directly or indirectly, to sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of (by merger (including by conversion into securities or other consideration), by tendering into any tender or exchange offer, by testamentary disposition, by operation of law or otherwise), either voluntarily or involuntarily, or to enter into any contract, option or other arrangement or understanding with respect to the voting of or sale, transfer, assignment, pledge, encumbrance, hypothecation or similar disposition of (by merger, by tendering into any tender or exchange offer, by testamentary disposition, by operation of law or otherwise).

 

 

 

 

2.1.           Agreement to Vote.  The Shareholder hereby agrees that during the term of this Agreement, at the Company Shareholders Meeting and at any other meeting of the shareholders of the Company, however called, including any adjournment or postponement thereof, and in connection with any written consent of the shareholders of

 

 

 

(a)           appear at each such meeting or otherwise cause the Covered Shares as to which the Shareholder controls the right to vote to be counted as present thereat for purposes of calculating a quorum; and

 

(b)           vote (or cause to be voted), in person or by proxy, or deliver (or cause to be delivered) a written consent covering, all of the Covered Shares (i) in favor of the adoption of the Merger Agreement, (ii) in favor of any related proposal in furtherance of the Merger and the transactions contemplated by the Merger Agreement and the Split-Off Agreements; (iii) against any action or agreement that would result in a breach of any material covenant, representation or warranty or any other obligation or agreement of the Company contained in the Merger Agreement or the Split-Off Agreements, or of the Shareholder contained in this Agreement; and (iv) against any Takeover Proposal; provided that if, in response to a Superior Proposal received by the Company Board after the date of this Agreement, the Company Board makes a Company Adverse Recommendation Change in accordance with Section 5.4(d) of the Merger Agreement, the number of Shareholder’s Covered Shares (which are entitled to so vote or consent) that are subject to this Section 2.1 shall be reduced (on a pro rata basis with each other shareholder of the Company who executed a similar voting agreement in connection with the Merger and the transactions contemplated by the Merger Agreement and the Split-Off Agreements (the “Other Voting Agreements”)) to the extent necessary in order that the aggregate number of Covered Shares subject to this Section 2.1 together with all other shares of Common Stock (or other securities of the Company entitled to so vote or consent) subject to the Other Voting Agreements represents no more than 45% of the Common Stock (and any other voting securities of the Company) outstanding at the time of such vote or written consent and entitled to so vote or consent; and provided further, that Section 2.1 shall not require the Shareholder to vote or consent (or cause any Affiliate to vote or consent) in favor of the Merger Agreement or any of the transactions contemplated thereby, to the extent that the Merger Agreement or any Split-Off Agreement (i) has been amended or waived to reduce the Per Share Merger Consideration or the Closing Consideration or (ii) has been amended or waived in a manner that is materially adverse, when considered in the aggregate together with other waivers or amendments, to the shareholders of the Company.

 

(c)           Notwithstanding the foregoing, the Shareholder shall remain free to vote (or execute consents or proxies with respect to) the Covered Shares with respect to any matter not covered by this Section 2.1 in any manner the Shareholder deems appropriate, provided that such vote (or execution of consents or proxies with respect thereto) would not reasonably be expected to adversely affect, or prevent or delay the consummation of, the transactions contemplated by the Merger Agreement or the Split-Off Agreements.

 

2.2.           No Inconsistent Agreements.  The Shareholder hereby, represents, covenants and agrees that, except for this Agreement and the Stockholders Agreement, the Shareholder (a) has not entered into, and shall not enter into at any time while this

 

 

 

 

 

 

 

3.1.           Representations and Warranties of the Shareholders.  The Shareholder represents and warrants to Parent as follows:

 

(a)           Organization; Authorization; Validity of Agreement; Necessary Action.  It is duly organized, validly existing and in good standing under the Law of its jurisdiction of organization.  It has the requisite power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated by this Agreement.  The execution and delivery by the Shareholder of this Agreement, the performance by it of its obligations hereunder and the consummation by it of the transactions contemplated by this Agreement have been duly and validly authorized by the Shareholder and no other actions or proceedings on the part of the Shareholder or any shareholder or equity holder thereof or any other Person are necessary to authorize the execution and delivery by it of this Agreement, the performance by it of its obligations hereunder or the consummation by it of the transactions contemplated by this Agreement.  This Agreement has been duly executed and delivered by the Shareholder and, assuming this Agreement constitutes a valid and binding obligation of the other parties hereto, constitutes a legal, valid and binding agreement of the Shareholder enforceable against it in accordance with its terms (except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar Laws of general applicability relating to or affecting creditor’s rights, and to general equitable principles).

 

(b)           Ownership.  The Shareholder’s Existing Shares are, and all of the Covered Shares Beneficially Owned by the Shareholder from the date of this Agreement through and on the Closing Date will be, Beneficially Owned by the Shareholder except to the extent such Covered Shares are Transferred after the date of this Agreement pursuant to a Permitted Transfer.  The Shareholder is the Beneficial Owner of the Shareholder’s Existing Shares, free and clear of any Liens, other than (i) any Liens pursuant to the Stockholders Agreement and this Agreement and transfer restrictions of general applicability as may be provided under the Securities Act and the “blue sky” laws of the various states of the United States and (ii) any lien granted in connection with a general pledge of Covered Shares to the Shareholder’s prime broker, which does and will not affect the Shareholder’s Beneficial Ownership of the Covered Shares.  As of the date of this Agreement, the Shareholder’s Existing Shares constitute all of the shares of