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Exhibit 2
VOTING AGREEMENT
VOTING AGREEMENT, dated as of October 10, 2000 (the
"Agreement"), by and among UnitedHealth Group Incorporated, a Minnesota
corporation ("Buyer"), each record and beneficial stockholder of Lifemark
Corporation, a Delaware corporation (the "Company"), whose signature is set
forth on the signature pages to this Agreement (each a "Stockholder," and
collectively the "Stockholders"), and, as to Section 3(b) below, the Company.
Capitalized terms which are used but not defined herein shall have the meanings
ascribed to them in the Merger Agreement (as defined below).
WITNESSETH:
WHEREAS, simultaneously with the execution and delivery of
this Agreement, Buyer and the Company are entering into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), which provides for
a wholly owned subsidiary of Buyer to be merged with and into the Company in
accordance with the General Corporation Law of the State of Delaware and the
terms of the Merger Agreement, as a result of which the Company will be the
surviving corporation and will be a wholly owned subsidiary of Buyer;
WHEREAS, the Stockholders own in the aggregate approximately
39.1% of the Company Common Stock issued and outstanding; and
WHEREAS, the Stockholders desire that the Company and Buyer
consummate the Merger contemplated by the Merger Agreement and are willing to
enter into this Agreement to induce Buyer to enter into the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements set forth herein, the parties hereto, intending
to be legally bound, agree as follows:
1. Agreement to Vote; Waiver.
(a) At such time as the Company convenes a meeting of, solicits written
consents from or otherwise seeks a vote of, the Company's stockholders for the
purpose of considering and approving the Merger and the other transactions
contemplated by the Merger Agreement, each of the Stockholders hereby
irrevocably and unconditionally agrees to vote all shares of Company Common
Stock owned by such Stockholder (whether held directly or beneficially) (the
"Shares") in favor of the Merger and the other transactions contemplated by the
Merger Agreement and all other actions necessary or desirable for the
consummation of the Merger.
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(b) Each Stockholder hereby agrees that it will not vote any Shares in
favor of the approval of any (i) Acquisition Proposal (as defined in Section
4(c)), (ii) reorganization, recapitalization, liquidation or winding up of the
Company or any other extraordinary transaction involving the Company, other than
as contemplated by the Merger Agreement, (iii) corporate action the consummation
of which would frustrate the purposes, or prevent or delay the consummation, of
the transactions contemplated by the Merger Agreement or (iv) other matter
relating to, or in connection with, any of the foregoing matters.
(c) Each Stockholder hereby revokes any and all previous proxies
granted with respect to all shares of Company Common Stock held of record or
beneficially owned by such Stockholder. By entering into this Agreement, each
Stockholder hereby grants a proxy appointing Parent and each of its designees as
the Stockholder's attorney-in-fact and proxy, with full power of substitution,
for and in the Stockholder's name, to vote, express, consent or dissent, or
otherwise to utilize such voting power in the manner contemplated by (a) and (b)
above as Parent or its proxy or substitute shall, in Parent's sole discretion,
deem proper with respect to all such shares. The proxy granted by each
Stockholder pursuant to this Section 1 is irrevocable and is granted in
consideration of Parent entering into this Agreement and the Merger Agreement
and incurring certain related fees and expenses. The proxy granted by each
Stockholder shall be revoked upon termination of this Agreement in accordance
with its terms.
(d) Each of the undersigned William G. Brown, Malcolm M. Brown, and
Richard C. Jelinek hereby waives any and all rights which he may have to require
the Warrants held by him individually or as trustee, the shares of Company
Common Stock issuable upon exercise of such Warrants, the Notes held by him
individually or as trustee, or the shares of Company Common Stock issuable upon
conversion of such Notes, to be registered under the Securities Act of 1933, as
amended, or under any state securities laws; provided that this waiver shall
only be effective upon, and shall be subject to, consummation of the merger
contemplated by the Merger Agreement.
2. Limitation. Each Stockholder shall retain at all times the right to
vote such Stockholder's shares of Company Common Stock in that Stockholder's
sole discretion on all matters, other than those set forth in Section 1, that
are at any time or from time to time presented for consideration by the
Company's stockholders generally.
3. Street Name Shares, Etc.
(a) With respect to any Shares listed on the signature page of this
Agreement as being held in "street name" by a broker-dealer for a Stockholder,
each Stockholder hereby irrevocably agrees to instruct and direct such
broker-dealer to vote such Shares in accordance with such Stockholder's
agreements set forth in Section 1. With respect to any such Shares, each
Stockholder further irrevocably agrees to complete and submit any proxy voting
cards received
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by such Stockholder from such broker-dealer in accordance with such
Stockholder's agreements set forth in Section 1.
(b) With respect to any Shares listed on the signature page of this
Agreement as being pledged to the Company, the Company acknowledges that it does
not presently have any voting rights with respect to such Shares and agrees that
it will not take any action to prevent the applicable Stockholders from voting
such Shares in accordance with such Stockholders' agreements set forth in
Section 1.
(c) With respect to any Shares listed on the signature page of this
Agreement as being beneficially owned by a Stockholder through an individual
retirement account, trust, partnership, or other legal entity, such Stockholder
agrees to take and to cause to be taken all actions which are necessary or
appropriate in order to cause such Shares to be voted in accordance with such
Stockholder's agreements set forth in Section 1.
4. No Solicitation.
(a) Immediately upon execution of this Agreement, the Stockholders
shall (and shall use best efforts to cause the Company and its officers,
directors, employees, investment bankers, attorneys and other agents or
representatives to) cease all discussions, negotiations, responses to inquiries
and other communications with all third parties who, prior to the date hereof,
may have expressed or otherwise indicated any interest in pursuing an
Acquisition Proposal with the Company.
(b) Prior to termination of this Agreement pursuant to Section 8
hereof, each Stockholder hereby covenants and agrees that he or she will not,
and each Stockholder shall use best efforts to cause the Company and its
officers, directors, employees, investment bankers, attorneys and other agents
or representatives not to, directly or indirectly, (i) initiate, solicit or
encourage, directly or indirectly, any inquiries or the making of any proposal
that constitutes an Acquisition Proposal, (ii) engage or participate in
negotiations or discussions with, or furnish any information or data to, or take
any other action to, facilitate any inquiries or making any proposal by, any
third party relating to an Acquisition Proposal, or (iii) enter into any
agreement with respect to any Acquisition Proposal or approve an Acquisition
Proposal; provided, that if a Stockholder is a director of the Company, such
Stockholder may, as such a director (but not as a stockholder), engage in the
activities specified in (ii) and (iii), but only if and to the extent that the
Company Board may do so pursuant to Section 5.6(b) of the Merger Agreement, and
only subject to the conditions and limitations set forth in said Section 5.6(b).
In the event that any Stockholder shall receive any Acquisition Proposal, he or
she shall promptly (and in no event later than 24 hours after receipt thereof)
furnish to Buyer the identity of the Potential Acquiror, the terms of such
Acquisition Proposal, copies of all information requested by the Potential
Acquiror, and shall further promptly inform Buyer in writing as to the fact such
information is to be provided after compliance with the terms of the preceding
sentence. Without limiting the
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foregoing, each of the Stockholders understands and agrees that any violation of
the restrictions set forth in this Section 4 by any Stockholder who is a
director or officer of the Company, whether or not such Stockholder is
purporting to act on behalf of the Company or any of its Subsidiaries or
otherwise, shall be deemed to be a breach of Section 5.6(b) of the Merger
Agreement sufficient to enable Buyer to terminate the Merger Agreement pursuant
to Section 7.1(d)(i) thereof. Nothing set forth in this Section 4 shall be
deemed to limit or qualify in any way the Stockholders' agreements and
obligations set forth in Section 1.
(c) For the purposes of this Agreement, "Acquisition Proposal" shall
mean any proposal, whether in writing or otherwise, made by any person other
than Parent and its Subsidiaries to acquire "beneficial ownership" (as defined
under Rule 13(d) of the Exchange Act) of 15% or more of the assets of, or 15% or
more of the outstanding capital stock of any of the Company or its Subsidiaries
pursuant to a merger, consolidation, exchange of shares or other business
combination, sale of shares of capital stock, sales of assets, tender offer or
exchange offer or similar transaction involving the Company or its Subsidiaries.
5. Representations and Warranties of the Stockholders. The Stockholders
severally, but not jointly, hereby represent and warrant to Buyer that:
(a) Each Stockholder has the requisite legal capacity and authority to
execute and deliver this Agreement, to perform the obligations of the
Stockholder under this Agreement and to consummate the transactions contemplated
by this Agreement. This Agreement has been duly executed and delivered by such
Stockholder and constitutes a valid and legally binding obligation of such
Stockholder enforceable in accordance with its terms, except to the extent that
enforceability thereof may be limited by bankruptcy and other similar laws and
general principles of equity;
(b) Each Stockholder's execution, delivery and performance of this
Agreement will not result in the creation of any Lien upon any of the shares of
Company Common Stock held by such Stockholder under any of the terms, conditions
or provisions of any contract to which such Stockholder is a party;
(c) No filing or registration with or notification to and no permit,
authorization, consent or approval of, any Governmental Entity is required to be
obtained, made or given by any Stockholder in connection with the execution,
delivery and performance by any Stockholder of this Agreement; and
(d) The signature page of this Agreement correctly sets forth the
number of shares of Company Common Stock held of record and/or beneficially
owned by each Stockholder as of the date of this Agreement. With respect to
shares of Company Common Stock beneficially owned by each Stockholder and held
by a broker in street name, the signature page of this Agreement correctly sets
forth the name of such broker and the number of shares of Company Common
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Stock held by such broker. With respect to shares of Company Common Stock
beneficially owned by each Stockholder through an individual retirement account,
trust, partnership, or other legal entity, the signature page of this Agreement
correctly sets forth the identity of such entity and the number of shares of
Company Common Stock so held. Each Stockholder has good title to all of the
shares of Company Common Stock set forth below his or her name on the signature
page hereto free and clear of all liens, security interests and encumbrances or
any restrictions on transfer, except for such Shares as are listed on such
signature page as being pledged to the Company to secure the payment of the
purchase price of such Shares.
(e) Each Stockholder, in his or her capacity as record owner,
beneficial owner, partner or trustee, either acting alone or together with
another Stockholder, has the sole power (or shares such power only with such
other Stockholder) to direct the voting and disposition of the Shares and to
prevent the amendment of any custodial, trust, partnership or other operative
agreement under which the Shares are held.
6. Capacity. The parties hereby agree that the Stockholders are
executing this Agreement solely in their capacity as Stockholders of the
Company. Nothing contained in this Agreement shall limit or otherwise affect the
conduct or exercise of the Stockholders' fiduciary duties as officers or
directors of the Company.
7. Covenants.
(a) Each Stockholder will, and will cause any broker-dealer, individual
retirement account trustee or custodian, trustee, trust, partnership, or other
legal entity through which such Stockholder holds Shares to, execute and deliver
such documents and take such action reasonably requested by Buyer to effectuate
the purposes of this Agreement and to consummate the transactions contemplated
by the Merger Agreement.
(b) Each Stockholder, either acting alone or together with another
Stockholder, has the power to, and will, and will cause any broker-dealer,
individual retirement account trustee or custodian, trustee, trust, partnership,
or other legal entity through which such Stockholder holds Shares to, during the
term hereof, prevent (i) the amendment of any custodial, trust, partnership or
other operative agreement under which the Shares are held and (ii) except as a
result of a pledge of the Shares to the Company in connection with the exercise
of options to purchase shares of the Company's common stock, the existence of
any lien, security interest, or other encumbrance on the Shares resulting from
outstanding indebtedness or any other outstanding obligation secured by the
Shares.
8. Termination. This Agreement shall terminate upon the earlier of (i)
the Effective Time and (ii) the termination of the Merger Agreement in
accordance with its terms. In the event this Agreement is terminated, this
Agreement shall immediately become void, there shall be no
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liability under this Agreement on the part of Buyer, its officers or directors
or the Stockholders, and all rights and obligations of the parties to this
Agreement shall cease.
9. Expenses. Each party hereto shall pay its own expenses incurred in
connection with this Agreement, except as otherwise specified in the Merger
Agreement.
10. Specific Performance. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement, without the
necessity of proving damages or posting any bond, and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
thereof having jurisdiction, this being in addition to any other remedy to which
they are entitled at law or in equity.
11. Notice. All notices, requests, demands and other communications
hereunder shall be deemed to have been duly given and made if in writing and if
served by personal delivery upon the party for whom it is intended or if sent by
telex or facsimile (with receipt electronically confirmed) to the person at the
address set forth below, or such other address as may be designated in writing
hereafter, in the same manner, by such person:
(a) if to a Stockholder: To the address set forth on the
signature page(s) hereto
(b) if to Buyer:
UnitedHealth Group Incorporated
9900 Bren Road East
Minnetonka, Minnesota 55343
Attention: General Counsel
Facsimile No.: (952) 936-0044
with a copy to:
Dorsey & Whitney LLP
220 South Sixth Street
Minneapolis, MN 55402
Attention: James D. Alt
Facsimile No.: (612) 340-8738
12. Parties in Interest. This Agreement shall inure to the benefit of
and be binding upon the parties named herein and their respective successors and
assigns. Nothing in this Agreement, expressed or implied, is intended to confer
upon any Person other than the
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Stockholders or Buyer, or their permitted successors or assigns, any rights or
remedies under or by reason of this Agreement.
13. Entire Agreement; Amendments. This Agreement, together with the
Merger Agreement and the other documents referred to therein, constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous agreements and understandings, both
written or oral, between the parties with respect to the subject matter hereof.
This Agreement may not be changed, amended or modified orally, but only by an
agreement in writing signed by the party against whom any waiver, change,
amendment, modification or discharge may be sought.
14. Assignment. No party to this Agreement may assign any of its rights
or delegate any of its obligations under this Agreement (whether by operation of
law or otherwise) without the prior written consent of the other party hereto.
15. Interpretation. The language used in this Agreement shall be deemed
to be the language chosen by the parties to express their mutual intent, and no
rule of strict construction shall be applied against any party. The headings of
articles and sections herein are for convenience of reference, do not constitute
a part of this Agreement, and shall not be deemed to limit or affect any of the
provisions hereof.
16. Counterparts. This Agreement may be executed via facsimile in two
or more counterparts, each of which, when executed, shall be deemed to be an
original and all of which together shall constitute one and the same document.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of laws thereof.
18. Validity. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect. Upon
such determination that any term or other provision is invalid, illegal or
incapable of being enforced, 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 an acceptable manner to the end that transactions contemplated
hereby are fulfilled to the extent possible.
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IN WITNESS WHEREOF, the parties hereto have caused this Voting
Agreement to be executed as of the day and year first written above.
UNITEDHEALTH GROUP INCORPORATED
By: /s/ David J. Lubben
Name: David J. Lubben
Title: Secretary
LIFEMARK CORPORATION (as to Section 3(b))
By: /s/ Rhonda E. Brede
Name: Rhonda E. Brede
Title: President and Chief Executive Officer
STOCKHOLDERS
/s/ Rhonda E. Brede
Name: Rhonda E. Brede
Address: 19870 N. 68th Drive, Glendale, AZ 85308
Number of Shares Held Directly: 123,089 (of which
90,000 are pledged to the Company)
Number of Shares Held in Street Name: 1,121 (Wells
Fargo)
/s/ Michael J. Kennedy
Name: Michael J. Kennedy
Address: 5226 E. Anderson Drive, Scottsdale, AZ 85254
Number of Shares Held Directly: 79,497 (of which 60,000
are pledged to the Company)
Number of Shares Held in Individual Retirement Account:
8,500 (Stephens Inc., custodian)
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/s/ Richard M. Jelinek
Name: Richard M. Jelinek
Address: 8120 N. Dreamy Dr., Phoenix, AZ 85020
Number of Shares Held Directly: 60,000 (of which 60,000
are pledged to the Company)
Number of Shares Held in Street Name: 7,325 (Stephens
Inc.)
/s/ Dave Decker
Name: Dave Decker
Address: 10833 E. Raintree Dr., Scottsdale, AZ 85259
Number of Shares Held Directly: 26,877 (of which 25,000
are pledged to the Company)
Number of Shares Held in Street Name: 3,500 (Charles
Schwab)
/s/ Henry H. Kaldenbaugh
Name: Henry H. Kaldenbaugh
Individually and in his capacity as General Partner of
the Hemarco Investments Limited Partnership
Address: 214 South Main Street, Cottonwood, AZ 86326
Number of Shares Held Directly: 5,000
Number of Shares Held in Street Name: 8,000
(Ameritrade)
Number of Shares Held Through Hemarco Investments
Limited Partnership: 497,453
/s/ Martha E. Kaldenbaugh
Name: Martha E. Kaldenbaugh
As General Partner of the Hemarco Investments Limited
Partnership
Address: 215 South Main Street, Cottonwood, AZ 86326
Number of Shares Held Through Hemarco Investments
Limited Partnership: 497,453
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/s/ John G. Lingenfelter
Name: John G. Lingenfelter
Individually and in his capacity as Trustee under the
Lingenfelter Family Trust U/T/A dated January 31, 1992,
and as General Partner of the Lingenfelter Investments
Limited Partnership
Address: 1080 Riata Valley Road, Kingman, AZ 86401
Number of Shares Held Directly: 5,000
Number of Shares Held in Individual Retirement Account:
7,781
Number of Shares Held Through Lingenfelter Family Trust:
400,878
Number of Shares Held Through Lingenfelter Investments
Limited Partnership: 11,000
/s/ Diana R. Lingenfelter
Name: Diana R. Lingenfelter
In her capacity as Trustee under the Lingenfelter Family
Trust U/T/A dated January 31, 1992, and as General
Partner of the Lingenfelter Investments Limited
Partnership
Address: 1080 Riata Valley Road, Kingman, AZ 86401
Number of Shares Held Through Lingenfelter Family Trust:
400,878
Number of Shares Held Through Lingenfelter Investments
Limited Partnership: 11,000
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/s/ Richard C. Jelinek
Name: Richard C. Jelinek
Individually and in his capacity as Trustee under the
William Gardner Brown GST Trust U/T/A dated 12/1/91
Address: 0312 Ridge Road, Aspen, CO 81611
Number of Shares Held Directly: 612,500
Number of Shares Held in Street Name: 3,315 (Stephens
Inc.); 1,200 (E Trade); 3,000 (William Blair)
Number of Shares Held Under Trust Agreement Dated
December 1, 1991: 70,000
/s/ William G. Brown
Name: William G. Brown
Individually and in his capacity as Trustee under the
William Gardner Brown Grantor Revocable Trust U/T/A
9/15/91
Address: 207 S. Beach Road, Hobe Sound, FL 33455
Number of Shares Held Directly: 5,000
Number of Shares Held Under Trust Agreement Dated
September 15, 1991: 38,670
Number of Shares Held Under Trust Agreement Dated
December 1, 1991: 70,000
/s/ Malcolm M. Brown
Name: Malcolm M. Brown
As Trustee under the William Gardner Brown GST Trust
U/T/A dated 12/1/91
Address: 1110 Arbor Road, Winston-Salem, NC 27104
Number of Shares Held Under Trust Agreement Dated
December 1, 1991: 70,000
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/s/ Risa J. Lavizzo-Mourey
Name: Risa J. Lavizzo-Mourey
Address: 711 Papermill Road, Erdenheim, PA 19038
Number of Shares Held Directly: 5,000
Number of Shares Held in Individual Retirement Account:
4,200 (Fidelity Investments, custodian)
Number of Shares Held in Street Name: 28,880 (Fidelity
Investments)
