Universal Health to buy Talkspace (TALK) in $5.25-per-share all-cash merger
Filing Impact
Filing Sentiment
Form Type
8-K
Talkspace, Inc. agreed to be acquired by Universal Health Services, Inc. through a cash merger in which each share of Talkspace common stock will be converted into the right to receive $5.25 in cash, without interest. Talkspace will become an indirect wholly owned subsidiary of Universal Health and its securities will be delisted from the Nasdaq Global Select Market after the merger closes.
The agreement includes customary conditions such as majority stockholder approval, antitrust and state healthcare clearances, absence of legal restraints and no Material Adverse Effect on Talkspace. A termination fee of $32,394,000 may be payable to Universal Health in specified circumstances. Key stockholders, including Douglas L. Braunstein with about 9% and Erez Shachar with about 5% of Talkspace common stock, entered voting agreements to support the merger and vote against competing takeover proposals, subject to defined fiduciary and Superior Proposal provisions.
Positive
- None.
Negative
- None.
Insights
Talkspace agreed to a cash sale at $5.25 per share, pending approvals.
The transaction will take Talkspace private as an indirect subsidiary of Universal Health Services, with each share receiving
Closing depends on a majority stockholder vote, antitrust clearance under the Hart-Scott-Rodino Act, specified state healthcare approvals, and no Material Adverse Effect on Talkspace. There is no financing condition, but Universal Health can terminate if these conditions are not met by
A termination fee of
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): March 9, 2026
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction
of incorporation)
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(Commission
File Number)
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(IRS Employer
Identification No.)
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(Address of principal executive offices) (Zip Code)
(212 ) 284-7206
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following
provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading symbol(s)
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Name of each exchange on which registered
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Nasdaq Global Select Market
Nasdaq Global Select Market
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this
chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging Growth Company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new
or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry into a Material Definitive Agreement
Agreement and Plan of Merger
On March 9, 2026, Talkspace, Inc., a Delaware corporation (the “Company”),
entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Universal Health Services, Inc., a Delaware corporation (“Parent”), and UHS Merger Subsidiary, Inc., a Delaware corporation and an indirect wholly owned subsidiary of Parent (“Merger Sub”).
Subject to the terms and conditions of the Merger Agreement, Merger Sub will be merged with and into the Company (the “Merger”), with the Company surviving the Merger as
an indirect wholly owned subsidiary of Parent. Capitalized terms used herein but not otherwise defined have the meaning set forth in the Merger Agreement.
Pursuant to the Merger Agreement, which has been unanimously approved by the board of directors of the Company (the “Board”), at the effective time of the Merger (the “Effective Time”), each outstanding share of Company common stock, par value $0.0001 per
share (“Company Common Stock”) (other than shares of Company Common Stock to be canceled pursuant to the Merger Agreement and shares with respect to which appraisal
rights are properly exercised and not withdrawn under Delaware law), will automatically be converted into the right to receive $5.25 in cash, without interest (the “Merger
Consideration”).
As soon as reasonably practicable following the Effective Time, the Company’s securities will be delisted from the NASDAQ Global Select Market and
deregistered under the Securities Exchange Act of 1934, as amended.
As of the Effective Time, each stock option granted under the Company’s equity incentive plans (a “Company Stock Option”) that is vested as of the Effective Time (each, a “Vested Company Stock Option”) will be cancelled, with the holder
becoming entitled to receive, with respect to each share underlying such Company Stock Option, an amount in cash equal to the excess, if any, of (i) the Merger Consideration over (ii) the per share exercise price of such Vested Company Stock
Option. Each restricted stock unit granted under the Company’s equity incentive plans (“Company RSU”) that is vested, but not yet settled, as of the Effective Time will
be cancelled, with the holder thereof becoming entitled to receive, with respect to each share subject to each Company RSU, an amount equal to the Merger Consideration.
Each Company Stock Option and Company RSU that is unvested as of the Effective Time will be converted into an equivalent equity award in respect of
Class B Common Stock, par value $0.01 per share, of Parent (“Parent Class B Shares”), subject to the same terms and conditions as applied prior to the Effective Time.
The number of Parent Class B Shares subject to each converted equity award will be equal to the number of shares of Company Common Stock subject to such award immediately prior to the Effective Time multiplied by the Exchange Ratio (and the per
share exercise price of each Parent Class B Share issuable upon conversion will be equal to the exercise price of such converted Company Stock Option divided by the Exchange Ratio). The “Exchange Ratio” is determined by dividing (i) the closing
price of Company Common Stock on the last day on which Company Common Stock is traded that is immediately prior to the date of the Effective Time by (ii) the closing price of a Parent Class B Share on the last day on which Company Common Stock is
traded that is immediately prior to the date of the Effective Time.
The Company’s Employee Stock Purchase Plan will be terminated and all accumulated contributions of each participant thereunder will be used to purchase
shares of Company Common Stock immediately following the conclusion of any ongoing purchase period or, if earlier, two business days prior to the Effective Time.
Additionally, as of the Effective Time, each Company Warrant (as defined in the Warrant Agreement between Hudson Executive Investment Corp. and
Continental Stock Transfer & Trust Company, dated June 8, 2020) that is issued and outstanding as of immediately prior to the Effective Time will, immediately following the Effective Time, continue to be outstanding according to its terms; provided that, following the Effective Time, each Company Warrant will, automatically and without any required action on the part of the holder thereof or any other person,
cease to become exercisable for Company Common Stock and become exercisable solely in exchange for the receipt of the Merger Consideration with respect to the aggregate number of Company Common Stock for which such Company Warrant was exercisable
for immediately prior to the Effective Time. If a holder properly exercises a Company Warrant within 30 days following the Company’s public disclosure of the consummation of the Merger in a Current Report on Form 8‑K, then the exercise price per
share under such Company Warrant (the “Warrant Price”) with respect to such exercise shall be reduced by an amount (in dollars, and in no event less than zero) equal to
the difference of (i) the Warrant Price in effect immediately prior to such reduction minus (ii) (A) the Merger Consideration minus (B) the Black‑Scholes Warrant Value.
The consummation of the Merger is subject to certain closing conditions, including (i) the adoption of the Merger Agreement by the holders of a majority
of the outstanding shares of Company Common Stock (the “Company Stockholder Approval”), (ii) the expiration or termination of the applicable waiting periods under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, (iii) the expiration or termination of the waiting periods, or the obtaining of any required approvals or authorizations, applicable to the consummation of the Merger under certain
state healthcare laws and (iv) the absence of any legal restraints that have the effect of preventing the consummation of the Merger. Additionally, Parent and Merger Sub’s obligations to consummate the Merger is subject to the absence of a
continuing Material Adverse Effect (as defined in the Merger Agreement) on the Company having occurred since the date of the Merger Agreement. Moreover, each party’s obligation to consummate the Merger is subject to certain other conditions,
including the accuracy of the other party’s representations and warranties in the Merger Agreement (subject to certain materiality qualifiers) and the other party’s compliance in all material respects with its obligations under the Merger
Agreement. Consummation of the Merger is not subject to a financing condition.
The Merger Agreement contains customary representations and warranties of each of Parent, the Company and Merger Sub relating to their respective
businesses and certain matters related to the Merger Agreement. The Merger Agreement contains certain covenants, including covenants providing (i) for each of the parties to use reasonable best efforts to cause the transactions under the Merger
Agreement to be consummated, (ii) for the Company to carry on its business in the ordinary course of business during the interim period between the execution of the Merger Agreement and completion of the Merger and (iii) for the Company not to
engage in certain types of actions during that period without Parent’s consent.
The Merger Agreement obligates the Company to abide by customary “no-shop” restrictions on its ability to solicit alternative takeover proposals from
third parties and to provide non-public information to and enter into discussions or negotiations with third parties regarding alternative takeover proposals. Notwithstanding this obligation, prior to the receipt of the Company Stockholder
Approval, if the Company receives an unsolicited bona fide alternative takeover proposal that the Board determines in good faith (after consultation with its financial advisors and outside legal counsel) constitutes, or would reasonably be
expected to result in, a Superior Proposal (as defined in the Merger Agreement and summarized below) and that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable law, the Company may under
certain circumstances furnish information to and engage in discussions or negotiations with the third party making such alternative takeover proposal. A “Superior Proposal” generally is any bona fide written takeover proposal to acquire 50% or
more of the outstanding shares of Company Common Stock or the assets of the Company and the Company’s subsidiaries and, in good faith determination of the Board (after consultation with its financial advisors and outside legal counsel), (i) would
be more favorable to the Company’s stockholders than the transactions under the Merger Agreement from a financial point of view and (ii) is reasonably capable of being completed, in each case, taking into account all legal, regulatory, financial,
financing and other aspects of such proposal and of the Merger Agreement.
Prior to the Company entering into a written definitive agreement for, or effecting a change in recommendation of the Board in connection with, a
Superior Proposal, the Company must provide Parent with advance written notice of its intention to do so and Parent will generally have at least four business days after receipt of such notice to negotiate with the Company to make such
adjustments in the terms and conditions of the Merger Agreement as would permit the Board not to enter into such a definitive agreement or change its recommendation.
The Merger Agreement contains certain customary termination rights for the Company and Parent, including a right to terminate the Merger Agreement if
the Merger is not completed by December 9, 2026 (as such date may be extended to March 9, 2027, pursuant to the terms of the Merger Agreement). The Merger Agreement further provides that, upon termination of the Merger Agreement under certain
specified circumstances, including, among others, the Company’s termination of the Merger Agreement to enter into a written definitive agreement for a Superior Proposal or following a change in recommendation of the Board, the Company will be
obligated to pay Parent a termination fee of $32,394,000.
The foregoing description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of such
agreement, which is attached hereto as Exhibit 2.1 and is incorporated herein by reference.
The Merger Agreement has been included to provide investors with information regarding its terms. It is not intended to provide any other factual
information about the Company, Parent or any of their respective subsidiaries or affiliates. The representations and warranties of the parties contained in the Merger Agreement have been made solely for the benefit of the parties thereto. In
addition, such representations and warranties (i) have been made only for purposes of the Merger Agreement, (ii) may be subject to limits or exceptions agreed upon by the contracting parties, (iii) are subject to materiality qualifications
contained in the Merger Agreement which may differ from what may be viewed as material by investors, (iv) were made only as of the date of the Merger Agreement or other specific dates and (v) have been included in the Merger Agreement for the
purpose of allocating risk between the contracting parties rather than establishing matters as facts. Investors should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state
of facts or condition of the Company, Parent or Merger Sub or any of their respective subsidiaries or affiliates. Additionally, the representations, warranties, covenants, conditions and other terms of the Merger Agreement may be subject to
subsequent waiver or modification. Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the date of the Merger Agreement, which subsequent information may or may not be fully
reflected in the Company’s public disclosures.
Voting Agreements
On March 9, 2026, concurrently with the execution of the Merger Agreement, Parent entered
into a voting agreement with (i) Douglas L. Braunstein, the Company’s Chairman, solely in his capacity as a stockholder of the Company, and his affiliates holding securities in the Company (the “Braunstein Voting Agreement”) and (ii) Erez Shachar, an independent director of the Company, solely in his capacity as a stockholder of the Company, and his affiliate holding securities in the
Company (the “Shachar Voting Agreement” and, collectively with the Braunstein Voting Agreement, the “Voting
Agreements”) pursuant to which, among other things, Mr. Braunstein, Mr. Shachar and their respective affiliates holding securities in the Company (collectively, the “Holders”)
agreed, among other things, to vote all of their shares of Company Common Stock beneficially owned (A) in favor of adopting the Merger Agreement and any other actions
contemplated by the Merger Agreement in respect of which the approval of the Company’s stockholders is requested, (B) against any alternative takeover
proposal from a third party and (C) against any other action that would reasonably likely be intended, or would reasonably be expected, to materially impede,
interfere with, delay, postpone, affect in an adverse manner or prevent the consummation of the Merger or the other transactions contemplated by the Merger Agreement. As of the date of execution, Mr. Braunstein, collectively with his
affiliates holding securities in the Company under the Braunstein Voting Agreement, owns approximately 9% of the Company Common Stock. As of the date of execution, Mr. Shachar, collectively with his affiliate holding securities in the Company
under the Shachar Voting Agreement, owns approximately 5% of the Company Common Stock.
Each Voting Agreement will terminate upon the earliest of (i) the valid termination of the Merger Agreement in accordance with its terms, (ii) the
Effective Time, (iii) the entry, without the prior written consent of the applicable Holders, into any material modification or amendment to the Merger Agreement that reduces the amount, changes the form or otherwise adversely affects the
consideration payable to such Holders pursuant to the Merger Agreement as in effect on the date of the relevant Voting Agreement and (iv) with respect to any Holder, the mutual written agreement of such Holder and Parent.
The foregoing description of the Voting Agreements and the transactions contemplated thereby is not complete and is qualified in its entirety by
reference to the form of the Braunstein Voting Agreement and the Shachar Voting Agreement, a copy of which is filed as Exhibit 99.1 and 99.2 hereto respectively and the terms of which are incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
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Exhibit
Number
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Description
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2.1*
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Agreement and Plan of Merger, dated March 9, 2026, by and
among Universal Health Services, Inc., UHS Merger Subsidiary, Inc. and Talkspace, Inc.
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99.1*
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Voting Agreement, dated March 9, 2026, by and among
Universal Health Services, Inc., Douglas L. Braunstein, HEC Master Fund LP and Braunstein 2015 Trust.
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99.2*
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Voting Agreement, dated March 9, 2026, by and among
Universal Health Services, Inc., Erez Shachar and Qumra Capital II, L.P.
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104
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Cover Page Interactive Data File (embedded within the Inline XBRL document)
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* Certain schedules and exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. A copy of any omitted schedule or exhibit will be
furnished supplementally to the SEC upon request; provided, however, that the parties may request confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, for any document so furnished.
Forward-Looking Statements
This release contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995 regarding the Company,
which involves substantial risks and uncertainties that could cause actual results to differ materially from those expressed or implied by such statements. All statements other than statements of historical fact are, or may be deemed to be,
forward-looking statements. In some cases, forward-looking statements can be identified by the use of forward-looking terms such as “anticipate,” “estimate,” “believe,” “continue,” “could,” “intend,” “may,” “plan,” “potential,” “predict,”
“should,” “will,” “expect,” “are confident that,” “objective,” “projection,” “forecast,” “goal,” “guidance,” “outlook,” “effort,” “target,” “would” or the negative of these terms or other comparable terms. Forward-looking statements in this
release include, among other things, statements about the potential benefits of the proposed transaction; anticipated accretion and growth rates; plans, objectives, beliefs, expectations and intentions of the Board and the Company management;
the financial condition, results of operations and business of the Company; and the anticipated timing of closing of the proposed transaction.
These forward-looking statements are based on certain assumptions and analyses made by
the Company in light of the Company’s experience and perception of historical trends, current conditions and expected future developments, as well as other factors the Company believes are appropriate in the circumstances. These forward-looking
statements also are based on the current expectations and beliefs of the management of the Company and are subject to certain known and unknown risks and uncertainties that could cause actual results to differ materially from those described in
the forward-looking statements. Risks and uncertainties include, among other things, (i) risks related to the satisfaction of the conditions to closing the proposed transaction (including the failure to obtain necessary regulatory approvals) in
the anticipated timeframe or at all, including uncertainties as whether the stockholders of the Company will approve the proposed transaction and the possibility that the proposed transaction does not close; (ii) risks related to the
possibility that competing offers or acquisition proposals for the Company will be made; (iii) the occurrence of any event, change or other circumstances that could give rise to the termination of the definitive transaction agreement relating
to the proposed transaction, including in circumstances which would require the Company to pay a termination fee; (iv) risks related to the ability to realize the anticipated benefits of the proposed transaction, including the possibility that
the expected benefits from the proposed transaction will not be realized or will not be realized within the expected time period; (v) the risk that the businesses will not be integrated successfully; (vi) disruption from the proposed
transaction making it more difficult to maintain business and operational relationships, including with customers, vendors, service providers and other business counterparties, and the Company’s ability to attract, motivate or retain key
executives, employees and other associates; (vii) risk related to the proposed transaction diverting the Company’s management’s attention from ongoing business operations; (viii) negative effects of the announcement of the Merger or the
consummation of the proposed transaction on the market price of Company Common Stock and on the Company’s operating results; (ix) the risk of litigation, including shareholder litigation, and/or regulatory actions, including any conditions,
limitations or restrictions placed on approvals by any applicable governmental entities, related to the proposed transaction; and (x) (A) other risks and uncertainties discussed in the Company’s Annual Report on Form 10-K, for the fiscal year
ended December 31, 2024 and subsequent Quarterly Reports on Form 10-Q (in particular, the risk factors set forth under the headings “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in
such Annual Reports and Quarterly Reports), and (B) other risk factors identified from time to time in other filings with the U.S. Securities and Exchange Commission (the “SEC”). Filings with the SEC are available on the SEC’s website at
http://www.sec.gov.
The list of factors that may affect actual results and the accuracy of forward-looking statements is illustrative and is not intended to be exhaustive.
Readers are cautioned not to place undue reliance on any of these forward-looking statements. These forward-looking statements speak only as of the date hereof. The Company undertakes no obligation to update any of these forward-looking
statements as the result of new information or to reflect events or circumstances after the date of this communication or to reflect actual outcomes, expect as required by law, and expressly disclaims any obligation to revise or update any
forward-looking statement to reflect future events or circumstances.
Additional Information about the Proposed Transaction and Where to Find It
In connection with the proposed transaction, the Company intends to file relevant
materials with the SEC, including preliminary and definitive proxy statements relating to the proposed transaction. The definitive proxy statement will be mailed to the Company’s stockholders in connection with the proposed transaction. BEFORE
MAKING ANY VOTING DECISION, INVESTORS AND SECURITY HOLDERS OF THE COMPANY ARE URGED TO READ THE PRELIMINARY AND DEFINITIVE PROXY STATEMENTS AND ALL RELEVANT DOCUMENTS TO BE FILED WITH THE SEC IN CONNECTION WITH THE PROPOSED TRANSACTION OR
INCORPORATED BY REFERENCE IN THE PROXY STATEMENT WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION. Investors and security holders may obtain free copies of these documents (if and when
they are available) and other related documents filed with the SEC at the SEC’s web site at www.sec.gov, and on the Company’s website at www.talkspace.com.
Participants in the Solicitation
The Company and its directors and executive officers and other members of management and
employees may, under SEC rules, be deemed participants in the solicitation of proxies from the stockholders of the Company in connection with the proposed transaction. Information regarding the Company’s directors and executive officers can be
found in the Company’s definitive proxy statement on Schedule 14A for the 2025 Annual Meeting of Stockholders, which was filed with the SEC on April 30, 2025 and subsequent statements of beneficial ownership on file with the SEC. These
documents are available free of charge at the SEC’s web site at www.sec.gov and on the Company’s website at www.talkspace.com. Additional information regarding the interest of the participants in the solicitation of the Company’s stockholders, which may, in some cases, be different than those of the Company’s
stockholders generally, will be set forth in the proxy statement related to the proposed transaction described above and other relevant materials to be filed with the SEC if and when they become available.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
| Talkspace, Inc. | ||||
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By:
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/s/ Ian Harris |
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| Name | Ian Harris |
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| Title | Chief Financial Officer | |||
| Date: March 9, 2026 | ||||
Exhibit 99.1
VOTING AGREEMENT
THIS VOTING AGREEMENT (this “Agreement”), dated as of March 9, 2026, is entered into by and among Universal
Health Services, Inc., a Delaware corporation (“Parent”), and the Persons executing this Agreement as “Holders” on the signature pages hereto (each, a “Holder” and collectively, the “Holders”).
WHEREAS, concurrently with the execution and delivery of this Agreement, Parent, UHS Merger Subsidiary, Inc., a Delaware corporation and a wholly owned
Subsidiary of Parent (“Merger Sub”), and Talkspace, Inc., a Delaware corporation (the “Company”), are entering into an Agreement and Plan of Merger (as the same may be amended or supplemented from time to time, the “Merger
Agreement”), providing for, among other things, the merger of Merger Sub with and into the Company, with the Company surviving such merger (the “Merger”);
WHEREAS, as of the date hereof, each Holder is the record or “beneficial owner” (within the meaning of Rule 13d-3 under the Exchange Act) of, and is entitled
to dispose and vote, the number of shares of (a) Company Common Stock and (b) other securities (including Company Warrants) convertible into, or exercisable or exchangeable for, shares of Company Common Stock (such shares described in the foregoing
clauses (a) and (b), the “Shares”) set forth next to such Holder’s name on Schedule A attached hereto (the “Existing Shares”); and
WHEREAS, as a material inducement to Parent to enter into the Merger Agreement, Parent has requested each Holder to agree, and each Holder (in such Holder’s
capacity as a record or beneficial owner of the Subject Shares) has agreed, to enter into this Agreement and abide by the covenants and obligations set forth herein with respect to the Subject Shares.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, the parties hereto, intending to be legally bound
hereby, agree as follows:
ARTICLE I
Definitions; Interpretation
Section 1.01 Definitions. The following capitalized terms, as used in this Agreement, shall have the meanings set
forth below. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Merger Agreement.
“New Shares” means any shares of Company Common Stock that a Holder or its Affiliates purchases or with respect to which a Holder or its Affiliates otherwise acquires
record or beneficial ownership of, on or after the date of this Agreement and prior to the valid termination of this Agreement in accordance with Section 5.13, including any shares issued or issuable upon the conversion, vesting, exercise
or exchange, as the case may be, of all securities (including Company Warrants) held by a Holder that are convertible into, or exercisable or exchangeable for, shares of Company Common Stock.
“Subject Shares” means, collectively, the Existing Shares and the New Shares.
Section 1.02 Interpretation.
(a) When a reference is made in this Agreement to a Schedule, such reference shall be to a Schedule to this Agreement
unless otherwise indicated. When a reference is made in this Agreement to a Section or Article, such reference shall be to the corresponding Section or Article of this Agreement unless otherwise indicated. The descriptive headings contained in
this Agreement are included for convenience of reference only and will not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be
deemed to be followed by the words “without limitation”. The words “hereof”, “herein”, “hereto” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision
of this Agreement. The terms “or”, “any” and “either” are not exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”. The word
“will” shall be construed to have the same meaning and effect as the word “shall”. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such term. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended,
modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments
incorporated therein. Unless otherwise specifically indicated, all references to “dollars” or “$” shall refer to the lawful money of the United States. References to a Person are also to its permitted assigns and successors.
(b) The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an
ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party hereto by virtue of the
authorship of any provision of this Agreement.
ARTICLE II
Representations and Warranties of Each Holder
Each Holder hereby represents and warrants, severally and not jointly, to Parent that:
Section 2.01 Organization. If such Holder is not an individual, such Holder is duly formed, organized or
incorporated, validly existing and in good standing (where such concept is recognized under applicable Law) under the Laws of the jurisdiction of its formation, organization or incorporation.
Section 2.02 Ownership of Subject Shares. Except to the extent any Existing Shares or New Shares are Transferred
in accordance with Section 4.03, the Existing Shares are currently and during the term of this Agreement will be, and the New Shares will be, beneficially owned (as defined in Rule 13d-3 promulgated under the Exchange Act) or owned of
record by such Holder. Such Holder is the record or beneficial owner of, and has, with respect to such Holder’s Existing Shares, and will have with respect to such Holder’s New Shares, good and marketable title to, such Holder’s Subject Shares,
free and clear of all Encumbrances, except for any Encumbrances as (a) may be created or imposed pursuant to this Agreement, the organizational documents of the Company, or the Securities Act or other applicable securities Laws or (b) expressly
contemplated by the Merger Agreement. Such Holder does not, and will not, legally or beneficially own (within the meaning of Section 13 of the Exchange Act) any Shares or other securities in the Company (or any of the Company’s Subsidiaries)
other than the Subject Shares. Except as contemplated by this Agreement, such Holder has and will have during the term of this Agreement the sole right to vote (including the right to control such vote as contemplated herein) such Holder’s
Subject Shares, and no Subject Share of such Holder is subject to any voting trust or other agreement with respect to the voting thereof. Such Holder has and will have during the term of this Agreement the sole right to dispose of such Holder’s
Subject Shares and the sole power to issue instructions with respect to the matters set forth herein, and the sole power to agree to all of the matters set forth in this Agreement, with no restrictions, subject to the Securities Act and other
applicable securities Laws, on such Holder’s rights of disposition of such Holder’s Subject Shares. Except as contemplated by this Agreement, (i) there are no agreements or arrangements of any kind, contingent or otherwise, obligating such
Holder to sell, transfer, pledge, assign, exchange, lend, encumber or otherwise dispose of, whether voluntarily, involuntarily, by operation of law or otherwise (collectively, “Transfer”), or cause to be Transferred any such Holder’s
Subject Shares or otherwise relating to the Transfer of any such Holder’s Subject Shares and (ii) no Person has any contractual or other right or obligation to purchase or otherwise acquire beneficial ownership of any of such Subject Shares of
such Holder.
2
Section 2.03 Authority; Execution and Delivery; Enforceability. If such Holder is not an individual, such Holder
has all necessary power and authority to execute and deliver this Agreement and to perform such Holder’s obligations hereunder and the execution and delivery by such Holder of this Agreement and the performance by such Holder of such Holder’s
obligations hereunder have been duly authorized and approved by all requisite action, and no other action on the part of such Holder is necessary to authorize the execution and delivery of this Agreement or the performance by such Holder of such
Holder’s obligations hereunder. If such Holder is an individual, such Holder has the requisite legal capacity, right and authority to execute and deliver this Agreement and to perform such Holder’s obligations under this Agreement. If such
Stockholder is a trust, no consent of any beneficiary is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby. This Agreement has been duly executed and delivered by such Holder
and, assuming due authorization, execution and delivery hereof by Parent, constitutes a legal, valid and binding obligation of such Holder, enforceable against such Holder in accordance with its terms, except as enforcement may be limited by the
Bankruptcy and Equity Exception. If such Holder is married and any of such Holder’s Subject Shares constitute community property or spousal approval is otherwise necessary for this Agreement to be legal, valid, binding and enforceable, this
Agreement has been duly executed and delivered by, and, assuming the due authorization, execution and delivery by Parent, constitutes the legal, valid and binding obligation of, such Holder’s spouse, enforceable in accordance with its terms
except, in each case, as enforcement may be limited by the Bankruptcy and Equity Exception.
Section 2.04 No Conflicts; Governmental Approvals.
3
(a) Neither the execution and delivery of this Agreement by such Holder, nor the performance or compliance by such Holder
with any of the terms or provisions hereof, will (i) if such Holder is not an individual, conflict with or violate any provision of the organizational documents of such Holder or (ii)(A) assuming that the actions described in Section 2.04(b)
have been completed prior to or promptly after the Effective Time, violate any Law applicable to such Holder or by which such Holder’s assets or properties are bound or (B) conflict with, result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of any encumbrance on the properties or assets of
such Holder (including such Holder’s Subject Shares) pursuant to, any note, bond, mortgage, indenture, contract (whether written or oral), agreement, lease, license, permit, franchise or other instrument or obligation to which such Holder is a
party or by which such Holder or any of such Holder’s assets or properties is bound, except for any of the foregoing as would not individually or in the aggregate, reasonably be expected to prevent or materially impair or interfere with the
ability of such Holder to perform such Holder’s obligations hereunder in any material respect or consummate the transactions contemplated hereby on a timely basis.
(b) No consent of, or filing, declaration or registration with, any Governmental Authority is necessary for the execution
and delivery of this Agreement by such Holder or the performance by such Holder of such Holder’s obligations hereunder, other than filings with the SEC under the Exchange Act and such reports under, and such other compliance with, the Exchange
Act and other applicable securities Laws as may be required in connection with this Agreement and the transactions contemplated by this Agreement and the Merger Agreement.
Section 2.05 Litigation. As of the date hereof, there is no pending or, to the knowledge of such Holder,
threatened in writing, legal, civil, criminal or administrative Action against such Holder except as would not, individually or in the aggregate, be reasonably expected to prevent or materially impair or interfere with the ability of such Holder
to perform such Holder’s obligations hereunder in any material respect or consummate the transactions contemplated hereby on a timely basis. There is no outstanding Judgment imposed upon such Holder or any of such Holder’s Affiliates except as
would not, individually or in the aggregate, be reasonably expected to prevent or materially impair or interfere with the ability of such Holder to perform such Holder’s obligations hereunder in any material respect on a timely basis.
Section 2.06 Brokers. No broker, investment banker, financial advisor or other Person is entitled to any
broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or, to the knowledge of such Holder, on behalf of such Holder.
Section 2.07 Parent Reliance; Merger Agreement Governs. Such Holder understands and acknowledges that Parent is
entering into the Merger Agreement in reliance upon the execution and delivery of this Agreement by such Holder and the representations, warranties and covenants of such Holder contained herein. The Merger Agreement governs the terms of the
Merger and the other transactions contemplated thereby.
4
ARTICLE III
Representations and Warranties of Parent
Parent hereby represents and warrants to the Holders that:
Section 3.01 Organization. Parent is a corporation duly organized, validly existing and in good standing under the Laws of Delaware.
Section 3.02 Authority; Execution and Delivery; Enforceability. Parent has all necessary power and authority to
execute and deliver this Agreement and to perform Parent’s obligations hereunder. The execution and delivery by Parent of this Agreement and the performance by Parent of Parent’s obligations hereunder have been duly authorized and approved by
all requisite action, and no other action on the part of Parent is necessary to authorize the execution and delivery of this Agreement or the performance by Parent of Parent’s obligations hereunder. This Agreement has been duly executed and
delivered by Parent and, assuming due authorization, execution and delivery hereof by the Holders, constitutes a legal, valid and binding obligation of Parent, enforceable against Parent in accordance with its terms, except as enforcement may be
limited by the Bankruptcy and Equity Exception.
ARTICLE IV
Covenants of Holders
Section 4.01 Agreement to Vote.
(a) Subject to the terms of this Agreement, each Holder irrevocably and unconditionally agrees that at the Company
Stockholders’ Meeting or at any other meeting of the Company’s stockholders (whether annual or special and whether or not an adjourned or postponed meeting, however called, and including any adjournment or postponement thereof) and, with respect
to the matters described below in clauses (ii)(A) through (ii)(D), in connection with any action proposed to be taken by written consent of the Company’s stockholders: (i) when such a meeting of the Company’s stockholders is
held, such Holder shall appear at such meeting or otherwise cause the Subject Shares to be counted as present thereat for the purpose of establishing a quorum and, if applicable, vote in favor of any proposal to adjourn, recess or postpone any
meeting of the Company’s stockholders at which the Merger Agreement or any other actions contemplated by the Merger Agreement is submitted for the consideration and vote of the Company’s stockholders to a later date if there are not proxies
representing a sufficient number of shares of Company Common Stock to approve such matters on the date on which the meeting is held, and (ii) such Holder shall vote or cause to be voted at any such meeting (and at every postponement, recess or
adjournment thereof), or execute and deliver or cause to be executed and delivered a written consent with respect to, all of such Holder’s Subject Shares (A) in favor of adopting the Merger Agreement and any other actions contemplated by the
Merger Agreement in respect of which the approval of the Company’s stockholders is requested; (B) in favor of adoption of any proposal in respect of which the Board of Directors of the Company has (1) determined is reasonably necessary to
facilitate any of the transactions contemplated by the Merger Agreement, (2) disclosed the determination described in the foregoing clause (1) in the Proxy Statement or other written materials disseminated to the Company’s stockholders
and (3) recommended to be adopted or approved by the Company’s stockholders; (C) in favor of any proposal (to the extent permitted by the Merger Agreement) to adjourn, recess or postpone the applicable meeting; and (D) against (1) any Takeover
Proposal, whether or not constituting a Superior Proposal and (2) any action, proposal, transaction or agreement involving the Company or any of its Subsidiaries or any of the Affiliated Professional Entities that would reasonably likely be
intended, or would reasonably be expected, to materially impede, interfere with, delay, postpone, affect in an adverse manner or prevent the consummation of the Merger or the other transactions contemplated by the Merger Agreement.
5
(b) Each Holder hereby covenants and agrees that such Holder shall not (i) enter into any agreement or undertaking
(including any agreement or undertaking with a Person to vote or give instructions in a manner inconsistent with this Section 4.01) or (ii) take any action or commit or agree to take any action, that would reasonably be expected to
materially prevent, impair or interfere with such Holder’s ability to perform any of such Holder’s obligations pursuant to this Agreement.
(c) Each Holder hereby revokes (and agrees to cause to be revoked) any and all proxies, if any, that such Holder has
heretofore granted with respect to such Holder’s Subject Shares.
(d) Nothing contained in this Agreement shall be deemed to vest in Parent any direct or indirect ownership or incidence
of ownership of or with respect to any Subject Shares. All rights, ownership and economic benefits of and relating to the Subject Shares shall remain vested in and belong to the Holders. Furthermore, nothing contained in this Agreement shall
require the Holders to: (i) convert, exercise or exchange any option or convertible securities in order to obtain any underlying Shares or (ii) vote, or execute any consent with respect to, any Shares underlying such options or convertible
securities that have not yet been issued as of the applicable record date for that vote or consent.
Section 4.02 Proxy Card. Each Holder shall promptly (but in any event no later than five (5) Business Days prior
to the Company Stockholders’ Meeting) execute and deliver to the Company or the Company’s proxy solicitor (or cause the holders of record of such Holder’s Subject Shares to execute and deliver to the Company or the Company’s proxy solicitor) any
proxy card or voting instructions such Holder receives that is sent by the Company to its stockholders soliciting proxies with respect to any matter described in Section 4.01(a) which shall be voted in the manner described in Section
4.01(a), and such proxy card or voting instructions shall not be amended, withdrawn or rescinded.
Section 4.03 Transfer and Other Restrictions. Prior to the Termination Date, each Holder shall not, directly or
indirectly, (a) Transfer, or enter into any Contract, option or other arrangement or understanding with respect to the Transfer of, any Subject Shares to any Person, (b) tender into any tender or exchange offer any Subject Shares, whether
voluntarily, involuntarily, by operation or otherwise or (c) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, or grant a proxy or power of attorney or any other Contract, option or other arrangement or
understanding with respect to the tendering, voting of or sale, transfer, assignment, pledge, encumbrance, hypothecation or similar disposition of (including by merger, by tendering into any tender or exchange offer, by testamentary disposition,
by operation of law or otherwise) with respect to any Subject Shares, or deposit any Subject Shares into a voting trust. Notwithstanding the immediately preceding sentence, this Section 4.03 shall not prohibit (i) a Transfer of any
Subject Shares by a Holder (A) if such Holder is an individual, to any immediate family member, including any spouse, brother or sister, adopted child or grandchild, or the spouse of any child, adopted child, grandchild, or adopted grandchild, or
lineal descendant or antecedent of such Holder or a trust for the benefit of any such family member or lineal descendant or antecedent, (B) to any corporation, limited liability company, or partnership, the stockholders, members, and general and
limited partners of which include only the persons named in the preceding clause (i)(A) or (C) to any person or entity if and solely to the extent required by any non-consensual, final and non-appealable Judgment, by divorce decree or by
will or intestacy, or (D) as Parent may agree (prior to such Transfer) in writing in Parent’s sole and absolute discretion, so long as and only if, in the case of each of the foregoing clauses (i)(A) through (i)(D), the assignee
or transferee of such Subject Shares agrees to be bound by the terms of this Agreement to the same effect as such Holder and executes and delivers to Parent a written consent and joinder memorializing such agreement in form reasonably acceptable
to Parent, (ii) (A) the net settlement of such Holder’s options to purchase shares of Company Common Stock (to pay the exercise price thereof and any tax withholding obligations), (B) the net settlement of such Holder’s Company RSU settled in
shares of Company Common Stock (to pay any tax withholding obligations), (C) the exercise of such Holder’s Company Stock Options, to the extent such Company Stock Options would expire prior to the Effective Time, or (D) the sale of a sufficient
number of shares of Company Common Stock acquired upon exercise of such Holder’s Company Stock Options pursuant to the foregoing clause (ii)(C) or upon the settlement of such Holder’s Company RSU, in each case as would generate sales
proceeds sufficient to pay the aggregate applicable exercise price of shares then exercised under such Company Stock Options and the taxes payable by such Holder as a result of such exercise or settlement, or (iii) in the case of Douglas
Braunstein individually, the transfer of up to [*] Subject Shares to one or more charitable trusts (which charitable trusts shall not be required to be bound by the terms of this Agreement). Any attempted Transfer of, or other action with
respect to, Subject Shares or any interest therein in violation of this Section 4.03 shall be null and void ab initio.
6
Section 4.04 Stock Dividends, etc. If, between the date of this Agreement and the Effective Time, the issued and
outstanding Shares shall have been changed into a different number of shares or a different class by reason of the occurrence or record date of any stock dividend, subdivision, reclassification, recapitalization, split, combination, exchange of
shares or similar transaction, the terms “Existing Shares,” “New Shares” and “Subject Shares” shall be appropriately adjusted to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination, exchange of shares
or similar transaction.
Section 4.05 Waiver of Appraisal Rights. Each Holder hereby irrevocably and unconditionally waives, and shall
cause to be waived, any and all rights of appraisal or rights to dissent from the Merger or the other transactions contemplated by the Merger Agreement that such Holder may have under applicable Law. In addition, each Holder agrees not to demand
or commence any appraisal proceeding under Section 262 of the DGCL with respect to such Holder’s Subject Shares.
7
Section 4.06 Disclosure. Each Holder hereby authorizes the Company, Parent and Merger Sub to publish and disclose
in any announcement or disclosure required by the SEC and in the Proxy Statement and the filings required under applicable Law in connection with the Merger and any transactions contemplated by the Merger Agreement, each Holder’s identity and
ownership of the Subject Shares and the nature of each Holder’s obligations under this Agreement after providing each Holder with a reasonable opportunity to review and approve (such approval not to be unreasonably withheld, conditioned or
delayed) such publication or disclosure prior to any such publication or disclosure. Parent hereby authorizes each Holder to disclose in any disclosure required by any Governmental Authority Parent’s identity and the nature of Parent’s
obligations under this Agreement. Parent will not make any other disclosures regarding any Holder in any press release or otherwise without the prior written consent of such Holder (such approval not to be unreasonably withheld, conditioned or
delayed).
Section 4.07 Fiduciary Responsibilities. Notwithstanding any provision of this Agreement to the contrary, this
Agreement shall apply to each Holder solely in its capacity as a holder of Shares and not in any other capacity, and nothing in this Agreement shall limit, restrict or affect the rights, obligations and actions of (a) such Holder in such Holder’s
capacity as an officer, director or employee of the Company and (b) any officer or director or designee of the Holders or their Affiliates serving on the Board of Directors of the Company from taking any action in his or her capacity as a
director or officer of the Company or voting or providing written consent as a director of the Company in his or her sole discretion on any matter, whether in connection with the Merger Agreement or otherwise, and no action or omissions by any
such Persons in his or her capacity as a director or officer of the Company shall be deemed to constitute a breach of any provision of this Agreement. However, for the avoidance of doubt, except as expressly provided otherwise in this Agreement,
an Adverse Recommendation Change shall not relieve any such Holder of any obligation hereunder with respect to the Shares beneficially owned by such Holder or any New Shares.
Section 4.08 Additional Existing Shares. Each Holder shall provide as promptly as reasonably practicable written
notice to Parent of any additional Shares of which such Holder becomes the “beneficial owner” after the date hereof and during the term of this Agreement. Each Holder agrees that New Shares shall be subject to the terms and conditions of this
Agreement to the same extent as if such New Shares constituted Existing Shares on the date hereof.
Section 4.09 No Participation in Litigation. Each Holder hereby agrees not to commence or participate in, and
agrees to use reasonable best efforts to, if requested by Parent, take all actions necessary to opt out of any class in any class action with respect to, any claim, action, litigation or proceeding, derivative or otherwise, against Parent, Merger
Sub, the Company or any of their respective Affiliates or any of the Affiliated Professional Entities relating to the negotiation, execution or delivery of this Agreement or the Merger Agreement or the consummation of the Merger, including any
claim, action, litigation or proceeding (a) challenging the validity, or seeking to enjoin the operation, of any provision of this Agreement or the Merger Agreement or (b) alleging a breach of any fiduciary duty of any members of the Board of
Directors of the Company in connection with the Merger Agreement or the transactions contemplated thereby; provided, however, that the foregoing shall not restrict such Holder from enforcing any of his, her or its rights under the
Merger Agreement or this Agreement.
8
ARTICLE V
General Provisions
Section 5.01 Notices. All notices, requests and other communications to any party hereunder shall be in writing
and shall be deemed given if delivered personally, emailed (unless an automated message indicating non-delivery is received with respect thereto) or sent by nationally recognized overnight courier (providing proof of delivery) to the parties at
the following addresses:
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If to Parent, to:
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c/o Universal Health Services, Inc.
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367 South Gulph Road
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King of Prussia, PA 19406
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Attention: Matthew D. Klein, Senior Vice President and General Counsel
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Email: [*]
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with a copy (which will not constitute notice) to:
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McDermott Will & Schulte LLP
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444 West Lake Street, Suite 4000
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Chicago, IL 60606
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Attention: Eric Orsic
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Email: eorsic@mcdermottlaw.com
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If to any Holder, to:
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||
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The address set forth next to such Holder on Schedule A
|
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with a copy (which will not constitute notice) to:
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Cravath, Swaine & Moore LLP
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Two Manhattan West
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375 Ninth Avenue
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New York, NY 10001
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Attention:
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Minh Van Ngo | |
| Andrew M. Wark | ||
| Email: | mngo@cravath.com | |
| awark@cravath.com | ||
or such other address or email address as such party may hereafter specify by like notice to the other parties hereto. All such notices, requests and other communications shall be in writing and
shall be deemed to have been received on the earliest of (i) the date when personally delivered, (ii) the date when transmitted via electronic e-mail address (unless an automated message indicating non-delivery is received with respect thereto) or
(iii) the next succeeding Business Day following the day on which the same has been delivered prepaid to a reputable national overnight air courier service.
9
Section 5.02 Severability. If any term, condition or other provision of this Agreement is determined by a court
of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of Law or public policy (as determined by a final judgement), all other terms, provisions and conditions of this Agreement shall nevertheless remain in
full force and effect. Upon such determination that any term, condition or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by applicable Law.
Section 5.03 Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any of the parties hereto, in whole or in part, by operation of law or otherwise, except (a) by any Holder (i) with the prior written consent of Parent or (ii) to a transferee of such Holder’s Shares in accordance with Section
4.03, or (b) by Parent (i) to any of Parent’s Affiliates or (ii) with the prior written consent of a majority (in terms of aggregate voting power) of the Subject Shares of the Holders; provided, that, in the case of clauses (a)
and (b), any such assignment will not relieve the assigning party of its obligations under this Agreement. Any assignment in contravention of the preceding sentence shall be null and void ab initio.
Section 5.04 Entire Agreement; No Third Party Beneficiaries. This Agreement (including Schedule A and the
other documents delivered pursuant hereto) constitutes the entire agreement and supersedes all prior representations, conditions, agreements and understandings, both written and oral, among the parties hereto and their Affiliates, or any of them,
with respect to the subject matter hereof. This Agreement is not intended to confer upon any Person, other than the parties hereto, any rights or remedies hereunder, including the right to rely upon the representations and warranties set forth
herein; provided, that, the Company shall be a third-party beneficiary of, and entitled to enforce the provisions of, Section 4.09.
Section 5.05 Governing Law. This Agreement, and all claims or causes of action (whether in contract or tort) that
may be based upon, arise out of or relate to this Agreement, shall be governed by, and construed in accordance with, the Laws of the State of Delaware applicable to contracts executed in and to be performed entirely within that State, regardless
of the Laws that might otherwise govern under any applicable conflict of Laws principles.
Section 5.06 Counterparts. This Agreement may be executed in one or more counterparts (including by electronic
signature, PDF or electronic mail with .pdf attachments), each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement, and shall become effective when one or more counterparts have
been signed by each of the parties hereto and delivered to the other parties hereto.
Section 5.07 Jurisdiction; Service of Process. The parties hereto agree that any action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated by this Agreement shall be brought exclusively in the Court of Chancery of the State of Delaware (or, if the
Court of Chancery of the State of Delaware declines to accept jurisdiction over any action or proceeding, any state or federal court within the State of Delaware). Each party hereto hereby irrevocably submits to the exclusive jurisdiction of
each such court in respect of any legal or equitable action, suit or proceeding arising out of or relating to this Agreement or the transactions contemplated by this Agreement, or relating to enforcement of any of the terms of this Agreement, and
hereby irrevocably waives, and agrees not to assert, as a defense in any such action, suit or proceeding, any claim that it is not subject personally to the jurisdiction of such court, that the action, suit or proceeding is brought in an
inconvenient forum, that the venue of the action, suit or proceeding is improper or that this Agreement or the transactions contemplated by this Agreement may not be enforced in or by such courts. Each party hereto agrees that notice or the
service of process upon such party in any action, suit or proceeding arising out of or relating to this Agreement or the transactions contemplated by this Agreement shall be properly served or delivered if delivered in the manner contemplated by
Section 5.01 or in any other manner permitted by law.
10
Section 5.08 Waiver of Jury Trial. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT
(A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED
THE IMPLICATIONS OF SUCH WAIVER, (C) SUCH PARTY MAKES SUCH WAIVER VOLUNTARILY AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 5.08.
Section 5.09 Specific Performance.
(a) The parties hereto acknowledge and agree that, in the event of any breach of this Agreement, irreparable harm would
occur that monetary damages could not make whole. It is accordingly agreed that (i) each party hereto shall be entitled, in addition to any other remedy to which it may be entitled at law or in equity, to compel specific performance to prevent
or restrain breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions hereof in any action without the posting of a bond or undertaking, and (ii) the parties hereto shall, and hereby do, waive, in any
action for specific performance, the defense of adequacy of a remedy at law and any other objections to specific performance of this Agreement, including any requirement for the securing or posting of any bond in connection with such remedy.
(b) Notwithstanding the parties’ rights to specific performance pursuant to Section 5.09(a), each party may
pursue any other remedy available to it at law or in equity, including monetary damages. Any and all remedies herein expressly conferred upon a party hereto will be deemed cumulative with and not exclusive of any other remedy conferred hereby,
or by law or equity upon such party, and the exercise by a party hereto of any one remedy will not preclude the exercise of any other remedy.
11
Section 5.10 Amendment; Waiver. This Agreement may not be amended except by an instrument in writing signed by the parties hereto
prior to the Effective Time. The failure of any party to assert any rights or remedies under this Agreement will not constitute a waiver of such rights or remedies. Any extension or waiver with respect to this Agreement will be valid only if
set forth in an instrument in writing signed by the party or parties to be bound thereby.
Section 5.11 Expenses. Except as set forth herein or the Merger Agreement, each of the parties shall be
responsible for its own fees and expenses (including the fees and expenses of investment bankers and accountants) in connection with the entering into and performance under this Agreement and the consummation of the transactions contemplated
hereby.
Section 5.12 Further Assurances. Each Holder hereby covenants and agrees to execute and deliver any additional
documents reasonably necessary or desirable to carry out the purpose and intent of this Agreement and the Merger Agreement.
Section 5.13 Termination. This Agreement and all obligations of the parties hereto hereunder shall automatically terminate, without
further action by any party hereto, upon the earliest of (a) the Effective Time, (b) the valid termination of the Merger Agreement in accordance with its terms, (c) with respect to any Holder, the mutual written agreement of such Holder and
Parent and (d) the entry, without the prior written consent of the Holders, into any material modification or amendment to the Merger Agreement that reduces the amount, changes the form or otherwise adversely affects the consideration payable to
the Holders pursuant to the Merger Agreement as in effect on the date hereof (the date on which termination would occur pursuant to any of the foregoing clauses (a) through (d), the “Termination Date”). In the event of any
such termination of this Agreement, this Agreement shall forthwith become null and void and have no effect, without any liability or obligation on the part of Parent or the applicable Holders, other than liability for any knowing intentional and
material breach of this Agreement prior to such Termination Date; provided, that the provisions set forth in Article V shall survive the termination of this Agreement.
[Signature Pages Follow]
12
IN WITNESS WHEREOF, the parties have duly executed this Agreement, all as of the date first written above.
| UNIVERSAL HEALTH SERVICES, INC. | ||||
|
By:
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/s/ Steve Filton | |||
| Name: | Steve Filton | |||
| Title: | Chief Financial Officer | |||
[Signature Page to Voting Agreement]
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HOLDERS:
HEC MASTER FUND LP
BY: HEC PERFORMANCE GP LLC, ITS GENERAL PARTNER
BY: HEC MANAGEMENT GP LLC, ITS MANAGING MEMBER
BY: DOUGLAS L. BRAUNSTEIN, ITS MANAGING MEMBER
|
||||
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By:
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/s/ Douglas L. Braunstein | |||
| Name: | Douglas L. Braunstein | |||
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DOUGLAS L. BRAUNSTEIN
|
||||
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By:
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/s/ Douglas L. Braunstein | |||
| Name: | Douglas L. Braunstein | |||
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BRAUNSTEIN 2015 TRUST
|
||||
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By:
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/s/ Douglas L. Braunstein | |||
| Name: | Douglas L. Braunstein | |||
[Signature Page to Voting Agreement]
Exhibit 99.2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this “Agreement”), dated as of March 9, 2026, is entered into by and among Universal Health Services, Inc., a
Delaware corporation (“Parent”), and the Persons executing this Agreement as “Holders” on the
signature pages hereto (each, a “Holder” and collectively, the “Holders”).
WHEREAS, concurrently with the execution and delivery of this
Agreement, Parent, UHS Merger Subsidiary, Inc., a Delaware corporation and a wholly owned Subsidiary of Parent (“Merger Sub”), and Talkspace, Inc., a Delaware corporation
(the “Company”), are entering into an Agreement and Plan of Merger (as the same may be amended or supplemented from time to time, the “Merger Agreement”), providing for, among other things, the merger of Merger Sub with and into the Company, with the Company surviving such merger (the “Merger”);
WHEREAS, as of the date hereof, each Holder is the record or
“beneficial owner” (within the meaning of Rule 13d-3 under the Exchange Act) of, and is entitled to dispose and vote, the number of shares of (a) Company Common Stock and (b) other securities (including Company Warrants) convertible into, or
exercisable or exchangeable for, shares of Company Common Stock (such shares described in the foregoing clauses (a) and (b), the “Shares”) set forth next to such Holder’s name on Schedule A
attached hereto (the “Existing Shares”); and
WHEREAS, as a material inducement to Parent to enter into the
Merger Agreement, Parent has requested each Holder to agree, and each Holder (in such Holder’s capacity as a record or beneficial owner of the Subject Shares) has agreed, to enter into this Agreement and abide by the covenants and obligations set
forth herein with respect to the Subject Shares.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements herein contained, the parties hereto, intending to be legally bound hereby, agree as follows:
ARTICLE I
Definitions; Interpretation
Section 1.01 Definitions. The following capitalized terms, as used in this Agreement, shall have the meanings set forth below. Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Merger Agreement.
“New Shares” means any shares of Company Common Stock
that a Holder or its Affiliates purchases or with respect to which a Holder or its Affiliates otherwise acquires record or beneficial ownership of, on or after the date of this Agreement and prior to the valid termination of this Agreement in
accordance with Section 5.13, including any shares issued or issuable upon the conversion, vesting, exercise or exchange, as the case may be, of all securities (including
Company Warrants) held by a Holder that are convertible into, or exercisable or exchangeable for, shares of Company Common Stock.
“Subject Shares” means, collectively, the Existing
Shares and the New Shares.
Section 1.02 Interpretation.
(a) When a reference is
made in this Agreement to a Schedule, such reference shall be to a Schedule to this Agreement unless otherwise indicated. When a reference is made in this Agreement to a Section or Article, such reference shall be to the corresponding Section or
Article of this Agreement unless otherwise indicated. The descriptive headings contained in this Agreement are included for convenience of reference only and will not affect in any way the meaning or interpretation of this Agreement. Whenever the
words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”. The words “hereof”, “herein”, “hereto” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The terms “or”, “any” and “either” are not exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a
subject or other thing extends, and such phrase shall not mean simply “if”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. The definitions contained in this Agreement are applicable to the singular as
well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein
means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor
statutes and references to all attachments thereto and instruments incorporated therein. Unless otherwise specifically indicated, all references to “dollars” or “$” shall refer to the lawful money of the United States. References to a Person are
also to its permitted assigns and successors.
(b) The parties hereto
have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption
or burden of proof shall arise favoring or disfavoring any party hereto by virtue of the authorship of any provision of this Agreement.
ARTICLE II
Representations and Warranties of Each Holder
Each Holder hereby represents and warrants, severally and not jointly, to Parent that:
Section 2.01 Organization. If such Holder is not an individual, such Holder is duly formed, organized or incorporated, validly existing and in good standing (where such concept is recognized under
applicable Law) under the Laws of the jurisdiction of its formation, organization or incorporation.
Section 2.02 Ownership of Subject Shares. Except to the extent any Existing Shares or New Shares are Transferred in accordance with Section 4.03, the Existing Shares are currently and
during the term of this Agreement will be, and the New Shares will be, beneficially owned (as defined in Rule 13d-3 promulgated under the Exchange Act) or owned of record by such Holder. Such Holder is the record or beneficial owner of, and has,
with respect to such Holder’s Existing Shares, and will have with respect to such Holder’s New Shares, good and marketable title to, such Holder’s Subject Shares, free and clear of all Encumbrances, except for any Encumbrances as (a) may be
created or imposed pursuant to this Agreement, the organizational documents of the Company, or the Securities Act or other applicable securities Laws or (b) expressly contemplated by the Merger Agreement. Such Holder does not, and will not,
legally or beneficially own (within the meaning of Section 13 of the Exchange Act) any Shares or other securities in the Company (or any of the Company’s Subsidiaries) other than the Subject Shares. Except as contemplated by this Agreement, such
Holder has and will have during the term of this Agreement the sole right to vote (including the right to control such vote as contemplated herein) such Holder’s Subject Shares, and no Subject Share of such Holder is subject to any voting trust
or other agreement with respect to the voting thereof. Such Holder has and will have during the term of this Agreement the sole right to dispose of such Holder’s Subject Shares and the sole power to issue instructions with respect to the matters
set forth herein, and the sole power to agree to all of the matters set forth in this Agreement, with no restrictions, subject to the Securities Act and other applicable securities Laws, on such Holder’s rights of disposition of such Holder’s
Subject Shares. Except as contemplated by this Agreement, (i) there are no agreements or arrangements of any kind, contingent or otherwise, obligating such Holder to sell, transfer, pledge, assign, exchange, lend, encumber or otherwise dispose
of, whether voluntarily, involuntarily, by operation of law or otherwise (collectively, “Transfer”), or cause to be Transferred any such Holder’s Subject Shares or otherwise relating to the Transfer of any such Holder’s Subject Shares and
(ii) no Person has any contractual or other right or obligation to purchase or otherwise acquire beneficial ownership of any of such Subject Shares of such Holder.
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Section 2.03 Authority; Execution and Delivery; Enforceability. If such Holder is not an individual, such Holder has all necessary power and authority to execute and deliver this Agreement and to
perform such Holder’s obligations hereunder and the execution and delivery by such Holder of this Agreement and the performance by such Holder of such Holder’s obligations hereunder have been duly authorized and approved by all requisite action,
and no other action on the part of such Holder is necessary to authorize the execution and delivery of this Agreement or the performance by such Holder of such Holder’s obligations hereunder. If such Holder is an individual, such Holder has the
requisite legal capacity, right and authority to execute and deliver this Agreement and to perform such Holder’s obligations under this Agreement. This Agreement has been duly executed and delivered by such Holder and, assuming due authorization,
execution and delivery hereof by Parent, constitutes a legal, valid and binding obligation of such Holder, enforceable against such Holder in accordance with its terms, except as enforcement may be limited by the Bankruptcy and Equity Exception.
If such Holder is married and any of such Holder’s Subject Shares constitute community property or spousal approval is otherwise necessary for this Agreement to be legal, valid, binding and enforceable, this Agreement has been duly executed and
delivered by, and, assuming the due authorization, execution and delivery by Parent, constitutes the legal, valid and binding obligation of, such Holder’s spouse, enforceable in accordance with its terms except, in each case, as enforcement may
be limited by the Bankruptcy and Equity Exception.
Section 2.04 No Conflicts; Governmental Approvals.
(a) Neither the execution and delivery of this Agreement by such Holder, nor the performance or compliance by such Holder with any of the terms or provisions hereof, will (i) if such Holder is not an
individual, conflict with or violate any provision of the organizational documents of such Holder or (ii)(A) assuming that the actions described in Section 2.04(b) have been completed prior to or promptly after the Effective Time,
violate any Law applicable to such Holder or by which such Holder’s assets or properties are bound or (B) conflict with, result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of any encumbrance on the properties or assets of such Holder (including such Holder’s Subject Shares) pursuant
to, any note, bond, mortgage, indenture, contract (whether written or oral), agreement, lease, license, permit, franchise or other instrument or obligation to which such Holder is a party or by which such Holder or any of such Holder’s assets
or properties is bound, except for any of the foregoing as would not individually or in the aggregate, reasonably be expected to prevent or materially impair or interfere with the ability of such Holder to perform such Holder’s obligations
hereunder in any material respect or consummate the transactions contemplated hereby on a timely basis.
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(b) No consent of, or
filing, declaration or registration with, any Governmental Authority is necessary for the execution and delivery of this Agreement by such Holder or the performance by such Holder of such Holder’s obligations hereunder, other than filings with the
SEC under the Exchange Act and such reports under, and such other compliance with, the Exchange Act and other applicable securities Laws as may be required in connection with this Agreement and the transactions contemplated by this Agreement and
the Merger Agreement.
Section 2.05 Litigation. As of the date hereof, there is no pending or, to the knowledge of such Holder, threatened in writing, legal, civil, criminal or administrative Action against such Holder
except as would not, individually or in the aggregate, be reasonably expected to prevent or materially impair or interfere with the ability of such Holder to perform such Holder’s obligations hereunder in any material respect or consummate the
transactions contemplated hereby on a timely basis. There is no outstanding Judgment imposed upon such Holder or any of such Holder’s Affiliates except as would not, individually or in the aggregate, be reasonably expected to prevent or
materially impair or interfere with the ability of such Holder to perform such Holder’s obligations hereunder in any material respect on a timely basis.
Section 2.06 Brokers. No broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements made by or, to the knowledge of such Holder, on behalf of such Holder.
Section 2.07 Parent Reliance; Merger Agreement Governs. Such Holder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the execution and delivery of
this Agreement by such Holder and the representations, warranties and covenants of such Holder contained herein. The Merger Agreement governs the terms of the Merger and the other transactions contemplated thereby.
ARTICLE III
Representations and Warranties of Parent
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Parent hereby represents and warrants to the Holders that:
Section 3.01 Organization. Parent is a corporation duly organized, validly existing and in good standing under the Laws of Delaware.
Section 3.02 Authority; Execution and Delivery; Enforceability. Parent has all necessary power and authority to execute and deliver this Agreement and to perform Parent’s obligations hereunder.
The execution and delivery by Parent of this Agreement and the performance by Parent of Parent’s obligations hereunder have been duly authorized and approved by all requisite action, and no other action on the part of Parent is necessary to
authorize the execution and delivery of this Agreement or the performance by Parent of Parent’s obligations hereunder. This Agreement has been duly executed and delivered by Parent and, assuming due authorization, execution and delivery hereof
by the Holders, constitutes a legal, valid and binding obligation of Parent, enforceable against Parent in accordance with its terms, except as enforcement may be limited by the Bankruptcy and Equity Exception.
ARTICLE IV
Covenants of Holders
Section 4.01 Agreement to Vote.
(a) Subject to the terms of this Agreement, each Holder irrevocably and unconditionally agrees that at the Company Stockholders’ Meeting or at any other meeting of the Company’s stockholders (whether
annual or special and whether or not an adjourned or postponed meeting, however called, and including any adjournment or postponement thereof) and, with respect to the matters described below in clauses (ii)(A) through (ii)(D), in
connection with any action proposed to be taken by written consent of the Company’s stockholders: (i) when such a meeting of the Company’s stockholders is held, such Holder shall appear at such meeting or otherwise cause the Subject Shares to be
counted as present thereat for the purpose of establishing a quorum and, if applicable, vote in favor of any proposal to adjourn, recess or postpone any meeting of the Company’s stockholders at which the Merger Agreement or any other actions
contemplated by the Merger Agreement is submitted for the consideration and vote of the Company’s stockholders to a later date if there are not proxies representing a sufficient number of shares of Company Common Stock to approve such matters on
the date on which the meeting is held, and (ii) such Holder shall vote or cause to be voted at any such meeting (and at every postponement, recess or adjournment thereof), or execute and deliver or cause to be executed and delivered a written
consent with respect to, all of such Holder’s Subject Shares (A) in favor of adopting the Merger Agreement and any other actions contemplated by the Merger Agreement in respect of which the approval of the Company’s stockholders is requested; (B)
in favor of adoption of any proposal in respect of which the Board of Directors of the Company has (1) determined is reasonably necessary to facilitate any of the transactions contemplated by the Merger Agreement, (2) disclosed the determination
described in the foregoing clause (1) in the Proxy Statement or other written materials disseminated to the Company’s stockholders and (3) recommended to be adopted or approved by the Company’s stockholders; (C) in favor of any proposal
(to the extent permitted by the Merger Agreement) to adjourn, recess or postpone the applicable meeting; and (D) against (1) any Takeover Proposal, whether or not constituting a Superior Proposal and (2) any action, proposal, transaction or
agreement involving the Company or any of its Subsidiaries or any of the Affiliated Professional Entities that would reasonably likely be intended, or would reasonably be expected, to materially impede, interfere with, delay, postpone, affect in
an adverse manner or prevent the consummation of the Merger or the other transactions contemplated by the Merger Agreement.
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(b) Each Holder hereby covenants and agrees that such Holder shall not (i) enter into any agreement or undertaking (including any agreement or undertaking with a Person to vote or give instructions in
a manner inconsistent with this Section 4.01) or (ii) take any action or commit or agree to take any action, that would reasonably be expected to materially prevent, impair or interfere with such Holder’s ability to perform any of such
Holder’s obligations pursuant to this Agreement.
(c) Each Holder hereby
revokes (and agrees to cause to be revoked) any and all proxies, if any, that such Holder has heretofore granted with respect to such Holder’s Subject Shares.
(d) Nothing contained in
this Agreement shall be deemed to vest in Parent any direct or indirect ownership or incidence of ownership of or with respect to any Subject Shares. All rights, ownership and economic benefits of and relating to the Subject Shares shall remain
vested in and belong to the Holders. Furthermore, nothing contained in this Agreement shall require the Holders to: (i) convert, exercise or exchange any option or convertible securities in order to obtain any underlying Shares or (ii) vote, or
execute any consent with respect to, any Shares underlying such options or convertible securities that have not yet been issued as of the applicable record date for that vote or consent.
Section 4.02 Proxy Card. Each Holder shall promptly (but in any event no later than five (5) Business Days prior to the Company Stockholders’ Meeting) execute and deliver to the Company or the
Company’s proxy solicitor (or cause the holders of record of such Holder’s Subject Shares to execute and deliver to the Company or the Company’s proxy solicitor) any proxy card or voting instructions such Holder receives that is sent by the
Company to its stockholders soliciting proxies with respect to any matter described in Section 4.01(a) which shall be voted in the manner described in Section 4.01(a), and such proxy card or voting instructions shall not be
amended, withdrawn or rescinded.
Section 4.03 Transfer and Other Restrictions. Prior to the Termination Date, each Holder shall not, directly or indirectly, (a) Transfer, or enter into any Contract, option or other arrangement or
understanding with respect to the Transfer of, any Subject Shares to any Person, (b) tender into any tender or exchange offer any Subject Shares, whether voluntarily, involuntarily, by operation or otherwise or (c) enter into any voting
arrangement, whether by proxy, voting agreement or otherwise, or grant a proxy or power of attorney or any other Contract, option or other arrangement or understanding with respect to the tendering, voting of or sale, transfer, assignment,
pledge, encumbrance, hypothecation or similar disposition of (including by merger, by tendering into any tender or exchange offer, by testamentary disposition, by operation of law or otherwise) with respect to any Subject Shares, or deposit any
Subject Shares into a voting trust. Notwithstanding the immediately preceding sentence, this Section 4.03 shall not prohibit (i) a Transfer of any Subject Shares by a Holder (A) if such Holder is an individual, to any immediate family
member, including any spouse, brother or sister, adopted child or grandchild, or the spouse of any child, adopted child, grandchild, or adopted grandchild, or lineal descendant or antecedent of such Holder or a trust for the benefit of any such
family member or lineal descendant or antecedent, (B) to any corporation, limited liability company, or partnership, the stockholders, members, and general and limited partners of which include only the persons named in the preceding clause
(i)(A) or (C) to any person or entity if and solely to the extent required by any non-consensual, final and non-appealable Judgment, by divorce decree or by will or intestacy, or (D) as Parent may agree (prior to such Transfer) in writing
in Parent’s sole and absolute discretion, so long as and only if, in the case of each of the foregoing clauses (i)(A) through (i)(D), the assignee or transferee of such Subject Shares agrees to be bound by the terms of this
Agreement to the same effect as such Holder and executes and delivers to Parent a written consent and joinder memorializing such agreement in form reasonably acceptable to Parent, or (ii) (A) the net settlement of such Holder’s options to
purchase shares of Company Common Stock (to pay the exercise price thereof and any tax withholding obligations), (B) the net settlement of such Holder’s Company RSU settled in shares of Company Common Stock (to pay any tax withholding
obligations), (C) the exercise of such Holder’s Company Stock Options, to the extent such Company Stock Options would expire prior to the Effective Time, or (D) the sale of a sufficient number of shares of Company Common Stock acquired upon
exercise of such Holder’s Company Stock Options pursuant to the foregoing clause (ii)(C) or upon the settlement of such Holder’s Company RSU, in each case as would generate sales proceeds sufficient to pay the aggregate applicable
exercise price of shares then exercised under such Company Stock Options and the taxes payable by such Holder as a result of such exercise or settlement. Any attempted Transfer of, or other action with respect to, Subject Shares or any interest
therein in violation of this Section 4.03 shall be null and void ab initio.
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Section 4.04 Stock Dividends, etc. If, between the date of this Agreement and the Effective Time, the issued and outstanding Shares shall have been changed into a different number of shares or a
different class by reason of the occurrence or record date of any stock dividend, subdivision, reclassification, recapitalization, split, combination, exchange of shares or similar transaction, the terms “Existing Shares,” “New Shares” and
“Subject Shares” shall be appropriately adjusted to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination, exchange of shares or similar transaction.
Section 4.05 Waiver of Appraisal Rights. Each Holder hereby irrevocably and unconditionally waives, and shall cause to be waived, any and all rights of appraisal or rights to dissent from the
Merger or the other transactions contemplated by the Merger Agreement that such Holder may have under applicable Law. In addition, each Holder agrees not to demand or commence any appraisal proceeding under Section 262 of the DGCL with respect
to such Holder’s Subject Shares.
Section 4.06 Disclosure. Each Holder hereby authorizes the Company, Parent and Merger Sub to publish and disclose in any announcement or disclosure required by the SEC and in the Proxy Statement
and the filings required under applicable Law in connection with the Merger and any transactions contemplated by the Merger Agreement, each Holder’s identity and ownership of the Subject Shares and the nature of each Holder’s obligations under
this Agreement after providing each Holder with a reasonable opportunity to review and approve (such approval not to be unreasonably withheld, conditioned or delayed) such publication or disclosure prior to any such publication or disclosure.
Parent hereby authorizes each Holder to disclose in any disclosure required by any Governmental Authority Parent’s identity and the nature of Parent’s obligations under this Agreement. Parent will not make any other disclosures regarding any
Holder in any press release or otherwise without the prior written consent of such Holder (such approval not to be unreasonably withheld, conditioned or delayed).
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Section 4.07 Fiduciary Responsibilities. Notwithstanding any provision of this Agreement to the contrary, this Agreement shall apply to each Holder solely in its capacity as a holder of Shares and
not in any other capacity, and nothing in this Agreement shall limit, restrict or affect the rights, obligations and actions of (a) such Holder in such Holder’s capacity as an officer, director or employee of the Company and (b) any officer or
director or designee of the Holders or their Affiliates serving on the Board of Directors of the Company from taking any action in his or her capacity as a director or officer of the Company or voting or providing written consent as a director of
the Company in his or her sole discretion on any matter, whether in connection with the Merger Agreement or otherwise, and no action or omissions by any such Persons in his or her capacity as a director or officer of the Company shall be deemed
to constitute a breach of any provision of this Agreement. However, for the avoidance of doubt, except as expressly provided otherwise in this Agreement, an Adverse Recommendation Change shall not relieve any such Holder of any obligation
hereunder with respect to the Shares beneficially owned by such Holder or any New Shares.
Section 4.08 Additional Existing Shares. Each Holder shall provide as promptly as reasonably practicable written notice to Parent of any additional Shares of which such Holder becomes the
“beneficial owner” after the date hereof and during the term of this Agreement. Each Holder agrees that New Shares shall be subject to the terms and conditions of this Agreement to the same extent as if such New Shares constituted Existing
Shares on the date hereof.
Section 4.09 No Participation in Litigation. Each Holder hereby agrees not to commence or participate in, and agrees to use reasonable best efforts to, if requested by Parent, take all actions
necessary to opt out of any class in any class action with respect to, any claim, action, litigation or proceeding, derivative or otherwise, against Parent, Merger Sub, the Company or any of their respective Affiliates or any of the Affiliated
Professional Entities relating to the negotiation, execution or delivery of this Agreement or the Merger Agreement or the consummation of the Merger, including any claim, action, litigation or proceeding (a) challenging the validity, or seeking
to enjoin the operation, of any provision of this Agreement or the Merger Agreement or (b) alleging a breach of any fiduciary duty of any members of the Board of Directors of the Company in connection with the Merger Agreement or the transactions
contemplated thereby; provided, however, that the foregoing shall not restrict such Holder from enforcing any of his, her or its rights under the Merger Agreement or this Agreement.
ARTICLE V
General Provisions
Section 5.01 Notices. All notices, requests and other communications to any party hereunder shall be in writing and shall be deemed given if delivered personally, emailed (unless an automated
message indicating non-delivery is received with respect thereto) or sent by nationally recognized overnight courier (providing proof of delivery) to the parties at the following addresses:
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If to Parent, to:
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c/o Universal Health Services, Inc.
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367 South Gulph Road
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King of Prussia, PA 19406
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Attention: Matthew D. Klein, Senior Vice President and General Counsel
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Email: [*]
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with a copy (which will not constitute notice) to:
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McDermott Will & Schulte LLP
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444 West Lake Street, Suite 4000
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Chicago, IL 60606
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Attention: Eric Orsic
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Email: eorsic@mcdermottlaw.com
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If to any Holder, to:
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The address set forth next to such Holder on Schedule A
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with a copy (which will not constitute notice) to:
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Cravath, Swaine & Moore LLP
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Two Manhattan West
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375 Ninth Avenue
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New York, NY 10001
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Attention:
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Minh Van Ngo |
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| Andrew M. Wark | ||
| Email: | mngo@cravath.com | |
| awark@cravath.com | ||
or such other address or email address as such party may hereafter specify by like notice to the other parties hereto. All such notices, requests and
other communications shall be in writing and shall be deemed to have been received on the earliest of (i) the date when personally delivered, (ii) the date when transmitted via electronic e-mail address (unless an automated message indicating
non-delivery is received with respect thereto) or (iii) the next succeeding Business Day following the day on which the same has been delivered prepaid to a reputable national overnight air courier service.
Section 5.02 Severability. If any term, condition or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by
any rule of Law or public policy (as determined by a final judgement), all other terms, provisions and conditions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any term, condition or other
provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by
applicable Law.
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Section 5.03 Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto, in whole or in part, by operation of law
or otherwise, except (a) by any Holder (i) with the prior written consent of Parent or (ii) to a transferee of such Holder’s Shares in accordance with Section 4.03, or (b) by Parent (i) to any of Parent’s Affiliates or (ii) with the prior
written consent of a majority (in terms of aggregate voting power) of the Subject Shares of the Holders; provided, that, in the case of clauses (a) and (b), any such assignment will not relieve the assigning party of its
obligations under this Agreement. Any assignment in contravention of the preceding sentence shall be null and void ab initio.
Section 5.04 Entire Agreement; No Third Party Beneficiaries. This Agreement (including Schedule A and the other documents delivered pursuant hereto) constitutes the entire agreement and
supersedes all prior representations, conditions, agreements and understandings, both written and oral, among the parties hereto and their Affiliates, or any of them, with respect to the subject matter hereof. This Agreement is not intended to
confer upon any Person, other than the parties hereto, any rights or remedies hereunder, including the right to rely upon the representations and warranties set forth herein; provided, that, the Company shall be a third-party beneficiary
of, and entitled to enforce the provisions of, Section 4.09.
Section 5.05 Governing Law. This Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement, shall be governed by,
and construed in accordance with, the Laws of the State of Delaware applicable to contracts executed in and to be performed entirely within that State, regardless of the Laws that might otherwise govern under any applicable conflict of Laws
principles.
Section 5.06 Counterparts. This Agreement may be executed in one or more counterparts (including by electronic signature, PDF or electronic mail with .pdf attachments), each of which shall be
deemed to be an original but all of which taken together shall constitute one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other parties
hereto.
Section 5.07 Jurisdiction; Service of Process. The parties hereto agree that any action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated by this Agreement shall be brought exclusively in the Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware declines to accept jurisdiction over
any action or proceeding, any state or federal court within the State of Delaware). Each party hereto hereby irrevocably submits to the exclusive jurisdiction of each such court in respect of any legal or equitable action, suit or proceeding
arising out of or relating to this Agreement or the transactions contemplated by this Agreement, or relating to enforcement of any of the terms of this Agreement, and hereby irrevocably waives, and agrees not to assert, as a defense in any such
action, suit or proceeding, any claim that it is not subject personally to the jurisdiction of such court, that the action, suit or proceeding is brought in an inconvenient forum, that the venue of the action, suit or proceeding is improper or
that this Agreement or the transactions contemplated by this Agreement may not be enforced in or by such courts. Each party hereto agrees that notice or the service of process upon such party in any action, suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated by this Agreement shall be properly served or delivered if delivered in the manner contemplated by Section 5.01 or in any other manner permitted by law.
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Section 5.08 Waiver of Jury Trial. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
THEREFORE SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) SUCH PARTY MAKES SUCH WAIVER VOLUNTARILY
AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 5.08.
Section 5.09 Specific Performance.
(a) The parties hereto
acknowledge and agree that, in the event of any breach of this Agreement, irreparable harm would occur that monetary damages could not make whole. It is accordingly agreed that (i) each party hereto shall be entitled, in addition to any other
remedy to which it may be entitled at law or in equity, to compel specific performance to prevent or restrain breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions hereof in any action without the
posting of a bond or undertaking, and (ii) the parties hereto shall, and hereby do, waive, in any action for specific performance, the defense of adequacy of a remedy at law and any other objections to specific performance of this Agreement,
including any requirement for the securing or posting of any bond in connection with such remedy.
(b) Notwithstanding the parties’ rights to specific performance pursuant to Section 5.09(a), each party may pursue any other remedy available to it at law or in equity, including monetary
damages. Any and all remedies herein expressly conferred upon a party hereto will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the exercise by a party hereto of any
one remedy will not preclude the exercise of any other remedy.
Section 5.10 Amendment; Waiver. This Agreement may not be amended except by an instrument in writing signed by the parties hereto prior to the Effective Time. The failure of any party to assert any
rights or remedies under this Agreement will not constitute a waiver of such rights or remedies. Any extension or waiver with respect to this Agreement will be valid only if set forth in an instrument in writing signed by the party or parties
to be bound thereby.
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Section 5.11 Expenses. Except as set forth herein or the Merger Agreement, each of the parties shall be responsible for its own fees and expenses (including the fees and expenses of investment
bankers and accountants) in connection with the entering into and performance under this Agreement and the consummation of the transactions contemplated hereby.
Section 5.12 Further Assurances. Each Holder hereby covenants and agrees to execute and deliver any additional documents reasonably necessary or desirable to carry out the purpose and intent of
this Agreement and the Merger Agreement.
Section 5.13 Termination. This Agreement and all obligations of the parties hereto hereunder shall automatically terminate, without further action by any party hereto, upon the earliest of (a) the
Effective Time, (b) the valid termination of the Merger Agreement in accordance with its terms, (c) with respect to any Holder, the mutual written agreement of such Holder and Parent and (d) the entry, without the prior written consent of the
Holders, into any material modification or amendment to the Merger Agreement that reduces the amount, changes the form or otherwise adversely affects the consideration payable to the Holders pursuant to the Merger Agreement as in effect on the
date hereof (the date on which termination would occur pursuant to any of the foregoing clauses (a) through (d), the “Termination Date”). In the event of any such termination of this Agreement, this Agreement shall
forthwith become null and void and have no effect, without any liability or obligation on the part of Parent or the applicable Holders, other than liability for any knowing intentional and material breach of this Agreement prior to such
Termination Date; provided, that the provisions set forth in Article V shall survive the termination of this Agreement.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement, all as of the date first written above.
| UNIVERSAL HEALTH SERVICES, INC. | ||||
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By:
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/s/ Steve Filton | |||
| Name: | Steve Filton | |||
| Title: | Chief Financial Officer | |||
[Signature Page to Voting Agreement]
|
HOLDERS:
QUMRA CAPITAL II, L.P.
BY: QUMRA CAPITAL GP II, L.P., ITS GENERAL PARTNER,
BY: QUMRA CAPITAL ISRAEL I LTD., ITS GENERAL PARTNER
BY: EREZ SHACHAR, ITS MANAGING PARTNER
|
||||
|
By:
|
/s/ Erez Shachar | |||
| Name: | Erez Shachar | |||
| |
||||
| EREZ SHACHAR |
||||
|
By:
|
/s/ Erez Shachar | |||
| Name: | Erez Shachar | |||
[Signature Page to Voting Agreement]
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Mar 9, 2026
[8-K] Talkspace, Inc. Reports Material Event