REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as of
October 17, 2001, between WellPoint Health Networks Inc., a Delaware corporation
(the "Company"), and The Missouri Foundation For Health, a Missouri
not-for-profit corporation (the "Stockholder").
ARTICLE I
DEFINITIONS
SECTION 1.1. Defined Terms. As used herein, the following Certain terms
shall have the following meanings:
"Affiliate" means, with respect to any specified Person, any other Person
that directly or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with, such specified Person, for so
long as such Person remains so associated to the specified Person.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated, whether voting or non-voting) of capital
stock or equivalent ownership interests in or issued by the Company.
"Common Stock" means the common stock, par value $0.01 per share, of the
Company.
"Control" (including the terms "controlled by" and "under common control
with"), with respect to the relationship between or among two or more Persons,
means the possession, directly or indirectly, of the power to direct or cause
the direction of the affairs or management of a Person, whether through the
ownership of voting securities, as trustee or executor, by contract or
otherwise.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"Indemnified Parties" has the meaning assigned to such term in Section
3.4(a).
"Law" means any statute, law, ordinance, regulation, rule, code, order or
other requirement or rule of law.
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"Merger Agreement" means that certain Agreement and Plan of Merger, dated
October 17, 2001, among Purchaser, RWP Acquisition Corp., a Delaware corporation
and RightCHOICE Managed Care, Inc., a Delaware corporation.
"NASD" means the National Association of Securities Dealers, Inc.
"NASDAQ" means the National Association of Securities Dealers Automated
Quotation System.
"Person" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivisions thereof.
"Registrable Securities" means the Common Stock and any additional Capital
Stock of the Company issued in respect of the Common Stock pursuant to any stock
dividend, reclassification or other pro rata distribution by the Company. As to
any particular Registrable Securities, such Registrable Securities shall cease
to be Registrable Securities when (i) such securities cease to be held by the
Stockholder, (ii) a registration statement with respect to the sale by the
Stockholder of such securities shall have become effective under the Securities
Act and such securities shall have been disposed of in accordance with such
registration statement, (iii) such securities shall have been distributed to the
public pursuant to Rule 144 or (iv) such securities shall have ceased to be
outstanding.
"Registration Expenses" means any and all expenses incident to performance
of or compliance with Article II, including (i) all SEC and any securities
exchange or NASD registration and filing fees, (ii) all fees and expenses of
complying with securities or blue sky laws (including the reasonable fees and
disbursements of counsel for the underwriters in connection with blue sky
qualifications of the Registrable Securities) and (iii) underwriting discounts
and commissions and transfer taxes, if any.
"Rule 144" means Rule 144 (or any successor provision) under the Securities
Act.
"SEC" means the U.S. Securities and Exchange Commission or any other
federal agency then administering the Securities Act or the Exchange Act and
other federal securities laws.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
SECTION 1.2. Other Definitional Provisions. (a) The words "hereof,"
"herein" 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, and Article and Section references are to this Agreement unless
otherwise specified.
(b) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
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ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1. Resale Registration.
The Company agrees to register for resale on the Form S-4 (as defined in
the Merger Agreement) or, at the option of the Company, another registration
form effective as of the Effective Time (as defined in the Merger Agreement) all
of the shares of Common Stock received by Stockholder in the Merger (as defined
in the Merger Agreement). The Company shall use its commercially reasonable
efforts to maintain the effectiveness of and to amend and supplement such
registration statement as required by applicable securities laws for a period
ending 180 days from the Effective Time (which period shall be tolled during the
discontinuance of such registration pursuant to the following sentence). The
registration statement shall register hedging transactions (including short
sales) as well as resales made within 180 days after the Effective Time by the
counterparty to such hedging transactions. At any time when the registration
statement effected pursuant to this Section 2.1 is effective that the Company
becomes aware that the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, then, to the extent that the amendment or supplement to such
prospectus necessary to correct such untrue statement of a material fact or
omission to state a material fact would require disclosure of material
information which the Company has a bona fide business purpose for preserving as
confidential and the Company provides the Stockholder written notice thereof
promptly after the Company makes such determination, the Stockholder shall
suspend sales of Registrable Securities pursuant to such registration statement
and the Company shall not be required to comply with its obligations under
Section 3.1(d) until the date upon which such material information is disclosed
to the public or ceases to be material.
SECTION 2.2. Piggyback Registration
(a) If at any time and from time to time the Company proposes to file a
registration statement under the Securities Act with respect to an offering of
securities of the Company for its own account or for the account of another
Person (other than a registration statement on Form S-4 or S-8 (or any successor
form that may be adopted by the Commission)), the Company shall give written
notice of such proposed filing to the Stockholder at the address set forth in
the share register of the Company as soon as is reasonably practicable (but in
no event less than ten (10) business days before the anticipated filing date),
undertaking to provide the Stockholder the opportunity to register on the same
terms and conditions such number of shares of Registrable Securities as the
Stockholder may request (a "Piggyback Registration"). The Stockholder will have
ten (10) business days after receipt of such notice to notify the Company as to
whether it wishes to participate in a Piggyback Registration; provided that
should the Stockholder fail to provide timely notice to the Company, the
Stockholder will forfeit any rights to include its Registrable Securities in
such Piggyback Registration. If the registration statement is filed on the
behalf of a Person other than the Company, the Company will use its reasonable
best efforts to have the shares of Registrable Securities that the Stockholder
wishes to
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sell included in the registration statement. If the Company or the Person for
whose account such offering is being made shall determine in its sole discretion
not to register or to delay the proposed offering, the Company may, at its
election, provide written notice of such determination to the Stockholder and
(i) in the case of a determination not to effect the proposed offering, shall
thereupon be relieved of the obligation to register such Registrable Securities
in connection therewith, and (ii) in the case of a determination to delay a
proposed offering, shall thereupon be permitted to delay registering such
Registrable Securities for the same period as the delay in respect of the
proposed offering. As between the Company and the Stockholder, the Company shall
be entitled to select the underwriters in connection with any Piggyback
Registration and Stockholder shall be required to sign an underwriting agreement
containing usual and customary terms in the form negotiated by the Company and
the underwriter.
(b) If the managing underwriter advises the Company that the inclusion of
Registrable Securities requested to be included in the Piggyback Registration by
Stockholder would be likely to have an adverse effect on the price, timing or
distribution of the other securities to be offered in such offering, the Company
will be obligated to include in such registration statement, as to the
Stockholder only a portion of the shares the Stockholder has requested be
registered equal to (i) the ratio which Stockholder's requested shares bears to
the total number of shares requested to be included in such registration
statement by all Persons (other than the Person or Persons initiating such
registration request) who have the contractual right to request that their
shares be included and who have requested their shares be included multiplied by
(ii) the total number of shares of the selling stockholders that the managing
underwriter believes can be sold in such offering. If the Company initiated the
registration, then the Company may include all of its securities in such
registration statement before any such Stockholder's requested shares are
included. If as a result of the provisions of this Section 2.2(b) the
Stockholder shall not be entitled to include all Registrable Securities in a
registration that Stockholder has requested to be so included, the Stockholder
may withdraw such request to include Registrable Securities in such registration
statement prior to its effectiveness. Stockholder shall pay (i) fees and
disbursements of its counsel, and (ii) its pro-rata share of any Registration
Expenses pursuant to any Piggyback Registration in which it participates and has
not withdrawn; provided, that upon withdrawal, the Stockholder shall pay its
pro-rata share of any Registration Expenses which have accrued prior to the time
of such withdrawal; provided, further, in the event that the Stockholder was not
permitted to include any shares in such Piggyback Registration as a result of
the application of this Section 2.2(b), the Stockholder shall be entitled to a
refund from the Company of the Registration Expenses previously paid by the
Stockholder with respect to such Piggyback Registration.
ARTICLE III
REGISTRATION PROCEDURES
SECTION 3.1. Registration Procedures. If and whenever the Company is
required to use its commercially reasonable efforts to effect or cause the
registration of any Registrable Securities under the Securities Act as provided
in this Agreement, the Company will, as expeditiously as practicable:
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(a) furnish to the Stockholder such number of copies of such registration
statement and of each amendment and supplement thereto (in each case including
all exhibits filed therewith, including any documents incorporated by
reference), such number of copies of the prospectus included in such
registration statement (including each preliminary prospectus and summary
prospectus), in conformity with the requirements of the Securities Act, and such
other documents as the Stockholder may reasonably request in order to facilitate
the disposition of the Registrable Securities by the Stockholder;
(b) use its commercially reasonable efforts to register or qualify such
Registrable Securities covered by such registration in such jurisdictions as the
Stockholder shall reasonably request, and do any and all other acts and things
which may be reasonably necessary or advisable to enable the Stockholder to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by the Stockholder, except that the Company shall not for any such purpose
be required to qualify generally to do business as a foreign corporation in any
jurisdiction where, but for the requirements of this subsection (b), it would
not be obligated to be so qualified, to subject itself to taxation in any such
jurisdiction or to consent to general service of process in any such
jurisdiction;
(c) use its commercially reasonable efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental authorities as may be necessary to enable
the Stockholder to consummate the disposition of such Registrable Securities;
(d) notify the Stockholder, at any time when a prospectus relating thereto
is required to be delivered under the Securities Act, of the Company's becoming
aware that the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing, and at
the request of the Stockholder (except to the extent otherwise permitted by the
terms of this Agreement), prepare and furnish to the Stockholder a reasonable
number of copies of an amended or supplemental prospectus as may be necessary so
that such prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances then
existing;
(e) obtain a "cold comfort" letter or letters from the Company's
independent public accountants in customary form and covering matters of the
type customarily covered by "cold comfort" letters as the Stockholder shall
reasonably request;
(f) notify the Stockholder and the managing underwriter or agent,
immediately, and confirm the notice in writing (i) when the registration
statement, or any post-effective amendment to the registration statement, shall
have become effective, or any supplement to the prospectus or any amendment to
the prospectus shall have been filed, (ii) of the receipt of any comments from
the SEC, (iii) of any request of the SEC to amend the registration statement or
amend or supplement the prospectus or for additional information, and (iv) of
the issuance by the SEC of any stop order suspending the effectiveness of the
registration statement or of any order preventing or suspending the use of any
preliminary prospectus, or of
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the suspension of the qualification of the registration statement for offering
or sale in any jurisdiction, or of the institution or threatening of any
proceedings for any of such purposes;
(g) make every reasonable effort to prevent the issuance of any stop order
suspending the effectiveness of the registration statement or of any order
preventing or suspending the use of any preliminary prospectus and, if any such
order is issued, to obtain the withdrawal of any such order at the earliest
possible moment;
(h) cooperate with the Stockholder and the managing underwriter or agent,
if any, to facilitate the timely preparation and delivery of certificates (not
bearing any restrictive legends) representing securities to be sold under the
registration statement, and enable such securities to be in such denominations
and registered in such names as the managing underwriter or agent, if any, or
such sellers may request; and
(i) cooperate with the Stockholder and each underwriter or agent
participating in the disposition of such Registrable Securities and their
respective counsel in connection with any filings required to be made with any
securities exchange and/or the NASD.
SECTION 3.2. Information Supplied. The Company may require the Stockholder
to furnish information regarding the Stockholder and pertinent to the disclosure
requirements relating to the registration and the distribution of such
securities as the Company may from time to time reasonably request in writing.
SECTION 3.3. Restrictions on Disposition. The Stockholder agrees that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 3.1(d), the Stockholder shall forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until the Stockholder's receipt of the
copies of the supplemented or amended prospectus contemplated by Section 3.1(d),
and, if so directed by the Company, the Stockholder shall deliver to the Company
all copies then in the Stockholder's possession of the prospectus covering such
Registrable Securities current at the time of receipt of such notice.
SECTION 3.4. Indemnification. (a) In the event of any registration of any
securities of the Company under the Securities Act pursuant to Article II, the
Company shall, and it hereby does, indemnify and hold harmless, to the extent
permitted by Law, the Stockholder, and its directors, officers and employees,
and each other Person, if any, who controls the Stockholder within the meaning
of the Securities Act (collectively, the "Indemnified Parties"), against any and
all losses, claims, damages or liabilities, joint or several, actions or
proceedings (whether commenced or threatened) in respect thereof ("Claims") and
expenses (including reasonable attorney's fees and reasonable expenses of
investigation) to which such Indemnified Party may become subject under the
Securities Act, common Law or otherwise, insofar as such Claims or expenses
arise out of, relate to or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such securities were registered under the Securities Act, any
preliminary, final or summary prospectus contained therein, or any amendment or
supplement thereto, or (ii) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein (in the case of a prospectus, in light of the circumstances under which
they
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were made) not misleading; provided, that the Company shall not be liable
to any Indemnified Party in any such case to the extent that any such Claim or
expense arises out of, relates to or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement or amendment or supplement thereto or in any such
preliminary, final or summary prospectus in reliance upon and in conformity with
information furnished by any Indemnified Party to the Company in writing for use
therein; and, provided, further, that the Company will not be liable in any such
case to the extent, but only to the extent, that the foregoing indemnity with
respect to any untrue statement contained in or omitted from a registration
statement or the prospectus shall not inure to the benefit of any party (or any
Person controlling such party) who is obligated under applicable securities laws
and the rules of any applicable exchange or the NASD to deliver a prospectus in
transactions in a security as to which a registration statement has been filed
pursuant to the Securities Act and from whom the Person asserting any such
Claims purchased any of the Registrable Securities to the extent that it is
finally judicially determined that such Claims resulted solely from the fact
that such party sold Registrable Securities to a Person to whom there was not
sent or given, at or prior to the written confirmation of such sale, a copy of
the registration statement or the prospectus, as amended or supplemented, and
(A) the Company shall have previously and timely furnished sufficient copies of
the registration statement or prospectus, as so amended or supplemented, to such
party in accordance with this Agreement and (B) the registration statement or
prospectus, as so amended or supplemented, would have corrected such untrue
statement or omission of a material fact. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of any
Indemnified Party and shall survive the transfer of securities by any seller.
(b) The Company may require, as a condition to including any Registrable
Securities in any registration statement filed in accordance with Section 2.1
that it shall have received an undertaking reasonably satisfactory to it from
the Stockholder or any underwriter, to indemnify and hold harmless (in the same
manner and to the same extent as set forth in Section 3.4(a)) the Company or any
underwriter, as the case may be, with respect to any untrue statement or alleged
untrue statement in or omission or alleged omission from such registration
statement, any preliminary, final or summary prospectus contained therein, or
any amendment or supplement thereto, if such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with information furnished by any Indemnified Party to the Company in
writing for use therein. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company, the
Stockholder or any of their respective Affiliates, directors, officers or
controlling Persons and shall survive the transfer of securities by the
Stockholder.
(c) Promptly after receipt by an indemnified party hereunder of written
notice of the commencement of any action or proceeding with respect to which a
claim for indemnification may be made pursuant to this Section 3.4, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action or proceeding; provided, however, that the failure of the
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under Section 3.4, except to the extent
that the indemnifying party is materially prejudiced by such failure to give
notice. In case any such action or proceeding is brought against an indemnified
party, unless in such indemnified party's reasonable judgment (after
consultation with legal counsel) a conflict of interest between such indemnified
and
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indemnifying parties may exist in respect of such action or proceeding, the
indemnifying party will be entitled to participate in and to assume the defense
thereof (at its expense), jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation; provided that, in
the event, however, that the indemnifying party declines or fails to assume the
defense of the action or proceeding or to employ counsel reasonably satisfactory
to the indemnified party, in either case within a 30-day period, then such
indemnified party may employ counsel to represent or defend it in any such
action or proceeding and the indemnifying party shall pay the reasonable fees
and disbursements of such counsel or other representative as incurred; provided,
however, that the indemnifying party shall not be required to pay the fees and
disbursements of more than one counsel for all indemnified parties in any
jurisdiction in any single action or proceeding. No indemnifying party will
settle any such action or proceeding or consent to the entry of any judgment
without the prior written consent of the indemnified party, unless such
settlement or judgment (i) includes as an unconditional term thereof the giving
by the claimant or plaintiff of a release to such indemnified party from all
liability in respect of such action or proceeding and (ii) does not involve the
imposition of equitable remedies or the imposition of any obligations on such
indemnified party and does not otherwise adversely affect such indemnified
party, other than as a result of the imposition of financial obligations for
which such indemnified party will be indemnified hereunder. No indemnified party
will settle any such action or proceeding or consent to the entry of any
judgment without the prior written consent of the indemnifying party (such
consent not to be unreasonably withheld).
(d) (i) If the indemnification provided for in this Section 3.4 from the
indemnifying party is unavailable to an indemnified party hereunder in respect
of any Claim or expenses referred to herein, then the indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such Claim or expenses in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and indemnified party in connection with the actions which
resulted in such Claim or expenses, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified
party shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party under this Section 3.4(d) as a result of the Claim and
expenses referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such party in connection with any action or
proceeding.
(ii) The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 3.4(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in Section 3.4(d)(i). No Person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
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(e) The obligations of the parties under this Section 3.4 shall be in
addition to any liability which any party may otherwise have to any other party.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. Transfer Restrictions. Notwithstanding anything to the
contrary herein, the Stockholder shall not transfer any Capital Stock of the
Company in violation of the Company's certificate of incorporation.
SECTION 4.2. Effectiveness and Termination. The provisions of Section 2.2
hereof shall not be effective until the Effective Time (as defined in the Merger
Agreement), and this Agreement shall be terminated if the Merger Agreement is
terminated without the consummation of the Merger. This Agreement shall
terminate at the earlier of (a) one year after the Effective Time and (b) the
date on which the number of shares of Registrable Securities then held by the
Stockholder, together with the number of Registrable Securities sold by the
Stockholder within the then preceding three months, is less than the greater of
(i) the amount of securities set forth in Rule 144(e)(1)(i) or (ii) the amount
of securities set forth in Rule 144(e)(1)(ii). No such termination shall relieve
either party from any liability for the breach of any of the agreements set
forth in this Agreement.
SECTION 4.3. Amendments and Waivers. Except as otherwise provided herein,
no modification, amendment or waiver of any provision of this Agreement shall be
effective against either party hereto unless such modification, amendment or
waiver is approved in writing by such party. The failure of a party to enforce
any of the provisions of this Agreement shall in no way be construed as a waiver
of such provisions and shall not affect the right of such party thereafter to
enforce each and every provision of this Agreement in accordance with its terms.
SECTION 4.4. Successors, Assigns and Third Party Beneficiaries; No
Assignment. This Agreement shall bind and inure to the benefit of and be
enforceable by the parties hereto and their respective successors and permitted
assigns. Neither this Agreement nor any right, remedy, obligation or liability
arising hereunder or by reason hereof shall be assignable by either party
without the prior written consent of the other party.
SECTION 4.5. Notices. All notices required or permitted hereunder shall be
in writing and shall be deemed effectively given (a) upon personal delivery to
the party to be notified, (b) when sent by confirmed facsimile if sent during
normal business hours of the recipient or, if not, then on the next business
day, (c) five days after having been sent by registered or certified mail,
return receipt requested, postage prepaid or (d) one business day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt. All communications shall be sent as
follows:
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(i) to the Company at:
WellPoint Health Networks Inc.
0 XxxxXxxxx Xxx
Xxxxxxxx Xxxx, XX 00000
Attn: General Counsel
Telecopy No.: (000) 000-0000
With a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
(ii) to The Stockholder at:
The Missouri Foundation For Health
000 X. Xxxxxxxx, 00xx Xx.
Xx. Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Telecopy No.:
with a copy to:
Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP
000 Xxxxx Xxxxxx, Xxxxx 0000
Xx. Xxxxx, XX 00000
Attn: Xxxx X. Short
Telecopy No: (000) 000-0000
(iii) to such other address for either party as it may specify by like
notice.
SECTION 4.6. Further Assurances. At any time or from time to time after the
date hereof, the parties agree to cooperate with each other, and at the request
of any other party, to execute and deliver any further instruments or documents
and to take all such further action as the other party may reasonably request in
order to evidence or effectuate the consummation of the transactions
contemplated hereby and to otherwise carry out the intent of the parties
hereunder.
SECTION 4.7. Entire Agreement. This document embodies the complete
agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersedes any prior understandings, agreements or
representations by or between the parties, written or oral, that may have
related to the subject matter hereof in any way.
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SECTION 4.8. Delays or Omissions. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to a party, upon any breach,
default or noncompliance by the other party under this Agreement, shall impair
any such right, power or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of or in
any similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent or approval of any kind or character on
the part of a party hereto of any breach, default or noncompliance under this
Agreement or any waiver on such party's part of any provisions or conditions of
this Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, by Law, or otherwise afforded to a party, shall be cumulative and not
alternative.
SECTION 4.9. Governing Law; Jurisdiction; Waiver of Jury Trial. This
Agreement shall be governed in all respects by the Laws of the State of
Delaware. Any suit, action or proceeding with respect to this Agreement may be
brought in any court or before any similar authority in a federal court of
competent jurisdiction located in the State of New York, and the parties hereto
hereby submit to the non-exclusive jurisdiction of such court for the purpose of
such suit, proceeding or judgment. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING IN
RELATION TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
SECTION 4.10. Severability. In case any provision of this Agreement shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 4.11. Enforcement. Each party hereto acknowledges that money
damages would not be an adequate remedy in the event that any of the covenants
or agreements in this Agreement are not performed in accordance with its terms,
and it is therefore agreed that in addition to and without limiting any other
remedy or right it may have, the non-breaching party will have the right to an
injunction, temporary restraining order or other equitable relief in any court
of competent jurisdiction enjoining any such breach and enforcing specifically
the terms and provisions hereof.
SECTION 4.12. Titles and Subtitles. The titles of the sections and
subsections of this Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.
SECTION 4.13. Counterparts; Facsimile Signatures. This Agreement may be
executed in any number of counterparts, each of which shall be an original, but
all of which together shall constitute one instrument. This Agreement may be
executed by facsimile signature(s).
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IN WITNESS WHEREOF, the parties hereto have executed this REGISTRATION
RIGHTS AGREEMENT as of the date set forth in the first paragraph hereof.
WELLPOINT HEALTH NETWORKS INC.
By:______________________________
Name:
Title:
THE MISSOURI FOUNDATION FOR HEALTH
By:______________________________
Name:
Title:
