Exhibit 2.3
-----------
TRANSFER AGREEMENT
------------------
THIS TRANSFER AGREEMENT (the "Agreement") is made as of , 2002,
--------- -------- ---
by and between [New WellChoice], a Delaware corporation ("Transferee"), and
----------
Empire HealthChoice, Inc., a New York corporation ("Transferor").
----------
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Transferor desires to transfer and distribute to Transferee certain
leases, furniture and equipment, vendor and license agreements, case, cash
equivalents and other assets of Transferor as specified (by item or category)
on Schedule A hereto (the "Specified Assets"), and Transferee desires to accept
---------- ----------------
the transfer and distribution of the Specified Assets and to assume all
obligations of Transferor in respect of such Specified Assets, including,
without limitation, the obligations specified (by item or category) on such
Schedule A (the "Specified Obligations"); and
---------- ---------------------
WHEREAS, the Specified Assets and the Specified Obligations shall include,
to the extent specified on Schedule A, assets and liabilities distributed to
----------
Transferor by [Old WellChoice] in connection with the liquidation and
dissolution of [Old WellChoice]; and
WHEREAS, the value of the Specified Assets and Specified Obligations for
purposes of the distribution to and assumption by [New WellChoice] as
contemplated by this Agreement is as set forth on Schedule A; and
----------
WHEREAS, this Agreement is the "Transfer Agreement" referred to in that
certain Amended Plan of Conversion of Empire HealthChoice, Inc. filed with the
New York Department of Insurance on September 26, 2002 (the "Plan").
----
NOW, THEREFORE, Transferor and Transferee agree as follows:
1. The transactions contemplated by this Agreement shall be deemed to have
been effected as of the Conversion Effective Date (as defined in the Plan).
2. Transferor hereby transfers, distributes, assigns, delivers and sets
over to Transferee, all of Transferor's right, title and interest in, to and
under the Specified Assets and Transferee hereby accepts from Transferor all
right, title and interest of Transferor in, to and under the Specified Assets.
3. From time to time, at the request of Transferee, and without further
consideration or cost or expense to Transferor, Transferor shall do, execute,
acknowledge and deliver, or will cause to be done, executed, acknowledged and
delivered, all such further acts, deeds, assignments, transfers, conveyances and
assurances that may reasonably be required for the transfer, assignment,
delivery, assurance and confirmation to Transferee of the Specified Assets.
4. Transferee hereby absolutely and irrevocably assumes and agrees to pay,
keep, perform, observe, discharge, defend and be solely liable and responsible
for the Specified Obligations.
5. Transferor hereby constitutes and appoints Transferee the true and
lawful attorney of Transferor in the name of Transferee or in the name of
Transferor, but by and on behalf of and for the sole benefit of Transferee, to
demand and receive from time to time any and all of the Specified Assets, or to
receive, collect, or enforce any right, title, benefit or interest of any kind
in or to the Specified Assets. Without limitation of the foregoing, Transferor
hereby authorizes Transferee to endorse or assign any instrument, contract or
chattel paper relating to the Specified Assets. Transferee agrees that the
foregoing appointment made and the powers hereby granted are coupled with an
interest and shall be irrevocable by Transferor.
6. Transferee agrees to defend, indemnify and hold harmless Transferor
and its affiliates, and, if applicable, their respective directors, officers,
agents, employees, successors and assigns from and against any and all claims,
actions, causes of action, judgments, awards, liabilities, losses, costs or
damages claimed or arising directly from (i) any Specified Obligation or
(ii) events occurring on or after the Conversion Effective Date in connection
with the Specified Assets including the use, ownership, possession, operation
or occupancy of any Specified Asset from and after the Conversion Effective
Date.
7. (a) There shall be excluded from the transactions contemplated by
this Agreement any Specified Asset which is not assignable or transferable
without the consent of any person other than the Transferor, to the extent that
such consent shall not have been given prior to the Conversion Effective Date.
(b) With respect to any Specified Asset that is not included in the
Specified Assets or transferred and assigned to Transferee effective as of the
Conversion Effective Date by reason of Section 7(a), after the Conversion
Effective Date and until any requisite consent is obtained and the foregoing
transferred and assigned to Transferee, the parties shall cooperate with each
other, upon written request, in endeavoring to obtain for Transferee, at no
cost to the Transferor, an arrangement which Transferee reasonably shall desire
designed to provide for Transferee the benefits thereof in some other manner.
8. This Agreement may be executed with counterpart signature pages or
in one or more counterparts, all of which shall be deemed one and the same
agreement of the party executing the same, and shall become effective when one
or more counterparts have been signed by each of the parties and delivered to
all the parties.
9. If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid, illegal or unenforceable, such provision
shall be ineffective to the extent, but only to the extent of, such invalidity,
illegality or unenforceability, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
10. This Agreement shall be construed, performed and enforced in
accordance with, and governed by, the laws of the State of New York, without
giving effect to the principles of conflicts of laws thereof.
11. This Agreement shall inure to the benefit of, and shall be binding
upon, the successors and assigns of the parties hereto.
[Balance of page intentionally left blank]
2
IN WITNESS WHEREOF, the undersigned have caused their duly authorized
officers to execute and deliver this Agreement on the day and year first above
written.
TRANSFEROR:
----------
EMPIRE HEALTHCHOICE, INC.
By: ___________________________________
Name:
Title:
TRANSFEREE:
----------
[NEW WELLCHOICE, INC.]
By: ___________________________________
Name:
Title:
