EXECUTION COPY
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REORGANIZATION AGREEMENT
among
CAREINSITE, INC.
and
THE HEALTH INFORMATION NETWORK CONNECTION LLC,
GNYHA MANAGEMENT CORPORATION,
EMPIRE BLUE CROSS AND BLUE SHIELD,
GROUP HEALTH INCORPORATED
and
HEALTH INSURANCE PLAN OF GREATER NEW YORK
dated as of December 31, 1999
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TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS
1.01. Certain Defined Terms...................................................2
ARTICLE II
DISTRIBUTION OF WARRANT
2.01. Distribution of Warrant.................................................3
2.02. First Closing...........................................................3
2.03. First Closing Deliveries by the Company.................................3
2.04. First Closing Deliveries by the Original Members........................4
2.05. Distribution in Liquidation of Minority Interest........................4
2.06. Second Closing..........................................................4
2.07. Further Assurances......................................................5
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
3.01. Due Organization and Authority..........................................5
3.02. Capital Stock of the Company............................................6
3.03. SEC Filings and Financial Statements; Absence of Undisclosed
Liabilities...........................................................6
3.04. No Conflict.............................................................7
3.05. Governmental Consents and Approvals.....................................7
ARTICLE IV
REPRESENTATIONS AND
WARRANTIES OF ORIGINAL MEMBERS
4.01. Organization and Authority..............................................8
4.02. No Encumbrances.........................................................8
4.03. No Conflict.............................................................8
4.04. Governmental Consents and Approvals.....................................9
4.05. Private Placement.......................................................9
Section Page
ARTICLE V
ADDITIONAL AGREEMENTS
5.01. Advisory Board..........................................................9
5.02. Registration Rights Agreement..........................................10
5.03. Amended and Restated Operating Agreement...............................10
5.04. Tax Treatment..........................................................10
5.05. Outstanding Notes......................................................10
5.06. Working Capital Loan Agreement and Promissory Note.....................10
5.07. HSR Act................................................................10
ARTICLE VI
MISCELLANEOUS
6.01. Survival of Representations and Warranties.............................11
6.02. Termination............................................................11
6.03. Expenses...............................................................11
6.04. Notices................................................................11
6.05. Headings...............................................................12
6.06. Modification; Severability.............................................12
6.07. Integration............................................................12
6.08. Assignment.............................................................12
6.09. No Third-Party Beneficiaries...........................................12
6.10. Amendment..............................................................12
6.11. Governing Law..........................................................12
6.12. Counterparts...........................................................12
6.13. Specific Performance...................................................13
6.14. Nonwaiver; Cumulative Remedies.........................................13
Schedule I.............................................................Addresses
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REORGANIZATION AGREEMENT
This REORGANIZATION AGREEMENT, dated as of December 31, 1999, among
CareInsite, Inc., a Delaware corporation (the "Company"), The Health Information
Network Connection LLC, a New York limited liability company ("THINC"), and its
four other members, Empire Blue Cross and Blue Shield, a New York not-for-profit
company ("Empire"), Group Health Incorporated, a New York corporation ("GHI"),
Health Insurance Plan of Greater New York, a New York not-for-profit corporation
("HIP") and GNYHA Management Corporation, a New York corporation ("GNYHA")
(each, an "Original Member" and collectively, the "Original Members").
W I T N E S S E T H:
WHEREAS, the Company is an Internet-based company that is developing
and intends to provide an Internet-based healthcare electronic commerce, or
e-commerce, network that links physicians, payers, suppliers and patients;
WHEREAS, THINC is an entity founded by the Original Members to
facilitate the confidential exchange of healthcare information;
WHEREAS, the Company has contributed to THINC Acquisition Corp., a
wholly owned subsidiary of the Company ("CareInsite Sub") a 0.96% interest in
THINC so that CareInsite Sub has a 0.96% interest in THINC;
WHEREAS, THINC, the Company, CareInsite Sub and the Original Members
have agreed to enter into an amended and restated operating agreement (the
"Amended and Restated Operating Agreement") in the form attached as Exhibit A,
on the date hereof, so that, among other things, the Company shall have a 95.04%
interest in THINC, CareInsite Sub shall have a 0.96% interest in THINC and each
Original Member shall have a 1% interest in THINC (the 1% interest of each
Original Member being referred to herein as its "Minority Interest");
WHEREAS, THINC is a holder of a Warrant to purchase 4,059,118 shares
of the Company's common stock ("Common Stock") dated as of January 1, 1999 (the
"Warrant");
WHEREAS, THINC shall, on the date hereof, distribute to each Original
Member and each Original Member shall accept a portion of the Warrant and, on
the date hereof, the Company shall issue to each of the Original Members (a) a
new warrant (the "Prorata New Warrant") in the form attached as Exhibit B which
provides substantially identical terms and conditions as the Warrant, including
a provision that each Original Member may effect a cashless exercise of its
respective Prorata New Warrant for 767,904 shares of Common Stock and which
represents a total number of shares equal to the shares represented by such
Original Member's pro rata portion of the Warrant and (b) a new warrant (the
"Additional New Warrant" and, together with the Prorata New Warrant, the "First
Closing Warrants") in the form attached as
Exhibit B which provides, among other things, that each Original Member may
effect a cashless exercise of its respective Additional New Warrant for 150,100
shares of Common Stock;
WHEREAS, the Company and the Original Members shall enter into a
registration rights agreement (the "Registration Rights Agreement") on the date
hereof in the form attached as Exhibit C;
WHEREAS, as soon as practicable after expiration or termination of all
applicable waiting periods under the HSR Act, THINC shall distribute to each
Original Member in liquidation of such Original Member's Minority Interest a
portion of the Warrant representing the right to purchase in a cashless exercise
100 shares of Common Stock pursuant to the terms of the Warrant;
WHEREAS, the Company has agreed to assume all of the obligations of
THINC under the working capital loan agreement between THINC and the Company
dated as of January 1, 1999 (the "Working Capital Loan Agreement") and the
promissory note between THINC and the Company dated as of December 10, 1999 (the
"Promissory Note"), as well as the obligations to repay certain loans extended
by each Original Member to THINC as set forth in Section 5.05 hereof which shall
be repaid by the Company simultaneously with the consummation of the First
Closing contemplated by this Agreement.
WHEREAS, the Company shall deliver a guaranty (each, a "Guaranty") to
each Original Member guaranteeing such Original Member's obligations under the
corporate guarantee that such Original Member delivered to Sun Data, Inc. in
February 1997 and certain related obligations.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, the parties hereby agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"Agreement" means this Reorganization Agreement, dated as of
December 31, 1999, and all amendments made hereto in accordance with
the provisions hereof.
"Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in the State of New York are
authorized or required by law or executive order to close.
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"Commission" means the Securities and Exchange Commission or
any other federal agency then administering the Securities Act (as
defined below) and other federal securities laws.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended and the rules and regulations promulgated by the Commission
thereunder.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended.
"Person" means any individual, partnership, firm, corporation,
association, trust, unincorporated organization or other entity, as
well as any syndicate or group that would be deemed to be a Person
under Section 13(d)(3) of the Exchange Act.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated by the Commission thereunder.
ARTICLE II
DISTRIBUTION OF WARRANT
SECTION 2.01. Distribution of Warrant. (a) Upon the terms and subject
to the conditions set forth in this Agreement and the Warrant, at the First
Closing (as defined below) THINC shall distribute to each Original Member and
each Original Member shall accept a portion of the Warrant representing the
right to purchase in a cashless exercise (a) 767,904 shares of Common Stock
pursuant to the Prorata New Warrant and (b) 150,100 shares of Common Stock
pursuant to the Additional New Warrant. Each Original Member's pro rata portion
of the Warrant shall be evidenced by the Prorata New Warrant and an additional
portion of the Warrant shall be evidenced by the Additional New Warrant both in
the form attached as Exhibit B.
(b) Effective immediately after the distribution of the First
Closing New Warrants, the Warrant is hereby amended so that the number of shares
of Common Stock that may be purchased thereunder shall be 177,084.
SECTION 2.02. First Closing. Upon the terms and subject to the
conditions set forth in this Agreement, the transactions provided for in Section
2.01 shall take place at a closing (the "First Closing") to be held at the
offices of Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at
10:00 A.M. New York time on January 18, 2000.
SECTION 2.03. First Closing Deliveries by the Company. At the First
Closing, the Company shall deliver to each of the Original Members:
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(a) a signature page to the Amended and Restated Operating
Agreement executed by the Company;
(b) a signature page to each of the Prorata New Warrant and
the Additional New Warrant for such Original Member executed by the
Company;
(c) a signature page to the Registration Rights Agreement
executed by the Company;
(d) payment in full of the amounts due under each of the
promissory notes listed in Section 5.05 hereof; and
(e) an executed copy of the Guaranty.
SECTION 2.04. First Closing Deliveries by the Original Members. At the
First Closing, each Original Member shall deliver to the Company:
(a) a signature page to the Amended and Restated Operating
Agreement executed by such Original Member;
(b) an executed copy of the Notice of Cashless Exercise
pursuant to each of the Prorata New Warrant and the Additional New
Warrant of such Original Member;
(c) a signature page to the Registration Rights Agreement
executed by such Original Member; and
(d) original canceled promissory note(s) listed for such
Original Member in Section 5.05 of this Agreement.
SECTION 2.05. Distribution in Liquidation of Minority Interest. Upon
the terms and subject to the conditions set forth in this Agreement, at the
Second Closing (as defined below), THINC shall distribute to each Original
Member in liquidation of such Original Member's Minority Interest and each of
the Original Members shall accept a new warrant (the "Second Closing Warrant"
and, together with the First Closing Warrants, the "New Warrants") in the form
attached as Exhibit B, which provides, among other things, that each Original
Member may effect a cashless exercise of its respective Second Closing Warrant
for 100 shares of Common Stock.
SECTION 2.06. Second Closing. (a) Upon the terms and subject to the
conditions set forth in this Agreement, the transactions provided for in Section
2.05 shall take place at a closing (the "Second Closing"), to be held at the
offices of Shearman & Sterling subject to and as soon as practicable following
but no later than five (5) Business Days following the expiration or termination
of any applicable waiting periods under the HSR Act.
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(b) If the Second Closing does not occur by March 1, 2000, then each
Original Member shall have the right to transfer or sell for 100 shares of
Common Stock such Original Member's Minority Interest to any Person designated
by the Company by written notice to such Original Member prior to such date and
at the request of such Original Member the Company shall designate and cause
such Person to purchase such Original Member's Minority Interest by March 8,
2000.
SECTION 2.07. Further Assurances. Each of the parties hereto shall use
reasonable efforts to take, or cause to be taken, all appropriate action, and to
do, or cause to be done, all things necessary, proper or advisable under
applicable laws to consummate and make effective the transactions contemplated
hereunder, including, without limitation, using reasonable efforts to obtain all
licenses, permits, consents, approvals, authorizations, qualifications and
orders of the appropriate governmental entities. Without limiting the generality
of the foregoing, the parties shall, when required in order to effect the
transactions contemplated hereunder, make all necessary filings, and thereafter
make any other required or appropriate submissions, under the HSR Act and shall
supply as promptly as practicable to the appropriate governmental entity any
additional information and documentary material that may be requested pursuant
to the HSR Act. Each of the parties shall cooperate with the others when
required in order to effect the transactions contemplated hereunder. In case, at
any time after the date hereof, any further action is necessary or desirable to
carry out the purposes of this Agreement, the proper officers and directors of
each of the parties shall use their reasonable best efforts to take all such
action.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to THINC and each of the Original
Members as follows:
SECTION 3.01. Due Organization and Authority. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all necessary power and authority to enter into
this Agreement, the Registration Rights Agreement, the Amended and Restated
Operating Agreement and each of the Guarantys, dated as of the date hereof and
the New Warrants (collectively, the "Transaction Documents") to carry out its
obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. The Company is duly licensed or qualified to do
business and is in good standing in each jurisdiction in which the properties
owned or leased by it or the operation of its business makes such licensing or
qualification necessary, except to the extent that the failure to be so licensed
or qualified would not materially and adversely affect the Company's assets,
liabilities or results of operations or prevent or delay the consummation of the
transactions contemplated by the Transaction Documents. The execution and
delivery of the Transaction Documents by the Company, the performance by the
Company of its obligations hereunder and
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thereunder and the consummation by the Company of the transactions contemplated
hereby and thereby have been duly authorized by all requisite action on the part
of the Company. The Transaction Documents have been duly executed and delivered
by the Company, and (assuming due authorization, execution and delivery by the
other parties thereto) the Transaction Documents constitute legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms.
SECTION 3.02. Capital Stock of the Company. The Common Stock to be
issued by the Company upon exercise of the New Warrants has been duly authorized
and, when issued and delivered in accordance with the terms of the New Warrants
or this Agreement, as the case may be, will have been validly issued and will be
fully paid and nonassessable, and will be free from restrictions on transfer
other than restrictions on transfer under the Transaction Documents and under
applicable state and federal securities laws. No Person has any preemptive or
similar rights with respect to the Common Stock, and neither the parties hereto
nor subsequent holders in due course of such Common Stock will be entitled to
any such preemptive or similar rights. The authorized capital stock of the
Company consists of (i) 300,000,000 shares of Common Stock and (ii) 30,000,000
shares of preferred stock, par value $0.01 per share (the "Preferred Stock"). As
of December 29, 1999, (i) 70,410,134 shares of Common Stock were issued and
outstanding, (ii) no shares of Common Stock were held in the treasury of the
Company, (iii) 8,382,512 shares of Common Stock were reserved for issuance upon
exercise of outstanding warrants, (iv) 812,184 shares of Common Stock were
reserved for issuance upon the conversion of shares of Series A Convertible
Redeemable Preferred Stock and upon exercise of other related warrants upon such
conversion, (v) 100 shares of Series A Convertible Redeemable Preferred Stock
were issued and outstanding, (vi) 100 shares of Series A Convertible Redeemable
Preferred Stock were reserved for issuance, (vii) 7,557,200 shares of Common
Stock were reserved for future issuance pursuant to the Company's stock option
plans and arrangements (with respect to which options to acquire not more than
6,568,000 shares of Common Stock are outstanding).
SECTION 3.03. SEC Filings and Financial Statements; Absence of
Undisclosed Liabilities. (a) The Company has filed all forms, reports and
documents required to be filed by it with the Commission ("SEC Reports") since
June 16, 1999. Except as set forth in the SEC Reports filed prior to the date of
this Agreement, as of the respective dates they were filed (or if amended or
superseded by a filing prior to the date of this Agreement, on the date of such
amending or superseding filing), (i) the SEC Reports were prepared in all
material respects in accordance with the requirements of the Securities Act or
the Exchange Act, as the case may be, and (ii) none of the SEC Reports contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements made
therein, in the light of the circumstances under which they were made, not
misleading. No subsidiary of the Company is required to file any form, report or
other document with the Commission.
(b) Each of the consolidated financial statements (including, in each
case, any notes and schedules thereto) contained in the SEC Reports complied as
to form with the
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applicable accounting requirements and rules and regulations of the Commission
and was prepared in accordance with United States generally accepted accounting
principles applied on a consistent basis throughout the periods indicated
(except as may be indicated in the notes thereto or, in the case of unaudited
financial statements, as permitted by the rules and regulations of the
Commission), and each presented fairly, in all material respects, the
consolidated financial position of the Company and its consolidated subsidiaries
at the respective dates thereof and their results of operations and cash flows
for the respective periods indicated therein, all in accordance with United
States generally accepted accounting principles (subject, in the case of
unaudited statements, to normal and recurring year-end adjustments which were
not and are not expected, individually or in the aggregate, to be material in
amount).
(c) Since the most recent of such financial statements, there has been
no material adverse change in the business, affairs, financial position, or
results of operations of the Company and there is no fact or circumstance
required to have been disclosed in an SEC Report that has not been so disclosed.
SECTION 3.04. No Conflict. The execution, delivery and performance of
the Transaction Documents by the Company do not and will not (a) violate,
conflict with or result in the breach of any provision of its Certificate of
Incorporation or By-laws, (b) conflict with or violate any law, governmental
regulation or governmental order applicable to it or any of its assets,
properties or businesses or (c) conflict with, result in any breach of,
constitute a default (or event which with the giving of notice or lapse of time,
or both, would become a default) under, require any consent under, or give to
others any rights of termination, amendment, acceleration, suspension,
revocation or cancellation of, or result in the creation of any lien or
encumbrance on any of the Company's assets or properties pursuant to, any note,
bond, mortgage or indenture, contract, agreement, lease, sublease, license,
permit, franchise or other instrument or arrangement to which the Company is a
party or by which any of its assets or properties is bound or affected; except
to the extent that any conflict under clause (b) or (c) above would not prevent
or delay the consummation of the transactions contemplated by this Agreement.
SECTION 3.05. Governmental Consents and Approvals. The execution,
delivery and performance of the Transaction Documents by the Company do not and
will not require any consent, approval, authorization or other order of, action
by, filing with or notification to any governmental authority, except, in the
case of the distributions at the Second Closing, such as are required by the HSR
Act.
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ARTICLE IV
REPRESENTATIONS AND
WARRANTIES OF ORIGINAL MEMBERS
Each Original Member, severally and not jointly, represents and
warrants to the Company as to such Original Member only as follows:
SECTION 4.01. Organization and Authority. Such Original Member, to the
extent it is a corporation, limited liability company, partnership or other
Person not an individual, is duly organized, validly existing and in good
standing under the laws of the state of its incorporation or organization and
has all necessary power and authority to enter into the Transaction Document to
which it is a party, to carry out its obligations hereunder and to consummate
the transactions contemplated hereby and thereby. Such Original Member is duly
licensed or qualified to do business and is in good standing in each
jurisdiction in which the properties owned or leased by it or the operation of
its business makes such licensing or qualification necessary, except to the
extent that the failure to be so licensed or qualified would not prevent or
delay the transactions contemplated by the Transaction Documents. The execution
and delivery of the Transaction Documents by such Original Member, the
performance by it of its obligations hereunder and thereunder and the
consummation by it of the transactions contemplated hereby and thereby have been
duly authorized by all requisite action on the part of such Original Member. The
Transaction Documents have been duly executed and delivered by such Original
Member, and the Transaction Documents constitute a legal, valid and binding
obligation of such Original Member, enforceable against such Original Member in
accordance with their respective terms.
SECTION 4.02. No Encumbrances. (a) Such Original Member owns such
Original Member's membership interest in THINC, the Warrant and, upon receipt,
in any Registrable Stock (as defined in the Registration Rights Agreement)
issuable to it under such Warrant, free and clear of all security interests,
liens, pledges, options, rights of first refusal and other encumbrances.
(b) Upon the distribution of the New Warrants to the Original Members
pursuant to this Agreement, such Original Member shall own the New Warrant
distributed to it free and clear of all security interests, liens, pledges,
options, rights of first refusal and other encumbrances.
(c) Such Original Member, upon execution and delivery of this
Agreement, shall own such Original Member's Minority Interest free and clear of
all security interests, liens, pledges, options, rights of first refusal and
other encumbrances.
SECTION 4.03. No Conflict. The execution, delivery and performance of
each Transaction Document by such Original Member does not and will not (a)
violate, conflict with
8
or result in the breach of any provision of such Original Member's Certificate
of Incorporation or By-laws (or similar organizational documents), to the extent
it has such, (b) conflict with or violate any law, governmental regulation or
governmental order applicable to such Original Member or any of its assets,
properties or businesses or (c) conflict with, result in any breach of,
constitute a default (or event which with the giving of notice or lapse of time,
or both, would become a default) under, require any consent under, or give to
others any rights pursuant to, any contract, agreement or arrangement by which
such Original Member is bound; except to the extent that any conflict under
clause (b) or (c) above would not prevent or materially delay the consummation
of the transactions contemplated by this Agreement.
SECTION 4.04. Governmental Consents and Approvals. The execution,
delivery and performance of the Transaction Documents by such Original Member do
not and will not require any consent, approval, authorization or other order of,
action by, filing with or notification to any governmental authority, except
such as are required by the HSR Act.
SECTION 4.05. Private Placement. (a) Such Original Member understands
that the distribution and issuance of the Common Stock pursuant to the New
Warrants hereunder is intended to be exempt from registration under the
Securities Act pursuant to Section 4(2) of the Securities Act.
(b) Such Common Stock will be acquired for such Original Member's own
account and without a view to the public distribution thereof except pursuant to
or as permitted under the Registration Rights Agreement.
(c) Such Original Member is an "accredited investor" as such term is
defined in Regulation D, as amended, under the Securities Act.
(d) Such Original Member has sufficient knowledge and experience in
financial and business matters so as to be capable of evaluating the merits and
risks of any investment in the Common Stock, and is capable of bearing the
economic risks of such investment, including a complete loss of its investment
in the Common Stock.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01. Advisory Board. The Company will promptly form an
Advisory Board (the "Advisory Board") consisting of a representative from each
of the Original Members. The Advisory Board shall meet with the Company's
management at least once each calendar quarter to discuss and provide advice on
the Company's business.
9
SECTION 5.02. Registration Rights Agreement. The Company and each of
the Original Members agree that with respect to all shares of Registrable Stock
(as defined in the Registration Rights Agreement), the Registration Rights
Agreement replaces all prior and contemporaneous agreements and supersedes any
registration rights provisions and restrictive legend provisions contained in
the New Warrants. Accordingly, without limitation of the generality of the
foregoing, upon the First Closing, Section 2.5 and Articles VII, VIII and IX of
the New Warrants shall be null and void and no longer in effect.
SECTION 5.03. Amended and Restated Operating Agreement. Effective at
the First Closing, the Original Members hereby consent to the Amended and
Restated Operating Agreement which provides, among other things, that the
Company shall have a 95.04% interest in THINC, CareInsite Sub shall have a 0.96%
interest in THINC and each Original Member shall have a 1% interest in THINC.
SECTION 5.04. Tax Treatment. The parties hereto agree (a) unless
otherwise required by law, (A) to report the transactions provided for in
Section 2.01 and 2.05 of this Agreement as the nontaxable distribution of
property pursuant to section 731 of the Internal Revenue Code of 1986, as
amended and (B) not to take any position inconsistent with the foregoing; and
(b) to cooperate with each other with respect to any challenge to such position
by any tax authority. No party to this Agreement believes that the foregoing
position is contrary to law on the date hereof.
SECTION 5.05. Outstanding Notes. The Company shall repay to each
Original Member the entire outstanding principal amount plus interest that such
Original Member advanced to THINC under the promissory notes listed below:
(a) (A) the promissory note between THINC and GHI dated July 15, 1998
and (B) the promissory note between THINC and GHI dated November 3, 1998;
(b) (A) the promissory note between THINC and Empire dated July 15,
1998 and (B) the promissory note between THINC and Empire dated October 30,
1998;
(c) (A) the promissory note between THINC and HIP dated July 15, 1998;
and (B) the promissory note between THINC and HIP dated October 30, 1998.
SECTION 5.06. Working Capital Loan Agreement and Promissory Note. On
the date hereof, the Company agrees to assume all of the obligations of THINC
under the Working Capital Loan Agreement dated as of January 1, 1999 and the
Promissory Note dated as of December 10, 1999.
SECTION 5.07. HSR Act. The Company and THINC will (i) make all
required filings under the HSR Act as soon as practicable but in no event later
than fifteen (15) days after
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the First Closing and (ii) request early termination of any waiting period in
connection with such filings.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Survival of Representations and Warranties. The
representations and warranties in this Agreement shall not survive the First
Closing except that the representations and warranties made by each Original
Member in Section 4.01, 4.02 and 4.03 and the representations and warranties
made by the Company in Section 3.01 and 3.04 shall survive until the Second
Closing.
SECTION 6.02. Termination. This Agreement may be terminated by the
mutual consent and agreement of all of the parties hereto.
SECTION 6.03. Expenses. Except as otherwise specified in the
Transaction Documents, all costs and expenses, including, without limitation,
fees and disbursements of counsel, financial advisors and accountants, incurred
in connection with this Agreement and the transactions contemplated hereby shall
be paid by the party incurring such costs and expenses, whether or not the First
Closing shall have occurred.
SECTION 6.04. Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given or made
(and shall be deemed to have been duly given or made upon receipt) by delivery
in person, by courier service, by telecopy or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties at the
following addresses (or at such other address for a party as shall be specified
in a notice given in accordance with this Section 6.04):
(a) if to the Company:
CareInsite, Inc.
000 Xxxxx Xxxxx
Xxxxx Xxxxx Xxxxxx XX
Xxxxxxx Xxxx, Xxx Xxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
Senior Vice President -- General Counsel
(b) if to any Original Member, then to the address or telecopy
number set forth opposite such Original Member's name on Schedule I
hereto.
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SECTION 6.05. Headings. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
SECTION 6.06. Modification; Severability. If, in any action before any
court or agency legally empowered to enforce any term, any term is found to be
unenforceable, then such term shall be deemed modified to the extent necessary
to make it enforceable by such court or agency.
SECTION 6.07. Integration. The Transaction Documents, except as
expressly set forth therein, taken as a whole replace all prior and
contemporaneous agreements and supersedes all prior and contemporaneous
negotiations among the parties with respect to the transactions contemplated
herein and constitutes the entire agreement of the parties with respect to the
transactions contemplated herein.
SECTION 6.08. Assignment. This Agreement shall not be assigned without
the express written consent of the parties (which consent may be granted or
withheld in the sole discretion of any party). This Agreement shall inure to the
benefit of, and be binding upon, the successors of the parties hereto and the
assignees of the parties hereto, provided such assignment was in compliance with
the terms hereof.
SECTION 6.09. No Third-Party Beneficiaries. This Agreement shall be
binding upon and inure solely to the benefit of the parties hereto and their
permitted assigns and successors and nothing herein, express or implied, is
intended to or shall confer upon any other Person or entity any legal or
equitable right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
SECTION 6.10. Amendment. This Agreement may not be amended or modified
except by written agreement of each party affected by such amendment or
modification.
SECTION 6.11. Governing Law. In all respects, including all matters of
construction, validity and performance, this Agreement and the obligations
arising hereunder shall be governed by, and construed and enforced in accordance
with, the laws of the State of New York applicable to contracts made and
performed in such state, without regard to the principles thereof regarding
conflict of laws, and any applicable laws of the United States of America.
SECTION 6.12. Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
12
SECTION 6.13. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement were
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or equity; provided, however, that a party may obtain specific
performance without proof of actual damages or posting of any bond or other
security.
SECTION 6.14. Nonwaiver; Cumulative Remedies. No course of dealing or
any delay or failure to exercise any right hereunder on the part of any party
shall operate as a waiver of such right or otherwise prejudice the rights,
powers or remedies of such party. No single or partial waiver by any party of
any provision of this Agreement or of any breach or default hereunder or of any
right or remedy shall operate as a waiver of any other provision, breach,
default right or remedy or of the same provision, breach, default right or
remedy on a future occasion. The rights and remedies provided in this Agreement
are cumulative and are in addition to all rights and remedies which a party may
have in law or in equity or by statute or otherwise.
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized signatories hereunto duly
authorized as of the date first above written.
CAREINSITE, INC.
By: /s/ X.X. Xxxx
--------------------------------------
Name: X.X. Xxxx
Title: Chief Executive Officer
THE HEALTH INFORMATION NETWORK
CONNECTION LLC
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
GNYHA MANAGEMENT CORPORATION
By: /s/ Xxx X. Xxxxxxx
--------------------------------------
Name: Xxx X. Xxxxxxx
Title: Chief Vice President and
Chief Financial Officer
EMPIRE BLUE CROSS AND BLUE SHIELD
By: /s/ Dr. Xxxxxxx Xxxxxxx
--------------------------------------
Name: Dr. Xxxxxxx Xxxxxxx
Title: President
14
HEALTH INSURANCE PLAN OF GREATER
NEW YORK
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President and
General Counsel
GROUP HEALTH INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President and Chief
Executive Officer
15
SCHEDULE I
----------
ADDRESSES
---------
GNYHA Management Corporation
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Telecopy No.: 000-000-0000
Attention: Xxx X. Xxxxxxx, Senior Vice President and Chief Financial Officer
and
Xxxx Xxxxxxxx, Vice President and Associate General Counsel
Empire Blue Cross and Blue Shield
Xxx Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopy No.: 000- 000-0000
Attention: General Counsel
Group Health Incorporated
000 Xxxxx Xxxxxx, 0xx Xxxxx (34th & 9th)
Xxx Xxxx, XX 00000
Telecopy No.: 000-000-0000
Attention: Xxxxxxx Xxxxxx, Senior Vice President and General Counsel
Health Insurance Plan of Greater New York
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopy No.: 000-000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Senior Vice President, Corporate Secretary
and General Counsel
