EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
November 7, 2002, is made and entered into by and among WellChoice, Inc., a
Delaware corporation (the "Company"), The New York Public Asset Fund, the
"public asset fund" established pursuant to Section 7317 of the New York
Insurance Law (the "Fund"), and The New York Charitable Asset Foundation, a New
York not-for-profit corporation (the "Foundation").
RECITALS
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A. The Fund beneficially owns 78,185,000 shares of common
stock, par value $0.01 per share, of the Company (the "Common Stock"), and the
Foundation beneficially owns 4,115,000 shares of Common Stock.
B. The Company has agreed to provide certain registration
rights to the Fund and the Foundation with respect to the shares of Common Stock
beneficially owned by each of them, subject to the terms and conditions
contained in this Agreement.
AGREEMENT
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In consideration of the foregoing and the mutual covenants and
agreements contained in this Agreement, the Company, the Fund and the Foundation
agree as follows:
Section 1. Definitions. For purposes of this Agreement, the following terms
shall have the following meanings:
(a) "Affiliate", as used with respect to a Holder, has the meaning
ascribed to such term in Rule 12b-2 of the Exchange Act, but shall be deemed to
not include the Company and its subsidiaries.
(b) "Agreement" has the meaning set forth in the Preamble hereof.
(c) "Beneficially Own" has the meaning set forth in Section 1 of
Article VII of the Certificate of Incorporation.
(d) "Blackout Period" has the meaning specified in Section 5 hereof.
(e) "Business Day" means a day other than a Saturday, Sunday or other
day on which commercial banks are authorized to close under the laws of the
State of New York and the United States of America.
(f) "Bylaws" means the Bylaws of the Company as in effect at the time
that reference is made thereto.
(g) "Certificate of Incorporation" means the Certificate of
Incorporation of the Company as in effect at the time that reference is made
thereto.
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(h) "Class B Common Stock" means the class B common stock, $.01 par
value per share, of the Company.
(i) "Common Stock" has the meaning set forth in Recital A hereof.
(j) "Company" has the meaning set forth in the Preamble hereof.
(k) "Current Market Value" means the product of the number of
Registrable Securities at issue multiplied by the closing sale price of a share
of Common Stock on the NYSE on the date that the Current Market Value is to be
determined; or, if the Common Stock is not listed or admitted to trading on the
NYSE, as reported in the applicable transaction reporting system with respect to
securities listed on the principal national securities exchange on which the
Common Stock is listed or admitted to trading; or, if the Common Stock is not
listed or admitted to trading on any national securities exchange, the last
quoted price (or, if not so quoted, the average of the high bid and low asked
prices) in the over-the-counter market, as reported by NASDAQ or such other
system then in use; or, if no bids for the Common Stock are quoted by any such
organization, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Common Stock selected by the
Board of Directors of the Company.
(l) "Demand" has the meaning specified in Section 2(a) hereof.
(m) "Demand Notification" has the meaning specified in Section 2(a)
hereof.
(n) "Demand Registration" has the meaning specified in Section 2(a)
hereof.
(o) "Effective Period" means the period commencing on the date that
is one hundred eighty (180) days from the IPO Date and ending on the date on
which there shall no longer exist any Registrable Securities.
(p) "Excess Shares" has the meaning set forth in Section 1 of Article
VII of the Certificate of Incorporation.
(q) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC thereunder, all as the same
shall be in effect at the time that reference is made thereto.
(r) "Foundation" has the meaning set forth in the Preamble hereof.
(s) "Fund" has the meaning set forth in the Preamble hereof.
(t) "Holders" means the Fund and the Foundation, each a "Holder".
(u) "Inspectors" has the meaning specified in Section 7(k) hereof.
(v) "IPO Date" means the closing date of an initial underwritten
public offering of Common Stock.
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(w) "Joinder Notice" has the meaning specified in Section 2(a)
hereof.
(x) "Joinder Period" has the meaning specified in Section 2(a)
hereof.
(y) "NASD" means the National Association of Securities Dealers, Inc.
(z) "NASDAQ" means the NASD Automated Quotation System.
(aa) "NYSE" means the New York Stock Exchange, Inc.
(bb) "Other Rights Holders" has the meaning set forth in Section 2(f)
hereof.
(cc) "Ownership Limit" has the meaning set forth in Section 1 of
Article VII of the Certificate of Incorporation.
(dd) "Person" means any individual, firm, partnership, corporation
(including, without limitation, a business trust), limited liability company,
joint stock company, trust, unincorporated association, joint venture or other
entity, and shall include any successor (by merger or otherwise) of any such
entity.
(ee) "Piggy-Back Request" has the meaning set forth in Section 3(b)
hereof.
(ff) "Piggy-Back Rights" has the meaning set forth in Section 3(a)
hereof.
(gg) "Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement, with respect
to the terms of the offering of any portion of the Registrable Securities
covered by any Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
(hh) "Records" has the meaning specified in Section 7(k) hereof.
(ii) "Registrable Securities" means any and all of (i) the shares of
Common Stock held by the Holders as of the date of this Agreement, and (ii) any
securities issuable or issued or distributed in respect of any of the securities
identified in clause (i) by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, reorganization,
merger, consolidation or otherwise. Registrable Securities shall cease to be
Registrable Securities when and to the extent that they shall have (i) been
transferred, sold, distributed or otherwise disposed of by the Holder pursuant
to an underwritten public offering, a private placement transaction that is not
in accordance with the terms of the Voting Trust and Divestiture Agreement or
Rule 144, (ii) ceased to be outstanding, or (iii) become Delinquent Shares (as
defined in the Voting Trust and Divestiture Agreement).
(jj) "Registration Expenses" means any and all reasonable
out-of-pocket expenses incident to performance of or compliance with this
Agreement, including, without limitation, (i) all SEC, NASD and securities
exchange registration and filing fees, (ii) all fees and expenses of complying
with state securities or "blue sky" laws (including fees and disbursements of
counsel for any underwriters in connection with blue sky qualifications of the
Registrable
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Securities), (iii) all processing, printing, copying, messenger and delivery
expenses, (iv) all fees and expenses incurred in connection with the listing of
the Registrable Securities on any securities exchange pursuant to Section 7(h)
hereof, (v) all fees and disbursements of counsel for the Company and of its
independent public accountants (including the expenses of any special audits or
comfort letters), and (vi) the reasonable fees and expenses of any special
experts retained in connection with a registration under this Agreement, but
excluding (A) any underwriting discounts and commissions and transfer taxes
relating to the sale or disposition of Registrable Securities pursuant to a
Registration Statement, and (B) any fees, expenses or disbursements of counsel
and other advisers to the Holders.
(kk) "Registration Statement" means any registration statement
(including a Shelf Registration) of the Company referred to in Section 2 or
Section 3 hereof, including any Prospectus, amendments and supplements to any
such registration statement, including post- effective amendments, and all
exhibits and all material incorporated by reference in any such registration
statement.
(ll) "Rule 144" means Rule 144 under the Securities Act, 17 C.F.R.
230.144, or any similar or successor rules or regulations hereafter adopted by
the SEC.
(mm) "SEC" means the United States Securities and Exchange Commission
and any successor federal agency having similar powers.
(nn) "Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the SEC thereunder, all as the same shall be in
effect at the time that reference is made thereto.
(oo) "Shelf Registration" means a "shelf" registration statement on
an appropriate form pursuant to Rule 415 under the Securities Act (or any
successor rule that may be adopted by the SEC).
(pp) "Underwritten Offering" means an offering in which securities of
the Company are sold to an underwriter for reoffering to the public pursuant to
an effective Registration Statement under the Securities Act.
(qq) "Uncontrolled Event" has the meaning specified in Section 5
hereof.
(rr) "Voting Trust and Divestiture Agreement" means that certain
Voting Trust and Divestiture Agreement, of even date herewith, by and among the
Company and the Fund.
Section 2. Demand Registration Rights.
(a) Throughout the Effective Period, the Fund may, subject to the
terms hereof, request the Company in writing (each, a "Demand") to effect a
registration with the SEC under and in accordance with the provisions of the
Securities Act of all or part of the Registrable Securities Beneficially Owned
by the Fund (a "Demand Registration"). The Demand shall specify the aggregate
number of shares of Registrable Securities requested to be so registered on
behalf of the Fund. Any request received by the Company from the Fund as
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provided in this Section 2(a) shall be deemed to be a "Demand" for purposes of
this Agreement, unless the Company, in accordance with the terms of this
Agreement, shall have notified the Fund in writing, prior to its receipt of such
request from the Fund, of its intention to register securities with the SEC, in
which case the request from the Fund shall be governed by Section 3 hereof, not
this Section 2. All Demands to be made by the Fund pursuant to this Section 2(a)
and any notifications by the Company pursuant to the preceding sentence must be
based upon a good faith intent of the Fund or the Company, as the case may be,
to effect the sale of securities pursuant to such registrations as promptly as
practicable after the date of the Demand or notification, as the case may be, in
accordance with the terms of this Agreement. Within five (5) days of the
Company's receipt of a Demand from the Fund, the Company shall notify the
Foundation in writing of the Company's receipt of such Demand and of the
Foundation's right to join in such Demand (a "Demand Notification"). The
Foundation shall have fifteen (15) days from its receipt of a Demand
Notification (the "Joinder Period") to deliver to the Company a written notice
of the Foundation's intention to join in such Demand (a "Joinder Notice"). The
Joinder Notice shall specify the aggregate number of shares of Registrable
Securities requested to be so registered on behalf of the Foundation up to a
maximum number of Registrable Securities such that no more than five percent
(5%) of the aggregate amount of Registrable Securities requested to be
registered by the Fund and the Foundation are Beneficially Owned by the
Foundation, unless otherwise agreed to in writing by the Fund. Failure on the
part of the Foundation to deliver a Joinder Notice to the Company within the
Joinder Period shall be deemed to be a waiver on the part of the Foundation of
its right to join in such Demand.
(b) After receipt of a Demand from the Fund, the Company shall
prepare and file a Registration Statement for the Registrable Securities so
requested to be registered as soon as reasonably practicable and use its
reasonable best efforts to cause such Registration Statement to become
effective.
(c) Notwithstanding anything in this Agreement to the contrary, the
Company shall not be required to file a Registration Statement for Registrable
Securities pursuant to a Demand:
(i) if the Company shall have previously effected a Demand
Registration at any time during the immediately preceding one hundred twenty
(120) day period;
(ii) (A) with respect to a Demand made prior to the date which is
forty-two (42) months following the date hereof, such 42-month period to be
extended by an amount of time equal to the aggregate of all Blackout Periods
during such forty-two (42) months, if the Company shall have previously effected
two (2) Demand Registrations at any time during the calendar year in which such
Demand was received and (B) with respect to a Demand made after such 42-month
period, as it may be so extended, if the Company shall have previously effected
a Demand Registration at any time during the calendar year in which such a
Demand was so received;
(iii) if the Company shall have previously effected a
registration of Common Stock to be issued and sold by the Company at any time
during the immediately preceding ninety (90) day period (other than a
registration on Form X-0, Xxxx X-0 or Form S-3 (with respect to dividend
reinvestment plans and similar plans) or any successor forms thereto);
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(iv) if the number of Registrable Securities identified
in the Demand shall have a Current Market Value (determined as of the date of
such Demand) of less than Thirty Million Dollars ($30,000,000), unless such
Registrable Securities identified in the Demand constitute all remaining
Registrable Securities; or
(v) during the pendency of any Blackout Period.
(d) The Company shall be permitted to satisfy its obligations under
this Section 2 by amending (to the extent permitted by applicable law) any Shelf
Registration previously filed by the Company under the Securities Act so that
such Shelf Registration (as amended) shall permit the disposition (in accordance
with the intended methods of disposition specified as aforesaid) of all of the
Registrable Securities for which a Demand shall have been made. If the Company
shall so amend a previously filed Shelf Registration, it shall be deemed to have
effected one (1) Demand Registration. Notwithstanding the foregoing, the Company
shall have no obligation under this Agreement to file any Shelf Registration.
(e) A requested Demand Registration shall not be deemed to count as a
Demand Registration described in Section 2(c)(i) or Section 2(c)(ii) hereof if:
(i) such registration has not been declared effective by the SEC or does not
become effective in accordance with the Securities Act, (ii) after becoming
effective, such registration is materially interfered with by any stop order,
injunction or similar order or requirement of the SEC or other governmental
agency or court for any reason not attributable to the Fund and does not
thereafter become effective, (iii) the conditions to closing specified in any
underwriting agreement entered into in connection with such Demand Registration
are not satisfied or waived other than by reason of an act or omission on the
part of the Fund, or (iv) the Fund shall have withdrawn its Demand or otherwise
determined not to pursue such registration, provided that, in the case of this
clause (iv), the Fund shall have reimbursed the Company for all of its
out-of-pocket expenses incurred in connection with such Demand.
(f) The Company shall have the right, but not the obligation, to
include any securities to be issued and sold by the Company or sold on behalf of
any of the Company's security holders ("Other Rights Holders") in any
Registration Statement (including a Shelf Registration referred to in Section
2(d) hereof) filed pursuant to a Demand without the prior consent of the Fund.
(g) If the lead managing underwriters of an Underwritten Offering
made pursuant to a Demand shall advise the Fund and (if applicable) the
Foundation in writing (with a copy to the Company) that marketing or other
factors require a limitation on the number of shares of Common Stock which can
be sold in such offering within a price range acceptable to the Fund, then (i)
if the Company shall have elected to include any securities to be issued and
sold by the Company or sold on behalf of Other Rights Holders in such
Registration Statement pursuant to Section 2(f) hereof, then the Company shall
reduce the number of securities the Company shall intend to issue and sell (and,
if applicable, the number of securities being sold on behalf of Other Rights
Holders) pursuant to such Registration Statement such that the total number of
securities being sold by each such party shall be equal to the number which can
be sold in such offering within a price range acceptable to the Fund, and (ii)
if the Company shall not have elected to include any securities in such
Registration Statement pursuant to Section 2(f) hereof or if the reduction
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referred to in the previous clause (i) shall not be sufficient, then,
notwithstanding Section 2(c)(iv) hereof, the Fund and (if applicable) the
Foundation shall reduce the number of Registrable Securities requested to be
included in such offering to the number that the lead managing underwriter
advises can be sold in such offering within such price range, provided that,
following such reduction, ninety-five percent (95%) of the Registrable
Securities to be included in the Registration Statement shall be Beneficially
Owned by the Fund and five percent (5%) of such Registrable Securities shall be
Beneficially Owned by the Foundation, unless otherwise agreed to in writing by
the Fund and the Foundation. Neither the Fund nor (if applicable) the Foundation
shall be required to reduce the number of Registrable Securities requested to be
included in any such offering until the number of securities referred to in the
previous clause (i) shall have been reduced to zero (0). A requested Demand
reduced pursuant to this Section 2(g) shall count as a Demand Registration
described in Section 2(c)(i) or Section 2(c)(ii) hereof, provided that at least
$30,000,000 in aggregate gross sale proceeds shall have been received by the
Fund and (if applicable) the Foundation pursuant to such offering. In the event
that a requested Demand Registration so reduced does not result in at least
$30,000,000 in aggregate gross sales proceeds being received by the Fund and (if
applicable) the Foundation, such requested Demand Registration shall not be
deemed to count as a Demand Registration described in Section 2(c)(i) or Section
2(c)(ii) hereof, provided that the Fund and (if applicable) the Foundation shall
have reimbursed the Company for all of its out-of-pocket expenses incurred in
the preparation, filing and processing of the Registration Statement.
(h) Without the prior consent of the Fund, the Company shall not,
from and after the date hereof until the expiration of the Effective Period,
grant demand registration rights to any purchaser of the Company's Common Stock
in a private placement transaction that are superior to or pari-passu with the
rights of the Fund and the Foundation as set forth in this Agreement.
Section 3. Piggy-Back Registration Rights.
(a) Whenever the Company shall propose to file a Registration
Statement under the Securities Act relating to the public offering of securities
for sale for cash, the Company shall give written notice to the Fund and the
Foundation as promptly as practicable, but in no event less than fifteen (15)
days prior to the anticipated filing thereof, specifying the approximate date on
which the Company proposes to file such Registration Statement and the intended
method of distribution in connection therewith, and advising each of the Fund
and the Foundation of its right to have any or all of the Registrable Securities
then Beneficially Owned by them included among the securities to be covered by
such Registration Statement (the "Piggy-Back Rights"). In this regard, with
respect to offerings effected within twenty-four (24) months from the IPO Date,
the Fund and the Foundation shall have the right to have any or all of the
Registrable Securities then Beneficially Owned by them included among the
securities to be covered by such Registration Statement, such that the Fund and
the Foundation shall be entitled to receive, at their option, in the aggregate
up to a maximum of fifty percent (50%) of the proceeds from the sale of shares
of Common Stock to the public (the "Initial Piggy-Back Rights"). Unless
otherwise agreed to in writing by the Fund and the Foundation, of the
Registrable Securities requested to be included by the Fund and the Foundation
in the aggregate in a Registration Statement pursuant to this Section 3(a),
ninety-five percent (95%) of such Registrable Securities shall be Beneficially
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Owned by the Fund and five percent (5%) of such Registrable Securities shall be
Beneficially Owned by the Foundation.
(b) Subject to Section 3(c) and Section 3(d) hereof, in the event
that the Fund or the Foundation has and shall elect to utilize its Piggy-Back
Rights, the Company shall include in the Registration Statement the Registrable
Securities identified by such Holder in a written request (a "Piggy-Back
Request") given to the Company not later than five Business Days prior to the
proposed filing date of the Registration Statement. The Registrable Securities
identified in a Piggy-Back Request shall be included in the Registration
Statement on the same terms and conditions as the other securities included in
the Registration Statement.
(c) Notwithstanding anything in this Agreement to the contrary, the
Holders shall not have Piggy-Back Rights with respect to (i) a Registration
Statement on Form S-4 or Form S-8 or Form S-3 (with respect to dividend
reinvestment plans and similar plans) or any successor forms thereto, (ii) a
Registration Statement filed in connection with an exchange offer or an offering
of securities solely to existing stockholders or employees of the Company, or
(iii) a Registration Statement filed in connection with the redistribution of
shares of Common Stock held by a Holder in excess of the Ownership Limit
pursuant to Article IV of the Voting Trust and Divestiture Agreement.
(d) If the lead managing underwriters selected by the Company and (if
applicable) the Fund for an Underwritten Offering for which Piggy-Back Rights
are requested shall advise the Company in writing that marketing or other
factors require a limitation on the number of shares of Common Stock which can
be sold in such offering within a price range acceptable to the Company, then,
subject to the second sentence of Section 3(a), (i) such underwriters shall
provide written notice thereof to each requesting Holder and (ii) there shall be
included in the offering, (A) first, all shares of Common Stock proposed by the
Company to be sold for its account (or such lesser amount as shall equal the
maximum number determined by the lead managing underwriters as aforesaid), (B)
second, all shares requested to be included in such Registration Statement by
the Fund and the Foundation, or such lesser number as shall equal, together with
the amount referred to in (A), the maximum number determined by the lead
managing underwriters as aforesaid (in which case ninety-five percent (95%) of
the shares sold by the Fund and the Foundation in the aggregate shall be
Beneficially Owned by the Fund and five percent (5%) shall be Beneficially Owned
by the Foundation, unless otherwise agreed to in writing by the Fund and the
Foundation) and (C) third, only that number of shares requested to be included
by any Other Rights Holders that such lead managing underwriters reasonably and
in good faith believe will not substantially interfere with (including, without
limitation, adversely affect the pricing of) the offering of all the shares of
Common Stock that the Company desires to sell for its own account.
(e) Nothing contained in this Section 3 shall create any liability on
the part of the Company to the Holders if the Company for any reason should
decide not to file a Registration Statement for which Piggy-Back Rights are
available or to withdraw such Registration Statement subsequent to its filing,
regardless of any action whatsoever that a Holder may have taken, whether as a
result of the issuance by the Company of any notice hereunder or otherwise.
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(f) A request made by a Holder pursuant to its Piggy-Back Rights to
include Registrable Securities in a Registration Statement shall not be deemed
to be a Demand Registration described in Section 2(c)(i) or Section 2(c)(ii)
hereof.
Section 4. Selection of Underwriters. In connection with any
Underwritten Offering made pursuant to a Demand or an Initial Piggy-Back Right,
the Company and the Fund shall each select one joint book running managing
underwriter to manage the Underwritten Offering one of whom will be the
stabilization agent. The selection of the stabilization agent shall alternate
between the Company and the Fund. Such alternation of the selection of the
stabilization agent shall commence with the earlier of (i) the first Demand
Registration filed pursuant to this Agreement and (ii) the first Initial
Piggy-Back Rights, with the stabilization agent being selected by the Company
for such first Demand Registration or first Initial Piggy-Back Rights, as the
case may be. Each of the joint book running managing underwriters shall be
equally compensated.
Section 5. Blackout Periods. If (A) within five (5) Business Days
following the exercise by a Holder of a Demand, the Company determines in good
faith and notifies such Holder in writing that the registration and distribution
of Registrable Securities (or the use of the Registration Statement or related
Prospectus) resulting from a Demand received from a Holder would materially and
adversely interfere with any planned or proposed business combination
transaction involving the Company, or any pending financing, acquisition,
corporate reorganization or any other corporate development involving the
Company or any of its subsidiaries or (B) following the exercise by a Holder of
a Demand but before the effectiveness of the Registration Statement, (i) a
business combination, tender offer, acquisition or other corporate event
involving the Company is proposed, initiated or announced by another Person
beyond the control of the Company (an "Uncontrolled Event"), (ii) in the
reasonable judgment of the Board of Directors of the Company the filing or
seeking the effectiveness of the Registration Statement would materially and
adversely interfere with such Uncontrolled Event or would otherwise materially
and adversely affect the Company and (iii) the Company promptly so notifies the
Holder, then the Company shall be entitled to (x) postpone the filing of the
Registration Statement otherwise required to be filed by the Company pursuant to
Section 2 hereof, or (y) elect that the effective Registration Statement not be
used, in either case for a reasonable period of time, but not to exceed one
hundred twenty (120) days after the date that (1) the Demand was made (in the
case of an clause (A) above) or (2) the Company so notifies the Holder of such
determination (in the case of clause (B) above) (each a "Blackout Period"). Any
such written notice shall contain a general statement of the reasons for such
postponement or restriction on use and an estimate of the anticipated delay. The
Company shall (a) promptly notify such Holder of the expiration or earlier
termination of such Blackout Period and (b) use it reasonable best efforts to
effect the Demand Registration as promptly as practicable after the end of the
Blackout Period.
Section 6. Holdback.
(a) If (i) during the Effective Period, the Company shall file a
Registration Statement (other than a registration on Form X-0, Xxxx X-0 or Form
S-3 (with respect to dividend reinvestment plans and similar plans) or any
successor forms thereto) with respect to any shares of its capital stock, and
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(ii) upon reasonable prior notice the managing underwriter or underwriters (in
the case of an Underwritten Offering) advise the Company and the Fund in writing
that a sale or distribution of Registrable Securities would adversely impact
such offering, then the Fund shall, to the extent not inconsistent with
applicable law, refrain from effecting any sale or distribution of Registrable
Securities, including sales pursuant to Rule 144, during the period commencing
on the effective date and continuing until the ninetieth (90th) day after the
effective date of such Registration Statement; provided that such restriction
shall apply to the Fund only if (i) in connection with such offering, the
underwriters require the directors and executive officers of the Company to
refrain from selling the Company's securities for a like period and on like
terms and (ii) the Fund, at the time of such offering, Beneficially Owns five
percent (5%) or more of the Company's issued and outstanding Common Stock.
(b) During the ninety (90) day period commencing on the effective
date of a Registration Statement filed by the Company on behalf of the Fund in
connection with an Underwritten Offering pursuant to a Demand, the Company shall
not effect (except pursuant to registrations on Form S-4 or Form S-8 or Form S-3
(with respect to dividend reinvestment plans and similar plans) or any successor
forms thereto and except pursuant to Section 2(f) hereof) any public sale or
distribution of Common Stock or of preferred stock or securities convertible
into or exercisable for Common Stock.
Section 7. Registration Procedures. If and whenever the Company shall
be required to use its reasonable best efforts to effect or cause the
registration of any Registrable Securities under the Securities Act as provided
in this Agreement, the Company shall and, with respect to Section 7(m) and
Section 7(n), the Fund and (if applicable) the Foundation shall:
(a) prepare and file with the SEC a Registration Statement with
respect to such Registrable Securities on any form for which the Company then
qualifies or that counsel for the Company shall deem appropriate, and which form
shall be available for the sale of the Registrable Securities in accordance with
the intended methods of distribution thereof, and use its reasonable best
efforts to cause such Registration Statement to become and remain effective;
(b) prepare and file with the SEC amendments and post-effective
amendments to such Registration Statement and such amendments and supplements to
the Prospectus used in connection therewith as may be necessary to maintain the
effectiveness of such registration or as may be required by the rules,
regulations or instructions applicable to the registration form utilized by the
Company or by the Securities Act for a Shelf Registration or otherwise necessary
to keep such Registration Statement effective for at least ninety (90) days (or
one hundred eighty (180) days in the case of a Shelf Registration) and cause the
Prospectus as so supplemented to be filed pursuant to Rule 424 under the
Securities Act, and to otherwise comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
Registration Statement until the earlier of (x) such 90th or 180th day, as the
case may be, or (y) such time as all Registrable Securities covered by such
Registration Statement shall have ceased to be Registrable Securities (it being
understood that the Company at its option may determine to maintain such
effectiveness for a longer period, whether pursuant to a Shelf Registration or
otherwise); provided, however, that a reasonable time before filing a
Registration Statement or Prospectus, or any amendments or supplements thereto
(other than reports required to be filed by it under the Exchange Act), the
Company shall furnish to the Fund and (if applicable) the Foundation, the
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managing underwriter and their respective counsel for review and comment, copies
of all documents proposed to be filed;
(c) furnish, without charge, to the Fund and (if applicable) the
Foundation and to any underwriter in connection with an Underwritten Offering
such number of conformed copies of such Registration Statement and of each
amendment and post-effective amendment thereto (in each case including all
exhibits) and such number of copies of any Prospectus or Prospectus supplement
and such other documents as the Fund and (if applicable) the Foundation or
underwriter may reasonably request in order to facilitate the disposition of the
Registrable Securities by the Fund and (if applicable) the Foundation or
underwriter (the Company hereby consenting to the use (subject to the
limitations set forth in Section 7(n) hereof) of the Prospectus or any amendment
or supplement thereto in connection with such disposition);
(d) use its reasonable best efforts to register or qualify such
Registrable Securities covered by such Registration Statement under such other
securities or "blue sky" laws of such jurisdictions as the Fund and (if
applicable) the Foundation shall reasonably request, 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 Section 7(d), 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;
(e) as promptly as practicable, notify the managing underwriters (if
any) and the Fund and (if applicable) the Foundation, at any time when a
Prospectus relating thereto is required to be delivered under the Securities Act
within the appropriate period mentioned in Section 7(b) hereof, 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 light of the circumstances then existing,
and, as promptly as practicable, prepare and furnish to the Fund and (if
applicable) the Foundation a reasonable number of copies of an amendment or
supplement to such Registration Statement or related Prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such Registrable
Securities, 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 light of the circumstances then
existing;
(f) notify the Fund and (if applicable) the Foundation, as promptly
as practicable, at any time:
(i) when the Prospectus or any Prospectus supplement or post-
effective amendment has been filed, and, with respect to the Registration
Statement or any post-effective amendment, when the same has become effective;
(ii) of any request by the SEC for amendments or supplements to
the Registration Statement or the Prospectus or for additional information;
11
(iii) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or any order preventing the use of a
related Prospectus, or the initiation (or any overt threats) of any proceedings
for such purposes;
(iv) of the receipt by the Company of any written notification of
the suspension of the qualification of any of the Registrable Securities for
sale in any jurisdiction or the initiation (or overt threats) of any proceeding
for that purpose; and
(v) if at any time the representations and warranties of the
Company contemplated by Section 7(i) below cease to be true and correct in all
material respects;
(g) otherwise comply with all applicable rules and regulations of the
SEC, and make available to its security holders an earnings statement that shall
satisfy the provisions of Section 11(a) of the Securities Act, provided that the
Company shall be deemed to have complied with this Section 7(g) if it shall have
complied with Rule 158 under the Securities Act;
(h) use its reasonable best efforts to cause all such Registrable
Securities to be listed on the NYSE, NASDAQ or any other national securities
exchange or automated quotation system on which the class of Registrable
Securities being registered is then listed, if such Registrable Securities are
not already so listed and if such listing is then permitted under the rules of
such exchange, and to provide a transfer agent and registrar for such
Registrable Securities covered by such Registration Statement no later than the
effective date of such Registration Statement;
(i) enter into agreements (including, if applicable, an
underwriting agreement and other customary agreements in the form customarily
entered into by other companies in comparable underwritten offerings) and take
all other appropriate and all commercially reasonable actions in order to
expedite or facilitate the disposition of such Registrable Securities and in
such connection, whether or not an underwriting agreement shall be entered into
and whether or not the registration shall be an underwritten registration:
(i) make such representations and warranties to the Fund and (if
applicable) the Foundation and the underwriters, if any, in form, substance and
scope as are customarily made by companies to underwriters in comparable
underwritten offerings;
(ii) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions shall be reasonably satisfactory (in form,
scope and substance) to the managing underwriters) addressed to the underwriters
covering the matters customarily covered in opinions requested in comparable
underwritten offerings by the Company;
(iii) obtain "comfort letters" and updates thereof from the
Company's independent certified public accountants addressed to the Board of
Directors of the Company and the underwriters, if any, such letters to be in
customary form and covering matters of the type customarily covered in "comfort
letters" by independent accountants in connection with comparable underwritten
offerings on such date or dates as may be reasonably requested by the managing
underwriters;
12
(iv) provide the indemnification in accordance with the
provisions and procedures of Section 11 hereof to all parties to be indemnified
pursuant to such Section 11 and any other indemnification customarily required
in underwritten public offerings; and
(v) deliver such documents and certificates as may be reasonably
requested by the Fund and (if applicable) the Foundation and the managing
underwriters, if any, to evidence compliance with Section 7(f) above and with
any customary conditions contained in the underwriting agreement or other
agreement entered into by the Company;
(j) cooperate with the Fund and (if applicable) the Foundation and
the managing underwriter or underwriters to facilitate, to the extent reasonable
under the circumstances, the timely preparation and delivery of certificates
representing the securities to be sold under such Registration Statement, and
enable such securities to be in such denominations and registered in such names
as the managing underwriter or underwriters, if any, or the Fund and (if
applicable) the Foundation may request and/or in a form eligible for deposit
with the Depository Trust Company;
(k) make available to the Fund and (if applicable) the Foundation,
any underwriter participating in any disposition pursuant to such Registration
Statement, and any attorney, accountant or other agent retained by the Fund and
(if applicable) the Foundation or underwriter (collectively, the "Inspectors"),
reasonable access to appropriate officers and employees of the Company and the
Company's subsidiaries to ask questions and to obtain information reasonably
requested by such Inspector and all financial and other records and other
information, pertinent corporate documents and properties of any of the Company
and its subsidiaries and affiliates (collectively, the "Records"), as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility; provided, however, that the Records that the Company determines,
in good faith, to be confidential and which it notifies the Inspectors in
writing are confidential shall not be disclosed to any Inspector unless such
Inspector signs a confidentiality agreement in customary form reasonably
satisfactory to the Company or either (i) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission of a material fact in
such Registration Statement, or (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent jurisdiction;
provided, further, that any decision regarding the disclosure of information
pursuant to subclause (i) shall be made only after consultation with counsel for
the applicable Inspectors; and provided, further, that the Fund and (if
applicable) the Foundation severally each agrees that it or they shall, promptly
after learning that disclosure of such Records is sought in a court having
jurisdiction, give notice to the Company and allow the Company, at the Company's
expense, to undertake appropriate action to prevent disclosure of such Records;
(l) in the event of the issuance of any stop order suspending the
effectiveness of the Registration Statement or of any order suspending or
preventing the use of any related Prospectus or suspending the qualification of
any Registrable Securities included in the Registration Statement for sale in
any jurisdiction, the Company shall use its reasonable best efforts promptly to
obtain its withdrawal;
(m) the Fund and (if applicable) the Foundation severally each shall
furnish the Company with such information regarding it and pertinent to the
disclosure requirements relating to the registration and the distribution of
13
such securities as the Company may from time to time reasonably request in
writing or as shall be required in connection with the action to be taken by the
Company hereunder; and
(n) the Fund and (if applicable) the Foundation severally each shall,
upon receipt of any notice from the Company of the happening of any event of the
kind described in Section 7(e) hereof, forthwith discontinue disposition of
Registrable Securities pursuant to the Prospectus or Registration Statement
covering such Registrable Securities until the Fund and (if applicable) the
Foundation shall have received copies of the supplemented or amended Prospectus
contemplated by Section 7(e) hereof, and, if so directed by the Company, the
Fund and (if applicable) the Foundation shall deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in their
possession, of the Prospectus covering such Registrable Securities current at
the time of receipt of such notice.
Section 8. Registration Expenses. Except as otherwise provided
herein, in connection with all registrations of Registrable Securities made
pursuant to a Demand Registration or Piggy-Back Rights, the Company shall pay
all Registration Expenses; provided, however, that the Fund and (if applicable)
the Foundation shall pay, and shall hold the Company harmless from, (i) any
underwriting discounts and commissions and transfer taxes relating to the sale
or disposition of Registrable Securities and (ii) any fees, expenses or
disbursements of counsel and other advisors to the Fund and (if applicable) the
Foundation.
Section 9. Rule 144. The Company shall take such measures and file
such information, documents and reports as shall be required by the SEC as a
condition to the availability of Rule 144.
Section 10. Covenants of Each Holder. Each Holder hereby covenants
and agrees that it shall not sell any Registrable Securities in violation of the
Securities Act and this Agreement, the Voting Trust and Divestiture Agreement,
the Certificate of Incorporation and the Bylaws.
Section 11. Indemnification; Contribution.
(a) The Company shall indemnify and hold harmless each Holder, its
respective officers and directors, and each person, if any, who controls such
Holder within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act and any agents, representatives or advisers thereof
against all losses, claims, damages, liabilities and expenses (including
reasonable attorneys' fees and expenses and reasonable costs of investigation)
incurred by such party pursuant to any actual or threatened action, suit,
proceeding or investigation arising out of or based upon (i) any untrue or
alleged untrue statement of material fact contained in any Registration
Statement, any Prospectus or preliminary Prospectus, or any amendment or
supplement to any of the foregoing, (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 or a preliminary Prospectus,
in light of the circumstances then existing) not misleading, or (iii) any
violation or alleged violation by the Company of any United States federal,
state or common law rule or regulation applicable to the Company and relating to
action required of or inaction by the Company in connection with any such
registration except in each case insofar as the same arise out of or are based
14
upon, any such untrue statement or omission made in reliance on and in
conformity with written information with respect to a Holder furnished to the
Company by such Holder or its counsel expressly for use therein. In connection
with an Underwritten Offering, the Company shall indemnify the underwriters
thereof, their officers, directors and agents and each Person who controls such
underwriters (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) to the same extent as provided above with respect to the
indemnification of each Holder. Notwithstanding the foregoing provisions of this
Section 11(a), the Company shall not be liable to any Holder, any Person who
participates as an underwriter in the offering or sale of Registrable Securities
or any other Person, if any, who controls any such underwriter (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act),
under this Section 11 for any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense that arises out of an untrue statement
or alleged untrue statement or omission or alleged omission in the preliminary
Prospectus if a Holder, or other Person on behalf of such Holder, failed to send
or deliver a copy of a final Prospectus to the Person asserting the claim prior
to the written confirmation of the sale of the Registrable Securities to such
Person and such statement or omission was corrected in such final Prospectus and
the Company had previously and timely furnished sufficient copies thereof to the
Holders in accordance with this Agreement.
(b) Any Person entitled to indemnification hereunder agrees to give
prompt written notice to the indemnifying party after the receipt by such
indemnified party of any written notice of the commencement of any action, suit,
proceeding or investigation or threat thereof made in writing for which such
indemnified party may claim indemnification or contribution pursuant to this
Section 11 (provided that failure to give such notification shall not affect the
obligations of the indemnifying party pursuant to this Section 11 except to the
extent the indemnifying party shall have been materially prejudiced as a result
of such failure). In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party under this Section 11 for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying
party shall not have employed counsel reasonably satisfactory to such
indemnified party to take charge of the defense of such action within a
reasonable time after notice of commencement of such action (so long as such
failure to employ counsel is not the result of an unreasonable determination by
such indemnified party that counsel selected pursuant to the immediately
preceding sentence is unsatisfactory) or if the indemnifying party shall not
have demonstrated to the reasonable satisfaction of the indemnified party its
ability to finance such defense, or (ii) the actual or potential defendants in,
or targets of, any such action include both the indemnifying party and such
indemnified party and such indemnified party shall have reasonably concluded
that there may be legal defenses available to it which are different from or
additional to those available to the indemnifying party which, if the
indemnifying party and such indemnified party were to be represented by the same
counsel, could result in a conflict of interest for such counsel or materially
15
prejudice the prosecution of the defenses available to such indemnified party,
then such indemnified party shall have the right to employ separate counsel, in
which case the fees and expenses of one counsel or firm of counsel (plus one
local or regulatory counsel or firm of counsel) selected by a majority in
interest of the indemnified parties shall be borne by the indemnifying party and
the fees and expenses of all other counsel retained by the indemnified parties
shall be paid by the indemnified parties. No indemnified party shall consent to
entry of any judgment or enter into any settlement without the consent (which
consent, in the case of an action, suit, claim or proceeding exclusively seeking
monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(c) If the indemnification from the indemnifying party provided for
in this Section 11 is unavailable to an indemnified party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to therein,
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 losses, claims, damages, liabilities and expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified party in connection with the actions or omissions which
resulted in such losses, claims, damages, liabilities and 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 (in
writing, in the case of a Holder) by, such indemnifying party or indemnified
party, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action or omission. The amount paid or
payable by a party as a result of the losses, claims, damages, liabilities and
expenses referred to above shall be deemed to include, subject to the
limitations set forth in Section 11(b) hereof, any legal and other fees and
expenses reasonably incurred by such indemnified party in connection with any
investigation or proceeding. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 11(c) were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 11(c).
Any underwriter's obligations in this Section 11(c) to contribute shall be
several in proportion to the number of Registrable Securities underwritten by
them and not joint. Notwithstanding the provisions of this Section 11(c), no
underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Registrable Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. 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. If indemnification is
available under this Section 11, the indemnifying parties shall indemnify each
indemnified party to the fullest extent provided in Section 11(a) hereof without
regard to the relative fault of such indemnifying parties or indemnified party
or any other equitable consideration provided for in this Section 11(c).
(d) The provisions of this Section 11 shall be in addition to any
liability which any party may have to any other party and shall survive any
termination of this Agreement. The indemnification provided by this Section 11
shall survive the transfer of such Registrable Securities by the Holder and
shall remain in full force and effect irrespective of any investigation made by
or on behalf of an indemnified party, so long as such indemnified party is not
guilty of acting in a fraudulent, reckless or grossly negligent manner.
17
Section 12. Hedging Transactions. The Fund shall be permitted to
enter into transactions in respect of the Registrable Securities that constitute
customary market hedging strategies; provided that, such transactions do not
otherwise violate any of the provisions of the Certificate of Incorporation, the
Voting Trust and Divestiture Agreement or this Agreement.
Section 13. Participation in Underwritten Offerings. A Holder may not
participate in any Underwritten Offering hereunder unless such Holder (a) in the
case of a registration pursuant to Section 3 hereof, agrees to sell the Holder's
securities on the same economic terms as are applicable to the Company in such
offering, and (b) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements.
Section 14. No Overlapping Directors. The Fund and the Foundation
each agrees with the Company that for the term of the Voting Trust and
Divestiture Agreement no individual shall at any time serve as a member of its
managing board if such individual also serves or at any time previously served
on the managing board of the other.
Section 15. Injunctions. Each party acknowledges and agrees that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its specific terms or were
otherwise breached. Therefore, each party shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically the terms and provisions hereof in any court having
jurisdiction, such remedy being in addition to any other remedy to which such
party may be entitled at law or in equity.
Section 16. Amendments and Waivers. No amendment, modification,
supplement, termination, consent or waiver of any provision of this Agreement,
nor consent to any departure herefrom, shall in any event be effective unless
the same is in writing and is signed by the party against whom enforcement of
the same is sought. Any waiver of any provision of this Agreement and any
consent to any departure from the terms of any provision of this Agreement shall
be effective only in the specific instance and for the specific purpose for
which given.
Section 17. Notices. All notices, consents, requests, demands and
other communications hereunder must be in writing, and shall be deemed to have
been duly given or made: (i) when delivered in person; (ii) three (3) days after
deposited in the United States mail, first class postage prepaid; (iii) in the
case of telegraph or overnight courier services, one (1) Business Day after
delivery to the telegraph company or overnight courier service with payment
provided; or (iv) in the case of telex or telecopy or fax, when sent,
verification received; in each case addressed as follows:
17
if to the Company:
WellChoice, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
with copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx X. Xxxxxxxxx, Esq.
Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
if to the Fund:
The New York Public Asset Fund
c/o LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx X. Xxx
Fax: (000) 000-0000
if to the Foundation:
The New York Charitable Asset Foundation
x/x XxXxxxx, Xxxx, Xxxxxx & XxxXxx, L.L.P.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx X. Xxx
Fax: (000) 000-0000
Section 18. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors of each of the parties. This
Agreement and the provisions of this Agreement that are for the benefit of a
Holder shall not be assignable by such Holder to any Person and any such
purported assignment shall be null and void. Notwithstanding the foregoing, this
Agreement shall not preclude the Fund or the Foundation, in the event the Fund
or the Foundation, as the case may be, sells Registrable Securities to an
Institution (as defined in the Voting Trust and Divestiture Agreement) in a
private transaction in accordance with the terms of the Voting Trust and
Divestiture Agreement (in the case of the Fund), from entering into an agreement
with such Institution permitting such Institution to participate in underwritten
public offerings conducted by the Fund and (if applicable) the Foundation
pursuant to Section 2 or underwritten public offerings in which the Fund or (if
applicable) the Foundation participates pursuant to Section 3. The shares owned
18
and to be sold by any such Institution shall be treated, for purposes of this
Agreement, as being owned and to be sold by the Fund or the Foundation, as the
case may be. The Company shall have no obligations hereunder to any such
Institution.
Section 19. Representations and Warranties. Each party hereto
represents and warrants to the other parties as follows:
(a) Such party is duly organized and validly existing under the laws
of its jurisdiction of organization.
(b) Such party has full corporate or other organizational power and
authority to enter into this Agreement and to carry out and perform it
obligations hereunder. The execution, delivery and performance by such party of
this Agreement have been duly authorized and approved by all necessary corporate
or other organizational action. This Agreement has been duly authorized,
executed and delivered by such party and constitutes the legal, valid and
binding obligation of such party enforceable against it in accordance with its
terms, subject to applicable bankruptcy, insolvency and similar laws affecting
creditor's rights generally and to general principles of equity.
(c) The execution, delivery and performance by such party of its
obligations under this Agreement, and compliance by such party with the terms
and conditions hereof will not (i) violate, with or without the giving of notice
or the lapse of time, or both, or require any registration, qualification,
approval or filing (other than registrations, qualifications, approvals and
filings that have already been made or obtained) under, any provision of law,
statute, ordinance or regulation applicable to it or any of its subsidiaries and
(ii) conflict with, or require any consent or approval under, or result in the
breach or termination of any provision of, or constitute a default under, or
result in the acceleration of the performance of the obligations of such party
or any of its subsidiaries under, or result in the creation of any claim, lien,
charge or encumbrance upon any of the properties, assets or businesses of such
party or any of its subsidiaries pursuant to (x) its organizational documents,
(y) any order, judgment, decree, law, ordinance or regulation applicable to it
or any of its subsidiaries or (z) any contract, instrument, agreement or
restriction to which it or any of its subsidiaries is a party or by which it or
any of its subsidiaries or any of its respective assets or properties is bound.
Section 20. Counterparts. This Agreement may be executed in one (1)
or more counterparts, all of which shall be considered one (1) and the same
agreement and shall become effective when one (1) or more counterparts have been
signed by each of the parties and delivered to the other parties.
Section 21. Descriptive Headings. The descriptive headings used
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement.
Section 22. Governing Law. This Agreement and the rights and
obligations of the parties hereunder shall be governed by and construed in
accordance with the laws of the State of New York, without regard to choice or
conflict of laws rules.
Section 23. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances,
shall be held invalid, illegal or unenforceable in any respect for any reason,
19
the validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby, it being intended that all remaining provisions contained
herein shall not be in any way impaired thereby.
Section 24. Entire Agreement. This Agreement, including any exhibits
or attachments referred to herein, is intended by the parties as a final
expression and a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter hereof.
There are no restrictions, promises, warranties or undertakings with respect to
the subject matter hereof, other than those set forth or referred to herein.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
Section 25. Further Actions; Reasonable Best Efforts. Each Holder
shall use its reasonable best efforts to take or cause to be taken all
appropriate action and to do or cause to be done all things reasonably
necessary, proper or advisable under applicable law and regulations to assist
the Company in the performance of its obligations hereunder, including, without
limitation, the preparation and filing of any Registration Statements pursuant
to any Demand.
Section 26. No Liability. The parties acknowledge that, pursuant to
Section 4301(j)(4)(G) of the New York Insurance Law, none of the members of the
board of the Fund, while acting within the scope of their authority as members
of such board, shall be subject to any personal liability resulting from the
Fund's execution, delivery or performance of this Agreement.
[signatures appear on next page]
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first set forth above.
WELLCHOICE, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President and General Counsel
THE NEW YORK PUBLIC ASSET FUND
By: /s/ Xxxxxxx Xxxx
-----------------------------------------------
Name: Xxxxxxx Xxxx
Title: Authorized Representative
THE NEW YORK CHARITABLE ASSET FOUNDATION
By: /s/ Xxxxxxx Xxx Xxxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxx Xxxxxxx
Title: Authorized Officer
[signature page to Registration Rights Agreement]
21
