EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT ("Agreement") dated the 13th day of December,
1995, is made and entered into by and among Blue Cross and Blue Shield of New
Jersey, Inc. ("BCBS"), a New Jersey health service corporation, Health Care
Service Corporation ("HCSC"), an Illinois legal mutual reserve company,
Independence Blue Cross ("IBC"), a Pennsylvania non-profit hospital service plan
corporation, ▇▇▇▇▇▇ County Medical Bureau, Inc. ("PCMB"), a Washington
non-profit corporation, and Charter Medical Corporation ("Charter"), a Delaware
corporation. (Each of BCBS, HCSC, IBC and PCMB is referred to in this Agreement
as a "Seller" and together as the "Sellers").
WHEREAS, on the date of this Agreement, Charter is purchasing from
Sellers, Medical Service Association of Pennsylvania ("MSAP") and Veritus, Inc.
("VI") an aggregate of 5,908.76 shares of the common stock, par value $0.01 per
share ("GSHS Shares"), of Green Spring Health Services, Inc., a Delaware
corporation ("GSHS") pursuant to a Stock Purchase Agreement, dated November 14,
1995, among GSHS, Charter, MSAP, VI and Sellers (the "Stock Purchase
Agreement");
WHEREAS, upon closing of the stock purchase transaction contemplated
by the Stock Purchase Agreement, Charter and Sellers will own all of the issued
and outstanding capital stock of GSHS ("GSHS Shares"); and
WHEREAS, as a condition to the closing of the stock purchase
contemplated by the Stock Purchase Agreement, Sellers and Charter are entering
into this Agreement, which contains the option, subject to the provisions of
this Agreement, of Sellers to exchange their GSHS Shares for shares of the
common stock, par value $0.25 per share ("Charter Common Stock") of Charter or
for Charter's nonnegotiable subordinated promissory notes;
WHEREAS, following consummation of the transactions contemplated by
the Stock Purchase Agreement, Sellers and Charter will own beneficially and of
record GSHS Shares as follows:
Number of
Stockholder GSHS Shares Owned
----------- -----------------
Charter -- 6,877.80
BCBS -- 1,652.02
HCSC -- 1,652.02
IBC -- 1,652.02
PCMB -- 1,652.02
NOW, THEREFORE, the parties to this Agreement agree as follows:
SECTION ONE
EXCHANGE RIGHTS
0.1 Value for Exchange Purposes -- GSHS Shares. Sellers and Charter
agree that, for purposes of exchanges under this Agreement, (a) the 6,608.08
GSHS Shares owned in the aggregate by Sellers on the date of this Agreement have
an aggregate value of $81.83 million ("Sellers' GSHS Value"), and (b) each GSHS
Share
owned by a Seller has a value of $12,383.32, subject to adjustment pursuant to
Section 3 (such per GSHS share value, as the same may be adjusted from time to
time pursuant to Section 3, the "PGSSV").
0.2 Exchange Price - Charter Common Stock. Sellers and Charter agree
that, for purposes of exchanges under this Agreement of GSHS Shares for shares
of Charter Common Stock during the Exchange Period (as defined), the exchange
price of Charter Common Stock per share shall be $23, subject to adjustment
pursuant to Section 3 (such exchange price, as the same may be adjusted from
time to time pursuant to Section 3, the "Exchange Price").
0.3 Each Seller's Right to Exchange. Subject to and on the terms and
conditions set forth in this Agreement, each Seller, individually and not
jointly, at any time and from time to time during the period commencing on the
date of this Agreement through the third anniversary of the date of this
Agreement (the "Exchange Period") shall have the right to exchange (an
"Exchange") all or any portion (but not less than 82 GSHS Shares, subject to
adjustment pursuant to Section 3) of the GSHS Shares owned by it for either:
(a) That number of whole shares of Charter Common Stock determined by
dividing (i) the result of (X) the number of GSHS Shares to be exchanged in an
Exchange multiplied by (Y) the PGSSV, by (ii) the Exchange Price (each such
Exchange, a "Stock Exchange"); provided, that no fractional shares of or
interests in Charter Common Stock shall be issued as the result of a Stock
Exchange, and fractional interests shall be rounded up or down to the nearest
whole number of shares.
(b) A Note (as defined) in an original principal amount determined by
multiplying (i) the number of GSHS Shares to be exchanged in an Exchange by (ii)
the PGSSV (each such Exchange, a "Note Exchange"); provided that the principal
amount of each Note shall be in whole U.S. dollars only, and fractions of a
dollar shall be rounded up or down to the nearest whole dollar. In the event of
any Note Exchange, Charter may elect, in its sole discretion upon notice
pursuant to Section 9.11 not more than five business days after receipt by
Charter of a notice of exchange relating to a Note Exchange, to pay to the
Seller making such Exchange a cash payment equal to all, but not less than all,
of the original principal amount of the Note to be issued in such Exchange in
lieu of issuing such Note (a "Cash Election").
0.4 Note Defined. The term "Note" (collectively, the "Notes") means
(a) Charter's nonnegotiable, subordinated promissory note in the form of Exhibit
A; (b) executed on behalf of Charter by a duly authorized officer and attested
by Charter's Secretary or an Assistant Secretary; (c) made payable to a Seller
upon a Note Exchange; (d) dated the date of a Note Exchange; and (e) completed
in a principal amount determined pursuant to Section 1.3.(b).
0.5 Other Exchange Terms. Each Exchange and all Exchanges shall
be on and subject to the following terms and conditions:
(a) Each Exchange must be in whole a Stock Exchange or a Note
Exchange; provided, however, that a Seller may make both a Stock Exchange and a
Note Exchange on the same day; provided that each such Exchange is in accordance
with this Agreement.
(b) No Exchange, as provided in Section 1.3, shall be an exchange of
less than 82 GSHS Shares (subject to adjustment pursuant Section 3); each
Exchange shall be only for a whole number of GSHS Shares.
0.6 Notice of an Exchange. This Section 1.6 provides the exclusive
means and required procedure for the making of an Exchange by a Seller. A Seller
may make an Exchange by giving written notice to Charter pursuant to Section
9.11, and such notice shall be signed on behalf of such Seller by a duly
authorized officer of such Seller and shall include the following:
(a) The date of the Exchange, which date shall be designated by
Seller and shall be not less than ten business days and not more than 20
business days after Charter's receipt (as notices are deemed to be received
under Section 9.11) of the notice (the "Exchange Date").
(b) The number of whole GSHS Shares to be exchanged.
(c) The type of Exchange (Stock or Note).
(d) If the Exchange is a Stock Exchange, the number of certificates
for shares of Charter Common Stock to be issued upon Exchange and the
denomination of each such certificate.
(e) Seller's acknowledgment that a notice of an Exchange shall be
irrevocable by Seller, and not subject to amendment or withdrawal, after the
close of business on the 5th business day prior to the Exchange Date.
Each Exchange shall be on and subject to the following terms and
conditions:
(i) Notice of an Exchange must be received by Charter (as notices are
deemed to be received pursuant to Section 9.11) not earlier than the 20th
business day prior to the Exchange Date and not later than the 10th business day
prior to the Exchange Date.
(ii) A notice of an Exchange shall be irrevocable from and after the 5th
business day prior to an Exchange Date.
(iii) Certificates for shares of Charter Common Stock issuable upon a Stock
Exchange shall be registered only in the name of the exchanging Seller and in
denominations of not less than 1,000 shares of Charter Common Stock, except that
one certificate issued in an Exchange may be for less than 1,000 shares.
(iv) One Note (and not more than one Note) shall be issued upon each Note
Exchange, and the payee of each such Note shall be the exchanging Seller.
(v) Exchanges shall otherwise be effected in accordance with Section 2.
0.7 Deliveries. Subject to Section 2.1, delivery by an exchanging
Seller to Charter of a certificate or certificates for the GSHS Shares being
exchanged in an Exchange shall be made on the Exchange Date at the office of
Charter listed in Section 9.11, and delivery by Charter to an exchanging Seller
of a certificate or certificates for shares of Charter Common Stock, a Note, or
cash payment in lieu of a Note, as the case may be, shall be made on the
Exchange Date against receipt by Charter of such certificate or certificates for
the GSHS Shares being exchanged. With respect to an Exchange, Charter and the
exchanging Seller shall have the right, by mutual agreement, to change the
manner, time and place of such deliveries without having to amend this
Agreement. (The deliveries provided by this Section 1.7 are referred to as an
"Exchange Closing.")
SECTION TWO
ISSUANCE AND DELIVERY OF SHARES AND NOTES
2.1 Issuance and Delivery of Shares of Charter Common Stock to a
Seller. In the case of a Stock Exchange, at the Exchange Closing, Charter shall
issue and deliver to the exchanging Seller one or more certificates for shares
of Charter Common Stock in definitive form, registered in the name of such
Seller for the applicable
number of shares of Charter's Common Stock. All shares of Charter Common Stock
issued upon an Exchange shall, upon issuance, be duly and validly issued, fully
paid and nonassessable, not in violation of any pre-emptive rights, and free
from all taxes, liens and charges with respect to such shares. Charter has
reserved and will at all times during the Exchange Period reserve and keep
available out of its authorized but unissued shares of Charter Common Stock or
issued shares held in treasury, solely for the purpose of issuance upon exchange
of GSHS Shares, such number of shares of Charter Common Stock as may become
issuable upon the exchange of all outstanding GSHS Shares as owned at the date
of this Agreement by Sellers, exchanged on the basis of the Exchange Price and
PGSSV. Charter will take all such actions as may be necessary to assure that all
such shares of Charter Common Stock may be issued without violation of any
applicable law or governmental regulation or any requirements of any domestic
securities exchange upon which shares of Charter Common Stock may be listed
(except for official notice of issuance which will be immediately transmitted to
the applicable stock exchange by Charter upon issuance).
2.2 Issuance and Delivery of a Note. In the case of a Note Exchange,
at the Exchange Closing, Charter shall (a) execute and deliver to the exchanging
Seller its Note on the terms and conditions set forth in Section 1.4 or (b) in
the event of a Cash Election, pay to Seller a cash payment in the original
principal amount of such Note by wire transfer or immediately available funds to
an account designated by such Seller at least 2 business days prior to the
Exchange Date.
2.3 Transfer of a Seller's GSHS Shares. At the Exchange Closing for
an Exchange, the exchanging Seller shall deliver to Charter one or more GSHS
common stock certificates in the name of such Seller and representing the GSHS
Shares to be exchanged. The GSHS Shares transferred to Charter upon a Stock or
Note Exchange shall be deemed to be transferred to Charter on the Exchange Date.
All GSHS shares which are transferred upon an Exchange shall be duly and validly
issued, fully paid and nonassessable, not in violation of any pre-emptive
rights, and free from all taxes, liens and charges with respect to such shares.
Certificates for GSHS Shares being exchanged shall be duly endorsed for transfer
or accompanied by duly executed stock powers.
2.4 Additional Instruments of Transfer. Charter and Sellers agree,
from time to time at Charter's or a Seller's, as the case may be, reasonable
request and without further consideration, to execute and deliver such
instruments of transfer, conveyance and assignment in addition to those
delivered pursuant to this Section 2 as Charter or a Seller, as the case may be,
shall request to transfer, convey and assign more effectively the shares of
Charter Common Stock, a Note or GSHS Shares with respect to an Exchange.
SECTION THREE
ANTI-DILUTION PROVISIONS
3.1 Application of Section 3 to GSHS Shares and Charter Common Stock.
Charter and Sellers agree that this Section 3 applies to GSHS Shares, Charter
Common Stock, PGSSV and the Exchange Price. In the case of GSHS, the terms used
in this Section 3 shall have the following meanings: (a) Company shall mean
GSHS; (b) Stock shall mean the common stock of GSHS; (c) Price shall mean PGSSV;
and (d) New Stock shall mean the class or series of securities received by
holders of GSHS Shares in exchange for shares of GSHS Shares upon the occurrence
of an event described in Section 3.3. In the case of Charter, the terms used in
Section 3 shall have the following meanings: (a) Company shall mean Charter; (b)
Stock shall mean Charter Common Stock; (c) Price shall mean the Exchange Price;
and (d) New Stock shall mean the class or series of securities received by
holders of Charter Common Stock in exchange for shares of Charter Common Stock
upon the occurrence of an event described in Section 3.3.
3.2 Dividend or Distribution; Subdivision or Combination of Stock. If
the Company shall (i) pay a dividend or make a distribution on Stock in shares
of such Stock, (ii) subdivide or split the outstanding Stock into a greater
number of shares or (iii) combine the outstanding Stock into a smaller number of
shares, then the Price in effect immediately prior to such event shall be
adjusted so that (A), with respect to the Exchange Price, the Sellers shall be
entitled to receive the number of shares of Stock which Sellers would have owned
or have been entitled to
receive after the occurrence of any of the events described above had such
shares been the subject of an Exchange immediately prior to such event or the
record date for such event, whichever is earlier; and (B), with respect to
PGSSV, PGSSV shall be adjusted to equal the quotient obtained by dividing
Seller's GSHS Value by the number of GSHS Shares that would be owned in the
aggregate by Sellers immediately after such event (x) if all Sellers immediately
prior to such event owned (1) the number of GSHS Shares listed besides Sellers'
names in the fourth "WHEREAS" clause, plus (2) the number of GSHS Shares that
would have been received in the aggregate by Sellers as the result of previous
events of the type described in (i) through (iii) above, and (y) calculated as
if no Exchange or other dispositions of GSHS Shares on the part of any Seller
had taken place between the date of this Agreement and the event that gives rise
to the adjustment. An adjustment made pursuant to this Section 3.2 shall become
effective immediately after the close of business on the record date for
determination of stockholders entitled to receive such dividend or distribution
in the case of a dividend or distribution and shall become effective immediately
after the close of business on the effective date in the case of a subdivision,
split, combination or issuance.
3.3 Reorganization, Reclassification, Sale or Merger, Special
Dividends. If at any time from the date of this Agreement until the later of (i)
the day after the Exchange Closing in which the last GSHS Shares have been
exchanged for shares of Charter Common Stock pursuant to this Agreement (the
"Last Exchange Closing") or (ii) the end of the Exchange Period, any capital
reorganization or reclassification of the capital stock of the Company, any Sale
or Merger of the Company (as defined) or any distribution for no consideration,
by dividend or otherwise, to the holders of Stock (excluding regular cash
dividends in the ordinary course of business) shall be effected in such a way
that holders of Stock shall be entitled to receive stock, securities or assets
with respect to or in exchange for Stock (such stock, securities or assets are
referred to together as the "New Stock") then, as a condition of such
reorganization, reclassification, Sale, Merger or distribution, lawful and
adequate provisions shall be made whereby Sellers and Charter shall thereafter
have the right to acquire and receive upon an Exchange, in lieu of or in
addition to the shares of Stock receivable in an Exchange immediately prior to
such event, such number of shares or other amount of New Stock as would have
been issued or paid with respect to the number of shares of Stock involved in an
Exchange if the Exchange had occurred immediately prior to reorganization,
reclassification, Sale, Merger or distribution. In the event of a Sale or Merger
of the Company as a result of which a greater or lesser number of shares of New
Stock of the surviving corporation are issuable to holders of Stock outstanding
immediately prior to such Sale or Merger, the Price in effect immediately prior
to such Sale or Merger shall be adjusted in the same manner as though there were
a subdivision or combination of the outstanding shares of Stock. Charter shall
not effect any such Sale or Merger of Charter, unless prior to the consummation
of such Sale or Merger the successor corporation (if other than Charter)
resulting from such Merger or Sale or the corporation purchasing such assets
shall assume by written instrument the obligation to deliver to Sellers such
shares or other amount of New Stock, in accordance with the foregoing
provisions, Sellers may be entitled to receive upon an Exchange. For purposes of
Section 3.3, a "Sale or Merger" of the Company shall mean (a) the sale of all or
substantially all of the Company's assets followed by a liquidation of the
Company, or (b) the acquisition of the Company by another entity by way of
merger, consolidation, share exchange or other similar business transaction
resulting in the exchange of the Stock of the Company for securities or
consideration issued, or caused to be issued, by the acquiring corporation or
its parent or subsidiary.
3.4 Notice of Adjustment. Upon any adjustment of the Price or Stock,
then and in each such case Charter shall give written notice to each Seller,
which notice shall describe the adjustment, setting forth in reasonable detail
the method of calculation and the facts upon which such calculation is based.
3.5 No Dilution or Impairment. Charter will not, by amendment of its
certificate of incorporation or through any reorganization, consolidation,
dissolution, Sale or Merger, or by any other voluntary act or deed, avoid or
seek to avoid the performance or observance of any of the terms of this
Agreement, but shall at all times in good faith assist in the carrying out of
all provisions of this Agreement and in the taking of all other action which may
be
necessary or appropriate in order to protect the rights of the Sellers against
dilution in an Exchange or in Exchanges.
SECTION FOUR
SECURITIES MATTERS
4.1 Compliance with Section 6.13 of the Stock Purchase Agreement.
Charter covenants and agrees with Sellers that it will comply with the
provisions of Section 6.13(a) of the Stock Purchase Agreement that relate to the
offer and issuance of shares of Charter Common Stock under this Agreement or, as
an alternative to such covenant and agreement, Charter represents and warrants
to Sellers that it has complied with Section 6.13(b) of the Stock Purchase
Agreement prior to the execution of this Agreement.
4.2 Indemnification. Charter and Sellers mutually covenant and agree
that the indemnification provisions of Section 6.13(a) of the Stock Purchase
Agreement shall, in accordance with their terms, apply to securities laws
aspects of the offer and issuance of shares of Charter Common Stock pursuant to
this Agreement.
SECTION FIVE
Rule 144
For so long as any Seller is or may be subject to the volume and
other restrictions of Rule 144 under the Securities Act, Charter shall use
diligent efforts to comply with the requirements of Rule 144 applicable to
Charter under the Securities Act, as such Rule may be amended from time to time
(or any similar rule or regulation adopted by the Securities and Exchange
Commission after the date of this Agreement), including but not limited to the
availability of current public information to the extent required to enable any
Seller to sell shares of Charter Common Stock acquired under the Stock Purchase
Agreement and this Agreement pursuant to Rule 144 (or any similar rule or
regulation). Upon the request of any Seller, Charter will deliver to such Seller
a written statement as to whether it has complied with such requirements.
SECTION SIX
GSHS SHARES OWNERSHIP REPRESENTATIONS AND WARRANTIES
6.1 Title. Each Seller has and on an applicable Exchange Date will
have good and valid title to the GSHS Shares subject to such Exchange, free and
clear of all claims, liens, pledges, options, charges, security interests,
encumbrances or other rights of third parties ("Encumbrances"), other than the
Stockholders' Agreement dated the date of this Agreement among GSHS, Charter and
Sellers (the "Stockholders' Agreement), with full right, power and authority to
transfer and sell such GSHS Shares to Charter upon an Exchange.
6.2 Transfer. The certificate or certificates for GSHS Shares
delivered to Charter at each Exchange Closing, and any related instruments of
transfer, will be sufficient to transfer and vest in Charter good and valid
title to such GSHS Shares, free and clear of all Encumbrances.
SECTION SEVEN
CHARTER'S REPRESENTATIONS AND WARRANTIES
7.1 General.
(a) Charter represents and warrants to Sellers as provided
in Sections 5.1, 5.2 (but only as it relates to this Agreement), 5.3 (but only
as it relates to this Agreement) and 5.5 of the Stock Purchase Agreement.
(b) Charter represents and warrants that (i) all shares of
Charter Common Stock issued upon an Exchange shall, upon issuance, be duly and
validly issued, fully paid and nonassessable, not in violation of any
pre-emptive rights, and free from all taxes, liens and charges with respect to
such shares; (ii) Charter has reserved and will at all times during the Exchange
Period reserve and keep available out of its authorized but unissued shares of
Charter Common Stock or issued shares held in treasury, solely for the purpose
of issuance upon Exchange of GSHS shares, such number of shares of Charter
Common Stock as may become issuable upon the exchange of all outstanding GSHS
Shares as owned at the date of this Agreement by Sellers, exchanged on the basis
of the Exchange Price and PGSSV.
7.2 Notes. Charter represents and warrants that each Note issued
pursuant to this Agreement will have been authorized and executed and will be
binding on Charter to the same extent and effect as Charter has represented the
authorization, execution and binding effect of the Stock Purchase Agreement in
Section 5.2 of such agreement.
SECTION EIGHT
CONDITIONS PRECEDENT TO EACH EXCHANGE
8.1 Conditions Precedent to the Obligation of Charter to Exchange.
The obligation of Charter to issue and deliver certificates for shares of
Charter Common Stock or a Note (or cash in lieu of a Note) at an Exchange
Closing, is subject to the satisfaction, on or before such date, of the
following conditions:
(a) Performance. The exchanging Seller shall have complied with
Sections 1.6, 1.7, 2.3 and 2.4, and shall have performed and complied in all
material respects with all other agreements and covenants contained in this
Agreement required to be performed or complied with by it prior to or on the
date of the Exchange Closing.
(b) Representations and Warranties True. Each of the
representations and warranties of such Seller contained in this Agreement shall
be true and correct as of the date of the Exchange Closing.
(c) All Proceedings to be Satisfactory. All corporate and other
proceedings to be taken by the exchanging Seller in connection with Exchange and
all related documents shall be satisfactory in form and substance to Charter and
its counsel, and Charter and its counsel shall have received all such certified
and other copies of such documents as they may reasonably request.
8.2 Conditions Precedent to the Obligations of Each Seller to
Exchange. The obligation of a Seller to deliver GSHS Shares at an Exchange
Closing is subject to the satisfaction, on such date, of the following
conditions:
(a) Performance. Charter shall have complied with Sections 1.7, 2.1,
2.2 (to the extent applicable), 2.4 and 4.1 and shall have performed and
complied in all material respects with all other agreements and covenants
contained in this Agreement required to be performed or complied with by it
prior to or on the date of the Exchange Closing.
(b) Representations and Warranties True. Each of the
representations and warranties of Charter contained in this Agreement shall be
true and correct as of the date of the Exchange Closing.
(c) All Proceedings to be Satisfactory. All corporate and other
proceedings to be taken by Charter in connection with the Exchange and all
related documents shall be satisfactory in form and substance to such Seller and
its counsel, and such Seller and its counsel shall have received all such
certified and other copies of such documents as they may reasonably request.
SECTION NINE
MISCELLANEOUS
9.1 Applicable Law. The validity, construction and performance
of this Agreement shall be governed by and construed in accordance with the laws
of the State of Delaware, without reference to any choice of law principles of
such State.
9.2 Severability. If any provision of this Agreement shall be held to
be illegal, invalid or unenforceable, that provision will be enforced to the
maximum extent permissible so as to effect the intent of the parties, and the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby. If necessary to effect the intent of
the parties, the parties will negotiate in good faith to amend this Agreement to
replace the unenforceable language with enforceable language which as closely as
possible reflects such intent.
9.3 Amendments and Waivers. This Agreement may not be modified or
amended except by an instrument or instruments in writing signed by the party
against whom enforcement of any such modification or amendment is sought. Any
party to this Agreement may, only by an instrument in writing, waive compliance
by the other party to this Agreement with any term or provision of this
Agreement. The waiver by any parties to this Agreement of a breach of any term
or provision of this Agreement shall not be construed as a waiver of any
subsequent breach.
9.4 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts shall have been signed by
each party and delivered to the other parties.
9.5 Entire Agreement. This Agreement, the New Stockholders' Agreement
(as defined in the Stock Purchase Agreement) and the other agreements and
documents contemplated by such agreements constitute the entire agreement and
understanding among the parties to this Agreement and supersede any prior
agreement or understanding, whether oral or written, between the parties
relating to the matters contemplated by this Agreement.
9.6 No Assignment.
(a) No party shall, directly or indirectly, assign this Agreement or
any of its rights or obligations under this Agreement without the prior written
consent of the other parties except as provided in Section 9.6(d); provided,
however, that Charter shall have the right to grant to or for the benefit of its
lenders under the Credit Agreement (as defined in the Stock Purchase Agreement)
a security interest in its rights under this Agreement pursuant to the Credit
Agreement and the documents securing the same from time to time.
(b) Any attempted assignment of this Agreement in violation of
this Section 9.6 shall be void and of no effect.
(c) This Agreement shall be binding upon, inure to the benefit of and
be enforceable by the parties and their respective successors and permitted
assigns.
(d) A Seller shall have the right to assign to any Third Party
Purchaser (as defined in the Stockholders' Agreement) from such Seller and to
any transferee in a Permitted Transfer (as defined in the Stockholders'
Agreement) pursuant to Section 1.62(f) of the Stockholders' Agreement Seller's
right to exchange pursuant to this Agreement the GSHS Shares sold or otherwise
transferred to such Third Party Purchaser or such transferee by such Seller.
9.7 No Third-Party Beneficiaries. This Agreement is for the sole
benefit of the parties and their permitted assigns, and nothing in this
Agreement expressed or implied shall give or be construed to give to any person,
other than the parties and permitted assigns, any legal or equitable rights
under this Agreement.
9.8 Miscellaneous. The parties acknowledge and agree that irreparable
damage would occur in the event any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
Accordingly, the parties 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 of this Agreement in any court of the United States or
any state having jurisdiction, in addition to any other remedy to which they may
be entitled at law or equity.
9.9 Additional Remedies. Nothing in this Agreement shall be construed
as limiting the right of any party to commence litigation against any other
party alleged to be in default under this Agreement. Such litigation shall be in
addition to, and not in substitution for, any other remedies that may be
available under this Agreement or otherwise.
9.10 Section Headings. The section headings in this Agreement are
inserted for reference only and shall not limit or otherwise affect the meaning
of this Agreement. All capitalized terms defined in this Agreement are equally
applicable to both the singular and plural forms of such terms.
9.11 Notices. All notices under this Agreement shall be sufficiently
given for all purposes under this Agreement if in writing (a) when delivered
personally; (b) three Business Days after mailing in the United States Postal
Service; (c) one day after sending by documented overnight delivery service; or
(d) when receipt is confirmed, by telecopy, telefax or other electronic
transmission service to the appropriate address or number as set forth below.
Notices to Sellers shall be addressed to:
Blue Cross and Blue Shield of New Jersey, Inc.
▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Pures
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Blue Cross and Blue Shield of New Jersey, Inc.
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▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Health Care Service Corporation
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Independence Blue Cross
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
Independence Blue Cross
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and
Dilworth, Paxson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
3200 Mellon Bank Center
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▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ County Medical Bureau, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy of Notices to any Seller to:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, LLP
1800 Mercantile Bank and Trust ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address and to the attention of such other person as each
Seller may designate by written notice to Charter. Notices to Charter shall be
addressed to:
Charter Medical Corporation
Suite 1400
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
Charter Medical Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and
King & Spalding
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address and to the attention of such other person as Buyer may
designate by written notice to Sellers.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by a duly authorized officer on the 13th day of December, 1995.
CHARTER:
CHARTER MEDICAL CORPORATION
By:
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Name:
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Title:
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SELLERS:
BLUE CROSS AND BLUE SHIELD OF NEW JERSEY,
INC.
By:
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Name:
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Title:
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HEALTH CARE SERVICE CORPORATION
By:
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Name:
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Title:
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INDEPENDENCE BLUE CROSS
By:
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Name:
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Title:
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▇▇▇▇▇▇ COUNTY MEDICAL BUREAU, INC.
By:
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Name:
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Title:
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