{"id":41312,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/share-exchange-and-registration-rights-agreement-aetna-inc-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"share-exchange-and-registration-rights-agreement-aetna-inc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/share-exchange-and-registration-rights-agreement-aetna-inc-and.html","title":{"rendered":"Share Exchange and Registration Rights Agreement &#8211; Aetna Inc. and Citibank NA"},"content":{"rendered":"<pre>                SHARE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT\n\n\n         SHARE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT dated as of December\n16, 1999 between Aetna Inc., a Connecticut corporation (the 'COMPANY') and\nCitibank, N.A. ('Citibank').\n\n                                    WHEREAS,\n\n       Citibank has entered into the Loan Agreement with Ta Hsing, which Loan\nAgreement is secured in part by a pledge of 20% of the shares of ALICA Holdings,\nInc., a Connecticut corporation that owns all of the non-voting shares of common\nstock of Aetna Life Insurance Company of America ('ALICA');\n\n         Aetna International, Inc. ('AII'), a subsidiary of the Company, owns\nthe remaining shares of ALICA and ALICA Holdings;\n\n       In order to assist Ta Hsing in obtaining the loan evidenced by the Loan\nAgreement, AII has consented to the pledge by Ta Hsing of Ta Hsing's shares of\nALICA Holdings in favor of Citibank and the Company has agreed to enter into\nthis Agreement.\n\nIn consideration of the foregoing and the agreements contained herein, the\nparties agree as follows.\n\n                                    ARTICLE I\n\n                                   DEFINITIONS\n\n         SECTION 1.01. Definitions. The following terms, as used herein, have\nthe following meanings:\n\n       '1933 ACT' means the Securities Act of 1933, as amended, and the rules\nand regulations thereunder.\n\n       '1934 ACT' means the Securities Exchange Act of 1934, as amended and the\nrules and regulations thereunder.\n\n       'AII' has the meaning ascribed to it in the preambles to this Agreement.\n\n       'ALICA' has the meaning ascribed to it in the preambles to this\nAgreement.\n\n       'ANCILLARY AGREEMENT' OR 'ANCILLARY AGREEMENTS' means all other documents\nentered into between Ta Hsing and Citibank in connection with the Loan\nAgreement, including, without limitation, a share mortgage relating to the\nCollateral.\n\n       'BUSINESS DAY' means any day except a Saturday, Sunday or other day on\nwhich commercial banks in either of the States of New Jersey or New York are\nauthorized by law to close.\n\n       'COLLATERAL' means the 20% of the shares of common stock of ALICA\nHoldings, Inc., a Connecticut corporation, owned by Ta Hsing and pledged under a\nshare mortgage to secure payment of the loan under the Loan Agreement.\n\n       'COLLATERAL VALUE' has the meaning ascribed to it in Section 2.05.\n\n       'COMMISSION' means the Securities and Exchange Commission.\n\n       'COMMON STOCK' means the Company's Common Stock, par value $0.01 per\nshare.\n\n       'COMPANY'S 1999 FORM 10-Q' means the Company's quarterly report on Form\n10-Q as filed with the Securities and Exchange Commission pursuant to the\nSecurities Exchange Act of 1934, as amended.\n\n       'CONSOLIDATED SUBSIDIARY' means, at any date, any Subsidiary or other\nentity the accounts of which would be consolidated with those of the Company in\nits consolidated financial statements if such statements were prepared as of\nsuch date.\n\n       'LENDER DEFAULT AMOUNT' means the sum of all unpaid principal, accrued\ninterest, costs and other amounts due and owing to Citibank by Ta Hsing under\nthe Loan Agreement from time to time and as certified by Citibank (whose\ncertification shall be conclusive and binding on the Company and Citibank in the\nabsence of demonstrable error) following the occurrence of an Event of Default\nas defined in the Loan Agreement.\n\n       'LOAN AGREEMENT' means that certain revolving credit facility in the\noriginal principal amount of US $154 million between Citibank and Ta Hsing dated\nor to be dated 17 December 1999.\n\n       'MINIMUM VALUE' has the meaning ascribed to it in Section 2.05.\n\n       'PERSON' means an individual, a corporation, a partnership, a limited\nliability company, an association, a trust or other entity or organization,\nincluding a government or political subdivision or an agency or instrumentality\nthereof.\n\n         'PIGGYBACK REGISTRATION' means a Piggyback Registration as defined in\nSection 3.02.\n\n       'REGISTRABLE SECURITIES' means all shares of Common Stock issued to\nCitibank or its nominee upon the exercise by the Company of the right to issue\nshares of Common Stock contained in Section 2.01 of this Agreement.\n\n         'SHELF REGISTRATION STATEMENT' means the Shelf Registration Statement\nas defined in Section 3.01.\n\n\n                                       2\n\n       'SUBSIDIARY' means any corporation or other entity of which securities or\nother ownership interests having ordinary voting power to elect a majority of\nthe board of directors or other persons performing similar functions are at the\ntime directly or indirectly owned by the Company.\n\n       'TA HSING' means Ta Hsing Corp. Limited, a Liberian company controlled by\nDr. Samuel Yin.\n\n       'UNDERWRITER' means a securities dealer who purchases any Registrable\nSecurities as principal and not as part of such dealer's market-making\nactivities.\n\n                                    ARTICLE 2\n\n                              SHARE EXCHANGE RIGHTS\n\nSECTION 2.01 Aetna Options on Event of Default. If any Event of Default, as\ndefined in the Loan Agreement or any Ancillary Agreement, shall occur and be\ncontinuing under circumstances in which Citibank has the right to exercise its\npower of sale in respect of the Collateral, then Citibank shall promptly after\nbecoming aware of the same so notify the Company and certify the Lender Default\nAmount to the Company. Upon receipt of notice from Citibank that Citibank has\nelected to exercise such power of sale, the Company shall be obliged forthwith\nto pay Citibank or its nominee in full the Collateral Value, but not to exceed\nLender Default Amount, which it may do in one or a combination of the following,\nsuch combination being chosen at the discretion of the Company:\n\n         (a)      Cash in immediately available funds wired to an account\n                  designated in writing by Citibank;\n\n         (b)      Registrable Securities, determined in accordance with Section\n                  4.03.\n\nProvided that, to the extent that payment is made in whole or in part by\nRegistrable Securities, the Lender Default Amount shall not be reduced and shall\ncontinue to accrue interest and\/or default interest under the Loan Agreement\nuntil the Registrable Securities are sold and the proceeds of such sale applied,\nas described in Sections 2.03 and 3.04.\n\nSECTION 2.02 Transfer of Collateral to Aetna In exchange for and in\nconsideration of the Company's payment(s) to Citibank or its nominee described\nin Section 2.01, concurrently with such payment(s), Citibank or its nominee\nshall immediately exercise its power of sale in favour of AII in respect of all\nof the Collateral.\n\nSECTION 2.03 Citibank Rights on Receipt of Shares If the Company shall issue\nRegistrable Securities to Citibank or its nominee under Section 2.01, then\nCitibank or its nominee shall have the right to sell such Registrable Securities\nunder the following terms:\n\n                                       3\n\n       (a)    If the Company provides Citibank or its nominee with an opinion of\n              reputable outside counsel that the Registrable Securities may\n              immediately be sold under SEC Rule 144 or any successor rule, then\n              Citibank or its nominee shall be required to sell such number of\n              Registrable Securities as may then be sold pursuant to Rule 144\n              and may not exercise the rights set forth in Article 3 of this\n              Agreement with respect to such Registrable Shares.\n\n       (b)    If the Company is unable to or does not provide Citibank or its\n              nominee with such an opinion as to any or all of the Registrable\n              Securities, then Citibank or its nominee may exercise the rights\n              set forth in Article 3 with respect to the Registrable Securities\n              that are not subject to immediate sale pursuant to the opinion\n              received pursuant to Section 2.03(a) above by giving written\n              notice to the Company of its intent to exercise such rights.\n\nCitibank or its nominee shall sell all the Registrable Securities that may be\nimmediately sold promptly after receipt of the opinion referenced in Section\n2.03(a) above, and shall apply the proceeds of any such sale in or towards\nsatisfaction of the Lender Default Amount. Where the proceeds of such sale\nexceed the Lender Default Amount, Citibank will promptly pay such excess amount\nto the Company in cash in immediately available funds and return to the Company\nany residual Registrable Securities held by Citibank or its nominee. If the\nproceeds of such sale are less than the Lender Default Amount, the Company will\nproceed with the registration as provided in Article 3 below, provided that if\nall Registrable Securities have been sold by Citibank or its nominee then\npromptly following receipt of a certificate from Citibank or its nominee stating\nthe amount of the shortfall (which certificate shall be binding on the Company\nand Citibank and\/or its nominee in the absence of demonstrable error) the\nCompany will pay the amount of such shortfall to Citibank or its nominee in cash\nin immediately available funds.\n\nSECTION 2.04 Nature of Registrable Securities Citibank acknowledges that the\nRegistrable Securities will, when issued to it, be 'restricted securities' under\nthe 1933 Act and may not be resold absent compliance with Section 2.03 or\nArticle 3.\n\nSECTION 2.05 Maintenance of Collateral Value Throughout the continuance of this\nAgreement and in consideration of having no other operating covenants or\nrestrictions related to ALICA, the Company covenants and agrees that it will\ncause its Subsidiary, Aetna International, Inc. the controlling shareholder of\nALICA, to maintain the ALICA in such a manner that the fair market value of the\nCollateral (the 'Collateral Value'), as may be determined by an\ninternationally-recognized independent appraisal company reasonably selected by\nthe Company, will not fall below $175 million (the 'Minimum Value'). Immediately\nupon receipt of notice from pursuant to Clause 2.1 above that Citibank has\nelected to exercise it right of sale, the Company will furnish Citibank with a\nestimate of the Collateral Value. If this estimate indicates that Aetna is not\nin compliance with the covenant contained in the first sentence of this Clause\n(i.e. the estimate is less than the Minimum Value), then in lieu of any other\ndetermination of damages resulting from such non-compliance and in liquidation\nof any such damages the amount\n\n                                       4\n\npayable to Citibank pursuant to Clause 2.1 shall be the Lender Default Amount,\nwithout regard to the Collateral Value.\n\nSECTION 2.06 No Default or Acceleration The Company's obligation to make payment\nunder this Article 2, if timely made, shall not be deemed to be an event of\ndefault or acceleration of an obligation of Company, notwithstanding the\nexistence of an Event of Default with respect to the Borrower's obligations or a\ndetermination of non-compliance pursuant to Clause 2.05 above.\n\n                                    ARTICLE 3\n\n                               REGISTRATION RIGHTS\n\n       SECTION 3.01. Shelf Registration. (a) Promptly following receipt of a\nnotice from Citibank or its nominee under Section 2.03(b), the Company shall\nprepare and file with the Commission a shelf registration statement (as amended\nand supplemented from time to time, the 'SHELF REGISTRATION STATEMENT') relating\nto the Registrable Securities in accordance with Rule 415 under the 1933 Act and\nwill use its best efforts to cause such Shelf Registration Statement to be\ndeclared effective no later than the date which is forty-five (45) days from the\ndate of such notice under Section 2.03(b) and, subject to Section 6.01 hereof,\nto keep such Shelf Registration Statement continuously effective and in\ncompliance with the 1933 Act and usable for resale of such Registrable\nSecurities, for the greater of (a) a period from the date on which the\nCommission declares such Shelf Registration Statement effective until the first\ndate upon which the aggregate amount of Registrable Securities then owned by\nCitibank or its nominee could be sold without restriction as to amount or manner\nof sale pursuant to Rule 144 under the 1933 Act within 15 trading days or (b)\nfor at least a period of sixty (60) days; provided, however, that such 60-day\nperiod shall be extended for a period of time equal to the period Citibank or\nits nominee refrains from selling any securities included in such registration\nat the request of an underwriter of Common Stock (or other securities) engaged\nby the Company.\n\n       (b) If the aggregate proceeds from an offering of Registrable Securities\npursuant to the Shelf Registration Statement are expected to be more than $100\nmillion and if Citibank or its nominee so elects, such offering may be in the\nform of an underwritten offering. Citibank or its nominee shall select the\nmanaging Underwriters and any additional investment bankers and managers to be\nused in connection with such offering; provided that such managing Underwriters\nand additional investment bankers must be reasonably satisfactory to the\nCompany.\n\n       SECTION 3.02. Piggyback Registration. If the Company proposes to file a\nregistration statement under the 1933 Act with respect to an offering of Common\nStock (i) for the Company's own account (other than a registration statement on\nForm S-4 or S-8 (or any substitute form that may be adopted by the Commission))\nor (ii) for the account of any of its holders of Common Stock, then the Company\nshall give written notice of such proposed filing to Citibank or its nominee as\nsoon as practicable (but in no event less than 10 days before the anticipated\nfiling date), and such notice shall offer Citibank or its nominee the\nopportunity to register such number\n\n                                       5\n\nof shares of Registrable Securities as Citibank or its nominee may request on\nthe same terms and conditions as the Company's or such holder's Common Stock (a\n'PIGGYBACK REGISTRATION').\n\n       SECTION 3.03. Reduction of Offering. Notwithstanding anything contained\nherein, if the managing Underwriter of an offering described in Section 3.02\ndelivers a written opinion to the Company that (i) the size of the offering that\nCitibank, the Company and any other Persons intend to make or (ii) the\ncombination of securities that Citibank, the Company and such other Persons\nintend to include in such offering are such that the success of the offering\nwould be materially and adversely affected, then (A) if the size of the offering\nis the basis of such Underwriter's opinion, the amount of Registrable Securities\nto be offered for the account of Citibank shall be reduced to the extent\nnecessary to reduce the total amount of securities to be included in such\noffering to the amount recommended by such managing Underwriter; provided that\nin the case of a Piggyback Registration, if securities are being offered for the\naccount of Persons other than the Company, then the proportion by which the\namount of such Registrable Securities intended to be offered for the account of\nCitibank is reduced shall not exceed the proportion by which the amount of such\nsecurities intended to be offered for the account of such other Persons is\nreduced; and (B) if the combination of securities to be offered is the basis of\nsuch Underwriter's opinion, (x) the Registrable Securities to be included in\nsuch offering shall be reduced as described in clause (A) above (subject to the\nproviso in clause (A)), and (y) if the actions described in sub-clause (x) of\nthis clause (B) would, in the judgment of the managing Underwriter, be\ninsufficient substantially to eliminate the adverse effect that inclusion of the\nRegistrable Securities requested to be included would have on such offering,\nsuch Registrable Securities will be excluded from such offering.\n\n       SECTION 3.04. Sale following registration. Citibank agrees, and agrees to\ncause its nominee to use all reasonable efforts to sell all the Registrable\nSecurities promptly after the effective date of any relevant registration\nreferred to in this Article 3 and to apply the proceeds of any such sale in or\ntowards satisfaction of the Lender Default Amount. Where the proceeds of such\nsale exceed the Lender Default Amount, Citibank will promptly pay such excess\namount to the Company in cash in immediately available funds and return to the\nCompany any residual Registrable Securities held by Citibank or its nominee. If\non the earlier of (i) the date Citibank and\/or its nominee have sold all of the\nRegistrable Securities or (ii) on hundred and twenty (120) days following the\ndate of notice from Citibank pursuant to Section 2.03(b), if the aggregate\nproceeds received by Citibank and its nominee(s) from any sale of Registrable\nSecurities is less than the Lender Default Amount (including in circumstances\nwhere the Registrable Securities have not all been sold within 120 days as\nabove), then promptly following receipt of a certificate from Citibank or its\nnominee stating the amount of such shortfall (which shortfall shall be the\namount required, after applying any sales proceeds, to ensure Citibank receives\nthe Lender Default Amount, such certificate shall be binding on the Company and\nCitibank and its nominee(s) in the absence of demonstrable error) the Company\nwill pay the amount of such shortfall to Citibank or its nominee in cash in\nimmediately available funds and if applicable, Citibank will return to the\nCompany any residual Registrable Securities held by Citibank or its nominee.\n\n                                    ARTICLE 4\n\n                             REGISTRATION PROCEDURES\n\n\n                                       6\n\n         SECTION 4.01. Filings; Information. In connection with the Shelf\nRegistration Statement pursuant to Section 3.01 hereof, the Company and Citibank\nagree as follows:\n\n       (a) Citibank will notify Company at least l0 days prior to making any\noffer or sale of any Registrable Securities pursuant to the Shelf Registration\nStatement. The Company shall be entitled, by notifying Citibank within 5 days of\nreceiving the aforementioned notice from the Citibank, to postpone or suspend\nfor a reasonable period of time (in no event to exceed 75 days) the offering of\nany Registrable Securities if the Company shall determine in good faith that\nsuch offering will interfere with a pending or contemplated financing, merger,\nsale or acquisition of assets, recapitalization or other corporate action or\npolicies of the Company. If the Company elects to so postpone or suspend the\noffering of any Registrable Securities, the Company shall, to the extent\nnecessary, amend or supplement the Shelf Registration Statement to permit the\noffering of Registrable Securities within 75 days of receiving the\naforementioned notice from the Citibank.\n\n       (b) The Company will, if requested, prior to filing the Shelf\nRegistration Statement or any amendment or supplement thereto (but not including\nany document incorporated by reference in the Shelf Registration Statement),\nfurnish to Citibank or its nominee and each applicable managing Underwriter, if\nany, without charge, copies thereof, and thereafter furnish to Citibank or its\nnominee and each such Underwriter, if any, without charge, such number of copies\nof such registration statement, amendment and supplement thereto (including all\nexhibits thereto and any document incorporated by reference in the Shelf\nRegistration Statement) and the prospectus included in such registration\nstatement (including each preliminary prospectus) as Citibank or its nominee or\neach such Underwriter may reasonably request in order to facilitate the sale of\nthe Registrable Securities.\n\n       (c) After the filing of the Shelf Registration Statement, the Company\nwill promptly notify Citibank or its nominee of any stop order issued or, to the\nCompany's knowledge, threatened to be issued by the Commission and use its best\nefforts to prevent the entry of such stop order or to remove it if entered at\nthe earliest possible date.\n\n       (d) The Company will use its best efforts in cooperation with Citibank or\nits nominee and the Underwriters or agents, as the case may be, to qualify the\nRegistrable Securities for offer and sale under such other securities or blue\nsky laws of such jurisdictions in the United States as Citibank or its nominee\nreasonably requests; provided that the Company will not be required to (i)\nqualify generally to do business in any jurisdiction where it would not\notherwise be required to qualify but for this paragraph (d), (ii) subject itself\nto taxation in any such jurisdiction or (iii) consent to general service of\nprocess in any such jurisdiction.\n\n       (e) At any time when a prospectus relating to the sale of the Registrable\nSecurities is required by law to be delivered in connection with sales by an\nUnderwriter or dealer, the Company will as promptly as is practicable notify\nCitibank or its nominee of the occurrence of any event requiring the preparation\nof a supplement or amendment to such prospectus so that, as thereafter delivered\nto the purchasers of such Registrable Securities, such prospectus will not\ncontain an untrue statement of a material fact or omit to state any material\nfact required to be\n\n                                       7\n\nstated therein or necessary to make the statements therein, in the light of the\ncircumstances under which they were made, not misleading and shall as promptly\nas practicable make available to Citibank or its nominee and to the Underwriters\nany such supplement or amendment. Citibank agrees that, upon receipt of any\nnotice from the Company of the occurrence of any event of the kind described in\nthe preceding sentence, Citibank or its nominee will forthwith discontinue the\noffer and sale of Registrable Securities pursuant to the registration statement\ncovering such Registrable Securities until receipt by Citibank or its nominee\nand the Underwriters of the copies of such supplemented or amended prospectus\nand, if so directed by the Company, Citibank or its nominee will deliver to the\nCompany all copies, other than permanent file copies then in Citibank's or its\nnominee's possession, of the most recent prospectus covering such Registrable\nSecurities at the time of receipt of such notice.\n\n       (f) The Company will deliver to Citibank or its nominee and each\nUnderwriter or agent participating in an offering pursuant to the Shelf\nRegistration Statement, without charge, as many copies of each preliminary\nprospectus as Citibank or its nominee or such Underwriter or agent may\nreasonably request, and the Company hereby consents to the use of such copies\nfor purposes permitted by the 1933 Act. The Company will deliver to Citibank or\nits nominee and each Underwriter or agent participating in such offering,\nwithout charge, from time to time during the period when a prospectus is\nrequired to be delivered under the 1933 Act, such number of copies of such\nprospectus (as supplemented or amended) as Citibank or its nominee or such\nUnderwriter or agent may reasonably request.\n\n       (g) The Company will comply with the 1933 Act and the rules and\nregulations of the Commission thereunder, and the 1934 Act and the rules and\nregulations of the Commission thereunder so as to permit the completion of the\ndistribution of the Registrable Securities pursuant to the Shelf Registration\nStatement in accordance with the intended method or methods of distribution\ncontemplated in the prospectus relating thereto.\n\n       (h) Upon the request of Citibank or its nominee or the managing\nUnderwriter or agent, as the case may be, or if required by the rules,\nregulations or instructions applicable to the registration form used by the\nCompany, or by the 1933 Act or by any other rules and regulations thereunder in\nconnection with the offering of Registrable Securities pursuant to the Shelf\nRegistration Statement, the Company will prepare a prospectus supplement that\ncomplies with the 1933 Act and the rules and regulations of the Commission\nthereunder and that sets forth the aggregate amount of the Registrable\nSecurities being sold, the name or names of any Underwriters or agents\nparticipating in the offering, the price at which the Registrable Securities are\nto be sold, any discounts, commissions or other items constituting compensation,\nand such other information as Citibank or the managing Underwriter or agent, as\nthe case may be, and the Company deem appropriate in connection with the\noffering of the Registrable Securities prior to its being used or filed with the\nCommission.\n\n       (i) The Company may require Citibank or its nominee to promptly furnish\nin writing to the Company such information regarding the distribution of the\nRegistrable Securities as may be legally required in connection with such\nregistration.\n\n       (j) The Company will enter into customary agreements (including an\nunderwriting\n\n                                       8\n\nagreement in customary form) and take such other actions as are reasonably\nrequired in order to expedite or facilitate the sale of such Registrable\nSecurities.\n\n       (k) The Company will furnish to Citibank or its nominee and to each\nUnderwriter a signed counterpart, addressed to Citibank or its nominee or such\nUnderwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a\ncomfort letter or comfort letters from the Company's independent public\naccountants, each in customary form and covering such matters of the type\ncustomarily covered by opinions or comfort letters, as the case may be, as\nCitibank or its nominee or the managing Underwriter reasonably requests.\n\n       (l) The Company will file any reports required to be filed by it under\nthe 1933 Act and the 1934 Act and the rules and regulations of the Commission\nthereunder.\n\n       (m) The Company will use its reasonable efforts to cause all such\nRegistrable Securities to be listed on each securities exchange on which similar\nsecurities issued by the Company are then listed.\n\n       SECTION 4.02. Registration Expenses. In connection with the Shelf\nRegistration Statement and in connection with any Piggyback Registration, the\nCompany shall pay the following expenses incurred in connection with such\nregistration: (i) filing fees with the Commission, (ii) fees and expenses of\ncompliance with securities or blue sky laws (including reasonable fees and\ndisbursements of counsel in connection with blue sky qualifications of the\nRegistrable Securities), (iii) printing expenses, (iv) fees and expenses\nincurred in connection with the listing of the Registrable Securities, (v) fees\nand expenses of counsel and independent certified public accountants for the\nCompany; (vi) the reasonable fees and expenses of any additional experts\nretained by the Company in connection with such registration; and (vii) any\nunderwriting fees, discounts or commissions attributable to the sale of\nRegistrable Securities and any out-of-pocket expenses of Citibank.\n\n       SECTION 4.03 Offering Proceeds and Release of Citibank The Company and\nCitibank agree that the number of Registrable Securities shall be determined\nbased on the Company's reasonable estimate of the amount of such Securities that\nmust be registered in order to provide Citibank with net sale proceeds equal to\nthe Lender Default Amount. Under no circumstances will the Company be obligated\nto issue Citibank more than 3,200,000 shares of Registrable Securities.\nImmediately upon receipt of proceeds from the sale of Registrable Securities and\ncash payments from the Company in the aggregate amount of the Lender Default\nAmount, Citibank shall provide the Company with written acknowledgement of the\nsatisfaction and release in full of all obligations of the Company to Citibank\nunder this Agreement.\n\n                                    ARTICLE 5\n\n                        INDEMNIFICATION AND CONTRIBUTION\n\n       SECTION 5.01. Indemnification by the Company. The Company agrees to\nindemnify and hold harmless Citibank, its officers and directors, and each\nPerson, if any, who controls Citibank within the meaning of either Section 15 of\nthe 1933 Act or Section 20 of the 1934 Act from and\n\n\n                                       9\n\nagainst any and all losses, claims, damages and liabilities (or actions in\nrespect thereof) caused by any untrue statement or alleged untrue statement of a\nmaterial fact contained in any registration statement or prospectus relating to\nthe Registrable Securities (as amended or supplemented if the Company shall have\nfurnished any amendments or supplements thereto) or any preliminary prospectus,\noffering circular, or other document (including any related registration\nstatement, notification, or the like) incident to any such registration,\nqualification or compliance, or caused by any omission or alleged omission to\nstate therein a material fact required to be stated therein or necessary to make\nthe statements therein not misleading, except insofar as such losses, claims,\ndamages or liabilities are caused by any such untrue statement or omission or\nalleged untrue statement or omission based upon information, relating to\nCitibank or the plan of distribution furnished in writing to the Company by or\non behalf of Citibank expressly for use therein; and the Company will pay to\nCitibank, each of its officers and directors, or controlling person, any legal\nor other expenses reasonably incurred by them in connection with investigating\nor defending any such expense, loss, claim, damage, liability or action;\nprovided, however, that the foregoing indemnity agreement shall not apply to\namounts paid in settlement of any such expense, loss, claim, damage, liability\nor action if such settlement is effected without the consent of the Company\n(which consent shall not be unreasonably withheld), nor shall the foregoing\nindemnity agreement inure to the benefit of Citibank with respect to any\npreliminary prospectus if a copy of the most current prospectus at the time of\nthe delivery of the Registrable Securities was not provided to any purchaser and\nsuch current prospectus would have cured the defect giving rise to such loss,\nclaim, damage or liability and was in fact previously furnished to the Citibank\nand the managing Underwriters, if any, in quantities sufficient to deliver the\nsame to all such purchasers. The Company also agrees to indemnify any\nUnderwriters of the Registrable Securities, their officers and directors and\neach person who controls such Underwriters on substantially the same basis as\nthat of the indemnification of Citibank provided in this Section 5.01.\n\n       SECTION 5.02. Indemnification by Citibank. Citibank agrees to indemnify\nand hold harmless the Company, its officers and directors, and each Person, if\nany, who controls the Company within the meaning of either Section 15 of the\n1933 Act or Section 20 of the 1934 Act to the same extent as the foregoing\nindemnity from the Company to Citibank, but only with reference to information\nrelating to Citibank or the plan of distribution furnished in writing by or on\nbehalf of Citibank expressly for use in any registration statement or prospectus\nrelating to the Registrable Securities (as amended or supplemented if the\nCompany shall have furnished any amendments or supplements thereto) or any\npreliminary prospectus. Citibank also agrees to indemnify and hold harmless any\nUnderwriters of the Registrable Securities, their officers and directors and\neach person who controls such Underwriters on substantially the same basis as\nthat of the indemnification of the Company provided in this Section 5.02.\n\n       SECTION 5.03. Conduct of Indemnification Proceedings. In case any\nproceeding (including any governmental investigation) shall be instituted\ninvolving any Person in respect of which indemnity may be sought pursuant to\nSection 5.01 or Section 5.02, such Person (the 'INDEMNIFIED PARTY') shall\npromptly notify the Person against whom such indemnity may be sought (the\n'INDEMNIFYING PARTY') in writing; and the Indemnifying Party, upon the request\nof the Indemnified Party, shall retain counsel reasonably satisfactory to such\nIndemnified Party to represent such Indemnified Party and any others the\nIndemnifying Party may designate in such\n\n\n                                       10\n\nproceeding and shall pay the fees and disbursements of such counsel related to\nsuch proceeding. In any such proceeding, any Indemnified Party shall have the\nright to retain its own counsel, but the fees and expenses of such counsel shall\nbe at the expense of such Indemnified Party unless (i) the Indemnifying Party\nand the Indemnified Party shall have mutually agreed to the retention of such\ncounsel or (ii) the named parties to any such proceeding (including any\nimpleaded parties) include both the Indemnified Party and the Indemnifying Party\nand representation of both parties by the same counsel would be inappropriate\ndue to actual or potential differing interests between them. It is understood\nthat the Indemnifying Party shall not, in connection with any proceeding or\nrelated proceedings in the same jurisdiction, be liable for the fees and\nexpenses of more than one separate firm of attorneys (in addition to any local\ncounsel) at any time for all such Indemnified Parties, and that all such fees\nand expenses shall be reimbursed as they are incurred. In the case of any such\nseparate firm for the Indemnified Parties, such firm shall be designated in\nwriting by the Indemnified Parties. The Indemnifying Party shall not be liable\nfor any settlement of any proceeding effected without its written consent, but\nif settled with such consent, or if there be a final judgment for the plaintiff,\nthe Indemnifying Party shall indemnify and hold harmless such Indemnified\nParties from and against any loss or liability (to the extent stated above) by\nreason of such settlement or judgment.\n\n       SECTION 5.04. Contribution. (a) If the indemnification provided for in\nthis Article 5 is unavailable to an Indemnified Party in respect of any losses,\nclaims, damages or liabilities referred to herein, then in lieu of such\nindemnification (i) as between the Company, on the one hand, and Citibank, on\nthe other hand, the Company and Citibank shall contribute to the aggregate\nlosses, liabilities, claims, damages and expenses of the nature contemplated by\nsuch indemnity incurred by the Company and Citibank, as incurred, in such\nproportion as is appropriate to reflect the relative fault of the Company, on\nthe one hand, and of Citibank, on the other hand, in connection with the\nstatements or omissions which resulted in such losses, liabilities, claims,\ndamages or expenses, as well as any other relevant equitable considerations and\n(ii) as between the Company and Citibank, on the one hand, and the Underwriters\nor agents, on the other hand, the Company, Citibank, Underwriters and agents\nshall contribute to such aggregate losses, liabilities, claims, damages and\nexpenses in proportion such that (x) the Underwriters and agents are responsible\nfor that portion represented by the percentage that the underwriting discounts\nand commissions for the offering appearing on the cover page of the relevant\nprospectus (or, if not set forth on the cover page, that are applicable to the\nrelevant offering) bear to the initial public offering price appearing on the\ncover page (or, if not set forth on the cover page, that are applicable to the\noffering), and (y) Citibank and the Company are responsible to contribute pro\nrata, based upon the amount of net proceeds realized by each, in respect of the\nbalance.\n\n       (b) The relative fault of the Company on the one hand and Citibank on the\nother hand shall be determined by reference to, among other things, whether any\nsuch untrue or alleged untrue statement of a material fact or omission or\nalleged omission to state a material fact relates to information supplied by the\nCompany or by Citibank and the parties' relative intent, knowledge, access to\ninformation and opportunity to correct or prevent such statement or omission.\n\n       (c) The Company and Citibank agree that it would not be just and\nequitable if\n\n                                       11\n\ncontribution pursuant to this Section 5.04 were determined by pro rata\nallocation or by any other method of allocation that does not take account of\nthe equitable considerations referred to in Section 5.04 (a). The amount paid or\npayable by an Indemnified Party as a result of the losses, claims, damages or\nliabilities referred to in Section 5.04(a) shall be deemed to include, subject\nto the limitations set forth above, any legal or other expenses reasonably\nincurred by such Indemnified Party in connection with investigating or defending\nany such action or claim. Notwithstanding the provisions of this Article 5, no\nUnderwriter shall be required to contribute any amount in excess of the amount\nby which the total price at which the Securities underwritten by it and\ndistributed to the public were offered to the public exceeds the amount of any\ndamages which such Underwriter has otherwise been required to pay by reason of\nsuch untrue or alleged untrue statement or omission or alleged omission, and\nCitibank shall not be required to contribute any amount in excess of the amount\nby which the net proceeds of the offering (before deducting expenses) received\nby Citibank exceeds the amount of any damages which Citibank has otherwise been\nrequired to pay by reason of such untrue or alleged untrue statement or omission\nor alleged omission. No person guilty of fraudulent misrepresentation (within\nthe meaning of Section 1l(f) of the 1933 Act) shall be entitled to contribution\nfrom any Person who was not guilty of such fraudulent misrepresentation.\n\n                                    ARTICLE 6\n\n                             LOAN AGREEMENT PURCHASE\n\n       SECTION 6.01. Loan Agreement Purchase. At any time during which this\nAgreement remains in effect, the Company shall have the right to purchase, or to\ncause its nominee to purchase, from Citibank all of Citibank's rights, benefits\nand obligations under or arising out of the Loan Agreement and all Ancillary\nAgreements upon (i) at least fifteen (15) days prior notice to Citibank and (ii)\npayment to Citibank an amount equal to all unpaid principal, accrued interest,\ncosts and other amounts due and owing to Citibank by Ta Hsing as certified by\nCitibank (whose certification shall be conclusive and binding on the Company and\nCitibank in the absence of demonstrable error). Upon completion of such\npurchase, Citibank shall assign to the Company (or its nominee) all rights of\nCitibank under the Loan Agreement, this Agreement, and all Ancillary Agreements.\n\n       SECTION 6.02. Notice of Default. Citibank shall notify the Company\npromptly of any Event of Default or Potential Event of Default under the Loan\nAgreement (as those terms are defined therein). If within five (5) days of\nreceipt of such notice the Company provides Citibank with a binding written\nindication that the Company will either (i) purchase Citibank's rights, benefits\nand obligations under or arising out of the Loan Agreement and all Ancillary\nDocuments pursuant to Section 6.01 above or (ii) cure the Event of Default to\nCitibank's satisfaction (assuming such Event of Default can be cured and within\nthe relevant cure period specified in that Event of Default), then Citibank will\nrefrain from declaring such Event of Default or Potential Event of Default under\nthe Loan Agreement pending the purchase or cure.\n\n                                    ARTICLE 7\n\n                                       12\n\n                  REPRESENTATIONS AND WARRANTIES OF THE COMPANY\n\n       The Company represents and warrants as follows:\n\n       SECTION 7.01. Corporate Existence and Power. The Company (i) is a\nConnecticut corporation duly incorporated, validly existing as a corporation and\nin good standing under the laws of the State of Connecticut, (ii) has all\ncorporate powers required to issue, sell and deliver the Registrable Securities\nand to perform its other obligations pursuant hereto and (iii) has all\ngovernmental licenses, authorizations, consents and approvals required to carry\non its business as now conducted, the failure to obtain which would,\nindividually or in the aggregate, have a material adverse effect on its ability\nto perform its obligations hereunder or on the financial condition of the\nCompany and its Subsidiaries taken as a whole.\n\n       SECTION 7.02. Corporate and Governmental Authorization; No Contravention.\nThe execution, delivery and performance by the Company of this Agreement, the\nconsummation of the transactions contemplated hereby by the Company and the\nissuance of the Registrable Securities in accordance with the terms hereof by\nthe Company are within its corporate powers, have been duly authorized by all\nnecessary corporate action, require no action by or in respect of, or advance\nfiling with, any governmental body, agency or official (except as may be\nrequired under applicable securities laws, including the 1933 Act, the 1934 Act,\nand applicable state securities or 'blue sky' laws) and do not contravene, or\nconstitute a default under, (i) any provision of the certificate of\nincorporation or by-laws of the Company, (ii) any applicable law or regulation\nor any judgment, injunction, order or decree binding upon the Company, or (iii)\nany material financial agreement or instrument (excluding insurance obligations)\nof the Company. In addition, this Agreement has been duly executed and delivered\nby the Company.\n\n       SECTION 7.03. Binding Effect. This Agreement constitutes a valid and\nbinding agreement of the Company and is enforceable in accordance with its terms\nexcept as may be limited by bankruptcy, insolvency, reorganization, moratorium\nor similar laws affecting the enforcement of creditors' rights generally and by\ngeneral principles of equity.\n\n       SECTION 7.04. Issuance of Common Stock. The issuance, sale and delivery\nof the Common Stock in accordance with this Agreement has been duly authorized\nby all requisite corporate action on the part of the Company, and the Common\nStock, when so issued and delivered in accordance with the provisions of this\nAgreement will be duly and validly issued, fully paid and nonassessable.\n\n       SECTION 7.05. Solvency. The Company and the Company and its Subsidiaries,\non a consolidated basis, are Solvent. For the purposes of this Section,\n'Solvent' means, with respect to any Person on a particular date, that on such\ndate (a) the fair value of the property of such Person is greater than the total\namount of liabilities, including, without limitation, contingent liabilities, of\nsuch Person, (b) the present fair salable value of the assets of such Person is\nnot less than the amount that will be required to pay the probable liability of\nsuch Person on its debts as they become absolute and matured, (c) such Person\ndoes not intend to, and does not believe that it will, incur debts or\nliabilities beyond such Person's ability to pay such debts and liabilities as\n\n                                       13\n\nthey mature and (d) such Person is not engaged in business or a transaction, and\nis not about to engage in business or a transaction, for which such Person's\nproperty would constitute an unreasonably small capital. The amount of\ncontingent liabilities at any time shall be computed as the amount that, in the\nlight of all the facts and circumstances existing at such time, represents the\namount that can reasonably be expected to become an actual or matured liability.\n\n       SECTION 7.06. No Material Adverse Change. Except as disclosed in the\nCompany's 1999 Form 10-Q, since 30 September, 1999, there has been no material\nadverse change in the business, financial position or results of operations of\nthe Company and its Consolidated Subsidiaries, taken as a whole.\n\nSECTION 7.07. Continuing Representation and Warranty. The Company also\nrepresents and warrants to and undertakes with Citibank that the foregoing\nrepresentations and warranties (other than those in Sections 7.05 and 7.06) will\nbe true and accurate throughout the continuance of this Agreement with reference\nto the facts and circumstances subsisting from time to time.\n\n                                    ARTICLE 8\n                                  MISCELLANEOUS\n\n       SECTION 8.01. Participation in Underwritten Registrations. No Person may\nparticipate in any underwritten registered offering contemplated hereunder\nunless such Person (a) agrees to sell its securities on the basis provided in\nany underwriting arrangements approved by the Persons entitled hereunder to\napprove such arrangements and (b) completes and executes all questionnaires,\npowers of attorney, underwriting agreements and other documents reasonably\nrequired under the terms of such underwriting arrangements or this Agreement.\n\n       SECTION 8.02. Rule 144. The Company covenants that it will file any\nreports required to be filed by it under the 1933 Act and the 1934 Act and that\nit will take such further action as Citibank may reasonably request to the\nextent required from time to time to enable Citibank or its nominee to sell\nRegistrable Securities without registration under the 1933 Act within the\nlimitation of the exemptions provided by Rule 144 under the 1933 Act, as such\nRule may be amended from time to time, or any similar rule or regulation\nhereafter adopted by the Commission. Upon the request of Citibank, the Company\nwill deliver to Citibank (i) a written statement as to whether it has complied\nwith such reporting requirements (ii) a copy of the most recent annual or\nquarterly report of the Company and such other reports and documents so filed by\nthe Company as Citibank may reasonably request, and (iii) such other information\nas may be reasonably requested by Citibank in availing Citibank or its nominee\nof any rule or regulation of the Commission which permits the selling of any\nsuch Registrable Securities without registration.\n\n         SECTION 8.03. Transfer of Registration Rights. None of the rights of\nCitibank under this Agreement shall be assignable by Citibank except as provided\nin Section 8.06 hereof.\n\n         SECTION 8.04. Notices. All notices, requests and other communications\nto either party hereunder shall be in writing (including telecopy or similar\nwriting) and shall be given,\n\n                                       14\n\nif to the Company, to:\n       Aetna Inc.\n       151 Farmington Avenue,\n       Hartford, CT 06156\n\nwith a copy to:\n       Aetna Inc.\n       Office of the Corporate Secretary\n       151 Farmington Avenue\n       Hartford, CT 06156\n       Telecopier No.: (860) 273-8340\n       Attention:   William J. Casazza, Esq.\n\nand\n       Davis Polk &amp; Wardwell\n       450 Lexington Avenue\n       New York, NY 10017\n       Telecopier No.: (212) 450-4800\n       Attention:   David L. Caplan, Esq.\n\n\n                                       15\n\nif to Citibank, to:\n       Citibank, N.A.\n       399 Park Avenue\n       New York, NY  10043\n       Telecopier No.: (212) 935-4285\n       Attention:   Maria Hackley\n\nand to any nominee which Citibank may use to hold Registrable Securities in\nwhich case notices shall be sent to such address as shall be notified by\nCitibank to the Company in writing,\n\nor such other address or telecopier number as such party may hereafter specify\nfor the purpose by notice to the other party hereto. Each such notice, request\nor other communication shall be effective when delivered at the address\nspecified in this Section 8.04.\n\n       SECTION 8.05. Amendments; No Waivers. (a) Any provision of this Agreement\nmay be amended or waived if, and only if, such amendment or waiver is in writing\nand signed, in the case of an amendment, by Citibank and the Company, or in the\ncase of a waiver, by the party against whom the waiver is to be effective.\n\n       (b) No failure or delay by any party in exercising any right, power or\nprivilege hereunder shall operate as a waiver thereof nor shall any single or\npartial exercise thereof preclude any other or future exercise thereof or the\nexercise of any other right, power or privilege. The rights and remedies herein\nprovided shall be cumulative and not exclusive of any rights or remedies\nprovided by law.\n\n       SECTION 8.06. Successors and Assigns. The provisions of this Agreement\nshall be binding upon and inure to the benefit of the parties hereto and their\nrespective successors and assigns (it being understood that the rights of\nCitibank hereunder may be assigned only to a successor corporation or any\nwholly-owned subsidiary of Citibank; provided, that no such assignment shall\nrelieve Citibank of its obligations hereunder). Neither this Agreement nor any\nprovision hereof is intended to confer upon any Person other than the parties\nhereto and their respective successors and permitted assigns any rights or\nremedies hereunder.\n\n       SECTION 8.07. Counterparts; Effectiveness. This Agreement may be signed\nin any number of counterparts, each of which shall be an original, with the same\neffect as if the signatures thereto and hereto were upon the same instrument.\nThis Agreement shall become effective when each party hereto shall have received\na counterpart hereof signed by the other party hereto.\n\n       SECTION 8.08. Entire Agreement. This Agreement constitutes the entire\nagreement between the parties with respect to the subject matter hereof and\nsupersedes all prior agreements, understandings and negotiations, both written\nand oral, between the parties with respect thereto. No representation,\ninducement, promise, understanding, condition or warranty not set forth herein\nor therein has been made or relied upon by any of the parties hereto.\n\n                                       16\n\n         SECTION 8.09. Governing Law. This Agreement shall be construed in\naccordance with and governed by the laws of the State of New York, without\nregard to the conflicts of law rules of such state.\n\n       IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be\nduly executed as of the day and year first above written.\n\nAETNA INC.\n\nBy:       \/s\/ Alan J. Weber\n          ---------------------------------------------\n     Name:        Alan J. Weber\n     Title:       Vice Chairman\n\nCITIBANK, N.A.\n\nBy:       \/s\/ Daniel Brill\n          ---------------------------------------------\n     Name:        Daniel Brill\n     Title:       Vice President\n\nThe undersigned Ta Hsing Corp. Limited, a Liberian corporation, acknowledges the\nterms of this Agreement and agrees to cooperate with the Company and Citibank in\ntaking all actions necessary or desirable to give effect to its terms.\n\nTa Hsing Corp. Limited\n\nBy:       \/s\/ Lee Chao-Hsiang\n          ---------------------------------------------\n     Name:        Lee Chao-Hsiang\n     Title:       Director\n\n\n                                       17\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6587,7104],"corporate_contracts_industries":[9415,9440],"corporate_contracts_types":[9560,9567],"class_list":["post-41312","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-aetna-inc","corporate_contracts_companies-citigroup-inc","corporate_contracts_industries-financial__banks","corporate_contracts_industries-health__plans","corporate_contracts_types-finance","corporate_contracts_types-finance__loan"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41312","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41312"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41312"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41312"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41312"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}