Common use of Qualified MCK Exit Process Clause in Contracts

Qualified MCK Exit Process. (a) During the MCK Exit Window, the MCK Members and their Affiliates shall have the right to consummate the following series of corporate actions (each such series upon the consummation of the Merger, the “Qualified MCK Exit”): (i) the formation by MCK of a new Delaware corporation (“SpinCo”) to hold all of the shares of the MCK Members (unless such corporation has been formed prior to such date) pursuant to a Separation Agreement substantially in the form of Exhibit C attached hereto (the “Separation Agreement”), (ii) (A) the commencement by MCK of one or more exchange offers pursuant to which MCK will exchange stock of SpinCo for stock of MCK held by the stockholders of MCK (the “Exchange Offers”), (B) the distribution of the stock of SpinCo to the shareholders of MCK as a dividend in kind (the “Spin-Off”), (C) one or more exchanges of the stock of SpinCo for debt securities of MCK (the “Non-Stock Exchanges”); provided, that, without the consent of Echo, MCK shall not conduct Non-Stock Exchanges or private exchanges of capital stock (exchanges of securities that do not require registration under the Exchange Act) with any Person that MCK knows or has reason to believe will be a holder of 5% or more of MCK’s common stock or the Echo Shares immediately after consummation of such Non-Stock Exchanges or (D) any combination thereof, provided, that in all cases the shareholders and debtholders of MCK receive 75% or more of the stock of SpinCo as a consequence thereof, and (iii) substantially contemporaneously with the consummation of the Exchange Offers, the Spin-Off and/or the Non-Stock Exchanges, SpinCo will be merged with and into Echo, with Echo as the surviving corporation in such merger (the “Merger”) pursuant to the Merger Agreement entered into as of December 20, 2016 by and between SpinCo and Echo (as such may be amended or supplemented by the parties thereto from time to time) (the “Merger Agreement”), pursuant to which each share of SpinCo stock outstanding immediately prior to the effective time of the Merger will be converted into the right to receive a number of Echo Shares (rounded to the nearest ten-thousandth of a share) (such number, the “Exchange Ratio”) determined by dividing the number of Units then held by the MCK Members or their Permitted Transferees by the number of outstanding shares of SpinCo common stock. In the event that the Merger Agreement is terminated or otherwise fails to be consummated other than as a result of a breach thereof by SpinCo, the parties shall use commercially reasonable efforts to cooperate with each other to agree upon and execute a mutually agreeable merger agreement to consummate the transactions contemplated by this Section 10.05. (b) In connection with a Qualified MCK Exit, the parties shall cooperate with each other to consummate such Qualified MCK Exit as promptly as reasonably practicable, including commencing the Exchange Offers pursuant to applicable securities laws, amending the Merger Agreement to the extent required or advisable pursuant to applicable Law, calling any applicable meeting of Echo’s stockholders to approve the Merger, obtaining any vote required in connection with the Merger or Qualified MCK Exit required by the board of directors of Echo, preparing and filing any applicable proxy statement and/or registration statement with the SEC in relation to the Merger, and generally do, execute and perform all such other acts, deeds and documents as may be reasonably required to carry out the Qualified MCK Exit. (c) Pursuant to the Echo Shareholders Agreement, the Echo Shareholders will vote all Echo Shares that they are entitled to vote to approve the issuance of Echo Shares pursuant to the Merger and/or approval of the Merger at any meeting of the stockholders of Echo, and at any adjournment thereof, at which the issuance of Echo Shares and/or approval of the Merger is submitted for the consideration and vote of the stockholders of Echo. (d) In connection with the consummation of the transactions contemplated in Section 10.05(a)(ii), each of MCK, Echo, the Company, Change Healthcare Holdings, LLC and SpinCo shall enter into a tax matters agreement substantially in the form attached hereto as Exhibit E (the “Tax Matters Agreement”) and the Separation Agreement substantially in the form attached hereto as Exhibit C hereto. In the event of a change in law or regulation following the date of signing of the Contribution Agreement that is or is believed by any of the parties hereto to be relevant to the interpretation or effect of the Tax Matters Agreement (including any change in law or regulation expressly referenced therein), the parties will use reasonable best efforts to agree upon such changes to such form as may be necessary or advisable so as to give effect to the original intent, purposes and effect of such form (based on law and regulation in effect as of the date of signing of the Contribution Agreement) as nearly as practicable without altering the respective rights or obligations of the parties, or otherwise adversely affecting any party in any non-de minimis respect. (e) Echo will use commercially reasonable efforts to (A) twenty-one Business Days prior to the beginning of a Qualified MCK Exit, deliver to MCK a statement setting forth Echo’s good faith estimate of the aggregate number of shares of Echo expected to be received in the Merger (by virtue of having received shares of SpinCo stock in the Exchange Offers or the Spin-Off) by (i) Blackstone (as defined in the Tax Matters Agreement), (ii) any Person under the Control of Blackstone (as defined in the Tax Matters Agreement), (iii) any Person that has acquired or will acquire stock of MCK in one or more coordinated acquisitions or dispositions of the stock of MCK with any Person described in clauses (i) or (ii), (iv) H&F (as defined in the Tax Matters Agreement), (v) any Person under the Control of H&F (as defined in the Tax Matters Agreement) and (vi) any Person that has acquired or will acquire stock of MCK in one or more coordinated acquisitions or dispositions of the stock of MCK with any Person described in clauses (iv) or (v) and (B) update such schedule to reflect any changes between the date such schedule is delivered and the time of the Merger, it being understood that any failure of information included in such schedule, or any update thereto, to be accurate shall not constitute a breach of this Agreement or an Echo Disqualifying Action for purposes of the Tax Matters Agreement.

Qualified MCK Exit Process. (a) During the MCK Exit Window, the MCK Members and their Affiliates shall have the right to consummate either of the following series of corporate actions (each such series upon the consummation of the Merger, the “Qualified MCK Exit”): (i) the formation by MCK of a new Delaware corporation (“SpinCo”) to hold all of the shares of the MCK Members (unless such corporation has been formed prior to such date) pursuant to a Separation Agreement substantially in the form of Exhibit C attached hereto (the “Separation Agreement”), (ii) (Aii)(A) the commencement by MCK of one or more exchange offers pursuant to which MCK will exchange stock of SpinCo for stock of MCK held by the stockholders of MCK (the “Exchange Offers”), (B) the distribution of the stock of SpinCo to the shareholders of MCK as a dividend in kind (the “Spin-Off”), (C) one or more exchanges of the stock of SpinCo for debt securities of MCK (the “Non-Stock Exchanges”); provided, that, without the consent of Echo, MCK shall not conduct Non-Stock Exchanges or private exchanges of capital stock (exchanges of securities that do not require registration under the Exchange Act) with any Person that MCK knows or has reason to believe will be a holder of 5% or more of MCK’s common stock or the Echo Shares immediately after consummation of such Non-Stock Exchanges Table of Contents or (D) any combination thereof, provided, that in all cases the shareholders and debtholders of MCK receive 75% or more of the stock of SpinCo as a consequence thereof, and (iii) substantially contemporaneously with the consummation of the Exchange Offers, the Spin-Off and/or the Non-Stock Exchanges, SpinCo will be merged with and into Echo, with Echo as the surviving corporation in such merger (the “Merger”) pursuant to the Merger Agreement entered into as of December 20, 2016 [●] by and between SpinCo and Echo (as such may be amended or supplemented by the parties thereto from time to time) (the “Merger Agreement”), pursuant to which each share of SpinCo stock outstanding immediately prior to the effective time of the Merger will be converted into the right to receive a number of Echo Shares (rounded to the nearest ten-thousandth of a share) (such number, the “Exchange Ratio”) determined by dividing the number of Units then held by the MCK Members or their Permitted Transferees by the number of outstanding shares of SpinCo common stock. In the event that the Merger Agreement is terminated or otherwise fails to be consummated other than as a result of a breach thereof by SpinCo, the parties shall use commercially reasonable efforts to cooperate with each other to agree upon and execute a mutually agreeable merger agreement to consummate the transactions contemplated by this Section 10.05. (b) In connection with a Qualified MCK Exit, the parties shall cooperate with each other to consummate such Qualified MCK Exit as promptly as reasonably practicable, including commencing the Exchange Offers pursuant to applicable securities laws, amending the Merger Agreement to the extent required or advisable pursuant to applicable Law, calling any applicable meeting of Echo’s stockholders to approve the Merger, obtaining any vote required in connection with the Merger or Qualified MCK Exit required by the board of directors of Echo, preparing and filing any applicable proxy statement and/or registration statement with the SEC in relation to the Merger, and generally do, execute and perform all such other acts, deeds and documents as may be reasonably required to carry out the Qualified MCK Exit. (c) Pursuant to the Echo Shareholders Agreement, the Echo Shareholders will vote all Echo Shares that they are entitled to vote to approve the issuance of Echo Shares pursuant to the Merger and/or approval of the Merger at any meeting of the stockholders of Echo, and at any adjournment thereof, at which the issuance of Echo Shares and/or approval of the Merger is submitted for the consideration and vote of the stockholders of Echo. (d) In connection with the consummation of the transactions contemplated in Section 10.05(a)(ii), each of MCK, Echo, the Company, Change Healthcare PF2 NewCo Holdings, LLC and SpinCo shall enter into a tax matters agreement substantially in the form attached hereto as Exhibit E (the “Tax Matters Agreement”) and the Separation Agreement substantially in the form attached hereto as Exhibit C hereto. In the event of a change in law or regulation following the date of signing of the Contribution Agreement that is or is believed by any of the parties hereto to be relevant to the interpretation or effect of the Tax Matters Agreement (including any change in law or regulation expressly referenced therein), the parties will use reasonable best efforts to agree upon such changes to such form as may be necessary or advisable so as to give effect to the original intent, purposes and effect of such form (based on law and regulation in effect as of the date of signing of the Contribution Agreement) as nearly as practicable without altering the respective rights or obligations of the parties, or otherwise adversely affecting any party in any non-de minimis respect. (e) Echo will use commercially reasonable efforts to (A) twenty-one Business Days prior to the beginning of a Qualified MCK Exit, deliver to MCK a statement setting forth Echo’s good faith estimate of the aggregate number of shares of Echo expected to be received in the Merger (by virtue of having received shares of SpinCo stock in the Exchange Offers or the Spin-Off) by (i) Blackstone (as defined in the Tax Matters Agreement), (ii) any Person under the Control of Blackstone (as defined in the Tax Matters Agreement), (iii) any Person that has acquired or will acquire stock of MCK in one or more coordinated acquisitions or dispositions of the stock of MCK with any Person described in clauses (i) or (ii), (iv) H&F (as defined in the Tax Matters Agreement), (v) any Person under the Control of H&F (as defined in the Tax Matters Agreement) and (vi) any Person that has acquired or will acquire stock of MCK in one or more coordinated acquisitions or dispositions of the stock of MCK with any Person described in clauses (iv) or (v) and (B) update such schedule to reflect any changes between the date such schedule is delivered and the time of the Merger, it being understood that any failure of information included in such schedule, or any update thereto, to be accurate shall not constitute a breach of this Agreement or an Echo Disqualifying Action for purposes of the Tax Matters Agreement.of