REGISTRATION RIGHTS AGREEMENT
Exhibit 99.11
This
REGISTRATION
RIGHTS AGREEMENT (this “Agreement”) is made
as of February 25, 2008 by and between SXC Health Solutions Corp., a
corporation organized under the laws of Yukon Territory, Canada
(“Parent”), New Mountain Partners, L.P., a Delaware limited partnership
(“New Mountain Partners”), and New Mountain Affiliated Investors, L.P., a
Delaware limited partnership (together with New Mountain Partners, the
“Stockholders”).
RECITALS
WHEREAS,
Parent, SXC Health Solutions, Inc., a Texas corporation and a
wholly-owned subsidiary of Parent (“U.S. Corp.”), Comet Merger
Corporation, a newly-formed Delaware corporation wholly-owned by U.S. Corp.
and
an indirect wholly-owned subsidiary of Parent (“Merger Sub”), and
National Medical Health Card Systems, Inc., a Delaware corporation (the
“Company”), are entering into an Agreement and Plan of Merger, dated as
of February 25, 2008 (as amended, supplemented, restated or otherwise
modified from time to time, the “Merger Agreement”; capitalized terms
used but not defined herein shall have the meanings set forth in the Merger
Agreement) pursuant to which, among other things, Merger Sub will commence
an
exchange offer (the “Offer”) to acquire all of the outstanding shares of
common stock, par value $0.001 per share, of the Company (“Company Common
Stock”), and following the consummation of the Offer (or, subject to the
certain conditions, in lieu thereof, Merger Sub will merge with and into
the
Company (the “Merger”) and each outstanding share of Company Common Stock
and each outstanding share, if any, of the Company’s Series A 7%
Convertible Preferred Stock, par value $0.10 per share (“Company Convertible
Preferred Stock”, and together with the Company Common Stock, “Company
Stock”), will be converted into the right to receive the merger
consideration specified in the Merger Agreement;
WHEREAS,
as of the date of the Merger Agreement, the Stockholders are the
record
and beneficial owners, in the aggregate, of 6,956,522 outstanding shares
of the
Company Convertible Preferred Stock;
WHEREAS,
pursuant to the Merger Agreement (and subject to the terms and conditions
thereof), upon consummation of the Offer or the Merger, as the case may be,
the
Stockholders will receive shares of common stock of Parent (the “Parent
Common Stock”);
WHEREAS,
concurrently with the execution of the Merger Agreement and as a condition
to
the willingness of Parent to enter into the Merger Agreement, the Stockholders
are entering into Stockholder Agreements (the “Stockholder Agreements”);
and
WHEREAS,
in consideration of the Stockholders’ willingness to enter into the Stockholder
Agreements, Parent and the Stockholders agreed to enter into this Agreement;
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto
hereby agree as follows:
1. Definitions.
Unless otherwise provided in this Agreement, capitalized terms used herein
shall
have the following meanings:
“Agreement”
has the meaning set forth in the preamble to this Agreement.
“Commission”
means the Securities and Exchange Commission.
“Company”
has the meaning set forth in the Recitals.
“Company
Common Stock” has the meaning set forth in the Recitals.
“Company
Convertible Preferred Stock” has the meaning set forth in the Recitals.
“Company
Stock” has the meaning set forth in the Recitals.
“Demand
Registration” has the meaning set forth in Section 2.1.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Merger”
has the meaning set forth in the Recitals.
“Merger
Agreement” has the meaning set forth in the Recitals.
“Merger
Sub” has the meaning set forth in the Recitals.
“Offer”
has the meaning set forth in the Recitals.
“Parent”
has the meaning set forth in the preamble to this Agreement.
“Parent
Common Stock” has the meaning set forth in the Recitals.
“Person”
means any individual, corporation, association, limited liability company,
partnership, trust or estate, unincorporated organization, joint venture,
a
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
“Piggyback
Registration” has the meaning set forth in Section 3.1.
“Qualified
Holders” means the holders of a majority of the Registrable Securities then
outstanding.
“Registrable
Securities” means (a) the Shares and (b) any shares of Parent
Common Stock issued or issuable with respect to any of the Shares by way
of a
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular Registrable Securities, such securities shall cease to be Registrable
Securities when (i) they have been distributed to the public pursuant to an
offering registered under the Securities Act or (ii) they have been sold to
the public through a broker, dealer or market maker in compliance with
Rule 144 under the Securities Act (or any similar rule then in force).
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“Securities
Act” means the Securities Act of 1933, as amended.
“Shares”
means the shares of Parent Common Stock to be issued to the Stockholders
pursuant to the Offer or the Merger, as the case may be, in accordance with
the
Merger Agreement.
“Stockholders”
has the meaning set forth in the preamble to this Agreement.
“Stockholder
Agreements” has the meaning set forth in the Recitals.
“Suspension
Period” has the meaning set forth in Section 5.2.
“Trigger
Event” means the one-time occurrence of either of the following: (i)
the average daily trading volume of Parent Common Stock, in any 10
consecutive trading days occurring at any time from and after the first
anniversary of the Operative Date (as defined in the Stockholder Agreement)
and
prior to the 18-month anniversary of the Operative Date, being less than
100,000 shares in the aggregate on the Toronto Stock Exchange and all exchanges
in the United States on which Parent Common Stock is then traded, or
(ii) the average daily trading volume of Parent Common Stock, in any
20 trading days in any three-month period occurring at any time from and
after
the nine-month anniversary of the Operative Date and prior to the 18-month
anniversary of the Operative Date, being less than 100,000 shares in the
aggregate on all such exchanges.
“U.S.
Corp” has the meaning set forth in the Recitals.
“Violation”
has the meaning set forth in Section 7.1.
2. Demand
Registration.
2.1
Request for
Registration. At any time after the first anniversary of the
date of this Agreement, if a Trigger Event has occurred, for a period that
is
180 days following the later of (i) the first anniversary of the
Operative Date and (ii) the occurrence of such Trigger Event, the Qualified
Holders may, subject to Sections 2.2 and 2.4, request
registration under the Securities Act of the Registrable Securities (a
“Demand Registration”). The request for a Demand Registration shall
specify the number of Registrable Securities requested to be registered and
the
intended method of distribution; provided, however, that Parent
shall not be obligated to effect a Demand Registration unless the Qualified
Holders request that Parent register Registrable Securities representing
in the
aggregate at least 5% of the outstanding Parent Common Stock. Within ten
days
after receipt of any such request, Parent shall give written notice of such
requested registration to all other holders of Registrable Securities and,
subject to Section 2.3, shall include as part of such Demand
Registration all Registrable Securities with respect to which Parent has
received written requests for inclusion therein within 15 days after the
receipt of Parent’s notice by such holders.
2.2
Limitations
on Demand Registration. A registration requested pursuant to
this Agreement shall be deemed to have been effected for purposes of
Section 2.1 if (i) it has been declared effective by the
Commission and (ii) at least 75% of the Registrable Securities requested to
be included in such registration shall have been registered and sold.
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2.3
Priority on
Demand Registration. If a Demand Registration is an
underwritten offering and the managing underwriters advise Parent in writing,
with a copy to be delivered to the Qualified Holders, that, in their opinion,
the number of Registrable Securities requested to be included in such offering,
and other securities requested to be included in such offering, exceeds the
largest number of securities which can be sold therein without adversely
affecting the marketability of the offering and within a price range reasonably
acceptable to the holders of a majority of the Registrable Securities requested
to be registered, Parent shall first include in such registration, prior
to the
inclusion of any securities which are not Registrable Securities, the
Registrable Securities requested to be included which in the opinion of such
underwriters can be sold without adversely affecting the marketability of
the
offering, prorata among the respective holders thereof on the
basis of the amount of Registrable Securities owned by each such requesting
holder.
2.4
Restrictions
on Registration. Parent may postpone or suspend, as
applicable, for no more than one period of up to 90 days in any 12-month
period the filing, effectiveness or use of a registration statement for a
Demand
Registration (and the holders of Registrable Securities participating in
such
offering hereby agree not to offer or sell any Registrable Securities pursuant
to such registration statement during such postponement or suspension), pursuant
to this Section 2.4 or clause (iii) of Section 5.2,
if Parent determines in good faith that such filing or effectiveness might
(a) interfere with or adversely affect the negotiation or completion of any
material transaction or other material event that is being contemplated by
Parent or (b) involve initial or continuing disclosure obligations relating
to a material event or material state of facts regarding Parent the disclosure
of which would, in the reasonable judgment of Parent, be adverse to its
interests; provided, that, in the event of such a postponement or
suspension of registration, the holders of Registrable Securities initially
requesting such Demand Registration shall be entitled to withdraw such request
and, if such request is withdrawn, such Demand Registration shall not count
as
the Demand Registration hereunder. In the event Parent shall exercise its
postponement or suspension rights hereunder, (x) the applicable time period
during which a registration statement is to remain effective under
Section 5.2 and the 180-day period specified in
Section 2.1 shall be extended by a period of time equal to the
duration of such postponement or suspension. The number and length of suspension
and postponement periods in any 12-month period under this
Section 2.4 shall be aggregated with the number and the length of
Suspension Periods under clause (iii) of Section 5.2, such that
Parent shall not be permitted to postpone or suspend, for more than 90 days
in such 12-month period the filing, effectiveness or use of a registration
statement for a Demand Registration pursuant to Section 2.4 and/or
clause (iii) of Section 5.2 taken together.
2.5
Selection of
Underwriters. In the event that any public offering pursuant
to a Demand Registration shall involve, in whole or in part, an underwritten
offering, Parent shall have the right to designate a nationally recognized
underwriter or underwriters as the lead or managing underwriter(s) of such
underwritten offering who shall be reasonably acceptable to the holders of
a
majority of the Registrable Securities proposed to be sold in such underwritten
offering. The Stockholders and Parent agree that if the Stockholders’
Registrable Securities, or any portion thereof, are sold in any public offering
involving, in whole or in part, an underwritten offering, then the Stockholders
and Parent will enter into a customary underwriting agreement with the
underwriter(s) selected pursuant to the preceding sentence.
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3. Piggyback
Registration.
3.1
Right to Piggyback. If on
or after the first anniversary of the Operative
Date and prior to the 18 month anniversary of the Operative Date, Parent
proposes to register Parent Common Stock (for its own account or for the
account
of any other holder of its securities) under the Securities Act (other than
pursuant to a Demand Registration which shall be governed by
Section 2, and registrations on Form S-4 (or F-4) or Form S-8 or on
any successor or other form promulgated for similar purposes or relating
to a
Rule 145 transaction) and the registration form to be used may be used for
the registration of Registrable Securities for sale to the public under the
Securities Act (a “Piggyback Registration”), the Company shall give
prompt written notice to all holders of Registrable Securities of its intention
to effect such a registration and, subject to the terms hereof, shall use
commercially reasonable efforts to include in such registration all Registrable
Securities with respect to which the Company has received written requests
for
inclusion therein (which request shall specify the number of Registrable
Securities intended to be disposed of by such Holder) within 21 days after
such holders receive the Company’s notice; provided, that (i) if, at
any time after giving written notice of its intention to register any securities
and prior to the effective date of the registration statement filed in
connection with such registration, the Company shall determine for any reason
not to proceed with the proposed registration, the Company may, at its election,
give written notice of such determination to each holder of Registrable
Securities and thereupon shall be relieved of its obligation to register
any
Registrable Securities in connection with such registration and (ii) if
such registration involves an underwritten offering by the Company, all holders
requesting to be included in the Company’s registration must sell their
Registrable Securities to such underwriters who shall have been selected
by the
Company on the same terms and conditions as apply to the Company, with such
differences, including any with respect to indemnification and contribution,
as
may be customary or appropriate in combined primary and secondary offerings.
3.2
Priority on
Primary Registrations. If a Piggyback Registration is an
underwritten primary offering on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number
of
securities requested to be included in such offering exceeds the largest
number
of securities which can be sold therein without adversely affecting the
marketability of the offering and within a price range reasonably acceptable
to
the Company, the Company shall include in such registration (a) first, the
securities the Company proposes to sell, (b) second, the Registrable
Securities requested to be included in such registration, prorata
among the respective holders thereof on the basis of the amount of Registrable
Securities owned by each such holder and (c) third, other securities
requested to be included in such registration.
3.3
Selection of
Underwriters. The Company shall have the right to select the
investment banker(s) and/or manager(s) to administer the offering in connection
with any Piggyback Registration.
3.4
Other Agreements. Each
holder of Registrable Securities agrees that, if
they participate in the Piggyback Registration, they will execute such other
customary agreements as the Company may reasonably request to further accomplish
the purposes of this Section 3.
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4. Holdback
Agreements. Upon the written request of the underwriters managing
an underwritten registered public offering of Parent Common Stock pursuant
to a
Demand Registration or a Piggyback Registration in which Registrable Securities
are included, the holders of Registrable Securities shall not effect any
public
sale or distribution (including sales pursuant to Rule 144) of equity
securities of Parent, or any securities convertible into or exchangeable
or
exercisable for such securities, during the 7 days prior to, and during the
90-day period beginning on, the effective date of such Demand Registration
or
Piggyback Registration (or such shorter period as may be required for officers
and directors of Parent).
5. Registration
Procedures. Whenever the holders of Registrable Securities have
properly requested that any Registrable Securities be registered pursuant
to
this Agreement, Parent shall use commercially reasonable efforts to effect
the
registration under the Securities Act of the sale of such Registrable Securities
in accordance with the intended method of disposition thereof, and pursuant
thereto Parent shall as expeditiously as possible:
5.1
prepare and file with the Commission a registration statement and such
amendments and supplements as may be necessary with respect to such Registrable
Securities and, subject to the postponement and suspension provisions of
Sections 2.4 and 5.2, use its commercially reasonable efforts
to cause such registration statement to become effective;
5.2
notify each holder of Registrable Securities of the effectiveness of the
registration statement filed hereunder and prepare and file with the Commission
such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than 30 days (or
until the distribution described in the registration statement has been
completed or such lesser period of time as Parent or any seller may be required
under the Securities Act to deliver a prospectus in connection with any sale
of
Registrable Securities and to comply with the provisions of the Securities
Act
with respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the sellers set forth in such registration statement);
provided, however, that at any time, upon written notice to the
participating holders of Registrable Securities, Parent may suspend the use
or
effectiveness of any registration statement (and the holders of Registrable
Securities participating in such offering hereby agree not to offer or sell
any
Registrable Securities pursuant to such registration statement during the
Suspension Period) upon and continuing until the discontinuation of (i) the
issuance by the Commission of a stop order with respect to such registration
statement or the initiation of proceedings with respect to such registration
statement under Section 8(d) or 8(e) of the Securities Act, (ii) the
occurrence of any event or the existence of any fact as a result of which
(A) any registration statement shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading or (B) any
prospectus included in any such registration statement shall contain any
untrue
statement of a material fact or omit to state any material fact required
to be
stated therein or necessary to make the statements therein, in the light
of the
circumstances under which they were made, not misleading or (iii) the
occurrence or existence of any pending corporate development, including without
limitation any such development that may (y) interfere with or adversely
affect the negotiation or completion of any material transaction or other
material event that is being contemplated by Parent or (z) involve initial
or continuing disclosure obligations relating to a material event or
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material state
of facts
regarding Parent the disclosure of which would, in the reasonable judgment
of
Parent, be adverse to its interests, that, in the reasonable discretion of
Parent, makes it appropriate to suspend the availability of any registration
statement and the related prospectus (each of (i), (ii) and
(iii) above is hereinafter referred to as a “Suspension Period”);
provided that Parent’s right to suspend under clause (iii) above
shall be subject to the restrictions on the length of any suspensions or
postponements in any 12-month period set forth in Section 2.4 and
shall be aggregated with the length of suspension and postpone periods under
Section 2.4, such that Parent shall not be permitted to postpone or
suspend, for more than 90 days in any 12-month period the filing,
effectiveness or use of a registration statement for a Demand Registration
pursuant to Section 2.4 and/or clause (iii) of this
Section 5.2 taken together. In the event that Parent shall exercise
its rights hereunder, the applicable time period during which the registration
statement is to remain effective shall be extended by a period of time equal
to
the duration of the Suspension Period;
5.3
furnish to each seller of Registrable Securities such number of copies of
such
registration statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary prospectus)
and such other documents as such seller may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such seller;
5.4 use
commercially reasonable efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions
as
may be reasonably requested by any such seller and do any and all other
reasonable acts and things which may be necessary or reasonably advisable
to
enable such seller to consummate the disposition in such jurisdictions of
the
Registrable Securities owned by such seller (provided, however,
that Parent shall not be required to (a) qualify generally to do business
in any jurisdiction where it would not otherwise be required to qualify but
for
this subsection, (b) subject itself to taxation in any such jurisdiction or
(c) consent to general service of process in any such jurisdiction);
5.5
promptly notify each seller of such Registrable Securities, at any time when
a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in such registration statement contains an untrue statement of a material
fact
or omits any material fact necessary to make the statements therein, in light
of
the circumstances under which they were made, not misleading, and, at the
request of any such seller, Parent shall promptly prepare a reasonable number
of
copies of a supplement or amendment to such prospectus so that, as thereafter
delivered to the sellers of such Registrable Securities, such prospectus
shall
not contain an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, in which event the periods mentioned
in Section 5.2 shall be extended by the length of the period from
and including the date when each seller of such Registrable Securities shall
have received such notice to the date on which each such seller has received
the
copies of the supplemented or amended prospectus contemplated under this
Section 5.5;
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5.6 use
commercially reasonable efforts to cause all such Registrable Securities
to be
listed on each securities exchange and/or quotation system on which Parent
Common Stock is then listed and/or quoted;
5.7
provide a transfer agent and registrar for all such Registrable Securities
not
later than the effective date of such registration statement;
5.8 in
the case of an underwritten offering, enter into such customary agreements
(including underwriting agreements in customary form) and take all such other
actions as the underwriters, if any, reasonably request in order to expedite
or
facilitate the disposition of such Registrable Securities, except to the
extent
any such agreement or other action would materially interfere with the conduct
of Parent’s business;
5.9 in
the case of an underwritten offering, make available for inspection by any
seller of Registrable Securities, any underwriter participating in any
disposition pursuant to such registration statement, and any attorney,
accountant or other agent retained by any such seller or underwriter, at
the
offices where normally kept, during normal business hours, all pertinent
financial and other records, pertinent corporate documents and properties
of
Parent, and cause Parent’s officers, employees and independent accountants to
supply all information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration statement,
in
each case as is necessary or reasonably advisable (based on the reasonable
advice of their respective counsel) to enable such seller or underwriter
to
exercise their due diligence responsibilities and defenses under the Securities
Act; provided, however, that (i) such sellers shall have
entered into a customary confidentiality agreement reasonably acceptable
to
Parent and (ii) such sellers shall use their reasonable best efforts to
minimize the disruption to Parent’s business and coordinate any such
investigation of the books, records and properties of Parent and any discussions
with Parent’s officers and accountants so that all such investigations occur at
the same time;
5.10
otherwise use commercially reasonable efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering
the
period of at least twelve months beginning with the first day of Parent’s first
full calendar quarter after the effective date of the registration statement,
which earnings statement shall satisfy the provisions of Section 11(a) of
the
Securities Act and Rule 158 thereunder;
5.11 in
the event of the issuance of any stop order suspending the effectiveness
of a
registration statement, or of any order suspending or preventing the use
of any
related prospectus or suspending the qualification of any Company Common
Stock
included in such registration statement for sale in any jurisdiction, Parent
shall use its commercially reasonable efforts promptly to obtain the withdrawal
of such order;
5.12 use
its commercially reasonable efforts to cause such Registrable Securities
covered
by such registration statement to be registered with or approved by such
other
governmental agencies or authorities as may be necessary to enable the sellers
thereof to consummate the disposition of such Registrable Securities; and
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5.13 take
such other actions reasonably requested by the sellers of Registrable Securities
as are necessary or reasonably advisable in order to facilitate and/or expedite
the registration and disposition of any Registrable Securities pursuant to
the
terms of this Agreement.
6. Registration
Expenses. All expenses incident to Parent’s performance of or
compliance with this Agreement, including, without limitation, all registration
and filing fees (including the fees of the Financial Industry Regulatory
Authority and the Commission’s registration fees), fees of any transfer agent
and registrar, fees and expenses of compliance with securities or blue sky
laws,
printing expenses, reasonable “road show” or other marketing expenses, fees and
disbursements of counsel for Parent, reasonable fees and disbursements of
one
counsel chosen by the holders of a majority of the Registrable Securities
included in such registration up to a maximum of $50,000 if Parent does not
trigger a Suspension Period and $75,000 if Parent does trigger a Suspension
Period, fees and expenses of Parent’s independent certified public accountants
(including the fees and expenses of any comfort letters required by or incident
to the performance and compliance with this Agreement), fees and expenses
of
underwriters (excluding discounts and commissions attributable to the
Registrable Securities included in such registration), Parent’s internal
expenses and the expenses and fees for listing the securities to be registered
on each securities exchange or quotation system on which similar securities
issued by Parent are then listed or quoted, shall be borne by Parent;
provided, however, that the sellers of Registrable Securities
shall bear their own underwriting discounts or commissions, selling or placement
agent or broker fees and commissions, and transfer taxes, if any, in connection
with the sales of securities by such sellers.
7. Indemnification.
7.1 In
connection with any Demand Registration or Piggyback Registration, Parent
agrees
to indemnify, to the extent permitted by law, each holder of Registrable
Securities to be offered in such registration, the partners or officers,
directors and equity holders of such holder, and each Person who controls
such
holder (within the meaning of the Securities Act) against all losses, claims,
damages, liabilities (joint or several) and expenses (including legal or
other
expenses reasonably incurred by any of them in connection with investigating
or
defending any such loss, claim, damage or liability) incurred by such party
arising out of, based upon or caused by any of the following statements,
omissions or violations (each, a “Violation”): (i) any untrue or
alleged untrue statement of material fact contained in any registration
statement, prospectus or preliminary prospectus incident to such registration
or
any amendment thereof, supplement thereto or free writing prospectus,
(ii) any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, or (iii) any
violation or alleged violation by Parent of the Securities Act, the Exchange
Act, any state securities laws or any rule or regulation promulgated under
the
Securities Act, Exchange Act or any state securities laws incident to such
registration; provided, however, that Parent shall not be liable
in any such case for any such loss, claim, damage, liability or action to
the
extent that it is caused (x) by a Violation that occurs in reliance upon
and in conformity with any information furnished in writing to Parent by
such
holder, and stated to be specifically for use in such registration or
(y) by a seller’s failure to deliver a copy of the relevant current
prospectus or any amendments or
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supplements thereto
or
any free writing prospectus after Parent has furnished that seller or any
underwriter with copies of the same in advance of the time of first sale.
7.2 In
connection with any Demand Registration or Piggyback Registration in which
a
holder of Registrable Securities is participating, each such holder agrees
to
indemnify, to the extent permitted by law, Parent, its directors, officers,
employees, affiliates, any other holder selling securities in such Demand
Registration or Piggyback Registration, and each Person who controls Parent
(within the meaning of the Securities Act) against all losses, claims, damages,
liabilities (joint or several) and expenses (including legal or other expenses
reasonably incurred by any of them in connection with investigating or defending
any such loss, claim, damage or liability) arising out of, based upon or
caused
by any Violation, to the extent that such Violation is caused by any information
furnished in writing by such holder, and stated to be specifically for use
in
such registration; provided, that, the obligation to indemnify
shall be individual, not joint and several, for each holder.
7.3 Any
Person entitled to indemnification hereunder shall (a) give prompt written
notice to the indemnifying party of any claim with respect to which it seeks
indemnification (provided that the failure to give prompt notice shall not
impair any Person’s right to indemnification hereunder to the extent such
failure has not materially prejudiced the indemnifying party’s ability to defend
such claim), and (b) unless in the reasonable judgment (with advice of
counsel) of any indemnified party a conflict of interest between such
indemnified and indemnifying parties exists with respect to such claim, permit
such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall
not be
unreasonably withheld). An indemnifying party who is not entitled to, or
elects
not to, assume the defense of a claim shall be obligated to pay the fees
and
expenses of one counsel (but not more than one) for all parties indemnified
by
such indemnifying party with respect to such claim.
7.4 The
indemnification provided for under this Agreement shall remain in full force
and
effect regardless of any investigation made by or on behalf of the indemnified
party or any partner, officer, director or controlling Person of such
indemnified party and shall survive the transfer of securities.
7.5 If
the indemnification provided for under this Agreement is unavailable to an
indemnified party hereunder in respect of any losses, liabilities, claims,
damages and expense referred to herein, then the indemnifying party, in lieu
of
indemnifying such indemnified party, shall contribute to the amount paid
or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and indemnified parties in connection
with the Violation which resulted in such losses, claims, damages, liabilities
or expenses, as well as any other relevant equitable considerations. The
relative fault of such indemnifying party and indemnified parties shall be
determined by reference to, among other things, whether any Violation has
been
committed by, or relates to information supplied by, such indemnifying party
or
indemnified parties, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such Violation. The amount
paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include any
10
legal or other
fees or
expenses reasonably incurred by such party in connection with any investigation
or proceeding. If the allocation provided in this paragraph is not permitted
by
applicable law, the parties shall contribute based upon the relevant benefits
received by Parent from the offering of its securities on the one hand and
the
net proceeds received by the holders of Registrable Securities from the sale
of
such Registrable Securities on the other.
7.6 The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined solely by pro rata
allocation or any other method of allocation that does not
take account of
the equitable considerations referred to in the immediately preceding paragraph.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
7.7
Notwithstanding anything in this Section 7 to the contrary, in
connection with the Demand Registration or any Piggyback Registration, the
indemnity and contribution obligations and liabilities of each holder of
Registrable Securities shall be limited to the net amount of the proceeds
received by such holder pursuant to such registration.
8. Participation
in Underwritten Registration. No Person may participate in any
registration hereunder which is underwritten unless such Person (a) agrees
to sell such Person’s securities on the basis provided in any underwriting
arrangements that are customary and approved by Parent and (b) completes
and executes all questionnaires, powers of attorney and other documents
reasonably required under the terms of such underwriting arrangements.
9. Information
by Sellers. The seller or sellers wishing to sell any Registrable
Securities in any registration shall furnish to Parent such information
regarding such seller or sellers and the distribution proposed by such seller
or
sellers as Parent may reasonably request in writing and as shall be required
in
connection with any registration, qualification or compliance referred to
in
this Agreement.
10. Termination.
This Agreement shall terminate and neither party hereto shall have any further
obligation to the other party under this Agreement upon the earlier to occur
of
(a) the time when there shall be no Registrable Securities remaining or
(b) the completion of the Demand Registration permitted hereunder;
provided, however, that the obligations of the parties under
Section 7 hereof shall continue until the expiration of all
applicable statutes of limitations.
11. Miscellaneous.
11.1
Merger Agreement. If the
Merger Agreement is terminated in accordance
with its terms, this Agreement shall immediately terminate concurrently
therewith and be of no further force or effect.
11.2
No Inconsistent
Agreements. Parent shall not hereafter enter into any
agreement with respect to its securities which is inconsistent with or violates
the rights granted to the holders of Registrable Securities in this Agreement.
11.3
Remedies. Any Person
having rights under any provision of this Agreement
shall be entitled to enforce such rights specifically, to recover damages
caused
by
11
reason of any breach
of
any provision of this Agreement and to exercise all other rights granted
by law.
The parties hereto agree and acknowledge that money damages are not an adequate
remedy for any breach of the provisions of this Agreement and that any party
may
apply for specific performance and for other injunctive relief in order to
enforce or prevent violation of the provisions of this Agreement.
11.4
Amendments
and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of (a) Parent and (b) the holders of a majority of the
Registrable Securities then outstanding.
11.5
Successors,
Assigns and Subsequent Holders. (a) All covenants and
agreements in this Agreement by or on behalf of any of the parties hereto
shall
bind and inure to the benefit of the respective successors and the permitted
assigns of the parties hereto.
(b) The
rights to cause Parent to register Registrable Securities pursuant to this
Agreement may be assigned (but only with all related obligations) by a holder
of
Registrable Securities to a transferee of such securities.
(c) No
assignment or transfer pursuant to this Section 11.5 shall be
effective unless and until (i) Parent is furnished with written notice of
the name and address of such transferee or assignee and the securities with
respect to which such registration rights are being assigned, and (ii) such
transferee or assignee agrees in writing to be bound by and subject to the
terms
and conditions of this Agreement.
11.6
Entire Agreement. This
Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter contained herein, and
supersedes and preempts all prior agreements, negotiations, discussions and
understandings among the parties hereto with respect to such subject matter.
11.7
Severability. Wherever
possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable
law and
in such a way as to, as closely as possible, achieve the intended economic
effect of such provision and this Agreement as a whole, but if any provision
contained herein is, for any reason, held to be invalid, illegal or
unenforceable in any respect, such provision shall be ineffective to the
extent,
but only to the extent, of such invalidity, illegality or unenforceability
without invalidating the remainder of such provision or any other provisions
hereof, unless such a construction would be unreasonable.
11.8
Notices. All notices
or other communications required or permitted
hereunder shall be in writing and shall be deemed given upon delivery
(a) when delivered personally, (b) if transmitted by facsimile when
confirmation of transmission is received, (c) if sent by registered or
certified mail, postage prepaid, return receipt requested or (d) if sent by
reputable overnight courier service (providing proof of delivery); and shall
be
addressed as follows:
(i) if
to Parent, to:
SXC
Health Solutions Corp.
12
0000
Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxx
Xxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxx
with
a
copy to:
Sidley
Austin LLP
0 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
0 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
(ii) if
to the Stockholders, to:
New
Mountain Partners, L.P.
New Mountain Affiliated Investors, L.P.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxxx
New Mountain Affiliated Investors, L.P.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxxx
with
a
copy to:
Fried,
Frank, Harris, Xxxxxxx & Xxxxxxxx LLP
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
11.9
Governing Law. This
Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware.
11.10
Submission
to Jurisdiction; Waiver of Jury Trial. Each of the parties
hereto (i) consents to submit to the personal jurisdiction of any Federal
court located in the State of Delaware or any Delaware state court in the
event
any dispute arises out of this Agreement or any of the transactions contemplated
hereby, (ii) agrees that such party will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such
court,
(iii) agrees that such party will not bring any action relating to this
Agreement or the transactions contemplated hereby in any court other than
a
Federal court sitting in the state of Delaware or a Delaware state court
and
(iv) waives any right to trial by jury with respect to any claim or
proceeding related to or arising out of this Agreement or any of the
transactions contemplated hereby.
11.11
Counterparts;
Facsimile. This Agreement may be executed in any number of
counterparts, each of which will be considered an original instrument, but
all
of which together will be considered one and the same agreement, and will
become
binding when one or
13
more counterparts
have
been signed by and delivered to each of the parties. This Agreement may be
executed by facsimile signatures of the parties hereto.
[Signature
page follows]
14
IN
WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be executed the day and year first above written.
| SXC HEALTH SOLUTIONS CORP. | ||||||
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By: | /s/ Xxxxxxx Xxxx | ||||
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Name: Xxxxxxx Xxxx | |||||
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Title: Chief Financial Officer | |||||
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| NEW MOUNTAIN PARTNERS, L.P. | ||||||
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By: | New Mountain Investments,
L.P., its general partner |
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By: | New Mountain GP, LLC, its general partner |
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By: | /s/ Xxxxxx X. Xxxxxxx | ||||
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Name: Xxxxxx X. Xxxxxxx | |||||
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Title: Chief Executive Officer | |||||
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| NEW MOUNTAIN AFFILIATED INVESTORS, L.P. | ||||||
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By: | New Mountain GP, LLC,
its general partner |
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By: | /s/ Xxxxxx X. Xxxxxxx | ||||
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Name: Xxxxxx X. Xxxxxxx | |||||
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Title: Chief Executive Officer | |||||
