EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of April 17, 2003, by QuadraMed Corporation, a Delaware corporation (the
"Company"), the investors whose signatures appear on the execution pages of this
Agreement (collectively, the "Investors"), and Philadelphia Brokerage
Corporation ("PBC") a Pennsylvania corporation.
A. On the date hereof, pursuant to a Securities Purchase Agreement (the
"Purchase Agreement"), by and among the Company and the Investors: (i) the
Investors have acquired units consisting in the aggregate of $71,000,000 in
principal amount of the Company's Senior Secured Notes due 2008 (the "Notes")
and 11,303,842 warrants, detachable upon issuance of the Notes and bearing an
exercise price of $0.01 each, to purchase an equal number of shares of the
Company's common stock, par value $0.01 per share (the "Warrants," and the
shares of the Company's common stock issuable upon the exercise thereof, the
"Warrant Shares"), with each Investor acquiring the number of Notes and Warrants
set forth opposite such Investor's name on the Schedule attached to the Purchase
Agreement; (ii) the Company may issue to the Investors an additional 2,047,978
Warrants to purchase a like number of Warrant Shares under certain circumstances
described in the Purchase Agreement; and (iii) the Company has issued to PBC, as
compensation for its services, 282,596 Warrants.
B. Pursuant to the terms of the Purchase Agreement, the Company has agreed
to provide to the holders of the Notes and Warrants registration rights with
respect to the Registrable Securities (as defined below) as set forth in this
Agreement.
The Parties hereby agree as follows:
1. Definitions.
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For purposes of this Agreement:
(a) "Affiliate" of a Person means any Person that directly or
indirectly through one or more intermediaries controls or is controlled by, or
is under common control with, such other Person. For purposes of this
definition, the term "control" (including the terms "controlling," "controlled
by" and "under common control with") means the possession, direct or indirect,
of the power to cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
(b) "Holder" means a Person that (i) is a party to this Agreement (or
a permitted transferee under Section 12 hereof) and (ii) owns Registrable
Securities; provided, however, that for purposes of this Agreement, Holders of
Registrable Securities will not be required to convert their Warrant Shares into
Common Stock in order to exercise the registration rights granted hereunder,
until immediately before the closing of the offering to which the registration
relates.
(c) "NASD" means the National Association of Securities Dealers, Inc.
(d) "Participating Holders" means Holders participating, or electing
to participate, in an offering of Registrable Securities.
(e) "Person" means any individual, firm, corporation, company,
partnership, trust, incorporated or unincorporated association, limited
liability company, joint venture, joint stock company, government (or an agency
or political subdivision thereof) or other entity of any kind, and shall include
any successor (by merger or otherwise) of any such entity.
(f) "Registrable Securities" means (i) the Notes and (ii) the Warrant
Shares (including those Warrant Shares which are received upon the exercise of
the additional Warrants that may be issued pursuant to the Purchase Agreement,
as described in Recital A (ii) above) and any other securities issued in
exchange for the foregoing securities, each upon original issuance thereof and
at all times subsequent thereto. For the purposes of this Agreement, any
Registrable Security will cease to be a Registrable Security when (i) a
registration statement covering such Registrable Securities has been declared
effective for the period that such Registration Statement remains effective,
(ii) they are distributed to the public pursuant to Rule 144 (or any similar
provision then in force) under the Securities Act of 1933, as amended (the
"Securities Act"); or (iii) counsel for the Company and counsel for the holder
of such Registrable Security agree, which agreement shall not be unreasonably
withheld, that the resale of such Registrable Security is exempt from
registration under the Securities Act or may be resold to the public pursuant to
Rule 144 without being subject to holding periods or volume limitations that
would restrict the sale of all the Registrable Securities held by the holder
thereof.
(g) "Registration Expenses" mean all expenses (other than underwriting
discounts and commissions) arising from or incident to the performance of, or
compliance with, this Article 2, including, without limitation, (i) SEC, stock
exchange, NASD and other registration and filing fees, (ii) all reasonable and
documented fees and expenses incurred by the Company in connection with
complying with any securities or blue sky laws (including, without limitation,
fees, charges and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), (iii) all printing, messenger and
delivery expenses, (iv) the fees, charges and disbursements of counsel to the
Company and of its independent public accountants and any other accounting and
legal fees, charges and expenses incurred by the Company (including, without
limitation, any expenses arising from any special audits or "comfort letters"
required in connection with or incident to any registration), (v) the fees,
charges and disbursements of any special experts retained by the Company in
connection with any registration pursuant to the terms of this Agreement, (vi)
all internal expenses of the Company (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), (vii) the fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange or Nasdaq and
(viii) Securities Act liability insurance (if the Company elects to obtain such
insurance), regardless of whether any Registration Statement filed in connection
with such registration is declared effective.
(h) "Registration Statement" shall mean any Registration Statement of
the Company filed with the SEC on the appropriate form pursuant to the
Securities Act that covers any of the Registrable Securities pursuant to the
provisions of this Agreement and all amendments and supplements to any such
Registration Statement, including post-effective amend-
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ments, in each case including the prospectus contained therein, all exhibits
thereto and all materials incorporated by reference therein.
(i) "SEC" or "Commission" means the United States Securities and
Exchange Commission.
(j) "Selling Expenses" shall mean the underwriting fees, discounts,
selling commissions, "roadshow" expenses and stock transfer taxes applicable
to all Registrable Securities registered by the Participating Holders.
2. Demand Registration
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(a) Request by Holders. From and after the date that is thirty (30)
days following the date on which the Company is current with respect to the
filings with the Commission required to be made by it pursuant to the Exchange
Act of 1934, as amended (the "Exchange Act"), if the Company receives a written
request from Holders that hold at least ten percent (10%) of the Notes or
Warrant Shares, as applicable, originally issued (the "Requesting Holders") that
the Company register Registrable Securities held by Requesting Holders (a
"Demand Request"), then the Company shall, within ten (10) days after receipt of
such Demand Request, give written notice of such request ("Request Notice") to
all Holders. Each Demand Request shall (x) specify the type and number of
Registrable Securities that the Requesting Holders intend to sell or dispose of,
(y) state the intended method or methods of sale or disposition of such
Registrable Securities and (z) specify the expected price range (net of
underwriting discounts and commissions) acceptable to the Requesting Holders to
be received for such Registrable Securities. Following receipt of a Demand
Request, the Company shall:
(i) cause to be filed, as soon as practicable, but within ninety
(90) days of the date of delivery to the Company of the Demand Request, a
Registration Statement covering such Registrable Securities that the Company has
been so requested to register by the Requesting Holders and other Holders who
request to the Company that their Registrable Securities be registered within
fifteen (15) days of the mailing of the Request Notice, providing for the
registration under the Securities Act of such Registrable Securities to the
extent necessary to permit the disposition of such Registrable Securities in
accordance with the intended method of distribution specified in such Demand
Request; and
(ii) use its commercially reasonable efforts to have such
Registration Statement declared effective by the SEC as soon as practicable
thereafter.
(b) Effective Registration Statement. A registration requested
pursuant to this Article 2 shall not be deemed to have been effected (i) unless
a Registration Statement with respect thereto has become effective (unless a
substantial cause of the failure of such Registration Statement to become
effective shall be attributable to one or more Participating Holders) and
remained effective in compliance with the provisions of the Securities Act with
respect to the disposition of all Registrable Securities covered by such
Registration Statement until such time as all of such Registrable Securities
have been disposed of in accordance with the intended methods of disposition by
the Holders thereof set forth in such Registration Statement; provided, however,
that such period shall not exceed forty-five (45) days; (ii) if, after it has
become effective, such
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registration is interfered with by any stop order, injunction or other order or
requirement of the SEC or other governmental agency or court for any reason not
attributable to the Participating Holders and has not thereafter become
effective.
(c) Selection of Underwriters. In the event that the Company is
required to file a Registration Statement covering any Registrable Securities of
any Requesting Holders pursuant to Section 2(a) hereof and the proposed public
offering is to be an underwritten public offering, the managing underwriter
shall be one or more reputable nationally recognized investment banks selected
by a majority in interest of the Requesting Holders and reasonably acceptable to
the Company, which consent shall not be unreasonably withheld, delayed or
conditioned.
(d) Priority for Demand Registration. Notwithstanding any other
provision of this Article 2, if the managing underwriter of an underwritten
public offering determines and advises the Participating Holders and the Company
in writing that the inclusion of all securities proposed to be included by the
Company and any other Holders in the underwritten public offering would
adversely interfere with the successful marketing of the Requesting Holders'
Registrable Securities, then the Company and other Holders shall not be
permitted to include any securities in excess of the amount, if any, of
securities that the managing underwriter of such underwritten public offering
shall reasonably and in good faith agree in writing to include in such public
offering in addition to the amount of Registrable Securities to be registered
for the Requesting Holders. The Company will be obligated to include in such
Registration Statement, as to each Participating Holder, only a portion of the
Registrable Securities such Participating Holder has requested be registered
equal to the ratio that such Participating Holder's requested Registrable
Securities bears to the total number of Registrable Securities requested to be
included in such Registration Statement by all Participating Holders. It is
acknowledged by the parties hereto that pursuant to the foregoing provision, the
securities to be included in a registration requested by the Requesting Holders
pursuant to Section 2 shall be allocated: (i) first, to the Participating
Holders; and (ii) second, to the Company.
(e) Limitations on Demand Registrations.
(i) The Company may delay making a filing of a Registration
Statement or taking action in connection therewith by not more than one hundred
and twenty (120) days if the Company provides a written certificate signed by
the President and Chief Executive Officer of the Company to the Holders, prior
to the time it would otherwise have been required to file such Registration
Statement or take such action pursuant to this Section 2, stating that the Board
has determined in good faith that the filing of such Registration Statement
would be seriously detrimental to the Company or would otherwise materially
adversely affect a financing, acquisition, disposition, merger or other material
transaction (collectively, a "Valid Business Reason") and that it is therefore
essential to defer the filing of the Registration Statement; provided, however,
that such right to delay a Demand Request shall be exercised by the Company not
more than twice in any twelve (12) month period and the Company shall only have
the right to delay a Demand Request so long as such Valid Business Reason
exists, and during such time, the Company may not file a Registration Statement
for securities to be issued and sold for its own account or for that of anyone
other than the Holders.
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(ii) The Company shall only be obligated to effect five (5)
Demand Requests pursuant to this Section 2 and the Holders agree not to make a
Demand Request until six (6) months after the effective date of a Registration
Statement relating to a Demand Request.
(iii) The Company shall not be required to comply with a Demand
Request unless the reasonably anticipated aggregate gross proceeds to be raised
(before any underwriting discounts and commissions) would be equal to or exceed
10% of the aggregate principal amount of Notes originally issued or 10% of the
aggregate number of Warrants originally issued.
3. Piggyback Registrations
-----------------------
(a) Right to Include Registrable Securities. Each time that the
Company proposes for any reason to register any of its Common Stock under the
Securities Act, either for its own account or for the account of a stockholder
or stockholders exercising demand registration rights other than Demand Requests
pursuant to Section 2 hereof or pursuant to a Registration Statement on Forms
S-4 or S-8 (or similar or successor forms) (a "Proposed Registration"), the
Company shall promptly give written notice of such Proposed Registration to all
of the Holders of Warrant Shares (which notice shall be given not less than
thirty (30) days prior to the expected effective date of the Company's
Registration Statement) and shall offer such Holders the right to request
inclusion of any of such Holder's Warrant Shares in the Proposed Registration.
No registration pursuant to this Section 3 shall relieve the Company of its
obligation to register Registrable Securities pursuant to a Demand Request, as
contemplated by Section 2 hereof. The rights to piggyback registration may be
exercised an unlimited number of occasions.
(b) Piggyback Procedure. Each Holder of Registrable Securities shall
have ten (10) days from the date of receipt of the Company's notice referred to
in Section 3(a) above to deliver to the Company a written request specifying the
number of Warrant Shares such Holder intends to sell and such Holder's intended
method of disposition. Any Holder shall have the right to withdraw such Holder's
request for inclusion of such holder's Warrant Shares in any Registration
Statement pursuant to this Section 3 by giving written notice to the Company of
such withdrawal; provided, however, that the Company may ignore a notice of
withdrawal made within twenty-four (24) hours of the time the Registration
Statement is to become effective. Subject to Section 3(d) below, the Company
shall use commercially reasonable efforts to include in such Registration
Statement all such Warrant Shares so requested to be included therein; provided,
however, that the Company may at any time withdraw or cease proceeding with any
such Proposed Registration if it shall at the same time withdraw or cease
proceeding with the registration of all other shares of Common Stock originally
proposed to be registered. In the event that the Proposed Registration by the
Company is, in whole or in part, an underwritten public offering of securities
of the Company, any request under this Section 3(b) shall specify that the
Warrant Shares be included in the underwriting on the same terms and conditions
as the shares, if any, otherwise being sold through underwriters under such
registration.
(c) Selection of Underwriters. The managing underwriter for any
Proposed Registration that involves an underwritten public offering shall be one
or more reputable nationally recognized investment banks selected by the
Company.
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(d) Priority for Piggyback Registration. Notwithstanding any other
provision of this Section 3, if the managing underwriter of an underwritten
public offering determines and advises the Company and the Holders in writing
that the inclusion of all Warrant Shares proposed to be included by the Holders
of Warrant Shares in the underwritten public offering would adversely interfere
with the successful marketing of the Company's securities, then the Holders of
Warrant Shares shall not be permitted to include any Warrant Shares in excess of
the amount, if any, of Warrant Shares that the managing underwriter of such
underwritten public offering shall reasonably and in good faith agree in writing
to include in such public offering in addition to the amount of securities to be
registered for the Company. Subject to the immediately preceding sentence, the
Company will be obligated to include in such Registration Statement, as to each
Participating Holder, only a portion of the Warrant Shares such Participating
Holder has requested be registered equal to the ratio that such Participating
Holder's requested Warrant Shares bears to the total number of Warrant Shares
requested to be included in such Registration Statement by all Participating
Holders who have requested that their Warrant Shares be included in such
Registration Statement. It is acknowledged by the parties hereto that pursuant
to the foregoing provision, the securities to be included in a registration
initiated by the Company shall be allocated:
(i) first, to the Company;
(ii) second, pari passu to the Participating Holders; and
(iii) third, to any others requesting registration of
securities of the Company.
(e) Underwritten Offering. In the event that the Proposed
Registration by the Company is, in whole or in part, an underwritten public
offering of securities of the Company, any request under this Section 3 shall
specify that the Warrant Shares shall be included in the underwriting on the
same terms and conditions as the shares, if any, otherwise being sold through
underwriters under such registration.
4. Form S-3 Shelf Registration
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(a) Effective Registration. As soon as practicable after the date on
which the Company is eligible to register securities on Form S-3 (or any
successor form) under the Securities Act, the Company shall use commercially
reasonable efforts to deliver for filing a "shelf" registration statement
pursuant to Rule 415 under the Securities Act and/or any similar rule that may
be adopted by the Commission with respect to all of the outstanding Registrable
Securities (the "Shelf Registration").
This Agreement shall constitute the consent of each holder of Registrable
Securities to the inclusion of such securities in the Shelf Registration upon
its effectiveness (each such consenting holder of Registrable Securities, an
"S-3 Holder"), except with respect to any Registrable Securities the holder of
which notifies the Company in writing no later than the Effective Time that it
does not wish its Registrable Securities to be included in the Shelf
Registration. The Holders shall not have demand or piggyback registration rights
during the period in which the Shelf Registration is effective or during any
period the Company has a Registration Statement on
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Form S-1 (or any successor form) under the Securities Act declared effective and
during the time such Registration Statement remains effective.
The Company agrees to use its efforts to have the Shelf Registration
declared effective as soon as reasonably practicable after such filing and to
keep the Shelf Registration continuously effective for a period expiring on the
date of termination of this Agreement; provided, however, that the effectiveness
of the Shelf Registration may be terminated earlier to the extent that none of
the Registrable Securities registered therein are outstanding (but not prior to
the expiration of the 90-day period referred to in Section 4(3) of the
Securities Act or Rule 174 thereunder, if applicable) or are then Registrable
Securities.
The Company further agrees, if necessary, to supplement or amend the Shelf
Registration, as required by the registration form utilized by the Company or by
the instructions applicable to such registration form or by the Securities Act
or the rules and regulations thereunder or as reasonably requested (which
request shall result in the filing of a supplement or amendment subject to
approval thereof by the Company, which approval shall not be unreasonably
withheld) by any seller or any managing underwriter of Registrable Securities to
which the Shelf Registration relates, including without limitation, such
supplements and amendments necessary to permit underwritten sales under the
Shelf Registration, and the Company agrees to furnish to the holders of
Registrable Securities (and any managing underwriter) copies, in substantially
the form proposed to be used and/or filed, of any such supplement or amendment
prior to its being used and/or filed with the Commission. The Company shall
amend or supplement the Shelf Registration no less frequently than every thirty
(30) days to update the list of selling holders of Registrable Securities
pursuant to written requests by such holders. The Shelf Registration may include
securities other than Registrable Securities.
(b) Selection of Underwriters and Counsel. If any offering pursuant to
the Shelf Registration involves an underwritten offering, any holder or holders
of an aggregate of at least fifty percent (50%) of (i) the principal amount of
Notes outstanding or (ii) the aggregate number of Warrant Shares then
outstanding shall have the right to select the investment banker or bankers and
manager or managers to administer the offering and one counsel to the sellers of
Registrable Securities in such offering, which investment bankers and managers
shall be reasonably satisfactory to the Company. The holders of the Registrable
Securities to be registered shall pay all underwriting discounts and commissions
or placement or other fees or expenses of such investment banker or bankers,
manager or managers and counsel.
5. Blackout Periods.
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(a) Following a Demand Request or the filing of the Shelf
Registration, upon written notice from the Company to the Participating Holders
or S-3 Holders, as the case may be, that the Company determines in the good
faith judgment of the Board of Directors of the Company, based on the advice of
counsel, that the filing of any Registration Statement or the sale of
Registrable Securities pursuant to the Registration Statement would require
disclosure of material non-public information, the disclosure of which would
have a material adverse effect on the Company, the Company may, (x) if the
Registration Statement has not yet been filed, delay such filing, (y) if the
Registration Statement has been filed but has not yet become effective, cease
taking steps to cause the Registration Statement to become effective, and (z) if
the Registration
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Statement has already become effective, suspend the Participating Holders' or
S-3 Holders' sale of Registrable Securities pursuant to such Registration
Statement until the earlier of:
(i) the date upon which such material information is
disclosed to the public or ceases to be material; and
(ii) such time as the Company notifies the selling Holders that
the Company will no longer delay such filing of the Registration Statement,
recommence taking steps to make such Registration Statement effective or allow
sales pursuant to such Registration Statement to resume.
(The period during which the Company delays the filing of the Registration
Statement, ceases taking steps to cause the Registration Statement to become
effective or suspends sales of Registrable Securities is hereinafter called a
"Blackout Period".)
(b) Any delivery by the Company of notice of a Blackout Period prior
to the end of the sixty (60) day period immediately following effectiveness of
any Registration Statement effected pursuant to Section 2 hereof shall give a
majority of Participating Holders the right, by written notice to the Company
within five (5) days after the commencement of such Blackout Period, to cancel
such registration and such registration shall not count toward the Demand
Registration limit in Section 2(e). The Company shall use its reasonable efforts
to provide such notice a reasonable number of days prior to the commencement of
such a Blackout Period; provided, however, that in any event the Company shall
provide such notice no later than the commencement of such Blackout Period.
(c) Notwithstanding contrary provisions in this Section 5, the Company
shall limit its use of Blackout Periods, in their aggregate, to one hundred
twenty (120) days in any twelve (12) month period.
(d) The Company shall not be required to keep the Shelf Registration
effective, or may without suspending such effectiveness, instruct the holders of
Registrable Securities included in the Shelf Registration not to sell such
securities, during any period during which the Company is instructed, directed,
ordered or otherwise requested by any governmental agency or self-regulatory
organization to stop or suspend such trading or sales (a "Supplemental Blackout
Period").
6. Holdback Agreements.
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(a) Restrictions on Public Sale by Holders. If requested by the lead
managing underwriter, each Holder of Registrable Securities agrees not to effect
any public sale or distribution of any Registrable Securities being registered,
including a sale pursuant to Rule 144 under the Securities Act, during a period
of not more than ninety (90) days after any other firm underwriting public
offering of securities of the Company, commencing on the effective date of the
Registration Statement (the "Lock-Up Period"), unless expressly authorized to do
so by the lead managing underwriter. Any such lock-up agreements signed by the
Holders shall contain reasonable and customary exceptions, including, without
limitation, the right of a Holder to make transfers to certain Affiliates and
transfers related to securities of the Company owned by Holders as a result of
open market purchases. The Company may impose stop-transfer instructions
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with respect to securities of the Company subject to the foregoing restrictions
until the end of the relevant period.
(b) Restrictions on Public Sale by the Company. The Company agrees not
to effect any public sale or distribution of any common stock of the Company for
its own account (except pursuant to registrations on Form S-4 or S-8 or any
similar or successor form) during the Lock-Up Period, to the extent reasonably
requested by the managing underwriter (except for securities being sold by the
Company for its own account under such Registration Statement); provided,
however, that the foregoing restriction shall not apply for more than one
Lock-Up Period during any twelve month period.
7. Registration Procedures
------------------------
(a) Obligations of the Company. Whenever registration of Registrable
Securities is required pursuant to this Agreement, the Company shall use
commercially reasonable efforts to effect the registration and sale of such
Registrable Securities in accordance with the intended method of distribution
thereof as promptly as possible, and in connection with any such request, the
Company shall, as expeditiously as possible:
(i) Preparation of Registration Statement; Effectiveness. Prepare
and file with the SEC (in any event not later than ninety (90) days after
receipt of a Demand Request to file a Registration Statement with respect to
Registrable Securities, or such longer period as the Company shall in good faith
require to produce the financial statements required in connection with such
registration), a Registration Statement on any form on which the Company then
qualifies, which counsel for the Company shall deem appropriate and pursuant to
which such offering may be made in accordance with the intended method of
distribution thereof (except that the Registration Statement shall contain such
information as may reasonably be requested for marketing or other purposes by
the managing underwriter), and use commercially reasonable efforts to cause any
registration required hereunder to become effective as soon as practicable after
the initial filing thereof and remain effective for a period of not less than
sixty (60) days (or such shorter period in which all Registrable Securities have
been sold in accordance with the methods of distribution set forth in the
Registration Statement); provided, however, that, in the case of any
registration of Registrable Securities on Form S-3 that is intended to be
offered on a continuous or delayed basis, such sixty (60) day period shall be
extended, if necessary, to keep the Registration Statement effective until all
such Registrable Securities are sold, provided, however, that Rule 415, or any
successor rule under the Securities Act, permits an offering on a continuous or
delayed basis;
(ii) Participation in Preparation. Provide any Participating
Holder, any underwriter participating in any disposition pursuant to a
Registration Statement, and any attorney, accountant or other agent retained by
any Participating Holder or underwriter (each, an "Inspector" and, collectively,
the "Inspectors"), the opportunity to participate (including, but not limited
to, reviewing, commenting on and attending all meetings) in the preparation of
such Registration Statement, each prospectus included therein or filed with the
SEC and each amendment or supplement thereto;
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(iii) Due Diligence. For a reasonable period prior to the filing
of any Registration Statement pursuant to this Agreement, make available for
inspection and copying by the Inspectors such financial and other information
and books and records, pertinent corporate documents and properties of the
Company and its subsidiaries and cause the officers, directors, employees,
counsel and independent certified public accountants of the Company and its
subsidiaries to respond to such inquiries and to supply all information
reasonably requested by any such Inspector in connection with such Registration
Statement, as shall be reasonably necessary, in the judgment of the respective
counsel referred to in Section 6(a)(ii), to conduct a reasonable investigation
within the meaning of the Securities Act; provided, however, that if requested
by the Company, each Inspector shall enter into a confidentiality agreement with
the Company prior to participating in the preparation of the Registration
Statement or the Company's release or disclosure of confidential information to
such Inspector;
(iv) General Notifications. Promptly notify in writing the
Participating Holders, the sales or placement agent, if any, therefor and the
managing underwriter of the securities being sold, (A) when such Registration
Statement or the prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and, with respect to any
such Registration Statement or any post-effective amendment, when the same has
become effective, (B) when the SEC notifies the Company whether there will be a
"review" of such Registration Statement and (C) of any comments (oral or
written) by the SEC and by the blue sky or securities commissioner or regulator
of any state with respect thereto or (D) of any request by the SEC for any
amendments or supplements to such Registration Statement or the prospectus or
for additional information;
(v) 10b-5 Notification. Promptly notify in writing the
Participating Holders, the sales or placement agent, if any, therefor and the
managing underwriter of the securities being sold pursuant to any Registration
Statement at any time when a prospectus relating thereto is required to be
delivered under the Securities Act upon discovery that, or upon the happening of
any event as a result of which, any prospectus included in such Registration
Statement (or amendment or supplement thereto) contains an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances under which they were made, and the Company shall as soon as
possible prepare a supplement or amendment to such prospectus and file it with
the SEC so that after delivery of such prospectus, as so amended or
supplemented, to the purchasers of such Registrable Securities, such prospectus,
as so amended or supplemented, shall not contain an 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 in light of the
circumstances under which they were made;
(vi) Notification of Stop Orders; Suspensions of Qualifications
and Exemptions. Promptly notify in writing the Participating Holders, the sales
or placement agent, if any, therefor and the managing underwriter of the
securities being sold of the issuance by the SEC of (A) any stop order issued or
threatened to be issued by the SEC or (B) any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and the Company agrees to use
commercially reasonable efforts to (x) prevent the issuance of any such stop
order, and in the event of such issuance, to obtain the with-
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drawal of any such stop order and (y) obtain the withdrawal of any order
suspending or preventing the use of any related prospectus or suspending the
qualification of any Registrable Securities included in such Registration
Statement for sale in any jurisdiction at the earliest practicable date;
(vii) Amendments and Supplements; Acceleration. Prepare and file
with the SEC such amendments, including post-effective amendments to each
Registration Statement as may be necessary to keep such Registration Statement
continuously effective for the applicable time period required hereunder and if
applicable, file any Registration Statements pursuant to Rule 462(b) under the
Securities Act; cause the related prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
(or any similar provisions then in force) promulgated under the Securities Act;
and comply with the provisions of the Securities Act and the Exchange 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 thereof set forth in such Registration Statement as
so amended or in such prospectus as so supplemented. If a majority in interest
of the Participating Holders so request, to request acceleration of
effectiveness of the Registration Statement from the SEC and any post-effective
amendments thereto, if any are filed; provided, however, that at the time of
such request, the Company does not in good faith believe that it is necessary to
amend further the Registration Statement in order to comply with the provisions
of this subparagraph. If the Company wishes to further amend the Registration
Statement prior to requesting acceleration, it shall so amend as soon as
possible prior to requesting acceleration;
(viii) Copies. Furnish as promptly as practicable to each
Participating Holder and Inspector prior to filing a Registration Statement or
any supplement or amendment thereto, copies of such Registration Statement,
supplement or amendment as it is proposed to be filed, and after such filing
such number of copies of such Registration Statement, each amendment and
supplement thereto (in each case including all exhibits thereto), the prospectus
included in such Registration Statement (including each preliminary prospectus)
and such other documents as each such Participating Holder or underwriter may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such Participating Holder;
(ix) Blue Sky. Use commercially reasonable efforts to, prior to
any public offering of the Registrable Securities, register or qualify (or seek
an exemption from registration or qualifications) such Registrable Securities
under such other securities or blue sky laws of such jurisdictions as any
Participating Holder or underwriter may request, and to continue such
qualification in effect in each such jurisdiction for as long as is permissible
pursuant to the laws of such jurisdiction, or for as long as a Participating
Holder or underwriter requests or until all of such Registrable Securities are
sold, whichever is shortest, and do any and all other acts and things that may
be reasonably necessary or advisable to enable any Participating Holder to
consummate the disposition in such jurisdictions of the Registrable Securities;
provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent of process in any such states or jurisdictions or subject itself
to material taxation in any such state or jurisdiction, but for this
subparagraph;
(x) Other Approvals. Use commercially reasonable efforts to
obtain all other approvals, consents, exemptions or authorizations from such
governmental agencies or
11
authorities as may be necessary to enable the Participating Holders and
underwriters to consummate the disposition of Registrable Securities;
(xi) Agreements. Enter into customary agreements (including any
underwriting agreements in customary form), and take such other actions as may
be reasonably required in order to expedite or facilitate the disposition of
Registrable Securities;
(xii) "Cold Comfort" Letter. Obtain a "cold comfort" letter from
the Company's independent public accountants in customary form and covering such
matters of the type customarily covered by "cold comfort" letters as the
managing underwriter may reasonably request, and reasonably satisfactory to a
majority in interest of the Participating Holders;
(xiii) Legal Opinion. Furnish, at the request of any underwriter
of Registrable Securities on the date such securities are delivered to the
underwriters for sale pursuant to such registration, an opinion, dated such
date, of counsel representing the Company for the purposes of such registration,
addressed to the Holders, and the placement agent or sales agent, if any,
thereof and the underwriters, if any, thereof, covering such legal matters with
respect to the registration in respect of which such opinion is being given as
such underwriter may reasonably request and as are customarily included in such
opinions;
(xiv) SEC Compliance. Use commercially reasonable efforts to
comply with all applicable rules and regulations of the SEC;
(xv) Certificates, Closing. Provide officer's certificates and
other customary closing documents;
(xvi) NASD. Cooperate with each Participating Holder and each
underwriter participating in the disposition of such Registrable Securities and
underwriters' counsel in connection with any filings required to be made with
the NASD;
(xvii) Road Show. Cause appropriate officers as are requested by
an managing underwriter to participate in a "road show" or similar marketing
effort being conducted by such underwriter with respect to an underwritten
public offering; provided, however, that such officers shall not be required to
participate in such road show or similar marketing effort with respect to more
than one (1) public offering per year; and
(xviii) Transfer Agent, Registrar and CUSIP. Provide a transfer
agent and registrar for all Registrable Securities registered pursuant hereto
and a CUSIP number for all such Registrable Securities, in each case, no later
than the effective date of such registration.
(b) Seller Information. The Company may require each Participating
Holder as to which any registration of such Holder's Registrable Securities is
being effected to furnish to the Company with such information regarding such
Participating Holder and such Participating Holder's method of distribution of
such Registrable Securities as the Company may from time to time reasonably
request in writing. If a Participating Holder refuses to provide the Company
with any of such information on the grounds that it is not necessary to include
such information in the Registration Statement, the Company may exclude such
Participating Holder's Registrable Securities from the Registration Statement if
the Company provides such Participating Holder
12
with an opinion of counsel to the effect that such information must be included
in the Registration Statement and such Participating Holder continues thereafter
to withhold such information. The exclusion of a Participating Holder's
Registrable Securities shall not affect the registration of the other
Registrable Securities to be included in the Registration Statement.
(c) Notice to Discontinue. Each Participating Holder whose Registrable
Securities are covered by a Registration Statement filed pursuant to this
Agreement agrees that, upon receipt of written notice from the Company of the
happening of any event of the kind described in Section 6(a)(v), such
Participating Holder shall forthwith discontinue the disposition of Registrable
Securities until such Participating Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 6(a)(v) or until it
is advised in writing by the Company that the use of the prospectus may be
resumed and has received copies of any additional or supplemental filings that
are incorporated by reference into the prospectus, and, if so directed by the
Company in the case of an event described in Section 6(a)(v), such Participating
Holder shall deliver to the Company (at the Company's expense) all copies, other
than permanent file copies then in such Participating Holder's possession, of
the prospectus covering such Registrable Securities that is current at the time
of receipt of such notice. If the Company shall give any such notice, the
Company shall extend the period during which such Registration Statement is to
be maintained effective by the number of days during the period from and
including the date of the giving of such notice pursuant to Section 6(a)(v) to
and including the date when the Participating Holder shall have received the
copies of the supplemented or amended prospectus contemplated by, and meeting
the requirements of, Section 6(a)(v).
(d) Registration Expenses. Except as otherwise provided herein, all
Registration Expenses shall be borne by the Company; provided, however, that the
Company shall not be required to pay for any Registration Expenses of any
registration proceeding commenced as a result of a Demand Request that is
subsequently withdrawn or canceled by at least a majority of the Participating
Holders, in which case the Participating Holders shall bear such Registration
Expenses pro rata on the basis of the number of shares proposed to be
registered. All Selling Expenses relating to Registrable Securities registered
shall be borne by the Participating Holders of such Registrable Securities pro
rata on the basis of the number of shares so registered.
8. Indemnification
------------------
(a) Indemnification by the Company. The Company agrees,
notwithstanding termination of this Agreement, to indemnify and hold harmless to
the fullest extent permitted by law, each Holder, each of its directors,
officers, employees, advisors, agents and general or limited partners (and the
directors, officers, employees, advisors and agents thereof), their respective
Affiliates and each Person who controls (within the meaning of the Securities
Act or the Exchange Act) any of such Persons, and each underwriter and each
Person who controls (within the meaning of the Securities Act or the Exchange
Act) any underwriter (collectively, "Holder Indemnified Parties") from and
against any and all losses, claims, damages, expenses (including, without
limitation, reasonable costs of investigation and fees, disbursements and other
charges of counsel and any amounts paid in settlement effected with the
Company's consent, which consent shall not be unreasonably withheld or delayed)
or other liabilities (collectively, "Losses") to which any such Holder
Indemnified Party may become subject under the Securities Act, Exchange Act, any
other federal law, any state or common law or any rule or regulation promul-
13
gated thereunder or otherwise, insofar as such Losses (or actions or
proceedings, whether commenced or threatened, in respect thereof) are resulting
from or arising out of or based upon any untrue, or alleged untrue, statement of
a material fact contained in any Registration Statement, prospectus or
preliminary prospectus (as amended or supplemented) or any document incorporated
by reference in any of the foregoing or resulting from or arising out of or
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein (in
the case of a prospectus, in light of the circumstances under which they were
made), not misleading, the Company will promptly reimburse each such Holder
Indemnified Party for any legal and any other Losses reasonably incurred in
connection with investigating, preparing or defending any such claim, loss,
damage, liability, action or investigation or proceeding (collectively, a
"Claim"); provided, however, that the Company shall not be liable to any Holder
Indemnified Party for any Losses that arise out of or are based upon (x) written
information provided by a Holder Indemnified Party expressly for use in the
Registration Statement or (y) sales of Registrable Securities by a Holder
Indemnified Party to a person to whom there was not sent or given, at or before
the written confirmation of such sale, a copy of the prospectus (excluding
documents incorporated by reference) or the prospectus as then amended or
supplemented (excluding documents incorporated by reference) if the Company has
previously furnished in a timely manner a reasonable number of copies thereof to
such Holder Indemnified Party in compliance with this Agreement and the Losses
of such Holder Indemnified Party results from an untrue statement or omission of
a material fact contained in such preliminary prospectus that was corrected in
the prospectus (or the prospectus as then amended or supplemented). Such
indemnity obligation shall remain in full force and effect regardless of any
investigation made by or on behalf of the Holder Indemnified Parties and shall
survive the transfer of Registrable Securities by such Holder Indemnified
Parties.
(b) Indemnification by Holders. In connection with any proposed
registration in which a Holder is participating pursuant to this Agreement, each
such Holder shall furnish to the Company in writing such information with
respect to such Holder as the Company may reasonably request or as may be
required by law for use in connection with any Registration Statement or
prospectus or preliminary prospectus to be used in connection with such
registration and each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, any underwriter retained by the Company and their
respective directors, officers, partners, employees, advisors and agents, their
respective Affiliates and each Person who controls (within the meaning of the
Securities Act or the Exchange Act) any of such Persons to the same extent as
the foregoing indemnity from the Company to the Holders as set forth in Section
8(a) (subject to the exceptions set forth in the foregoing indemnity, the
proviso to this sentence and applicable law), but only with respect to any such
information furnished in writing by such Holder expressly for use therein;
provided, however, that the liability of any Holder under this Section 8(b)
shall be limited to the amount of the gross proceeds received by such Holder in
the offering giving rise to such liability. Such indemnity obligation shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Holder Indemnified Parties (except as provided above) and shall
survive the transfer of Registrable Securities by such Holder.
(c) Conduct of Indemnification Proceedings. Any Person entitled to
indemnification hereunder (the "Indemnified Party") agrees to give prompt
written notice to the indemnifying party (the "Indemnifying Party") after the
receipt by the Indemnified Party of any written notice of the commencement of
any action, suit, proceeding or investigation or threat thereof
14
made in writing for which the Indemnified Party intends to claim indemnification
or contribution pursuant to this Agreement; provided, however, that, the failure
so to notify the Indemnifying Party shall not relieve the Indemnifying Party of
any liability that it may have to the Indemnified Party hereunder unless and to
the extent such Indemnifying Party is materially prejudiced by such failure. If
notice of commencement of any such action is given to the Indemnifying Party as
above provided, the Indemnifying Party shall be entitled to participate in and,
to the extent it may wish, jointly with any other Indemnifying Party similarly
notified, to assume the defense of such action at its own expense, with counsel
chosen by it and reasonably consented to by such Indemnified Party, which such
consent shall not be unreasonably withheld. The Indemnified Party shall have the
right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be paid by the
Indemnified Party unless (i) the Indemnifying Party agrees to pay the same, (ii)
the Indemnifying Party fails to assume the defense of such action, or (iii) the
named parties to any such action (including, but not limited to, any impleaded
parties) provide a legal opinion stating that the representation of such
Indemnified Party and the Indemnifying Party by the same counsel would be
inappropriate under applicable standards of professional conduct. In the case of
clause (ii) above and (iii) above, the Indemnifying Party shall not have the
right to assume the defense of such action on behalf of such Indemnified Party.
No Indemnifying Party shall be liable for any settlement entered into without
its written consent, which consent shall not be unreasonably withheld. No
Indemnifying Party shall, without the written consent of the Indemnified Party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
Indemnified Party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (A) includes an unconditional
release of the Indemnified Party from all liability arising out of such action
or claim and (B) does not include a statement as to, or an admission of, fault,
culpability or a failure to act by or on behalf of any Indemnified Party. The
rights afforded to any Indemnified Party hereunder shall be in addition to any
rights that such Indemnified Party may have at common law, by separate agreement
or otherwise.
(d) Contribution. If the indemnification provided for in this Section
8 from the Indemnifying Party is unavailable or insufficient to hold harmless an
Indemnified Party in respect of any Losses referred to herein, then the
Indemnifying Party, in lieu of indemnifying the Indemnified Party, shall
contribute to the amount paid or payable by the Indemnified Party as a result of
such Losses in such proportion as is appropriate to reflect the relative fault
of the Indemnifying Party and the Indemnified Party, as well as any other
relevant equitable considerations. The relative faults of the Indemnifying Party
and Indemnified Party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, was
made by, or relates to information supplied by, such Indemnifying Party or
Indemnified Party, and the Indemnifying Party's and Indemnified Party's relative
intent, knowledge, access to information and opportunity to correct or prevent
such action; provided, however, that the liability of any Holder under this
Section 8(d) shall be limited to the amount of the gross proceeds received by
such Holder in the offering giving rise to such liability. The amount paid or
payable by a party as a result of the Losses or other liabilities referred to
above shall be deemed to include, subject to the limitations set forth in
Sections 8(a), 8(b) and 8(c), any legal or other fees,
15
charges or expenses reasonably incurred by such party in connection with any
investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by 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 pursuant to this
Section 8(d).
9. Rule 144 and Rule 144A; Other Exemptions.
-----------------------------------------
With a view to making available to the Holders the benefits of Rule 144 and
Rule 144A promulgated under the Securities Act and other rules and regulations
of the SEC that may at any time permit a Holder to sell securities of the
Company to the public without registration, the Company covenants that it shall
(i) at all times, from and after the date that is thirty (30) days following the
date on which the Company is current with respect to the filings with the
Commission required to be made by it pursuant to the Exchange Act, file in a
timely manner all reports and other documents required to be filed by it under
the Securities Act and the Exchange Act and the rules and regulations adopted by
the SEC thereunder and (ii) take such further action as each Holder may
reasonably request (including, but not limited to, providing any information
necessary to comply with Rule 144 and Rule 144A, if available with respect to
resales of the Registrable Securities under the Securities Act), all to the
extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (x) Rule 144 and Rule 144A (if available with
respect to resales of the Registrable Securities) under the Securities Act, as
such rules may be amended from time to time or (y) any other rules or
regulations now existing or hereafter adopted by the SEC.
10. Certain Limitations On Registration Rights.
-------------------------------------------
No Holder may participate in any Registration Statement hereunder unless
such Holder completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements, and other documents reasonably required
under the terms of such underwriting arrangements and agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
agreement approved by the Holder or Holders entitled hereunder to approve such
arrangements; provided, however, that no such Holder shall be required to make
any representations or warranties to the Company or the underwriters in
connection with any such registration other than representations and warranties
as to (i) such Holder's ownership of its Registrable Securities to be sold or
transferred, (ii) such Holder's power and authority to effect such transfer and
(iii) such matters pertaining to compliance with securities laws as may be
reasonably requested.
11. Transfer of Registration Rights.
---------------------------------
The rights of a Holder hereunder may be transferred or assigned in
connection with a transfer of Registrable Securities to (i) any Affiliate of a
Holder, (ii) any subsidiary, parent, partner, retired partner, limited partner,
shareholder or member of a Holder or (iii) any family mem-
16
ber or trust for the benefit of any Holder. Notwithstanding the foregoing, such
rights may only be transferred or assigned provided that all of the following
additional conditions are satisfied: (a) such transfer or assignment is effected
in accordance with applicable securities laws; (b) such transferee or assignee
agrees in writing to become subject to the terms of this Agreement; and (c) the
Company is given written notice by such Holder of such transfer or assignment,
stating the name and address of the transferee or assignee and identifying the
Registrable Securities with respect to which such rights are being transferred
or assigned.
12. Termination of Registration Rights.
----------------------------------
The rights contained in Sections 2, 3, 4 and 11 hereof shall terminate at
the earlier of (a) five (5) years from the effective date of the Company's first
Registration Statement for a public offering of securities of the Company or (b)
with respect to a Holder, in the opinion of the Company's counsel, all such
Registrable Securities proposed to be sold by a Holder may be sold in a three
(3) month period without registration under the Securities Act pursuant to Rule
144, and (such Registrable Securities represent less than one percent (1%) of
all outstanding shares of the Company's capital stock.
13. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Company will not enter into any
agreement offering registration rights on parity with or senior to the
registration rights granted hereunder without the prior written consent of the
Holders of a majority in interest of each type of Registrable Securities, which
consent may be withheld in their sole discretion.
(b) Remedies. In the event of a breach by the Company of any of its
obligations under this Agreement, each holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by them of the
provisions of this Agreement and hereby agree to waive the defense in any action
for specific performance that a remedy at law would be adequate.
(c) Adjustments Affecting Registrable Securities. The Company shall
not, directly or indirectly, take any action, or permit any change to occur,
with respect to the Registrable Securities (i) that would adversely affect the
ability of the holders of Registrable Securities to include such Registrable
Securities in a registration undertaken pursuant to this Agreement or (ii) that
would adversely affect the marketability of such Registrable Securities in any
such registration.
(d) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
unless the Company has obtained the written consent of holders of at least a
majority in interest of Registrable Securities affected by such amendment,
modification, supplement, waiver or departure. Notwithstanding the foregoing,
the provisions of Section 2 hereof cannot be amended or waived except with the
17
written consent of the holders of two-thirds (2/3) of (i) the principal amount
of Notes outstanding and (ii) the aggregate number of Warrant Shares then
outstanding.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be in writing and made by hand-delivery, or Express
Mail:
(i) If to a holder of Registrable Securities, at the most current
address, and with a copy to be sent to each additional address given by such
holder to the Company and the trustee and/or warrant agent, as applicable, under
the indenture and/or warrant agreement governing the Registrable Securities;
(ii) if to the Company, at:
QuadraMed Corporation
00000 Xxxxxx Xxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel
With a copy to:
Akin Gump Xxxxxxx Xxxxx & Xxxx LLP
0000 Xxx Xxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxxx, Esq.
All such notices and communications shall be deemed to have been duly given
when delivered by hand, if personally delivered, or two business days after
being deposited in the mail, postage prepaid, if mailed.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the2! successors and assigns of each of the parties
hereto, including, without limitation and without the need for an express
assignment, subsequent holders of Registrable Securities.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware without regard to
principles of conflicts of law.
(i) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of both the
Company and the holders of Registrable Securities shall be enforceable to the
fullest extent permitted by law.
18
(j) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein and therein. This Agreement (including the exhibits thereto) supersedes
all prior agreements and understandings between the parties with respect to such
subject matter.
(k) Securities Held by the Company or Its Affiliates. Whenever the
consent or approval of holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company or
its affiliates (other than the holders of Registrable Securities if such holders
are deemed to be such affiliates solely by reason of their holdings of such
Registrable Securities) shall not be counted in determining whether such consent
or approval was given by the holders of such required percentage.
(l) Attorneys' Fees. In any action or proceeding brought to enforce
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the successful party shall be entitled to recover
reasonable attorneys' fees in addition to its costs and expenses and any other
available remedy.
(m) Third Party Beneficiaries. This Agreement is entered into for the
express benefit of the holders of Registrable Securities. Accordingly, this
Agreement may be enforced by and against holders of Registrable Securities in
the same manner and to the same extent as if such holders had executed this
Agreement.
(n) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be original, and all of which together shall
constitute one instrument.
[Signature Page Follows]
19
REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
QUADRAMED CORPORATION
By:
-----------------
Name:
-----------------
Title:
-----------------
MACKAY XXXXXXX
By:
-----------------
Name:
-----------------
Title:
-----------------
ZAZOVE ASSOCIATES LLC
By:
-----------------
Name:
-----------------
Title:
-----------------
ALLIANZ OF AMERICA, INC.
By:
-----------------
Name:
-----------------
Title:
-----------------
20
MELLON HBV ALTERNATIVE STRATEGIES
By:
----------------
Name:
----------------
Title:
----------------
TRIAGE CAPITAL MANAGEMENT LP
By:
----------------
Name:
----------------
Title:
----------------
XXXXXXXX PARTNERS
By:
----------------
Name:
----------------
Title:
----------------
XXXXX XXXXXX & CO. LLC
By:
----------------
Name:
----------------
Title:
----------------
PHILADELPHIA BROKERAGE CORPORATION
By:
----------------
Name:
----------------
Title:
----------------
21
CENTURY NATIONAL
INSURANCE COMPANY
By: Zazove Associates, LLC
By:
----------------------
Name:
Title:
NATIONAL UNION FIRE
INSURANCE
COMPANY OF PITTSBURG, PA
By: Zazove Associates, LLC
By:
----------------------
Name:
Title:
QWEST OCCUPATIONAL
HEALTH TRUST
By: Zazove Associates, LLC
By:
----------------------
Name:
Title:
QWEST PENSION TRUST
By: Zazove Associates, LLC
By:
----------------------
Name:
Title:
22
SAN DIEGO COUNTY
EMPLOYEES
RETIREMENT ASSOCIATION
By: Zazove Associates, LLC
By:
---------------------
Name:
Title:
LENBROOK CONVERTIBLE PARTNERS, L.P.
G By: Zazove Associates, LLC
By:
---------------------
Name:
Title:
STARVEST CONVERTIBLE SECURITIES FUND,
INC.
By: Zazove Associates, LLC
By:
---------------------
Name:
Title:
ZAZOVE AGGRESSIVE GROWTH FUND, L.P.
By: Zazove Associates, LLC
By:
---------------------
Name:
Title:
23
ZAZOVE HIGH YIELD CONVERTIBLE
SECURITIES FUND, L.P.
By: Zazove Associates, LL
By:
-----------------
Name:
Title:
XXXX X. XXXXXX
By: Zazove Associates, LLC
By:
-----------------
Name:
Title:
TRIAGE OFFSHORE FUND LTD
By:
-----------------
Name:
Title:
OTA, LLC
By:
-----------------
Name:
Title:
24
HBV MASTER MULTI-STRATEGY FUND LP
By:
----------------------
Name:
Title:
MELLON HBV SPECIAL SITUATIONS
FUND LP
By: Mellon HBV II LLC
By:
----------------------
Name:
Title:
00
XXXXXXXX XXXXXX XXXXXX XXXXXXX MASTER
LONG/SHORT FUND BEAR XXXXXXX
By: *
----------------- By: *
-----------------
AMERICAN KENNEL CLUB CORE BOND
MACKAY XXXXXXX TRUST HIGH YIELD
CORPORATE BOND
By: *
----------------- By: *
-----------------
AVAYA INC MASTER PENSION TRUST
PARK EMPLOYEE'S ANNUITY AND
By: * BENEFIT FUND CORE PLUS HIGH YIELD
-----------------
XXXXXX & XXXXXXXX RETIREMENT By: *
PLAN-HIGH YIELD -----------------
By: * FEDERAL INSURANCE COMPANY
----------------- (CHUBB) HIGH YIELD
MACKAY XXXXXXX LONG/SHORT FUND By: *
-----------------
By: *
-----------------
THE PENSION PLAN OF
CONSTELLATION ENERGY GROUP HIGH
401 SAVINGS PLAN OF THE CHASE YIELD
MANHATTAN BANK AND CERTAIN
AFFILIATED COS By: *
-----------------
By: *
-----------------
CARNEGIE MELLON UNIVERSITY HIGH
YIELD
CITY OF MONTREAL HIGH YIELD
By: *
By: * -----------------
-----------------
*MACKAY XXXXXXX
By:
-----------------------
Name:
Title:
ECLIPSE CORE BOND PLUS FUND HIGH XXXXXX INDUSTRIES EMPLOYEE
YIELD
By: *
-----------------
By: * POLICEMEN'S AND FIREFIGHTERS'
------------------ RETIREMENT FUND OF LEXINGTON-
FAYETTE URBAN COUNTY
FAIRFAX COUNTY EMPLOYEES GOVERNMENT
RETIREMENT SYSTEM HIGH YIELD
FONDATION LUCIE ET ANDRE By: *
XXXXXXX HIGH YIELD -----------------
By: *
----------------- THE 1199 HEALTH CARE EMPLOYEES
PENSION FUND HIGH YIELD
EMPLOYEES RETIREMENT SYSTEM OF By: *
THE CITY OF FORT WORTH HIGH YIELD -----------------
By: * NEW YORK DISTRICT COUNCIL OF
----------------- CARPENTERS PENSION FUND
MLG-NYL US HIGH YIELD By: *
-----------------
By: *
-----------------
OHIO POLICE & FIRE PENSION FUND
HIGH YIELD
HONG KONG HOSPITAL AUTHORITY
HIGH YIELD
By: * PENNSYLVANIA PUBLIC SCHOOLS
----------------- EMPLOYEES' RETIREMENT SYSTEM
By: *
-----------------
ILLINOIS MUNICIPAL RETIREMENT
FUND HIGH YIELD
By: * STICHTING PHILIPS PENSIOENFONDS
----------------- HIGH YIELD
By: *
-----------------
*MACKAY XXXXXXX
By: -----------------
Name:
Title:
STICHTING PHILIPS PENSIOENFONDS NATIONS MASTER INVESTMENT HIGH
YIELD
By: * By: *
----------------- -----------------
NATIONS ANNUITY FUND HIGH YIELD
RHODE ISLAND EMPLOYEES
RETIREMENT SYSTEM By: *
-----------------
By: * LOS ANGELES FIRE AND POLICE HIGH
----------------- YIELD
NEW YORK LIFE CORE BOND PLUS By: *
FUND SEPARATE ACCOUNT # 38 HIGH -----------------
YIELD
By: * VULCAN MATERIALS COMPANY HIGH
----------------- YIELD
POLICE OFFICERS PENSION SYSTEM OF By: *
THE CITY OF HOUSTON -----------------
By: * NY LIFE SEPARATE ACCOUNT
----------------- GOA/BB/HIGH YIELD
THE CITY OF MEMPHIS RETIREMENT By: *
SYSTEM HIGH YIELD -----------------
By: * THE MAINSTAY FUNDS, INC; ON
----------------- BEHALF OF ITS HIGH YIELD
CORPORATE BOND FUND SERIES
NISOURCE CORP. SERVICES COMPANY
HIGH YIELD By: *
-----------------
By: *
----------------
*MACKAY XXXXXXX
By:
-----------------
Name:
Title:
THE MAINSTAY FUNDS, INC; ON RIYAD BANK HYB LIQ RIY13
BEHALF OF ITS STRATEGIC VALUE
FUND By: *
-----------------
By: * RIYAD BANK HYB LIQ RIY04
-----------------
By: *
MAINSTAY VP SERIES FUND, INC., ON -----------------
BEHALF OF ITS HIGH YIELD
CORPORATE BOND PORTFOLIO
RIYAD BANK HIGH YIELD
By: *
-----------------
SAN ANTONIO FIREMAN & POLICE
PENSION FUND HIGH YIELD
By: *
-----------------
TENNESSEE VALLEY AUTHORITY
RETIREMENT SYSTEM HIGH YIELD
By: *
-----------------
SCOTTISH WIDOWS FUND & LIFE
ASSURANCE SOCIETY HIGH YIELD
By: *
-----------------
WRITERS' GUILD INDUSTRY HEALTH
FUND
By: *
-----------------
*MACKAY XXXXXXX
By:
----------------
Name:
Title:
