PLEDGE AGREEMENT
Exhibit 10.4
EXECUTION VERSION
PLEDGE AGREEMENT (this “Agreement”), dated as of July 2, 2012, is among SXC Health Solutions Corp., a corporation organized under the laws of the Yukon Territory (the “Borrower”), SXC Health Solutions, Inc., a Texas corporation (“SXC Health”), informedRx, Inc., a Delaware corporation (“informedRx”), Catalyst Health Solutions, Inc., a Delaware corporation (“CHS”), Catalyst Rx, a Nevada corporation (“Catalyst Rx”), Catalyst Rx Health Initiatives, Inc., an Illinois corporation (“Catalyst Rx Health”) and Coalition for Advanced Pharmacy Services, LLC, a Delaware limited liability company (“CAPS”) (the Borrower, SXC Health, informedRx, CHS, Catalyst Rx, Catalyst Rx Health, CAPS and each Person who becomes a party to this Agreement by execution of a joinder in the form of Exhibit C hereto, are sometimes collectively referred to herein as “Pledgors” and each individually as a “Pledgor”), and JPMorgan Chase Bank, N.A., as Collateral Agent for the benefit of the Secured Creditors (the “Collateral Agent”).
W I T N E S S E T H:
WHEREAS, contemporaneously herewith, the Borrower is entering into that certain Credit Agreement of even date herewith (the same, as it may be amended, restated, modified or supplemented and in effect from time to time, being herein referred to as the “Credit Agreement”) with JPMorgan Chase Bank, N.A., as Administrative Agent (the “Administrative Agent”), and the Lenders, providing for the Lenders to make available to the Borrower certain credit facilities on the terms and conditions set forth therein;
WHEREAS, one or more Pledgors may from time to time on or after the date hereof enter into, or guaranty the obligations of one or more other Pledgors or any of their respective Subsidiaries under, one or more Swap Agreements or Banking Services Agreements permitted by the Credit Agreement with a Lender or an Affiliate of a Lender;
WHEREAS, all of the issued and outstanding Equity Interests owned by each Pledgor are set forth on Exhibit A hereto (the issuer of each such Equity Interest, together with each other issuer of Equity Interests which are hereafter acquired by any Pledgor, is referred to herein as an “Issuer” and collectively as the “Issuers”);
WHEREAS, each of the Pledgors other than the Borrower is a direct or indirect subsidiary of the Borrower, will benefit directly and indirectly from the credit facilities made available pursuant to the Credit Agreement and from the entering into of Swap Agreements and Banking Services Agreements by Pledgors or their Subsidiaries, and has entered into that certain Subsidiary Guaranty of even date herewith and the Borrower has entered into that certain Parent Guaranty of even date herewith; and
WHEREAS, to induce the Administrative Agent and the Lenders to enter into the Credit Agreement and make available the credit facilities thereunder and to induce Lenders and their Affiliates to enter into the Swap Agreements or Banking Services Agreements, Pledgors have agreed to pledge to the Collateral Agent, for the benefit of the Collateral Agent and the Secured Creditors, the Equity Interests of the Issuers now or hereafter owned or acquired by any Pledgor on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Definitions. Unless otherwise defined herein, all capitalized terms used herein shall have the respective meanings ascribed thereto in the Credit Agreement. Terms defined in the Uniform Commercial Code, as in effect in the State of New York from time to time (the “UCC”), which are not otherwise defined in this Agreement or in the Credit Agreement are used in this Agreement as defined in the UCC as in effect on the date hereof. In addition, as used herein:
“Act” shall have the meaning ascribed thereto in Section 9(a) below.
“Addendum” shall have the meaning ascribed thereto in Section 2(b) below.
“Banking Services Agreements” has the meaning assigned to such term in the Security Agreement.
“Banking Services Obligations” has the meaning assigned to such term in the Security Agreement.
“Event of Default” shall mean one or more of the following events or occurrences: (a) an Event of Default (as defined in the Credit Agreement); (b) any Pledgor shall fail to observe or perform any covenant, condition or agreement contained in Section 5(a)(i) or 6 of this Agreement; or (c) any Pledgor shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those specified in clause (b) of this definition), and such failure shall continue unremedied for a period of 30 days after the date of written notice thereof from the Collateral Agent to the Borrower (which notice will be given at the request of any Lender).
“General Intangibles” has the meaning assigned to such term in the Security Agreement.
“Pledged Collateral” shall have the meaning ascribed thereto in Section 2(a) below.
“Pledged Shares” shall have the meaning ascribed thereto in Section 2(a) below.
“Proceeds” means “proceeds”, as such term is defined in the UCC and, in any event, includes, without limitation, (a) any and all proceeds of any insurance, indemnity, warranty or guaranty payable with respect to any of the Pledged Collateral, (b) any and all payments (in any form whatsoever) made or due and payable from time to time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of all or any part of the Pledged Collateral by any governmental body, authority, bureau or agency (or any person acting under color of governmental authority), (c) all Stock Rights and (d) any and all other amounts from time to time paid or payable under, in respect of or in connection with any of the Pledged Collateral.
2
“Representative” means any Person acting as agent, representative or trustee on behalf of the Collateral Agent from time to time.
“Required Secured Creditors” means (a) prior to the date upon which all Commitments under the Credit Agreement have terminated by its terms and all of the Obligations have been paid in full (other than amounts not then due and payable with respect to Obligations expressly stated to survive such payment and termination), the Required Lenders (or if so required by Section 9.02 of the Credit Agreement, all the Lenders), and (b) after the Credit Agreement has terminated by its terms and all of the Obligations have been paid in full (other than amounts not then due and payable with respect to Obligations expressly stated to survive such payment and termination), Secured Creditors holding in the aggregate at least a majority of the aggregate (i) net early termination payments and all other amounts then due and unpaid from any Pledgor to the Lenders under any Swap Agreement and (ii) due and unpaid Banking Services Obligations, in each case as determined by the Administrative Agent in its reasonable discretion.
“Secured Creditors” means, collectively, each Lender (even if such Lender ceases to be a Lender under the Credit Agreement), its Affiliates which are holders of Banking Services Obligations or Swap Obligations, the Issuing Bank, the Administrative Agent, the Collateral Agent, and all of their successors and assigns.
“Secured Obligations” means all Obligations, all Banking Services Obligations owing to one or more Lenders or their respective Affiliates and all Swap Obligations owing to one or more Lenders or their respective Affiliates.
“Specified Preferred Share Encumbrances” means the purchase and repurchase options and obligations with respect to the Specified Preferred Shares described in clause (b) of the definition of “Permitted Share Sale Transactions” (as defined in the Credit Agreement).
“Specified Preferred Share Transfer” shall have the meaning ascribed thereto in Section 30 below.
“Specified Preferred Share Transfer Date” shall have the meaning ascribed thereto in Section 30 below.
“Specified Preferred Shares” means the preferred shares described in clause (b) of the definition of “Permitted Share Sale Transactions” (as defined in the Credit Agreement).
“Stock Rights” means all dividends, instruments or other distributions and any stocks, shares, warrants, options or other securities rights or any other right or property which the Pledgors shall receive or shall become entitled to by way of dividend bonus, redemption, exchange, purchase, substitution, conversion, consolidation, subdivision, preference or otherwise to receive for any reason whatsoever with respect to the Pledged Shares of, in substitution for or in exchange for any Equity Interest constituting Pledged Collateral, any right to receive an Equity Interest and any right to receive earnings, interest or other income which may be paid or payable in which the Pledgors now have or hereafter acquire any right, issued by an issuer of such Equity Interest.
3
“Swap Obligations” of a Person means any and all obligations of such Person, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (a) any and all Swap Agreements, and (b) any and all cancellations, buy backs, reversals, terminations or assignments of any Swap Agreement transaction.
Section 2. Pledge.
(a) As collateral security for the prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of the Secured Obligations, each Pledgor hereby pledges, assigns, hypothecates, transfers, delivers and grants to the Collateral Agent, for the benefit of the Secured Creditors, a first Lien on and first security interest in (i) all of the Equity Interests of the Issuers now owned or hereafter acquired by such Pledgor (collectively, the “Pledged Shares”; when used with respect to any one Pledgor, “Pledged Shares” means the Pledged Shares in which such Pledgor has an interest or in which Exhibit A indicates such Pledgor has an interest), (ii) all other property hereafter delivered to, or in the possession or in the custody of, the Collateral Agent, in substitution for or in addition to the Pledged Shares, (iii) any other property of such Pledgor, as described in Section 4 below, now or hereafter delivered to, or in the possession or custody of such Pledgor and (iv) all Proceeds of the collateral described in the preceding clauses (i), (ii) and (iii) (the collateral described in clauses (i) through (iv) of this Section 2(a) being collectively referred to as the “Pledged Collateral”). Notwithstanding the foregoing, the Pledged Collateral shall not include (and no Pledgor shall be deemed to have hereby pledged) (x) the Equity Interests of a Subsidiary which is not a Domestic Subsidiary if and to the extent that such pledge would be prohibited by law or would result in material and adverse tax consequences to the Borrower or its Subsidiaries; provided, however, that the foregoing shall not be applicable to any Equity Interests expressly pledged to the Collateral Agent pursuant to Section 5.09(b) of the Credit Agreement, (y) Equity Interests in entities that are non-Wholly-Owned Subsidiaries of the Borrower or not Subsidiaries of the Borrower, to the extent (i) a pledge of such Equity Interests is prohibited by the organizational documents or agreements with the other equity holders of such entity (in each case, entered into in good faith and on an arm’s length basis) or (ii) such entity is listed on Schedule I hereto or (z) Equity Interests in Catalyst Rx Plan Services Insurance Company, an Ohio insurance corporation, so long as such entity remains a captive insurance company.
(b) All of the Pledged Shares now owned by each Pledgor which are presently represented by stock certificates are listed on Exhibit A hereto, which stock certificates, with undated stock powers duly executed in blank by such Pledgor and irrevocable proxies, are being delivered to the Collateral Agent, for the benefit of the Secured Creditors, simultaneously herewith. Each Pledgor shall execute an Addendum in the form of Exhibit B hereto (an “Addendum”) upon creation or acquisition by such Pledgor of any Equity Interest in any other Issuer constituting Pledged Collateral or any
4
additional Equity Interest constituting Pledged Collateral in Issuers named on Exhibit A. The Collateral Agent, on behalf of the Secured Creditors, shall maintain possession and custody of the certificates representing the Pledged Shares and any additional Pledged Collateral, subject to Sections 18 and 30.
Section 3. Representations and Warranties of Pledgors. Each Pledgor represents and warrants to, and covenants with, the Collateral Agent, for the benefit of the Secured Creditors, as follows:
(a) such Pledgor is the record and beneficial owner of, and has legal title to, the Pledged Shares, including without limitation the Pledged Shares listed on Exhibit A; provided, however, that with respect to the Specified Preferred Shares, such Pledgor may have only beneficial interests in such shares or only legal title in such shares to the extent described in the definition of “Permitted Share Sale Transactions” (as defined in the Credit Agreement), and such shares are and will remain and all other Equity Interests constituting Pledged Collateral will be, free and clear of all Liens and other encumbrances and restrictions whatsoever, except (i) the Liens created by this Agreement or the other Credit Documents and (ii) in the case of the Specified Preferred Shares, the Specified Preferred Share Encumbrances;
(b) such Pledgor has full power, authority and legal right to execute this Agreement and to pledge the Pledged Shares and any additional Pledged Collateral to the Collateral Agent, for the benefit of the Secured Creditors;
(c) this Agreement has been duly authorized, executed and delivered by such Pledgor and constitutes a legal, valid and binding obligation of such Pledgor enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, moratorium, reorganization and other similar laws affecting the enforcement of creditors’ rights generally;
(d) there are no outstanding options, warrants or other agreements with respect to the Pledged Shares except in the case of the Specified Preferred Shares, the Specified Preferred Share Encumbrances;
(e) the Pledged Shares have been, and all additional Pledged Collateral constituting capital stock will be, duly and validly authorized and issued, and are or will be fully paid and non-assessable. The Pledged Shares listed on Exhibit A constitute the percentage of the issued and outstanding Equity Interests of such class of the Issuers specified on Exhibit A;
(f) no consent, approval or authorization of or designation or filing with any Governmental Authority on the part of such Pledgor is required in connection with or as a condition to the pledge and security interest granted under this Agreement, or the exercise by the Collateral Agent of the voting and other rights provided for in this Agreement except (i) as may be required in connection with disposition of the Pledged Collateral by laws affecting the offering and sale of securities generally and (ii) uniform commercial code financing statements prepared for filing substantially contemporaneously with the execution and delivery of this Agreement;
5
(g) the execution, delivery and performance of this Agreement by such Pledgor will not violate any provision of any applicable law or regulation or of any order, judgment, writ, award or decree of any court, arbitrator or Governmental Authority, or of the charter, by-laws, limited liability company agreement or other operating agreement of such Pledgor or any Issuer or of any securities issued by any Issuer or of any mortgage, indenture, lease, contract, or other agreement, instrument or undertaking to which such Pledgor or any Issuer is a party or which purports to be binding upon such Pledgor or any Issuer or upon any of their respective assets, and will not result in the creation or imposition of any lien, charge or encumbrance on or security interest in any of the assets of such Pledgor or any Issuer except as contemplated by this Agreement or the Credit Agreement;
(h) the pledge, assignment and delivery to the Collateral Agent of the Pledged Shares pursuant to this Agreement creates a valid first priority Lien on and a first perfected security interest in the Pledged Shares and the Proceeds thereof in favor of the Collateral Agent, for the benefit of the Secured Creditors, subject to the Specified Preferred Share Encumbrances with respect to the Specified Preferred Shares. Such Pledgor covenants and agrees that it will defend the Collateral Agent’s right, title and security interest in and to the Pledged Shares and the proceeds thereof against the claims and demands of all persons whomsoever, subject to the Specified Preferred Share Encumbrances with respect to the Specified Preferred Shares;
(i) with respect to any certificates delivered to the Collateral Agent representing Pledged Collateral, either such certificates are Securities as defined in Article 8 of the UCC as a result of actions by the Issuer or otherwise, or, if such certificates are not Securities, such Pledgor has so informed the Collateral Agent so that the Collateral Agent may take steps to perfect its security interest therein as a General Intangible;
(j) all Pledged Collateral owned by such Pledgor and held by a securities intermediary is covered by a control agreement among such Pledgor, the securities intermediary and the Collateral Agent pursuant to which the Collateral Agent has Control; and
(k) none of the Pledged Collateral owned by such Pledgor has been issued or transferred in violation of the securities registration, securities disclosure or similar laws of any jurisdiction to which such issuance or transfer may be subject.
Section 4. Stock Dividends, Distributions, etc. If, while this Agreement is in effect, any Pledgor shall become entitled to receive or shall receive any certificate representing Equity Interests constituting Pledged Collateral (including, without limitation, any certificate representing a stock dividend or a stock distribution in connection with any reclassification, increase or reduction of capital, or issued in connection with any reorganization, merger or consolidation), or any options or rights, whether as an addition to, in substitution for, or in
6
exchange for any of the Pledged Shares, or otherwise, such Pledgor agrees to accept the same as the Collateral Agent’s agent and to hold the same in trust for the Collateral Agent, and to deliver the same forthwith to the Collateral Agent in the exact form received, with the endorsement of such Pledgor when necessary and/or appropriate undated stock powers duly executed in blank, to be held by the Collateral Agent, for the benefit of the Secured Creditors, subject to the terms hereof, as additional Pledged Collateral. Except as provided in Section 5(a)(ii), in case any distribution of capital shall be made on or in respect of the Pledged Shares or any property shall be distributed upon or with respect to the Pledged Shares pursuant to the recapitalization or reclassification of the capital of the issuer thereof or pursuant to the reorganization thereof, the property so distributed shall be delivered to the Collateral Agent to be held by it as additional Pledged Collateral. Except as provided in Section 5(a)(ii) below, all sums of money and property so paid or distributed in respect of the Pledged Shares which are received by such Pledgor shall, until paid or delivered to the Collateral Agent, be held by such Pledgor in trust as additional Pledged Collateral.
Section 5. Administration of Security.
(a) Each Pledgor shall be entitled (subject to the other provisions hereof, including, without limitation, Section 8 below):
(i) until receipt of notice to the contrary from the Collateral Agent during the continuance of an Event of Default, to vote or consent with respect to the Pledged Shares; provided however, that no vote or other right shall be exercised or action taken by any Pledgor which would have the effect of impairing, in any manner the Collateral Agent reasonably deems material, the rights of the Collateral Agent in respect of such Pledged Collateral; and
(ii) until receipt of notice to the contrary from the Collateral Agent delivered during the continuance of an Event of Default, to receive cash dividends or other distributions in the ordinary course made in respect of the Pledged Shares, to the extent permitted to be paid pursuant to the Credit Agreement.
(b) Each Pledgor hereby irrevocably constitutes and appoints the Collateral Agent as its proxy and attorney-in-fact (as set forth in Section 22 below) with respect to its Pledged Collateral, including the right to vote such Pledged Collateral, with full power of substitution to do so. In addition to the right to vote any such Pledged Collateral, the appointment of the Collateral Agent as proxy and attorney-in-fact shall include the right to exercise all other rights, powers, privileges and remedies to which a holder of such Pledged Collateral would be entitled (including giving or withholding written consents of shareholders, calling special meetings of shareholders and voting at such meetings). Such proxy shall be effective, automatically and without the necessity of any action (including any transfer of any such Pledged Collateral on the record books of the issuer thereof) by any person (including the issuer of such Pledged Collateral or any officer or agent thereof), upon the occurrence and continuation of an Event of Default. After the occurrence and during the continuance of an Event of Default and upon the request of the Collateral Agent, each Pledgor agrees to deliver to the Collateral Agent, on behalf of the Secured Creditors, such further evidence of such irrevocable proxy or such further irrevocable proxies to vote the Pledged Shares as the Collateral Agent may request.
7
(c) Upon the occurrence and during the continuance of an Event of Default, in the event that any Pledgor, as record and beneficial owner of its Pledged Shares (it being understood that with respect to the Specified Preferred Shares, such Pledgor may have only beneficial interests in such shares or only legal title in such shares to the extent described in the definition of “Permitted Share Sale Transactions” (as defined in the Credit Agreement)), shall have received or shall have become entitled to receive, any cash dividends or other distributions in the ordinary course, such Pledgor shall, following request from the Collateral Agent, deliver to the Collateral Agent, for the benefit of the Secured Creditors, and the Collateral Agent, for the benefit of the Secured Creditors, shall be entitled to receive and retain, all such cash or other distributions as additional Pledged Collateral.
Section 6. No Disposition, etc. Each Pledgor agrees that (except, in each case, as and to the extent permitted by the Credit Agreement (including the Specified Preferred Share Encumbrances with respect to the Specified Preferred Shares)) (a) such Pledgor shall not, without the prior written consent of the Collateral Agent, sell, assign, transfer, exchange, or otherwise dispose of, or grant any option with respect to, the Pledged Shares or any other Pledged Collateral and (b) such Pledgor will not create, incur or permit to exist any Lien with respect to any of the Pledged Shares, any other Pledged Collateral or any interest therein, or any proceeds thereof.
Section 7. Certain Rights of the Collateral Agent. Neither the Collateral Agent nor any of the other Secured Creditors shall be liable for failure to collect or realize upon any of the Secured Obligations or any collateral security or guaranty therefor, or any part thereof, or for any delay in so doing, nor shall the Collateral Agent or any of the other Secured Creditors be under any obligation to take any action whatsoever with regard thereto. Any or all of the Pledged Shares held by the Collateral Agent hereunder may, if an Event of Default has occurred and is continuing, be registered in the name of the Collateral Agent or its nominee and the Collateral Agent or its nominee may thereafter without notice exercise all voting and corporate rights at any meeting with respect to any Issuer and exercise any and all rights of conversion, exchange, subscription or any other rights, privileges or options pertaining to any of the Pledged Shares as if it were the absolute owner thereof, including, without limitation, the right to vote in favor of, and to exchange at its discretion any and all of the Pledged Shares upon, the merger, consolidation, reorganization, recapitalization or other readjustment with respect to any Issuer or upon the exercise by any Pledgor or the Collateral Agent of any right, privilege or option pertaining to any of the Pledged Shares, and in connection therewith, to deposit and deliver any and all of the Pledged Shares with any committee, depository, transfer agent, registrar or other designated agency upon such terms and conditions as the Collateral Agent may determine, all without liability except to account for property actually received by the Collateral Agent, but the Collateral Agent shall have no duty to exercise any of the aforesaid rights, privileges or options and shall not be responsible for any failure to do so or delay in so doing.
Section 8. Remedies. Upon the occurrence and during the continuance of an Event of Default, the Collateral Agent, without demand of performance or other demand, advertisement
8
or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon any Pledgor or any other person (all and each of which demands, advertisements and/or notices are hereby expressly waived), may forthwith collect, receive, appropriate and realize upon the Pledged Collateral, or any part thereof, and/or may forthwith sell, assign, give an option or options to purchase, contract to sell or otherwise dispose of (including the disposition by merger) and deliver said Pledged Collateral, or any part thereof, in one or more portions at public or private sale or sales or transactions, at any exchange, broker’s board or at any of the Collateral Agent’s offices or elsewhere upon such terms and conditions as the Collateral Agent may deem advisable and at such prices as it may deem best, for any combination of cash and/or securities or other property or on credit or for future delivery without assumption by any Secured Creditor of any credit risk, with the right to the Collateral Agent upon any such sale or sales, public or private, to purchase the whole or any part of said Pledged Collateral so sold, free of any right or equity of redemption in any Pledgor, which right or equity is hereby expressly waived or released. Each Pledgor agrees that the Collateral Agent need not give more than ten (10) days’ notice of the time and place of any public sale or of the time after which a private sale or other intended disposition is to take place and that such notice is reasonable notification of such matters. No notification need be given to any Pledgor if such Pledgor has signed after the occurrence and during the continuance of an Event of Default a statement renouncing or modifying any right to notification of sale or other intended disposition. In addition to the rights and remedies granted to the Collateral Agent for the benefit of the Secured Creditors in this Agreement and in any other instrument or agreement securing, evidencing or relating to any of the Secured Obligations, the Collateral Agent and the other Secured Creditors shall have all the rights and remedies of a secured party under the UCC and under any other applicable law.
Section 9. Sale of Pledged Shares.
(a) Each Pledgor recognizes that the Collateral Agent, on behalf of the Secured Creditors, may be unable to effect a public sale or disposition (including, without limitation, any disposition in connection with a merger of any Subsidiary) of any or all the Pledged Collateral by reason of certain prohibitions contained in the Securities Act of 1933, as amended (the “Act”), and applicable state securities laws, but may be compelled to resort to one or more private sales or dispositions thereof to a restricted group of purchasers who will be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. Each Pledgor acknowledges and agrees that any such private sale or disposition may result in prices and other terms (including the terms of any securities or other property received in connection therewith) less favorable to the seller than if such sale or disposition were a public sale or disposition and, notwithstanding such circumstances, agrees that any such private sale or disposition shall be deemed to be reasonable and affected in a commercially reasonable manner. The Collateral Agent shall be under no obligation to delay a sale or disposition of any of the Pledged Collateral in order to permit any Pledgor or any Issuer to register such securities for public sale under the Act, or under applicable state securities laws, even if such Pledgor or any Issuer would agree to do so. No Secured Creditor shall incur any liability as a result of the sale of any such Pledged Collateral, or any part thereof, at any private sale provided for in this Agreement conducted in a commercially reasonable manner, and each Pledgor hereby waives any
9
claims against the Secured Creditors arising by reason of the fact that the price at which the Pledged Collateral may have been sold at such a private sale was less than the price which might have been obtained at a public sale or was less than the aggregate amount of the Secured Obligations, even if the Collateral Agent accepts the first offer received and does not offer the Pledged Collateral to more than one offeree.
(b) Each Pledgor agrees to do or cause to be done all such other acts and things as may be necessary to make such sale or sales or dispositions of any portion or all of the Pledged Collateral valid and binding and in compliance with any and all applicable laws, regulations, orders, writs, injunctions, decrees or awards of any and all courts, arbitrators or governmental instrumentalities, domestic or foreign, having jurisdiction over any such sale or sales or dispositions, all at such Pledgor’s expense.
Section 10. Application of Proceeds. The proceeds of any collection, sale or other realization of all or any part of the Pledged Collateral, and any other cash at the time held by the Collateral Agent under this Agreement, shall be applied in the manner set forth in Section 7.02 of the Credit Agreement. Each Pledgor shall remain liable for any deficiency remaining after such application.
Section 11. Further Assurances. Each Pledgor agrees that at any time and from time to time, upon the written request of the Collateral Agent, such Pledgor will execute and deliver all stock powers, financing statements and such further documents and do such further acts and things as the Collateral Agent may reasonably request consistent with the provisions hereof in order to effect the purposes of this Agreement. Without limiting the foregoing, each Pledgor will take any and all actions required or requested by the Collateral Agent, from time to time, to (a) cause the Collateral Agent to obtain exclusive control of any Pledged Collateral owned by such Pledgor in a manner reasonably acceptable to the Collateral Agent and (b) obtain from any Issuer of Pledged Collateral written confirmation of the Collateral Agent’s Control over such Pledged Collateral. For purposes of this Section 11, the Collateral Agent shall have exclusive control of Pledged Collateral if (i) in the case of Pledged Collateral consisting of certificated securities, such Pledgor delivers such certificated securities to the Collateral Agent (with appropriate endorsements (in blank or otherwise) if such certificated securities are in registered form) and (ii) in the case of any other Pledged Collateral, the Collateral Agent has Control thereof for all applicable purposes of the UCC.
Section 12. Limitation on Duty of the Collateral Agent.
(a) The powers conferred on the Collateral Agent under this Agreement are solely to protect the Collateral Agent’s interest in the Pledged Collateral and shall not impose any duty upon it to exercise any such powers. The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers and neither the Collateral Agent nor its Representative nor any of their respective officers, directors, employees or agents shall be responsible to Pledgors for any act or failure to act, except for gross negligence or willful misconduct or for the breach in bad faith by the Collateral Agent or its Representative of its obligations hereunder. Without limiting the foregoing, the Collateral Agent and any Representative shall be deemed to have exercised reasonable care in the custody and preservation of the Pledged Collateral
10
in their possession if such Pledged Collateral is accorded treatment substantially equivalent to that which the Collateral Agent or any Representative, in its individual capacity, accords its own property consisting of the type of Pledged Collateral involved, it being understood and agreed that neither the Collateral Agent nor any Representative shall have any responsibility for taking any necessary steps (other than steps taken in accordance with the standard of care set forth above) to protect, preserve or exercise rights against any Person with respect to any Pledged Collateral and shall be relieved of all responsibility for the Pledged Collateral upon surrendering it to the applicable Pledgor.
(b) Also without limiting the generality of the foregoing, neither the Collateral Agent nor any Representative shall have any obligation or liability under any contract or license by reason of or arising out of this Agreement or the granting to the Collateral Agent of a security interest therein or assignment thereof or the receipt by the Collateral Agent or any Representative of any payment relating to any contract or license pursuant hereto, nor shall the Collateral Agent or any Representative be required or obligated in any manner to perform or fulfill any of the obligations of any Pledgor under or pursuant to any contract or license, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any contract or license, or to present or file any claim, or to take any action to collect or enforce any performance or the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times.
Section 13. Severability. If any provision hereof is invalid and unenforceable in any jurisdiction, then, to the fullest extent permitted by law, (a) the other provisions hereof shall remain in full force and effect in such jurisdiction and (b) the invalidity or unenforceability of any provision hereof in any jurisdiction shall not affect the validity or enforceability of such provision in any other jurisdiction.
Section 14. No Waiver; Cumulative Remedies. No failure on the part of the Collateral Agent to exercise, and no course of dealing with respect to, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise by the Collateral Agent of any right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy. Neither the Collateral Agent nor any of the other Secured Creditors shall be liable for any failure to collect or realize upon any of the Secured Obligations or any collateral security or guaranty therefor, or any part thereof, or for any delay in so doing, nor shall the Collateral Agent or any of the other Secured Creditors be under any obligation to take any action whatsoever with regard thereto. The rights and remedies herein provided are cumulative and may be exercised singly or concurrently, and are not exclusive of any rights or remedies provided by law.
Section 15. Specific Performance. Each Pledgor agrees that a breach of any of the covenants contained in Sections 2(b), 4, 5(c), 6, 9 or 11 hereof will cause irreparable injury to the Secured Creditors, that the Secured Creditors have no adequate remedy at law in respect of such breach and, as a consequence, agrees, without limiting the right of the Collateral Agent to seek and obtain specific performance of other obligations of such Pledgor contained in this Agreement, that each and every covenant referenced above shall be specifically enforceable
11
against such Pledgor, and such Pledgor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that the Secured Obligations have been paid in full and all commitments which could give rise to Secured Obligations have been terminated.
Section 16. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto, the Secured Creditors and the respective successors and assigns of the foregoing, provided, that no Pledgor shall assign or transfer its rights hereunder without the prior written consent of the Collateral Agent.
Section 17. Reinstatement. This Agreement shall remain in full force and effect and continue to be effective should any petition be filed by or against any Pledgor for liquidation or reorganization, should any Pledgor become insolvent or make an assignment for the benefit of any creditor or creditors or should a receiver or trustee be appointed for all or any significant part of any Pledgor’s assets, and shall continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Secured Obligations, or any part thereof, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee of the Secured Obligations, whether as a “voidable preference,” “fraudulent conveyance,” or otherwise, all as though such payment or performance had not been made.
Section 18. Termination. Subject to reinstatement as provided in Section 17 above, this Agreement shall terminate as provided in Section 9.16(b) of the Credit Agreement except that any obligations expressly stated hereby to survive the termination hereof shall so survive. Upon such termination, the Collateral Agent shall forthwith cause to be assigned, transferred and delivered, against receipt but without any recourse, warranty or representation whatsoever, any remaining Pledged Collateral (including all certificates evidencing the Pledged Collateral) in its possession to or on the order of the Pledgors. The Collateral Agent, at the Pledgors’ expense, shall also execute and deliver to the Pledgors upon such termination such UCC termination statements and such other documentation as shall be reasonably requested by the Pledgors to evidence the termination and release of the Liens in favor of the Collateral Agent created hereby.
Section 19. Possession of Pledged Collateral. Beyond the exercise of reasonable care to assure the safe custody of the Pledged Collateral in the physical possession of the Collateral Agent pursuant hereto, neither the Collateral Agent nor any nominee of the Collateral Agent shall have any duty or liability to collect any sums due in respect thereof or to protect, preserve or exercise any rights pertaining thereto, and shall be relieved of all responsibility for the Pledged Collateral upon surrendering it to the applicable Pledgor.
Section 20. Survival of Representations. All representations and warranties of each Pledgor contained in this Agreement shall survive the execution and delivery of this Agreement.
Section 21. Expenses. Any taxes (including income taxes) and stamp duties payable or ruled payable by any domestic or foreign Governmental Authority in respect of this Agreement shall be paid by the Pledgors, together with related interest, penalties, fines and expenses, if any. The Pledgors shall reimburse the Collateral Agent not later than ten days after written demand for any and all (i) reasonable and documented out-of-pocket expenses incurred
12
by the Collateral Agent (including the reasonable and documented fees, disbursements and other charges of one U.S. and one Canadian counsel to the Collateral Agent, and, if necessary, one local counsel in any applicable jurisdiction and, in the case of a conflict of interest, one additional counsel per affected party and any specialist counsel, if reasonably necessary), paid or incurred by the Collateral Agent in connection with the preparation, execution, delivery and administration of this Agreement and the audit, analysis and administration of the Collateral (including the expenses and charges associated with any periodic or special audit of the Collateral) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Collateral Agent in connection with the collection and enforcement of this Agreement and the collection, preservation or sale of the Collateral, including the fees, charges and disbursements of any counsel for the Collateral Agent. Any and all costs and expenses incurred by the Pledgors in the performance of actions required pursuant to the terms hereof shall be borne solely by the Pledgors.
Section 22. Attorney-In-Fact. Each Pledgor hereby irrevocably appoints the Collateral Agent as such Pledgor’s attorney-in-fact, effective upon the occurrence and during the continuance of an Event of Default, with full authority in the place and stead of such Pledgor and in the name of such Pledgor or otherwise, from time to time in the Collateral Agent’s discretion, to take any action and to execute any instrument that the Collateral Agent deems reasonably necessary or advisable to accomplish the purposes of this Agreement, including, without limitation, to receive, endorse and collect all instruments made payable to such Pledgor representing any dividend, payment or other distribution in respect of the Pledged Collateral or any part thereof and to give full discharge for the same, when and to the extent permitted by this Agreement.
Section 23. Notices. All notices, demands and requests that any party is required or elects to give to any other party shall be given in accordance with the provisions of Section 9.01 of the Credit Agreement, and if given (i) to the Collateral Agent, shall be given to it at 00 X. Xxxxxxxx Xxxxxx, Xxxxx 0, Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Xxxxxx Xxxxxxx or as otherwise specified by the Collateral Agent in writing, (ii) to a Pledgor other than the Borrower, shall be given to it c/o the Borrower at the Borrower’s address specified in the Credit Agreement and (iii) to the Borrower, shall be given to it at its address specified in the Credit Agreement.
Section 24. Choice of Law, Submission to Jurisdiction, etc.
(a) This Agreement shall be governed and construed in accordance with the internal laws (including, without limitation, Section 5-1401 of the general obligations law of New York, but otherwise without regard to the law of conflicts) of the State of New York.
(b) Each Pledgor hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and
13
determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that any Secured Creditor may otherwise have to bring any action or proceeding relating to this Agreement against such Pledgor or its properties in the courts of any jurisdiction.
(c) Each Pledgor hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01 of the Credit Agreement. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
Section 25. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 26. Amendments, Etc. The terms of this Agreement may be waived, altered or amended only by an instrument in writing duly executed by each Pledgor and the Collateral Agent with (other than in the case of amendments hereof primarily for the purpose of adding Pledged Collateral as contemplated hereby) the concurrence or at the direction of the Required Secured Creditors. Any such amendment or waiver shall be binding upon the Collateral Agent and each Pledgor and their respective successors and assigns.
Section 27. Counterparts; Headings. This Agreement may be authenticated in any number of counterparts, all of which taken together shall constitute one and the same instrument and any of the parties hereto may authenticate this Agreement by signing any such counterpart. This Agreement may be authenticated by manual signature, facsimile or other electronic means, all of which shall be equally valid. The headings in this Agreement are for convenience of reference only and shall not alter or otherwise affect the meaning hereof.
14
Section 28. Entire Agreement. This Agreement embodies the entire agreement and understanding between the Pledgors and the Collateral Agent with respect to the subject matter hereof and supersedes all prior oral and written agreements and understandings between any Pledgor and the Collateral Agent relating to the subject matter hereof. This Agreement supplements the other Credit Documents and nothing in this Agreement shall be deemed to limit or supersede the rights granted to the Collateral Agent or the other Secured Creditors in any other Credit Document. In the event of any conflict between this Agreement and the Credit Agreement, the provisions of the Credit Agreement shall govern. In the event of any inconsistencies between the provisions of this Agreement and the provisions of the Security Agreement relating to Pledged Collateral, the provisions of this Agreement relating to the Pledged Collateral shall govern.
Section 29. Collateral Not Provided on the Effective Date. To the extent that, notwithstanding the provisions hereof, any Pledged Collateral is not or cannot be provided on the Effective Date, then the applicable Grantor agrees, in addition to its other agreements herein, that such Pledged Collateral shall be provided within 30 days (or such longer period to which the Collateral Agent may agree) after the Effective Date (it being understood that prior to such 30th day after the Effective Date (or such later date to which the Collateral Agent may agree), no Default or Event of Default shall occur as a result of such failure to provide such Collateral).
Section 30. Specified Preferred Share Encumbrances. Notwithstanding anything to the contrary in this Agreement, the Collateral Agent, on behalf of the Secured Creditors, acknowledges and agrees that the pledge of the Specified Preferred Shares hereunder is subject to the Specified Preferred Share Encumbrances. Thus, for the avoidance of doubt, the Collateral Agent’s first priority perfected security interest in the Specified Preferred Shares shall not prevent any holder of Specified Preferred Share Encumbrances from acquiring such shares from the Borrower pursuant to the Permitted Share Sale Documents (any such acquisition, a “Specified Preferred Share Transfer”). Upon written notification from a Pledgor to the Collateral Agent that a Specified Preferred Share Transfer is intended to occur on a particular date (any such date, a “Specified Preferred Share Transfer Date”), the Collateral Agent agrees (to the extent requested by such Pledgor) to deliver any certificates evidencing the applicable Specified Preferred Shares in its possession to or on the order of such Pledgor on or prior to than the later of (a) the applicable Specified Preferred Share Transfer Date and (b) ten (10) Business Days following receipt of such notification from such Pledgor. Substantially contemporaneously with, and as a condition to, any Specified Preferred Share Transfer, the Borrower shall cause the applicable parties to take any and all steps reasonably requested by the Collateral Agent (including the execution of pledge or hypothecation agreements reasonably satisfactory to the Collateral Agent) in order for the Collateral Agent to maintain or, if necessary, re-establish, a first priority perfected security interest in the applicable Specified Preferred Shares in the hands of the applicable transferee, including, without limitation, delivering any newly-issued certificates evidencing the applicable transferred Specified Preferred Shares, together with appropriate undated stock powers duly executed in blank, to be held by the Collateral Agent, for the benefit of the Secured Creditors, subject to the terms hereof.
[Signature Pages Follow]
15
IN WITNESS WHEREOF, the parties hereto have caused this Pledge Agreement to be duly executed and delivered as of the day and year first above written.
| PLEDGORS: | ||
| SXC HEALTH SOLUTIONS CORP. | ||
| By: | /s/ Xxxxxxx Xxxx | |
| Name: Xxxxxxx Xxxx | ||
| Title: Executive Vice President and Chief Financial Officer | ||
| SXC HEALTH SOLUTIONS, INC. | ||
| By: | /s/ Xxxxxxx Xxxx | |
| Name: Xxxxxxx Xxxx | ||
| Title: Chief Financial Officer, Executive Vice President – Finance and Treasurer | ||
| INFORMEDRX, INC. | ||
| By: | /s/ Xxxxxxx Xxxx | |
| Name: Xxxxxxx Xxxx | ||
| Title: Chief Financial Officer, Executive Vice President—Finance, Secretary & Treasurer | ||
| CATALYST HEALTH SOLUTIONS, INC. | ||
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: Xxxxxxx A, Xxxxx | ||
| Title: President and COO | ||
| CATALYST RX | ||
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: Xxxxxxx A, Xxxxx | ||
| Title: President and COO | ||
[Signature Page to Pledge Agreement]
| CATALYST RX HEALTH INITIATIVES, INC. | ||
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: Xxxxxxx A, Xxxxx | ||
| Title: President and COO | ||
| COALITION FOR ADVANCED PHARMACY SERVICES, LLC | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: Xxxxx Xxxxxxx | ||
| Title: EVP & Secretary | ||
| COLLATERAL AGENT: | ||
| JPMORGAN CHASE BANK, N.A., as Collateral Agent for the benefit of the Secured Creditors | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: Xxxx Xxxxxxxx | ||
| Title: Vice President | ||
[Signature Page to Pledge Agreement]
Exhibit A
| Pledgor |
Issuer | Certificate No. |
No. of Shares |
Class of Shares |
% of Issued Shares of such Class of Issuer | |||||
Exhibit B
Addendum to Pledge Agreement
The undersigned, being a Pledgor pursuant to that certain Pledge Agreement dated as of July 2, 2012 (the “Pledge Agreement”) in favor of JPMorgan Chase Bank, N.A., as Collateral Agent (“the Collateral Agent”), by executing this Addendum, hereby acknowledges that such Pledgor legally and beneficially owns capital stock as set forth below of , a [corporation] (“Corporation”)[; it being understood such capital stock consists of Specified Preferred Shares and that with respect to such Specified Preferred Shares, such Pledgor may have only beneficial interests in such shares or only legal title in such shares to the extent described in the definition of “Permitted Share Sale Transactions” (as defined in the Credit Agreement)]. Capitalized terms used but not defined herein have the meanings given them in the Pledge Agreement. Such Pledgor hereby agrees and acknowledges that Corporation is an Issuer pursuant to the Pledge Agreement and the Shares (as hereinafter defined) shall be deemed Pledged Shares pursuant to the Pledge Agreement. Such Pledgor hereby represents and warrants to the Collateral Agent and the other Secured Creditors that (i) all of the capital stock of Corporation now owned by such Pledgor (“Shares”) is presently represented by the stock certificates listed below, which stock certificates, with undated stock powers duly executed in blank by such Pledgor, are being delivered to the Collateral Agent, simultaneously herewith, and (ii) after giving effect to this addendum, the representations and warranties set forth in Section 3 of the Pledge Agreement are true, complete and correct as of the date hereof in all material respects (but in all respects if such representation or warranty is qualified by “material” or “Material Adverse Effect”).
Pledged Shares
| Pledgor |
Issuer | Certificate No. |
No. of Shares |
Class of Shares |
% of Issued Shares of Class | |||||
IN WITNESS WHEREOF, Pledgor has executed this Addendum this day of , 201 .
| PLEDGOR: | ||
|
| ||
| By: |
| |
| Its: |
| |
Exhibit C
to Pledge Agreement
Joinder to Pledge Agreement
The undersigned, , a , as of the day of , 20 , hereby joins in the execution of that certain Pledge Agreement dated as of July 2, 2012 (as the same may be amended, restated, supplemented or otherwise modified and in effect from time to time, the “Pledge Agreement”) among SXC Health Solutions Corp., SXC Health Solutions, Inc., informedRx, Inc., Catalyst Health Solutions, Inc., Catalyst Rx, Catalyst Rx Health Initiatives, Inc., Coalition for Advanced Pharmacy Services, LLC and each other Person that becomes a Pledgor thereunder after the date and pursuant to the terms thereof, to and in favor of JPMorgan Chase Bank, N.A., as the Collateral Agent. Capitalized terms used but not defined herein have the meanings given them in the Pledge Agreement. By executing this Joinder, the undersigned hereby agrees that it is a Pledgor thereunder and agrees to be bound by all of the terms and provisions of the Pledge Agreement.
The undersigned represents and warrants to the Collateral Agent and the other Secured Creditors that the undersigned is the record and beneficial owner of, and has legal title to, the Equity Interests set forth below.
, a
| By: |
| |
| Name: |
| |
| Title: |
|
Pledged Shares
| Pledgor |
Issuer | Certificate No. |
No. of Shares |
Class of Shares |
% of Issued Shares of Class | |||||
Schedule I
to Pledge Agreement
