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EXHIBIT 4.12
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is entered into as
of December 5, 1996, by and among QuadraMed Corporation, a Delaware corporation
(the "Company"), and certain holders of the Common Stock of the Company listed
on Schedule "A" attached hereto and incorporated herein by this reference
(each, a "Stockholder" and collectively, the "Stockholders").
WHEREAS, pursuant to that certain Acquisition Agreement and Plan of
Merger by and between the Company and InterMed Acquisition Corporation, a
Delaware corporation ("Acquisition Co."), on the one hand, and InterMed
Healthcare Systems Inc., a Delaware corporation ("InterMed"), and the
Stockholders, on the other hand, dated as of December 2, 1996 (the "Merger
Agreement"), (i) InterMed shall be merged with and into Acquisition Co. (the
"Merger") and (ii) by virtue of the Merger, the Stockholders, who are all of
the stockholders of InterMed, shall be entitled to receive shares of the
Company's Common Stock and/or options to purchase shares of the Company's
Common Stock (collectively, the "Shares") as consideration for the Merger and
in exchange for cancellation of each share of issued and outstanding InterMed
Common Stock and each option to purchase InterMed Common Stock held by the
Stockholders as of the date hereof.
WHEREAS, pursuant to the Merger Agreement, the Stockholders have each
made customary representations and warranties in order for the issuance of the
Shares by the Company to be exempt from the registration requirements of the
Securities Act pursuant to the private placement exemption provided by
Regulation D promulgated under the Securities Act and applicable state
securities laws.
WHEREAS, the Company desires to grant to the Stockholders "piggyback"
registration rights for the Shares, and the Company and the Stockholders
desire that this Agreement shall govern the rights of the Stockholders to cause
the Company to register the Shares, as well as certain other matters as set
forth herein.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged by each signatory hereto, it is agreed as
follows:
1. Definitions.
(a) "1934 Act" means the Securities Exchange Act of 1934, as
amended.
(b) "Registrable Securities" means (i) the Shares issued to the
Stockholders pursuant to the Merger Agreement and (ii) any Common Stock issued
or issuable with respect to the securities referred to in clause (i) by way of
a stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular Registrable Securities, such securities will cease to be
Registrable Securities when they have been distributed to the public pursuant
to an offering
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registered under the Securities Act or sold to the public through a broker,
dealer or market maker in compliance with any exemption under the Securities
Act, including, without limitation, Rule 144 promulgated by the SEC under the
Securities Act (or any similar rule then in force). For purposes of this
Agreement, a person will be deemed to be a holder of Registrable Securities
whenever such person has the right to acquire directly or indirectly such
Registrable Securities (upon conversion or exercise in connection with a
transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected.
(c) "Securities Act" means the Securities Act of 1933, as
amended.
(d) "SEC" means the Securities and Exchange Commission.
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to
register (but without the obligation to do so or to consummate any such
registration once filed) any of its securities under the Securities Act and the
registration form to be used may be used for the registration of Registrable
Securities (a "Piggyback Registration"), the Company will give prompt written
notice to all holders of Registrable Securities of its intention to effect such
a registration and will include in such registration all Registrable Securities
with respect to which the Company has received written requests for inclusion
therein within twenty (20) days after the receipt of the Company's notice. The
Registration Expenses of the holders of Registrable Securities will be paid by
the Company in all Piggyback Registrations as set forth in Section 5 hereof.
(b) Underwritten Registrations. For any Piggyback
Registration executed by means of an underwriting, the Company shall include
such information in the written notice referred to in Section 2(a) above. The
underwriter will be selected by the Company. No holder of Registrable
Securities may participate in any registration hereunder which is underwritten
unless such holder (i) agrees to sell such holder's securities on the basis
provided in customary underwriting arrangements, and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
(c) Priority on Primary Registrations. If a Piggyback
Registration is an underwritten primary registration on behalf of the Company,
and the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such registration
exceeds the number which can be sold in an orderly manner in such offering
within a price range reasonably acceptable to the Company, the Company will
include in such registration (i) first, the securities the Company proposes to
sell, and (ii) second, the Registrable Securities requested to be included in
such registration and such other securities of the Company with the right to
participate in such registration, pro rata among the
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holders of such Registrable Securities and such other securities on the basis
of the number of shares owned by each such holder.
(d) Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities, and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration exceeds the number which can be sold in an orderly manner
in such offering within a price range acceptable to the holders initially
requesting such registration, the Company will include in such registration (i)
first, the securities requested to be included therein by the holders requesting
such registration, and (ii) second, the Registrable Securities requested to be
included in such registration and any other securities requested to be included
in such registration, pro rata among the holders of all such securities on the
basis of the number of securities owned by each such holder.
3. Registration Procedures. Whenever the Company is required by
the provisions hereof to effect the registration of Registrable Securities
under the Securities Act, the Company will use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the Company will,
as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective, and, upon the request of the
holders of a majority of the Registrable Securities registered thereunder, keep
such registration statement effective for up to ninety (90) days.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the holders of the Registrable Securities
such numbers of copies of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other
documents as they may reasonably request in order to facilitate the disposition
of the Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities
or blue sky laws of such jurisdictions as shall be reasonably requested by the
holders of the Registrable Securities, provided 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 to service of process in any such states
or jurisdictions.
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(e) In the event of any underwritten public offering, enter
into and perform obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each holder of
the Registrable Securities participating in such underwriting shall also enter
into and perform its obligations under such an agreement provided that such
underwriting agreement shall not provide for indemnification or contribution
obligations on the part of the holders of the Registrable Securities greater
than the obligations set forth in Section 7.
(f) Notify each holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
4. Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement with
respect to the Registrable Securities of any selling holder that such holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of such securities
as shall be required to effect the registration of such holder's Registrable
Securities.
5. Registration Expenses.
(a) Except as set forth in Section 5(b) below, all expenses
incident to the Company's performance of or compliance with the Agreement,
including, without limitation, all registration and filing fees, fees and
expenses of compliance with securities or blue sky laws, printing expenses,
messenger and delivery expenses and fees and disbursements of counsel for the
Company and all independent certified public accountants, underwriters
(excluding discounts and commissions) and other persons retained by the Company
(collectively, the "Registration Expenses"), will be borne by the Company.
(b) Notwithstanding the foregoing, the holders of the
Registrable Securities shall be obligated to pay, pro rata among the holders of
the Registrable Securities on the basis of the number of securities owned by
each such holder, (i) the underwriting discounts and commissions relating to
the Registrable Securities included in any registration hereunder and (ii) all
fees and expenses for separate counsel (if any) retained by the holders of the
Registrable Securities in connection with such registration.
6. Delay of Registration. No holder of Registrable Securities
shall have any right to obtain or seek an injunction restraining or otherwise
delaying any such registration under this Agreement as a result of any
controversy that might arise with respect to the interpretation or
implementation of this Agreement.
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7. Indemnification. In the event any Registrable Securities are
included in a registration statement pursuant to this Agreement:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each holder of Registrable Securities and the officers,
directors and partners of such holder, any underwriter (as defined in the
Securities Act) for such holder and each person, if any, who controls such
holder or underwriter within the meaning of the Securities Act or the 1934 Act,
against any losses, claims, damages or liabilities (joint or several) to which
they may become subject under the Securities Act, the 1934 Act or other federal
or state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively, a "Violation"): (i) any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto; (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading; or
(iii) any violation or alleged violation by the Company of the Securities Act,
the 1934 Act or any state securities law or any rule, or of any regulation
promulgated under the Securities Act, the 1934 Act or any state securities law;
and the Company will pay to each such holder, underwriter or controlling
person, as incurred, any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained
in this Section 7(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Company, which consent shall not be unreasonably withheld,
nor shall the Company be liable in any such case for any loss, claim, damage,
liability or action to the extent that it arises out of or is based upon a
Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
any such holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling holder of
Registrable Securities will indemnify and hold harmless the Company, each of
its directors, each of its officers who has signed the registration statement,
each person, if any, who controls the Company within the meaning of the
Securities Act, any underwriter, any other holder selling securities in such
registration statement and any controlling person of any such underwriter or
other holder, against any losses, claims, damages or liabilities to which any
of the foregoing persons may become subject under the Securities Act, the 1934
Act or other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs solely in reasonable reliance upon and in conformity with
written information furnished by such holder of Registrable Securities expressly
for use in connection with such registration; and each such holder of
Registrable Securities will pay, as incurred, any legal or other expenses
reasonably incurred by any person intended to be indemnified pursuant to this
Section 7(b), in connection with the investigating or defending any such loss,
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claim, damage, liability or action; provided, however, that the indemnity
agreement contained in this Section 7(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the holder of Registrable
Securities, which consent shall not be unreasonably withheld.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 7,
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by
such counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if materially prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 7, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 7.
(d) If the indemnification provided for in this Section 7 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the
other hand in connection with the statements, omissions or other actions or
violations that resulted in such loss, liability, claim, damage or expense, as
well as any other relevant equitable considerations. The relative fault of the
indemnifying party and the indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with an underwritten public offering are
in conflict with the foregoing provisions, the provisions of the underwriting
agreement shall control.
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(f) The obligations of the Company and holders under this
Section 7 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Agreement, and otherwise.
8. Reports Under the 1934 Act. With a view to making available to
the holders of the Registrable Securities the benefits of Rule 144 promulgated
under the Securities Act and any other rule or regulation of the SEC that may
at any time permit such holders to sell the Registrable Securities to the
public without registration, the Company agrees to:
(a) Make and keep public information available, as those
terms are understood and defined in SEC Rule 144, at all times after the
Merger.
(b) File with the SEC in a timely manner all reports and
other documents required of the Company under the Securities Act and the 1934
Act.
(c) Furnish to any holder of the Registrable Securities, so
long as such holder owns any Registrable Securities, forthwith upon request (i)
a written statement by the Company that it has complied with the reporting
requirements of SEC Rule 144, the Securities Act and the 1934 Act, (ii) a copy
of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company with the SEC and (iii) such other
reports and documents of the Company and information in the possession of or
reasonably obtained by the Company as may be reasonably requested in availing
any holder of the Registrable Securities of any rule or regulation of the SEC
which permits the selling of any such securities without registration.
9. Assignment of Registration Rights. The rights to cause the
Company to register Registrable Securities pursuant to this Agreement may be
assigned (but only with all related obligations) by a holder of Registrable
Securities to a transferee or assignee of such securities who, after such
assignment or transfer, holds at least five thousand (5,000) shares of
Registrable Securities (subject to appropriate adjustment for stock splits,
stock dividends, combinations and other recapitalizations), provided: (i) the
Company is, within a reasonable time after such transfer, furnished with
written notice of the name and address of such transferee or assignee and the
securities with respect to which such registration rights are being assigned;
(ii) such transferee or assignee agrees in writing to be bound by the terms and
conditions of this Agreement; (iii) such assignment complies with the
Securities Act; and (iv) such assignment shall be effective only if immediately
following such transfer the further disposition of such securities by the
transferee or assignee is restricted under the Securities Act.
10. Termination of Registration Rights. The Company shall have no
further obligations pursuant to this Agreement three (3) years after the
closing date of the Merger.
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11. Miscellaneous.
(a) Successors and Assigns. All covenants and agreements in
this Agreement by or on behalf of any of the parties hereto will bind and inure
to the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express
assignment has been made, the provisions of this Agreement which are for the
benefit of purchasers or holders of Registrable Securities are also for the
benefit of, and enforceable by, any subsequent holder of Registrable Securities.
(b) Governing Law. The corporate law of Delaware shall govern
all issues concerning the relative rights of the Company and its stockholders.
All other questions concerning the construction, validity and interpretation of
this Agreement (and Schedule "A" hereto) shall be governed by the internal
law, and not the law of conflicts, of Delaware.
(c) Counterparts; Facsimile. This Agreement may be executed
simultaneously in one or more counterparts, any one of which need not contain
the signatures of more than one party, but all such counterparts taken together
shall constitute one and the same Agreement. This Agreement may be effectively
executed via facsimile transmission, with a hard copy to follow via overnight
courier.
(d) Descriptive Headings; Interpretation. The descriptive
headings of this Agreement are inserted for convenience only and do not
constitute a section of this Agreement. The use of the word "including" in
this Agreement shall be by way of example rather than by limitation.
(e) Notices. All notices, demands or other communications to
be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be delivered personally to the recipient, sent by
reputable express courier service (charges prepaid) or sent by certified or
registered mail, return receipt requested and postage prepaid and shall be
deemed to have been given when so delivered, sent or deposited in the United
States mail. Such notices, demands and other communications shall be sent to
the Company and each of the Stockholders at the addresses indicated in the
records of the Company for such Stockholder, or to such other address or to the
attention of such other person as the recipient party has specified by prior
written notice to the sending party.
(f) Amendments and Waivers. Except as otherwise provided
herein, amendment or waiver to the provisions of this Agreement, or grants of
registration rights prior or superior to the rights of the holders of
Registrable Securities may be made only upon the prior written consent of the
Company and the holders of at least a majority of the Registrable Securities.
(g) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any
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provision of this Agreement is held to be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of this
Agreement.
(h) Entire Agreement. This Agreement (including Schedule "A"
hereto) constitutes the full and entire understanding and agreement between the
parties with regard to the subjects contained herein.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have duly executed this Registration
Rights Agreement as of the date first written above.
Company QUADRAMED CORPORATION
By: /s/ XXXXX X. XXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------
Title: Chief Executive Officer
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[Signature Page No. 1 to Registration Rights Agreement]
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Stockholders
/s/ R. Xxxxx Xxxxxx /s/ Xxx Xxxxx
--------------------------------- ----------------------------------
R. Xxxxx Xxxxxx Xxx Xxxxx
/s/ Xxxxx X. Xxxxxx /S/ G. XxXxx Xxxxxx
--------------------------------- ----------------------------------
Xxxxx X. Xxxxxx G. XxXxx Xxxxxx
/s/ Xxxxx X. Xxxxx
--------------------------------- SIRROM INVESTMENTS, INC.
Xxxxx X. Xxxxx
/s/ Obi Okehi, By: /s/ XXXX X. STRABB
by /s/ R. Xxxxx Xxxxxx, ----------------------------------
by power of attorney Name: Xxxx X. Strabb
--------------------------------- ---------------------------
Obi Okehi Title: C.F.O.
---------------------------
/s/ Xxxxxxx X. Xxxxxx,
by /s/ R. Xxxxx Xxxxxx,
by power of attorney
---------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxx and
Xxxxxx X. Xxxxx,
by /s/ R. Xxxxx Xxxxxx,
by power of attorney
---------------------------------
Xxxxxxx X. Xxxxx and Xxxxxx X. Xxxxx,
as joint tenants with rights of
survivorship
/s/ Xxxxx Xxxx,
by /s/ R. Xxxxx Xxxxxx,
by power of attorney
---------------------------------
Xxxxx Xxxx
/s/ Xxxxxx Xxxxxxx,
by /s/ R. Xxxxx Xxxxxx,
by power of attorney
---------------------------------
Xxxxxx Xxxxxxx
[Signature Page No. 2 to Registration Rights Agreement]
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SCHEDULE "A"
STOCKHOLDERS
X. Xxxxx Xxxxxx
Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Obi Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxx and Xxxxxx X. Xxxxx, as joint tenants with rights of
survivorship
Xxxxxxx X. Xxxxx and Xxxxx X. Xxxxx, as joint tenants with rights of
survivorship
Xxxxx Xxxx
Xxxxxx Xxxxxxx
Xxx Xxxxx
G. XxXxx Xxxxxx
Sirrom Investments, Inc.
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