exv10w4






Exhibit 10.4




Execution Copy




TAX RECEIVABLE AGREEMENT (EXCHANGES)




among




EMDEON INC.,




H&F ITR HOLDCO, L.P.,




GA ITR HOLDCO, L.P.,




and




GA-H&F ITR HOLDCO, L.P.




Dated as of August 17, 2009




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE I DEFINITIONS	 	 	2	 
	Section 1.1
	 	Definitions	 	 	2	 
	 
	 	 	 	 	 	 
	ARTICLE II DETERMINATION OF CERTAIN REALIZED TAX BENEFIT	 	 	10	 
	Section 2.1
	 	Basis Adjustment	 	 	10	 
	Section 2.2
	 	Tax Benefit Schedule	 	 	10	 
	Section 2.3
	 	Procedures, Amendments	 	 	11	 
	 
	 	 	 	 	 	 
	ARTICLE III TAX BENEFIT PAYMENTS	 	 	12	 
	Section 3.1
	 	Payments	 	 	12	 
	Section 3.2
	 	No Duplicative Payments	 	 	13	 
	Section 3.3
	 	Pro Rata Payments; Coordination of Benefits With Other Tax Receivable Agreements	 	 	13	 
	 
	 	 	 	 	 	 
	ARTICLE IV TERMINATION	 	 	14	 
	Section 4.1
	 	Early Termination and Breach of Agreement	 	 	14	 
	Section 4.2
	 	Early Termination Notice	 	 	15	 
	Section 4.3
	 	Payment upon Early Termination	 	 	15	 
	 
	 	 	 	 	 	 
	ARTICLE V SUBORDINATION AND LATE PAYMENTS	 	 	15	 
	Section 5.1
	 	Subordination	 	 	15	 
	Section 5.2
	 	Late Payments by the Corporate Taxpayer	 	 	16	 
	 
	 	 	 	 	 	 
	ARTICLE VI NO DISPUTES; CONSISTENCY; COOPERATION	 	 	16	 
	Section 6.1
	 	Participation in the Corporate Taxpayer's and EBS's Tax Matters	 	 	16	 
	Section 6.2
	 	Consistency	 	 	16	 
	Section 6.3
	 	Cooperation	 	 	16	 
	 
	 	 	 	 	 	 
	ARTICLE VII MISCELLANEOUS	 	 	17	 
	Section 7.1
	 	Notices	 	 	17	 
	Section 7.2
	 	Counterparts	 	 	18	 
	Section 7.3
	 	Entire Agreement; No Third Party Beneficiaries	 	 	18	 
	Section 7.4
	 	Governing Law	 	 	18	 
	Section 7.5
	 	Severability	 	 	18	 
	Section 7.6
	 	Successors; Assignment; Amendments; Waivers	 	 	18	 
	Section 7.7
	 	Titles and Subtitles	 	 	19	 
	Section 7.8
	 	Resolution of Disputes	 	 	19	 
	Section 7.9
	 	Reconciliation	 	 	20	 
	Section 7.10
	 	Withholding	 	 	21	 






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	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	Section 7.11
	 	Admission of the Corporate Taxpayer into a Consolidated Group; Transfers of Corporate Assets	 	 	21	 
	Section 7.12
	 	Confidentiality	 	 	21	 
	Section 7.13
	 	Change in Law	 	 	22	 
	Section 7.14
	 	Representations	 	 	23	 







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TAX RECEIVABLE AGREEMENT (EXCHANGES)




          This TAX RECEIVABLE AGREEMENT (EXCHANGES) (this “Agreement”), dated as of August 17,
2009, is hereby entered into by and among Emdeon Inc., a Delaware corporation (the “Corporate
Taxpayer”), H&F ITR Holdco, L.P., a Delaware limited partnership (the “HF ITR Entity”),
GA ITR Holdco, L.P., a Delaware limited partnership (the “GA ITR Entity”), GA-H&F ITR
Holdco, L.P., a Delaware limited partnership (the “ITR Entity”), and each of the successors
and assigns thereto.



RECITALS




          WHEREAS, the Members (as defined below) hold member interests (the “Units”) in EBS
Master LLC, a Delaware limited liability company (“EBS”), which is classified as a
partnership for United States federal income tax purposes;



          WHEREAS, the Corporate Taxpayer is the managing member of EBS, and holds and will hold,
directly and/or indirectly, Units;



          WHEREAS, EBS Acquisition II LLC, a Delaware limited liability company (the “GA Corporate
Member”) and H&F Harrington Inc., a Delaware corporation (the “HF Corporate Member”)
are classified as associations taxable as corporations for U.S. federal income tax purposes;



          WHEREAS, pursuant to that certain Reorganization Agreement, dated as of August 4, 2009, among
the Corporate Taxpayer and the parties named therein, the GA Corporate Member and the HF Corporate
Member will become wholly owned subsidiaries of or will merge with Affiliates of the Corporate
Taxpayer (the “Reorganization”);



          WHEREAS, the Units held by HFCP VI Domestic AIV, L.P., a Delaware limited partnership
(“HFCP”), Hellman & Friedman Capital Associates VI, L.P., a Delaware limited partnership
(“HFCA”), Hellman & Friedman Capital Executives VI, L.P., a Delaware limited partnership
(“HFCE”) and Hellman & Friedman Investors VI, L.P., a Delaware limited partnership
(“H&F GP” and together with HFCP, HFCA and HFCE, the “HF Non-Corporate Members”),
may be exchanged for cash or Class A common stock (the “Class A Shares”) of the Corporate
Taxpayer, subject to the provisions of the LLC Agreement (as defined below);



          WHEREAS, EBS and each of its direct and indirect subsidiaries treated as a partnership for
United States federal income tax purposes currently have and will have in effect an election under
Section 754 of the United States Internal Revenue Code of 1986, as amended (the “Code”),
for each Taxable Year in which a taxable acquisition of Units by the Corporate Taxpayer or EBS from
the HF Non-Corporate Members for cash or Class A Shares (an “Exchange”) occurs;



          WHEREAS, the income, gain, loss, expense and other Tax (as defined below) items of the
Corporate Taxpayer may be affected by (i) the Basis Adjustments (as defined below) and (ii) the
Imputed Interest (as defined below);



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          WHEREAS, the parties to this Agreement desire to make certain arrangements with respect to the
effect of the Basis Adjustments and Imputed Interest on the liability for Taxes of the Corporate
Taxpayer;



          WHEREAS, the existing shareholders of the Corporate Taxpayer and the existing shareholders of
GA Corporate Member before the Reorganization (the “Existing GA Owners”), and the HF
Non-Corporate Members and H&F Harrington AIV II, L.P., a Delaware limited partnership (“HF
Harrington” and together with HF Non-Corporate Members, the “HF Members”) own
(directly or indirectly) certain entities or have or will enter into certain transactions that will
result in various tax benefits to the Corporate Taxpayer;



          WHEREAS, the Existing GA Owners and the HF Members previously agreed that any and all payments
in respect of such tax benefits will be made 50% to the Existing GA Owners and 50% to the HF
Members (such agreement being reflected in the Fourth Amended and Restated Limited Liability
Company Agreement of EBS dated as of May 21, 2008);



          WHEREAS, Exchanges by the HF Non-Corporate Members and payments in respect of Tax savings
related to such Exchanges will result in Tax savings for the Corporate Taxpayer;



          WHEREAS, the HF Non-Corporate Members have contributed all of their rights to receive payments
of Tax savings related to the Exchanges from the Corporate Taxpayer to the HF ITR Entity in
exchange for ownership interests in the HF ITR Entity;



          WHEREAS, the HF ITR Entity has contributed all of its rights to receive such payments of Tax
savings generated by the Exchanges from the Corporate Taxpayer to the ITR Entity in exchange for
ownership interests in the ITR Entity; and



          WHEREAS, as a result of such contributions, the ITR Entity shall be a party to this Agreement.



          NOW, THEREFORE, in consideration of the foregoing and the respective covenants and agreements
set forth herein, and intending to be legally bound hereby, the parties hereto agree as follows:



ARTICLE I




DEFINITIONS




          Section 1.1 Definitions. As used in this Agreement, the terms set forth in this Article I shall
have the following meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined).



          “Affiliate” means, with respect to any Person, any other Person that directly or
indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common
Control with, such first Person.



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          “Agreed Rate” means LIBOR plus 100 basis points.



          “Agreement” is defined in the Recitals of this Agreement.



          “Amended Schedule” is defined in Section 2.3(b) of this Agreement.



          “Basis Adjustment” means the adjustment to the tax basis of a Reference Asset under
Sections 732, 734(b) and 1012 of the Code (in situations where, as a result of one or more
Exchanges, EBS becomes an entity that is disregarded as separate from its owner for tax purposes)
or under Sections 734(b), 743(b) and 754 of the Code (in situations where, following an Exchange,
EBS remains in existence as an entity for U.S. federal income tax purposes) and, in each case,
comparable sections of state and local tax laws, as a result of an Exchange with respect to Units
held by the HF Non-Corporate Members and the payments made to the ITR Entity pursuant to this
Agreement. For the avoidance of doubt, the amount of any Basis Adjustment resulting from an
Exchange of one or more Units shall be determined without regard to any Pre-Exchange Transfer of
such Units and as if any such Pre-Exchange Transfer had not occurred.



          A “Beneficial Owner” of a security is a Person who directly or indirectly, through any
contract, arrangement, understanding, relationship or otherwise, has or shares: (i) voting power,
which includes the power to vote, or to direct the voting of, such security and/or (ii) investment
power, which includes the power to dispose of, or to direct the disposition of, such security. The
terms “Beneficially Own” and “Beneficial Ownership” shall have correlative
meanings.



          “Board” means the Board of Directors of the Corporate Taxpayer.



          “Business Day” means Monday through Friday of each week, except that a legal holiday
recognized as such by the government of the United States of America or the State of New York shall
not be regarded as a Business Day.



          “Change in Tax Law” is defined in Section 7.13 of this Agreement.



          “Change of Control” means the occurrence of any of the following events:




	 	(i)	 	any Person or any group of Persons acting together which would
constitute a “group” for purposes of Section 13(d) of the Securities and
Exchange Act of 1934, or any successor provisions thereto, excluding a group of
Persons which includes one or more Affiliates of Hellman & Friedman LLC and one
or more Affiliates of GA LLC, is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Corporate Taxpayer representing more than 50%
of the combined voting power of the Corporate Taxpayer’s then outstanding
voting securities; or
	 
	 	(ii)	 	the following individuals cease for any reason to
constitute a majority of the number of directors of the Corporate Taxpayer then
serving: individuals who, on the IPO Date, constitute the Board and any new




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	 	 	 	director whose appointment or election by the Board or nomination for
election by the Corporate Taxpayer’s shareholders was approved or
recommended by a vote of at least two-thirds (2/3) of the directors then
still in office who either were directors on the IPO Date or whose
appointment, election or nomination for election was previously so approved
or recommended by the directors referred to in this clause (ii); or
	 
	 	(iii)	 	there is consummated a merger or consolidation of the
Corporate Taxpayer with any other corporation or other entity, and, immediately
after the consummation of such merger or consolidation, either (x) the Board
immediately prior to the merger or consolidation does not constitute at least a
majority of the board of directors of the company surviving the merger or, if
the surviving company is a Subsidiary, the ultimate parent thereof, or (y) the
voting securities of the Corporate Taxpayer immediately prior to such merger or
consolidation do not continue to represent or are not converted into more than
50% of the combined voting power of the then outstanding voting securities of
the Person resulting from such merger or consolidation or, if the surviving
company is a Subsidiary, the ultimate parent thereof; or
	 
	 	(iv)	 	the shareholders of the Corporate Taxpayer approve a plan
of complete liquidation or dissolution of the Corporate Taxpayer or there is
consummated an agreement or series of related agreements for the sale or other
disposition, directly or indirectly, by the Corporate Taxpayer of all or
substantially all of the Corporate Taxpayer’s assets, other than such sale or
other disposition by the Corporate Taxpayer of all or substantially all of the
Corporate Taxpayer’s assets to an entity, at least 50% of the combined voting
power of the voting securities of which are owned by shareholders of the
Corporate Taxpayer in substantially the same proportions as their ownership of
the Corporate Taxpayer immediately prior to such sale.




Notwithstanding the foregoing, except with respect to clause (ii) and clause (iii)(x) above, a
“Change of Control” shall not be deemed to have occurred by virtue of the consummation of any
transaction or series of integrated transactions immediately following which the record holders of
the shares of the Corporate Taxpayer immediately prior to such transaction or series of
transactions continue to have substantially the same proportionate ownership in, and own
substantially all of the shares of, an entity which owns all or substantially all of the assets of
the Corporate Taxpayer immediately following such transaction or series of transactions.




          “Class A Shares” is defined in the Recitals of this Agreement.



          “Code” is defined in the Recitals of this Agreement.



          “Control” means the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise.



4









 





          “Corporate Taxpayer” is defined in the Recitals of this Agreement.



          “Corporate Taxpayer Return” means the federal and/or state and/or local Tax Return, as
applicable, of the Corporate Taxpayer filed with respect to Taxes of any Taxable Year.



          “Cumulative Net Realized Tax Benefit” for a Taxable Year means the cumulative amount
of Realized Tax Benefits for all Taxable Years of the Corporate Taxpayer, up to and including such
Taxable Year, net of the cumulative amount of Realized Tax Detriments for the same period. The
Realized Tax Benefit and Realized Tax Detriment for each Taxable Year shall be determined based on
the most recent Tax Benefit Schedule or Amended Schedule, if any, in existence at the time of such
determination.



          “Default Rate” means LIBOR plus 500 basis points.



          “Determination” shall have the meaning ascribed to such term in Section 1313(a) of the
Code or similar provision of state and local tax law, as applicable, or any other event (including
the execution of IRS Form 870-AD) that finally and conclusively establishes the amount of any
liability for Tax.



          “Dispute” has the meaning set forth in Section 7.8(a) of this Agreement.



          “Early Termination Date” means the date of an Early Termination Notice for purposes of
determining the Early Termination Payment.



          “Early Termination Effective Date” is defined in Section 4.2 of this Agreement.



          “Early Termination Notice” is defined in Section 4.2 of this Agreement.



          “Early Termination Schedule” is defined in Section 4.2 of this Agreement.



          “Early Termination Payment” is defined in Section 4.3(b) of this Agreement.



          “Early Termination Rate” means the lesser of (i) 6.5% per annum, compounded annually,
and (ii) LIBOR plus 100 basis points.



          “Exchange” is defined in the Recitals of this Agreement.



          “Exchange Basis Schedule” is defined in Section 2.1 of this Agreement.



          “Exchange Date” means the date of any Exchange.



          “Existing GA Owners” is defined in the Recitals of this Agreement.



          “Expert” is defined in Section 7.9 of this Agreement.



          “GA Corporate Member” is defined in the Recitals of this Agreement.



          “GA ITR Entity” is defined in the Recitals of this Agreement.



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          “HF Corporate Member” is defined in the Recitals of this Agreement.



          “H&F GP” is defined in the Recitals of this Agreement.



          “HF Harrington” is defined in the Recitals of this Agreement.



          “HF ITR Entity” is defined in the Recitals of this Agreement.



          “HF Members” is defined in the Recitals of this Agreement.



          “HF Non-Corporate Members” is defined in the Recitals of this Agreement.



          “Hypothetical Tax Liability” means, with respect to any Taxable Year, the liability
for Taxes of (i) the Corporate Taxpayer and (ii) without duplication, EBS, but only with respect to
Taxes imposed on EBS and allocable to the Corporate Taxpayer or to the other members of the
consolidated group of which the Corporate Taxpayer is the parent, in each case using the same
methods, elections, conventions and similar practices used on the relevant Corporate Taxpayer
Return, but (i) using the Non-Stepped Up Tax Basis as reflected on the Exchange Basis Schedule
including amendments thereto for the Taxable Year and (ii) excluding any deduction attributable to
Imputed Interest for the Taxable Year. For the avoidance of doubt, Hypothetical Tax Liability
shall be determined without taking into account the carryover or carryback of any Tax item (or
portions thereof) that is attributable to the Basis Adjustment or Imputed Interest.



          “Imputed Interest” shall mean any interest imputed under Section 1272, 1274 or 483 or
other provision of the Code and any similar provision of state and local tax law with respect to
the Corporate Taxpayer’s payment obligations under this Agreement.



          “Independent Director” means Dinyar S. Devitre, Jim D. Kever, Philip M. Pead and any
other member of the Board who is not affiliated with any of the principal stockholders of the
Corporate Taxpayer and who is neither a current officer nor a former officer of the Corporate
Taxpayer or any of its Subsidiaries.



          “Investors Tax Receivable Agreement (Reorganizations)” means the Tax Receivable
Agreement (Reorganizations), dated as of August 17, 2009, by and among the Corporate Taxpayer, HF
ITR Entity, GA ITR Entity and the ITR Entity.



          “IPO” means the initial public offering of Class A Shares by the Corporate Taxpayer.



          “IPO Date” means the closing date of the IPO.



          “IRS” means the United States Internal Revenue Service.



          “ITR Entity” is defined in the Recitals of this Agreement.



6









 





          “LIBOR” means during any period, an interest rate per annum equal to the one-year
LIBOR reported, on the date two days prior to the first day of such period, on the Telerate Page
3750 (or if such screen shall cease to be publicly available, as reported on Reuters Screen page
“LIBOR01” or by any other publicly available source of such market rate) for London interbank
offered rates for United States dollar deposits for such period.



          “LLC Agreement” means, with respect to EBS, the Sixth Amended and Restated Limited
Liability Company Agreement of EBS.



          “Management Tax Receivable Agreement” means the Tax Receivable Agreement (Management),
dated as of August 17, 2009, by and among the Corporate Taxpayer and certain members of the senior
management of EBS.



          “Market Value” shall mean the closing price of the Class A Shares on the applicable
Exchange Date on the national securities exchange or interdealer quotation system on which such
Class A Shares are then traded or listed, as reported by the Wall Street Journal; provided,
that if the closing price is not reported by the Wall Street Journal for the applicable Exchange
Date, then the Market Value shall mean the closing price of the Class A Shares on the Business Day
immediately preceding such Exchange Date on the national securities exchange or interdealer
quotation system on which such Class A Shares are then traded or listed, as reported by the Wall
Street Journal; provided, further, that if the Class A Shares are not then listed
on a national securities exchange or interdealer quotation system, “Market Value” shall mean the
cash consideration paid for Class A Shares, or the fair market value of the other property
delivered for Class A Shares, as determined by the Board in good faith.



          “Material Objection Notice” has the meaning set forth in Section 4.2 of this
Agreement.



          “Members” means the HF Non-Corporate Members, the HF Corporate Member and the GA
Corporate Member.



          “Non-Stepped Up Tax Basis” means, with respect to any Reference Asset at any time, the
Tax basis that such asset would have had at such time if no Basis Adjustments had been made.



          “Objection Notice” has the meaning set forth in Section 2.3(a) of this Agreement.



          “Payment Date” means any date on which a payment is required to be made pursuant to
this Agreement.



          “Person” means any individual, corporation, firm, partnership, joint venture, limited
liability company, estate, trust, business association, organization, governmental entity or other
entity.



          “Pre-Exchange Transfer” means any transfer (including upon the death of a Member) or
distribution in respect of one or more Units (i) that occurs prior to an Exchange of such Units,
and (ii) to which Section 743(b) or 734(b) of the Code applies.



7









 





          “Qualified Tax Advisor” means Paul, Weiss, Rifkind, Wharton & Garrison LLP, Simpson
Thacher & Bartlett LLP, Deloitte Tax LLP, or any other law or accounting firm that is nationally
recognized as being expert in Tax matters and that is reasonably acceptable to the Corporate
Taxpayer.



          “Realized Tax Benefit” means, for a Taxable Year, the excess, if any, of the
Hypothetical Tax Liability over the actual liability for Taxes of (i) the Corporate Taxpayer and
(ii) without duplication, EBS, but only with respect to Taxes imposed on EBS and allocable to the
Corporate Taxpayer or to the other members of the consolidated group of which the Corporate
Taxpayer is the parent for such Taxable Year. If all or a portion of the actual liability for such
Taxes for the Taxable Year arises as a result of an audit by a Taxing Authority of any Taxable
Year, such liability shall not be included in determining the Realized Tax Benefit unless and until
there has been a Determination.



          “Realized Tax Detriment” means, for a Taxable Year, the excess, if any, of the actual
liability for Taxes of (i) the Corporate Taxpayer and (ii) without duplication, EBS, but only with
respect to Taxes imposed on EBS and allocable to the Corporate Taxpayer or to the other members of
the consolidated group of which the Corporate Taxpayer is the parent for such Taxable Year, over
the Hypothetical Tax Liability for such Taxable Year. If all or a portion of the actual liability
for such Taxes for the Taxable Year arises as a result of an audit by a Taxing Authority of any
Taxable Year, such liability shall not be included in determining the Realized Tax Detriment unless
and until there has been a Determination.



          “Reconciliation Dispute” has the meaning set forth in Section 7.9 of this Agreement.



          “Reconciliation Procedures” has the meaning set forth in Section 2.3(a) of this
Agreement.



          “Reference Asset” means an asset that is held by EBS, or by any of its direct or
indirect subsidiaries treated as a partnership or disregarded entity for purposes of the applicable
Tax, at the time of an Exchange. A Reference Asset also includes any asset that is “substituted
basis property” under Section 7701(a)(42) of the Code with respect to a Reference Asset.



          “Reorganization” is defined in the Recitals of this Agreement.



          “Schedule” means any of the following: (i) an Exchange Basis Schedule, (ii) a Tax
Benefit Schedule, or (iii) the Early Termination Schedule.



          “Senior Obligations” is defined in Section 5.1 of this Agreement.



          “Subsidiaries” means, with respect to any Person, as of any date of determination, any
other Person as to which such Person, owns, directly or indirectly, or otherwise controls more than
50% of the voting power or other similar interests or the sole general partner interest or managing
member or similar interest of such Person.



8









 





          “Subsidiary Stock” means any stock or other equity interest in any subsidiary entity
of EBS that is treated as a corporation for United States federal income tax purposes.



          “Tax Benefit Payment” is defined in Section 3.1(b) of this Agreement.



          “Tax Benefit Schedule” is defined in Section 2.2 of this Agreement.



          “Tax Receivable Agreements” shall mean this Agreement, the Investors Tax Receivable
Agreement (Reorganizations) and the Management Tax Receivable Agreement.



          “Tax Return” means any return, declaration, report or similar statement required to be
filed with respect to Taxes (including any attached schedules), including, without limitation, any
information return, claim for refund, amended return and declaration of estimated Tax.



          “Taxable Year” means a taxable year of the Corporate Taxpayer as defined in Section
441(b) of the Code or comparable section of state or local tax law, as applicable (and, therefore,
for the avoidance of doubt, may include a period of less than 12 months for which a Tax Return is
made), ending on or after the IPO Date.



          “Taxes” means any and all United States federal, state and local taxes, assessments or
similar charges that are based on or measured with respect to net income or profits, and any
interest related to such Tax.



          “Taxing Authority” shall mean any domestic, federal, national, state, county or
municipal or other local government, any subdivision, agency, commission or authority thereof, or
any quasi-governmental body exercising any taxing authority or any other authority exercising Tax
regulatory authority.



          “Treasury Regulations” means the final, temporary and proposed regulations under the
Code promulgated from time to time (including corresponding provisions and succeeding provisions)
as in effect for the relevant taxable period.



          “Units” is defined in the Recitals of this Agreement.



          “Valuation Assumptions” shall mean, as of an Early Termination Date, the assumptions
that (1) in each Taxable Year ending on or after such Early Termination Date, the Corporate
Taxpayer will have taxable income sufficient to fully utilize the deductions arising from the Basis
Adjustments and the Imputed Interest during such Taxable Year or future Taxable Years (including,
for the avoidance of doubt, Basis Adjustments and Imputed Interest that would result from future
Tax Benefit Payments that would be paid in accordance with the Valuation Assumptions) in which such
deductions would become available, (2) the United States federal income tax rates and state and
local income tax rates that will be in effect for each such Taxable Year will be those specified
for each such Taxable Year by the Code and other law as in effect on the Early Termination Date,
(3) any loss carryovers generated by any Basis Adjustment or Imputed Interest and available as of
the date of the Early Termination Schedule will be utilized by the Corporate Taxpayer on a pro rata
basis from the date of the Early Termination Schedule through the scheduled expiration date of such
loss carryovers, (4) any non-amortizable assets



9









 




(other than any Subsidiary Stock) will be disposed of on the fifteenth anniversary of the
applicable Basis Adjustment; provided, that in the event of a Change of Control, such
non-amortizable assets shall be deemed disposed of at the time of sale of the relevant asset (if
earlier than such fifteenth anniversary), (5) any Subsidiary Stock will be deemed never to be
disposed of; provided, that, except in respect of a termination payment pursuant to Section
7.13(b), if (i) the ITR Entity delivers to the Corporate Taxpayer a written opinion of a Qualified
Tax Advisor to the effect that as a result of a certain transaction (or series of transactions), it
is more likely than not that the tax basis in the amortizable or depreciable assets of the
Corporate Taxpayer will be increased by reference to the tax basis in such Subsidiary Stock and the
tax basis in such Subsidiary Stock will decrease accordingly, and (ii) the Corporate Taxpayer
determines that it is commercially reasonable to effectuate such transaction (or series of
transactions), then the Valuation Assumptions will take into account such increased tax basis in
the amortizable or depreciable assets of the Corporate Taxpayer, and (6) if, at the Early
Termination Date, there are Units that have not been Exchanged, then each such Unit shall be deemed
to be Exchanged for the Market Value of the Class A Shares and the amount of cash that would be
transferred if the Exchange occurred on the Early Termination Date.




ARTICLE II




DETERMINATION OF CERTAIN REALIZED TAX BENEFIT




          Section 2.1 Basis Adjustment. Within 90 calendar days after the filing of the United States
federal income tax return of the Corporate Taxpayer for each Taxable Year in which any Exchange has
been effected, the Corporate Taxpayer shall deliver to the ITR Entity a schedule (the “Exchange
Basis Schedule”) that shows, in reasonable detail necessary to perform the calculations
required by this Agreement, including with respect to each Exchanging party, for purposes of Taxes,
(i) the Non-Stepped Up Tax Basis of the Reference Assets as of each applicable Exchange Date, (ii)
the Basis Adjustment with respect to the Reference Assets as a result of the Exchanges effected in
such Taxable Year, calculated in the aggregate, (iii) the period (or periods) over which the
Reference Assets are amortizable and/or depreciable and (iv) the period (or periods) over which
each Basis Adjustment is amortizable and/or depreciable.



          Section 2.2 Tax Benefit Schedule.



          (a) Tax Benefit Schedule. Within 90 calendar days after the filing of the United
States federal income tax return of the Corporate Taxpayer for any Taxable Year in which there is a
Realized Tax Benefit or Realized Tax Detriment, the Corporate Taxpayer shall provide to the ITR
Entity a schedule showing, in reasonable detail and, at the request of the ITR Entity, with respect
to each separate Exchange, the calculation of the Realized Tax Benefit or Realized Tax Detriment
for such Taxable Year (a “Tax Benefit Schedule”). The Tax Benefit Schedule will become
final as provided in Section 2.3(a) and may be amended as provided in Section 2.3(b) (subject to
the procedures set forth in Section 2.3(b)).



          (b) Applicable Principles. Subject to Section 3.3(a), the Realized Tax Benefit or
Realized Tax Detriment for each Taxable Year is intended to measure the decrease or increase



10









 




in the actual liability for Taxes of the Corporate Taxpayer for such Taxable Year attributable
to the Basis Adjustments and Imputed Interest, determined using a “with and without” methodology.
For the avoidance of doubt, the actual liability for Taxes will take into account the deduction of
the portion of the Tax Benefit Payment that must be accounted for as interest under the Code based
upon the characterization of Tax Benefit Payments as additional consideration payable by the
Corporate Taxpayer for the Units acquired in an Exchange. Carryovers or carrybacks of any Tax item
attributable to the Basis Adjustment and Imputed Interest shall be considered to be subject to the
rules of the Code and the Treasury Regulations or the appropriate provisions of U.S. state and
local income and franchise tax law, as applicable, governing the use, limitation and expiration of
carryovers or carrybacks of the relevant type. If a carryover or carryback of any Tax item
includes a portion that is attributable to the Basis Adjustment or Imputed Interest and another
portion that is not, such portions shall be considered to be used in accordance with the “with and
without” methodology. The parties agree that (i) all Tax Benefit Payments attributable to the
Basis Adjustments (other than amounts accounted for as interest under the Code) will (A) be treated
as subsequent upward purchase price adjustments that give rise to further Basis Adjustments to
Reference Assets for the Corporate Taxpayer and (B) have the effect of creating additional Basis
Adjustments to Reference Assets for the Corporate Taxpayer in the year of payment, and (ii) as a
result, such additional Basis Adjustments will be incorporated into the current year calculation
and into future year calculations, as appropriate.




          Section 2.3 Procedures, Amendments.



          (a) Procedure. Every time the Corporate Taxpayer delivers to the ITR Entity an
applicable Schedule under this Agreement, including any Amended Schedule delivered pursuant to
Section 2.3(b), but excluding any Early Termination Schedule or amended Early Termination Schedule,
the Corporate Taxpayer shall also (x) deliver to the ITR Entity schedules and work papers, as
determined by the Corporate Taxpayer or requested by the ITR Entity, providing reasonable detail
regarding the preparation of the Schedule and (y) allow the ITR Entity reasonable access at no cost
to the appropriate representatives at the Corporate Taxpayer, as determined by the Corporate
Taxpayer or requested by the ITR Entity, in connection with a review of such Schedule. Without
limiting the application of the preceding sentence, each time the Corporate Taxpayer delivers to
the ITR Entity a Tax Benefit Schedule, in addition to the Tax Benefit Schedule duly completed, the
Corporate Taxpayer shall deliver to the ITR Entity the Corporate Taxpayer Return, the reasonably
detailed calculation by the Corporate Taxpayer of the Hypothetical Tax Liability, the reasonably
detailed calculation by the Corporate Taxpayer of the actual Tax liability, as well as any other
work papers as determined by the Corporate Taxpayer or requested by the ITR Entity. An applicable
Schedule or amendment thereto shall become final and binding on all parties 30 calendar days from
the first date on which the ITR Entity has received the applicable Schedule or amendment thereto
unless the ITR Entity (i) within 30 calendar days after receiving an applicable Schedule or
amendment thereto, provides the Corporate Taxpayer with notice of a material objection to such
Schedule (“Objection Notice”) made in good faith or (ii) provides a written waiver of such
right of any Objection Notice within the period described in clause (i) above, in which case such
Schedule or amendment thereto becomes binding on the date the waiver is received by the Corporate
Taxpayer. If the parties, for any reason, are unable to successfully resolve the issues raised in
the Objection Notice within 30 calendar days after receipt by the Corporate Taxpayer of an
Objection Notice, the Corporate



11









 




Taxpayer and the ITR Entity shall employ the reconciliation procedures as described in Section
7.9 of this Agreement (the “Reconciliation Procedures”).




          (b) Amended Schedule. The applicable Schedule for any Taxable Year may be amended from
time to time by the Corporate Taxpayer (i) in connection with a Determination affecting such
Schedule, (ii) to correct inaccuracies in the Schedule identified as a result of the receipt of
additional factual information relating to a Taxable Year after the date the Schedule was provided
to the ITR Entity, (iii) to comply with the Expert’s determination under the Reconciliation
Procedures, (iv) to reflect a change in the Realized Tax Benefit or Realized Tax Detriment for such
Taxable Year attributable to a carryback or carryforward of a loss or other tax item to such
Taxable Year, (v) to reflect a change in the Realized Tax Benefit or Realized Tax Detriment for
such Taxable Year attributable to an amended Tax Return filed for such Taxable Year, or (vi) to
adjust the Exchange Basis Schedule to take into account payments made pursuant to this Agreement
(any such Schedule, an “Amended Schedule”).



ARTICLE III




TAX BENEFIT PAYMENTS




          Section 3.1 Payments.



          (a) Payments. Within five (5) calendar days after a Tax Benefit Schedule delivered to
the ITR Entity becomes final in accordance with Section 2.3(a), the Corporate Taxpayer shall pay to
the ITR Entity for such Taxable Year the Tax Benefit Payment determined pursuant to Section 3.1(b).
Each such Tax Benefit Payment shall be made by wire transfer of immediately available funds to the
bank account previously designated by the ITR Entity to the Corporate Taxpayer or as otherwise
agreed by the Corporate Taxpayer and the ITR Entity. For the avoidance of doubt, no Tax Benefit
Payment shall be made in respect of estimated tax payments, including, without limitation, federal
estimated income tax payments. Notwithstanding anything herein to the contrary, unless the parties
agree otherwise in writing upon request by the ITR Entity, in no event shall the aggregate Tax
Benefit Payments in respect of any Exchange (other than amounts accounted for as interest under the
Code) exceed 50% of the purchase price for the Units exchanged.



          (b) A “Tax Benefit Payment” means an amount, not less than zero, equal to the sum of
the Net Tax Benefit and the Interest Amount. For the avoidance of doubt, for Tax purposes, the
Interest Amount shall not be treated as interest but instead shall be treated as additional
consideration for the acquisition of Units in Exchanges, unless otherwise required by law. Subject
to Section 3.3(a), the “Net Tax Benefit” for a Taxable Year shall be an amount
equal to the excess, if any, of 85% of the Cumulative Net Realized Tax Benefit as of the end of
such Taxable Year over the total amount of payments previously made under this Section 3.1
(excluding payments attributable to Interest Amounts); provided, for the avoidance of
doubt, that the ITR Entity shall not be required to return any portion of any previously made Tax
Benefit Payment. The “Interest Amount” shall equal the interest on the Net Tax Benefit
calculated at the Agreed Rate from the due date (without extensions) for filing the Corporate
Taxpayer Return with respect to Taxes for such Taxable Year until the Payment Date.
Notwithstanding the foregoing, for each Taxable Year ending on or after the date of a Change of
Control, all Tax



12









 




Benefit Payments, whether paid with respect to the Units that were Exchanged (i) prior to the
date of such Change of Control or (ii) on or after the date of such Change of Control, shall be
calculated by utilizing Valuation Assumptions (1), (3), (4) and (5), substituting in each case the
terms “the closing date of a Change of Control” for an “Early Termination Date.”




          Section 3.2 No Duplicative Payments. It is intended that the provisions of this Agreement will not
result in duplicative payment of any amount (including interest) required under this Agreement. It
is also intended that the provisions of this Agreement provide that Tax Benefit Payments are paid
to the ITR Entity pursuant to this Agreement. The provisions of this Agreement shall be construed
in the appropriate manner to ensure such intentions are realized.



          Section 3.3 Pro Rata Payments; Coordination of Benefits With Other Tax Receivable Agreements.



          (a) Notwithstanding anything in Section 3.1 to the contrary, to the extent that the aggregate
tax benefit of the Corporate Taxpayer’s deduction with respect to the NOLs, the Pre-IPO Basis
Adjustments, the Basis Adjustments or Imputed Interest under the Tax Receivable Agreements (as such
terms are defined in each Tax Receivable Agreement) is limited in a particular Taxable Year because
the Corporate Taxpayer does not have sufficient taxable income, the limitation on the tax benefit
for the Corporate Taxpayer shall be allocated among the Tax Receivable Agreements (and among all
parties eligible for payments thereunder) in proportion to the respective amounts of Realized Tax
Benefits that would have been determined under the Tax Receivable Agreements if the Corporate
Taxpayer had sufficient taxable income so that there were no such limitation.



          (b) If for any reason the Corporate Taxpayer does not fully satisfy its payment obligations to
make all Tax Benefit Payments due under the Tax Receivable Agreements in respect of a particular
Taxable Year, then the Corporate Taxpayer and the ITR Entity agree that (i) the Corporate Taxpayer
shall pay the same proportion of each Tax Benefit Payment due under each of the Tax Receivable
Agreements in respect of such Taxable Year, without favoring one obligation over the other, and
(ii) no Tax Benefit Payment shall be made in respect of any Taxable Year until all Tax Benefit
Payments in respect of prior Taxable Years have been made in full.



          (c) To the extent that the Corporate Taxpayer makes payments to the ITR Entity in respect of a
particular Taxable Year in an amount greater than the payments that should have been made in
accordance with Section 3.3(b), then the ITR Entity shall be obligated to make payments to the
parties to the other Tax Receivable Agreements (other than the Corporate Taxpayer) in the amounts
necessary so that each party to the Tax Receivable Agreements shall have received the amount that
it would have received if all payments by the Corporate Taxpayer had been in accordance with
Section 3.3(b); provided that the ITR Entity’s obligation to pay over to the parties to the
other Tax Receivable Agreements amounts received from the Corporate Taxpayer pursuant to this
Section 3.3(c) shall terminate on the one year anniversary of the receipt by the ITR Entity of such
amounts.



13









 





          (d) The parties hereto agree that the parties to the Investors Tax Receivable Agreement
(Reorganizations) and the parties to the Management Tax Receivable Agreement are expressly made
third party beneficiaries of the provisions of this Section 3.3.



ARTICLE IV




TERMINATION




          Section 4.1 Early Termination and Breach of Agreement.



          (a) With the written approval of a majority of the Independent Directors, the Corporate
Taxpayer may terminate this Agreement with respect to all amounts payable to the ITR Entity and
with respect to all of the Units held by HF Non-Corporate Members at any time by paying to the ITR
Entity the Early Termination Payment; provided, however, that this Agreement shall
only terminate upon the receipt of the Early Termination Payment by the ITR Entity, and
provided, further, that the Corporate Taxpayer may withdraw any notice to execute
its termination rights under this Section 4.1(a) prior to the time at which any Early Termination
Payment has been paid. Upon payment of the Early Termination Payment by the Corporate Taxpayer,
neither the ITR Entity nor the Corporate Taxpayer shall have any further payment obligations under
this Agreement, other than for any (a) Tax Benefit Payment agreed to by the Corporate Taxpayer and
the ITR Entity as due and payable but unpaid as of the Early Termination Notice and (b) Tax Benefit
Payment due for the Taxable Year ending with or including the date of the Early Termination Notice
(except to the extent that the amount described in clause (b) is included in the Early Termination
Payment). If an Exchange occurs after the Corporate Taxpayer exercises its termination rights
under this Section 4.1(a), the Corporate Taxpayer shall have no obligations under this Agreement
with respect to such Exchange.



          (b) In the event that the Corporate Taxpayer breaches any of its material obligations under
this Agreement, whether as a result of failure to make any payment when due, failure to honor any
other material obligation required hereunder or by operation of law as a result of the rejection of
this Agreement in a case commenced under the Bankruptcy Code or otherwise, then all obligations
hereunder shall be accelerated and such obligations shall be calculated as if an Early Termination
Notice had been delivered on the date of such breach and shall include, but not be limited to, (1)
the Early Termination Payment calculated as if an Early Termination Notice had been delivered on
the date of a breach, (2) any Tax Benefit Payment agreed to by the Corporate Taxpayer and the ITR
Entity as due and payable but unpaid as of the date of a breach, and (3) any Tax Benefit Payment
due for the Taxable Year ending with or including the date of a breach. Notwithstanding the
foregoing, in the event that the Corporate Taxpayer breaches this Agreement, the ITR Entity shall
be entitled to elect to receive the amounts set forth in clauses (1), (2) and (3) above or to seek
specific performance of the terms hereof. The parties agree that the failure to make any payment
due pursuant to this Agreement within three months of the date such payment is due shall be deemed
to be a breach of a material obligation under this Agreement for all purposes of this Agreement,
and that it will not be considered to be a breach of a material obligation under this Agreement to
make a payment due pursuant to this Agreement within three months of the date such payment is due.
Notwithstanding anything in this Agreement to the contrary, it shall not be a breach of this



14









 




Agreement if the Corporate Taxpayer fails to make any Tax Benefit Payment when due to the
extent that the Corporate Taxpayer has insufficient funds to make such payment; provided
that the interest provisions of Section 5.2 shall apply to such late payment (unless the Corporate
Taxpayer does not have sufficient cash to make such payment as a result of limitations imposed by
existing credit agreements to which EBS is a party, in which case Section 5.2 shall apply, but the
Default Rate shall be replaced by the Agreed Rate).




          Section 4.2 Early Termination Notice. If the Corporate Taxpayer chooses to exercise its right of
early termination under Section 4.1 above, the Corporate Taxpayer shall deliver to the ITR Entity
notice of such intention to exercise such right (“Early Termination Notice”) and a schedule
(the “Early Termination Schedule”) specifying the Corporate Taxpayer’s intention to
exercise such right and showing in reasonable detail the calculation of the Early Termination
Payment for the ITR Entity. The Early Termination Schedule shall become final and binding on all
parties 30 calendar days from the first date on which the ITR Entity has received such Schedule or
amendment thereto unless the ITR Entity (i) within 30 calendar days after receiving the Early
Termination Schedule, provides the Corporate Taxpayer with notice of a material objection to such
Schedule made in good faith (“Material Objection Notice”) or (ii) provides a written waiver
of such right of a Material Objection Notice within the period described in clause (i) above, in
which case such Schedule becomes binding on the date the waiver is received by the Corporate
Taxpayer (the “Early Termination Effective Date”). If the parties, for any reason, are
unable to successfully resolve the issues raised in such notice within 30 calendar days after
receipt by the Corporate Taxpayer of the Material Objection Notice, the Corporate Taxpayer and the
ITR Entity shall employ the Reconciliation Procedures.



          Section 4.3 Payment upon Early Termination.



          (a) Within three calendar days after the Early Termination Effective Date, the Corporate
Taxpayer shall pay to the ITR Entity an amount equal to the Early Termination Payment. Such
payment shall be made by wire transfer of immediately available funds to a bank account or accounts
designated by the ITR Entity or as otherwise agreed by the Corporate Taxpayer and the ITR Entity.



          (b) “Early Termination Payment” shall equal the present value, discounted at the Early
Termination Rate as of the Early Termination Effective Date, of all Tax Benefit Payments that would
be required to be paid by the Corporate Taxpayer to the ITR Entity beginning from the Early
Termination Date and assuming that the Valuation Assumptions are applied.



ARTICLE V




SUBORDINATION AND LATE PAYMENTS




          Section 5.1 Subordination. Notwithstanding any other provision of this Agreement to the contrary,
any Tax Benefit Payment or Early Termination Payment required to be made by the Corporate Taxpayer
to the ITR Entity under this Agreement shall rank



15









 




subordinate and junior in right of payment to any principal, interest or other amounts due and
payable in respect of any obligations in respect of indebtedness for borrowed money of the
Corporate Taxpayer and its Subsidiaries (“Senior Obligations”) and shall rank pari passu
with all current or future unsecured obligations of the Corporate Taxpayer that are not Senior
Obligations.




          Section 5.2 Late Payments by the Corporate Taxpayer. The amount of all or any portion of any Tax
Benefit Payment or Early Termination Payment not made to the ITR Entity when due under the terms of
this Agreement shall be payable together with any interest thereon, computed at the Default Rate
and commencing from the date on which such Tax Benefit Payment or Early Termination Payment was due
and payable.



ARTICLE VI




NO DISPUTES; CONSISTENCY; COOPERATION




          Section 6.1 Participation in the Corporate Taxpayer’s and EBS’s Tax Matters. Except as otherwise
provided herein, the Corporate Taxpayer shall have full responsibility for, and sole discretion
over, all Tax matters concerning the Corporate Taxpayer and EBS, including without limitation the
preparation, filing or amending of any Tax Return and defending, contesting or settling any issue
pertaining to Taxes. Notwithstanding the foregoing, the Corporate Taxpayer shall notify the ITR
Entity of, and keep the ITR Entity reasonably informed with respect to, the portion of any audit of
the Corporate Taxpayer and EBS by a Taxing Authority the outcome of which is reasonably expected to
affect the rights and obligations of the ITR Entity under this Agreement, and shall provide to the
ITR Entity reasonable opportunity to provide information and other input to the Corporate Taxpayer,
EBS and their respective advisors concerning the conduct of any such portion of such audit;
provided, however, that the Corporate Taxpayer and EBS shall not be required to
take any action that is inconsistent with any provision of the LLC Agreement.



          Section 6.2 Consistency. The Corporate Taxpayer and the ITR Entity agree to report and cause to
be reported for all purposes, including federal, state and local Tax purposes and financial
reporting purposes, all Tax-related items (including, without limitation, the Basis Adjustments and
each Tax Benefit Payment) in a manner consistent with that specified by the Corporate Taxpayer in
any Schedule required to be provided by or on behalf of the Corporate Taxpayer under this Agreement
unless otherwise required by law.



          Section 6.3 Cooperation. The ITR Entity shall (a) furnish to the Corporate Taxpayer in a timely
manner such information, documents and other materials as the Corporate Taxpayer may reasonably
request for purposes of making any determination or computation necessary or appropriate under this
Agreement, preparing any Tax Return or contesting or defending any audit, examination or
controversy with any Taxing Authority, (b) make itself available to the Corporate Taxpayer and its
representatives to provide explanations of documents and materials and such other information as
the Corporate Taxpayer or its representatives may reasonably request in connection with any of the
matters described in clause (a) above, and (c) reasonably cooperate in connection with any such
matter, and the Corporate Taxpayer shall



16









 




reimburse the ITR Entity for any reasonable third-party costs and expenses incurred pursuant
to this Section.




ARTICLE VII




MISCELLANEOUS




          Section 7.1 Notices. All notices, requests, claims, demands and other communications hereunder
shall be in writing and shall be deemed duly given and received (a) on the date of delivery if
delivered personally, or by facsimile upon confirmation of transmission by the sender’s fax machine
if sent on a Business Day (or otherwise on the next Business Day) or (b) on the first Business Day
following the date of dispatch if delivered by a recognized next-day courier service. All notices
hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be
designated in writing by the party to receive such notice:


If to the Corporate Taxpayer, to:



3055 Lebanon Pike, Suite 1000

Nashville, TN 37214

Telephone: (615) 932-3000

Facsimile: (615) 340-6153

Attention: General Counsel



with a copy (which shall not constitute notice to the Corporate Taxpayer)
to:

Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, NY 10019-6064

Telephone: (212) 373-3000

Facsimile: (212) 757-3990

Attention: John C. Kennedy, Esq.



If to the ITR Entity, to:



c/o General Atlantic Service Company, LLC

3 Pickwick Plaza

Greenwich, CT 06830

Telephone: (203) 629-8600

Facsimile: (203) 618-9207

Attention: Christopher G. Lanning, Esq.




17









 







c/o Hellman & Friedman LLC

One Maritime Plaza

12th Floor

San Francisco, CA 94111

Telephone: (415) 788-5111

Facsimile: (415) 788-0176

Attention: Arrie Park, General Counsel



Any party may change its address or fax number by giving the other party written notice of its new
address or fax number in the manner set forth above.




          Section 7.2 Counterparts. This Agreement may be executed in one or more counterparts, all of which
shall be considered one and the same agreement and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart. Delivery of an executed signature
page to this Agreement by facsimile transmission shall be as effective as delivery of a manually
signed counterpart of this Agreement.



          Section 7.3 Entire Agreement; No Third Party Beneficiaries. This Agreement constitutes the entire
agreement and supersedes all prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof. Except to the extent provided under Section 3.3,
this Agreement shall be binding upon and inure solely to the benefit of each party hereto and their
respective successors and permitted assigns, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other Person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.



          Section 7.4 Governing Law. This Agreement shall be governed by, and construed in accordance with,
the law of the State of New York, without regard to the conflicts of laws principles thereof that
would mandate the application of the laws of another jurisdiction.



          Section 7.5 Severability. If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any law or public policy, all other terms and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner materially adverse
to any party. Upon such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as possible in an
acceptable manner in order that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.



          Section 7.6 Successors; Assignment; Amendments; Waivers.



          (a) The ITR Entity may assign any of its rights under this Agreement to any Person as long as
such transferee has executed and delivered, or, in connection with such transfer, executes and
delivers, a joinder to this Agreement, in form and substance reasonably satisfactory to the
Corporate Taxpayer, agreeing to become an ITR Entity for all purposes of this Agreement, except as
otherwise provided in such joinder.



18









 





          (b) No provision of this Agreement may be amended unless such amendment is approved in writing
by both the Corporate Taxpayer and the ITR Entity; provided, that, the definition of Change
of Control cannot be amended without the written approval of a majority of the Independent
Directors. No provision of this Agreement may be waived unless such waiver is in writing and
signed by the party against whom the waiver is to be effective.



          (c) All of the terms and provisions of this Agreement shall be binding upon, shall inure to
the benefit of and shall be enforceable by the parties hereto and their respective successors,
assigns, heirs, executors, administrators and legal representatives. The Corporate Taxpayer shall
require and cause any direct or indirect successor (whether by purchase, merger, consolidation or
otherwise) to all or substantially all of the business or assets of the Corporate Taxpayer, by
written agreement, expressly to assume and agree to perform this Agreement in the same manner and
to the same extent that the Corporate Taxpayer would be required to perform if no such succession
had taken place.



          Section 7.7 Titles and Subtitles. The titles of the sections and subsections of this Agreement are
for convenience of reference only and are not to be considered in construing this Agreement.



          Section 7.8 Resolution of Disputes.



          (a) Any and all disputes which cannot be settled amicably, including any ancillary claims of
any party, arising out of, relating to or in connection with the validity, negotiation, execution,
interpretation, performance or non-performance of this Agreement (including the validity, scope and
enforceability of this arbitration provision) (each a “Dispute”) shall be finally settled
by arbitration conducted by a single arbitrator in New York in accordance with the then-existing
Rules of Arbitration of the International Chamber of Commerce. If the parties to the Dispute fail
to agree on the selection of an arbitrator within ten (10) days of the receipt of the request for
arbitration, the International Chamber of Commerce shall make the appointment. The arbitrator shall
be a lawyer admitted to the practice of law in the State of New York and shall conduct the
proceedings in the English language. Performance under this Agreement shall continue if reasonably
possible during any arbitration proceedings.



          (b) Notwithstanding the provisions of paragraph (a), the Corporate Taxpayer may bring an
action or special proceeding in any court of competent jurisdiction for the purpose of compelling a
party to arbitrate, seeking temporary or preliminary relief in aid of an arbitration hereunder,
and/or enforcing an arbitration award and, for the purposes of this paragraph (b), the ITR Entity
(i) expressly consents to the application of paragraph (c) of this Section 7.8 to any such action
or proceeding, (ii) agrees that proof shall not be required that monetary damages for breach of the
provisions of this Agreement would be difficult to calculate and that remedies at law would be
inadequate, and (iii) irrevocably appoints the Corporate Taxpayer as agent of the ITR Entity for
service of process in connection with any such action or proceeding and agrees that service of
process upon such agent, who shall promptly advise the ITR Entity of any such service of process,
shall be deemed in every respect effective service of process upon the ITR Entity in any such
action or proceeding.



19









 





          (c) (i) EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF COURTS LOCATED IN NEW
YORK, NEW YORK FOR THE PURPOSE OF ANY JUDICIAL PROCEEDING BROUGHT IN ACCORDANCE WITH THE PROVISIONS
OF THIS SECTION 7.8, OR ANY JUDICIAL PROCEEDING ANCILLARY TO AN ARBITRATION OR CONTEMPLATED
ARBITRATION ARISING OUT OF OR RELATING TO OR CONCERNING THIS AGREEMENT. Such ancillary judicial
proceedings include any suit, action or proceeding to compel arbitration, to obtain temporary or
preliminary judicial relief in aid of arbitration, or to confirm an arbitration award. The parties
acknowledge that the fora designated by this paragraph (c) have a reasonable relation to this
Agreement, and to the parties’ relationship with one another; and



               (ii) The parties hereby waive, to the fullest extent permitted by applicable law, any
objection which they now or hereafter may have to personal jurisdiction or to the laying of venue
of any such ancillary suit, action or proceeding brought in any court referred to in the preceding
paragraph of this Section 7.8 and such parties agree not to plead or claim the same.




          Section 7.9 Reconciliation. In the event that the Corporate Taxpayer and the ITR Entity are unable
to resolve a disagreement with respect to the matters governed by Sections 2.3, 4.2 and 6.2 within
the relevant period designated in this Agreement (“Reconciliation Dispute”), the
Reconciliation Dispute shall be submitted for determination to a nationally recognized expert (the
“Expert”) in the particular area of disagreement mutually acceptable to both parties. The
Expert shall be a partner or principal in a nationally recognized accounting or law firm, and
unless the Corporate Taxpayer and the ITR Entity agree otherwise, the Expert shall not, and the
firm that employs the Expert shall not, have any material relationship with the Corporate Taxpayer
or the ITR Entity or other actual or potential conflict of interest. If the parties are unable to
agree on an Expert within fifteen (15) days of receipt by the respondent(s) of written notice of a
Reconciliation Dispute, the Expert shall be appointed by the International Chamber of Commerce
Centre for Expertise. The Expert shall resolve any matter relating to the Exchange Basis Schedule
or an amendment thereto or the Early Termination Schedule or an amendment thereto within 30
calendar days and shall resolve any matter relating to a Tax Benefit Schedule or an amendment
thereto within 15 calendar days or as soon thereafter as is reasonably practicable, in each case
after the matter has been submitted to the Expert for resolution. Notwithstanding the preceding
sentence, if the matter is not resolved before any payment that is the subject of a disagreement
would be due (in the absence of such disagreement) or any Tax Return reflecting the subject of a
disagreement is due, the undisputed amount shall be paid on the date prescribed by this Agreement
and such Tax Return may be filed as prepared by the Corporate Taxpayer, subject to adjustment or
amendment upon resolution. The costs and expenses relating to the engagement of such Expert or
amending any Tax Return shall be borne by the Corporate Taxpayer except as provided in the next
sentence. The Corporate Taxpayer and the ITR Entity shall bear their own costs and expenses of
such proceeding, unless (i) the Expert adopts the ITR Entity’s position, in which case the
Corporate Taxpayer shall reimburse the ITR Entity for any reasonable out-of-pocket costs and
expenses in such proceeding, or (ii) the Expert adopts the Corporate Taxpayer’s position, in which
case the ITR Entity shall reimburse the Corporate Taxpayer for any reasonable out-of-pocket costs
and expenses in such proceeding. Any dispute as to whether a dispute is a Reconciliation Dispute
within the meaning of this Section 7.9 shall be decided by the Expert. The Expert shall finally
determine any



20









 




Reconciliation Dispute and the determinations of the Expert pursuant to this Section 7.9 shall
be binding on the Corporate Taxpayer and the ITR Entity and may be entered and enforced in any
court having jurisdiction.




          Section 7.10 Withholding. The Corporate Taxpayer shall be entitled to deduct and withhold from any
payment payable pursuant to this Agreement such amounts as the Corporate Taxpayer is required to
deduct and withhold with respect to the making of such payment under the Code or any provision of
state, local or foreign tax law. To the extent that amounts are so withheld and paid over to the
appropriate Taxing Authority by the Corporate Taxpayer, such withheld amounts shall be treated for
all purposes of this Agreement as having been paid to the ITR Entity.



          Section 7.11 Admission of the Corporate Taxpayer into a Consolidated Group; Transfers of Corporate
Assets.



          (a) If the Corporate Taxpayer is or becomes a member of an affiliated or consolidated group of
corporations that files a consolidated income tax return pursuant to Sections 1501 et seq. of the
Code or any corresponding provisions of state or local law, then: (i) the provisions of this
Agreement shall be applied with respect to the group as a whole; and (ii) Tax Benefit Payments,
Early Termination Payments and other applicable items hereunder shall be computed with reference to
the consolidated taxable income of the group as a whole.



          (b) If any entity that is obligated to make a Tax Benefit Payment or Early Termination Payment
hereunder transfers one or more assets to a corporation (or a Person classified as a corporation
for U.S. income tax purposes) with which such entity does not file a consolidated tax return
pursuant to Section 1501 of the Code, such entity, for purposes of calculating the amount of any
Tax Benefit Payment or Early Termination Payment (e.g., calculating the gross income of the entity
and determining the Realized Tax Benefit of such entity) due hereunder, shall be treated as having
disposed of such asset in a fully taxable transaction on the date of such contribution. The
consideration deemed to be received by such entity shall be equal to the fair market value of the
contributed asset. For purposes of this Section 7.11, a transfer of a partnership interest shall
be treated as a transfer of the transferring partner’s share of each of the assets and liabilities
of that partnership.



          Section 7.12 Confidentiality. The ITR Entity and each of its assignees acknowledge and agree that
the information of the Corporate Taxpayer is confidential and, except in the course of performing
any duties as necessary for the Corporate Taxpayer and its Affiliates, as required by law or legal
process or to enforce the terms of this Agreement, such person shall keep and retain in the
strictest confidence and not disclose to any Person any confidential matters, acquired pursuant to
this Agreement, of the Corporate Taxpayer and its Affiliates and successors, concerning EBS and its
Affiliates and successors or the Members, learned by the ITR Entity heretofore or hereafter. This
Section 7.12 shall not apply to (i) any information that has been made publicly available by the
Corporate Taxpayer or any of its Affiliates, becomes public knowledge (except as a result of an act
of the ITR Entity in violation of this Agreement) or is generally known to the business community
and (ii) the disclosure of information to the extent necessary for the ITR Entity to prepare and
file its Tax Returns, to respond to any inquiries regarding the same from any taxing authority or
to prosecute or defend



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any action, proceeding or audit by any taxing authority with respect to such returns.
Notwithstanding anything to the contrary herein, the ITR Entity and each of its assignees (and each
employee, representative or other agent of the ITR Entity or its assignees, as applicable) may
disclose to any and all Persons, without limitation of any kind, the tax treatment and tax
structure of the Corporate Taxpayer, EBS, the ITR Entity, the Members and their Affiliates, and any
of their transactions, and all materials of any kind (including opinions or other tax analyses)
that are provided to the ITR Entity relating to such tax treatment and tax structure.



If the ITR Entity or an assignee commits a breach, or threatens to commit a breach, of any of the
provisions of this Section 7.12, the Corporate Taxpayer shall have the right and remedy to have the
provisions of this Section 7.12 specifically enforced by injunctive relief or otherwise by any
court of competent jurisdiction without the need to post any bond or other security, it being
acknowledged and agreed that any such breach or threatened breach shall cause irreparable injury to
the Corporate Taxpayer or any of its Subsidiaries or the Members and the accounts and funds managed
by the Corporate Taxpayer and that money damages alone shall not provide an adequate remedy to such
Persons. Such rights and remedies shall be in addition to, and not in lieu of, any other rights
and remedies available at law or in equity.




          Section 7.13 Change in Law.



          (a) Notwithstanding anything herein to the contrary, if, in connection with an actual or
proposed change in law, the ITR Entity reasonably believes that the existence of this Agreement
could cause income (other than income arising from receipt of a payment under this Agreement)
recognized by any member affiliated with the ITR Entity (or direct or indirect equity holders in
such member) upon the IPO (or the Reorganization) or any Exchange to be treated as ordinary income
rather than capital gain (or otherwise taxed at ordinary income rates) for United States federal
income tax purposes or would have other material adverse tax consequences to the ITR Entity or any
direct or indirect owner of the ITR Entity (a “Change in Tax Law”), then at the election of
the ITR Entity and to the extent specified by the ITR Entity, this Agreement (i) shall cease to
have further effect, (ii) shall not apply to an Exchange occurring after a date specified by the
ITR Entity, or (iii) shall otherwise be amended in a manner determined by the ITR Entity provided
that such amendment shall not result in an increase in payments under this Agreement at any time as
compared to the amounts and times of payments that would have been due in the absence of such
amendment (assuming that no payment is due under Section 7.13(b)).



          (b) If the ITR Entity delivers to the Corporate Taxpayer a notice of acceleration accompanied
by an opinion of a Qualified Tax Advisor to the effect that based upon such Change in Tax Law
(taking into account any applicable administrative pronouncements or rulings, formal or informal
Congressional actions or statements, or otherwise) (i) the existence of this Agreement will more
likely than not cause income (other than income arising from receipt of a payment under this
Agreement) recognized by any of the HF Non-Corporate Members (or direct or indirect equity holders
in such Member) upon any Exchange to be treated as ordinary income rather than capital gain (or
otherwise taxed at ordinary income rates) for United States federal income tax purposes or would
have other material adverse tax consequences to the ITR Entity (or any direct or indirect owner
thereof), and (ii) substantially all of such income described in Section 7.13(b)(i) above would be
more likely than not taxable at capital gain rates or such other material adverse tax consequences
would be avoided as a result of making the



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election described in this Section 7.13(b), then the ITR Entity may elect to cause the
Corporate Taxpayer to make a lump sum payment in lieu of the Tax Benefit Payments otherwise
provided in this Agreement in accordance with the procedures described in Article IV, in an amount
equal to the sum of the present values of all such Tax Benefits Payments, substituting in each case
“70%” for “85%” in the calculation of Net Tax Benefit, discounted at the Early Termination Rate as
of the effective date specified in the notice of acceleration, and assuming the Valuation
Assumptions (1) through (5) are applied; provided, that no amount shall be payable under
this Section 7.13(b) unless, with respect to at least 50% of the Units held by the HF Non-Corporate
Members at the time of execution of this Agreement, all rights to payments under this Agreement
shall have been terminated pursuant to Section 7.13(a) (and for the avoidance of doubt, no payments
pursuant to this Section 7.13(b) shall be made in respect of such Units); provided,
further, that if such payment would be due on or after the effective date of the applicable
Change in Tax Law, at the election of the ITR Entity, such payment shall to the extent reasonably
practicable instead be made no later than the date prior to the effective date of the applicable
Change in Tax Law (using the best available estimates and information at such time).




          (c) The Corporate Taxpayer shall have the right to satisfy its obligation to make a lump sum
payment under Section 7.13(b) by issuing a subordinated debt instrument of the Corporate Taxpayer,
with a maturity date seven years after issuance, with interest payment required to be made
quarterly, and bearing interest at a rate equal to the lesser of (i) 6% per annum and (ii) LIBOR
plus 200 basis points.



          (d) Notwithstanding anything herein to the contrary, Section 3.3(b) and Section 3.3(c) of the
Tax Receivable Agreements shall not apply to payments made by the Corporate Taxpayer pursuant to
this Section 7.13.



          Section 7.14 Representations.



          (a) The GA ITR Entity hereby represents that neither the Existing GA Owners nor the GA ITR
Entity has any rights to receive payments in respect of the Corporate Taxpayer’s cash Tax savings
attributable to various tax benefits generated by the Exchanges (including any rights under this
Agreement).



          (b) The HF ITR Entity hereby represents that the HF Members have contributed to the HF ITR
Entity, and the HF ITR Entity has received, all of the HF Members’ rights to receive payments in
respect of the Corporate Taxpayer’s cash Tax savings attributable to various tax benefits generated
by the Exchanges (including their rights under this Agreement).



          (c) The HF ITR Entity and the ITR Entity hereby represent that the HF ITR Entity has
contributed to the ITR Entity, and the ITR Entity has received, all of the HF ITR Entity’s rights
to receive payments in respect of the Corporate Taxpayer’s cash Tax savings attributable to various
tax benefits generated by the Exchanges (including their rights under this Agreement).



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          IN WITNESS WHEREOF, the Corporate Taxpayer, the HF ITR Entity, the GA ITR Entity and the ITR
Entity have duly executed this Agreement as of the date first written above.



	 	 	 	 	 
	 	EMDEON INC.

 	 
	 	By:  	/s/ Gregory T. Stevens
 	 
	 	 	Name:  	Gregory T. Stevens 	 
	 	 	Title:  	Executive Vice President, General

Counsel and Secretary 	 



Signature Page to Tax Receivable Agreement (Exchanges)




 









 








	 	 	 	 	 
	 	GA-H&F ITR HOLDCO, L.P.

 	 
	 	By:  	ITR Holdco GP LLC,
 	 
	 	 	its General Partner 	 
	 	 	 	 	 
	 	By:  	                                              /s/ Christopher G. Lanning
 	 
	 	 	Name:  	Christopher G. Lanning 	 
	 	 	Title:  	Manager 	 
	 	 	 	 	 
	 	By:  	                                              /s/ Allen R. Thorpe
 	 
	 	 	Name:  	Allen R. Thorpe 	 
	 	 	Title:  	Manager 	 
	 



Signature Page to Tax Receivable Agreement (Exchanges)




 









 








	 	 	 	 	 
	 	H&F ITR HOLDCO, L.P.

 	 
	 	By:  	Hellman & Friedman Investors VI, L.P.,
 	 
	 	 	its General Partner 	 
	 	 	 	 	 
	 	By:  	                Hellman & Friedman LLC,
 	 
	 	 	its General Partner 	 
	 	 	 	 
	 	By:  	                                              /s/ Allen R. Thorpe
 	 
	 	 	Name:  	Allen R. Thorpe 	 
	 	 	Title:  	Managing Director 	 



Signature Page to Tax Receivable Agreement (Exchanges)




 









 








	 	 	 	 	 
	 	GA ITR HOLDCO, L.P.

 	 
	 	By:  	General Atlantic LLC,
 	 
	 	 	its General Partner 	 
	 	 	 	 
	 	By:  	                         /s/ Thomas Murphy
 	 
	 	 	Name:  	Thomas Murphy 	 
	 	 	Its:  Managing Director 	 



Signature Page to Tax Receivable Agreement (Exchanges)