EXHIBIT 2
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REGISTRATION RIGHTS AGREEMENT
dated as of July 19, 1999
between
MAGELLAN HEALTH SERVICES, INC.
and
TPG MAGELLAN LLC
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT ("Agreement"), dated as of July 19, 1999, by
and between Magellan Health Services, Inc., a Delaware corporation (the
"Company"), and TPG Magellan LLC, a Delaware limited liability company (together
with its permitted assigns, "TPG" or the "Investor").
W I T N E S S E T H:
WHEREAS, the Company and the Investor have entered into an Investment
Agreement, dated as of July 19, 1999 (the "Investment Agreement"), pursuant to
which the Investor has agreed to purchase from the Company, and the Company has
agreed to issue and sell to the Investor, shares of the Company's Series A
Cumulative Convertible Preferred Stock, without par value (the "Series A
Preferred Stock"), having the rights, preferences, privileges and restrictions
set forth in the form of Certificate of Designations attached as Exhibit A to
the Investment Agreement and shares of the Company's Series B Cumulative
Convertible Preferred Stock, without par value (the "Series B Preferred Stock"),
having the rights, preferences, privileges and restrictions set forth in the
form of Certificate of Designations attached as Exhibit B to the Investment
Agreement; and
WHEREAS, as an inducement to the Investor entering into the Investment
Agreement, the Investor has required that the Company agree, and the Company has
agreed, to provide the rights set forth in this Agreement; and
WHEREAS, the consummation of the Closing is conditioned upon, among other
things, the execution and delivery of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
covenants and agreements of the parties hereto, and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. DEFINITIONS.
1.1. Capitalized Terms. Capitalized terms used but not defined herein shall
have the respective meanings assigned to such terms in the Investment Agreement.
1.2. Defined Terms. As used in this Agreement, the following terms shall
have the following meanings:
"Adverse Disclosure" means public disclosure of material non-public
information, disclosure of which, in the Board's good faith judgment, after
consultation with independent outside counsel to the Company, (i) would be
required to be made in any Registration Statement filed with the SEC by the
Company so that such Registration Statement would not be materially misleading;
(ii) would not be required to be made at such time but for the filing of such
Registration Statement; and (iii) the Company has a bona fide business purpose
for not disclosing publicly.
"Agreement" has the meaning set forth in the preamble hereto.
"Board" means the board of directors of the Company.
"Common Stock" means the Company's common stock, par value $0.25 per share.
"Company" has the meaning set forth in the preamble and shall include the
Company's successors by merger, acquisition, reorganization or otherwise.
"Company Public Sale" has the meaning set forth in Section 2.3(a).
"Demand Notice" has the meaning set forth in Section 2.2(e).
"Demand Period" has the meaning set forth in Section 2.2(d).
"Demand Registration" has the meaning set forth in Section 2.2(a).
"Demand Registration Statement" has the meaning set forth in Section
2.2(a).
"Effectiveness Date" means the 120th day following the Closing Date.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
any successor thereto, and any rules and regulations promulgated thereunder, all
as the same shall be in effect from time to time.
"Filing Date" means the 30th day following the Closing Date.
"holder" means any holder of Registrable Securities (whether or not
acquired pursuant to the Investment Agreement) who is a party hereto or who
succeeds to rights hereunder pursuant to Section 3.5.
"Investment Agreement" has the meaning set forth in the recitals hereto.
"Investor" has the meaning set forth in the preamble hereto.
"NASD" means the National Association of Securities Dealers, Inc.
"Person" means any individual, firm, limited liability company or
partnership, joint venture, corporation, joint stock company, trust or
unincorporated organization, incorporated or unincorporated association,
government (or any department, agency or political subdivision thereof) or other
entity of any kind, and shall include any successor (by merger or otherwise) of
such entity.
"Piggyback Registration" has the meaning set forth in Section 2.3(a).
"Prospectus" means the prospectus included in any Registration Statement,
all amendments and supplements to such prospectus, including post-effective
amendments, and all other material incorporated by reference in such prospectus.
"Registrable Securities" means any shares of Series A Preferred Stock, any
shares of Series B Preferred Stock, any shares of Common Stock or other
securities issued upon the conversion of or as a dividend with respect to the
Series A Preferred Stock or Series B Preferred Stock, any securities of the
Issuer acquired by the Investor or its Affiliates in accordance with Section
6.01(c) or Section 8.05 of the Investment Agreement, and any securities that may
be issued or distributed or be issuable in respect of any Registrable Securities
by way of conversion, dividend, stock split or other distribution, merger,
consolidation, exchange, recapitalization or reclassification or similar
transaction; provided, however, that any such Registrable Securities shall cease
to be Registrable Securities to the extent (i) a Registration Statement with
respect to the sale of such Registrable Securities has been declared effective
under the Securities Act and such Registrable Securities have been disposed of
in accordance with the plan of distribution set forth in such Registration
Statement, (ii) such Registrable Securities have been distributed pursuant to
Rule 144 (or any similar provisions then in force) under the Securities Act or
(iii) such Registrable Securities shall have been otherwise transferred and new
certificates for them not bearing a legend restricting transfer under the
Securities Act shall have been delivered by the Company and such securities may
be publicly resold without Registration under the Securities Act. For purposes
of this Agreement, a "class" of Registrable Securities shall mean all securities
with the same terms and a "percentage" (or a "majority") of the Registrable
Securities (or, where applicable, of any other securities) shall be determined
(x) based on the number of shares of such securities, in the case of Registrable
Securities which are equity securities, and (y) based on the principal amount of
such securities, in the case of Registrable Securities which are debt
securities.
"Registration" means a registration with the SEC of the Company's
securities for offer and sale to the public under a Registration Statement. The
term "Register" shall have a correlative meaning.
"Registration Expenses" has the meaning set forth in Section 2.8.
"Registration Statement" means any registration statement of the Company
filed with, or to be filed with, the SEC under the rules and regulations
promulgated under the Securities Act, including the related Prospectus,
amendments and supplements to such registration statement, including
post-effective amendments, and all exhibits and all material incorporated by
reference in such registration statement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and any
successor thereto, and any rules and regulations promulgated thereunder, all as
the same shall be in effect from time to time.
"Series A Preferred Stock" has the meaning set forth in the preamble
hereto.
"Series B Preferred Stock" has the meaning set forth in the preamble
hereto.
"Shelf Period" has the meaning set forth in Section 2.1(b).
"Shelf Registration" means a Registration effected pursuant to Section 2.1.
"Shelf Registration Statement" means a Registration Statement of the
Company filed with the SEC on Form S-3 (or any successor form or other
appropriate form under the Securities Act) for an offering to be made on a
continuous basis pursuant to Rule 415 under the Securities Act (or any similar
rule that may be adopted by the SEC) covering the Registrable Securities, as
applicable.
"Shelf Suspension" has the meaning set forth in Section 2.1(c).
"Underwritten Offering" means a Registration in which securities of the
Company are sold to an underwriter or underwriters on a firm commitment basis
for reoffering to the public.
1.3. General Interpretive Principles. Whenever used in this Agreement,
except as otherwise expressly provided or unless the context otherwise requires,
any noun or pronoun shall be deemed to include the plural as well as the
singular and to cover all genders. The name assigned this Agreement and the
section captions used herein are for convenience of reference only and shall not
be construed to affect the meaning, construction or effect hereof. Unless
otherwise specified, the terms "hereof," "herein" and similar terms refer to
this Agreement as a whole (including the exhibits, schedules and disclosure
statements hereto), and references herein to Sections refer to Sections of this
Agreement.
SECTION 2. REGISTRATION RIGHTS.
2.1. Shelf Registration.
(a) Filing. The Company shall file with the SEC, on or before the Filing
Date, a Shelf Registration Statement relating to the offer and sale of the
Registrable Securities by the holders from time to time in accordance with the
methods of distribution elected by such holders, and the Company shall use its
best efforts to cause such Shelf Registration Statement to be declared effective
under the Securities Act by the Effectiveness Date. If the Company does not
qualify to file a Shelf Registration Statement under the Securities Act, then
the provisions of Section 2.2 shall apply, but at any time thereafter that the
Company does so qualify, it shall, as promptly as practicable, file a Shelf
Registration Statement and use its best efforts to cause the Shelf Registration
Statement to be declared effective.
(b) Continued Effectiveness. The Company shall use its best efforts to keep
such Shelf Registration Statement continuously effective under the Securities
Act in order to permit the Prospectus forming a part thereof to be usable by
holders until the earlier of (i) the 10th anniversary of the effectiveness of
such Shelf Registration Statement, (ii) the date as of which all the Registrable
Securities covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement (but in no event prior to the applicable
period referred to in Section 4(3) of the Securities Act and Rule 174
thereunder) and (iii) the date as of which the Investor and its Affiliates are
no longer entitled to representation on the Board under the Investment Agreement
and are permitted to freely sell their Registrable Securities under Rule 144(k)
under the Securities Act (such period of effectiveness, the "Shelf Period").
Subject to Section 2.1(c), the Company shall not be deemed to have used its best
efforts to keep the Shelf Registration Statement effective during the Shelf
Period if the Company voluntarily takes any action or omits to take any action
that would result in holders of the Registrable Securities covered thereby not
being able to offer and sell any Registrable Securities pursuant to such Shelf
Registration Statement during the Shelf Period, unless such action or omission
is required by applicable law.
(c) Suspension of Registration. If the continued use of such Shelf
Registration Statement at any time would require the Company to make an Adverse
Disclosure, the Company may, upon giving prompt written notice of such action to
the holders, suspend use of the Shelf Registration Statement (a "Shelf
Suspension"); provided, however, that the Company shall not be permitted to
exercise a Shelf Suspension (i) more than three times during any 18-month
period, or (ii) for a period exceeding 40 days on any one occasion. In the case
of a Shelf Suspension, the holders agree to suspend use of the applicable
Prospectus in connection with any sale or purchase of, or offer to sell or
purchase, Registrable Securities, upon receipt of the notice referred to above.
The Company shall immediately notify the holders upon the termination of any
Shelf Suspension, amend or supplement the Prospectus, if necessary, so it does
not contain any untrue statement or omission therein and furnish to the holders
such numbers of copies of the Prospectus as so amended or supplemented as the
holders may reasonably request. The Company represents that, as of the date
hereof, it has no knowledge of any circumstance that would reasonably be
expected to cause it to exercise its rights under this Section 2.1(c).
(d) Underwritten Offering. If the holders of not less than a majority of
any class of Registrable Securities included in any offering pursuant to such
Shelf Registration Statement so elect, such offering of Registrable Securities
shall be in the form of an Underwritten Offering, and the Company shall amend or
supplement the Shelf Registration Statement for such purpose. The holders of a
majority of the class of such Registrable Securities included in such
Underwritten Offering shall have the right to select the managing underwriter or
underwriters to administer such offering; provided that such managing
underwriter or underwriters shall be reasonably acceptable to the Company.
2.2. Demand Registrations.
(a) Demand by Holders. If, on or at any time after the Effectiveness Date,
the Shelf Registration Statement is not effective under the Securities Act or is
not available for use by the holders, then at any time thereafter the holders of
not less than 25% of any class of Registrable Securities may make a written
request to the Company for Registration of Registrable Securities held by such
holders and any other holders of Registrable Securities; provided that the
estimated market value or stated value of the Registrable Securities to be so
Registered is at least $10 million in the aggregate at the time such request is
made. Any such requested Registration shall hereinafter be referred to as a
"Demand Registration." Each request for a Demand Registration shall specify the
kind and aggregate amount of Registrable Securities to be Registered and the
intended methods of disposition thereof. Within thirty days of a request for a
Demand Registration, the Company shall file a Registration Statement relating to
such Demand Registration (a "Demand Registration Statement"), and shall use its
best efforts to cause such Demand Registration Statement to promptly be declared
effective under the Securities Act.
(b) Limitation on Demand Registrations. Subject to Section 2.2(h), in no
event shall the Company be required to effect more than 4 Demand Registrations.
(c) Demand Withdrawal. A holder may withdraw its Registrable Securities
from a Demand Registration at any time prior to the effectiveness of the
applicable Demand Registration Statement. If all such holders do so, the Issuer
shall cease all efforts to secure Registration and such Registration nonetheless
shall be deemed a Demand Registration for purposes of Section 2.2(b) unless the
withdrawing holders shall have paid or reimbursed the Company for all of the
reasonable out-of-pocket fees and expenses incurred by the Company in connection
with the Registration of such withdrawn Registrable Securities.
(d) Effective Registration. The Company shall be deemed to have effected a
Demand Registration if the Demand Registration Statement is declared effective
by the SEC and remains effective for not less than 180 days (or such shorter
period as will terminate when all Registrable Securities covered by such Demand
Registration Statement have been sold or withdrawn), or if such Registration
Statement relates to an Underwritten Offering, such longer period as in the
opinion of counsel for the underwriter or underwriters a Prospectus is required
by law to be delivered in connection with sales of Registrable Securities by an
underwriter or dealer (the applicable period, the "Demand Period"). No Demand
Registration shall be deemed to have been effected if (i) during the Demand
Period such Registration is interfered with by any stop order, injunction or
other order or requirement of the SEC or other governmental agency or court or
(ii) the conditions to closing specified in the underwriting agreement, if any,
entered into in connection with such Registration are not satisfied by reason of
a wrongful act, misrepresentation or breach of such applicable underwriting
agreement by the Company.
(e) Demand Notice. Promptly upon receipt of any request for a Demand
Registration pursuant to Section 2.2(a) (but in no event more than 5 business
days thereafter), the Company shall deliver a written notice (a "Demand Notice")
of any such Registration request to all other holders of Registrable Securities
of the same class or classes to be included in such Demand Registration, and the
Company shall include in such Demand Registration all such Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 15 days after the date that the Demand Notice has been
delivered. All requests made pursuant to this Section 2.2(e) shall specify the
class and aggregate amount of Registrable Securities to be registered and the
intended method of distribution of such securities.
(f) Delay in Filing; Suspension of Registration. If the filing, initial
effectiveness or continued use of a Demand Registration Statement at any time
would require the Company to make an Adverse Disclosure, the Company may, upon
giving prompt written notice of such action to the holders, delay the filing or
initial effectiveness of, or suspend use of, the Demand Registration Statement
(a "Demand Suspension"); provided, however, that the Company shall not be
permitted to exercise a Demand Suspension (i) more than three times during any
18-month period, or (ii) for a period exceeding 40 days on any one occasion. In
the case of a Demand Suspension, the holders agree to suspend use of the
applicable Prospectus in connection with any sale or purchase, or offer to sell
or purchase, Registrable Securities, upon receipt of the notice referred to
above. The Company shall immediately notify the holders upon the termination of
any Demand Suspension, amend or supplement the Prospectus, if necessary, so it
does not contain any untrue statement or omission therein and furnish to the
holders such numbers of copies of the Prospectus as so amended or supplemented
as the holders may reasonably request. The Company represents that, as of the
date hereof, it has no knowledge of any circumstance that would reasonably be
expected to cause it to exercise its rights under this Section 2.2(f).
(g) Underwritten Offering. If the holders of not less than a majority of
any class of Registrable Securities requesting a Demand Registration so elect,
such offering of Registrable Securities shall be in the form of an Underwritten
Offering. The holders of a majority of the class of such Registrable Securities
included in such Underwritten Offering shall have the right to select the
underwriter or underwriters to administer the offering; provided, that such
underwriter or underwriters shall be reasonably acceptable to the Company.
(h) Priority of Securities Registered Pursuant to Demand Registrations. If
the managing underwriter or underwriters of a proposed Underwritten Offering of
a class of Registrable Securities included in a Demand Registration (or, in the
case of a Demand Registration not being underwritten, the holders of a majority
of a class of Registrable Securities included therein), informs the holders of
such class of Registrable Securities in writing that, in its or their opinion,
the number of securities of such class requested to be included in such Demand
Registration exceeds the number which can be sold in such offering without being
likely to have a significant adverse effect on the price, timing or distribution
of the securities offered or the market for the securities offered, the number
of Registrable Securities of such class to be included in such Demand
Registration shall be allocated pro rata among the holders that have requested
to participate in such Demand Registration on the basis of the relative number
of Registrable Securities of such class then held by each such holder, to the
extent necessary to reduce the total number of Registrable Securities of such
class to be included in such offering to the number recommended by the managing
underwriter or underwriters or such holders, provided that any securities
thereby allocated to a holder that exceed such holder's request shall be
reallocated among the remaining requesting holders in like manner. To the extent
that Registrable Securities so requested to be registered are excluded from the
offering, then the holders of such Registrable Securities shall have the right
to one additional Demand Registration under this Section 2.2.
(i) Registration Statement Form. Registrations under this Section 2.2 shall
be on such appropriate form of the SEC (i) as shall be selected by the Company
and as shall be reasonably acceptable to the holders of a majority of each class
of Registrable Securities requesting a Demand Registration and (ii) as shall
permit the disposition of such Registrable Securities in accordance with the
intended method or methods of disposition specified in such holders' requests
for such Registration. Notwithstanding the foregoing, if, pursuant to a Demand
Registration, (x) the Company proposes to effect Registration by filing a
Registration Statement on Form S-3 (or any successor or similar short-form
registration statement), (y) such Registration is in connection with an
Underwritten Offering and (z) the managing underwriter or underwriters shall
advise the Company in writing that, in its or their opinion, the use of another
form of registration statement is of material importance to the success of such
proposed offering, then such Registration shall be effected on such other form;
provided, however, that the holders of the Registrable Securities registered
pursuant to such Registration Statement shall bear any incremental Registration
Expenses directly associated with the use of such other form.
2.3. Piggyback Registrations.
(a) Participation. If the Company at any time proposes to file a
Registration Statement under the Securities Act with respect to any offering of
its securities for its own account or for the account of any other Persons
(other than (i) a Registration under Section 2.1 or 2.2 hereof, (ii) a
Registration on Form S-4 or S-8 or any successor form to such Forms or (iii) a
Registration of securities solely relating to an offering and sale to employees
or directors of the Company pursuant to any employee stock plan or other
employee benefit plan arrangement) (a "Company Public Sale"), then, as soon as
practicable (but in no event less than 45 days prior to the proposed date of
filing such Registration Statement), the Company shall give written notice of
such proposed filing to all holders of Registrable Securities that are equity
securities in the case of a Company Public Sale of equity securities or
Registrable Securities that are debt securities in the case of a Company Public
Sale of debt securities, and such notice shall offer the holders of such
Registrable Securities the opportunity to Register under such Registration
Statement such number of Registrable Securities as each such holder may request
in writing (a "Piggyback Registration"). Subject to Section 2.3(b), the Company
shall include in such Registration Statement all such Registrable Securities
which are requested to be included therein within 15 days after the receipt by
such holder of any such notice; provided, however, that if at any time after
giving written notice of its intention to Register any securities and prior to
the effective date of the Registration Statement filed in connection with such
Registration, the Company shall determine for any reason not to Register or to
delay Registration of such securities, the Company may, at its election, give
written notice of such determination to each holder of Registrable Securities
and, thereupon, (i) in the case of a determination not to Register, shall be
relieved of its obligation to Register any Registrable Securities in connection
with such Registration (but not from its obligation to pay the Registration
Expenses in connection therewith) and (ii) in the case of a determination to
delay Registering, shall be permitted to delay Registering any Registrable
Securities, for the same period as the delay in Registering such other
securities. If the offering pursuant to such Registration Statement is to be
underwritten, then each holder making a request for a Piggyback Registration
pursuant to this Section 2.3(a) must, and the Company shall make such
arrangements with the underwriters so that each such holder may, participate in
such Underwritten Offering. If the offering pursuant to such Registration
Statement is to be on any other basis, then each holder making a request for a
Piggyback Registration pursuant to this Section 2.3(a) must, and the Company
will make such arrangements so that each such holder may, participate in such
offering on such basis. Each holder of Registrable Securities shall be permitted
to withdraw all or part of such holder's Registrable Securities from a Piggyback
Registration at any time prior to the effective date thereof.
(b) Priority of Piggyback Registration. If the managing underwriter or
underwriters of any proposed Underwritten Offering of a class of Registrable
Securities included in a Piggyback Registration informs the Company and the
holders of such class of Registrable Securities in writing that, in its or their
opinion, the number of securities of such class which such holders and any other
Persons intend to include in such offering exceeds the number which can be sold
in such offering without being likely to have a significant adverse effect on
the price, timing or distribution of the securities offered or the market for
the securities offered, then the securities to be included in such Registration
shall be (i) first, 100% of the securities of such class that the Company or
(subject to Section 2.7) any Person (other than a holder of Registrable
Securities) exercising a contractual right to demand Registration, as the case
may be, proposes to sell, and (ii) second, and only if all the securities
referred to in clause (i) have been included, the number of Registrable
Securities of such class that, in the opinion of such managing underwriter or
underwriters, can be sold without having such adverse effect, with such number
to be allocated pro rata among the holders that have requested to participate in
such Registration based on the relative number of Registrable Securities of such
class then held by each such holder (provided that any securities thereby
allocated to a holder that exceed such holder's request shall be reallocated
among the remaining requesting holders in like manner) and (iii) third, and only
if all of the Registrable Securities referred to in clause (ii) have been
included in such Registration, any other securities eligible for inclusion in
such Registration.
2.4. Black-out Periods
(a) Black-out Periods for Holders. In the event of a Company Public Sale of
the Company's equity securities in an Underwritten Offering, the holders of
Registrable Securities agree, if requested by the managing underwriter or
underwriters in such Underwritten Offering, not to effect any public sale or
distribution of any securities (except, in each case, as part of the applicable
Registration, if permitted) that are the same as or similar to those being
Registered in connection with such Company Public Sale, or any securities
convertible into or exchangeable or exercisable for such securities, during the
period beginning 7 days before, and ending 90 days (or such lesser period as may
be permitted by the Company or such managing underwriter or underwriters) after,
the effective date of the Registration Statement filed in connection with such
Registration, to the extent timely notified in writing by the Company or the
managing underwriter or underwriters.
(b) Black-out Period for the Company and Others. In the case of a
Registration of Registrable Securities pursuant to Section 2.1 or 2.2 for an
Underwritten Offering, the Company agrees, if requested by the holders of a
majority of a class of Registrable Securities to be included in such
Registration or the managing underwriter or underwriters, not to effect any
public sale or distribution of any securities which are the same as or similar
to those being Registered, or any securities convertible into or exchangeable or
exercisable for such securities, during the period beginning 7 days before, and
ending 90 days (or such lesser period as may be permitted by such holders or
such managing underwriter or underwriters) after, the effective date of the
Registration Statement filed in connection with such Registration (or, in the
case of an offering under a Shelf Registration Statement, the date of the
closing under the underwriting agreement in connection therewith), to the extent
timely notified in writing by a holder of Registrable Securities covered by such
Registration Statement or the managing underwriter or underwriters.
Notwithstanding the foregoing, the Company may effect a public sale or
distribution of securities of the type described above and during the periods
described above if such sale or distribution is made pursuant to Registrations
on Form S-4 or S-8 or any successor form to such Forms or as part of any
Registration of securities for offering and sale to employees or directors of
the Company pursuant to any employee stock plan or other employee benefit plan
arrangement. The Company agrees to use its best efforts to obtain from each
holder of restricted securities of the Company which securities are the same as
or similar to the Registrable Securities being Registered, or any restricted
securities convertible into or exchangeable or exercisable for any of such
securities, an agreement not to effect any public sale or distribution of such
securities during any such period referred to in this paragraph, except as part
of any such Registration, if permitted. Without limiting the foregoing (but
subject to Section 2.7), if after the date hereof the Company grants any Person
(other than a holder of Registrable Securities) any rights to demand or
participate in a Registration, the Company agrees that the agreement with
respect thereto shall include such Person's agreement to comply with this
Section as if it were the Company hereunder.
2.5. Registration Procedures.
(a) In connection with the Company's Registration obligations under
Sections 2.1, 2.2 and 2.3 hereof, the Company will use its best efforts to
effect such Registration to permit the sale of such Registrable Securities in
accordance with the intended method or methods of distribution thereof as
expeditiously as reasonably practicable, and in connection therewith the Company
will:
(i) prepare the required Registration Statement including all exhibits and
financial statements required under the Securities Act to be filed therewith,
and before filing a Registration Statement or Prospectus, or any amendments or
supplements thereto, (x) furnish to the underwriters, if any, and to the holders
of the Registrable Securities covered by such Registration Statement, copies of
all documents prepared to be filed, which documents will be subject to the
review of such underwriters and such holders and their respective counsel and
(y) except in the case of a Registration under Section 2.3, not file any
Registration Statement or Prospectus or amendments or supplements thereto to
which the holders of a majority of any class of Registrable Securities covered
by such Registration Statement or the underwriters, if any, shall reasonably
object;
(ii) prepare and file with the SEC such amendments and post-effective
amendments to such Registration Statement and supplements to the Prospectus as
may be (x) reasonably requested by the holders of a majority of any class of
participating Registrable Securities, (y) reasonably requested by any
participating holder (to the extent such request relates to information relating
to such holder), or (z) necessary to keep such Registration effective for the
period of time required by this Agreement;
(iii) notify the participating holders of Registrable Securities and the
managing underwriter or underwriters, if any, and (if requested) confirm such
advice in writing and provide copies of the relevant documents, as soon as
reasonably practicable after notice thereof is received by the Company (i) when
the applicable Registration Statement or any amendment thereto has been filed or
becomes effective, when the applicable Prospectus or any amendment or supplement
to such Prospectus has been filed, (ii) of any written comments by the SEC or
any request by the SEC or any other federal or state governmental authority for
amendments or supplements to such Registration Statement or such Prospectus or
for additional information, (iii) of the issuance by the SEC of any stop order
suspending the effectiveness of such Registration Statement or any order
preventing or suspending the use of any preliminary or final Prospectus or the
initiation or threatening of any proceedings for such purposes, (iv) if, at any
time, the representations and warranties of the Company in any applicable
underwriting agreement cease to be true and correct and in all material
respects, and (v) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Registrable Securities for
offering or sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose;
(iv) promptly notify each selling holder of Registrable Securities and the
managing underwriter or underwriters, if any, when the Company becomes aware of
the happening of any event as a result of which the applicable Registration
Statement or the Prospectus included in such Registration Statement (as then in
effect) contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein (in the case of such
Prospectus and any preliminary Prospectus, in light of the circumstances under
which they were made) not misleading or, if for any other reason it shall be
necessary during such time period to amend or supplement such Registration
Statement or Prospectus in order to comply with the Securities Act and, in
either case as promptly as reasonably practicable thereafter, prepare and file
with the SEC, and furnish without charge to the selling holders and the managing
underwriter or underwriters, if any, an amendment or supplement to such
Registration Statement or Prospectus which will correct such statement or
omission or effect such compliance;
(v) use its best efforts to prevent or obtain the withdrawal of any stop
order or other order suspending the use of any preliminary or final Prospectus;
(vi) promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriter or underwriters and the
holders of a majority of any class of Registrable Securities being sold agree
should be included therein relating to the plan of distribution with respect to
such Registrable Securities; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as reasonably practicable after
being notified of the matters to be incorporated in such Prospectus supplement
or post-effective amendment;
(vii) furnish to each selling holder of Registrable Securities and each
underwriter, if any, without charge, as many conformed copies as such holder or
underwriter may reasonably request of the applicable Registration Statement and
any amendment or post-effective amendment thereto, including financial
statements and schedules, all documents incorporated therein by reference and
all exhibits (including those incorporated by reference);
(viii) deliver to each selling holder of Registrable Securities and each
underwriter, if any, without charge, as many copies of the applicable Prospectus
(including each preliminary prospectus) and any amendment or supplement thereto
as such holder or underwriter may reasonably request (it being understood that
the Company consents to the use of such Prospectus or any amendment or
supplement thereto by each of the selling holders of Registrable Securities and
the underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or supplement
thereto) and such other documents as such selling holder or underwriter may
reasonably request in order to facilitate the disposition of the Registrable
Securities by such holder or underwriter;
(ix) on or prior to the date on which the applicable Registration Statement
is declared effective, use its reasonable best efforts to register or qualify,
and cooperate with the selling holders of Registrable Securities, the managing
underwriter or underwriters, if any, and their respective counsel, in connection
with the registration or qualification of such Registrable Securities for offer
and sale under the securities or "Blue Sky" laws of each state and other
jurisdiction of the United States as any such selling holder or managing
underwriter or underwriters, if any, or their respective counsel reasonably
request in writing and do any and all other acts or things reasonably necessary
or advisable to keep such registration or qualification in effect for so long as
such Registration Statement remains in effect and so as to permit the
continuance of sales and dealings in such jurisdictions for as long as may be
necessary to complete the distribution of the Registrable Securities covered by
the Registration Statement, provided that the Company will not be required to
qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to taxation or general
service of process in any such jurisdiction where it is not then so subject;
(x) cooperate with the selling holders of Registrable Securities and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold and not bearing any restrictive legends;
(xi) use its best efforts to cause the Registrable Securities covered by
the applicable Registration Statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof or the underwriter or underwriters, if any, to
consummate the disposition of such Registrable Securities;
(xii) not later than the effective date of the applicable Registration
Statement, provide a CUSIP number for all Registrable Securities and provide the
applicable transfer agent with printed certificates for the Registrable
Securities which are in a form eligible for deposit with The Depository Trust
Company;
(xiii) obtain for delivery to the holders of Registrable Securities being
registered and to the underwriter or underwriters, if any, an opinion or
opinions from counsel for the Company dated the effective date of the
Registration Statement or, in the event of an Underwritten Offering, the date of
the closing under the underwriting agreement, in customary form, scope and
substance, which counsel and opinions shall be reasonably satisfactory to such
holders or underwriters, as the case may be, and their respective counsel;
(xiv) in the case of an Underwritten Offering, obtain for delivery to the
Company and the managing underwriter or underwriters, with copies to the holders
of Registrable Securities included in such Registration, a cold comfort letter
from the Company's independent certified public accountants in customary form
and covering such matters of the type customarily covered by cold comfort
letters as the managing underwriter or underwriters reasonably request, dated
the date of execution of the underwriting agreement and brought down to the
closing under the underwriting agreement;
(xv) cooperate with each seller of Registrable Securities and each
underwriter, if any, participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings required
to be made with the NASD;
(xvi) use its reasonable best efforts to comply with all applicable rules
and regulations of the SEC and make generally available to its security holders,
as soon as reasonably practicable (but not more than 15 months) after the
effective date of the applicable Registration Statement, an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act and the rules
and regulations promulgated thereunder;
(xvii) provide and cause to be maintained a transfer agent and registrar
for all Registrable Securities covered by the applicable Registration Statement
from and after a date not later than the effective date of such Registration
Statement;
(xviii) cause all Registrable Securities covered by the applicable
Registration Statement to be listed on each securities exchange on which any of
the Company's securities are then listed or quoted and on each inter-dealer
quotation system on which any of the Company's securities are then quoted;
(xix) make available upon reasonable notice at reasonable times and for
reasonable periods for inspection by a representative appointed by the majority
of the holders of each class of Registrable Securities covered by the applicable
Registration Statement, by any underwriter participating in any disposition to
be effected pursuant to such Registration Statement and by any attorney,
accountant or other agent retained by such holders or any such underwriter, all
pertinent financial and other records, pertinent corporate documents and
properties of the Company, and cause all of the Company's officers, directors
and employees and the independent public accountants who have certified its
financial statements to make themselves available to discuss the business of the
Company and to supply all information reasonably requested by any such Person in
connection with such Registration Statement as shall be necessary to enable them
to exercise their due diligence responsibility; and
(xx) in the case of an Underwritten Offering, cause the senior executive
officers of the Company to participate in the customary "road show"
presentations that may be reasonably requested by the managing underwriter or
underwriters in any such Underwritten Offering and otherwise to facilitate,
cooperate with, and participate in each proposed offering contemplated herein
and customary selling efforts related thereto.
(b) The Company may require each seller of Registrable Securities as to
which any Registration is being effected to furnish to the Company such
information regarding the distribution of such securities and such other
information relating to such holder and its ownership of Registrable Securities
as the Company may from time to time reasonably request in writing. Each holder
of Registrable Securities agrees to furnish such information to the Company and
to cooperate with the Company as reasonably necessary to enable the Company to
comply with the provisions of this Agreement.
(c) Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 2.5(a)(iv) hereof, such
holder will forthwith discontinue disposition of Registrable Securities pursuant
to such Registration Statement until such holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 2.5(a)(iv) hereof, or
until such holder is advised in writing by the Company that the use of the
Prospectus may be resumed, and if so directed by the Company, such holder will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice. In the event the Company shall give any such notice, the period during
which the applicable Registration Statement is required to be maintained
effective shall be extended by the number of days during the period from and
including the date of the giving of such notice to and including the date when
each seller of Registrable Securities covered by such Registration Statement
either receives the copies of the supplemented or amended Prospectus
contemplated by Section 2.5(a)(iv) hereof or is advised in writing by the
Company that the use of the Prospectus may be resumed.
(d) Holders may seek to register different types of Registrable Securities
and different classes of the same type of Registrable Securities simultaneously
and the Company shall use its best efforts to effect such Registration and sale
in accordance with the intended method or methods of disposition specified by
such holders.
2.6. Underwritten Offerings.
(a) Underwriting Agreements. If requested by the underwriters for any
Underwritten Offering requested by holders of Registrable Securities pursuant to
a Registration under Section 2.1 or Section 2.2, the Company shall enter into an
underwriting agreement with such underwriters for such offering, such agreement
to be reasonably satisfactory in substance and form to the Company, holders of a
majority of each class of the Registrable Securities to be included in such
Underwritten Offering, and the underwriters. Such agreement shall contain such
representations and warranties by the Company and such other terms as are
generally prevailing in agreements of that type, including, without limitation,
indemnities no less favorable to the recipient thereof than those provided in
Section 2.9. The holders of any Registrable Securities to be included in any
Underwritten Offering by such underwriters shall enter into such underwriting
agreement at the request of the Company. All of the representations and
warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters shall also be made to and for the benefit of
such holders and any or all of the conditions precedent to the obligations of
such underwriters under such underwriting agreement shall be conditions
precedent to the obligations of such holders. No holder shall be required in any
such underwriting agreement to make any representations or warranties to, or
agreements with, the Company or the underwriters other than representations,
warranties or agreements regarding such holder, such holder's Registrable
Securities, such holder's intended method of distribution and any
representations required by law.
(b) Participation in Underwritten Registrations. No Person may participate
in any Underwritten Offering hereunder unless such Person (i) agrees to sell
such Person's securities on the basis provided in any underwriting arrangements
approved by the Persons entitled to approve such 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.
2.7. No Inconsistent Agreements; Additional Rights. The Company will not
hereafter enter into, and is not currently a party to, any agreement with
respect to its securities which is inconsistent with the rights granted to the
holders of Registrable Securities by this Agreement.
2.8. Registration Expenses.
Expenses Paid by Company. All expenses incident to the Company's
performance of or compliance with this Agreement will be paid by the Company,
including, without limitation, (i) all registration and filing fees, and any
other fees and expenses associated with filings required to be made with the SEC
or the NASD, (ii) all fees and expenses in connection with compliance with state
securities or "Blue Sky" laws, (iii) all printing, duplicating, word processing,
messenger, telephone, facsimile and delivery expenses (including expenses of
printing certificates for the Registrable Securities in a form eligible for
deposit with The Depository Trust Company and of printing prospectuses), (iv)
all fees and disbursements of counsel for the Company and of all independent
certified public accountants of the Company (including the expenses of any
special audit and cold comfort letters required by or incident to such
performance), (v) Securities Act liability insurance or similar insurance if the
Company so desires or the underwriters so require in accordance with
then-customary underwriting practice, (vi) all fees and expenses incurred in
connection with the listing of the Registrable Securities on any securities
exchange or quotation of the Registrable Securities on any inter-dealer
quotation system, (vii) all applicable rating agency fees with respect to the
Registrable Securities, (viii) all reasonable fees and disbursements of one law
firm or other counsel selected by the holders of a majority of the Registrable
Securities being registered, (ix) all fees and expenses of one firm of
accountants selected by the holders of a majority of the Registrable Securities
being registered, (x) any reasonable fees and disbursements of underwriters
customarily paid by issuers or sellers of securities, (xi) all fees and expenses
of any special experts or other Persons retained by the Company in connection
with any Registration, and (xii) all of the Company's internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties). All such expenses are referred
to herein as "Registration Expenses." The Company shall not be required to pay
any fees and disbursements of underwriters not customarily paid by the issuers
of securities, including underwriting discounts and commissions and transfer
taxes, if any, attributable to the sale of Registrable Securities.
2.9. Indemnification.
(a) Indemnification by Company. The Company agrees to indemnify and hold
harmless, to the full extent permitted by law, each holder of Registrable
Securities, its Affiliates and their respective officers, directors,
shareholders, employees, advisors, and agents and each Person who controls
(within the meaning of the Securities Act or the Exchange Act) such Persons from
and against any and all losses, claims, damages, liabilities (or actions or
proceedings in respect thereof, whether or not such indemnified party is a party
thereto) and expenses, joint or several (including reasonable costs of
investigation and legal expenses) (each, a "Loss" and collectively "Losses")
arising out of or based upon (i) any untrue or alleged untrue statement of a
material fact contained in any Registration Statement under which such
Registrable Securities were Registered under the Securities Act (including any
final, preliminary or summary Prospectus contained therein or any amendment
thereof or supplement thereto or any documents incorporated by reference
therein), or (ii) any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
(in the case of a Prospectus or preliminary Prospectus, in light of the
circumstances under which they were made) not misleading; provided, however,
that the Company shall not be liable to any particular indemnified party in any
such case to the extent that any such Loss arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any such Registration Statement in reliance upon and in conformity with
written information furnished to the Company by such indemnified party expressly
for use in the preparation thereof. This indemnity shall be in addition to any
liability the Company may otherwise have. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of such
holder or any indemnified party and shall survive the transfer of such
securities by such holder. The Company will also indemnify underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution, their officers and directors and each Person
who controls such Persons (within the meaning of the Securities Act and the
Exchange Act) to the same extent as provided above with respect to the
indemnification of the indemnified parties.
(b) Indemnification by the Selling Holder of Registrable Securities. Each
selling holder of Registrable Securities agrees (severally and not jointly) to
indemnify and hold harmless, to the full extent permitted by law, the Company,
its directors and officers and each Person who controls the Company (within the
meaning of the Securities Act and the Exchange Act) from and against any Losses
resulting from any untrue statement of a material fact or any omission of a
material fact required to be stated in the Registration Statement under which
such Registrable Securities were Registered under the Securities Act (including
any final, preliminary or summary Prospectus contained therein or any amendment
thereof or supplement thereto or any documents incorporated by reference
therein), or necessary to make the statements therein (in the case of a
Prospectus or preliminary Prospectus, in light of the circumstances under which
they were made) not misleading, to the extent, but only to the extent, that such
untrue statement or omission is contained in any information furnished in
writing by such selling holder to the Company specifically for inclusion in such
Registration Statement and has not been corrected in a subsequent writing prior
to or concurrently with the sale of the Registrable Securities to the Person
asserting such loss, claim, damage, liability or expense. In no event shall the
liability of any selling holder of Registrable Securities hereunder be greater
in amount than the dollar amount of the proceeds received by such holder under
the sale of the Registrable Securities giving rise to such indemnification
obligation. The Company shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, to the same extent as provided
above (with appropriate modification) with respect to information so furnished
in writing by such Persons specifically for inclusion in any Prospectus or
Registration Statement. Each holder also shall indemnify any underwriters of the
Registrable Securities, their officers and directors and each person who
controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the
Company.
(c) Conduct of Indemnification Proceedings. Any Person entitled to
indemnification hereunder will (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
(provided, that any delay or failure to so notify the indemnifying party shall
relieve the indemnifying party of its obligations hereunder only to the extent,
if at all, that it is actually and materially prejudiced by reason of such delay
or failure) and (ii) permit such indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to the indemnified party;
provided, however, that any Person entitled to indemnification hereunder shall
have the right to select and employ separate counsel and to participate in the
defense of such claim, but the fees and expenses of such counsel shall be at the
expense of such Person unless (i) the indemnifying party has agreed in writing
to pay such fees or expenses, (ii) the indemnifying party shall have failed to
assume the defense of such claim within a reasonable time after receipt of
notice of such claim from the Person entitled to indemnification hereunder and
employ counsel reasonably satisfactory to such Person, (iii) the indemnified
party has reasonably concluded (based on advice of counsel) that there may be
legal defenses available to it or other indemnified parties that are different
from or in addition to those available to the indemnifying party, or (iv) in the
reasonable judgment of any such Person, based upon advice of its counsel, a
conflict of interest may exist between such Person and the indemnifying party
with respect to such claims (in which case, if the Person notifies the
indemnifying party in writing that such Person elects to employ separate counsel
at the expense of the indemnifying party, the indemnifying party shall not have
the right to assume the defense of such claim on behalf of such Person). If such
defense is not assumed by the indemnifying party, the indemnifying party will
not be subject to any liability for any settlement made without its consent, but
such consent may not be unreasonably withheld; provided, that an indemnifying
party shall not be required to consent to any settlement involving the
imposition of equitable remedies or involving the imposition of any material
obligations on such indemnifying party other than financial obligations for
which such indemnified party will be indemnified hereunder. If the indemnifying
party assumes the defense, the indemnifying party shall not have the right to
settle such action without the consent of the indemnified party. No indemnifying
party shall consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of an unconditional release from all
liability in respect to such claim or litigation. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to
practice in such jurisdiction at any one time from all such indemnified party or
parties unless (x) the employment of more than one counsel has been authorized
in writing by the indemnified party or parties, (y) an indemnified party has
reasonably concluded (based on advice of counsel) that there may be legal
defenses available to it that are different from or in addition to those
available to the other indemnified parties or (z) a conflict or potential
conflict exists or may exist (based on advice of counsel to an indemnified
party) between such indemnified party and the other indemnified parties, in each
of which cases the indemnifying party shall be obligated to pay the reasonable
fees and expenses of such additional counsel or counsels.
(d) Contribution. If for any reason the indemnification provided for in
paragraphs (a) and (b) of this Section 2.9 is unavailable to an indemnified
party or insufficient to hold it harmless as contemplated by paragraphs (a) and
(b) of this Section 2.9, then the indemnifying party shall contribute to the
amount paid or payable by the indemnified party as a result of such Loss in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and the indemnified party on the other. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the indemnifying
party or the indemnified party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. Notwithstanding anything in this Section 2.9(d) to the
contrary, no indemnifying party (other than the Company) shall be required
pursuant to this Section 2.9(d) to contribute any amount in excess of the amount
by which the net proceeds received by such indemnifying party from the sale of
Registrable Securities in the offering to which the Losses of the indemnified
parties relate exceeds the amount of any damages which such indemnifying party
has otherwise been required to pay by reason of such untrue statement or
omission. The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 2.9(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation. If indemnification is
available under this Section 2.9, the indemnifying parties shall indemnify each
indemnified party to the full extent provided in Sections 2.9(a) and 2.9(b)
hereof without regard to the relative fault of said indemnifying parties or
indemnified party.
2.10. Rules 144 and 144A. The Company covenants that it will file the
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the SEC thereunder (or, if the Company
is not required to file such reports, it will, upon the request of any holder of
Registrable Securities, make publicly available such necessary information for
so long as necessary to permit sales pursuant to Rules 144, 144A or Regulation S
under the Securities Act), and it will take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Registrable Securities without
Registration under the Securities Act within the limitation of the exemptions
provided by (i) Rules 144, 144A or Regulation S under the Securities Act, as
such Rules may be amended from time to time, or (ii) any similar rule or
regulation hereafter adopted by the SEC. Upon the request of any holder of
Registrable Securities, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements and, if not, the
specifics thereof.
SECTION 3. MISCELLANEOUS.
3.1. Term. This Agreement shall terminate upon the expiration of the Shelf
Period, except for the provisions of Sections 2.9 and 2.10 and all of this
Section 3, which shall survive any such termination.
3.2. Injunctive Relief. It is hereby agreed and acknowledged that it will
be impossible to measure in money the damage that would be suffered if the
parties fail to comply with any of the obligations herein imposed on them and
that in the event of any such failure, an aggrieved Person will be irreparably
damaged and will not have an adequate remedy at law. Any such Person shall,
therefore, be entitled (in addition to any other remedy to which it may be
entitled in law or in equity) to injunctive relief, including, without
limitation, specific performance, to enforce such obligations, and if any action
should be brought in equity to enforce any of the provisions of this Agreement,
none of the parties hereto shall raise the defense that there is an adequate
remedy at law.
3.3. Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Agreement or where any provision hereof is validly asserted as
a defense, the successful party shall, to the extent permitted by applicable
law, be entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
3.4. Notices. All notices, other communications or documents provided for
or permitted to be given hereunder, shall be made in writing and shall be given
either personally by hand-delivery, by facsimile transmission, by mailing the
same in a sealed envelope, registered first-class mail, postage prepaid, return
receipt requested, or by air courier guaranteeing overnight delivery:
(a) if to the Company:
Magellan Health Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
with copies to:
King & Spalding
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(b) if to the Investor:
TPG Magellan LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with copies to:
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Each holder, by written notice given to the Company in accordance with this
Section 3.4 may change the address to which notices, other communications or
documents are to be sent to such holder. All notices, other communications or
documents shall be deemed to have been duly given: (i) at the time delivered by
hand, if personally delivered; (ii) when receipt is acknowledged in writing by
addressee, if by facsimile transmission; (iii) five business days after being
deposited in the mail, postage prepaid, if mailed by first class mail; and (iv)
on the first business day with respect to which a reputable air courier
guarantees delivery; provided, however, that notices of a change of address
shall be effective only upon receipt.
3.5. Successors, Assigns and Transferees. (a) The registration rights of
any holder under this Agreement with respect to any Registrable Securities may
be transferred and assigned, provided that, other than an assignment to the
Investor or an Affiliate of the Investor, a Designated Purchaser or an Affiliate
of a Designated Purchaser, no such assignment shall be binding upon or obligate
the Company to any such assignee unless and until the Company shall have
received notice of such assignment as herein provided and a written agreement of
the assignee to be bound by the provisions of this Agreement.
(b) This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto, and their respective successors and permitted assigns.
Whether or not any express assignment shall have been made, the provisions of
this Agreement which are for the benefit of the parties hereto other than the
Company shall also be for the benefit of and enforceable by any subsequent
holder of Registrable Securities, subject to the provisions contained herein.
3.6. Governing Law; Service of Process; Consent to Jurisdiction. (a) THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WITHIN THE
STATE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
(b) To the fullest extent permitted by applicable law, each party hereto
(i) agrees that any claim, action or proceeding by such party seeking any relief
whatsoever arising out of, or in connection with, this Agreement or the
transactions contemplated hereby shall be brought only in the United States
District Court for the Southern District of New York and in any New York State
court located in the Borough of Manhattan and not in any other State or Federal
court in the United States of America or any court in any other country, (ii)
agrees to submit to the exclusive jurisdiction of such courts located in the
State of New York for purposes of all legal proceedings arising out of, or in
connection with, this Agreement or the transactions contemplated hereby, and
(iii) irrevocably waives any objection which it may now or hereafter have to the
laying of the venue of any such proceeding brought in such a court and any claim
that any such proceeding brought in such a court has been brought in an
inconvenient forum.
3.7. Headings. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
3.8. Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law in any jurisdiction, such invalidity,
illegality or unenforceability will not affect any other provision or portion of
any provision in such jurisdiction, and this agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision or portion of any provision had never been contained
therein.
3.9. Amendment; Waiver.
(a) This Agreement may not be amended or modified and waivers and consents
to departures from the provisions hereof may not be given, except by an
instrument or instruments in writing making specific reference to this Agreement
and signed by the Company, the holders of a majority of Registrable Securities
then outstanding and, so long as it is a holder, the Investor. Each holder of
any Registrable Securities at the time or thereafter outstanding shall be bound
by any amendment, modification, waiver or consent authorized by this Section
3.9(a), whether or not such Registrable Securities shall have been marked
accordingly.
(b) The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a further or continuing waiver of
such breach or as a waiver of any other or subsequent breach. Except as
otherwise expressly provided herein, no failure on the part of any party to
exercise, and no delay in exercising, any right, power or remedy hereunder, or
otherwise available in respect hereof at law or in equity, shall operate as a
waiver thereof, nor shall any single or partial exercise of such right, power or
remedy by such party preclude any other or further exercise thereof or the
exercise of any other right, power or remedy.
3.10. Counterparts. This Agreement may be executed in any number of
separate counterparts and by the parties hereto in separate counterparts each of
which when so executed shall be deemed to be an original and all of which
together shall constitute one and the same agreement.
3.11. Effectiveness. The provisions of this Agreement shall take effect
upon the occurrence of the Closing (as such term is defined in the Investment
Agreement) without further action by or on behalf of any party hereto, and other
than this Section 3.11 shall have no force or effect prior to the Closing. This
Agreement shall terminate and be of no further force and effect upon the
termination of the Investment Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the date first written above.
MAGELLAN HEALTH SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President and Chief
Financial Officer
TPG MAGELLAN LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
