As filed with the Securities and Exchange Commission on
April 1, 1998.
Registration Statement No. 33-__________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MAGELLAN HEALTH SERVICES, INC.
(Exact name of registrant as specified in its charter)
Delaware 58-1076937
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
3414 Peachtree Road, N.E., Suite 1400
Atlanta, GA 30326
(Address of principal executive offices)
(Zip Code)
MAGELLAN HEALTH SERVICES, INC. 1997 STOCK OPTION PLAN
(Full title of the plans)
DAVID J. HANSEN
Vice President and General Counsel
Magellan Health Services, Inc.
3414 Peachtree Road, N.E., Suite 1400
Atlanta, GA 30326
(Name and address of agent for service)
(404) 841-9200
(Telephone number, including area code, of agent for service)
Copies to:
HOWARD A. MCLURE
Senior Vice President and Controller
Magellan Health Services, Inc.
3414 Peachtree Road, N.E., Suite 1400
Atlanta, GA 30326
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CALCULATION OF REGISTRATION FEE
(See next page)
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(Continued from previous page)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share (1) price (2) fee
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Common Stock, 1,500,000 $25.49 $38,230,167.73 $11,277.90
par value
$0.25 per share
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(1) In addition, pursuant to Rule 416 (a), this Registration Statement also
covers an indeterminate number of additional shares that may be offered
and issued in accordance with the terms of the 1997 Stock Option Plan
to prevent dilution from stock splits and stock dividends on similar
transactions.
(2) Shares of Common Stock being registered with respect to the 1997 Stock
Option Plan consist of 1,171,133 shares having a weighted average
exercise price of $25.72 per share and 328,867 shares for which the
offering price is not known. Pursuant to Rule 457(h)(1), the aggregate
offering price of the 328,867 shares for which the offering price is
not known has been calculated pursuant to Rule 457(c) on the basis of
the average of the high and low sales prices of the Common Stock on the
New York Stock Exchange on March 25, 1998.
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Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by Magellan Health Services,
Inc. (the "Registrant") with the Securities and Exchange Commission hereby are
incorporated by reference into this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
September 30, 1997;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended December 31, 1997;
(c) The Registrant's Current Reports on Form 8-K, dated December 17, 1997
and February 27, 1998;
(d) The Registrant's Proxy Statement on Schedule 14A filed on January 9,
1998;
(e) All reports filed by the Registrant pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") since September 30, 1996; and
(f) The description of the Registrant's Common Stock, par value $0.25 per
share, contained in the Registrant's registration statement on Form
8-A, effective on December 27, 1996 under the Exchange Act, including
any amendment or report filed for the purpose of updating such
description.
All documents filed by the Registrant subsequent to the date of this
Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act and prior to the filing of a post-effective amendment which
indicates that all securities offered hereunder have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents.
Item 4. Description of Securities.
Inapplicable.
Item 5. Interests of Named Experts and Counsel.
Inapplicable.
Item 6. Indemnification of Directors and Officers.
The Registrant is a Delaware corporation. Section 145 of the Delaware
General Corporation Law (the "DGCL") provides that a Delaware corporation has
the power to indemnify its officers and directors in certain circumstances.
Subsection (a) of Section 145 of the DGCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of his service as director, officer, employee or agent of the
corporation, or his service, at the corporation's request, as a director,
officer, employee or agent of another corporation or enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with such action, suit
or proceeding provided that such director or officer acted in good faith and in
a manner reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any
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criminal action or proceeding, provided that such director or officer had no
reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
director or officer, or former director or officer, who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that such person acted in any of the capacities set forth
above, against expenses (including attorneys' fees) actually and reasonably
incurred in connection with the defense or settlement of such action or suit
provided that such director or officer acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification may be made in respect of any claim,
issue or matter as to which such director or officer shall have been adjudged to
be liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such director or officer is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem proper.
Section 145 further provides that, to the extent a director or officer
of a corporation has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) or (b) or in the defense of any claim,
issue or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith; provided that indemnification provided for by Section 145 or granted
pursuant thereto shall not be deemed exclusive of any other rights to which the
indemnified party may be entitled; and empowers the corporation to purchase and
maintain insurance on behalf of a director or officer of the corporation against
any liability asserted against him or incurred by him in any such capacity or
arising out of his status as such whether or not the corporation would have the
power to indemnify him against such liabilities under Section 145.
Article VII of the Bylaws of the Registrant provides in substance that
the Registrant shall indemnify directors and officers against all liability and
related expenses incurred in connection with the affairs of the Registrant if:
(a), in the case of actions not by or in the right of the Registrant, the
director or officer acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Registrant, and (with
respect to a criminal proceeding) had no reasonable cause to believe his conduct
was unlawful; and (b), in the case of actions by or in the right of the
Registrant, the director or officer acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Registrant, provided that no indemnification shall be made for a claim as to
which the director or officer is adjudged liable for negligence or misconduct
unless (and only to the extent that) an appropriate court determines that, in
view of all the circumstances, such person is fairly and reasonably entitled to
indemnity.
In addition, Section 102(b)(7) of the DGCL permits Delaware
corporations to include a provision in their certificates of incorporation
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that such provisions shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or that involve intentional misconduct or a knowing violation of law,
(iii) for unlawful payment of dividends or other unlawful distributions, or (iv)
for any transactions from which the director derived an improper personal
benefit. Article Twelfth of the Registrant's Restated Certificate of
Incorporation contains such a provision.
The Registrant maintains Directors' and Officers' liability insurance
with various insurance providers in the aggregate amount of $80,000,000.
Item 7. Exemption from Registration Claimed.
Inapplicable.
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Item 8. Exhibits.
Exhibit Description
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4.1 Restated Certificate of Incorporation of the Registrant, as filed in
Delaware on October 16, 1992, which was filed as Exhibit 3(a) to the
Registrant's Annual Report on Form 10-K for the year ended September
30, 1992, and is incorporated herein by reference.
4.2 Certificate of Ownership and Merger merging Magellan Health Services,
Inc. (a Delaware corporation) into Charter Medical Corporation (a
Delaware corporation), as filed in Delaware on December 21, 1995,
which was filed as Exhibit 3(c) to the Registrant's Annual Report on
Form 10-K for the year ended September 30, 1995, and is incorporated
herein by reference.
4.3 Form of Share Purchase Rights Plan among the Registrant and First
Union National Bank of North Carolina, N.A., which was filed as
Exhibit 2.5 to the Registrant's Registration Statement on Form 8-A
dated July 6, 1992, and is incorporated herein by reference.
4.4 Stockholders' Agreement, dated December 13, 1995, among Green Spring
Health Services, Inc., Blue Cross and Blue Shield of New Jersey, Inc.,
Health Care Service Corporation, Independence Blue Cross, Pierce
County Medical Bureau, Inc. and the Registrant, which was filed as
Exhibit 4(d) to the Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended December 31, 1995, and is incorporated herein
by reference.
4.5 First Amendment to Stockholder's Agreement, dated February 28, 1997
among Green Spring Health Services, Inc., Blue Cross and Blue Shield
of New Jersey, Inc., Healthcare Service Corporation, Independence Blue
Cross, Pierce County Medical Bureau, Inc. and the Company, which was
filed as Exhibit 4(af) to the Company's Annual Report on Form 10-K for
the year ended September 30, 1997, and is incorporated herein by
reference.
4.6 Exchange Agreement, dated December 13, 1995, among Blue Cross and Blue
Shield of New Jersey, Inc., Health Care Service Corporation,
Independence Blue Cross, Pierce County Medical Bureau, Inc. and the
Registrant, which was filed as Exhibit 4(e) to the Registrant's
Quarterly Report on Form 10-Q for the quarterly period ended December
31, 1995, and is incorporated herein by reference.
4.7 Stock and Warrant Purchase Agreement, dated December 22, 1995, between
the Registrant and Richard E. Rainwater, which was filed as Exhibit
4(f) to the Registrant's quarterly report on Form 10-Q for the
quarterly period ended December 31, 1995, and is incorporated herein
by reference.
4.8 Amendment No. 1 to Stock and Warrant Purchase Agreement, dated January
25, 1996, between the Registrant and Rainwater-Magellan Holdings,
L.P., which was filed as Exhibit 4.7 to the Registrant's Registration
Statement on Form S-3 dated February 26, 1996, and incorporated herein
by reference.
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4.9 Warrant Purchase Agreement, dated January 29, 1997, between the
Company and Crescent Real Estate Equities Limited Partnership which
was filed as Exhibit 4(a) to the Company's current report on Form 8-K,
which was filed on April 23, 1997, and is incorporated herein by
reference.
4.10 Amendment No. 1, dated June 17, 1997, to the Warrant Purchase
Agreement, dated January 29, 1997, between the Company and Crescent
Real Estate Equities Limited Partnership, which was filed as Exhibit
4(b) to the Company's current report on Form 8-K, which was filed on
June 30, 1997, and is incorporated herein by reference.
5.1 Opinion of David J. Hansen as to the legality of shares of Common
Stock being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of David J. Hansen (contained in opinion filed as Exhibit 5).
99.1 1997 Stock Option Plan of the Registrant, which was filed as Exhibit
10(i) to the Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 1997, and is incorporated herein by
reference.
Experts
The audited consolidated financial statements and schedule of Magellan
Health Services, Inc. and subsidiaries included in the Magellan Annual Report on
Form 10-K for the year ended September 30, 1997 incorporated by reference in
this Registration Statement have been audited by Arthur Andersen LLP,
independent public accountants, as stated in their report thereto, and are
incorporated by reference herein in reliance upon the authority of said firm as
experts in giving said report.
Future consolidated financial statements and schedules of Magellan
Health Services, Inc. and subsidiaries and the reports thereon of Arthur
Andersen LLP also will be incorporated by reference in this Registration
Statement in reliance upon the authority of that firm as experts in giving those
reports to the extent said firm has audited those financial statements and
consented to the use of their reports thereon.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section 10(a)
(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
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provided, however, that paragraphs (a)(1)(i) and
(a) (1) (ii) do not apply if the Registration
Statement is on Form S-3 or Form S-8, and the
information required to be included in a
post-effective amendment by those paragraphs is
contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Magellan
Health Services, Inc. certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Atlanta, State of Georgia, on the 31st day of
March, 1998.
MAGELLAN HEALTH SERVICES, INC.
By:/s/ Howard A. McLure
------------------------------------
Howard A. McLure
Senior Vice President and Controller
(Principal Accounting Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on March 31,
1998 in the capacities and on the date indicated.
/s/ Henry T. Harbin Date: March 31, 1998
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Henry T. Harbin
President and Chief Executive Officer
(Principal Executive Officer)
/s/ Craig L. McKnight Date: March 31, 1998
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Craig L. McKnight
Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
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/s/ Howard A. McLure Date: March 31, 1998
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Howard A. McLure
Senior Vice President and Controller
(Principal Accounting Officer)
/s/ Edwin M. Banks Date: March 31, 1998
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Edwin M. Banks
Director
/s/ G. Fred DiBona, Jr. Date: March 31, 1998
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G. Fred DiBona, Jr.
Director
/s/ Andre C. Dimitriadis Date: March 31, 1998
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Andre C. Dimitriadis
Director
/s/ A.D. Frazier, Jr. Date: March 31, 1998
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A. D. Frazier, Jr.
Director
/s/ Raymond H. Kiefer Date: March 31, 1998
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Raymond H. Kiefer
Director
/s/ Gerald L. McManis Date: March 31, 1998
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Gerald L. McManis
Director
- -------------------------------------- Date:
Daniel S. Messina -----------------------
Director
/s/ Robert W. Miller Date: March 31, 1998
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Robert W. Miller
Chairman of the Board of Directors
/s/ Darla D. Moore Date: March 31, 1998
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Darla D. Moore
Director
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/s/ Jeffrey A. Sonnenfeld Date: March 31, 1998
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Jeffrey A. Sonnenfeld
Director
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March 30, 1998
Magellan Health Services, Inc.
3414 Peachtree Road, N.E.
Suite 1400
Atlanta, Georgia 30326
Re: Form S-8 Registration Statement
-------------------------------
Ladies and Gentlemen:
I have acted as counsel for Magellan Health Services, Inc., a Delaware
corporation (the "Company"), in connection with the preparation of the
registration Statement on Form S-8 (the "Registration Statement") filed with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
relating to 1,500,000 shares of Company Common Stock, $.25 per value per share,
(the "Shares") to be offered from time to time pursuant to the Magellan Health
Services, Inc. 1997 Stock Option Plan (the "Plan").
As counsel, I have examined and relied upon such records, documents,
certificates and other instruments as in my judgement are necessary or
appropriate to form the basis for the opinions hereinafter set forth. In all
such examinations, I have assumed the genuineness of signatures on original
documents and the conformity to such original documents of all copies submitted
to me as certified, conformed or properly given and to be accurate.
Based upon the foregoing, I am of the Opinion that the Shares, when and
to the extent issued and paid for pursuant to the provisions of the Plan, will
be validly issued, fully paid and non-assessable.
Very truly yours,
/s/ David J. Hansen
----------------------------------
David J. Hansen
Vice President and General Counsel
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our reports dated
November 14, 1997 on the consolidated financial statements and schedules of
Magellan Health Services, Inc. and subsidiaries and Charter Behavioral Health
Systems, LLC and subsidiaries included in Magellan Health Services, Inc.'s
Annual Report on Form 10-K for the fiscal year ended September 30, 1997 and to
all references to our Firm included in this Registration Statement.
/s/ Arthur Andersen LLP
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Atlanta, Georgia
March 30, 1998
