- --------------------------------------------------------------------------------
OMB APPROVAL
OMB Number: 3225-0145
Expires: August 31, 1999
Estimated average burden
hours per form........14.90
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ____)*
Magellan Health Services, Inc.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $0.25 per share
- --------------------------------------------------------------------------------
(Title of Class of Securities)
559079-10-8
- --------------------------------------------------------------------------------
(CUSIP Number)
Michael A. Gerstenzang, Esq.
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
(212) 225-2000
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
July 19, 1999
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box. |_|
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss. 240.13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
CUSIP No. 559079-10-8 13D Page 2 of 126 Pages
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
TPG Advisors II, Inc.
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [_]
(b) [_]
________________________________________________________________________________
3
________________________________________________________________________________
4 SOURCE OF FUNDS*
00 - Contributions of Partners of Affiliates
________________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
8,045,333 (See Items 4 and 5.)
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
8,045,333 (See Items 4 and 5.)
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,045,333 (See Items 4 and 5.)
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.1% (See Items 4 and 5.)
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
CO
________________________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
Item 1. Security and Issuer.
This statement relates to the common stock, par value $0.25 per share (the
"Common Stock"), of Magellan Health Services, Inc., a Delaware corporation (the
"Company"), whose principal executive offices are located at 3414 Peachtree
Road, N.E., Suite 1400, Atlanta, Georgia 30326.
Item 2. Identity and Background.
This statement is filed by TPG Advisors II, Inc. ("TPG Advisors"). The
address of the principal business and office of TPG Advisors is 201 Main Street,
Suite 2420, Fort Worth, Texas 76102.
TPG Advisors is a Delaware corporation, the principal business of which is
to serve as the general partner of TPG GenPar II, L.P., a Delaware limited
partnership ("TPG GenPar"), and as the general partner of TPG 1999 Equity
Partners, L.P., a Delaware limited partnership ("TPG 1999"), which is engaged in
making investments in which TPG (as defined below) invests. The principal
business of TPG GenPar to serve as the general partner of TPG Partners II, L.P.,
a Delaware limited partnership ("TPG"), TPG Parallel II, L.P., a Delaware
limited partnership ("TPG Parallel"), TPG Investors II, L.P., a Delaware limited
partnership ("TPG Investors"), and other related entities engaged in making
investments in securities of public and private corporations. TPG, TPG Parallel,
TPG Investors, TPG 1999 and TPG Magellan (as defined below) are collectively
referred to herein as the "TPG Parties".
The executive officers and directors of TPG Advisors are David Bonderman
(director and President), James Coulter (director and Vice President), William
Price (director and Vice President), Richard Schifter (Vice President) and James
O'Brien (Vice President, Treasurer and Secretary), each of whom is a natural
person. No other persons control the TPG Parties, TPG GenPar or TPG Advisors.
David Bonderman has his business address at 201 Main Street, Suite 2420,
Fort Worth, Texas 76102. Mr. Bonderman's principal occupation is as a director
and President of TPG Advisors. Mr. Bonderman is a citizen of the United States.
James Coulter has his business address at 345 California Street, Suite
3300, San Francisco, California 94104. Mr. Coulter's principal occupation is as
a director and Vice President of TPG Advisors. Mr. Coulter is a citizen of the
United States.
William Price has his business address at 345 California Street, Suite
3300, San Francisco, California 94104. Mr. Price's principal occupation is as a
director and Vice President of TPG Advisors. Mr. Price is a citizen of the
United States.
Richard Schifter has his business address at 1133 Connecticut Avenue, N.W.,
Washington, D.C. 20036. Mr. Schifter's principal occupation is as a Vice
President of TPG Advisors. Mr. Schifter is a citizen of the United States.
James O'Brien has his business address at 201 Main Street, Suite 2420, Fort
Worth, Texas 76102. Mr. O'Brien's principal occupation is as a Vice President,
Secretary, and Treasurer of TPG Advisors. Mr. O'Brien is a citizen of the United
States.
During the last five years, TPG Advisors has not nor, to the best knowledge
of TPG Advisors, have TPG GenPar or the executive officers or directors of TPG
Advisors been convicted in a criminal proceeding (excluding traffic violations
or similar misdemeanors). During the last five years, TPG Advisors has not nor,
to the best knowledge of TPG Advisors, have TPG GenPar or such individuals been
a party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
As more fully described under Item 4 below, TPG Magellan LLC, a Delaware
limited liability company ("TPG Magellan"), the sole member of which is TPG, and
the Company have entered into the Investment Agreement (as defined below),
pursuant to which TPG Magellan has agreed to purchase the Preferred Stock (as
defined below) for aggregate consideration of $75,425,000 in cash. TPG Magellan
currently intends to assign its right to purchase the Preferred Stock to TPG,
TPG Parallel, TPG Investors and TPG 1999. It is currently anticipated that the
funds required for the purchase of Preferred Stock by the TPG Parties will be
obtained from general funds available to the TPG Parties and their affiliates.
The required funds will be reduced if TPG Magellan assigns to persons not
affiliated with it its right to purchase Preferred Stock as described under Item
4 below.
Item 4. Purpose of Transaction.
On July 19, 1999, TPG Magellan and the Company entered into an Investment
Agreement (the "Investment Agreement") providing for, among other things, the
purchase by TPG Magellan from the Company of (i) 59,063 shares of the Company's
Series A Cumulative Convertible Preferred Stock, no par value (the "Series A
Preferred Stock") and (ii) 16,362 shares of the Company's Series B Cumulative
Convertible Preferred Stock, no par value (the "Series B Preferred Stock" and,
together with the Series A Preferred Stock, the "Preferred Stock"). The
aggregate purchase price to be paid for the Preferred Stock by the TPG Parties
(see "Assignment of Rights" below) pursuant to the Investment Agreement is
$75,425,000 in cash.
Series A Preferred Stock. The Series A Preferred Stock will have a
liquidation preference of $1,000 per share (plus accumulated and unpaid
dividends), and will accumulate dividends at a rate of 6.50% per annum.
Dividends may be paid in cash or, subject to certain restrictions (including the
Shareholder Approval (as defined)), Common Stock. The Series A Preferred Stock
is convertible into 6,300,053 shares of Common Stock at an adjusted conversion
price of $9.375 at any time at the option of the holders or, if the trading
price of the Common Stock exceeds 200% of the adjusted conversion price over a
specified time period, at the option of the Company. The Series A Preferred
Stock will be mandatorily redeemable at a price equal to its liquidation
preference plus accrued and unpaid dividends on the tenth anniversary of its
original issuance. In addition, the shares of Series A Preferred Stock may be
exchanged in certain circumstances at the option of the Company, in whole and
not in part, for debentures having terms and provisions comparable to those of
the Series A Preferred Stock.
The Series A Preferred Stock will entitle the holders thereof to vote
together with holders of Common Stock (and any holders of shares of Series B
Preferred Stock entitled to vote) as a single class. In the aggregate, the
holders of Series A Preferred Stock will have 6,300,053 votes (representing the
number of shares of Common Stock into which the Series A Preferred Stock is
convertible).
Series B Preferred Stock. The Series B Preferred Stock will have a
liquidation preference of $1,000 per share (plus accumulated and unpaid
dividends), and will accumulate dividends at a rate of 6.50% per annum (if the
Shareholder Approval (as defined below) is received on or prior to March 5, 2000
and from and after such time as the Shareholder Approval is received) or 12.00%
(if the Shareholder Approval is not received on or prior to March 5, 2000 until
such time as the Shareholder Approval is received). The Series B Preferred Stock
will be mandatorily redeemable at a price equal to its liquidation preference
plus accrued and unpaid dividends on the tenth anniversary of its original
issuance and will be convertible into Common Stock at the option of the holders
at any time following the Shareholder Approval at an adjusted conversion price
of $9.625 (if the Shareholder Approval is received on or prior to March 5, 2000)
or $9.125 (if the Shareholder Approval is received after March 5, 2000) or, if
the trading price of the Common Stock exceeds 200% of the adjusted conversion
price over a specified time period, at the option of the Company. In addition,
the shares of Series B Preferred Stock may be exchanged in certain circumstances
at the option of the Company, in whole and not in part, for debentures having
terms and provisions comparable to those of the Series B Preferred Stock.
The Series B Preferred Stock will entitle the holders thereof to vote
together with holders of Common Stock (and any holders of shares of Series A
Preferred Stock) as a single class following the Shareholder Approval. The
holders of Series B Preferred Stock will have 1,699,948 votes (if the
Shareholder Approval is approved on or prior to March 5, 2000) or 1,794,079
votes (if the Shareholder Approval is received subsequent to March 5, 2000),
such number in either case representing the number of shares of Common Stock
into which the Series B Preferred Stock will be convertible following the
Shareholder Approval.
The Company has agreed to seek the consent of its shareholders regarding
the matters described below (the "Shareholder Approval") at its annual meeting
of shareholders to be held in 2000 and at each meeting of its shareholders
thereafter until the Shareholder Approval is obtained. Shareholders (excluding
the holders of the Series A Preferred Stock) will be asked to consent to: (i)
the convertability of the Series B Preferred Stock into Common Stock, (ii) the
vesting of voting rights in the Series B Preferred Stock and (iii) the issuance
of Common Stock in respect of accrued and unpaid dividends on the Preferred
Stock. Pending receipt of the Shareholder Approval, the purchase price for the
Series B Preferred Stock, $16,362,000, will be put into escrow. If the
Shareholder Approval is obtained on or before March 5, 2000, the shares of
Series B Preferred Stock will be issued to the TPG Parties and the escrowed
purchase price will be released to the Company. If the Shareholder Approval is
not obtained on or before March 5, 2000, the TPG Parties will have the option of
recovering the escrowed purchase price or taking the shares of Series B
Preferred Stock under the terms set forth above. If the Series B Preferred Stock
is not purchased or, if purchased without voting rights, until the Shareholder
Approval is received, the TPG Parties will own 16.5% of the voting securities of
the Company. If the Shareholder Approval is received, the TPG Parties will own
20.1% of the voting securities of the Company.
Upon a Change of Control (as defined in the Investment Agreement), the
holders of the Preferred Stock may "put" their shares to the Company at 101% of
the stated value plus accumulated and unpaid dividends.
The sale of the Preferred Stock to the TPG Parties will entitle an existing
holder of Common Stock to exercise preemptive rights with respect to the
Preferred Stock.
Governance. For so long as the TPG Parties are entitled to designate an
Investor Nominee (as defined below), the Investment Agreement provides that the
Company will cause its Board of Directors (the "Board") to consist of between 7
and 12 members, and to cause three individuals designated by the TPG Parties
(the "Investor Nominees") to be elected as directors of the Company. At each
annual meeting of the Company's shareholders following the issuance of the
Series A Preferred Stock, the Company is required to use its best efforts,
subject to the fiduciary duties of the Board, to cause the election of Investor
Nominees then up for election. In addition, each committee of the Board will be
required generally to include among its members at least one Investor Nominee.
The TPG Parties shall not be entitled to designate Investor Nominees if they
beneficially own, in the aggregate, less than 50% of their original investment.
The rights of the TPG Parties to designate and elect Investor Nominees are not
assignable to persons other than affiliates of the TPG Parties.
The terms of the Preferred Stock will provide that if the Company defaults
in its obligation to redeem shares of Preferred Stock or pay dividends payable
on the Preferred Stock when due, then, for so long as such default shall
continue, the holders of Series A Preferred Stock and, if then entitled to vote,
the Series B Preferred Stock, voting together as a single class, may elect two
additional directors to the Board of Directors. In addition, for so long as the
TPG Parties beneficially own 50% or more of their original investment, if a
default or event of default giving an acceleration right occurs under any debt
instrument of the Company pursuant to which $10,000,000 or more is outstanding
and is not cured within 75 days, the holders of the Preferred Stock shall be
entitled to elect a majority of the Board.
The Investment Agreement also contains covenants which restrict the ability
of the Company to take certain significant actions without the consent of the
TPG Parties, including the declaration or payment of dividends, purchase of its
securities, incurrence of indebtedness, major acquisitions or dispositions of
assets and certain issuances of equity securities. These restrictive covenants
will terminate at such time as the TPG Parties and their affiliates beneficially
own less than 50% of the TPG Parties' original investment.
Standstill Provisions. The Investment Agreement also provides that for a
period of two years following the purchase and sale of the Preferred Stock (the
"Standstill Period"), the TPG Parties and their affiliates will not, without the
prior approval of the Board, acquire the Company's voting stock and will not
take certain other actions relating to a change of control of the Company,
including the formation of a "group" as defined in Section 13(d) of the
Securities Exchange Act of 1934 and the solicitation of proxies. The standstill
provisions are subject to certain exceptions, including in circumstances in
which the Board has solicited the interest of a third party with respect to a
possible sale of the Company. Notwithstanding the above-described standstill
arrangements, the TPG Parties may, during the Standstill Period, acquire
additional voting securities of the Company representing up to 10% (or 15% if
the Series B Preferred Stock is not purchased) of the voting power of the
Company's voting securities provided that the TPG Parties and their affiliates
will not thereafter own in excess of 34.9% of the voting power of the
outstanding securities of the Company. The TPG Parties intend to consider
additional purchases of voting securities of the Company in compliance with
these restrictions.
Conditions to Closing. The obligations of the TPG Parties to purchase the
Preferred Stock is subject to the satisfaction and waiver of certain conditions,
including among other things the receipt of applicable regulatory approvals, the
expiration of the statutory waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act and the nonoccurrence of a Material Adverse Effect (as
defined).
Termination. The Investment Agreement may be terminated by either the TPG
Parties or the Company if: the closing of the purchase and sale of the Preferred
Stock has not occurred on or before September 30, 1999; any governmental entity
has issued a judgment, injunction, order or decree or taken other action
enjoining the transactions contemplated by the Investment Agreement; or the TPG
Parties and the Company mutually agree in writing. The Investment Agreement may
be terminated by the TPG Parties if the Company violates its covenant not to
solicit Alternative Transactions (as defined), in which case the TPG Parties
will be entitled to receive a termination fee.
Assignment of Rights. The Investment Agreement provides that TPG Magellan
may assign its rights under the Investment Agreement to its affiliates and,
prior to the closing of the sale of the Preferred Stock may assign its right to
purchase up to 49% of the Preferred Stock to nonaffiliates. TPG Magellan
presently intends to assign its rights under the Investment Agreement to TPG,
TPG Investors, TPG Parallel and TPG 1999.
Registration Rights Agreement. Concurrently with entering into the
Investment Agreement, the Company and TPG Magellan entered into a Registration
Rights Agreement dated as of July 19, 1999 (the "Registration Rights
Agreement"), pursuant to which the Company has agreed to establish a shelf
registration for the resale by the TPG Parties of the Preferred Stock and the
underlying Common Stock. In addition, the Company has granted to the TPG Parties
certain "demand" and "piggyback" registration rights with respect to the
Preferred Stock and the underlying Common Stock. These registration rights are
subject to certain customary blackout and cutback provisions, and are
accompanied by customary indemnification provisions.
General. The provisions of the Investment Agreement (including the forms of
certificates of designation with respect to the Preferred Stock attached as
exhibits thereto) and the Registration Rights Agreement are set forth in full in
those documents which are filed as Exhibits 2 and 3 to this Schedule, and which
are incorporated herein in their entirety by this reference in response to this
Item. The foregoing description of the terms and provisions of these documents
is a summary only, and is qualified in its entirety by reference to such
documents.
Subject to the restrictions described above, the TPG Parties may, from time
to time, subject to developments with respect to the Company and market
conditions, consider and explore the purchase or sale of Common Stock or other
securities of the Company.
Except as set forth herein, neither TPG Advisors nor the TPG Parties do not
have any plans or proposals which would relate to or result in any of the
actions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D. In
addition, the Investor Nominees, in their capacity as members of the Board, may,
from time to time, propose that the Board consider one or more of such actions.
Item 5. Interest in Securities of the Issuer.
(a), (b) As of the date hereof, neither TPG Advisors nor any of the TPG
Parties holds of record any shares of Common Stock or other securities of the
Company. However, by virtue of the execution of the Investment Agreement, TPG
Advisors, as the general partner of the general partner of TPG, TPG Parallel and
TPG Investors, as the general partner of the general partner of the sole member
of TPG Magellan, and as the general partner of TPG 1999, TPG Advisors may be
deemed to beneficially own up to 8,045,333 shares of Common Stock, representing
in the aggregate 20.1% of the outstanding shares of Common Stock (based on the
number of shares of Common Stock represented by the Company in the Investment
Agreement to be outstanding as of July 13, 1999).
(c) Except as described herein, no transactions in shares of Common Stock
were effected during the past 60 days by TPG Advisors or to the best of its
knowledge, any of the individuals identified in Item 2.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understanding or Relationships with Respect
to Securities of the Issuer.
Except as set forth in this statement, to the best knowledge of TPG
Advisors, there are no other contracts, arrangements, understandings or
relationships (legal or otherwise) among the persons named in Item 2 and between
such persons and any person with respect to any securities of the Company,
including but not limited to, transfer or voting of any of the securities of the
Company, joint ventures, loan or options arrangements, puts or calls, guarantees
of profits, division of profits or loss, or the giving or withholding of
proxies, or a pledge or contingency the occurrence of which would give another
person voting power over the securities of the Company.
Item 7. Material to be Filed as Exhibits
Exhibit 1 Investment Agreement, dated as of July 19, 1999 by and between
TPG Magellan LLC and Magellan Health Services, Inc.
Exhibit 2 Registration Rights Agreement, dated as of July 19, 1999 by and
between Magellan Health Services, Inc. and TPG Magellan LLC.
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement with respect to TPG
Advisors II, Inc. is true, complete and correct.
Dated: July 26, 1999
TPG ADVISORS II, INC.
By: /s/ James J. O'Brien
---------------------------
Name: James J. O'Brien
Title: Vice President
EXHIBIT 1
---------
INVESTMENT AGREEMENT
dated as of July 19, 1999
between
TPG MAGELLAN LLC
and
MAGELLAN HEALTH SERVICES, INC.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. Definitions 2
Section 1.02. General Interpretive Principles 14
ARTICLE II
SHARE PURCHASE
Section 2.01. Share Purchase 14
Section 2.02. Share Purchase Closing 15
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 3.01. Corporate Organization and Qualification 15
Section 3.02. Authorization of Agreements 16
Section 3.03. Consents; No Conflicts 16
Section 3.04. Capitalization; Securities 17
Section 3.05. Subsidiaries; Equity Investments 18
Section 3.06. Dividends, Stock Repurchases, Etc. 19
Section 3.07. Company Reports; Financial Statements 19
Section 3.08. Undisclosed Liabilities 20
Section 3.09. Absence of Certain Changes 21
Section 3.10. Property 23
Section 3.11. Litigation 23
Section 3.12. Compliance with Laws; Regulatory Approvals 23
Section 3.13. Taxes 24
Section 3.14. ERISA and Other Employment Matters 25
Section 3.15. Contracts 27
Section 3.16. Client Relations 27
Section 3.17. Financial Advisors and Brokers; Fairness Opinion 28
Section 3.18. Exemption from Registration 28
Section 3.19. Insurance 28
Section 3.20. Rights Agreement 28
Section 3.21. Disclosure 29
Section 3.22. Year 2000 Compliance 29
Section 3.23. Environmental Matters. 29
Section 3.24. Controls 29
Section 3.25. Joint Venture Matters 29
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
Section 4.01. Organization 30
Section 4.02. Authorization of Agreements 31
Section 4.03. Consents; No Conflicts 31
Section 4.04. Financial Advisors and Brokers 31
Section 4.05. Ownership of Equity Securities; Purpose of Investment 31
ARTICLE V
GOVERNANCE
Section 5.01. Board Size 32
Section 5.02. Board Representation 32
Section 5.03. Committees; Meetings 33
ARTICLE VI
STANDSTILL
Section 6.01. Standstill Agreement 33
ARTICLE VII
PRE-CLOSING COVENANTS
Section 7.01. Taking of Necessary Action 35
Section 7.02. Conduct of Business 36
Section 7.03. Notifications 37
Section 7.04. Alternative Transactions 37
Section 7.05. Debenture Indentures 37
ARTICLE VIII
ADDITIONAL COVENANTS
Section 8.01. Financial and Other Information 38
Section 8.02. Limitation on Dividend Payments and Repurchases 38
Section 8.03. Limitation on Indebtedness 39
Section 8.04. Acquisitions and Dispositions 39
Section 8.05. Equity Issuances 39
Section 8.06. Publicity 41
Section 8.07. Status of Dividends 41
Section 8.08. Director and Officer Indemnification 42
Section 8.09. Listing; Reservation 42
Section 8.10. Legend 42
Section 8.11. Limitation on Restrictions on Payment of Dividends 43
Section 8.12. Chief Executive Officer 43
Section 8.13. Shareholder Approval 43
ARTICLE IX
CONDITIONS
Section 9.01. Conditions to Investor's Obligations with Respect to
the Share Purchase 45
Section 9.02. Conditions of the Company's Obligations with Respect
to the Share Purchase 47
ARTICLE X
TERMINATION
Section 10.01. Termination of Agreement 48
Section 10.02. Effect of Termination 48
ARTICLE XI
MISCELLANEOUS
Section 11.01. Fees and Expenses 49
Section 11.02. Survival of Representations and Warranties 49
Section 11.03. Specific Performance 50
Section 11.04. Indemnification 50
Section 11.05. Notices 51
Section 11.06. Entire Agreement; Amendment 52
Section 11.07. Counterparts 52
Section 11.08. Governing Law 52
Section 11.09. Successors and Assigns 53
Section 11.10. No Third-Party Beneficiaries 54
Section 11.11. Allocation 54
Section 11.12. Pre-emptive Rights 54
Section 11.13. NOL Letter 54
Section 11.14. Certain Amendments to the Series B Certificate of
Designations 54
EXHIBIT A Form of Series A Certificate of Designations
EXHIBIT B Form of Series B Certificate of Designations
EXHIBIT C Form of Junior Certificate of Designations
EXHIBIT D Form of King & Spalding Opinion
EXHIBIT E Form of Cleary, Gottlieb, Steen & Hamilton Opinion
EXHIBIT F Form of Escrow Agreement
<PAGE>
INVESTMENT AGREEMENT
INVESTMENT AGREEMENT (the "Agreement"), dated as of July 19, 1999, by and
between TPG Magellan LLC, a Delaware limited liability company (the "Investor"),
and Magellan Health Services, Inc., a Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, each of the Company and the Investor has determined to enter into
this 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, (i)
59,063 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 hereto as Exhibit A (the "Series A Certificate of
Designations"), each share convertible at the option of the holder at any time
following the Closing into shares (the "Series A Conversion Shares") of common
stock, par value $0.25 per share (the "Common Stock"), of the Company, and (ii)
16,362 shares of the Company's Series B Cumulative Convertible Preferred Stock,
without par value (the "Series B Preferred Stock," and together with the Series
A Preferred Stock, the "Senior Preferred Stock"), having the rights,
preferences, privileges and restrictions set forth in the form of Certificate of
Designations attached hereto as Exhibit B (the "Series B Certificate of
Designations," and together with the Series A Certificate of Designations, the
"Senior Certificates of Designations"), each share convertible at the option of
the holder at any time (A) prior to the Shareholder Approval (as defined
herein), into shares of the Company's Series C Junior Participating Preferred
Stock, par value $0.01 per share (the "Junior Preferred Stock"), having the
rights, preferences, privileges and restrictions set forth in the form of
Certificate of Designations attached hereto as Exhibit C (the "Junior
Certificate of Designations," and together with the Senior Certificates of
Designations, the "Certificates of Designations"), or (B) following the
Shareholder Approval, shares of Common Stock (such shares of Common Stock,
together with the Series A Conversion Shares, the "Conversion Shares"); and
WHEREAS, the Series A Preferred Stock is exchangeable under certain
circumstances at the option of the Company into Series A Junior Subordinated
Convertible Debentures Due 2009 of the Company (the "Series A Debentures"),
having the terms and conditions provided for in Section 7.05 hereof, and the
Series B Preferred Stock is exchangeable under certain circumstances at the
option of the Company into Series B Junior Subordinated Convertible Debentures
Due 2009 of the Company (the "Series B Debentures," and together with the Series
A Debentures, the "Debentures"), having the terms and conditions provided for in
Section 7.05 hereof; and
WHEREAS, the Company and the Investor desire to make certain
representations, warranties, covenants and agreements in connection with the
transactions contemplated herein;
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Acceptance Notice" has the meaning set forth in Section 8.05(b) hereof.
"Affiliate" has the meaning set forth in Rule 12b-2 under the Exchange Act
as in effect on the date hereof. The term "Affiliated" has a correlative
meaning. Notwithstanding the foregoing, for all purposes hereof, the Investor,
and each Person controlled by, controlling or under common control with the
Investor (each, a "TPG Person"), shall not be deemed an "Affiliate" of any
Designated Purchaser Person (as defined below), and no Designated Purchaser, and
no Person controlled by, controlling or under common control with such
Designated Purchaser (each, a "Designated Purchaser Person"), shall be deemed an
"Affiliate" of any TPG Person or any other Designated Purchaser Person, in any
such case solely as a consequence of this Agreement or the transactions
contemplated hereby.
"Agreement" has the meaning set forth in the preamble hereto.
"Alternative Transaction" means any (A) direct or indirect acquisition or
purchase of any Equity Securities of the Company or any of its Significant
Subsidiaries or any tender offer or exchange offer, that if consummated would
result in any Person (other than the Investor or any of its Affiliates or,
solely as a result of an assignment by the Investor pursuant to Section 11.09(b)
hereof, a Designated Purchaser or any of its Affiliates) Beneficially Owning 10%
or more of any class of Equity Securities of the Company or Equity Securities of
any of its Significant Subsidiaries, (B) Control Transaction, liquidation,
dissolution or similar transaction involving the Company or any of its
Significant Subsidiaries (other than such a transaction involving a Significant
Subsidiary that does not involve the transfer of, or the transfer of control of,
all or a substantial portion of the assets of the Company and its Subsidiaries,
taken as a whole), or (C) other transaction the consummation of which would
prevent the consummation of the transactions contemplated hereby or would delay
the Closing Date to a date later than the date set forth in Section 10.01(a)
hereof; provided, however, that, notwithstanding the foregoing, (i) no
transaction expressly permitted pursuant to Section 7.02 hereof, (ii) no
transaction set forth in the Proposed Asset Sale Letter concluded on terms not
materially worse to the Company than those terms set forth in the Proposed Asset
Sale Letter and (iii) no exercise of the Rainwater-Magellan Warrant or Rainwater
Pre-emptive Rights shall constitute an Alternative Transaction.
"Alternative Transaction Fee" means $2,828,437.
"Applicable Insurance Department" has the meaning set forth in Section
3.07(c).
"Balance Sheet" has the meaning set forth in Section 3.08 hereof.
"Beneficially Own" with respect to any securities means having "beneficial
ownership" of such securities (as determined pursuant to Rule 13d-3 under the
Exchange Act as in effect on the date hereof, except that a Person shall be
deemed to Beneficially Own all such securities that such Person has the right to
acquire whether such right is exercisable immediately or after the passage of
time); provided, that for all purposes hereof, no Person shall be deemed to
Beneficially Own any shares of Series B Preferred Stock or securities issuable
upon conversion or exchange of the Series B Preferred Stock until such shares of
Series B Preferred Stock have been issued by the Company in accordance with the
terms hereof. The terms "Beneficial Ownership" and "Beneficial Owner" have
correlative meanings. Notwithstanding the foregoing, for all purposes hereof, no
TPG Person shall be deemed to Beneficially Own any securities that are held by
any Designated Purchaser Person, and no Designated Purchaser Person shall be
deemed to Beneficially Own any securities that are held by any TPG Person or any
other Designated Purchaser Person, in any such case solely as a consequence of
this Agreement or the transactions contemplated hereby.
"bidding process" has the meaning set forth in Section 6.01(b) hereof.
"Board of Directors" means the board of directors of the Company.
"Business Day" means any day, other than a Saturday, Sunday or a day on
which banking institutions in the State of New York are authorized or obligated
by law or executive order to close.
"Bylaws" means the Bylaws of the Company, as amended from time to time.
"Capital Funding Requirements Disclosure" has the meaning set forth in
Section 3.07(d) hereof.
"Certificate of Incorporation" means the Restated Certificate of
Incorporation of the Company, as amended from time to time.
"Certificates of Designations" has the meaning set forth in the recitals
hereto.
"Charter" means Charter Behavioral Health Systems, LLC.
"Claim" has the meaning set forth in Section 11.04(c) hereof.
"Class I" means the class of directors of the Board of Directors with a
term expiring at the annual meeting of stockholders of the Company in 2000 and
every third annual meeting thereafter.
"Class II" means the class of directors of the Board of Directors with a
term expiring at the annual meeting of stockholders of the Company in 2001 and
every third annual meeting thereafter.
"Class III" means the class of directors of the Board of Directors with a
term expiring at the annual meeting of stockholders of the Company in 2002 and
every third annual meeting thereafter.
"Closing" means the closing of the Share Purchase pursuant to Section 2.02
hereof.
"Closing Date" has the meaning set forth in Section 2.02(a) hereof.
"Closing Price" means, with respect to a share of Common Stock on any day,
the last reported sale price on that day or, in case no such reported sale takes
place on such day, the average of the last reported bid and asked prices,
regular way, on that day, in either case, as reported in the consolidated
transaction reporting system with respect to securities listed on the NYSE.
"Code" means the Internal Revenue Code of 1986, as amended, and all
regulations promulgated thereunder, as in effect from time to time.
"Commission" means the U.S. Securities and Exchange Commission.
"Common Stock" has the meaning set forth in the recitals hereto.
"Company" has the meaning set forth in the preamble hereto.
"Company Documents" means each document, instrument or certificate, other
than the Transaction Agreements, to be executed and delivered by the Company in
connection with the consummation of the transactions contemplated by this
Agreement, including, without limitation, the Certificates of Designations.
"Company Warrants" means the 2002 Warrants, the 2006 Warrants, the Crescent
Warrants and the Rainwater-Magellan Warrant, as such terms are defined in the
Company's Annual Report on Form 10-K for the fiscal year ended September 30,
1998, as amended through the date hereof.
"Control Transaction" means any transaction (other than a transaction set
forth on Schedule 1.01(A) hereof) that involves a (i) merger, consolidation,
recapitalization (involving a business combination) or similar business
combination transaction involving the Company or a Significant Subsidiary of the
Company (other than such a transaction involving a Significant Subsidiary that
does not involve the transfer of, or the transfer of control of, all or a
substantial portion of the assets of the Company and its Subsidiaries, taken as
a whole), (ii) sale of all or substantially all of the assets of the Company and
its Subsidiaries taken as a whole, or (iii) sale or issuance of Voting
Securities of the Company to a Person or Group or an acquisition of Equity
Securities of the Company by a Person or Group which, following the completion
of such sale, issuance or acquisition, will Beneficially Own Voting Securities
of the Company representing a majority of the Voting Power of the Voting
Securities of the Company; provided, however, that, notwithstanding the
foregoing, (i) no transaction expressly permitted pursuant to Section 7.02
hereof, (ii) no transaction set forth in the Proposed Asset Sale Letter
concluded on terms not materially worse to the Company than those terms set
forth in the Proposed Asset Sale Letter and (iii) no exercise of the
Rainwater-Magellan Warrant or Rainwater Pre-emptive Rights shall constitute a
Control Transaction.
"Conversion Shares" has the meaning set forth in the recitals hereto. For
the purposes of determining the percentage of Conversion Shares that is
Beneficially Owned by the Investor, any Designated Purchaser or any of their
respective Affiliates, such calculation shall be made assuming all conditions
precedent to receipt of Conversion Shares in respect of the then-outstanding
shares of Senior Preferred Stock have occurred or been satisfied, including,
without limitation, receipt by the Company of the Shareholder Approval and
conversion of such Senior Preferred Stock in accordance with the terms hereof.
"Covered Securities" has the meaning set forth in Section 8.05(b) hereof.
"Credit Agreement" means the Credit Agreement, dated as of
February 12, 1998, among the Company, the banks and other financial institutions
named therein, and The Chase Manhattan Bank, as Administrative Agent, together
with all other documents entered into under or in connection with the Credit
Agreement, in each case, as the same may be amended, restated, supplemented,
extended, renewed or increased from time to time, replaced, substituted,
refunded or refinanced or otherwise modified from time to time, in whole or in
part, and any successive replacements, substitutions, refundings or
refinancings.
"Debentures" has the meaning set forth in the recitals hereto.
"Derivative Securities" means any subscriptions, options, conversion
rights, warrants, or other agreements, securities or commitments of any kind
obligating the Company or any of its Significant Subsidiaries to issue, grant,
deliver or sell, or cause to be issued, granted, delivered or sold, any Equity
Securities of the Company or any of its Significant Subsidiaries.
"Designated Purchaser" has the meaning set forth in Section 11.09(b)
hereof.
"Designated Purchaser Person" has the meaning set forth in the definition
of "Affiliate."
"Dividend Shares" means securities issued as dividends in respect of Senior
Preferred Stock.
"DGCL" means the Delaware General Corporation Law.
"DGCL Section 203" has the meaning set forth in Section 3.02(a) hereof.
"Employment Agreement" means any employment or consulting agreement or
other similar arrangement between the Company or any of its Significant
Subsidiaries, on the one hand, and any Representative of the Company or any of
its Significant Subsidiaries, on the other.
"Environmental Laws" means any federal, state or local law, statute,
ordinance, order, decree, rule or regulation relating to releases, discharges,
emissions or disposals to air, water, land or groundwater of Hazardous
Materials; to the use handling or disposal of polychlorinated byphenyls,
asbestos or urea formaldehyde or any other Hazardous Material; to the treatment,
storage, disposal or management of Hazardous Materials; to exposure to toxic,
hazardous or other controlled, prohibited or regulated substances; and to the
transportation, release or any other use of Hazardous Materials, including the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
9601, et seq. ("CERCLA"), the Resource Conservation and Recovery Act, 42 U.S.C.
6901, et seq. ("RCRA"), the Toxic Substances Control Act, 15 U.S.C. 2601, et
seq. ("TSCA"), the Occupational, Safety and Health Act, 29 U.S.C. 651, et seq.,
the Clean Air Act, 42 U.S.C. 7401, et seq., the Federal Water Pollution Control
Act, 33 U.S.C. 1251, et seq., the Safe Drinking Water Act, 42 U.S.C. 300f, et
seq., the Hazardous Materials Transportation act, 49 U.S.C. 1802 et seq.
("HMTA") and the Emergency Planning and Community Right to Know Act, 42 U.S.C.
11001 et seq. ("EPCRA"), and other comparable state and local laws and all rules
and regulations promulgated pursuant thereto or published thereunder.
"Equity Securities" of any Person, means any and all common stock,
preferred stock and any other class of capital stock of, and any partnership or
limited liability company interests in, such Person or any other similar
interests of any Person that is not a corporation, partnership or limited
liability company.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and all regulations promulgated thereunder, as in effect from time to
time.
"Escrow Agent" has the meaning set forth in the Escrow Agreement.
"Escrow Agreement" means the escrow agreement to be executed by the
Investor, the Company and the Escrow Agent as of the Closing Date in the form of
Exhibit F hereto.
"Escrow Fund" has the meaning set forth in the Escrow Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder from time to time.
"Exclusivity Period" has the meaning set forth in Section 7.04(b) hereof.
"Fund Amount" has the meaning set forth in Section 2.01(b) hereof.
"GAAP" means U.S. generally accepted accounting principles as in effect at
the relevant time or for the relevant period.
"Governmental Entity" means any government or political subdivision or
department thereof, any governmental or regulatory body, commission, board,
bureau, agency or instrumentality, or any court or arbitrator or alternative
dispute resolution body, in each case whether federal, state, local or foreign.
"Group" has the same meaning as is used with respect to that term in Rule
13d-5 under the Exchange Act as in effect on the date hereof.
"Guarantee" means any direct or indirect obligation, contingent or
otherwise, to guarantee (or having the economic effect of guaranteeing)
Indebtedness in any manner, including, without limitation, any monetary
obligation to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness (whether arising by agreement to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise).
"Hazardous Materials" shall mean each and every element, compound, chemical
mixture, contaminant, pollutant, material, waste or other substance which is
defined, determined or identified as hazardous or toxic under Environmental Laws
or the release of which is regulated under Environmental Laws. Without limiting
the generality of the foregoing, the term includes: "hazardous substances" as
defined in CERCLA; "extremely hazardous substances" as defined in EPCRA;
"hazardous waste" as defined in RCRA; "hazardous materials" as defined in HMTA;
"chemical substance or mixture" as defined in TSCA; crude oil, petroleum
products or any fraction thereof; radioactive materials including source,
byproduct or special nuclear materials; asbestos or asbestos-containing
materials; chlorinated fluorocarbons ("CFCs"); and radon.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, and the regulations promulgated thereunder.
"Indebtedness" means, with respect to any Person, without duplication, (i)
all obligations of such Person for money borrowed, (ii) all obligations of such
Person evidenced by bonds, debentures, notes, or other similar instruments,
(iii) all obligations of such Person upon which interest charges are customarily
paid, (iv) all obligations of such Person under conditional sale or other title
retention agreements relating to property or assets purchased by such Person,
(v) all obligations of such Person issued or assumed as the deferred purchase
price of property or services (excluding (x) trade accounts payable and accrued
obligations incurred in the ordinary course of business and (y) deferred
earn-out and other performance-based payment obligations incurred in connection
with any Permitted Acquisition (as such term is defined in the Credit Agreement
as in effect on the date hereof) or any similar transactions consummated prior
to February 12, 1998), (vi) all Indebtedness of others secured by (or for which
the holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed, (vii) all Guarantees
by such Person of Indebtedness of others, (viii) all capital lease obligations
of such Person, (ix) all obligations (determined on the basis of actual, not
notional, obligations) of such Person in respect of interest rate protection
agreements, foreign currency exchange agreements or other interest or exchange
rate hedging arrangements and (x) all obligations of such Person as an account
party in respect of letters of credit and bankers' acceptances issued in support
of obligations that constitute Indebtedness under any other clause of this
definition (unless such obligations are fully cash collateralized), provided
that all obligations in respect of letters of credit shall be deemed
Indebtedness to the extent drawings thereunder are unreimbursed (after any
applicable grace period) regardless of the purpose for which such letter of
credit was issued. The Indebtedness of any Person shall include the recourse
Indebtedness of any partnership in which such Person is a general partner.
Notwithstanding the foregoing, no portion of Indebtedness that becomes the
subject of a defeasance (whether a legal defeasance or a "covenant" or "in
substance" defeasance) shall, at any time that such defeasance remains in
effect, be treated as Indebtedness for purposes hereof.
"Indemnified Company Parties" has the meaning set forth in Section 11.04(b)
hereof.
"Indemnified Parties" has the meaning set forth in Section 11.04(a) hereof.
"Indenture" means the Indenture entered into between the Company and Marine
Midland Bank, as Trustee, dated as of February 12, 1998, as the same may be
amended, restated, supplemented, extended, renewed or increased from time to
time, replaced, substituted, refunded or refinanced or otherwise modified from
time to time, in whole or in part, and any successive replacements,
substitutions, refundings or refinancings.
"Insolvency Event" means (i) the Company or any of its Subsidiaries
commences a voluntary case concerning itself under Title 11 of the United States
Code as now or hereafter in effect, or under any state insolvency, liquidation,
rehabilitation or similar statute or any successor statutes thereto ("Insolvency
Statutes"); (ii) an involuntary case is commenced against the Company or any of
its Subsidiaries under an Insolvency Statute; (iii) a custodian is appointed
under any applicable Insolvency Statute for, or takes charge of, all or any
substantial part of the property of the Company or any of its Subsidiaries; (iv)
any other proceeding under any reorganization, arrangement, adjustment of debt,
relief of debtors, dissolution or similar law of any jurisdiction, whether now
or hereafter in effect, relating to the Company or any of its Subsidiaries is
commenced (a) by the Company or any of its Subsidiaries or (b) by any other
Person; (v) the Company or any of its Subsidiaries is adjudicated insolvent or
bankrupt; (vi) any order of relief or other order approving any such case or
proceeding is entered; (vii) the Company or any of its Subsidiaries makes a
general assignment for the benefit of creditors; or (viii) the Company or any of
its Subsidiaries shall state in writing that it is unable to pay, or shall be
unable to pay, its debts, generally as they become due.
"Insolvency Statutes" has the meaning set forth in the definition of
"Insolvency Event."
"Intellectual Property" means all intellectual property rights including,
but not limited to, patents, patent rights, trade secrets, know-how, trademarks,
service marks, trade names, copyrights, licenses and proprietary processes and
formulae.
"Investor" has the meaning set forth in the preamble hereto.
"Investor Documents" means each document, instrument or certificate, other
than the Transaction Agreements, to be executed and delivered by the Investor in
connection with the consummation of the transactions contemplated by this
Agreement.
"Investor Group" means, collectively, the Investor, the Designated
Purchasers, if any, and the respective Affiliates of such Persons.
"Investor Information" has the meaning set forth in Section 8.13(b) hereof.
"Investor Nominees" has the meaning set forth in Section 5.02(a) hereof.
"Investor Original Number of Conversion Shares" means that number of the
Original Number of Conversion Shares Beneficially Owned by the Investor and its
Affiliates, in the aggregate, as of the Closing. For the purposes of this
definition, from and after the original issuance of shares of the Series B
Preferred Stock in accordance with the terms hereof, the Conversion Shares
issuable in respect of such shares of Series B Preferred Stock as of the time of
the original issuance thereof shall be deemed to have existed as of and
following the Closing. For the purposes of determining the percentage of the
Investor Original Number of Conversion Shares that is Beneficially Owned by the
Investor or any of its Affiliates, such calculation shall be made assuming all
conditions precedent to the receipt of Conversion Shares in respect of
then-outstanding shares of Senior Preferred Stock have occurred or been
satisfied, including, without limitation, receipt by the Company of the
Shareholder Approval and conversion of the Senior Preferred Stock in accordance
with the terms hereof.
"Investor Price" has the meaning set forth in Section 8.05(b) hereof.
"Joint Ventures" means (i) Charter and its Subsidiaries and (ii) the
entities listed on Schedule 1.01(B) hereto.
"Junior Certificate of Designations" has the meaning set forth in the
recitals hereto.
"Junior Preferred Stock" has the meaning set forth in the recitals hereto.
"Junior Shares" means the shares of Junior Preferred Stock issued or
issuable upon conversion of the Series B Preferred Stock.
"to the knowledge of the Company and its Subsidiaries" and similar phrases
with respect to the Company or to the Company and its Subsidiaries, mean to the
actual knowledge of any of Henry T. Harbin, Cliff Donnelly, Clarissa C. Marques,
David J. Hansen, James R. Bedenbaugh, Linton Newlin or Jeff Hudkins.
"Law" means any law, treaty, statute, ordinance, code, rule, regulation,
judgment, decree, order, writ, award, injunction or determination of any
Governmental Entity.
"Lien" means any mortgage, pledge, lien, security interest, claim, voting
agreement, conditional sale agreement, title retention agreement, restriction,
option or encumbrance of any kind, character or description whatsoever.
"Losses" has the meaning set forth in Section 11.04(a) hereof.
"Material Adverse Effect" means a material adverse effect on the financial
condition, results of operations, prospects, business, or regulatory status of
the Company and its Subsidiaries taken as a whole.
"NOLs" has the meaning set forth in Section 3.13(d) hereof.
"Notice Date" has the meaning set forth in Section 8.05(b) hereof.
"NYSE" means the New York Stock Exchange, Inc.
"NYSE Rules" has the meaning set forth in Section 3.03(c) hereof.
"Offer to Purchase" has the meaning set forth in Section 8.05(b) hereof.
"Option Plans" means the Company's 1989 Deferred Compensation Plan, 1992
Stock Option Plan, 1994 Stock Option Plan, 1996 Stock Option Plan, 1997 Stock
Option Plan, 1998 Stock Option Plan, 1992 Directors' Stock Option Plan and
Directors' Unit Award Plan, 1996 Directors' Stock Option Plan, the 1997 Employee
Stock Purchase Plan and the 2000 Employee Stock Purchase Plan.
"Original Number of Conversion Shares" means the number of Conversion
Shares as of the Closing (assuming that all conditions precedent to receipt of
Conversion Shares in respect of the then-outstanding shares of Senior Preferred
Stock has occurred, including, conversion of the Senior Preferred Stock), which
number shall be adjusted in accordance with any adjustment made to the number of
Conversion Shares issuable upon conversion of the Senior Preferred Stock
pursuant to the provisions set forth in Article IX of each Senior Certificate of
Designations. For the purposes of this definition, from and after the original
issuance of shares of the Series B Preferred Stock in accordance with the terms
hereof, the Conversion Shares issuable in respect of such shares of Series B
Preferred Stock as of the time of the original issuance thereof shall be deemed
to have existed as of and following the Closing. For the purposes of determining
the percentage of the Original Number of Conversion Shares that is Beneficially
Owned by the Investor, any Designated Purchaser or any of their respective
Affiliates, such calculation shall be made assuming all conditions precedent to
receipt of Conversion Shares in respect of the then-outstanding shares of Senior
Preferred Stock have occurred or been satisfied, including, without limitation,
receipt by the Company of the Shareholder Approval and conversion of the Senior
Preferred Stock.
"Person" means any individual, corporation, company, association,
partnership, limited liability company, joint venture, trust, unincorporated
organization, or Governmental Entity.
"Placement Fee" means $1,875,000.
"Plan" has the meaning set forth in Section 3.14(a) hereof.
"Policies" has the meaning set forth in Section 3.19 hereof.
"Preferred Stock" means the Junior Preferred Stock and the Senior Preferred
Stock.
"Private Placement Legend" has the meaning set forth in Section 8.10(a)
hereof.
"Proceeding" has the meaning set forth in Section 3.11 hereof.
"Proposal" means any inquiry, indication of interest, proposal or offer
from any Person relating to an Alternative Transaction.
"Proposed Asset Sale Letter" means the letter from the Company to the
Investor dated as of the date hereof.
"Proxy Statement" has the meaning set forth in Section 8.13 hereof.
"Purchase Agreement" means a legal, valid and binding agreement of a Person
or Persons (each, a "Purchaser") pursuant to which such Purchaser or Purchasers
agrees to purchase Covered Securities which agreement is enforceable against
such Purchaser or Purchasers in accordance with its terms (subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally
and to general principles of equity).
"Rainwater-Magellan Warrant" has the meaning set forth in the definition of
"Company Warrants."
"Rainwater Pre-emptive Rights" means the pre-emptive rights set forth in
Section 5.11 of the Stock and Warrant Purchase Agreement dated as of December
22, 1995 between the Company and Richard E. Rainwater.
"Registration Rights Agreement" means the Registration Rights Agreement of
even date herewith between the Company and the Investor, which agreement shall
not become effective until the Closing.
"Regulatory Approvals" means (i) any and all certificates, permits,
licenses, franchises, concessions, grants, consents, approvals, orders,
registrations, authorizations, waivers, variances or clearances from, or filings
or registrations with, Governmental Entities, and (ii) any and all waiting
periods imposed by applicable laws.
"Representatives" means, with respect to any Person, any of such Person's
officers, directors, employees, agents, attorneys, accountants, consultants,
equity financing partners or financial advisors or other Person associated with,
or acting on behalf of, such Person.
"Required Regulatory Approval" means a Regulatory Approval (i) necessary
under the HSR Act or required under the Securities Act, the Exchange Act or the
securities laws of the several states of the United States, for or in connection
with the consummation by the parties thereto of the transactions contemplated by
the Transaction Agreements; (ii) consisting of the filing by the Company of the
Certificates of Designations with the Secretary of State of the State of
Delaware; or (iii) set forth on Schedule 1.01(C) hereto.
"Response Period" has the meaning set forth in Section 8.05(b) hereof.
"Revocation Notice" has the meaning set forth in Section 2.01(b) hereof.
"Rights" has the meaning set forth in Section 3.20 hereof.
"Rights Plan" has the meaning set forth in Section 3.20 hereof.
"SEC Reports" has the meaning set forth in Section 3.07(a) hereof.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder from time to time.
"Senior Certificates of Designations" has the meaning set forth in the
recitals hereto.
"Senior Preferred Stock" has the meaning set forth in the recitals hereto.
"Senior Subordinated Notes" means the Senior Subordinated Notes of the
Company issued pursuant to the Indenture.
"Series A Certificate of Designations" has the meaning set forth in the
recitals hereto.
"Series A Debentures" has the meaning set forth in the recitals hereto.
"Series A Preferred Stock" has the meaning set forth in the recitals
hereto.
"Series B Certificate of Designations" has the meaning set forth in the
recitals hereto.
"Series B Debentures" has the meaning set forth in the recitals hereto.
"Series B Preferred Stock" has the meaning set forth in the recitals
hereto.
"Share Purchase" has the meaning set forth in Section 2.01(a) hereof.
"Share Purchase Price" has the meaning set forth in Section 2.01(a) hereof.
"Shareholder Approval" means the approval by the stockholders of the
Company, in accordance with the DGCL and in accordance with and in satisfaction
of Paragraph 312.00 of the NYSE's Listed Company Manual and the related NYSE
Rules and interpretations, of (i) the issuance of Common Stock in respect of
accrued and unpaid dividends on the Senior Preferred Stock upon the conversion
or exchange of the Senior Preferred Stock, (ii) the issuance of Common Stock
upon the conversion or exchange of the Series B Preferred Stock, and (iii) the
vesting of voting rights in respect of the Series B Preferred Stock, in each
case in accordance with the terms hereof, the Series A Certificate of
Designations and the Series B Certificate of Designations.
"Shareholder Approval Proposal" has the meaning set forth in Section
8.13(b) hereof.
"Shareholder Meeting" has the meaning set forth in Section 8.13(a) hereof.
"Significant Subsidiary" means any direct or indirect Subsidiary of the
Company listed on Schedule 1.01(D) hereto.
"Solicitation Date" means, with respect to any Covered Securities, the
earlier of (i) the eleventh day following the day on which an Offer to Purchase
with respect to such Covered Securities is given and (ii) the date on which the
Investor shall have, or shall be deemed to have, declined to purchase such
Covered Securities, in each case pursuant to Section 8.05(b) hereof.
"Standstill Period" has the meaning set forth in Section 6.01(a) hereof.
"State Statutory Accounting Practices" has the meaning set forth in Section
3.07(c) hereto.
"Subsequent Reports" has the meaning set forth in Section 3.07(a) hereof.
"Subsidiary" means as to any Person, any other Person of which more than
50% of the shares of the voting stock or other voting interests are owned or
controlled, or the ability to select or elect more than 50% of the directors or
similar managers is held, directly or indirectly, by such first Person or one or
more of its Subsidiaries or by such first Person and one or more of its
Subsidiaries; provided, however, that no Joint Venture shall be considered (i) a
"Subsidiary" of the Company or (ii) a "Subsidiary" of any Subsidiary of the
Company.
"Tax" or "Taxes" means all taxes, including any interest, liabilities,
fines, penalties or additions to tax that may become payable in respect thereof,
imposed by any Governmental Entity, which taxes shall include, without limiting
the generality of the foregoing, income taxes (including, but not limited to,
United States federal income taxes and state income taxes), payroll and employee
withholding taxes, unemployment insurance, social security, sales and use taxes,
excise taxes, franchise taxes, gross or net receipts taxes, occupation taxes,
real and personal property taxes, ad valorem taxes, stamp taxes, transfer taxes,
capital taxes, import duties, withholding taxes, workers' compensation, and
other obligations of the same or of a similar nature whether arising before, on
or after the Closing Date.
"TPG Person" has the meaning set forth in the definition of "Affiliate."
"Trading Day" means any day on which the NYSE is open for trading.
"Transaction Agreements" means this Agreement, the Escrow Agreement and the
Registration Rights Agreement.
"Voting Power" means, with respect to any Voting Securities, the aggregate
number of votes attributable to such Voting Securities that could generally be
cast by the holders thereof for the election of directors at the time of
determination (assuming such election were then being held).
"Voting Securities" means, (i) with respect to the Company, the Equity
Securities of the Company entitled to vote generally for the election of
directors of the Company, and (ii) with respect to any other Person, any
securities of or interests in such Person entitled to vote generally for the
election of directors or any similar managing person of such Person.
"Wholly-Owned Subsidiary" means, as to any Person, a Subsidiary of such
Person of which 100% of the Equity Securities (other than directors' qualifying
shares or similar shares) is owned, directly or indirectly, by such Person.
"Year 2000 Problem" means the risk that computer hardware or software
applications will not record, store, process, calculate and present calendar
dates falling on and after January 1, 2000, and calculate information dependent
upon or relating to such dates, in the same manner and with the same
functionality, data integrity and performance as such products record, store,
process, calculate and present calendar dates falling on or before December 31,
1999, and calculate information dependent on or relating to such dates.
Section 1.02. 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 and schedules hereto), and
references herein to Articles or Sections refer to Articles or Sections of this
Agreement.
ARTICLE II
SHARE PURCHASE
Section 2.01. Share Purchase. (a) Upon the terms and subject to the conditions
set forth in this Agreement, and in reliance upon the representations and
warranties hereinafter set forth, at the Closing, (i) the Company will issue,
sell and deliver to the Investor, and the Investor will purchase from the
Company 59,063 shares of Series A Preferred Stock, free and clear of all Liens,
for an aggregate purchase price of $59,063,000 (the "Series A Amount"), and (ii)
the Investor will deposit into Escrow with the Escrow Agent $16,362,000 (the
"Series B Amount" and together with the Series A Amount, the "Share Purchase
Price") in accordance with the terms of the Escrow Agreement, in full
satisfaction of the Investor's obligation to purchase and pay for 16,362 shares
of Series B Preferred Stock pursuant to the terms hereof. The transactions
described in clauses (i) and (ii) that are to take place at the Closing are
referred to herein as the "Share Purchase."
(b) In the event (i) the Company does not obtain the Shareholder Approval on or
prior to March 5, 2000 and (ii) the holders of at least 60% of the Conversion
Shares then Beneficially Owned by members of the Investor Group deliver a
written notice (a "Revocation Notice") to the Company and the Escrow Agent on or
prior to March 20, 2000 requesting that the Fund Amount (as defined below) be
paid to the Investor, the Fund Amount shall be paid to the Investor as provided
below, and the Company shall have no obligation to issue, sell and deliver, and
the Investor shall have no obligation to purchase, the shares of Series B
Preferred Stock referred to in Section 2.01(a) hereof. The Company shall cause
the Fund Amount to be paid to the Investor no later than the third Business Day
after the delivery of the Revocation Notice as provided in the preceding
sentence. Within three Business Days of the earliest to occur of (A) the
Shareholder Approval (provided that the Company obtains the Shareholder Approval
on or prior to March 5, 2000) and (B) March 20, 2000 (provided no Revocation
Notice has been delivered on or prior to such date), the Company shall issue and
deliver to the Investor 16,362 shares of Series B Preferred Stock, free and
clear of all Liens, and the delivery by the Investor of the Series B Amount to
the Escrow Agent pursuant to Section 2.01(a) hereof shall constitute full
payment to the Company for such shares, and, pursuant to the Escrow Agreement,
the Fund Amount shall be released to the Company. The "Fund Amount" shall equal
(i) the Series B Amount, plus (ii) all interest and investment income earned
with respect to the Escrow Fund.
Section 2.02. Share Purchase Closing. (a) Subject to the satisfaction or, if
permissible, waiver of the conditions set forth in Sections 9.01 and 9.02
hereof, the Closing shall take place at the offices of Cleary, Gottlieb, Steen &
Hamilton, One Liberty Plaza, New York, New York, at 10:00 a.m., New York City
time, on the third Business Day following satisfaction or, if permissible,
waiver, of the conditions set forth in Sections 9.01 and 9.02 hereof, or at such
other time and place as the parties may agree (the date on which the Closing
occurs, the "Closing Date").
(b) At the Closing, (i) the Company will deliver to the Investor certificates
representing the shares of Series A Preferred Stock to be purchased by, and sold
to, the Investor pursuant to Section 2.01 hereof (registered in the names and in
the denominations designated by the Investor at least two Business Days prior to
the Closing Date), together with the other documents, certificates and opinions
to be delivered pursuant to Section 9.01 hereof, and (ii) the Investor, in full
payment for the shares of Senior Preferred Stock to be purchased by, and sold
to, the Investor pursuant to Section 2.01 hereof, will pay to the Company and
deposit into escrow under the Escrow Agreement, in each case as provided in
Section 2.01 hereof, an aggregate amount equal to the Share Purchase Price,
against which amount to be paid to the Company any amounts due to the Investor
pursuant to Section 11.01(a) hereof or otherwise shall be netted (provided, that
the Investor shall continue to be entitled to seek reimbursement after the
Closing for amounts that are properly reimbursable pursuant to Section 11.01(a)
hereof), in immediately available funds, and the Investor shall deliver to the
Company the other documents, certificates and opinions to be delivered pursuant
to Section 9.02 hereof. The amount to be paid to the Company will be paid by
wire transfer to First Union National Bank, Macon, Georgia, Acct. Name: Magellan
Health Services, Inc., Acct. No.: 2080000077640, ABA No. 061000227. The amount
to be deposited into escrow under the Escrow Agreement by the Investor will be
deposited with the Escrow Agent in accordance with the terms of the Escrow
Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to, and agrees with, the
Investor as follows:
Section 3.01. Corporate Organization and Qualification. Each of the Company and
each of its Significant Subsidiaries is a corporation or limited liability
company duly organized or formed, as the case may be, validly existing and in
good standing under the laws of the jurisdiction of its organization and has all
requisite power and authority to own or lease and operate its properties and to
conduct its business as it is currently being conducted and is proposed to be
conducted. Each of the Company and each of its Significant Subsidiaries is duly
licensed, authorized or qualified as a foreign corporation or limited liability
company for the transaction of business and is in good standing under the laws
of each other jurisdiction in which its ownership, lease or operation of
property or conduct of business requires such qualification, except where its
failure to be so licensed, authorized or qualified would not have, individually
or in the aggregate, a Material Adverse Effect. The Company has delivered to the
Investor a complete and correct copy of the certificate of incorporation and the
bylaws or comparable governing instruments of the Company and each of its
Significant Subsidiaries, each as amended to date and each of which as so
delivered is in full force and effect. The Company has delivered to the Investor
a complete and correct copy of the minute books of the Company and each of its
Significant Subsidiaries, and each such minute book includes minutes of the
meetings of, and resolutions adopted by, the stockholders or members of such
entity, the board of directors or comparable governing body of such entity and
the committees of the board of directors or comparable governing body of such
entity to date.
Section 3.02. Authorization of Agreements. (a) The Company has all requisite
corporate power and authority to execute, deliver and perform its obligations
under the Transaction Agreements and the Company Documents. The execution,
delivery and performance of the Transaction Agreements and the Company
Documents, and the consummation by the Company of the transactions contemplated
hereby and thereby, have been duly authorized by all necessary corporate action
on the part of the Company. The Board of Directors has approved the entry by the
Company into this Agreement and has approved the consummation of the
transactions contemplated by the Transaction Agreements for all purposes under
the DGCL, including for purposes of paragraph (a)(1) of Section 203 of the DGCL
("DGCL Section 203"). The Company has delivered to the Investor true and correct
copies of resolutions adopted by the Board of Directors to the foregoing
effects.
(b) This Agreement and the Registration Rights Agreement have been duly executed
and delivered by the Company, and each such agreement constitutes, and when
executed and delivered by the Company, the Escrow Agreement will constitute, a
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and to general
principles of equity.
Section 3.03. Consents; No Conflicts. (a) Except for the Required Regulatory
Approvals, no Regulatory Approval from, or registration, disclosure, declaration
or filing with, any Governmental Entity is required to be made or obtained by
the Company or any of its Significant Subsidiaries in connection with the
execution, delivery and performance of the Transaction Agreements and the
Company Documents and the consummation of the transactions contemplated thereby.
(b) Except as set forth on Schedule 3.03(b) hereto, the execution and delivery
of each of this Agreement and the Registration Rights Agreement does not, and
the execution and delivery of each of the Escrow Agreement and the Company
Documents will not, and, subject to the receipt of the Required Regulatory
Approvals, the performance of the obligations set forth herein and therein and
the consummation of the transactions contemplated hereby and thereby will not,
(i) violate any provision of the Certificate of Incorporation or the Bylaws or
the comparable governing instruments of any of the Significant Subsidiaries;
(ii) give rise to any preemptive rights, rights of first refusal or other
similar rights on behalf of any Person under any applicable Law or any provision
of the Certificate of Incorporation or Bylaws or any agreement or instrument
applicable to the Company or any of its Significant Subsidiaries; (iii) conflict
with, contravene or result in a breach or violation of any of the terms or
provisions of, or constitute a default (with or without notice or the passage of
time) under, or result in or give rise to a right of termination, cancellation,
acceleration or modification of any right or obligation under, or give rise to a
right to put or to compel a tender offer for outstanding securities of the
Company or any of its Significant Subsidiaries under, or require any consent,
waiver or approval under, any note, bond, debt instrument (including, without
limitation, the Credit Agreement), indenture, mortgage, deed of trust, lease,
loan agreement, joint venture agreement, Regulatory Approval, contract or any
other agreement, instrument or obligation to which the Company or any of its
Significant Subsidiaries is a party or by which the Company or any of its
Significant Subsidiaries or any property of the Company or any of its
Significant Subsidiaries is bound (other than in each case in connection with a
"Change in Control," as such term is defined in the Credit Agreement, or a
"Change of Control," as such term is defined in the Indenture, resulting from
the appointment of members of the Board of Directors pursuant to Section D of
Article VIII of the Senior Certificates of Designations or resulting from any
action taken by the Investor or any of its Affiliates that is permitted under
Section 6.01(b) hereof); (iv) result in the creation or imposition of any Lien
upon any assets or properties of the Company or any of its Significant
Subsidiaries or (v) violate any Law applicable to the Company or any of its
Significant Subsidiaries.
(c) Except the Shareholder Approval, no consent or approval of the Company's
stockholders is required by Law, the Certificate of Incorporation, the Bylaws,
the rules and regulations of the NYSE (the "NYSE Rules"), or otherwise, for the
execution, delivery and performance by the Company of the Transaction Agreements
and the Company Documents and the consummation of the transactions contemplated
thereby.
(d) The execution and delivery of the Transaction Agreements and the
consummation of transactions contemplated hereby and thereby will not constitute
a "Change of Control" or "Change in Control" (or similar concept) as such term
(or concept) is defined in the Credit Agreement, the Indenture or any other
material contract, agreement, indenture, mortgage, note, lease or other
instrument to which the Company or any of its Significant Subsidiaries is a
party or by which the Company or any such Subsidiary is bound or to which the
properties of the Company or any such Subsidiary is subject (other than in
connection with a "Change in Control," as such term is defined in the Credit
Agreement, or a "Change of Control," as such term is defined in the Indenture,
resulting from the appointment of additional members of the Board of Directors
pursuant to Section D of Article VIII of the Senior Certificates of Designations
or resulting from any action taken by the Investor or any of its Affiliates that
is permitted under Section 6.01(b) hereof).
Section 3.04. Capitalization; Securities. (a) As of the date hereof, the
authorized capital stock of the Company consists of (i) 80,000,000 shares of
Common Stock, of which 31,788,288 shares were outstanding as of July 13, 1999,
6,034,079 are reserved for issuance under the Option Plans, 4,732,333 are
reserved for issuance pursuant to the Company Warrants and 23,262 shares are
reserved for issuance pursuant to the option granted to Paul G. Shoffeit, which
is disclosed on Schedule 3.04(d) hereto, and (ii) 10,000,000 shares of preferred
stock, without par value, of which no shares are outstanding, no shares have
been designated and no shares are reserved for issuance. All of such outstanding
shares of Common Stock were duly authorized and validly issued and are fully
paid and non-assessable and are validly listed for trading on the NYSE.
(b) Except for the Company Warrants and the options granted pursuant to the
Option Plans or as set forth on Schedule 3.04(b) hereto, there are no authorized
or outstanding (or any obligations to authorize or issue) Derivative Securities.
(c) As of the date hereof, the Company and its Subsidiaries have no outstanding
Indebtedness other than (i) Indebtedness outstanding pursuant to the Credit
Agreement not in excess of $500,000,000 in principal amount in the aggregate,
(ii) Senior Subordinated Notes with an aggregate principal amount of
$625,000,000, (iii) inter-company Indebtedness among Subsidiaries of the Company
or among Subsidiaries of the Company and the Company, and (iv) other
Indebtedness not in excess of $25,000,000 in principal amount in the aggregate.
A true, complete and correct copy of each of the Credit Agreement, the Indenture
and each other instrument or agreement governing Indebtedness of the Company or
any of its Subsidiaries the principal amount of which exceeds $10,000,000,
including the respective exhibits and schedules thereto and any other material
documents executed in connection therewith, has been delivered to the Investor.
(d) Subject to the filing of the Certificates of Designations with the Secretary
of State of the State of Delaware, the shares of Preferred Stock to be issued
pursuant to this Agreement have been duly and validly authorized and, when
issued as contemplated by this Agreement, will have been validly issued and will
be fully paid and nonassessable. The Conversion Shares have been duly and
validly authorized and validly reserved for issuance, and when issued upon the
conversion of the Senior Preferred Stock will have been validly issued and will
be fully paid and non-assessable. Except as set forth in Schedule 3.04(d)
hereto, the registration of the Senior Preferred Stock, Junior Shares,
Conversion Shares, Dividend Shares or Debentures pursuant to the Registration
Rights Agreement will not give rise to any registration rights on behalf of any
Person under any agreement or instrument applicable to the Company (other than
the Registration Rights Agreement). Except as set forth in Schedule 3.04(d)
hereto, other than pursuant to the Registration Rights Agreement, no Person has
any right to require the Company to register securities of the Company under the
Securities Act, and there are no shareholder or similar agreements to which the
Company is a party. Prior to the issuance thereof, the Debentures will have been
duly and validly authorized by the Company and, upon execution and delivery
thereof in accordance with the terms of the Senior Preferred Stock, will
constitute legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally
and to general principles of equity.
Section 3.05. Subsidiaries; Equity Investments. (a) Schedule 3.05(a) hereto
lists, for each Significant Subsidiary of the Company, the name of such
Subsidiary, together with (i) the jurisdiction and nature (e.g., corporation,
partnership, limited liability company) of its organization, (ii) the number and
percentage of shares of each class of such Subsidiary's Equity Securities owned
by the Company or any of its Wholly-Owned Subsidiaries, (iii) the identity of
the record holder(s) and the name and number of shares of each class of such
Subsidiary's Equity Securities owned by any Person other than the Company or its
Wholly-Owned Subsidiaries, and (iv) the identity of any Person other than the
Company or its Wholly-Owned Subsidiaries that has the right (including upon the
passage of time or upon the occurrence of specified events) to acquire any of
such Subsidiary's Equity Securities. Such list is true, correct and complete as
of the date hereof. The Equity Securities of each such Subsidiary owned,
directly or indirectly, by the Company are held free and clear of all Liens
except as set forth on Schedule 3.05(a), and all Equity Securities of such
Subsidiary have been duly authorized and validly issued and are fully paid and
nonassessable.
(b) Except for the Equity Securities of the Subsidiaries of the Company, the
Equity Securities listed on Schedule 3.05(b) hereto, and any Equity Securities
acquired after the date hereof in transactions permitted pursuant to Section
7.02(a) hereof, the Company does not, directly or indirectly, (i) Beneficially
Own or own of record any Equity Securities of, or any other equity interest in,
any other Person or (ii) have any other equity investment or other ownership
interest in any other Person other than, in each case, such investments or other
ownership interests valued at less than $1,000,000 individually and $5,000,000
in the aggregate.
(c) Other than as set forth on Schedule 3.05(c) hereto, as of the date hereof,
neither the Company nor any of its Significant Subsidiaries is obligated,
pursuant to any agreement or instrument applicable to the Company or such
Subsidiary, to purchase any Equity Securities of, or make any other equity
investment in, any Person, other than such Equity Securities or other equity
investments valued at less than $1,000,000 individually and $5,000,000 in the
aggregate.
(d) Schedule 1.01(D) hereto includes all Subsidiaries of the Company that are
"Significant Subsidiaries" (as such term is defined in Regulation S-X under the
Exchange Act, as in effect on the date hereof) of the Company.
Section 3.06. Dividends, Stock Repurchases, Etc. Other than as set forth on
Schedule 3.06 hereto, pursuant to this Agreement, the Indenture (as in effect on
the date hereof) or the Credit Agreement (as in effect on the date hereof), or
as restricted or limited by applicable Law, there are no contractual or other
restrictions or limitations on the ability of the Company or any of its
Significant Subsidiaries to pay any dividends or make any other distributions
on, or to purchase, redeem or otherwise acquire, any of its Equity Securities.
Section 3.07. Company Reports; Financial Statements. (a) The Company has
delivered to the Investor a true and complete copy of (i) the Company's Annual
Report on Form 10-K for each of the fiscal years ended September 30, 1998, 1997,
1996, 1995 and 1994; (ii) the Company's Quarterly Report on Form 10-Q for each
of the periods ended December 31, 1998 and March 31, 1999 and (iii) each
registration statement, report on Form 8-K, proxy statement, information
statement or other report or statement filed by the Company with the Commission
since September 30, 1994 and prior to the date hereof, in each case in the form
(including exhibits and any amendments thereto) filed with the Commission
(collectively, the "SEC Reports"). As of their respective dates, the SEC Reports
and any registration statement, report, proxy statement, information statement
or other statement filed by the Company with the Commission before the Closing
Date (collectively, the "Subsequent Reports") (i) was, or will be, as the case
may be, timely filed with the Commission; (ii) complied, or will comply, as the
case may be, in all material respects, with the applicable requirements of the
Exchange Act and the Securities Act, and (iii) did not, or will not, as the case
may be, contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. Other than the SEC Reports or, with respect to Subsequent
Reports required to be filed after the date hereof, such filings as have been
made, the Company has not filed or been required to file any other reports or
statements with the Commission since September 30, 1994.
(b) Each of the consolidated balance sheets (including the related notes and
schedules) included in or incorporated by reference into the SEC Reports or any
Subsequent Reports fairly presents, or will fairly present, as the case may be,
in all material respects, the consolidated financial position of the entities to
which it applies as of the date thereof, and each of the consolidated statements
of income (or statements of results of operations), stockholders' equity and
cash flows (including the related notes and schedules) included in or
incorporated by reference into the SEC Reports or any Subsequent Reports, fairly
presents or will fairly present, as the case may be, in all material respects,
the results of operations, retained earnings and cash flows, as the case may be,
of the entities to which it applies (on a consolidated basis) for the periods or
as of the dates, as the case may be, set forth therein, in each case in
accordance with GAAP applied on a consistent basis throughout the periods
covered (except as stated therein or in the notes thereto) and in compliance
with the rules and regulations of the Commission.
(c) The Annual Statements and Quarterly Statements of each Subsidiary of the
Company that is required to file such statements (each, a "Regulated
Subsidiary"), as filed with the Department of Insurance, Superintendent of
Insurance or similar insurance regulatory authority of the state of domicile of
such Regulated Subsidiary (with respect to each Regulated Subsidiary, its
"Applicable Insurance Department") for the fiscal year ended September 30, 1998
and the quarters ended December 31, 1998 and March 31, 1999, respectively,
together with any notes, exhibits and schedules thereto, have been prepared in
accordance with the accounting practices prescribed or permitted by the
Applicable Insurance Department for purposes of financial reporting to the
applicable state's insurance regulators ("State Statutory Accounting
Practices"), and such accounting practices have been applied on a basis
consistent with State Statutory Accounting Practices throughout the periods
involved, except as expressly set forth in any notes, exhibits and schedules
thereto.
(d) The regulatory capital funding requirements of the Regulated Subsidiaries
are, in all material respects, as previously disclosed by the Company to the
Investor (the "Capital Funding Requirements Disclosure").
(e) The Company is eligible to register securities for offer and sale on Form
S-3 under the Securities Act.
Section 3.08. Undisclosed Liabilities. Except as disclosed on Schedule 3.08
hereto, at September 30, 1998, there were no liabilities or obligations of any
nature (whether accrued, absolute, fixed, contingent, liquidated, unliquidated
or otherwise and whether due or to become due) required by GAAP to be set forth
on (i) the Balance Sheet (as defined below) of the Company except as reflected
or reserved against on the consolidated balance sheet of the Company at
September 30, 1998 as set forth in the SEC Reports (the "Balance Sheet") or in
the notes thereto or (ii) the consolidated balance sheet of any other entity
included in the SEC Reports except as reflected or reserved against on such
balance sheet included in the Company's Annual Report on Form 10-K for the
fiscal year ended September 30, 1998, as amended through the date hereof, or in
the notes thereto. Since September 30, 1998, the Company has not incurred any
liabilities or obligations except such as would not, individually or in the
aggregate, have a Material Adverse Effect.
Section 3.09. Absence of Certain Changes. Except for transactions contemplated
by the Transaction Agreements (including, without limitation, transactions
expressly permitted pursuant to Section 7.02 hereof), transactions with respect
to which the Investor shall have given its prior written consent, or
transactions disclosed in the SEC Reports, on Schedule 3.09 hereto or in the
Proposed Asset Sale Letter, from September 30, 1998 to the Closing, the Company
and its Significant Subsidiaries have conducted their business in the ordinary
and usual course, and there has not been any of the following:
(i) any change or amendment to the Certificate of Incorporation or Bylaws or the
certificate or articles of incorporation, bylaws or other organizational
documents of any Significant Subsidiaries of the Company;
(ii) any issuance or sale, or any direct or indirect purchase, redemption or
other acquisition of any shares of their respective Equity Securities or any
Derivative Securities by the Company or any of its Significant Subsidiaries,
other than pursuant to this Agreement, the Company Warrants or the Option Plans;
(iii) any dividend or other distribution declared, set aside, paid or made with
respect to their respective Equity Securities by the Company or any of its
Significant Subsidiaries, except (x) dividends or other distributions made to
the Company or to any Subsidiary of the Company and (y) dividends and
distributions declared, set aside, paid or made by any joint venture in which
the Company or any Significant Subsidiary owns an equity interest, which
dividends and distributions were declared, set aside, paid or made in accordance
with the organizational documents or related service agreements of such joint
venture as in effect on the date of such payment;
(iv) any acquisition or disposition of assets by the Company and its
Subsidiaries having a fair value or for a purchase price in excess of
$5,000,000, in the aggregate, other than acquisitions or dispositions made in
the ordinary course of business and acquisitions or dispositions among the
Company and its Subsidiaries or among such Subsidiaries;
(v) any increase in excess of $5,000,000 in the Indebtedness of the Company and
its Subsidiaries, taken as a whole, other than (x) advances to the Company
pursuant to the revolving credit facility under the Credit Agreement in an
amount not in excess of $60,000,000, in the aggregate, outstanding at any time
and (y) changes in inter-company Indebtedness among the Company and its
Subsidiaries or among Subsidiaries of the Company, which changes were permitted
under the Credit Agreement (as in effect on the date hereof);
(vi) any amendment of any mortgage, Lien, lease, Regulatory Approval, loan
agreement, indenture or other agreement, instrument or document, which amendment
is material to the Company and its Subsidiaries, taken as a whole;
(vii) any default, event of default or breach (or any event which, with notice
or the passage of time or both, would constitute a default, event of default or
breach) by the Company or any of its Subsidiaries of any credit, financing or
other agreement or instrument relating to any Indebtedness (including, without
limitation, the Credit Agreement or the Indenture), which default, event of
default or breach is material to the Company and its Subsidiaries, taken as a
whole;
(viii) any damage, destruction, theft or other casualty loss (whether or not
covered by insurance) that is material to the Company and its Subsidiaries taken
as a whole;
(ix) any commitment, agreement or transaction entered into, amended, or
terminated (or any waiver of any rights or remedies under any of the foregoing)
by the Company or any of its Subsidiaries (including any agreement with respect
to any ongoing or threatened litigation) that is material to the Company and its
Subsidiaries, taken as a whole, other than in the ordinary course of business;
(x) any entry into or amendment of any material employment, severance,
compensation, consulting, retention, change of control or similar agreement
with, or any material increase in the compensation or benefits payable or to
become payable by the Company or any of its Subsidiaries to, any employee of the
Company or any of its Subsidiaries (other than agreements terminable without
penalty or similar payment by the Company or such Subsidiary, as the case may
be, on not more than 30 days' notice and increases in compensation payable or to
become payable to employees (other than directors or officers) in the ordinary
course of business consistent with past practice);
(xi) any change in the financial accounting methods, principles or practices of
the Company and its Subsidiaries for financial accounting purposes, except as
required by GAAP or applicable Law;
(xii) any adoption of any agreement or understanding with respect to any Control
Transaction, merger, consolidation or other reorganization with respect to the
Company or any of its Significant Subsidiaries, or any adoption of any plan,
agreement or arrangement with respect to, or resolutions providing for, the
liquidation or dissolution of the Company or any of its Significant
Subsidiaries;
(xiii) any settlement or compromise of any Proceeding other than those in which
the amount paid (to the extent not reimbursed with the proceeds of any Policy)
does not exceed $2,000,000;
(xiv) any change, condition, occurrence, circumstance or other event that,
individually or in the aggregate, has had or is reasonably likely to have a
Material Adverse Effect; or
(xv) any commitment or agreement to do any of the foregoing, except as otherwise
required or expressly permitted by this Agreement.
Section 3.10. Property. (a) Except as set forth on Schedule 3.10(a) hereto, each
of the Company and its Significant Subsidiaries has good and marketable title to
all property owned by each of them, in each case free and clear of any Liens,
except for Liens created pursuant to the Credit Agreement (as in effect on the
date hereof) or permitted to exist under Section 6.02 under the Credit Agreement
(as in effect on the date hereof), and any real property and buildings held
under lease by the Company or any such Subsidiary are held under a valid,
subsisting and enforceable lease, with such exceptions as are not material and
do not interfere with the use made or proposed to be made of such property and
buildings by the Company or such Subsidiary.
(b) Each of the Company and its Significant Subsidiaries owns or possesses the
rights to use, and is in compliance with, in all material respects, all
Intellectual Property that is used or required by it in the conduct of its
business and all such Intellectual Property is in full force and effect and will
not cease to be in full force and effect in accordance with its terms by virtue
of the consummation of the transactions contemplated by the Transaction
Agreements. Neither the Company nor any of its Subsidiaries has received any
notice of, and they have no knowledge of, (i) any infringement of or conflict
with asserted rights of others with respect to any Intellectual Property owned
or used by the Company or any of its Subsidiaries, (ii) any challenge to the
ownership of or validity or effectiveness of any license for the use of any
Intellectual Property owned or used by the Company or any of its Subsidiaries,
or (iii) any claim against the use by the Company or any of its Subsidiaries of
any Intellectual Property owned or used by it, except, in each case, for such
matters that would not, individually or in the aggregate, have a Material
Adverse Effect.
Section 3.11. Litigation. Except as expressly disclosed in the SEC Reports or on
Schedule 3.11 hereto, there are no claims, suits, actions, proceedings,
arbitrations or investigations (each, a "Proceeding") pending or, to the
knowledge of the Company or its Subsidiaries, explicitly threatened, against or
affecting the Company or any of its Subsidiaries, that involve a claim against
the Company or any of its Subsidiaries in a stated amount in excess of
$5,000,000, that may involve criminal liability or result in or involve criminal
proceedings, that may affect the status of any Regulatory Approval maintained by
the Company or any Subsidiary, that may affect the authority of the Company or
any Subsidiary to participate in the federal Medicare program, any state
Medicaid program or any other material third party payor program or that,
individually or in the aggregate, are reasonably likely to have a Material
Adverse Effect; and except as so disclosed, there are no judgments, decrees,
injunctions, rules, stipulations or orders outstanding against or applicable to
the Company or any of its Subsidiaries or against or applicable to any of their
respective properties or businesses that, individually or in the aggregate, are
reasonably likely to have a Material Adverse Effect. It is understood that this
Section 3.11 shall not apply to any Joint Venture.
Section 3.12. Compliance with Laws; Regulatory Approvals. Except as disclosed in
the SEC Reports or in Schedule 3.12 hereto, since January 1, 1994, the
businesses of the Company and its Significant Subsidiaries have been conducted,
and the businesses of the Company and its Significant Subsidiaries currently are
being conducted, in compliance with all applicable Laws in all material
respects. Since January 1, 1994, all material Regulatory Approvals required by
the Company and its Significant Subsidiaries to conduct their respective
businesses have been obtained, and all material Regulatory Approvals required by
the Company and its Significant Subsidiaries to conduct their respective
businesses as now conducted by them are in full force and effect. Except as
disclosed in the SEC Reports or on Schedule 3.12 hereto, the Company and its
Significant Subsidiaries are in compliance with the terms and requirements of
such Regulatory Approvals in all material respects. Except as disclosed on
Schedule 3.12 hereto, since January 1, 1994, none of the Company or any of its
Significant Subsidiaries has received any written notice or other written
communication from or on behalf of any Governmental Entity regarding (i) any
prior, pending, threatened or possible revocation, withdrawal, suspension,
termination or modification of, or the imposition of any material conditions
with respect to, any Regulatory Approval or the participation by the Company, or
any such Subsidiary, in the federal Medicare program, any state Medicaid
program, or any other third party payor program, except for any such revocation,
withdrawal, suspension, termination, modification or condition that would not
have a Material Adverse Effect, (ii) any material violation of any Law by the
Company or any such Subsidiary, (iii) any prior, pending, threatened or possible
investigation involving or otherwise relating to any material Regulatory
Approval or the participation by the Company, or any such Subsidiary, in the
federal Medicare Program, any state Medicaid program, or any other material
third party payor program or (iv) any other limitations on the conduct of
business by the Company or any such Subsidiary that would have a Material
Adverse Effect. To the knowledge of the Company and its Subsidiaries, no
currently proposed Law or proposed change in existing Law is reasonably likely
to have a Material Adverse Effect. It is understood that this Section 3.12 shall
not apply to any Joint Venture.
Section 3.13. Taxes. (a) Except as disclosed on Schedule 3.13 hereto, the
Company and its Subsidiaries have timely filed (taking into account available
extensions) all U.S. federal, state, local, foreign and other tax returns
(including any information returns), reports and statements that are required to
have been filed with the appropriate taxing authorities. All information
provided in such returns, reports and statements is complete and accurate in all
material respects. The Company and its Subsidiaries have paid all amounts due in
respect of Taxes (whether or not actually shown on such returns, reports or
statements), or have otherwise set up reserves in accordance with GAAP in
respect of all Taxes for the periods covered by such Tax Returns, as well as all
other Taxes, penalties, interest, fines, deficiencies, assessments and
governmental charges that have become due or payable (including, without
limitation, all Taxes that the Company and its Subsidiaries are obligated to
withhold from amounts paid or payable to or benefits conferred upon employees,
creditors and third parties). As of the date hereof, there is no proposed
liability for any material Tax to be imposed upon the Company or any of the
Subsidiaries for the fiscal year ended September 30, 1998 and all prior years
for which there is not an adequate reserve, considering such reserves in the
aggregate.
(b) Except as disclosed on Schedule 3.13 hereto, no audits or investigations
relating to any Taxes for which the Company or its Subsidiaries may be liable
are pending or threatened in writing by any taxing authority. Except as
disclosed on Schedule 3.13 hereto, there are no agreements or applications by
the Company or any of its Subsidiaries for the extension of the time for filing
any tax return or paying any Tax nor have there been any waivers of any statutes
of limitation for the assessment of any Taxes.
(c) Neither the Company nor any of its Subsidiaries is a party to any agreements
relating to the sharing or allocation of Taxes.
(d) As of October 1, 1998, for federal income tax purposes, the Company had net
operating loss carryforwards ("NOLs") arising in the years, and for each such
year, in the amounts, disclosed on Schedule 3.13(d) hereto. Except as disclosed
on Schedule 3.13(d) hereto, to the knowledge of the Company and its
Subsidiaries, based on their reasonable good faith analysis of the applicable
facts (which, to the knowledge of the Company and its Subsidiaries, have in all
material respects been disclosed to, or have otherwise been obtained by, the
Investor and the accounting firm representing the Investor in connection with
this Agreement) and relevant legal authorities: (i) assuming the Series A
Preferred Stock and Series B Preferred Stock were deemed to be issued on the
date of this Agreement, (a) the NOLs of the Company and its Subsidiaries are not
subject to limitation under Code section 382 and will not become subject to
limitation under Code section 382 immediately following such deemed issuance of
the Series A Preferred Stock and Series B Preferred Stock, and (b) taking into
account such deemed issuance, the increase in the percentage of the Company's
stock owned by one or more 5% shareholders, within the meaning of Code section
382 and the relevant Treasury Regulations promulgated thereunder, during the
three-year testing period ending on the date of such deemed issuance, relative
to the lowest percentage of stock owned by such shareholders during such testing
period, does not exceed 35%; (ii) the NOLs of the Company and its Subsidiaries
are not separate return limitation year ("SRLY") losses within the meaning of
Code section 1502 and the Treasury Regulations promulgated thereunder; and (iii)
the Investor and the accounting firm representing the Investor are aware of all
transfers or issuances of the Company's shares which have occurred during the
three-year testing period ending on the date of issuance of the Series A
Preferred Stock and Series B Preferred Stock of which the Company has knowledge
and which involve more than 5% of the Company's outstanding shares or which were
issued to, or acquired by, an owner of more than 5% of the Company's outstanding
shares. The representations made in clause (i) of this Section 3.13(d), when
reaffirmed by the Company as of the Closing Date pursuant to Section 9.01(a)
hereof, shall be modified by taking into account the actual issuance of the
Series A Preferred Stock at the Closing.
(e) Except as disclosed on Schedule 3.13(e) hereto, the Company or its
Subsidiaries have withheld from its employees and timely paid to the appropriate
taxing authority proper and accurate amounts in all material respects through
all periods in compliance in all material respects with all employee Tax
withholding provisions of all applicable Laws.
Section 3.14. ERISA and Other Employment Matters.
(a) Schedule 3.14(a) lists each material employee benefit plan (within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA")), whether or not subject to ERISA, and each material bonus,
incentive or deferred compensation, stock option or other equity based,
severance, termination, or fringe benefit or other material benefit, plan,
program or policy, maintained, sponsored or contributed to by the Company or any
of its Subsidiaries or to which any such Person is or has been obligated to
contribute (collectively, the "Plans"). Neither the Company nor any of its
Subsidiaries is or, within the preceding six years, has been obligated to
contribute to any "multiemployer plan" as defined in Section 3(37) of ERISA.
Except as set forth on Schedule 3.14(a), none of the Company nor any of its
Subsidiaries has an express or implied commitment, (i) to create, incur
liability with respect to or cause to exist any material employee benefit plan,
program or arrangement other than the Plans or (ii) except for amendments
necessary or appropriate to comply with applicable Law, to modify, change or
terminate any Plan. Schedule 3.14(a) indicates which of such Plans is subject to
ERISA.
(b) Except as set forth in Schedule 3.14(b), neither the execution and delivery
of the Transaction Agreements nor the consummation of the transactions
contemplated thereby will (i) accelerate the time of payment, vesting or funding
of, or increase or modify the amount or terms of, any compensation or benefits
that are or may become payable from or by the Company or any of its Subsidiaries
to or in respect of any current or former executive officer or other key
employee of any such Person, or (ii) constitute a Change in Control under any of
the Employment Agreements with any such executive officer or other key employee.
(c) All employer and employee contributions, premiums and expenses payable to or
in respect of any Plan or required by Law or any Plan or labor agreement or
arrangement have been timely paid, or, if not yet due, have been fully and
adequately accrued as a liability on the Company's financial statements included
in the SEC Reports and no Plan is subject to Section 412 of the Code or Section
302 of ERISA.
(d) Except as set forth on Schedule 3.14(d), (i) no trade or business, whether
or not incorporated, is or has been treated as a single employer together with
the Company for any purpose under ERISA or Section 414 of the Code other than
the Company's Subsidiaries, (ii) no material liability under Title I or IV of
ERISA or the penalty or excise tax provisions of the Code relating to employee
benefit plans or employee compensation has been incurred (directly or
indirectly, including as a result of any indemnification obligation or
agreement) by the Company or any of its Subsidiaries and is still outstanding,
and no event, transaction or condition has occurred or exists which is
reasonably expected to result in any material liability to the Company, any of
its Subsidiaries or, following the Closing, the Investor or any Affiliate
thereof, and (iii) no reportable event, within the meaning of Section 4043 of
ERISA and the regulations of the PBGC promulgated thereunder, has occurred that
is reasonably expected to result in the imposition of any material liability to
the Company or any of its Subsidiaries, or will occur in connection with the
consummation of the transactions contemplated by this Agreement, with respect to
any Plan.
(e) Each Plan has been operated and administered and is in compliance with all
applicable Laws except for any failures that, individually and in the aggregate,
would not result in any material liability of the Company or any of its
Subsidiaries. Except as set forth in Schedule 3.14(e), each Plan that is
intended to qualify under Section 401(a) of the Code has received a favorable
determination from the Internal Revenue Service as to its qualification and, to
the knowledge of the Company and its Subsidiaries, no event or condition has
occurred or exists since the date of such letter that could result in the
disqualification of such Plan.
(f) Except for the agreements set forth on Schedule 3.14(f), none of the Company
or any of its Subsidiaries is a party to any collective bargaining agreements
and there are no labor unions or other organizations representing, or to the
knowledge of the Company and its Subsidiaries, purporting to represent or
attempting to represent, any employee of the Company or any of its Subsidiaries.
(g) Neither the Company nor any of its Subsidiaries has violated any provision
of Law regarding the terms and conditions of employment of employees, former
employees or prospective employees or other labor related matters, including,
without limitation, Laws relating to discrimination, fair labor standards and
occupational health and safety, wrongful discharge or violation of the personal
rights of employees, former employees or prospective employees, which is
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect.
Section 3.15. Contracts. (a) Except as set forth on Schedule 3.15(a) hereto and
other than the Option Plans, neither the Company nor any of its Subsidiaries is
a party or subject to any of the following (whether written or oral, express or
implied): (i) any Employment Agreement or understanding or obligation, with
respect to severance, termination, retention or change in control, to pay
liabilities or fringe benefits, with any present or former Representative of the
Company or any of its Subsidiaries, who is or may be entitled to receive
pursuant to the terms thereof, compensation in excess of $400,000 upon
termination of such Person's employment or engagement; or (ii) any plan,
contract or understanding providing for bonuses, pensions, options, deferred
compensation, retirement payments, royalty payments, profit sharing or similar
payment or benefit with respect to any present or former Representative of the
Company or any of its Subsidiaries, who is or may be entitled to receive
pursuant to the terms thereof, base compensation in excess of $400,000 in any
single year.
(b) Except as set forth on Schedule 3.15(b) hereto, none of the Company, any of
its Subsidiaries, or to the knowledge of the Company and its Subsidiaries, any
other party, is in breach or violation or in default in the performance or
observance of any term or provision of any contract, agreement, indenture,
mortgage, loan agreement, note, lease or other instrument to which the Company
or any such Subsidiary is a party or by which the Company or any such Subsidiary
is bound or to which any of the properties of the Company or any such Subsidiary
is subject, which breach, violation or default is reasonably likely to,
individually or in the aggregate, involve a claim against the Company or any of
its Subsidiaries in an amount in excess of $3,000,000 or have a Material Adverse
Effect.
(c) The maximum amount payable by the Company on or after the date hereof
pursuant to deferred earn-out and other performance-based payment obligations in
connection with any acquisition or similar transaction effected prior to the
date hereof will not exceed $294,000,000, in the aggregate.
Section 3.16. Client Relations. Schedule 3.16 hereto contains an accurate and
complete listing for the Company and its Subsidiaries, taken as a whole, of the
clients that generated in excess of $6,000,000 in revenues and the revenues for
each such client for the fiscal year ended September 30, 1998. Except as set
forth on Schedule 3.16 hereto, as of the date hereof, no current client of the
Company or any of its Subsidiaries that in the fiscal year ended September 30,
1998 generated in excess of $6,000,000 in revenues has advised the Company or
any of its Subsidiaries that it is not continuing, or is terminating, or is
making a material adverse change with respect to, its business with the Company
or any of its Subsidiaries.
Section 3.17. Financial Advisors and Brokers; Fairness Opinion. (a) Except for
Evercore Partners, Inc. and Morgan Stanley Dean Witter no Person has acted,
directly or indirectly, as a broker, finder or financial advisor of the Company
in connection with the Transaction Agreements or the transactions contemplated
thereby, and no Person is entitled to receive any broker's, finder's or similar
fee or commission in respect thereof based in any way on any agreement,
arrangement or understanding made by or on behalf of the Company, any of its
Subsidiaries or any of their respective directors, officers or employees. True
and correct copies of all agreements between the Company, on the one hand, and
Evercore Partners, Inc. or Morgan Stanley Dean Witter (or any of their
respective Affiliates), on the other, have been delivered to the Investor.
(b) The Company has received an opinion of Morgan Stanley Dean Witter to the
effect that the consideration to be paid to the Company for the shares of Series
A Preferred Stock and Series B Preferred Stock to be sold hereunder is fair,
from a financial point of view, to the Company.
Section 3.18. Exemption from Registration. Assuming the representations and
warranties of the Investor set forth in Article IV hereof are true and correct
in all material respects, the offer and sale of the Senior Preferred Stock made
pursuant to this Agreement and the acquisition of the Conversion Shares upon
conversion of the Senior Preferred Stock will be in compliance with the
Securities Act and any applicable state securities laws and will be exempt from
the registration requirements of the Securities Act and such state securities
laws.
Section 3.19. Insurance. Set forth on Schedule 3.19 hereto is a description that
is correct and complete in all material respects (specifying the insurer, the
policy number or covering note number with respect to binders and amount of
coverage) of insurance policies, binders, contracts or instruments
(collectively, the "Policies") to which the Company or any of its Subsidiaries
is a party or by which any of their assets or any of their employees, officers
or directors (in such capacity) are covered by property, fire, professional
liability, fiduciary and other insurance. True and complete copies of all such
Policies have been made available to the Investor. Except as set forth on
Schedule 3.19 hereto, all such Policies are in full force and effect in
accordance with their respective terms and will remain in full force and effect
after the Closing. Except as set forth on Schedule 3.19 hereto, neither the
Company nor any of its Subsidiaries has received any notice of default with
respect to any provision of any such Policies, or any notice that the Insurer is
unwilling to renew any such Policy following the currently scheduled expiration
of such Policy or intends to materially modify any term of any such renewed
Policy as compared to the existing Policy. With respect to its directors' and
officers' liability insurance policies, neither the Company nor any of its
Subsidiaries has failed to give any notice or present any claim thereunder in
due and timely fashion or as required by any such policies so as to jeopardize
full recovery under such Policies.
Section 3.20. Rights Agreement. No "Distribution Date" or "Stock Acquisition
Date" (as such terms are defined in the Rights Agreement, dated as of July 21,
1992, between the Company and First Union Bank of North Carolina, as Rights
Agent (the "Rights Plan")) has occurred as of this date. The execution and
delivery of the Transaction Agreements and the consummation of the transactions
contemplated hereby will not result in the ability of any Person to exercise any
rights ("Rights") issued under the "Rights Plan" or cause the Rights to separate
from the shares of Common Stock to which they are attached or to be triggered or
become exercisable.
Section 3.21. Disclosure. No representation or warranty by the Company in this
Agreement, and no exhibit, document, statement, certificate or schedule
furnished or to be furnished to the Investor pursuant to the terms hereof,
contains or will contain any untrue statement of a material fact, or omits or
will omit to state a material fact necessary to make the statements or facts
contained herein or therein not misleading or necessary to provide the Investor
with adequate and complete information as to the Company, its Significant
Subsidiaries or its Subsidiaries, as the case may be, and the businesses, assets
and liabilities of the Company, its Significant Subsidiaries or its
Subsidiaries, as the case may be.
Section 3.22. Year 2000 Compliance. The Company has carried out a review to
evaluate the extent to which the business or operations of the Company or any of
its Subsidiaries will be affected by the Year 2000 Problem. The Year 2000
Problem will not have a Material Adverse Effect or result in any material loss
or interference with the business or operations of the Company or its
Subsidiaries. The Company reasonably believes, after due inquiry, that the
suppliers, vendors, customers or other material third parties used or served by
the Company and its Subsidiaries are addressing or will address the Year 2000
Problem in a timely manner. The Company is in compliance in all material
respects with all applicable requirements of any Governmental Entity or
applicable Law relating to the Year 2000 Problem. The Company has delivered to
the Investor complete and accurate copies of all of its internal plans,
including estimates of the anticipated associated costs, for addressing the Year
2000 Problem as it relates to the Company and its Subsidiaries.
Section 3.23. Environmental Matters. Except as set forth on Schedule 3.23
hereto, the Company and its Subsidiaries are (i) in compliance in all material
respects with any and all applicable Environmental Laws, (ii) have received and
are in compliance in all material respects with all permits, licenses or other
approvals required under applicable Environmental Laws for the conduct of their
respective businesses, and (iii) have not received notice of any actual or
potential material liability for the investigation or remediation of any
disposal or release of Hazardous Materials.
Section 3.24. Controls. The Company and each of its Subsidiaries maintains
internal information systems and controls sufficient to provide reasonable
assurance that (i) material transactions are executed in accordance with
management's general or specific authorizations, and (ii) material transactions
(including payment of claims and collection of receivables) are executed in
accordance with their terms and applicable Law and are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to
maintain asset accountability.
Section 3.25. Joint Venture Matters. Except as disclosed in the SEC Reports or
in Schedule 3.25 hereto, to the knowledge of the Company and its Subsidiaries,
since January 1, 1994 (or with respect to any Joint Venture (and only with
respect to such Joint Venture), if later, the date on which the Company or any
of its Subsidiaries first acquired an equity interest in such Joint Venture or
any of the businesses conducted by such Joint Venture), none of the following
has occurred that, individually or in the aggregate, has had, or would be
reasonably likely to have, a Material Adverse Effect:
(a) the failure of any Joint Venture to comply with all applicable
Laws and Regulatory Approvals in the conduct of its business;
(b) the failure of any Joint Venture to obtain and maintain in full
force and effect all Regulatory Approvals necessary to conduct its
business;
(c) the revocation, withdrawal, suspension or termination of, or any
threatened or pending revocation, withdrawal, suspension or termination of,
or the imposition of any material conditions with respect to, any
Regulatory Approval necessary for any Joint Venture to conduct its
business;
(d) the revocation, withdrawal, suspension or termination of, or any
threatened or pending revocation, withdrawal, suspension or termination of,
or the imposition of any material conditions with respect to, the
participation by any Joint Venture in the federal Medicare program, any
state Medicaid program, or any other third party payor program;
(e) the initiation of, or explicit threat of initiation of, any
Proceeding by any Person, or the initiation of, or explicit threat of
initiation of, any investigation by any Governmental Entity, against or
affecting any Joint Venture, that may involve criminal liability or result
in or involve criminal proceedings, that may affect the status of any
Regulatory Approval maintained by such Joint Venture that is necessary for
such Joint Venture to conduct its business, or that may affect the
authority of such Joint Venture to participate in the federal Medicare
program, any state Medicaid program or any other third party payor program;
(f) the institution of any judgment, decree, injunction, rule,
stipulation or order against or applicable to any Joint Venture or against
or applicable to any of its properties or businesses; or
(g) any other event or occurrence with respect to any Joint Venture
that has had, or would be reasonably likely to have, a Material Adverse
Effect.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
The Investor represents and warrants to, and agrees with, the Company as
follows:
Section 4.01. Organization. The Investor is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite power and authority to own or lease and operate
its properties and to conduct its business as it is now being conducted and is
proposed to be conducted.
Section 4.02. Authorization of Agreements. (a) The Investor has all requisite
power and authority as a limited liability company to execute, deliver and
perform its obligations under the Transaction Agreements and the Investor
Documents. The execution, delivery and performance of the Transaction Agreements
and the Investor Documents, and the consummation by the Investor of the
transactions contemplated thereby, have been duly authorized by all necessary
action on the part of the Investor.
(b) This Agreement and the Registration Rights Agreement have been duly executed
and delivered by the Investor, and each such agreement constitutes, and when
executed and delivered by the Investor, the Escrow Agreement will constitute, a
legal, valid and binding obligation of the Investor, enforceable against the
Investor in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and to general
principles of equity.
Section 4.03. Consents; No Conflicts. (a) Except for the Required Regulatory
Approvals, no Regulatory Approval from, or registration, declaration or filing
with, any Governmental Entity is required to be made or obtained by the Investor
in connection with the execution, delivery and performance of the Transaction
Agreements and the consummation of the transactions contemplated thereby.
(b) The execution and delivery of this Agreement and the Registration Rights
Agreement does not, and the execution and delivery of each of the Investor
Documents and the Escrow Agreement will not, and subject to the receipt of the
Required Regulatory Approvals, the performance of the obligations set forth
herein and therein and the consummation of the transactions contemplated hereby
and thereby will not, (i) violate any provision of the certificate of formation
of the Investor; (ii) conflict with, contravene or result in a breach or
violation of any of the terms or provisions of, or constitute a default (with or
without notice or the passage of time) under, or result in or give rise to a
right of termination, cancellation, acceleration or modification of any right or
obligation under, or require any consent, waiver or approval under, any note,
bond, debt instrument, indenture, mortgage, deed of trust, lease, loan
agreement, joint venture agreement, Regulatory Approval, contract or any other
agreement, instrument or obligation to which the Investor is a party or by which
the Investor or any of its property is bound, or (iii) violate any Law
applicable to the Investor.
Section 4.04. Financial Advisors and Brokers. No Person has acted directly or
indirectly as a broker, finder or financial advisor of the Investor in
connection with the Transaction Agreements or the transactions contemplated
thereby, and no Person is entitled to receive any broker's, finder's or similar
fee or commission in respect thereof based in any way on any agreement,
arrangement or understanding made by or on behalf of the Investor or any of its
directors, officers or employees.
Section 4.05. Ownership of Equity Securities; Purpose of Investment. Except as
permitted pursuant to Section 11.09 hereof, the Investor is acquiring the Senior
Preferred Stock under this Agreement for its own account solely for the purpose
of investment and not with a view to, or for sale in connection with, any
distribution thereof in violation of the Securities Act. The Investor
acknowledges that the Senior Preferred Stock and the Conversion Shares have not
been registered under the Securities Act and may be sold or disposed of in the
absence of such registration only pursuant to an exemption from the registration
requirements of the Securities Act. As of the date hereof, other than pursuant
to this Agreement, the Investor does not Beneficially Own, directly or
indirectly, or have any option or right to acquire, any securities of the
Company.
ARTICLE V
GOVERNANCE
Section 5.01. Board Size. For so long as the Investor is entitled to designate
an Investor Nominee for election to the Board of Directors, the Board of
Directors shall consist of no more than 12, nor less than 7, directors.
Section 5.02. Board Representation. (a) The Board of Directors shall elect a
total of three nominees designated in writing by the Investor prior to the
Closing (such persons, or replacements designated by the Investor, the "Investor
Nominees"), to the Board of Directors effective as of the Closing Date, to be
allocated to Class I, Class II and Class III as specified by the Investor.
Commencing with the annual meeting of stockholders of the Company the record
date for which next follows the Closing Date, and at each annual meeting of
stockholders of the Company thereafter, the Investor shall be entitled to
present to the Board of Directors or the nominating committee thereof a number
of nominees for election to the class of directors up for election to the Board
of Directors at such annual meeting equal to the number of Investor Nominees in
such class immediately prior to such election and the Company shall use its best
efforts to cause the election to the Board of Directors of such Investor
Nominees. If the Board of Directors shall cease to be a classified board, the
Investor shall be entitled to present to the Board of Directors or the
nominating committee thereof three nominees for election to the Board of
Directors at each annual meeting of stockholders of the Company. In the event of
the death, disability, resignation or removal of an Investor Nominee, the
Investor shall designate a replacement for such director, which replacement the
Company shall cause to be elected to the Board of Directors.
(b) The Company shall cause each Investor Nominee designated for election to the
Board of Directors pursuant to Section 5.02(a) hereof to be included in the
slate of nominees recommended by the Board of Directors to the stockholders of
the Company for election as directors at the relevant annual meeting of the
stockholders, and shall use its best efforts to cause the election of each such
Investor Nominee, including soliciting proxies in favor of the election of such
person.
(c) Notwithstanding the foregoing provisions of this Section 5.02, the Investor
shall not be entitled to designate Investor Nominees for election to the Board
of Directors in the event that the Investor and its Affiliates Beneficially Own,
in the aggregate, less than 50% of the Investor Original Number of Conversion
Shares. In the event that the Investor shall not be entitled to designate
Investor Nominees for election to the Board of Directors, the Investor Nominees
shall resign from the Board of Directors no later than the thirtieth day after
the day on which the Investor becomes aware that the aggregate Beneficial
Ownership of it and its Affiliates is reduced below the threshold ownership
level of Investor Original Number of Conversion Shares specified in this Section
5.02(c). If an Investor Nominee does not resign on or prior to such thirtieth
day as required pursuant to the immediately preceding sentence, a majority of
the Board of Directors (excluding any Investor Nominees) shall have the right to
remove such Investor Nominee from the Board of Directors.
(d) If the Board of Directors shall determine in good faith in the exercise of
its fiduciary duties, that nomination of any person designated by the Investor
for election to the Board of Directors would be contrary to the best interests
of the Company, then the Company shall promptly notify the Investor of such
determination (either in person, if such determination shall be made at a Board
of Directors meeting at which an Investor Nominee is present or by telephone
(promptly confirmed in writing), if such determination shall be made at a Board
of Directors meeting at which an Investor Nominee is not present) and thereafter
the Investor shall have a period of no less than five Business Days to designate
a new person for nomination for election to the Board of Directors as an
Investor Nominee. The Board of Directors has approved the executives of the
Investor set forth on Schedule 5.02(d) hereto as Investor Nominees for all
purposes hereof as of the date hereof.
Section 5.03. Committees; Meetings. (a) Effective as of the Closing Date, and
for so long as an Investor Nominee serves as a member of the Board of Directors,
the Investor shall have the option to have one Investor Nominee appointed as a
member to any committee of the Board of Directors; provided, however, that in
the event the rules of the primary national securities exchange or national
quotation system on which the Common Stock is then listed or quoted prohibits
the appointment of an Investor Nominee to one of the committees of the Board of
Directors, no Investor Nominee shall be appointed to such committee. In the
event the Investor elects to have an Investor Nominee appointed to a committee
of the Board of Directors, the Investor shall so notify the Company in writing,
and the Company shall appoint such nominee to such committee within 10 days of
the delivery of such notice by the Investor.
(b) From and after the Closing Date, for so long as an Investor Nominee serves
as a member of the Board of Directors, each Investor Nominee shall be invited to
attend all regular and special meetings of the Board of Directors and any
committee of the Board of Directors of which such Investor Nominee is a member.
The Company shall notify each Investor Nominee of any such meeting no later than
the time at which it notifies any other member of the Board of Directors of such
meeting. So long as the Investor has the right to have Investor Nominees elected
to committees of the Board of Directors, the Board of Directors shall have an
audit committee and a compensation committee.
ARTICLE VI
STANDSTILL
Section 6.01. Standstill Agreement. (a) The Investor covenants and agrees with
the Company that, from the date hereof through the Closing Date and thereafter
(subject to paragraphs (b) and (c) below) for a period of two years following
the Closing Date (the "Standstill Period"), the Investor and its Affiliates
shall not, without the prior approval of the Board of Directors:
(i) acquire, seek, propose or offer to acquire or agree to acquire (other than
(w) in accordance with the terms of this Agreement and the Certificates of
Designations; (x) as a result of a stock split, stock dividend or other
recapitalization by the Company or the exercise of rights or warrants
distributed to stockholders; (y) as a result of transfers among members of the
Investor Group of Senior Preferred Stock acquired pursuant to Article II hereof
or Voting Securities acquired pursuant to the exercise or conversion of, or in
respect of dividends payable on, any Senior Preferred Stock acquired pursuant to
Article II hereof, provided that the transferor did not itself acquire the
transferred securities in violation of this Section 6.01(a); or (z) in a
transaction in which the Investor and/or its Affiliates acquire Beneficial
Ownership of more than 50% of the Voting Power of the Voting Securities of a
previously non-Affiliated business entity that owns less than 5% of the
aggregate Voting Power of the outstanding Voting Securities of the Company if
such acquisition is not made in contemplation of any acquisition prohibited
under this subparagraph (a)), or commence or propose to commence any tender
offer or exchange offer seeking to acquire, Beneficial Ownership of any
additional Voting Securities of the Company;
(ii) become a member of a Group with respect to the Voting Securities of the
Company, other than a Group (x) composed solely of itself and its Affiliates, or
(y) to the extent of any Senior Preferred Stock acquired pursuant to Article II
hereof or Voting Securities acquired pursuant to the exercise or conversion of,
or in respect of dividends payable on, any Senior Preferred Stock acquired
pursuant to Article II hereof, composed of members of the Investor Group;
(iii) solicit any proxies or stockholder consents, or become a participant
(other than by voting), or encourage any Person to become a participant, in a
proxy or consent solicitation with respect to any of the Company's Voting
Securities, in each case other than solicitations to holders of shares of
Preferred Stock with respect to matters as to which the Preferred Stock is
entitled to vote;
(iv) call any special meeting of holders of Common Stock; or
(v) make any public disclosure, or take any action which could require the
Company to make any public disclosure, with respect to an offer, proposal or
transaction that if made or consummated without the prior approval of the Board
of Directors, would not be permitted under this Section 6.01.
(b) Notwithstanding anything to the contrary in this Section 6.01, the
provisions of Section 6.01(a) shall cease to be applicable in the event that (i)
the Company enters into a definitive agreement with respect to a Control
Transaction; (ii) a bona fide offer (other than an offer made only to the
Investor and its Affiliates) is made by any Person (other than the Investor or
an Affiliate of the Investor) to acquire more than 20% of any class of the
Company's Voting Securities; (iii) an Insolvency Event occurs; (iv) the Company
is in default on any of its Indebtedness the outstanding principal amount of
which is in excess of $10,000,000, which default is not cured or waived for 75
days and as a result of which default the maturity of such Indebtedness has been
accelerated or the holders thereof have the right to accelerate the maturity of
such Indebtedness; or (v) the Board of Directors (other than the Investor
Nominees) so determines. In the event the Company is soliciting proposals or
offers with respect to a Control Transaction from any Person (a "bidding
process") (other than the Investor or an Affiliate of the Investor), the Company
shall release the Investor and its Affiliates from the restrictions contained in
Section 6.01(a) to the extent necessary for the Investor and its Affiliates to
be permitted, on the same terms as bidders approved by the Company, to make such
a proposal or offer; provided, however, that if the Investor withdraws from the
bidding process or the Company terminates the bidding process, the Investor
shall thereafter continue to be subject to the restrictions contained in Section
6.01(a).
(c) Notwithstanding anything to the contrary in Section 6.01(a) hereof, during
the Standstill Period, the Investor and its Affiliates may acquire, seek,
propose or offer to acquire or agree to acquire, or commence or propose to
commence any tender offer seeking to acquire Beneficial Ownership of Voting
Securities of the Company (in addition to any Senior Preferred Stock acquired
pursuant to Article II hereof or Voting Securities acquired pursuant to the
exercise or conversion of, or in respect of dividends payable on, any Senior
Preferred Stock acquired pursuant to Article II hereof) representing up to 10%
of the Voting Power of the then-outstanding Voting Securities of the Company or,
if the Investor has received or is entitled to receive the Fund Amount pursuant
to Section 2.01(b) hereof, up to 15% of the Voting Power of the then-outstanding
Voting Securities of the Company; provided that no such action shall be taken
if, as a result thereof, the Voting Securities of the Company Beneficially Owned
by the Investor and its Affiliates, in the aggregate, would represent in excess
of 34.9% of the aggregate Voting Power of the outstanding Voting Securities of
the Company.
(d) The Company shall use its best efforts to prevent the consummation of any of
the transactions permitted by this Section 6.01 from resulting in the ability of
any Person to exercise any Rights issued under the Rights Plan (or similar
device adopted after the date hereof) or causing the Rights to separate from the
shares of Common Stock to which they are attached or to be triggered or become
exercisable.
(e) Section 6.01(a) hereof shall not apply to, nor in any manner restrict or
limit, any Investor Nominee in his or her capacity as a director of the Company.
ARTICLE VII
PRE-CLOSING COVENANTS
Section 7.01. Taking of Necessary Action. Each of the parties hereto agrees to
use its best efforts promptly to take or cause to be taken all actions and
promptly to do or cause to be done all things necessary, proper or advisable
under applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement in accordance with the terms of the
Agreement. Without limiting the foregoing, the Investor and the Company will use
their best efforts to make all filings with respect to (including filings under
the HSR Act), and obtain, all Required Regulatory Approvals and other Regulatory
Approvals necessary or, in the opinion of the Investor or the Company,
advisable, in order to permit the consummation of the transactions contemplated
hereby.
Section 7.02. Conduct of Business. (a) From the date hereof until the Closing
Date, except as set forth on Schedule 7.02 hereto or as provided in Section
7.02(b) hereof, the Company shall conduct its business and shall cause its
Subsidiaries to conduct their respective businesses in, and only in, the
ordinary course and shall use, and shall cause its Subsidiaries to use, their
best efforts to preserve intact their respective present business organizations,
operations, goodwill and relationships with third parties (including, without
limitation, clients and providers) and to keep available the services of the
present directors, officers and key employees. Without limiting the generality
of the foregoing, from the date hereof until the Closing Date, without the prior
written consent of the Investor (except as expressly permitted or required by
this Agreement):
(i) the Company shall not, and shall cause each of its Subsidiaries not to, sell
any of the assets of the Company or its Subsidiaries (or the securities of
entities holding the same) to any Person, other than the Company or a
Wholly-Owned Subsidiary of the Company, in one transaction or a series of
related transactions, in which the fair value of the assets being sold, or the
total consideration (in the form of cash or property and including any
contingent consideration and any Indebtedness or other obligations assumed) to
be received by the Company and its Subsidiaries, exceeds $2,000,000;
(ii) other than in the ordinary course of business consistent with past
practice, the Company shall not, and shall cause each of its Subsidiaries not
to, acquire any assets, in one transaction or series of related transactions, in
which the total consideration (in the form of cash or property and including any
contingent consideration and any Indebtedness or other obligations assumed) to
be paid by the Company and its Subsidiaries exceeds $2,000,000;
(iii) the Company shall not, and shall cause each of its Subsidiaries or
Significant Subsidiaries, as the case may be, not to take any of the actions or
enter into any of the agreements, commitments or transactions described in
clause (i), (ii), (iii), (v), (vi), (ix), (x), (xi), (xii) or (xiii) of Section
3.09 hereof;
(iv) the Company shall not, and shall cause each of its Subsidiaries not to,
take any action that it knows or has reason to believe would cause a
representation or warranty of the Company set forth herein to be untrue in any
material respect if made at such time, or a covenant of the Company set forth in
Article VIII to fail to be satisfied as of the Closing Date; and
(v) the Company shall not, and shall cause each of its Subsidiaries not to,
commit or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 7.02(a) hereof, the
Company and its Subsidiaries may sell the assets described in the Proposed Asset
Sale Letter on terms not materially worse to the Company than those set forth in
the Proposed Asset Sale Letter. Notwithstanding anything to the contrary in
Section 7.02(a) hereof, nothing in Section 7.02(a) hereof shall restrict the
Company or any of its Subsidiaries from paying dividends, making distributions,
paying Indebtedness owed to the Company or any other Subsidiaries, making loans
or advances to the Company or any other Subsidiaries, or selling, leasing or
transferring any properties or assets to the Company or any of its Subsidiaries,
in each case to the extent that any such restriction would be prohibited by
Section 6.06(b) of the Credit Agreement (as in effect on the date hereof) or
Section 4.05 of the Indenture (as in effect on the date hereof).
Section 7.03. Notifications. At all times prior to the Closing Date, the
Investor shall promptly notify the Company and the Company shall promptly notify
the Investor in writing of any fact, change, condition, circumstance or
occurrence or nonoccurrence of any event which will or is reasonably likely to
result in the failure to satisfy the conditions to be complied with or satisfied
by it hereunder; provided, however, that the delivery of any notice pursuant to
this Section 7.03 shall not limit or otherwise affect the remedies available
hereunder to any party receiving such notice.
Section 7.04. Alternative Transactions. (a) The Company shall immediately cease
and terminate any existing solicitation, initiation, encouragement, activity,
discussion or negotiation with any Persons conducted heretofore by the Company,
its Subsidiaries or any of their respective Representatives with respect to any
proposed, potential or contemplated Alternative Transaction.
(b) From the date hereof until the earlier of (i) the Closing Date and (ii) the
termination of this Agreement (the "Exclusivity Period"), the Company shall not,
shall not permit any of its Subsidiaries or Affiliates to, and shall not
authorize or permit any of its or their Representatives to, directly or
indirectly, (A) solicit or initiate, or encourage the submission of, any
Proposal, (B) participate in any discussions or negotiations regarding, or
furnish to any Person any information with respect to, or take any other action
to facilitate any inquiries or the making of any proposal that constitutes, or
may reasonably be expected to lead to, any Proposal or Alternative Transaction,
other than a transaction with the Investor or its Affiliates, or (C) authorize,
engage in, or enter into any agreement or understanding with respect to, any
Alternative Transaction; provided that the Company may, in response to an
unsolicited written Proposal from a third party, engage in the activities
specified in clause (B) and (C) of this Section 7.04(b), if (x) in the opinion
of the Company's outside legal counsel, such action is required for the Board of
Directors to comply with its fiduciary duties under applicable Law, (y) the
Company shall have notified the Investor not later than 24 hours after having
received the relevant Proposal (which notice shall identify the Person making
the Proposal and set forth the material terms thereof) and (z) the Company shall
have refrained from taking any action specified in clause (C) of this Section
7.02(b) until the third day following the receipt by the Investor of the
notification referred to in clause (y) of this Section 7.02(b). The Company will
keep the Investor fully informed of the status and details of any such Proposal
or request and any related discussions or negotiations. The Company will
promptly notify the Investor of any Proposal (which notice shall identify the
Person making the Proposal and set forth the material terms thereof) that the
Company, any of its Subsidiaries or Affiliates or any of its or their
Representatives may receive during the Exclusivity Period.
Section 7.05. Debenture Indentures. Prior to the Closing, the Company and the
Investor shall jointly prepare an indenture or indentures having the same
economic terms as the Series A Preferred Stock and Series B Preferred Stock
(including, without limitation, interest rates that are the same as the
respective dividend rates on the Series A Preferred Stock and Series B Preferred
Stock) and having other terms substantially identical to the terms of the Series
A Preferred Stock and Series B Preferred Stock, respectively, and otherwise
mutually acceptable in form and substance, with respect to each of the Series A
Debentures and Series B Debentures.
ARTICLE VIII
ADDITIONAL COVENANTS
Section 8.01. Financial and Other Information. (a) So long as members of the
Investor Group Beneficially Own, in the aggregate, at least 10% of the Original
Number of Conversion Shares, the Company shall (and shall cause each of its
Subsidiaries to) afford to members of the Investor Group that then Beneficially
Own Conversion Shares and their Representatives reasonable access, upon
reasonable notice and in such manner as will not unreasonably interfere with the
conduct of the Company's (or such Subsidiary's) business, to their respective
properties, books, contracts, commitments and records (including information
regarding any pending or threatened Proceeding to which the Company or any of
its Subsidiaries is, or reasonably expects to be, a party) and to discuss the
business, affairs, finances, regulatory status and other matters related to the
purchase and Beneficial Ownership of the Senior Preferred Stock and Conversion
Shares with Representatives of the Company; provided, however, that neither the
Company nor any Subsidiary shall be required to disclose any such information
pursuant to this Section 8.01 to the extent that, in the opinion of outside
legal counsel to the Company, such disclosure would result in the Company's
inability to assert the attorney-client privilege with respect to such
information; and provided, further, that any such inspection shall be subject to
all reasonable health, safety and patient confidentiality procedures regularly
enforced by the Company and its Subsidiaries.
(b) Upon the written request of the Company, each member of the Investor Group
shall inform the Company of the number of Conversion Shares and Original Number
of Conversion Shares then Beneficially Owned by such member of the Investor
Group. Such information shall be delivered to the Company within five Business
Days of the delivery of such request to such member of the Investor Group. To
the extent such information is not available to the public, the Company shall
keep such information confidential.
Section 8.02. Limitation on Dividend Payments and Repurchases. From and after
the Closing, so long as members of the Investor Group Beneficially Own, in the
aggregate, at least 50% of the Original Number of Conversion Shares, the Company
shall not, without the prior written approval of the holders of at least 60% of
the Conversion Shares then Beneficially Owned by members of the Investor Group,
(i) declare or pay any dividend on, or make any other distribution with respect
to, any of its Equity Securities (other than the Preferred Stock), or (ii)
purchase, redeem or otherwise acquire, and shall cause its Subsidiaries not to
purchase, redeem or otherwise acquire, any of the Equity Securities (other than
the Preferred Stock) or debt securities of the Company (including, without
limitation, the Senior Subordinated Notes, but not including any debt securities
issued in exchange for the Senior Preferred Stock), except with respect to (x)
the Senior Subordinated Notes or Indebtedness outstanding pursuant to the Credit
Agreement, as may be required pursuant to the terms of the Indenture or the
Credit Agreement, and (y) purchases of Equity Securities of the Company or any
of its Subsidiaries from executives and other management-level employees of the
Company or any of its Subsidiaries in connection with customary employment and
severance arrangements. Nothing set forth in this Section 8.02 shall prohibit
the Company from making principal payments on any Indebtedness outstanding on
the date of this Agreement or permitted to be incurred pursuant to this
Agreement.
Section 8.03. Limitation on Indebtedness. From and after the Closing, so long as
members of the Investor Group Beneficially Own, in the aggregate, at least 50%
of the Original Number of Conversion Shares, the Company shall not, without the
prior written approval of the holders of at least 60% of the Conversion Shares
then Beneficially Owned by members of the Investor Group, incur or permit its
Subsidiaries to incur Indebtedness in excess of $100,000,000, in the aggregate,
in any twelve-month period. Notwithstanding the foregoing, an incurrence of
Indebtedness pursuant to a bank revolving credit facility (including the
revolving credit facility under the Credit Agreement) or short-term credit
facility which Indebtedness is repaid in whole or in part during the same
twelve-month period in which such Indebtedness was incurred, shall not
constitute an incurrence of Indebtedness to the extent of such repayment for
purposes of the preceding sentence from and after such repayment.
Section 8.04. Acquisitions and Dispositions. Except with respect to transactions
disclosed in the Proposed Asset Sale Letter concluded on terms not materially
worse to the Company than those terms set forth in the Proposed Asset Sale
Letter, from and after the Closing, so long as members of the Investor Group
Beneficially Own, in the aggregate, at least 50% of the Original Number of
Conversion Shares, the Company shall not, without the prior written approval of
the holders of at least 60% of the Conversion Shares then Beneficially Owned by
members of the Investor Group, approve, authorize, engage in, or enter into any
agreement or understanding with respect to, transactions to (i) acquire assets
(other than the acquisition of "Violet" as described in Schedule 7.02 hereof)
having a fair value, or for which consideration is paid (in the form of cash or
property and including any contingent consideration and any Indebtedness or
other obligations assumed), in excess of $100,000,000, in the aggregate, in any
twelve-month period or (ii) dispose of assets having a fair value, or for which
consideration is received (in the form of cash or property and including any
contingent consideration and any Indebtedness or other obligations assumed), in
excess of $100,000,000 in the aggregate, in any twelve-month period.
Section 8.05. Equity Issuances. (a) From and after the Closing, so long as
members of the Investor Group Beneficially Own, in the aggregate, at least 50%
of the Original Number of Conversion Shares, the Company and each of its
Subsidiaries shall not, without the prior written approval of the holders of at
least 60% of the Conversion Shares then Beneficially Owned by members of the
Investor Group, issue or sell any Equity Securities of the Company or any
Significant Subsidiary or any Derivative Securities in a transaction or series
of related transactions (such transaction or series of related transactions, a
"10% Transaction") as a direct or indirect result of which any Person (other
than any institutionally managed, publicly held mutual fund registered with the
Commission) or Group would have, or have the right to acquire, Beneficial
Ownership of Equity Securities representing 10% or more of the aggregate Voting
Power of the then-outstanding Voting Securities of the Company or any such
Significant Subsidiary; provided, however, that the Company may issue its Equity
Securities in a 10% Transaction without any such approval if (i) the
consideration to be received by the Company in such transaction is solely in the
form of cash, (ii) the transaction is completed pursuant to a Purchase
Agreement, and (iii) the Company has complied with the procedures set forth in
Section 8.05(b) hereof with respect to such transaction; and provided further,
that, notwithstanding the foregoing none of the following shall constitute a 10%
Transaction: (i) any transaction expressly permitted pursuant to Section 7.02
hereof, (ii) any transaction set forth in the Proposed Asset Sale Letter
concluded on terms not materially worse to the Company than those terms set
forth in the Proposed Asset Sale Letter and (iii) any exercise of the
Rainwater-Magellan Warrant or Rainwater Pre-emptive Rights and (iv) the issuance
of the Series B Preferred Stock pursuant to the terms hereof.
(b) (i) Prior to any offer or sale by the Company of any of its Equity
Securities (the "Covered Securities") in a 10% Transaction, the Company shall
give written notice (a "Proposed Sale Notice") to the Investor of the Company's
desire to sell the Covered Securities, which notice shall identify (A) the
number of Covered Securities, (B) the terms of the Covered Securities and (C)
any other material terms and conditions of the proposed offer or sale (other
than a proposed sale price). The date on which such Proposed Sale Notice is
given is referred to herein as the "Notice Date." On and prior to the
Solicitation Date with respect to any Covered Securities, and following the
Solicitation Date if the Company shall have delivered an Acceptance Notice with
respect to such Covered Securities, the Company shall not, shall not permit any
of its Subsidiaries or Affiliates to, and shall not authorize or permit any of
its or their Representatives to, directly or indirectly, solicit or encourage
the submission of any proposal from any Person (other than the Investor and its
Affiliates), participate in any discussion or negotiations with any Person
(other than the Investor and its Affiliates), or authorize, engage in or enter
any agreement or understanding with any Person (other than the Investor and its
Affiliates), with respect to the issuance or sale of such Covered Securities.
(ii) The Investor shall have forty days following the Notice Date (the "Response
Period") to notify the Company in writing (such notification, an "Offer to
Purchase") of its offer, or an offer by any of its Affiliates, to purchase in
cash all (but not less than all) of the Covered Securities referred to in the
relevant Proposed Sale Notice. During the Response Period, if requested by the
Investor or any of its Affiliates, the Company shall negotiate in good faith
with the Investor or such Affiliate with respect to the terms of a proposed
purchase of Covered Securities by the Investor or such Affiliate. Any Offer to
Purchase shall set forth a proposed cash purchase price for such Covered
Securities (the "Investor Price") and the proposed closing date for the purchase
and may include other material terms and conditions of the proposed purchase.
The Investor shall not be obligated to deliver an Offer to Purchase, and if an
Offer to Purchase is not given prior to the end of the Response Period, the
Investor shall be deemed to have declined to purchase such Covered Securities.
(iii) The Company shall have ten days following the delivery of an Offer to
Purchase to accept the offer made by the Investor or its Affiliates to purchase
all (but not less than all) of the Covered Securities on the terms and subject
to the conditions set forth in the Offer to Purchase by giving the Investor
written notice to that effect (an "Acceptance Notice"). If, in accordance with
the terms of the preceding sentence, the Company accepts the offer made by the
Investor or its Affiliates to purchase such Covered Securities on the terms and
subject to the conditions set forth in the Offer to Purchase, the closing for
such transaction shall take place at a time and place reasonably acceptable to
the Investor and the Company. If the Company does not give an Acceptance Notice
in accordance with the terms of the first sentence of this paragraph, the
Company shall be deemed to have rejected the offer set forth in the relevant
Offer to Purchase.
(iv) If the Company has complied with the foregoing provisions of this Section
8.05(b) and shall not have given an Acceptance Notice with respect to any
Covered Securities following the Solicitation Date with respect to such Covered
Securities, the Company may enter into a Purchase Agreement with any other
Person with respect to all (but not less than all) of such Covered Securities
within forty days following such Solicitation Date (or within sixty days
following such Solicitation Date, if such Purchase Agreement constitutes a
customary underwriting agreement (an "Underwriting Agreement") that contemplates
a bona fide offering of the Covered Securities to the public that is registered
under the Securities Act) and sell all (but not less than all) of the Covered
Securities pursuant to such Purchase Agreement within seventy days following
such Solicitation Date (or within one hundred days following such Solicitation
Date if such sale is made pursuant to an Underwriting Agreement and constitutes
a bona fide offering of the Covered Securities to the public that is registered
under the Securities Act); provided that (i) the purchase price for such Covered
Securities in such sale is at least 105% of the related Investor Price, if any,
and (ii) the terms and conditions of such sale are otherwise not materially
worse for the Company than those set forth in the related Offer to Purchase. If
the Company has not executed a Purchase Agreement with respect to such Covered
Securities within forty days or sixty days, as the case may be, following the
relevant Solicitation Date, or has not completed a sale of all of such Covered
Securities within seventy days or one hundred days, as the case may be,
following the relevant Solicitation Date, the Company shall no longer be
permitted to sell such Covered Securities without again fully complying with all
the provisions of this Section 8.05, and all the restrictions contained in this
Section 8.05 shall again be in effect with respect to such Covered Securities.
Section 8.06. Publicity. Except as required by Law or by obligations pursuant to
any listing agreement with or requirement of any national securities exchange or
national quotation system on which the Common Stock is listed, admitted to
trading or quoted, neither the Company (nor any of its Affiliates) nor the
Investor (nor any of its Affiliates) shall, without the prior written consent of
each other party hereto, which consent shall not be unreasonably withheld or
delayed, make any public announcement or issue any press release with respect to
the transactions contemplated by this Agreement. Prior to making any public
disclosure required by applicable Law or pursuant to any listing agreement with
or requirement of any relevant national exchange or national quotation system,
the disclosing party shall consult with the other parties hereto, to the extent
feasible, as to the content and timing of such public announcement or press
release.
Section 8.07. Status of Dividends. The Company agrees to treat the Series A
Preferred Stock and Series B Preferred Stock as equity for all Tax purposes
unless the Company determines that there is no reasonable basis for such
position. The Company shall take no action (other than as required by Law) that
would jeopardize the availability of the dividends received deduction under
Section 243(a)(1) of the Code for the distributions on the Series A Preferred
Stock and Series B Preferred Stock that are paid out of current or accumulated
earnings and profits, if any.
Section 8.08. Director and Officer Indemnification. (a) So long as any Investor
Nominee serves as a member of the Board of Directors or as an officer of the
Company, the Company shall provide to each such individual indemnification and
directors' and officers' insurance having terms and provisions no less favorable
to such individuals than the indemnification and directors' and officers'
insurance provided to other directors and officers of the Company (including,
without limitation, coverage for matters based in whole or in part on, or
arising in whole or in part out of, any matter existing or occurring while such
Investor Nominee was a director, even though such Investor Nominee may no longer
be a director at the time any claim for indemnification or coverage under
insurance is made).
(b) So long as any Investor Nominee serves as a member of the Board of Directors
or as an officer of the Company, the Company shall not amend the Certificate of
Incorporation or Bylaws so as to adversely affect the rights of any such person
with respect to indemnification by the Company for any Losses incurred by such
person in such person's capacity as an officer or director of the Company.
Section 8.09. Listing; Reservation. (a) So long as any member of the Investor
Group Beneficially Owns Conversion Shares, Junior Shares or Dividend Shares, the
Company shall use its best efforts to ensure that the Common Stock continues to
be listed for trading on the NYSE. The Company will use its best efforts so that
upon issuance all Conversion Shares and Dividend Shares will be listed for
trading on the NYSE.
(b) From and after the Closing, the Company shall at all times reserve and keep
available, out of its authorized and unissued Common Stock, solely for the
purpose of issuing Common Stock upon the conversion of the Senior Preferred
Stock and Junior Shares, such number of shares of Common Stock free of
preemptive rights as shall be sufficient to issue Common Stock upon the
conversion of all outstanding shares of Senior Preferred Stock and Junior
Shares.
Section 8.10. Legend. (a) The Investor agrees to the placement on (i)
certificates representing Senior Preferred Stock purchased by the Investor
pursuant to the terms hereof, (ii) certificates representing Conversion Shares,
Junior Shares or Dividend Shares, and (iii) any certificate issued at any time
in exchange or substitution for any certificate bearing such legend, a legend
(the "Private Placement Legend") substantially as set forth below:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAW, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT OR PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS.
(b) The Private Placement Legend shall be removed from a certificate
representing Senior Preferred Stock, Conversion Shares, Junior Shares or
Dividend Shares if the securities represented thereby are sold pursuant to an
effective registration statement under the Securities Act or there is delivered
to the Company such satisfactory evidence, which may include an opinion of
independent counsel, as reasonably may be requested by the Company, to confirm
that neither such legend nor the restrictions on transfer set forth therein are
required to ensure that transfers of such securities will not violate the
registration and prospectus delivery requirements of the Securities Act.
Section 8.11. Limitation on Restrictions on Payment of Dividends. From and after
the Closing, without the prior written approval of the holders of at least 60%
of the Conversion Shares then Beneficially Owned by members of the Investor
Group, except (i) as provided in this Agreement, the Credit Agreement (as in
effect on the date hereof) or the Indenture (as in effect on the date hereof),
(ii) as permitted under Section 6.06(b)(B), 6.06(b)(C) (provided that in the
case of 6.06(b)(C) such encumbrance or restriction applies only to such acquired
"Subsidiary" or "Guarantor," as such terms are used in such Section),
6.06(b)(E), 6.06(b)(F) or 6.06(b)(G) of the Credit Agreement (as in effect on
the date hereof), or Section 4.05(1)-(12) of the Indenture (as in effect on the
date hereof), or (iii) as permitted under comparable provisions of any Credit
Agreement or any Indenture to those specified in clause (ii) above so long as
such comparable provisions do not permit any restrictions in addition to those
set forth under the provisions specified in clause (ii) above, the Company shall
not, and shall not permit any of its Subsidiaries to, directly or indirectly,
create, cause or suffer to exist or become effective any contractual or other
restrictions or limitations on the ability of the Company or any of its
Subsidiaries to pay any dividends or make any other distributions on, or to
purchase, redeem or otherwise acquire, any of its Equity Securities.
Section 8.12. Chief Executive Officer. From and after the Closing, for so long
as members of the Investor Group Beneficially Own, in the aggregate, at least
50% of the Original Number of Conversion Shares, the Company shall not, without
the prior written approval of the holders of at least 60% of the Conversion
Shares then Beneficially Owned by members of the Investor Group, hire, terminate
or materially limit the responsibilities of the chief executive officer of the
Company.
Section 8.13. Shareholder Approval. (a) The Company shall take, in accordance
with applicable Law, the Certificate of Incorporation and Bylaws, all action
necessary to present the Shareholder Approval Proposal (as defined below) for a
vote at the first meeting of stockholders of the Company held after the
execution of this Agreement (such meeting, and each meeting thereafter at which
the Shareholder Approval is considered, a "Shareholder Meeting"). The Company
shall use its best efforts to obtain the required approval of the Shareholder
Approval Proposal by its stockholders in order to give effect to the Shareholder
Approval under the Certificate of Incorporation, the Bylaws, the DGCL and the
NYSE Rules. The Company shall file with the Commission the Proxy Statement (as
defined below) with respect to the first Shareholder Meeting held after the
execution of this Agreement no later than January 15, 2000, and the Company
shall use its best efforts to hold such Shareholder Meeting no later than March
5, 2000.
(b) The Company's proxy statement for a Shareholder Meeting (as amended or
supplemented, the "Proxy Statement") shall include a proposal to consider and
vote on the Shareholder Approval (the "Shareholder Approval Proposal"). The
Proxy Statement shall contain the recommendation of the Board of Directors that
the stockholders approve the Shareholder Approval Proposal. The Company shall
notify the Investor promptly of the receipt by it of any comments from the
Commission or its staff and of any request by the Commission for amendments or
supplements to the Proxy Statement or for additional information, and will
supply the Investor with copies of all correspondence between the Company and
its representatives, on the one hand, and the Commission or the members of its
staff or of any other Governmental Entities, on the other hand, with respect to
the Proxy Statement. The Company shall give the Investor and its counsel a
reasonable opportunity to review and comment on those portions of the Proxy
Statement describing or referring to the Shareholder Approval Proposal or any
member of the Investor Group (the "Investor Information") prior to the filing of
the Proxy Statement with the Commission and shall give the Investor and its
counsel a reasonable opportunity to review and comment on all amendments and
supplements to the Investor Information and all responses to requests for
additional information and replies to comments prior to their being filed with,
or sent to, the Commission with respect to the Investor Information. The Company
shall give reasonable consideration to any comments the Investor or its counsel
may provide with respect to the Investor Information or any amendment or
supplement thereto.
(c) In the event the Shareholder Approval Proposal is not duly approved by the
stockholders of the Company at the first Shareholder Meeting held following the
execution of this Agreement, the Company shall take all action necessary, in
accordance with applicable Law, to present, and the Board of Directors shall
recommend the adoption of, the Shareholder Approval Proposal, at each meeting of
the stockholders of the Company held thereafter until the Shareholder Approval
Proposal is duly adopted by the stockholders of the Company unless, in the
opinion of outside legal counsel to the Company, the Shareholder Approval is not
required under the NYSE Rules to permit the issuance of Common Stock in respect
of accrued and unpaid dividends on the Senior Preferred Stock upon the
conversion or exchange of the Senior Preferred Stock, the issuance of Common
Stock upon the conversion of the Series B Preferred Stock, and the vesting of
voting rights in respect of the Series B Preferred Stock, in each case in
accordance with the terms hereof, the Series A Certificate of Designations and
the Series B Certificate of Designations.
(d) The Proxy Statement, as of the date it is mailed to stockholders of the
Company and as of the date of the relevant Shareholder Meeting, will not include
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; provided,
however, that this Section 8.13(d) shall not apply to any information provided
to the Company in writing by any member of the Investor Group with respect to
such member expressly for inclusion in the Proxy Statement.
ARTICLE IX
CONDITIONS
Section 9.01. Conditions to Investor's Obligations with Respect to the Share
Purchase. The obligation of the Investor to purchase and pay for the Series A
Preferred Stock and deposit the Series B Amount into Escrow pursuant to Section
2.01 hereof at the Closing is subject to satisfaction or waiver of each of the
following conditions precedent:
(a) Representations and Warranties; Covenants. The representations and
warranties of the Company set forth in Article III hereof qualified as to
materiality shall have been true and correct in all respects, and those not so
qualified shall have been true and correct in all material respects, on and as
of the date hereof and as of the Closing as if made on the Closing Date (except
where such representation and warranty speaks by its terms as of a different
date, in which case it shall be true and correct as of such date, or except
where such representation and warranty is not true or correct solely as a result
of actions expressly permitted by Section 7.02 hereof). The Company shall have
performed in all material respects all obligations and complied with all
agreements, undertakings, covenants and conditions required hereunder to be
performed by it at or prior to the Closing. The Company shall have delivered to
the Investor at the Closing a certificate in form and substance reasonably
satisfactory to the Investor dated the Closing Date and signed by the chief
executive officer and the chief financial officer of the Company to the effect
that the conditions set forth in this Section 9.01(a) have been satisfied.
(b) Opinions of Counsel. The Investor shall have received at the Closing (i)
from King & Spalding, special counsel to the Company, a written opinion dated
the Closing Date, substantially as set forth in Exhibit D hereto and (ii) from
special regulatory counsel to the Company, which counsel is reasonably
acceptable to the Investor, a written opinion dated the Closing Date, in form
and substance reasonably satisfactory to the Investor.
(c) Fairness Opinion. Morgan Stanley Dean Witter shall have delivered a written
opinion to the Board of Directors to the effect that the consideration paid to
the Company for the shares of Series A Preferred Stock and Series B Preferred
Stock sold hereunder is fair, from a financial point of view, to the Company,
and a true and correct copy of such opinion shall have been delivered to the
Investor.
(d) Establishment of Preferred Stock. (i) The Company shall have amended the
Certificate of Incorporation by filing with the Secretary of State of the State
of Delaware the Certificates of Designations in the form of Exhibits A, B and C
hereto containing the resolutions of the Board of Directors of the Company
creating the Preferred Stock and setting forth the terms and conditions of the
Preferred Stock. A copy of the revised Certificate of Incorporation (including
the Certificates of Designations), certified by the State of Delaware, shall
have been delivered to the Investor. (ii) The Company shall have executed and
delivered to the Investor the shares of Series A Preferred Stock to be purchased
by the Investor pursuant to Section 2.01 hereof.
(e) Compliance with Laws; No Adverse Action or Decision. Since the date hereof,
(i) no Law shall have been promulgated, enacted or entered that restrains,
enjoins, prevents, materially delays, prohibits or otherwise makes illegal the
performance of any of the Transaction Agreements or Company Documents; (ii) no
preliminary or permanent injunction or other order by any Governmental Entity
that restrains, enjoins, prevents, delays, prohibits or otherwise makes illegal
the performance of any of the Transaction Agreements or Company Documents shall
have been issued and remain in effect; and (iii) no Governmental Entity shall
have instituted any Proceeding that seeks to restrain, enjoin, prevent, delay,
prohibit or otherwise make illegal the performance of any of the Transaction
Agreements or Company Documents.
(f) Consents. All Regulatory Approvals (including, without limitation, the
Required Regulatory Approvals) from any Governmental Entity and all consents,
waivers or approvals from any other Person (including, without limitation, under
the Credit Agreement) required for or in connection with the execution and
delivery of the Transaction Agreements and the Company Documents and the
consummation of the transactions contemplated thereby shall have been obtained
or made on terms reasonably satisfactory to the Investor, and all waiting
periods specified under applicable Law (including, without limitation, the
waiting period under the HSR Act), the expiration of which is necessary for such
consummation, shall have expired or been terminated.
(g) Proceedings. All corporate and other proceedings to be taken by the Company
in connection with the Transaction Agreements and the Company Documents with
respect to the transactions contemplated thereby to be completed at the Closing
and documents incident thereto shall have been completed in form and substance
reasonably satisfactory to the Investor, and the Investor shall have received
all such counterpart originals or certified or other copies of the Transaction
Agreements and the Company Documents and such other documents as it may
reasonably request.
(h) Board Representation. (i) As contemplated by Section 5.02 hereof, three
Investor Nominees designated by the Investor shall have been elected to the
Board of Directors effective as of the Closing Date. (ii) Directors' and
officers' liability insurance shall be available to the Investor Nominees on
terms satisfactory to the Investor and in an amount of coverage at least equal
to $50,000,000.
(i) No Material Adverse Effect; No Insolvency Event; No Alternative Transaction
or Control Transaction. No event shall have occurred which has had, or is
reasonably likely to have, a Material Adverse Effect; no Insolvency Event shall
have occurred; and no Control Transaction or Alternative Transaction shall have
been consummated or agreement, understanding, or arrangement with respect
thereto entered into.
(j) Agreements. (i) The Registration Rights Agreement shall be in full force and
effect, and (ii) the Escrow Agreement shall have been executed and delivered by
the Company and the Escrow Agent and shall be in full force and effect.
Section 9.02. Conditions of the Company's Obligations with Respect to the Share
Purchase. The obligation of the Company to issue and sell the Series A Preferred
Stock pursuant to Section 2.01 hereof at the Closing is subject to satisfaction
or waiver of each of the following conditions precedent:
(a) Representations and Warranties; Covenants. The representations and
warranties of the Investor set forth in Article IV hereof qualified as to
materiality shall have been true and correct in all respects, and those not so
qualified shall have been true and correct in all material respects, on and as
of the date hereof and as of the Closing as if made on the Closing Date (except
where such representation and warranty speaks by its terms as of a different
date, in which case it shall be true and correct as of such date). The Investor
shall have performed in all material respects all obligations and complied with
all agreements, undertakings, covenants and conditions required by it to be
performed at or prior to the Closing, and the Investor shall have delivered to
the Company at the Closing a certificate in form and substance reasonably
satisfactory to the Company dated the Closing Date and signed on behalf of a
member of the Investor to the effect that the conditions set forth in this
Section 9.02(a) have been satisfied.
(b) Opinion of Counsel. The Company shall have received at the Closing from
Cleary, Gottlieb, Steen & Hamilton, counsel to the Investor, a written opinion
dated the Closing Date, to the effect set forth in Exhibit E hereto.
(c) Compliance with Laws; No Adverse Action or Decision. Since the date hereof,
(i) no Law shall have been promulgated, enacted or entered that restrains,
enjoins, prevents, materially delays, prohibits or otherwise makes illegal the
performance of any of the Transaction Agreements or the Company Documents with
respect to the transactions contemplated thereby to be completed at the Closing;
(ii) no preliminary or permanent injunction or other order by any Governmental
Entity that restrains, enjoins, prevents, delays, prohibits or otherwise makes
illegal the performance of any of the Transaction Agreements or the Company
Documents with respect to the transactions contemplated thereby to be completed
at the Closing shall have been issued and remain in effect; and (iii) no
Governmental Entity shall have instituted any action, claim, suit, investigation
or other proceeding that seeks to restrain, enjoin, prevent, delay, prohibit or
otherwise make illegal the performance of any of the Transaction Agreements or
the Company Documents with respect to the transactions contemplated thereby to
be completed at the Closing.
(d) Consents. All Regulatory Approvals (including, without limitation, the
Required Regulatory Approvals) from any Governmental Entity and all consents,
waivers or approvals from any other Person (including, without limitation, under
the Credit Agreement) required for or in connection with the execution and
delivery of the Transaction Agreements and the Company Documents and the
consummation of the transactions contemplated thereby shall have been obtained
or made on terms reasonably satisfactory to the Company, and all waiting periods
specified under applicable Law (including, without limitation, the waiting
period under the HSR Act), the expiration of which is necessary for such
consummation, shall have expired or been terminated.
(e) Escrow Agreement. The Escrow Agreement shall have been executed and
delivered by the Investor and shall be in full force and effect.
ARTICLE X
TERMINATION
Section 10.01. Termination of Agreement. Subject to Section 10.02 hereof, this
Agreement may be terminated by notice in writing at any time prior to the
Closing by:
(a) the Investor or the Company, if the Closing shall not have occurred on or
before September 30, 1999; provided, however, that the right to terminate this
Agreement under this Section 10.01(a) shall not be available to any party whose
failure to fulfill any obligation under this Agreement has been the cause of, or
resulted in, the failure of the Closing to occur on or before such date;
(b) the Investor or the Company, if any Governmental Entity of competent
jurisdiction shall have issued any judgment, injunction, order, ruling or decree
or taken any other action restraining, enjoining or otherwise prohibiting the
consummation of the transactions contemplated by the Transaction Agreements and
such judgment, injunction, order, ruling, decree or other action becomes final
and nonappealable; provided that the party seeking to terminate this Agreement
pursuant to this clause (b) shall have used its best efforts to have such
judgment, injunction, order, ruling or decree lifted, vacated or denied;
(c) the Investor, if the Company shall have taken any action described in clause
(B) or (C) of Section 7.04(b) hereof; or
(d) the Investor or the Company, if the Investor and the Company so mutually
agree in writing.
Section 10.02. Effect of Termination. (a) If this Agreement is terminated in
accordance with Section 10.01 hereof and the transactions contemplated hereby
are not consummated, this Agreement shall become null and void and of no further
force and effect except that (i) the terms and provisions of this Section 10.02,
Section 8.06 and Article XI hereof shall remain in full force and effect and
(ii) any termination of this Agreement shall not relieve any party hereto from
any liability for any breach of its obligations hereunder.
(b) If (i) this Agreement is terminated in accordance with Section 10.01(a)
hereof and as of the date set forth in Section 10.01(a) hereof the conditions
set forth in Section 9.01(a) hereof shall not have been satisfied, (ii) a
Proposal is made to the Company or any of its Representatives with respect to an
Alternative Transaction (whether or not the same Alternative Transaction as is
ultimately consummated or as to which a written agreement, letter of intent,
agreement in principle, memorandum of understanding or similar writing is
ultimately entered into) prior to the Cut-Off Date (as defined below) or a
Proposal with respect to an Alternative Transaction is publicly announced by the
Person contemplating such transaction or a Representative of such Person prior
to the Cut-Off Date, and (iii) an agreement with respect to a Control
Transaction or Alternative Transaction is entered into or a Control Transaction
or Alternative Transaction is consummated within eighteen months after the
Cut-Off Date, the Company shall pay the Investor (or its assignees) the
Alternative Transaction Fee on the earlier of (A) the date on which such
agreement with respect to an Alternative Transaction is entered into and (B) the
date on which an Alternative Transaction is consummated. The term "Cut-Off Date"
shall mean the date of termination of this Agreement.
(c) If this Agreement is terminated in accordance with Section 10.01(c) hereof,
the Company shall pay the Investor (or its assignees) the Alternative
Transaction Fee on the second Business Day following such termination.
ARTICLE XI
MISCELLANEOUS
Section 11.01. Fees and Expenses. (a) Except as provided below or in the
Registration Rights Agreement or the Escrow Agreement, each party shall be
responsible for the payment of all expenses incurred by it in connection with
the Transaction Agreements and the transactions contemplated thereby, including,
without limitation, all fees and expenses of its legal counsel and all
third-party consultants engaged by it to assist in such transactions.
Notwithstanding the foregoing, in the event this Agreement is terminated, the
Company shall reimburse the Investor for all expenses incurred by the Investor
in connection with the Transaction Agreements and the transactions contemplated
thereby, including, without limitation, all fees and expenses of the Investor's
legal counsel and all third-party consultants engaged by the Investor to assist
in such transactions; provided, that no amount in excess of $1,500,000 shall be
payable pursuant to this sentence; and provided, further, that no amount
whatsoever shall be payable pursuant to this sentence if the Alternative
Transaction Fee is paid by the Company pursuant to Section 10.02(b) hereof. In
the event the Share Purchase is consummated, upon the Closing, the Company shall
pay the Investor the Placement Fee. In the event the Investor or any of its
Affiliates commences a tender offer for the Common Stock that is approved by the
Board of Directors prior to the commencement thereof, the Company shall
reimburse the Investor or such Affiliate an amount equal to 50% of all expenses
incurred by the Investor and its Affiliates in connection with such tender
offer, including, without limitation, all fees and expenses of their legal
counsel and all third-party consultants engaged by them to assist in the tender
offer. Such reimbursements shall be due to the Investor at the Closing, or
promptly following any earlier termination of this Agreement for any reason, as
the case may be, or in the case of fees and expenses incurred thereafter,
promptly upon demand therefor.
(b) All amounts payable under this Agreement shall be paid in immediately
available funds to an account or accounts designated by the recipient of such
amounts.
Section 11.02. Survival of Representations and Warranties. Notwithstanding any
investigation conducted or notice or knowledge obtained by or on behalf of any
party hereto, each representation or warranty in this Agreement or in the
Schedules hereto or certificates delivered pursuant to this Agreement shall
survive the Closing for a period of two years; provided, however, that each
representation and warranty made in Sections 3.13 and 3.23 hereof or in any
Schedule or certificate related thereto, shall survive the Closing until the
sixtieth day following the expiration of the applicable statute of limitations
with respect to any action that may be brought relating to the matters described
in such representation and warranty; and provided further, however, that each
representation and warranty made in Sections 3.03, 3.09, 3.11 and 3.12 hereof or
in any Schedule or certificate related thereto, shall survive the Closing for a
period of four years. Any claim for indemnification under this Article XI
arising out of the inaccuracy or breach of any representation or warranty must
be made prior to the termination of the applicable survival period.
Section 11.03. Specific Performance. The parties hereto specifically acknowledge
that monetary damages are not an adequate remedy for violations of this
Agreement, and that any party hereto may, in its sole discretion, apply to a
court of competent jurisdiction for specific performance or injunctive or such
other relief as such court may deem just and proper in order to enforce this
Agreement or prevent any violation hereof and, to the extent permitted by
applicable law and to the extent the party seeking such relief would be entitled
on the merits to obtain such relief, each party waives any objection to the
imposition of such relief.
Section 11.04. Indemnification. (a) The Company agrees to indemnify and hold
harmless the Investor, each Designated Purchaser, each member thereof, each
limited or general partner of each such member, each limited or general partner
of each such limited or general partner, each of their Affiliates and each of
their Representatives (collectively, the "Indemnified Parties") from and against
any and all losses, penalties, judgments, suits, costs, claims, liabilities,
damages and expenses (including, without limitation, reasonable attorneys' fees
and disbursements but excluding Taxes imposed as a result of being a direct or
indirect owner of the Senior Preferred Stock or realizing income or gain with
respect thereto) (collectively, "Losses"), incurred by, imposed upon or asserted
against any of the Indemnified Parties as a result of, relating to or arising
out of, (i) the breach of any representation, warranty, agreement or covenant
made by the Company or the Escrow Agent in any Transaction Agreement or in any
certificate delivered by the Company pursuant to any Transaction Agreement (each
of which shall be deemed to have been made for the benefit of all members of the
Investor Group) and (ii) the purchase and/or direct or indirect ownership of the
Senior Preferred Stock, Junior Shares, Dividend Shares or Conversion Shares
(including, without limitation, any litigation to which an Indemnified Party is
made party as a result thereof), provided, however, that nothing in this clause
(ii) shall require the Company to indemnify any Indemnified Party with respect
to any Loss resulting solely from a decline in the market value of the Senior
Preferred Stock, Junior Shares, Dividend Shares or Conversion Shares.
(b) The Investor agrees to indemnify and hold harmless the Company and each of
its Representatives (collectively, the "Indemnified Company Parties") from and
against any and all Losses incurred by any of the Indemnified Company Parties as
a result of, or arising out of, the breach of any representation, warranty,
agreement or covenant made by the Investor in the Transaction Agreements or in
any certificate delivered by the Investor pursuant to the Transaction
Agreements.
(c) The following provisions shall apply to claims for Losses from claims by a
third party ("Claim"). The indemnifying party shall have the absolute right, in
its sole discretion and expense, to elect to defend, contest or otherwise
protect against any such Claim with legal counsel of its own selection. The
Indemnified Parties or the Indemnified Company Parties, as the case may be,
shall have the right, but not the obligation, to participate, at their own
expense, in the defense thereof through counsel of their own choice and shall
have the right, but not the obligation, to assert any and all crossclaims or
counterclaims they may have. The Indemnified Parties or the Indemnified Company
Parties, as the case may be, shall, and shall cause their Affiliates to, at all
times cooperate in all reasonable ways with, make their relevant files and
records available for inspection and copying by, and make their employees
available or otherwise render reasonable assistance to, the indemnifying party
(i) in its defense of any action for which indemnity is sought hereunder and
(ii) its prosecution under the last sentence of this Section 11.04(c) of any
related claim, cross-complaint, counterclaim or right of subrogation. In the
event the indemnifying party fails timely to defend, contest or otherwise
protect against any such suit, action, investigation, claim or proceeding, the
Indemnified Parties or the Indemnified Company Parties, as the case may be,
shall have the right, but not the obligation, to defend, contest, assert
cross-claims or counterclaims or otherwise protect against the same. No claim or
action subject hereto may be settled unless the Indemnified Parties or the
Indemnified Company Parties, as the case may be, and the indemnifying party
consent thereto, such consent not to be unreasonably withheld. The indemnifying
party shall be subrogated to the claims or rights of the Indemnified Parties or
the Indemnified Company Parties, as the case may be, as against any other
persons with respect to any Loss paid by the indemnifying party under this
Section 11.04(c).
(d) All payments under this Section 11.04 shall be due promptly following the
occurrence of the related Loss; provided, however, that if a final,
non-appealable judicial determination is made that an Indemnified Party or
Indemnified Company Party is not entitled to any such payment it will promptly
repay the appropriate amounts to the appropriate indemnifying party.
Section 11.05. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given, if delivered personally,
by telecopier or sent by first class mail, postage prepaid, as follows:
(i) If to the Company, to:
Magellan Health Services, Inc.
6950 Columbia Gateway Drive
Fourth Floor
Columbia, Maryland 210146
Attention: General Counsel
With a copy to:
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303-1763
Attention: Philip A. Theodore, Esq.
(ii) If to the Investor, to:
TPG MAGELLAN LLC
201 Main Street
Suite 2420
Fort Worth, Texas 76102
Attention: Jonathan J. Coslet
Senior Vice President
With a copy to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
Attention: Michael A. Gerstenzang, Esq.
If to any other holder of shares of Preferred Stock, Debentures, or Conversion
Shares, addressed to such holder at the address of such holder in the record
books of the Company; or to such other address or addresses as shall be
designated in writing. All notices shall be effective when received.
Section 11.06. Entire Agreement; Amendment. This Agreement and the documents
described herein or attached or delivered pursuant hereto (including, without
limitation, the Registration Rights Agreement, the Escrow Agreement and the
Certificates of Designations) set forth the entire agreement between the parties
hereto with respect to the transactions contemplated by this Agreement and
supersedes the letter agreement dated July 2, 1999, between the Company and the
Investor which is terminated in its entirety hereby. Any provision of this
Agreement may only be amended, modified or supplemented in whole or in part at
any time by an agreement in writing among the parties hereto executed in the
same manner as this Agreement. No failure on the part of any party to exercise,
and no delay in exercising, any right shall operate as waiver thereof, nor shall
any single or partial exercise by either party of any right preclude any other
or future exercise thereof or the exercise of any other right. No investigation
by the Investor of the Company prior to or after the date hereof shall stop or
prevent the Investor from exercising any right hereunder or be deemed to be a
waiver of any such right.
Section 11.07. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to constitute an original, but all
of which together shall constitute one and the same document.
Section 11.08. Governing Law. This Agreement shall be governed by, and
interpreted in accordance with, the laws of the State of New York applicable to
contracts made and to be performed in that State without reference to its
conflict of laws rules. The parties hereto agree that the appropriate and
exclusive forum for any disputes arising out of this Agreement solely between
the Company and the Investor shall be the United States District Court for the
Southern District of New York, and, if such court will not hear any such suit,
the courts of the state of the Company's incorporation, and the parties hereto
irrevocably consent to the exclusive jurisdiction of such courts, and agree to
comply with all requirements necessary to give such courts jurisdiction. The
parties hereto further agree that the parties will not bring suit with respect
to any disputes arising out of this Agreement except as expressly set forth
below for the execution or enforcement of judgment, in any jurisdiction other
than the above specified courts. Each of the parties hereto irrevocably consents
to the service of process in any action or proceeding hereunder by the mailing
of copies thereof by registered or certified airmail, postage prepaid, to the
address specified in Section 11.05 hereof. The foregoing shall not limit the
rights of any party hereto to serve process in any other manner permitted by the
law or to obtain execution of judgment in any other jurisdiction. The parties
further agree, to the extent permitted by law, that final and unappealable
judgment against any of them in any action or proceeding contemplated above
shall be conclusive and may be enforced in any other jurisdiction within or
outside the United States by suit on the judgment, a certified or exemplified
copy of which shall be conclusive evidence of the fact and the amount of
indebtedness. The parties agree to waive any and all rights that they may have
to a jury trial with respect to disputes arising out of this Agreement.
Section 11.09. Successors and Assigns. (a) Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the Company's successors and assigns. Except as provided in
Section 11.09(b) hereof, neither this Agreement nor any rights hereunder shall
be assignable by any party hereto without the prior written consent of the other
party hereto; provided, however, that the Investor may assign all or part of its
interest in this Agreement and its rights hereunder to any of its Affiliates
and, thereafter, the term "Investor," as applied to the assigning Investor,
shall include any such Affiliate to the extent of such assignment and shall mean
the assigning Investor and such Affiliates taken collectively.
(b) Notwithstanding the foregoing, prior to the Closing the Investor may assign
its rights with respect to the purchase of up to 49% of the Senior Preferred
Stock to be purchased by the Investor hereunder to any Person or Persons not
Affiliated with the Investor, and following the Closing until the date of the
original issuance of the Series B Preferred Stock, the Investor may assign its
rights to receive shares of Series B Preferred Stock to any Person or Persons
not Affiliated with the Investor (each such Person, a "Designated Purchaser").
The Investor shall not assign pursuant to this Section 11.09(b) any of its
rights under this Agreement other than the right to purchase or receive Senior
Preferred Stock. Except as expressly provided in this Agreement, no Designated
Purchaser shall have any rights under this Agreement or any rights of the
Investor (other than rights that by their terms are available to all holders of
Senior Preferred Stock and Conversion Shares generally) under the Certificates
of Designations. As a condition to any assignment pursuant to this Section
11.09(b), each Designated Purchaser shall deliver to the Company a letter, dated
as of the Closing Date or if later the date of such assignment, in form and
substance reasonably satisfactory to the Company, pursuant to which such
Designated Purchaser shall (i) make the representation set forth in Section 4.05
hereof, (ii) agree to comply with the provisions set forth in Sections 8.01(b)
and 8.06 hereof as if it were the Investor thereunder and (iii) if as a result
of an assignment contemplated by this Section 11.09(b) such Designated Purchaser
would as of the Closing, or if later the date of such assignment, Beneficially
Own Voting Securities of the Company representing more than 5% of the Voting
Power of the Voting Securities of the Company, agree to comply with the
provisions of Article VI hereof as if it were the Investor thereunder. Any
assignment to such Designated Purchaser that does not comply with the preceding
provisions of this Section 11.09(b) shall be null and void, and (i) at the
Closing if such assignment is made at or prior to the Closing, the Investor
shall purchase all Senior Preferred Stock that would have been purchased by such
Designated Purchaser, and (ii) if such assignment is made after the Closing with
respect to the Series B Preferred Stock, the Investor shall be issued all shares
of Series B Preferred Stock that would have been issued to such Designated
Purchaser.
Section 11.10. No Third-Party Beneficiaries. This Agreement is for the sole
benefit of the parties hereto and their respective successors and permitted
assigns and nothing herein, express or implied, is intended or shall confer upon
any other Person any legal or equitable right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement, except that the provisions of
Section 8.08 shall inure to the benefit of and be enforceable by the Investor
Nominees and the provisions of Section 11.04 shall inure to the benefit of and
be enforceable by each Indemnified Party.
Section 11.11. Allocation. The Investor shall reasonably determine, and the
Company shall accept, the allocation of the Share Purchase Price among the
Series A Preferred Stock and Series B Preferred Stock issued to the Investor
pursuant to Section 2.01 hereof.
Section 11.12. Pre-emptive Rights. In the event the purchase and sale of the
Senior Preferred Stock hereunder give rise to any pre-emptive rights on behalf
of any Person to purchase shares of Senior Preferred Stock and such rights are
validly exercised by such Person, to the extent necessary under the Certificate
of Incorporation, the Bylaws, the NYSE Rules or applicable Law to permit the
Closing to occur without first obtaining the approval of the stockholders of the
Company, the number of shares of Series A Preferred Stock to be purchased by the
Investor hereunder and the Series A Amount shall be reduced appropriately and a
corresponding increase shall be made in the number of shares of Series B
Preferred Stock to be purchased by the Investor hereunder and the Series B
Amount.
Section 11.13. NOL Letter. On the date of the original issuance of the Series B
Preferred Stock, the Company shall deliver a letter to the Investor restating
the matters set forth in Section 3.13(d) hereof updated as necessary to reflect
the then-current circumstances. Such letter shall constitute a representation
and warranty of the Company hereunder.
Section 11.14. Certain Amendments to the Series B Certificate of Designations.
For so long as members of the Investor Group Beneficially Own, in the aggregate,
at least 50% of the Original Number of Conversion Shares, the Company shall not,
without the prior written approval of the holders of at least 60% of the
Conversion Shares then Beneficially Owned by members of the Investor Group, (i)
amend, alter or repeal any provision of the Certificate of Incorporation or the
Bylaws, if the amendment, alteration or repeal alters or changes the powers,
preferences or special rights of the Series B Preferred Stock so as to affect
them adversely; or (ii) authorize or take any other action if such action alters
or changes any of the rights of the Series B Preferred Stock in any respect or
otherwise would be inconsistent with the provisions of this Certificate of
Designations and the holders of any class or series of the capital stock of the
Corporation is entitled to vote thereon. Notwithstanding anything in the
foregoing to the contrary, the restrictions set forth in the previous sentence
shall apply only during the period commencing on the Closing Date and ending on
the earlier of (x) the date of the original issuance of the Series B Preferred
Stock and (y) the date of delivery of a Revocation Notice.
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed on behalf of the
parties hereto by their respective duly authorized officers, all as of the date
first above written.
TPG MAGELLAN LLC
By /s/ JONATHAN J. COSLET
----------------------------------
Name: Jonathan J. Coslet
Title: Senior Vice President
MAGELLAN HEALTH SERVICES, INC.
By /s/ CLIFFORD W. DONNELLY
----------------------------------
Name: Clifford W. Donnelly
Title: Executive Vice President and Chief
Financial Officer
<PAGE>
EXHIBIT A
Form of Series A Certificate of Designations
CERTIFICATE OF DESIGNATIONS
of
SERIES A CUMULATIVE CONVERTIBLE PREFERRED STOCK
of
MAGELLAN HEALTH SERVICES, INC.
(Pursuant to Section 151 of the
Delaware General Corporation Law)
--------------
Magellan Health Services, Inc., a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "Corporation"), hereby
certifies that the following resolutions were adopted by the Board of Directors
of the Corporation (the "Board of Directors") pursuant to authority of the Board
of Directors as required by Section 151 of the General Corporation Law of the
State of Delaware:
RESOLVED, that pursuant to the authority granted to and vested in the Board
of Directors in accordance with the provisions of the Restated Certificate of
Incorporation of the Corporation, as amended (the "Certificate of
Incorporation"), the Board of Directors hereby creates a series of the
Corporation's previously authorized preferred stock, without par value (the
"Preferred Stock"), and hereby states the designation and number thereof, and
fixes the voting powers, preferences and relative, participating, optional and
other special rights, and the qualifications, limitations and restrictions
thereof, as follows:
Series A Cumulative Convertible Preferred Stock:
I. Designation and Amount
The designation of this series of shares shall be "Series A Cumulative
Convertible Preferred Stock" (the "Series A Preferred Stock"); the stated value
per share shall be $1,000 (the "Stated Value"); and the number of shares
constituting such series shall be [_________]. The number of shares of the
Series A Preferred Stock may be decreased from time to time by a resolution or
resolutions of the Board of Directors; provided, however, that such number shall
not be decreased below the aggregate number of shares of the Series A Preferred
Stock then outstanding.
II. Rank
A. With respect to dividend rights, the Series A Preferred Stock shall rank
(i) junior to each other class or series of Preferred Stock which by its terms
ranks senior to the Series A Preferred Stock as to payment of dividends, (ii) on
a parity with each other class or series of Preferred Stock which by its terms
ranks on a parity with the Series A Preferred Stock as to payment of dividends,
including the Series B Cumulative Convertible Preferred Stock, without par value
(the "Series B Preferred Stock"), of the Corporation, and (iii) prior to the
Corporation's Common Stock, par value $0.25 per share (the "Common Stock"), and,
except as specified above, all other classes and series of capital stock of the
Corporation hereafter issued by the Corporation. With respect to dividends, all
equity securities of the Corporation to which the Series A Preferred Stock ranks
senior, including the Common Stock, are collectively referred to herein as the
"Junior Dividend Securities"; all equity securities of the Corporation with
which the Series A Preferred Stock ranks on a parity, including the Series B
Preferred Stock, are collectively referred to herein as the "Parity Dividend
Securities"; and all equity securities of the Corporation (other than
convertible debt securities) to which the Series A Preferred Stock ranks junior,
with respect to dividends, are collectively referred to herein as the "Senior
Dividend Securities."
B. With respect to the distribution of assets upon liquidation, dissolution
or winding up of the Corporation, whether voluntary or involuntary, the Series A
Preferred Stock shall rank (i) junior to each other class or series of Preferred
Stock which by its terms ranks senior to the Series A Preferred Stock as to
distribution of assets upon liquidation, dissolution or winding up, (ii) on a
parity with each other class or series of Preferred Stock which by its terms
ranks on a parity with the Series A Preferred Stock as to distribution of assets
upon liquidation, dissolution or winding up of the Corporation, including the
Series B Preferred Stock, and (iii) prior to the Common Stock, and, except as
specified above, all other classes and series of capital stock of the
Corporation hereinafter issued by the Corporation. With respect to the
distribution of assets upon liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, all equity securities of the
Corporation to which the Series A Preferred Stock ranks senior, including the
Common Stock, are collectively referred to herein as "Junior Liquidation
Securities" (and together with the Junior Dividend Securities are referred to
herein as the "Junior Securities"); all equity securities of the Corporation
(other than convertible debt securities) to which the Series A Preferred Stock
ranks on parity, including the Series B Preferred Stock, are collectively
referred to herein as "Parity Liquidation Securities" (and together with the
Parity Dividend Securities are referred to herein as the "Parity Securities");
and all equity securities of the Corporation to which the Series A Preferred
Stock ranks junior are collectively referred to herein as "Senior Liquidation
Securities" (and together with the Senior Dividend Securities are referred to
herein as the "Senior Securities").
III. Dividends
A. Dividends. Shares of Series A Preferred Stock shall accumulate dividends
at a rate of 6.50% per annum, payment of which shall be made in cash except as
otherwise provided in this Article III. Dividends shall be paid in four equal
quarterly installments on the last day of March, June, September and December of
each year, or if any such date is not a Business Day, on the Business Day next
preceding such day (each such date, regardless of whether any dividends have
been paid or declared and set aside for payment on such date, a "Dividend
Payment Date"), to holders of record (the "Registered Holders") as they appear
on the stock record books of the Corporation on the fifteenth day prior to the
relevant Dividend Payment Date; provided, however, that the Corporation may
elect not to make any dividend payment due hereunder on any Dividend Payment
Date (other than as required in connection with any redemption of shares of
Series A Preferred Stock or any liquidation, dissolution or winding up of the
Corporation), and any such amount then due in respect of dividends shall
constitute an Arrearage (as defined below). Dividends shall be paid only when,
as and if declared by the Board of Directors out of funds at the time legally
available for the payment of dividends. Dividends shall begin to accumulate on
outstanding shares of Series A Preferred Stock from the date of issuance and
shall be deemed to accumulate from day to day whether or not earned or declared
until paid. Dividends shall accumulate on the basis of a 360-day year consisting
of twelve 30-day months (four 90-day quarters) and the actual number of days
elapsed in the period for which payable.
B. Accumulation. Dividends on the Series A Preferred Stock shall be
cumulative, and from and after any Dividend Payment Date on which any dividend
that has accumulated or been deemed to have accumulated through such date has
not been paid in full or any payment date set for a redemption on which such
redemption payment has not been paid in full, additional dividends shall
accumulate in respect of the amount of such unpaid dividends or unpaid
redemption payment (such amount, the "Arrearage") at the annual rate then in
effect as provided in Section A of this Article III (or such lesser rate as may
be the maximum rate that is then permitted by applicable law). Such additional
dividends in respect of any Arrearage shall be deemed to accumulate from day to
day whether or not earned or declared until the Arrearage is paid, shall be
calculated as of such successive Dividend Payment Date and shall constitute an
additional Arrearage from and after any Dividend Payment Date to the extent not
paid on such Dividend Payment Date. References in any Article herein to
dividends that have accumulated or that have been deemed to have accumulated
with respect to the Series A Preferred Stock shall include the amount, if any,
of any Arrearage together with any dividends accumulated or deemed to have
accumulated on such Arrearage pursuant to the immediately preceding two
sentences. Additional dividends in respect of any Arrearage may be declared and
paid at any time, in whole or in part, without reference to any regular Dividend
Payment Date, to Registered Holders as they appear on the stock record books of
the Corporation on such record date as may be fixed by the Board of Directors
(which record date shall be no less than 10 days prior to the corresponding
payment date).
C. Payment in Common Stock. Notwithstanding the provisions of Section A of
this Article III, (i) any dividend payment (such payment, a "Non-Arrearage
Payment") made in full on the first Dividend Payment Date on which such payment
is due (without taking into account the proviso to the second sentence of
Section A of this Article III in determining the first Dividend Payment Date on
which such payment is due) and (ii) any payment (such payment, an "Arrearage
Payment") made at any time prior to the second anniversary of the original
issuance of the Series A Preferred Stock in respect of any Arrearage, may be
made in the form of shares of Common Stock; provided that:
(i) the Common Stock is then validly listed for trading on the
NYSE or other national securities exchange or quoted on a nationally
recognized quotation system;
(ii) such shares of Common Stock have been duly authorized and
when issued in connection with such payment, will be validly issued,
fully paid and non-assessable;
(iii) the issuance of such shares of Common Stock in
satisfaction of such payment does not: (a) violate any provision of the
Certificate of Incorporation or the Bylaws; (b) give rise to any
preemptive rights, rights of first refusal or other similar rights on
behalf of any Person under any applicable Law or any provision of the
Certificate of Incorporation or the Bylaws or any agreement or
instrument applicable to the Corporation or any of its Subsidiaries;
(c) conflict with, contravene or result in a breach or violation of any
of the terms or provisions of, or constitute a default (with or without
notice or the passage of time) under, or result in or give rise to a
right of termination, cancellation, acceleration or modification of any
right or obligation under, or give rise to a right to put or to compel
a tender offer for outstanding securities of the Corporation or any of
its Subsidiaries under, or require any consent, waiver or approval
under, any note, bond, debt instrument, indenture, mortgage, deed of
trust, lease, loan agreement, joint venture agreement, Regulatory
Approval, contract or any other agreement, instrument or obligation to
which the Corporation or any of its Subsidiaries is a party or by which
the Corporation or any of its Subsidiaries or any property of the
Corporation or any of its Subsidiaries is bound (assuming for the
purpose of this clause (c) that all conditions precedent to the
conversion of Series A Preferred Stock have been satisfied and that all
outstanding shares of the Series A Preferred Stock have been converted
into Common Stock); (d) result in the creation or imposition of any
Lien upon any assets or properties of the Corporation or any of its
Subsidiaries; or (e) violate any Law applicable to the Corporation or
any of its Subsidiaries;
(iv) (a) no default or event of default, or event that with
notice or the passage of time would constitute a default or event of
default, has occurred and is continuing (or will occur as a result of
the issuance of shares of Common Stock in satisfaction of such
payment), under any contract, agreement, indenture, mortgage, note,
lease or other instrument evidencing Indebtedness of the Corporation or
any of its Subsidiaries (other than inter-company Indebtedness between
the Corporation and any of its Subsidiaries or between Subsidiaries of
the Corporation) the outstanding principal amount of which is in excess
of $10,000,000 and as a result of such default, event of default or
event the holders thereof have accelerated or have the right to
accelerate (or would have the right to accelerate with notice or the
passage of time) the maturity thereof, and (b) the Corporation has not
been notified that a breach of the Investment Agreement or the terms of
the Series A Preferred Stock or Series B Preferred Stock has occurred
and is continuing;
(v) (a) with respect to any Non-Arrearage Payment, the
Trailing Average Value (as defined below) is equal to or greater than
the product of (A) 0.40, multiplied by (B) the Conversion Price, and
(b) with respect to any Arrearage Payment, the Trailing Average Value
(as defined below) is equal to or greater than the product of (A) 0.60,
multiplied by (B) the Conversion Price;
(vi) (a) with respect to any Non-Arrearage Payment, the
average daily trading volume in the Common Stock during the period used
to calculate the Trailing Average Value is at least 50% of the average
daily trading volume in the Common Stock for the 180-day period ending
on the date of the Investment Agreement, and (b) with respect to any
Arrearage Payment, the average daily trading volume in the Common Stock
during the period used to calculate the Trailing Average Value is at
least 67% of the average daily trading volume in the Common Stock for
the 180-day period ending on the date of the Investment Agreement;
(vii) the issuance of such shares of Common Stock in
satisfaction of such payment does not require the approval or
affirmative vote of the holders of any class or series of the
Corporation's Equity Securities; and
(viii) as of the relevant Dividend Payment Date, the Shelf
Registration Statement (as such term is defined in the Registration
Rights Agreement) is effective under the Securities Act and is
available for use in connection with the offer and sale of such shares
of Common Stock by those holders of Series A Preferred Stock that have
such right under the Registration Rights Agreement (it being understood
that if a Shelf Suspension (as such term is defined in the Registration
Rights Agreement) is in effect, the Shelf Registration Statement shall
not be deemed effective or available for use); provided, however, that
in the case of any Non-Arrearage Payment (and only in the case of a
Non-Arrearage Payment), this clause (viii) shall not prohibit the
issuance of shares of Common Stock in satisfaction of such payment if
the Shelf Registration Statement is not effective or not available for
use in accordance with Section 2.1(c) of the Registration Rights
Agreement.
For the purpose of this Section C, the value of a share of Common Stock used to
pay dividends on the Series A Preferred Stock shall equal (the "Trailing Average
Value") the average of the Closing Prices per share of Common Stock for the
twenty consecutive Trading Days ending on the second Trading Day prior to the
relevant Dividend Payment Date ; provided, however, that in the event that an
adjustment to the Conversion Price takes effect pursuant to Section B of Article
IX hereof during the period used to compute such average, the Closing Prices
used to compute such average for all Trading Days ended prior to the time such
adjustment takes effect shall be similarly adjusted. Except as otherwise
expressly provided in this Section C, Common Stock may not be used to make any
payment in respect of any Arrearage.
D. Method of Payment. Dividends paid on the shares of Series A Preferred
Stock in an amount less than the total amount of such dividends at the time
accumulated and payable on all outstanding shares of Series A Preferred Stock
shall be allocated pro rata on a share-by-share basis among all such shares then
outstanding. Notwithstanding the provisions of Section C of this Article III,
any such partial payment shall be made in cash. Dividends that are declared and
paid in an amount less than the full amount of dividends accumulated on the
Series A Preferred Stock (and on any Arrearage) shall be applied first to the
earliest dividend which has not theretofore been paid. All cash payments of
dividends on the shares of Series A Preferred Stock shall be made in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
IV. Liquidation Preference
In the event of a liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the holders of then-outstanding
shares of Series A Preferred Stock shall be entitled to receive out of the
assets of the Corporation, whether such assets are capital or surplus of any
nature, an amount per share equal to the sum of (i) the dividends, if any,
accumulated or deemed to have accumulated thereon to the date of final
distribution to such holders, whether or not such dividends are declared, and
(ii) the Stated Value thereof, and no more, before any payment shall be made or
any assets distributed to the holders of any Junior Liquidation Securities.
After any such payment in full, the holders of Series A Preferred Stock shall
not, as such, be entitled to any further participation in any distribution of
assets of the Corporation. All the assets of the Corporation available for
distribution to stockholders after the liquidation preferences of any Senior
Liquidation Securities shall be distributed ratably (in proportion to the full
distributable amounts to which holders of Series A Preferred Stock and Parity
Liquidation Securities, if any, are respectively entitled upon such dissolution,
liquidation or winding up) among the holders of the then-outstanding shares of
Series A Preferred Stock and Parity Liquidation Securities, if any, when such
assets are not sufficient to pay in full the aggregate amounts payable thereon.
Neither a consolidation or merger of the Corporation with or into any other
Person or Persons, nor a sale, conveyance, lease, exchange or transfer of all or
part of the Corporation's assets for cash, securities or other property to a
Person or Persons shall be deemed to be a liquidation, dissolution or winding up
of the Corporation for purposes of this Article IV, but the holders of shares of
Series A Preferred Stock shall nevertheless be entitled from and after any such
consolidation, merger or sale, conveyance, lease, exchange or transfer of all or
part of the Corporation's assets to the rights provided by this Article IV
following any such transaction. Notice of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, stating the payment
date or dates when, and the place or places where, the amounts distributable to
each holder of shares of Series A Preferred Stock in such circumstances shall be
payable, shall be given by first-class mail, postage prepaid, mailed not less
than 45 days prior to any payment date stated therein, to holders of record as
they appear on the stock record books of the Corporation as of the date such
notices are first mailed.
V. Mandatory Conversion and Redemption
A. Mandatory Conversion. (a) If the 180-Day Average Price and the related
Two-Week Average Price for any 180-Day Reference Period (which Reference Period
shall have ended no earlier than the first anniversary of the original issuance
of the Series A Preferred Stock and no later than the second anniversary of the
original issuance of the Series A Preferred Stock), both exceed 200% of the
Conversion Price, then the Corporation shall have the right, at its option and
election, to exchange the Series A Preferred Stock, in whole and not in part,
for shares of Common Stock, as if such shares of Series A Preferred Stock had
been converted by the holders thereof pursuant to Article IX hereof on the date
of such exchange.
(b) If the 45-Trading Day Average Price and the related Two-Week Average
Price for any 45-Trading Day Reference Period (which Reference Period shall have
ended no earlier than the second anniversary of the original issuance of the
Series A Preferred Stock), both exceed 200% of the Conversion Price, then the
Corporation shall have the right, at its option and election, to exchange the
Series A Preferred Stock, in whole and not in part, for shares of Common Stock,
as if such shares of Series A Preferred Stock had been converted by the holders
thereof pursuant to Article IX hereof on the date of such exchange.
(c) Notwithstanding anything in this Section A to the contrary, the
Corporation shall not have the right to exchange the Series A Preferred Stock
for Common Stock pursuant to this Section A unless (i) the Common Stock shall
have been validly listed for trading on the NYSE or other national securities
exchange or quoted on a nationally recognized quotation system on each day in
the relevant Reference Period and as of the date of such exchange, (ii) the
average daily trading volume in the Common Stock during the relevant Reference
Period and during the two-week calendar period ending on the last day of the
relevant Reference Period is at least 50% of the average daily trading volume in
the Common Stock for the 180-day period ending on the date of the Investment
Agreement, (iii) the Corporation shall have obtained the Shareholder Approval,
(iv) as of the date of such exchange, the Shelf Registration Statement (as such
term is defined in the Registration Rights Agreement) is effective under the
Securities Act and is available for use in connection with the offer and sale of
such shares of Common Stock by those holders that have such right under the
Registration Rights Agreement (it being understood that if a Shelf Suspension
(as such term is defined in the Registration Rights Agreement) is in effect, the
Shelf Registration Statement shall not be deemed effective or available for
use), and (v) the Corporation simultaneously exchanges the Series B Preferred
Stock pursuant to subsection (a) or (b) of Section A of Article V of the
Certificate of Designations for the Series B Preferred Stock. The Corporation
may not effect any such exchange if such exchange would: (a) violate any
provision of the certificate of incorporation or the bylaws of the Corporation;
(b) conflict with, contravene or result in a breach or violation of any of the
terms or provisions of, or constitute a default (with or without notice or the
passage of time) under, or result in or give rise to a right of termination,
cancellation, acceleration or modification of any right or obligation under, or
give rise to a right to put or to compel a tender offer for outstanding
securities of the Corporation or any of its Subsidiaries under, or require any
consent, waiver or approval under, any note, bond, debt instrument, indenture,
mortgage, deed of trust, lease, loan agreement, joint venture agreement,
Regulatory Approval, contract or any other agreement, instrument or obligation
to which the Corporation or any of its Subsidiaries is a party or by which the
Corporation or any of its Subsidiaries or any property of the Corporation or any
of its Subsidiaries is bound; (c) result in the creation or imposition of any
Lien upon any assets or properties of the Corporation or any of its
Subsidiaries; or (d) violate any Law applicable to the Corporation or any of its
Subsidiaries.
(d) Notice of an exchange of shares of Series A Preferred Stock pursuant to
this Section A (a "Notice of Exchange") shall be sent to the holders of record
of the shares of Series A Preferred Stock by first class mail, postage prepaid,
at each such holder's address as it appears on the stock record books of the
Corporation, not more than 45 nor fewer than 15 days prior to the last day of
the relevant Reference Period. The Notice of Exchange shall set forth the date
fixed for the exchange (the "Exchange Date") and shall set forth in reasonable
detail the calculations and supporting data used by the Corporation in its
determination that it had the right to effect such exchange. From and after the
Exchange Date, all dividends on shares of Series A Preferred Stock shall cease
to accumulate and all rights of the holders thereof as holders of Series A
Preferred Stock shall cease and terminate, except if the Corporation shall
default in its obligation to deliver shares of Common Stock and cash in lieu of
fractional shares to holders on the Exchange Date, in which case all such rights
shall continue unless and until such shares are exchanged (or redeemed or
converted) in accordance with the terms hereof. Prior to the Exchange Date, each
holder shall provide a written notice to the Corporation specifying the name or
names in which such holder wishes the certificate or certificates for shares of
Common Stock to be issued. If no such notice is delivered, such shares of Common
Stock and cash in lieu of fractional shares, if any, shall be delivered to such
holder. In case such notice shall specify a name or names other than that of
such holder, such notice shall be accompanied by payment of all transfer taxes
payable upon the issuance of shares of Common Stock in such name or names. Other
than such taxes, the Corporation will pay any and all issue and other taxes
(other than taxes based on income) that may be payable in respect of any issue
or delivery of shares of Common Stock on exchange of Series A Preferred Stock
pursuant to this Section A. On or after the Exchange Date, each holder of shares
of Series A Preferred Stock shall surrender the certificate evidencing shares of
Series A Preferred Stock to the Corporation at the place designated in the
Notice of Exchange. As promptly as practical, and in any event within three
Business Days after the Exchange Date, the Corporation shall deliver or cause to
be delivered as directed by the holder of shares of Series A Preferred Stock
being exchanged (i) certificates representing the number of validly issued,
fully paid and nonassessable full shares of Common Stock to which such holder
shall be entitled and (ii) cash in lieu of fractional shares, if any, to which
such holder shall be entitled. Except as otherwise specified in this Article V,
for the purposes hereof, such exchange shall be deemed a conversion effected
pursuant to Article IX and the terms and procedures set forth in Article IX
shall apply. For such purpose, the applicable Conversion Date shall be the
Exchange Date.
(e) In the event the Corporation delivers a Notice of Exchange, the
Corporation shall be obligated to effect the exchange described therein,
provided that each of the conditions to such exchange set forth in subsections
(a), (b) and (c) above is (i) satisfied or (ii) waived by the holders of a
majority of the shares of Series A Preferred Stock then outstanding.
(f) Notwithstanding anything to the contrary in the Registration Rights
Agreement, in the event the Corporation effects an exchange pursuant to this
Section A, the Corporation shall not exercise its right to declare a Shelf
Suspension (as such term is defined in the Registration Rights Agreement)
pursuant to Section 2.1(c) of the Registration Rights Agreement during the
period beginning on the Exchange Date and ending 90 days after the Exchange
Date.
B. Mandatory Redemption. The Corporation shall not have any right to redeem
any shares of Series A Preferred Stock prior to the Mandatory Redemption Date
(as defined below). On the tenth anniversary of the original issuance of the
Series A Preferred Stock (the "Mandatory Redemption Date"), the Corporation
shall redeem (the "Mandatory Redemption") all outstanding shares of Series A
Preferred Stock by paying the redemption price therefor in cash out of funds
legally available for such purpose. The redemption price for each share of
Series A Preferred Stock shall equal the sum of (i) the amount, if any, of all
unpaid dividends accumulated thereon to the date of actual payment of the
Redemption Price, whether or not such dividends have been declared, and (ii) the
Stated Value thereof ("Redemption Price").
C. Notice and Redemption Procedures. Notice of the redemption of shares of
Series A Preferred Stock pursuant to Section B of this Article V (a "Notice of
Redemption") shall be sent to the holders of record of the shares of Series A
Preferred Stock to be redeemed by first class mail, postage prepaid, at each
such holder's address as it appears on the stock record books of the
Corporation, not more than 100 nor fewer than 60 days prior to the date fixed
for redemption, which date shall be set forth in such notice (the "Redemption
Date"); provided, however, that failure to give such Notice of Redemption to any
holder, or any defect in such Notice of Redemption to any holder shall not
affect the validity of the proceedings for the redemption of any shares of
Series A Preferred Stock held by any other holder. In order to facilitate the
redemption of shares of Series A Preferred Stock, the Board of Directors may fix
a record date for the determination of the holders of shares of Series A
Preferred Stock to be redeemed, in each case, not more than 10 days prior to the
date the Notice of Redemption is mailed. On or after the Redemption Date, except
with respect to shares of Series A Preferred Stock for which the Conversion Date
has occurred on or prior to such Redemption Date, each holder of the shares
called for redemption shall surrender the certificate evidencing such shares to
the Corporation at the place designated in such notice and shall thereupon be
entitled to receive payment of the Redemption Price. From and after the
Redemption Date, all dividends on shares of Series A Preferred Stock shall cease
to accumulate and all rights of the holders thereof as holders of Series A
Preferred Stock shall cease and terminate, except if the Corporation shall
default in payment of the Redemption Price on the Redemption Date in which case
all such rights shall continue unless and until such shares are redeemed and
such price is paid in accordance with the terms hereof.
D. Change of Control. In the event there occurs a Change of Control, any
holder of record of shares of Series A Preferred Stock, in accordance with the
procedures set forth in Section E of this Article V, may require the Corporation
to redeem any or all of the shares of Series A Preferred Stock held by such
holder in an amount per share equal to the sum of (i) the amount, if any, of all
unpaid dividends accumulated thereon to the date of actual payment thereof,
whether or not such dividends have been declared, and (ii) 101% of Stated Value
(the "Change of Control Price"). By accepting a share of Series A Preferred
Stock the holder thereof shall be deemed to have acknowledged and agreed that
(a) such holder's right, to receive payment of the Change in Control Price is
subject and subordinated in right of payment to the payment in full and
discharge of all amounts of principal, interest and fees (however denominated)
then outstanding under the Credit Agreement and the Senior Subordinated Notes
and (b) until payment in full of all such amounts (however denominated) under
the Credit Agreement and the Senior Subordinated Notes has been made in cash, no
payment, whether directly or indirectly, by exercise of any right of set off or
otherwise in respect of the Change of Control Price shall be made by the
Corporation, and, notwithstanding anything to the contrary in Section F of this
Article V, no deposit in respect of the Change of Control Price shall be made
pursuant to Section F of this Article V. In the event that any payment by, or
distribution of the assets of, the Corporation of any kind or character (whether
in cash, property or securities, whether directly or indirectly, by exercise of
any right of set-off or otherwise and whether as a result of a bankruptcy
proceeding with respect to the Corporation or otherwise) shall be received by a
holder of Series A Preferred Stock at any time when such payment is prohibited
by this paragraph, such payment shall be held in trust for the benefit of, and
shall be paid over to, the lenders under the Credit Agreement or the holders of
Senior Subordinated Notes, as the case may be, as their interests may appear.
The preceding two sentences address the relative rights of holders of Series A
Preferred Stock or Debentures, on the one hand, and the lenders under the Credit
Agreement or the holders of Senior Subordinated Notes, as the case may be, on
the other hand, and nothing in this Certificate of Designations shall impair, as
between the Corporation and the holders of Series A Preferred Stock or
Debentures, the obligation of the Corporation, which is absolute and
unconditional, to pay amounts due in respect of the Series A Preferred Stock and
Debentures in accordance with their terms. Upon a Change of Control, the
Corporation shall pay all amounts outstanding under the Credit Agreement and the
Indenture to the extent necessary in order to permit the payment of the Change
of Control Price hereunder.
E. Change of Control Notice and Redemption Procedures. Notice of any Change
of Control shall be sent to the holders of record of the outstanding shares of
Series A Preferred Stock not more than five days following a Change of Control,
which notice (a "Change of Control Notice") shall describe the transaction or
transactions constituting such Change of Control and set forth each holder's
right to require the Corporation to redeem any or all shares of Series A
Preferred Stock held by him or her out of funds legally available therefor, the
redemption date, which date shall be not less than 30 nor more than 45 days from
the date of such Change of Control Notice, (the "Change of Control Redemption
Date") and the procedures to be followed by such holders in exercising his or
her right to cause such redemption; provided, however, that if shares of Series
A Preferred Stock are owned by more than 50 holders or groups of Affiliated
holders and if the Series A Preferred Stock is listed on any national securities
exchange or quoted on any national quotation system, the Corporation shall give
such Change of Control Notice by publication in a newspaper of general
circulation in the Borough of Manhattan, The City of New York, within 30 days
following such Change of Control and, in any case, a similar notice shall be
mailed concurrently to each holder of shares of Series A Preferred Stock.
Failure by the Corporation to give the Change of Control Notice as prescribed by
the preceding sentence, or the formal insufficiency of any such Change of
Control Notice, shall not prejudice the rights of any holder of shares of Series
A Preferred Stock to cause the Corporation to redeem any such shares held by him
or her. In the event a holder of shares of Series A Preferred Stock shall elect
to require the Corporation to redeem any or all such shares of Series A
Preferred Stock pursuant to Section D hereof, such holder shall deliver, prior
to the Change of Control Redemption Date as set forth in the Change of Control
Notice, or, if the Change of Control Notice is not given as required by this
Section E, at any time following the last day the Corporation was required to
give the Change of Control Notice in accordance with this Section E (in which
case the Change of Control Redemption Date shall be the date which is the later
of (x) 45 days following the last day the Corporation was required to give the
Change of Control Notice in accordance with this Section E and (y) 30 days
following the delivery of such election by such holder), a written notice, in
the form specified by the Corporation (if the Corporation did in fact give the
notice required by this Section E), to the Corporation so stating, and
specifying the number of shares to be redeemed pursuant to Section D of this
Article V; provided, however, that if all of the shares of the Series A
Preferred Stock are owned by 50 or fewer holders or groups of affiliated
holders, such holders or groups may deliver a notice or an election to redeem at
any time within 90 days following the occurrence of a Change of Control without
awaiting receipt of a Change of Control Notice or the expiration of the time
allowed for the delivery of a Change of Control Notice hereunder. The
Corporation shall redeem the number of shares so specified on the Change of
Control Redemption Date fixed by the Corporation or as provided in the preceding
sentence. The Corporation shall comply with the requirements of Rules 13e-4 and
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with the repurchase of the shares of Series A Preferred Stock as a result of a
Change of Control. From and after the time the Change of Control Redemption
Price is paid in accordance with the terms hereof with respect to any share of
Series A Preferred Stock, all dividends on such share of Series A Preferred
Stock shall cease to accumulate and all rights of the holder thereof as a holder
of Series A Preferred Stock shall cease and terminate.
F. Deposit of Funds. The Corporation shall, no later than 11:00 a.m., New
York City time, on any Redemption Date or Change of Control Redemption Date
pursuant to this Article V, deposit with its transfer agent or other redemption
agent in the Borough of Manhattan, The City of New York having a capital and
surplus of at least $500,000,000, as a trust fund for the benefit of the holders
of the shares of Series A Preferred Stock to be redeemed, cash that is
sufficient in amount to redeem the shares to be redeemed in accordance with the
Notice of Redemption or Change of Control Notice, with irrevocable instructions
and authority to such transfer agent or other redemption agent to pay to the
respective holders of such shares, as evidenced by a list of such holders
certified by an officer of the Corporation, the Redemption Price or Change of
Control Redemption Price, as the case may be, upon surrender of their respective
share certificates. Such deposit shall be deemed to constitute full payment of
such shares to the holders, and from and after the date of such deposit, all
rights of the holders of the shares of Series A Preferred Stock that are to be
redeemed as stockholders of the Corporation with respect to such shares, except
the right to receive the Redemption Price upon the surrender of their respective
certificates and all rights under Articles IX and XI hereof, shall cease and
terminate. In case holders of any shares of Series A Preferred Stock called for
redemption shall not, within two years after such deposit, claim the cash
deposited for redemption thereof, such transfer agent or other redemption agent
shall, upon demand, pay over to the Corporation the balance so deposited.
Thereupon, such transfer agent or other redemption agent shall be relieved of
all responsibility to the holders thereof and the sole right of such holders,
with respect to shares to be redeemed, shall be to receive the Redemption Price
as general creditors of the Corporation. Any interest accrued on any funds so
deposited shall belong to the Corporation, and shall be paid to it from time to
time on demand.
VI. Exchange of Series A Preferred Stock for Debentures
A. The Series A Preferred Stock shall be exchangeable, at any time, at the
option of the Corporation and to the extent permitted by applicable law and the
terms of the instruments governing the Corporation's then-outstanding
Indebtedness, in whole but not in part, on any Dividend Payment Date for
unsecured Junior Subordinated Convertible Debentures (issued pursuant to an
indenture (the "Series A Indenture") prepared in accordance with the Investment
Agreement), in principal amount of $1,000 per share of Series A Preferred Stock
(a "Debenture" and, collectively, the "Debentures"), in accordance with this
Article VI:
(i) Each share of Series A Preferred Stock shall be
exchangeable at the offices of the Corporation and at such other place
or places, if any, as the Board of Directors may designate. Except with
the prior written consent of the holders of all outstanding shares of
Series A Preferred Stock, the Corporation may not exchange any shares
of Series A Preferred Stock if (a) full cumulative dividends through
the date of exchange, have not been paid, accrued or set aside for
payment on all outstanding shares of the Series A Preferred Stock, (b)
the Corporation has failed to amend its Certificate of Incorporation in
accordance with Delaware law to confer the power to vote upon holders
of the Debentures as shall be contemplated by the Series A Indenture or
(c) such exchange could result in any adverse tax consequence to any
such holder.
(ii) Prior to giving notice of its intention to exchange, the
Corporation shall execute and deliver to a bank or trust company and,
if required by applicable law, qualify under the Trust Indenture Act of
1939, as amended, the Series A Indenture.
(iii) The Corporation shall mail written notice of its
intention to exchange Series A Preferred Stock for Debentures (the
"Exchange Notice") to each holder of record of shares of Series A
Preferred Stock not less than 60 nor more than 100 days prior to the
date fixed for exchange. The Exchange Notice shall notify holders of
their right to deliver an Objection Notice (as defined below) pursuant
to Section B of this Article VI.
(iv) Prior to effecting any exchange provided above, the
Corporation shall deliver to each holder of shares of Series A
Preferred Stock an opinion of nationally recognized legal counsel to
the effect that: (a) each of the Series A Indenture and the Debentures
have been duly authorized and executed by the Corporation and, when
delivered by the Corporation in exchange for shares of Series A
Preferred Stock, will constitute valid and legally binding obligations
of the Corporation enforceable against the Corporation in accordance
with their terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and to general
principles of equity; (b) the exchange of the Debentures for the shares
of Series A Preferred Stock will not violate the provisions of this
Article VI or of the Delaware General Corporation Law, including
Section 221 thereof; and (c) the exchange of the Debentures for the
shares of Series A Preferred Stock is exempt from the registration
requirements of the Securities Act or that the exchange of such
Debentures has been duly registered under the Securities Act.
(v) The Corporation may not effect any exchange provided above
if such exchange would: (a) violate any provision of the certificate of
incorporation or the bylaws of the Corporation; (b) conflict with,
contravene or result in a breach or violation of any of the terms or
provisions of, or constitute a default (with or without notice or the
passage of time) under, or result in or give rise to a right of
termination, cancellation, acceleration or modification of any right or
obligation under, or give rise to a right to put or to compel a tender
offer for outstanding securities of the Corporation or any of its
Subsidiaries under, or require any consent, waiver or approval that has
not been obtained or granted under, any note, bond, debt instrument,
indenture, mortgage, deed of trust, lease, loan agreement, joint
venture agreement, Regulatory Approval, contract or any other
agreement, instrument or obligation to which the Corporation or any of
its Subsidiaries is a party or by which the Corporation or any of its
Subsidiaries or any property of the Corporation or any of its
Subsidiaries is bound; (c) result in the creation or imposition of any
Lien upon any assets or properties of the Corporation or any of its
Subsidiaries; or (d) violate any Law applicable to the Corporation or
any of its Subsidiaries;
(vi) Upon the exchange of shares of Series A Preferred Stock
for Debentures, the rights of the holders of shares of Series A
Preferred Stock as stockholders of the Corporation shall terminate and
such shares shall no longer be deemed outstanding; and
(vii) Before any holder of shares of Series A Preferred Stock
shall be entitled to receive Debentures, such holder shall surrender
the certificate or certificates therefor, at the office of the
Corporation or at such other place or places, if any, as the Board of
Directors shall have designated, and shall state in writing the name or
names (with addresses) in which he or she wishes the certificate or
certificates for the Debentures to be issued. The Corporation will, as
soon as practicable thereafter, issue and deliver at said office or
place to such holder of shares of Series A Preferred Stock, or to his
or her nominee or nominees, certificates for the Debentures to which he
or she shall be entitled as aforesaid. Shares of Series A Preferred
Stock shall be deemed to have been exchanged as of the close of
business on the date fixed for exchange as provided above, and the
Person or Persons entitled to receive the Debentures issuable upon such
exchange shall be treated for all purposes (including the accrual and
payment of interest) as the record holder or holders of such Debentures
as of the close of business on such date.
B. For purposes of clause (c) of paragraph (i) of Section A of this Article
VI, an exchange of shares of Series A Preferred Stock shall be deemed to be an
exchange that could result in a tax consequence to any holder which is
materially adverse only if such holder shall have delivered to the Corporation a
written notice to such effect on or before the fifteenth day after its receipt
of the Exchange Notice (an "Objection Notice"), which Objection Notice shall
specify in reasonable detail the nature of such tax consequence which could
result from the exchange. If the Corporation receives an Objection Notice, then
the Corporation shall not exchange the shares of Series A Preferred Stock and
the Corporation shall, within 15 days after its receipt of the Objection Notice
mail written notice to the effect that it is canceling the proposed exchange of
shares of Series A Preferred Stock to each holder of record of shares of Series
A Preferred Stock to which it mailed the Exchange Notice. Notwithstanding the
foregoing, if the Corporation, based on the advice of nationally recognized tax
counsel, believes that the tax consequences described in an Objection Notice are
incorrect, the Corporation may contact the holder who delivered such notice to
discuss the tax consequences described therein. If such holder withdraws such
notice within 15 days of its delivery, the Corporation shall be permitted to
consummate the proposed exchange.
VII. Restrictions on Dividends
So long as any shares of the Series A Preferred Stock are outstanding, the
Board of Directors shall not declare, and the Corporation shall not pay or set
apart for payment any dividend on any Junior Securities or Parity Securities or
make any payment on account of, or set apart for payment money for a sinking or
other similar fund for, the repurchase, redemption or other retirement of, any
Junior Securities or Parity Securities or any warrants, rights or options
exercisable for or convertible into any Junior Securities or Parity Securities
(other than the repurchase, redemption or other retirement of debentures or
other debt securities that are convertible or exchangeable into any Junior
Securities or Parity Securities), or make any distribution in respect of the
Junior Securities or Parity Securities, either directly or indirectly, and
whether in cash, obligations or shares of the Corporation or other property
(other than distributions or dividends in Junior Securities to the holders of
Junior Securities), and shall not permit any Person directly or indirectly
controlled by the Corporation to purchase or redeem any Junior Securities or
Parity Securities or any warrants, rights, calls or options exercisable for or
convertible into any Junior Securities or Parity Securities (other than the
repurchase, redemption or other retirement of debentures or other debt
securities that are convertible or exchangeable into any Junior Securities or
Parity Securities) unless prior to or concurrently with such declaration,
payment, setting apart for payment, repurchase, redemption or other retirement
or distribution, as the case may be, all accumulated and unpaid dividends on
shares of the Series A Preferred Stock not paid on the dates provided for in
Section A of Article III hereof (including Arrearages and accumulated dividends
thereon and regardless of whether the Corporation shall have had the right to
elect to defer such payments as provided for in Article III hereof) shall have
been paid, except that when dividends are not paid in full as aforesaid upon the
shares of Series A Preferred Stock, all dividends declared on the Series A
Preferred Stock and any series of Parity Dividend Securities shall be declared
and paid pro rata so that the amount of dividends so declared and paid on Series
A Preferred Stock and such series of Parity Dividend Securities shall in all
cases bear to each other the same ratio that accumulated dividends (including
interest accrued on or additional dividends accumulated in respect of such
accumulated dividends) on the shares of Series A Preferred Stock and such Parity
Dividend Securities bear to each other. Notwithstanding the foregoing, this
paragraph shall not prohibit (i) the acquisition, repurchase, exchange,
conversion, redemption or other retirement for value of shares of Series A
Preferred Stock or any Parity Dividend Security by the Corporation in accordance
with the terms of such securities or (ii) the acquisition, repurchase, exchange,
conversion, redemption or other retirement for value by the Corporation of any
Junior Dividend Securities by the Corporation in accordance with obligations in
existence at the time of original issuance of the Series A Preferred Stock.
VIII. Voting Rights
A. The holders of shares of Series A Preferred Stock shall have no voting
rights except as set forth below or as otherwise from time to time required by
law.
B. So long as any shares of the Series A Preferred Stock are outstanding,
each share of Series A Preferred Stock shall entitle the holder thereof to vote
on all matters voted on by holders of Common Stock, and the shares of Series A
Preferred Stock shall vote together with shares of Common Stock (and any shares
of Series B Preferred Stock entitled to vote) as a single class. With respect to
any such vote, each share of Series A Preferred Stock shall entitle its holder
to a number of votes equal to the number of shares of Common Stock into which
such share of Series A Preferred Stock is convertible at the time of the record
date with respect to such vote (assuming all conditions precedent to such
conversion have been satisfied and that such conversion had occurred as of the
record date for such vote). Notwithstanding the foregoing, holders of shares of
Series A Preferred Stock shall not be entitled to vote with the holders of
Common Stock on any proposal related to the approval of the issuance of shares
of Common Stock in payment of dividends on the Series A Preferred Stock or upon
the issuance of Common Stock with respect to Arrearages upon the conversion of
the Series A Preferred Stock into shares of Common Stock.
C. If on any date (i) dividends payable on the Series A Preferred Stock or
Series B Preferred Stock shall not have been paid in full when required pursuant
to the terms hereof or (ii) the Corporation shall have failed to satisfy its
obligation to redeem shares of Series A Preferred Stock or Series B Preferred
Stock pursuant to the terms of the relevant Certificate of Designations
(provided, that for the purpose of this Section C, any obligation of the
Corporation to repurchase shares of Series B Preferred Stock or make a
Make-Whole Payment pursuant to Section G of Article V of the Certificate of
Designations with respect to the Series B Preferred Stock, shall not be
considered an obligation to redeem such shares), then the number of directors
constituting the Board of Directors shall, without further action, be increased
by two, or if the requisite increase in the number of directors constituting the
Board of Directors would require the approval of the Corporation's stockholders
or is prohibited by the Investment Agreement, then the number of directors
constituting the Board of Directors shall be increased to the extent the
approval of the Corporation's stockholders is not required and the Investment
Agreement would not be breached and a number of directors (other than Investor
Nominees) shall resign from the Board of Directors so that the holders of shares
of Series A Preferred Stock and, if then entitled to vote with respect to such
matters, the holders of shares of Series B Preferred Stock, voting together as a
single class without regard to series, may elect two directors to the Board of
Directors, and the holders of a majority of the outstanding shares of Series A
Preferred Stock and any shares of Series B Preferred Stock entitled to vote with
respect to such matters, voting together as a single class without regard to
series, shall have, in addition to the other voting rights set forth herein, the
exclusive right to elect two directors (the "Additional Directors") of the
Corporation to fill such newly-created or vacated directorships. Additional
Directors shall continue as directors and such additional voting right shall
continue until such time as (a) all dividends accumulated on the Series A
Preferred Stock and Series B Preferred Stock shall have been paid in full as
required pursuant to the terms hereof or (b) any redemption obligation with
respect to the Series A Preferred Stock or Series B Preferred Stock that has
become due shall have been satisfied or all necessary funds shall have been set
aside for payment, as the case may be, at which time such Additional Directors
shall cease to be directors and such additional voting right of the holders of
shares of Series A Preferred Stock and Series B Preferred Stock shall terminate
subject to revesting in the event of each and every subsequent event of the
character indicated above.
D. So long as members of the Investor Group Beneficially Own a majority of
the outstanding shares of Series A Preferred Stock and Series B Preferred Stock,
if any default or event of default has occurred and is continuing under any
contract, agreement, indenture, mortgage, note, lease or other instrument
evidencing Indebtedness of the Corporation or any of its Subsidiaries (other
than inter-company Indebtedness between the Corporation and any of its
Subsidiaries or between Subsidiaries of the Corporation) the outstanding
principal amount of which is in excess of $10,000,000, and as a result of such
default or event of default the holders thereof have accelerated or have the
right to accelerate the maturity thereof, and such default, event of default or
event is not cured or waived within 75 days of the occurrence thereof, then the
number of directors constituting the Board of Directors shall, upon the request
of members of the Investor Group who Beneficially Own a majority of the
outstanding shares of Series A Preferred Stock and Series B Preferred Stock then
Beneficially Owned by members of the Investor Group delivered to the Corporation
in writing, be increased by that number that is necessary to enable the Investor
Group to designate a majority of the members of the Board of Directors
(including the Investor Nominees), or if such requisite increase in the number
of directors constituting the Board of Directors would require the approval of
the Corporation's stockholders or is prohibited by the Investment Agreement,
then the number of directors constituting the Board of Directors shall be
increased to the extent the approval of the Corporation's stockholders is not
required and the Investment Agreement would not be breached and a number of
directors (other than Investor Nominees) shall resign from the Board of
Directors so as to enable the Investor Group to designate a majority of the
Board of Directors (including the Investor Nominees), and the holders of a
majority of the outstanding shares of Series A Preferred Stock then held by the
Investor Group and any shares of Series B Preferred Stock entitled to vote with
respect to such matters then held by the Investor Group, voting together as a
single class without regard to series, shall have, in addition to the other
voting rights set forth herein, the exclusive right, voting separately as a
class, to elect that number of directors (the "Majority Directors") of the
Corporation necessary to fill such newly-created or vacated directorships.
Majority Directors shall continue as directors and such additional voting right
shall continue until such time as such default, event of default or event is
cured, at which time such Majority Directors shall cease to be directors and
such additional voting right of the Series A Preferred Stock and Series B
Preferred Stock shall terminate subject to revesting in the event of each and
every subsequent event of the character indicated above.
E. So long as the Investor or any of its Affiliates Beneficially Owns any
shares of Series A Preferred Stock, in the event that one or more of the
Investor Nominees required to be designated for election to the Board of
Directors pursuant to the Investment Agreement are not so designated or are not
elected to the Board of Directors, then the number of directors constituting the
Board of Directors shall, without further action, be increased by the number of
such Investor Nominees not elected to the Board of Directors pursuant to the
Investment Agreement, or if such requisite increase in the number of directors
constituting the Board of Directors would require the approval of the
Corporation's stockholders or is prohibited by the Investment Agreement, then
the number of directors constituting the Board of Directors shall be increased
to the extent the approval of the Corporation's stockholders is not required and
the Investment Agreement would not be breached and a number of directors (other
than Investment Nominees) shall resign from the Board of Directors, so as to
enable the Investor and its Affiliates to designate as directors the number of
Investor Nominees not elected to the Board of Directors pursuant to the
Investment Agreement, and the Investor and its Affiliates shall have, in
addition to the other voting rights set forth herein, the exclusive right,
voting separately as a single class, to elect a number of directors to the Board
of Directors equal to the number of such Investor Nominees not elected to the
Board of Directors. Directors elected pursuant to this Section E shall continue
as directors and such additional voting right shall continue until such time as
the requisite number of Investor Nominees are elected to the Board of Directors
pursuant to the Investment Agreement, at which time the directors elected by the
Investor and its Affiliates pursuant to this Section E shall cease to be
directors (unless elected as Investor Nominees), and such additional voting
rights shall terminate subject to revesting in the event of each and every
subsequent event of the character indicated above.
F. (a) The foregoing rights of holders of shares of Series A Preferred
Stock to take any action as provided in this Article VIII may be exercised at
any annual meeting of stockholders or at a special meeting of stockholders held
for such purpose as hereinafter provided or at any adjournment thereof, or by
the written consent, delivered to the Secretary of the Corporation, of the
holders of the minimum number of shares required to take such action. So long as
such right to vote continues (and unless such right has been exercised by
written consent of the minimum number of shares required to take such action),
the Chairman of the Board of Directors may call, and upon the written request of
holders of record of 25% of the outstanding shares of Series A Preferred Stock,
addressed to the Secretary of the Corporation at the principal office of the
Corporation, shall call, a special meeting of the holders of shares entitled to
vote as provided herein. Such meeting shall be held as soon as reasonably
practicable after delivery of such request to the Secretary, at the place and
upon the notice provided by law and in the Bylaws for the holding of meetings of
stockholders.
(b) Each director elected pursuant to Section C, D or E hereof shall serve
until the next annual meeting or until his or her successor shall be elected and
shall qualify, unless the director's term of office shall have terminated
pursuant to the provisions of Section C, D or E hereof, as the case may be. In
case any vacancy shall occur among the directors elected pursuant to Section C,
D or E hereof, such vacancy shall be filled for the unexpired portion of the
term by vote of the remaining director or directors theretofore elected pursuant
to the same Section (or such director's or directors' successor in office), if
any. If any such vacancy is not so filled within 20 days after the creation
thereof or if all of the directors so elected shall cease to serve as directors
before their term shall expire, the holders of the shares of Series A Preferred
Stock then outstanding and entitled to vote for such director pursuant to the
provisions of Section C, D or E hereof, as the case may be, may elect successors
to hold office for the unexpired terms of any vacant directorships, by written
consent as provided herein, or at a special meeting of such holders called as
provided herein. The holders of a majority of the shares entitled to vote for
directors pursuant to Section C, D or E hereof, as the case may be, shall have
the right to remove with or without cause at any time and replace any directors
such holders have elected pursuant to such section, by written consent as herein
provided, or at a special meeting of such holders called as provided herein.
G. Without the consent or affirmative vote of the holders of at least
sixty-seven percent (67%) of the outstanding shares of Series A Preferred Stock,
voting separately as a class, the Corporation shall not: (i) authorize, create
or issue, or increase the authorized amount of, (a) any Senior Securities or (b)
any class or series of capital stock or any security convertible into or
exercisable for any class or series of capital stock, that is redeemable
mandatorily or redeemable at the option of the holder thereof at any time on or
prior to the Mandatory Redemption Date (whether or not only upon the occurrence
of a specified event); (ii) amend, alter or repeal any provision of the
Certificate of Incorporation or the Bylaws, if the amendment, alteration or
repeal alters or changes the powers, preferences or special rights of the Series
A Preferred Stock so as to affect them adversely; or (iii) authorize or take any
other action if such action alters or changes any of the rights of the Series A
Preferred Stock in any respect or otherwise would be inconsistent with the
provisions of this Certificate of Designations and the holders of any class or
series of the capital stock of the Corporation is entitled to vote thereon.
H. Other Securities. The Corporation shall not, from and after the date of
the original issuance of the Series A Preferred Stock, enter into any agreement,
amend or modify any existing agreement or obligation, or issue any security that
prohibits, conflicts or is inconsistent with, or would be breached by, the
Corporation's performance of its obligations hereunder.
IX. Conversion
A. Conversion. (a) At the option and election of the holder thereof, each
share of Series A Preferred Stock, including all unpaid dividends accumulated
thereon to the Conversion Date (as defined below), whether or not such dividends
have been declared, may be converted in the manner provided herein at any time
into fully paid and nonassessable shares of Common Stock. As of the Conversion
Date with respect to a share of Series A Preferred Stock, subject to subsections
(d) and (e) of this Section A, such share shall be converted into that number of
shares of Common Stock equal to the quotient of (i) the sum of (A) the Stated
Value plus (B) all unpaid dividends accumulated on such share of Series A
Preferred Stock to the Conversion Date whether or not such dividends have been
declared, divided by (ii) the Conversion Price in effect on the Conversion Date.
(b) Conversion of shares of the Series A Preferred Stock may be effected by
any holder thereof upon the surrender to the Corporation at the principal office
of the Corporation or at the office of any agent or agents of the Corporation,
as may be designated by the Board of Directors of the Corporation and identified
to the holders in writing upon such designation, of the certificate for such
shares of Series A Preferred Stock to be converted accompanied by a written
notice stating that such holder elects to convert all or a specified whole
number of shares represented by such certificate in accordance with the
provisions of this Section A and specifying the name or names in which such
holder wishes the certificate or certificates for shares of Common Stock to be
issued. In case such notice shall specify a name or names other than that of
such holder, such notice shall be accompanied by payment of all transfer taxes
payable upon the issuance of shares of Common Stock in such name or names. Other
than such taxes, the Corporation will pay any and all issue and other taxes
(other than taxes based on income) that may be payable in respect of any issue
or delivery of shares of Common Stock on conversion of Series A Preferred Stock
pursuant hereto. As promptly as practical, and in any event within three
Business Days after the Conversion Date, the Corporation shall deliver or cause
to be delivered as directed by the holder of shares of Series A Preferred Stock
being converted (i) certificates representing the number of validly issued,
fully paid and nonassessable full shares of Common Stock to which such holder
shall be entitled to, (ii) any cash that is required to be paid pursuant to
subsections (d) and (e) of this Section A, (iii) certificates representing any
shares of Series B Preferred Stock that are required to be delivered pursuant to
subsection (e) of this Section A, and (iv) if less than the full number of
shares of Series A Preferred Stock evidenced by the surrendered certificate or
certificates is being converted, a new certificate or certificates, of like
tenor, for the number of shares of Series A Preferred Stock evidenced by such
surrendered certificate or certificates less the number of shares of Series A
Preferred Stock being converted. Such conversion shall be deemed to have
occurred at the close of business on the date (the "Conversion Date") of the
giving of such notice by the holder of the Series A Preferred Stock to be
converted and of such surrender of the certificate or certificates representing
the shares of Series A Preferred Stock to be converted so that as of such time
the rights of the holder thereof as to the shares being converted shall cease
except for the right to receive shares of Common Stock, shares of Series B
Preferred Stock and/or cash in accordance herewith, and the person entitled to
receive the shares of Common Stock and/or shares of Series B Preferred Stock
issued as a result of such conversion shall be treated for all purposes as
having become the holder of such shares of Common Stock and/or shares of Series
B Preferred Stock at such time.
(c) In the event that the Series A Preferred Stock is to be redeemed
pursuant to Article V hereof, from and after the Redemption Date, the right of a
holder to convert shares of Series A Preferred Stock pursuant to this Section A
shall cease and terminate, except if the Corporation shall default in payment of
the Redemption Price on the Redemption Date in which case all such rights shall
continue unless and until such shares are redeemed and such price is paid in
full in accordance with the terms hereof. Notwithstanding anything in the
foregoing to the contrary, if the Conversion Date shall occur with respect to
any shares of Series A Preferred Stock on or prior to any Redemption Date, such
shares of Series A Preferred Stock shall be converted by the Corporation into
Common Stock in the manner provided in this Section A.
(d) In connection with the conversion of any shares of Series A Preferred
Stock, no fractions of shares of Common Stock shall be issued, but in lieu
thereof the Corporation shall pay a cash adjustment in respect of such
fractional interest in an amount equal to such fractional interest multiplied by
the Closing Price per share of Common Stock on the Conversion Date (or on the
Trading Day immediately preceding the Conversion Date, if the Conversion Date is
not a Trading Day). If more than one share of Series A Preferred Stock shall be
surrendered for conversion by the same holder on the same Conversion Date, the
number of full shares of Common Stock issuable on conversion thereof shall be
computed on the basis of the total number of shares of Series A Preferred Stock
so surrendered.
(e) Notwithstanding anything in the foregoing to the contrary, in the event
that a Conversion Date with respect to a share of Series A Preferred Stock
occurs prior to the date on which the Shareholder Approval is obtained, as of
such Conversion Date, subject to subsection (d) of this Section A, such share
shall be converted into that number of shares of Common Stock equal to the
quotient of (i) the Stated Amount thereof, divided by (ii) the Conversion Price
in effect on the Conversion Date, and upon delivery of such shares in accordance
with the terms hereof, the Corporation shall pay in cash all accrued and unpaid
dividends on such share as directed by the holder thereof; provided, however,
that if, as of such Conversion Date, the Corporation is prohibited by the terms
of the Credit Agreement (as in effect on the date of the Investment Agreement or
any Credit Agreement containing restrictions regarding such payments that are no
more restrictive that those in effect on the date of the Investment Agreement)
or the Indenture (as in effect on the date of the Investment Agreement or any
Indenture containing restrictions regarding such payments that are no more
restrictive that those in effect on the date of the Investment Agreement) from
paying such accrued and unpaid dividends in cash as required pursuant to this
sentence, in satisfaction of such accrued and unpaid dividends and in lieu of
such cash payment, the Corporation may deliver shares of Series B Preferred
Stock having an aggregate stated value equal to the aggregate amount of such
accrued and unpaid dividends. Until the Shareholder Approval is obtained, the
Corporation shall not (A) utilize amounts available under Section 6.06(a)(ii) of
the Credit Agreement (or any comparable provision of the Credit Agreement) for
any purpose except to pay dividends in respect of the Series A Preferred Stock
in cash as required pursuant to this subsection (e) or to make payments with
respect to the Series B Preferred Stock, or (B) amend the Credit Agreement in
any manner so as to reduce the amounts available to pay dividends in respect of
the Series A Preferred Stock in cash under Section 6.06(a)(ii) of the Credit
Agreement (or any comparable provision of the Credit Agreement). Notwithstanding
the foregoing, this paragraph shall not prohibit (i) the acquisition,
repurchase, exchange, conversion, redemption or other retirement for value of
shares of Series A Preferred Stock or any Parity Dividend Security by the
Corporation in accordance with the terms of such securities, (ii) purchases of
Equity Securities of the Corporation or any of its Subsidiaries from executives
and other management-level employees of the Corporation or any of its
Subsidiaries in connection with customary employment and severance arrangements,
or (iii) the acquisition, repurchase, exchange, conversion, redemption or other
retirement for value by the Corporation of any Junior Dividend Securities by the
Corporation in accordance with obligations in existence at the time of original
issuance of the Series A Preferred Stock.
(f) The Corporation shall at all times reserve and keep available for
issuance upon the conversion of the Series A Preferred Stock in accordance with
the terms hereof, such number of its authorized but unissued shares of Common
Stock as will from time to time be sufficient to permit the conversion of all
outstanding shares of Series A Preferred Stock, and shall take all action
required to increase the authorized number of shares of Common Stock if
necessary to permit the conversion of all outstanding shares of Series A
Preferred Stock.
B. Adjustment of Conversion Price. Except in connection with an Organic
Change, which shall be subject to Section C below, the Conversion Price shall be
subject to adjustment from time to time as follows:
(a) Stock Dividends. In case the Corporation after the date of the original
issuance of the Series A Preferred Stock shall pay a dividend or make a
distribution to all holders of shares of Common Stock in shares of Common Stock,
then in any such case the Conversion Price in effect at the opening of business
on the day following the record date for the determination of stockholders
entitled to receive such dividend or distribution shall be reduced to a price
obtained by multiplying such Conversion Price by a fraction of which (x) the
numerator shall be the number of shares of Common Stock outstanding at the close
of business on such record date and (y) the denominator shall be the sum of such
number of shares of Common Stock outstanding and the total number of shares of
Common Stock constituting such dividend or distribution, such reduction to
become effective immediately after the opening of business on the day following
such record date. For purposes of this subsection (a), the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Corporation but shall include shares issuable in respect of
scrip certificates issued in lieu of fractions of shares of Common Stock. The
Corporation will not pay any dividend or make any distribution on shares of
Common Stock held in the treasury of the Corporation.
(b) Stock Splits and Reverse Splits. In case after the date of the original
issuance of the Series A Preferred Stock outstanding shares of Common Stock
shall be subdivided into a greater number of shares of Common Stock, the
Conversion Price in effect at the opening of business on the day following the
day upon which such subdivision becomes effective shall be proportionately
reduced, and, conversely, in case after the original issuance of the Series A
Preferred Stock outstanding shares of Common Stock shall be combined into a
smaller number of shares of Common Stock, the Conversion Price in effect at the
opening of business on the day following the day upon which such combination
becomes effective shall be proportionately increased, such reduction or
increase, as the case may be, to become effective immediately after the opening
of business on the day following the day upon which such subdivision or
combination becomes effective.
(c) Issuances Below Market. In case the Corporation after the date of the
original issuance of the Series A Preferred Stock shall issue rights or warrants
to holders of shares of Common Stock entitling them to subscribe for or purchase
shares of Common Stock at a price per share less than the Closing Price per
share on the record date for the determination of stockholders entitled to
receive such rights or warrants, the Conversion Price in effect at the opening
of business on the day following such record date shall be adjusted to a price
obtained by multiplying such Conversion Price by a fraction of which (x) the
numerator shall be the number of shares of Common Stock outstanding at the close
of business on such record date plus the number of shares of Common Stock that
the aggregate offering price of the total number of shares so to be offered
would purchase at such Closing Price and (y) the denominator shall be the number
of shares of Common Stock outstanding at the close of business on such record
date plus the number of additional shares of Common Stock so to be offered for
subscription or purchase, such adjustment to become effective immediately after
the opening of business on the day following such record date; provided,
however, that no adjustment shall be made if the Corporation issues or
distributes to each holder of Series A Preferred Stock the rights or warrants
that each such holder would have been entitled to receive had the Series A
Preferred Stock held by such holder been converted prior to such record date.
For purposes of this subsection (c), the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the
Corporation but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock. The Corporation shall not
issue any rights or warrants in respect of shares of Common Stock held in the
treasury of the Corporation. Rights or warrants issued by the Corporation to all
holders of Common Stock entitling the holders thereof to subscribe for or
purchase Equity Securities, which rights or warrants (i) are deemed to be
transferred with such shares of Common Stock, (ii) are not exercisable and (iii)
are also issued in respect of future issuances of Common Stock, including shares
of Common Stock issued upon conversion of shares of Series A Preferred Stock, in
each case in clauses (i) through (iii) until the occurrence of a specified event
or events (a "Trigger Event"), shall for purposes of this subsection (c) not be
deemed issued until the occurrence of the earliest Trigger Event.
(d) Special Dividends. In case the Corporation after the date of the
original issuance of the Series A Preferred Stock shall distribute to all
holders of shares of Common Stock evidences of its indebtedness or assets
(excluding any regular periodic cash dividend but including any extraordinary
cash dividend), Equity Securities (other than Common Stock) or rights to
subscribe (excluding those referred to in subsection (c) above) for Equity
Securities other than Common Stock, in each such case the Conversion Price in
effect immediately prior to the close of business on the record date for the
determination of stockholders entitled to receive such distribution shall be
adjusted to a price obtained by multiplying such Conversion Price by a fraction
of which (x) the numerator shall be the Closing Price per share of Common Stock
on such record date, less the then-current fair market value as of such record
date (as determined by the Board of Directors in its good faith judgment) of the
portion of assets or evidences of indebtedness or Equity Securities or
subscription rights so distributed applicable to one share of Common Stock, and
(y) the denominator shall be such Closing Price, such adjustment to become
effective immediately prior to the opening of business on the day following such
record date; provided, however, that no adjustment shall be made (1) if the
Corporation issues or distributes to each holder of Series A Preferred Stock the
subscription rights referred to above that each such holder would have been
entitled to receive had the Series A Preferred Stock held by such holder been
converted prior to such record date or (2) if the Corporation grants to each
such holder the right to receive, upon the conversion of the Series A Preferred
Stock held by such holder at any time after the distribution of the evidences of
indebtedness or assets or Equity Securities referred to above, the evidences of
indebtedness or assets or Equity Securities that such holder would have been
entitled to receive had such Series A Preferred Stock been converted prior to
such record date. The Corporation shall provide any holder of Series A Preferred
Stock, upon receipt of a written request therefor, with any indenture or other
instrument defining the rights of the holders of any indebtedness, assets,
subscription rights or Equity Securities referred to in this subsection (d).
Rights or warrants issued by the Corporation to all holders of Common Stock
entitling the holders thereof to subscribe for or purchase Equity Securities,
which rights or warrants (i) are deemed to be transferred with such shares of
Common Stock, (ii) are not exercisable and (iii) are also issued in respect of
future issuances of Common Stock, including shares of Common Stock issued upon
conversion of shares of Series A Preferred Stock, in each case in clauses (i)
through (iii) until the occurrence of a Trigger Event, shall for purposes of
this subsection (d) not be deemed issued until the occurrence of the earliest
Trigger Event.
(e) Tender or Exchange Offer. In case a tender or exchange offer made by
the Corporation or any subsidiary of the Corporation for all or any portion of
the Common Stock shall be consummated and such tender offer shall involve an
aggregate consideration having a fair market value (as determined by the Board
of Directors in its good faith judgment) at the last time (the "Offer Time")
tenders may be made pursuant to such tender or exchange offer (as it may be
amended) that, together with the aggregate of the cash plus the fair market
value (as determined by the Board of Directors in its good faith judgment), as
of the Offer Time, of consideration payable in respect of any tender or exchange
offer by the Corporation or any such subsidiary for all or any portion of the
Common Stock consummated preceding the Offer Time and in respect of which no
Conversion Price adjustment pursuant to this subsection (e) has been made,
exceeds 5% of the product of the Closing Price of the Common Stock at the Offer
Time multiplied by the number of shares of Common Stock outstanding (including
any tendered shares) at the Offer Time, the Conversion Price shall be reduced so
that the same shall equal the price determined by multiplying the Conversion
Price in effect immediately prior to the Offer Time by a fraction of which (x)
the numerator shall be (i) the product of the Closing Price of the Common Stock
at the Offer Time multiplied by the number of shares of Common Stock outstanding
(including any tendered shares) at the Offer Time minus (ii) the fair market
value (determined as aforesaid) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum specified in the terms
of the tender or exchange offer) of all shares validly tendered and not
withdrawn as of the Offer Time (the shares deemed so accepted, up to any such
maximum, being referred to as the "Purchased Shares") and (y) the denominator
shall be the product of (i) such Closing Price at the Offer Time multiplied by
(ii) such number of outstanding shares at the Offer Time minus the number of
Purchased Shares, such reduction to become effective immediately prior to the
opening of business on the day following the Offer Time. For purposes of this
subsection (e), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Corporation but shall
include shares issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock.
(f) Closing Price Determination. For the purpose of any computation under
subsections (c) and (d) of this Section B, the Closing Price of Common Stock on
any date shall be deemed to be the average of the Closing Prices for the five
consecutive Trading Days ending on the day in question (or if such day is not a
Trading Day, the next preceding Trading Day), provided, however, that (i) if the
"ex" date for any event (other than the issuance or distribution requiring such
computation) that requires an adjustment to the Conversion Price pursuant to
this Section occurs on or after the 20th Trading Day prior to the day in
question and prior to the "ex" date for the issuance or distribution requiring
such computation, the Closing Price for each Trading Day prior to the "ex" date
for such other event shall be adjusted by multiplying such Closing Price by the
same fraction which the Conversion Price is so required to be adjusted as a
result of such other event, (ii) if the "ex" date for any event (other than the
issuance or distribution requiring such computation) that requires an adjustment
to the Conversion Price pursuant to this Section occurs on or after the "ex"
date for the issuance or distribution requiring such computation and on or prior
to the day in question, the Closing Price for each Trading Day on and after the
"ex" date for such other event shall be adjusted by multiplying such Closing
Price by the reciprocal of the fraction by which the Conversion Price is so
required to be adjusted as a result of such other event, and (iii) if the "ex"
date for the issuance or distribution requiring such computation is on or prior
to the day in question, after taking into account any adjustment required
pursuant to clause (ii) of this proviso, the Closing Price for each Trading Day
on or after such "ex" date shall be adjusted by adding thereto the fair market
value on the day in question (as determined by the Board of Directors in a
manner consistent with any determination of such value for the purposes of
subsection (d) of this Section B) of the assets, evidences of indebtedness,
Equity Securities or subscription rights being distributed applicable to one
share of Common Stock as of the close of business on the day before such "ex"
date. For the purposes of any computation under subsection (e) of this Section
B, the Closing Price on any date shall be deemed to be the average of the daily
Closing Prices for the five consecutive Trading Days ending at the Offer Time;
provided, however, that if the "ex" date for any event (other than the tender or
exchange offer requiring such computation) that requires an adjustment to the
Conversion Price pursuant to this Section occurs on or after the date of
commencement of such tender or exchange offer and prior to the Offer Time for
such tender or exchange offer, the Closing Price for each Trading Day prior to
the "ex" date for such other event shall be adjusted by multiplying such Closing
Price by the same fraction by which the Conversion Price is so required to be
adjusted as a result of such other event. For purposes of this subsection (f),
the term "ex" date, (i) when used with respect to any issuance or distribution,
means the first date on which the Common Stock trades regular way on the NYSE or
on the relevant exchange or in the relevant market from which the Closing Price
was obtained without the right to receive such issuance or distribution, (ii)
when used with respect to any subdivision or combination of shares of Common
Stock, means the first date on which the Common Stock trades regular way on the
NYSE or such exchange or in such market after the time at which such subdivision
or combination becomes effective, and (iii) when used with respect to any tender
or exchange offer means the first date on which the Common Stock trades regular
way on the NYSE or such exchange or in such market after the Offer Time of such
tender or exchange offer.
(g) The Corporation may make such reductions in the Conversion Price, in
addition to those required by clauses (a), (b), (c), (d), (e) and (f) of this
Section B, as it considers to be advisable to avoid or diminish any income tax
to holders of Common Stock or rights to purchase Common Stock resulting from any
dividend or distribution of stock or from any event treated as such for income
tax purposes. Whenever the Conversion Price is reduced pursuant to the preceding
sentence, the Corporation shall mail to the holders of then-outstanding shares
of Series A Preferred Stock a notice of the reduction at least fifteen (15) days
prior to the date the reduced Conversion Price takes effect, and such notice
shall state the reduced Conversion Price and the period it will be in effect.
(h) No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least one percent (1%) in
the Conversion Price; provided, however, that any adjustments which by reason of
this subsection (h) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment.
(i) Notwithstanding any other provision of this Section B, no adjustment to
the Conversion Price shall reduce the Conversion Price below $0.25, and any such
purported adjustment shall instead reduce the Conversion Price to $0.25. The
Corporation hereby covenants not to take any action that would or does result in
any adjustment in the Conversion Price that, if made without giving effect to
the previous sentence, would cause the Conversion Price to be less than $0.25.
(j) Whenever the Conversion Price is adjusted as herein provided, a notice
stating that the Conversion Price has been adjusted and setting forth the
adjusted Conversion Price shall promptly be mailed by the Corporation to the
holders of the Series A Preferred Stock.
C. Organic Change.
(a) Corporation Survives. Upon the consummation of an Organic Change (other
than a transaction in which the Corporation is not the surviving entity), then
lawful provision shall be made as part of the terms of such transaction whereby
the terms hereof shall be modified, without payment of any additional
consideration by any holder, so as to provide that upon the conversion of shares
of Series A Preferred Stock following the consummation of such Organic Change,
the holder of Series A Preferred Stock shall have the right to acquire and
receive (in lieu of or in addition to the shares of Common Stock acquirable and
receivable prior to the Organic Change), without payment of additional
consideration therefor, such securities, cash and other property as such holder
would have received if such holder had converted such shares of Series A
Preferred Stock into Common Stock immediately prior to such Organic Change.
Lawful provision also shall be made as part of the terms of the Organic Change
so that all other terms hereof shall remain in full force and effect following
such an Organic Change. The provisions of this subsection (a) shall similarly
apply to successive Organic Changes of the character described in this
subsection (a).
(b) Corporation Does Not Survive. The Corporation shall not enter into an
Organic Change that is a transaction in which the Corporation is not the
surviving entity unless lawful provision shall be made as part of the terms of
such transaction whereby the surviving entity shall issue new securities to each
holder of Series A Preferred Stock, without payment of any additional
consideration by such holder, with terms that provide that upon the conversion
of such securities, the holder of such securities shall have the right to
acquire and receive (in lieu of or in addition to the shares of Common Stock
acquirable and receivable prior to the Organic Change), without payment of
additional consideration therefor, such securities, cash and other property (the
"New Securities") as such holder would have received if such holder had
converted such shares of Series A Preferred Stock into Common Stock immediately
prior to such Organic Change. The certificate or articles of incorporation or
other constituent document of the surviving entity shall provide for such
adjustments which, for events subsequent to the effective date of such
certificate or articles of incorporation or other constituent document, shall be
equivalent to the adjustments provided for in Section B of this Article IX. All
other terms of such New Securities shall be substantially equivalent to the
terms provided herein. The provisions of this subsection (b) shall similarly
apply to successive Organic Changes of the character described in of this
subsection (b).
D. Certain Events. If any event similar to or of the type contemplated by
the provisions of Section B or Section C of this Article IX, but not expressly
provided for by such provisions, occurs, then the Board of Directors of the
Corporation, will make an appropriate and equitable adjustment in the Conversion
Price so as to protect the rights of the holders of Series A Preferred Stock;
provided, that no such adjustment will decrease the number of shares of Common
Stock issuable upon conversion of the Series A Preferred Stock.
E. Notice of Approval Date. When and if the Approval Date shall occur, the
Corporation shall promptly mail or cause to be mailed a notice of such
occurrence to each holder of Series A Preferred Stock.
X. Additional Definitions
For the purposes of this Certificate of Designations of Series A Preferred
Stock, the following terms shall have the meanings indicated:
"Affiliate" has the meaning set forth in Rule 12b-2 under the Exchange Act
as in effect on the date of the Investment Agreement. The term "Affiliated" has
a correlative meaning. Notwithstanding the foregoing, for all purposes hereof,
the Investor, and each Person controlled by, controlling or under common control
with the Investor (each, a "TPG Person"), shall not be deemed an "Affiliate" of
any Designated Purchaser Person (as defined below), and no Designated Purchaser,
and no Person controlled by, controlling or under common control with such
Designated Purchaser (each, a "Designated Purchaser Person"), shall be deemed an
"Affiliate" of any TPG Person or any other Designated Purchaser Person, in any
such case solely as a consequence of this Agreement or the transactions
contemplated hereby.
"Approval Date" means the date, if any, on which the Corporation obtains
the Shareholder Approval.
"Beneficially Own" with respect to any securities means having "beneficial
ownership" of such securities (as determined pursuant to Rule 13d-3 under the
Exchange Act as in effect on the date of the Investment Agreement, except that a
Person shall be deemed to Beneficially Own all such securities that such Person
has the right to acquire whether such right is exercisable immediately or after
the passage of time). The terms "Beneficial Ownership" and "Beneficial Owner"
have correlative meanings. Notwithstanding the foregoing, for all purposes
hereof, no TPG Person shall be deemed to Beneficially Own any securities that
are held by any Designated Purchaser Person, and no Designated Purchaser Person
shall be deemed to Beneficially Own any securities that are held by any TPG
Person or any other Designated Purchaser Person, in any such case solely as a
consequence of the Investment Agreement or the transactions contemplated
thereby.
"Business Day" means any day, other than a Saturday, Sunday or a day on
which banking institutions in the State of New York are authorized or obligated
by law or executive order to close.
"Bylaws" means the Bylaws of the Corporation, as amended from time to time.
"Change of Control" shall be deemed to have occurred if (a) any person or
group (within the meaning of Rule 13d-5 under the Exchange Act as in effect on
February 12, 1998) shall own directly or indirectly, beneficially or of record,
shares representing more than 35% of the aggregate ordinary voting power
represented by the issued and outstanding Equity Securities of the Corporation,
other than any Person or Group that owned at least 5% of such Equity Securities
on the Closing Date (as such term is defined in the Credit Agreement as in
effect on the date of the Investment Agreement); (b) a majority of the seats
(other than vacant seats) on the board of directors of the Corporation shall at
any time be occupied by persons who were neither (i) nominated by the board of
directors of the Corporation nor (ii) appointed by directors so nominated; (c)
any change in control (or similar event, however denominated) with respect to
the Corporation shall occur under and as defined in any indenture or agreement
in respect of Indebtedness for borrowed money in excess of the aggregate
principal amount of $10,000,000 to which any Borrower (as such term is defined
in the Credit Agreement as in effect on the date of the Investment Agreement) or
any Guarantor (as such term is defined in the Credit Agreement as in effect on
the date of the Investment Agreement) is a party, other than the Existing Parent
Borrower Notes Indenture (as such term is defined in the Credit Agreement as in
effect on the date of the Investment Agreement) in connection with a Permitted
CBHS Sale (as such term is defined in the Credit Agreement as in effect on the
date of the Investment Agreement); or (d) a "Change in Control" or "Change of
Control" (or similar event) shall have occurred under the Credit Agreement or
the Senior Subordinated Notes, unless, in the case of a "Change of Control"
under the Indenture, the aggregate principal amount outstanding under the Senior
Subordinated Notes is less than $10,000,000. Notwithstanding the foregoing, no
event described above shall constitute a "Change of Control" if such event
resulted directly from any action taken by the Investor or any of its
Affiliates.
"Closing" shall have the meaning assigned to such term in the Investment
Agreement.
"Closing Price" with respect to a share of Common Stock on any day means,
subject to subsection (f) of Section B of Article IX if applicable, the last
reported sale price on that day or, in case no such reported sale takes place on
such day, the average of the last reported bid and asked prices, regular way, on
that day, in either case, as reported in the consolidated transaction reporting
system with respect to securities listed on the NYSE or, if the shares of Common
Stock are not listed on the NYSE, as reported in the principal consolidated
transaction reporting system with respect to securities listed on the principal
national securities exchange on which the shares of Common Stock are listed or,
if the shares of Common Stock are not listed on NYSE and not listed on any
national securities exchange, the last quoted price or, if not so quoted, the
average of the high bid and low asked prices on such other nationally recognized
quotation system then in use, or, if on any such day the shares of Common Stock
are not quoted on any such quotation system, the average of the closing bid and
asked prices as furnished by a professional market maker selected by the Board
of Directors in good faith making a market in the shares of Common Stock. If the
shares of Common Stock are not publicly held or so listed, quoted or publicly
traded, the "Closing Price" means the fair market value of a share of Common
Stock, as determined in good faith by the Board of Directors.
"Conversion Price" shall mean $9.375, as adjusted from time to time
pursuant to Section B of Article IX hereof.
"Conversion Shares" has the meaning set forth in the Investment Agreement.
"Credit Agreement" means the Credit Agreement, dated as of February 12,
1998, among the Corporation, the banks and other financial institutions named
therein, and The Chase Manhattan Bank, as Administrative Agent, together with
all other documents entered into pursuant to or in connection with the Credit
Agreement, in each case, as the same may be amended, restated, supplemented,
extended, renewed or increased from time to time, replaced, substituted,
refunded or refinanced or otherwise modified from time to time, in whole or in
part, and any successive replacements, substitutions, refundings or
refinancings.
"Designated Purchaser" has the meaning set forth in the Investment
Agreement.
"Designated Purchaser Person" has the meaning set forth in the definition
of "Affiliate."
"Equity Securities" of any Person, means any and all common stock,
preferred stock and any other class of capital stock of, and any partnership or
limited liability company interests in, such Person or any other similar
interests of any Person that is not a corporation, partnership or limited
liability company.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder, from time to time.
"45-Trading Day Average Price" means the average of the Closing Prices per
share of Common Stock for the Trading Days in any period of 45 consecutive
Trading Days (a "45-Trading Day Reference Period"); provided, however, that in
the event that an adjustment to the Conversion Price takes effect pursuant to
Section B of Article IX hereof during the period used to compute such average,
the Closing Prices used to compute such average for all Trading Days ended prior
to the time such adjustment takes effect shall be similarly adjusted.
"45-Trading Day Reference Period" has the meaning set forth in the
definition of "45-Trading Day Average Price."
"Governmental Entity" means any government or political subdivision or
department thereof, any governmental or regulatory body, commission, board,
bureau, agency or instrumentality, or any court or arbitrator or alternative
dispute resolution body, in each case whether federal, state, local or foreign.
"Group" has the meaning set forth in Rule 13d-5 under the Exchange Act.
"Guarantee" means any direct or indirect obligation, contingent or
otherwise, to guarantee (or having the economic effect of guaranteeing)
Indebtedness in any manner, including, without limitation, any monetary
obligation to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness (whether arising by agreement to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise).
"Indebtedness" means, with respect to any Person, without duplication, (i)
all obligations of such Person for money borrowed, (ii) all obligations of such
Person evidenced by bonds, debentures, notes, or other similar instruments,
(iii) all obligations of such Person upon which interest charges are customarily
paid, (iv) all obligations of such Person under conditional sale or other title
retention agreements relating to property or assets purchased by such Person,
(v) all obligations of such Person issued or assumed as the deferred purchase
price of property or services (excluding (x) trade accounts payable and accrued
obligations incurred in the ordinary course of business and (y) deferred
earn-out and other performance-based payment obligations incurred in connection
with any Permitted Acquisition (as such term is defined in the Credit Agreement
as in effect on the date of the Investment Agreement) or any similar
transactions consummated prior to February 12, 1998), (vi) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the obligations secured thereby have
been assumed, (vii) all Guarantees by such Person of Indebtedness of others,
(viii) all capital lease obligations of such Person, (ix) all obligations
(determined on the basis of actual, not notional, obligations) of such Person in
respect of interest rate protection agreements, foreign currency exchange
agreements or other interest or exchange rate hedging arrangements and (x) all
obligations of such Person as an account party in respect of letters of credit
and bankers' acceptances issued in support of obligations that constitute
Indebtedness under any other clause of this definition (unless such obligations
are fully cash collateralized), provided that all obligations in respect of
letters of credit shall be deemed Indebtedness to the extent drawings thereunder
are unreimbursed (after any applicable grace period) regardless of the purpose
for which such letter of credit was issued. The Indebtedness of any Person shall
include the recourse Indebtedness of any partnership in which such Person is a
general partner. Notwithstanding the foregoing, no portion of Indebtedness that
becomes the subject of a defeasance (whether a legal defeasance or a "covenant"
or "in substance" defeasance) shall, at any time that such defeasance remains in
effect, be treated as Indebtedness for purposes hereof.
"Indenture" means the Indenture entered into between the Corporation and
the Marine Midland Bank, as Trustee, dated as of February 12, 1998, as the same
may be amended, restated, supplemented, extended, renewed or increased from time
to time, replaced, substituted, refunded or refinanced or otherwise modified
from time to time, in whole or in part, and any successive replacements,
substitutions, refundings or refinancings.
"Investment Agreement" means the Investment Agreement, dated as of July 19,
1999, by and between the Investor and the Corporation, as amended, supplemented
or otherwise modified from time to time.
"Investor" has the meaning set forth in the Investment Agreement.
"Investor Group" means, collectively, the Investor, the Designated
Purchasers, if any, and the respective Affiliates of such Persons.
"Investor Nominee" means a person designated for election to the Board of
Directors by the Investor pursuant to the Investment Agreement.
"Law" means any law, treaty, statute, ordinance, code, rule, regulation,
judgment, decree, order, writ, award, injunction or determination of any
Governmental Entity.
"Lien" means any mortgage, pledge, lien , security interest, claim, voting
agreement, conditional sale agreement, title retention agreement, restriction,
option or encumbrance of any kind, character or description whatsoever.
"Make-Whole Payment" has the meaning set forth in the Certificate of
Designations with respect to the Series B Preferred Stock.
"NYSE" means the New York Stock Exchange, Inc.
"180-Day Average Price" means the average of the Closing Prices per share
of Common Stock for the Trading Days in any period of 180 consecutive calendar
days (a "180-Day Reference Period"); provided, however, that in the event that
an adjustment to the Conversion Price takes effect pursuant to Section B of
Article IX hereof during the period used to compute such average, the Closing
Prices used to compute such average for all Trading Days ended prior to the time
such adjustment takes effect shall be similarly adjusted.
"180-Day Reference Period" has the meaning set forth in the definition of
"180-Day Average Price."
"Organic Change" means, with respect to the Corporation, any transaction
(including without limitation any recapitalization, capital reorganization or
reclassification of any class of capital stock, any consolidation or
amalgamation of the Corporation with, or merger of the Corporation into, any
other Person, any merger of another Person into the Corporation (other than a
merger which does not result in a reclassification, conversion, exchange or
cancellation of outstanding shares of capital stock of the Corporation), any
sale or transfer or lease of all or substantially all of the assets of the
Corporation or any compulsory share exchange) pursuant to which any class of
capital stock of the Corporation is converted into the right to receive other
securities, cash or other property.
"Person" means any individual, corporation, company, association,
partnership, limited liability company, joint venture, trust or unincorporated
organization, or a government or any agency or political subdivision thereof.
"Reference Period" means a 45-Trading Day Reference Period or a 180-Day
Reference Period, as the case may be.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of July 19, 1999, by and between the Investor and the Corporation, as
amended, supplemented or otherwise modified from time to time.
"Regulatory Approvals" means any and all certificates, permits, licenses,
franchises, concessions, grants, consents, approvals, orders, registrations,
authorizations, waivers, variances or clearances from, or filings or
registrations with, Governmental Entities.
"Securities Act" means the U.S. Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder, from time to time.
"Senior Subordinated Notes" means the Senior Subordinated Notes of the
Corporation issued pursuant to the Indenture.
"Shareholder Approval" means the approval by the stockholders of the
Corporation, in accordance with the General Corporation Law of the State of
Delaware and in accordance with and in satisfaction of Paragraph 312.00 of the
NYSE's Listed Company Manual and the related NYSE Rules and interpretations
thereof, of (i) the issuance of Common Stock in respect of accrued and unpaid
dividend obligations on the Series A Preferred Stock and the Series B Preferred
Stock, (ii) the issuance of Common Stock upon the conversion or exchange of the
Series B Preferred Stock, and (iii) and the vesting of voting rights in respect
of the Series B Preferred Stock as contemplated by the terms thereof, in each
case in accordance with the terms hereof and the Investment Agreement.
"Subsidiary" means as to any Person, any other Person of which more than
50% of the shares of the voting stock or other voting interests are owned or
controlled, or the ability to select or elect more than 50% of the directors or
similar managers is held, directly or indirectly, by such first Person or one or
more of its Subsidiaries or by such first Person and one or more of its
Subsidiaries; provided, however, that no Joint Venture (as such term is defined
in the Investment Agreement) shall be considered (i) a "Subsidiary" of the
Corporation or (ii) a "Subsidiary" of any Subsidiary of the Corporation.
"TPG Person" has the meaning set forth in the definition of "Affiliate."
"Trading Day" means any day on which the NYSE is open for trading, or if
the shares of Common Stock are not quoted on the NYSE, any day on which the
principal national securities exchange or national quotation system on which the
shares of Common Stock are listed, admitted to trading or quoted is open for
trading, or if the shares of Common Stock are not so listed, admitted to trading
or quoted, any Business Day.
"Two-Week Average Price" means the average of the Closing Prices per share
of Common Stock for the Trading Days in the two-calendar week period ending on
the last day of a Reference Period; provided, however, that in the event that an
adjustment to the Conversion Price takes effect pursuant to Section B of Article
IX hereof during the period used to compute such average, the Closing Prices
used to compute such average for all Trading Days ended prior to the time such
adjustment takes effect shall be similarly adjusted.
"Voting Securities" means the shares of Common Stock and any other
securities of the Corporation entitled to vote generally for the election of
directors.
XI. Miscellaneous
A. Notices. Any notice referred to herein shall be in writing and, unless
first-class mail shall be specifically permitted for such notices under the
terms hereof, shall be deemed to have been given upon personal delivery thereof,
upon transmittal of such notice by telecopy (with confirmation of receipt by
telecopy or telex) or five days after transmittal by registered or certified
mail, postage prepaid, addressed as follows:
(i) if to the Corporation, to its office at 6950 Columbia
Gateway Drive, Fourth Floor, Columbia, Maryland 21046 (Attention:
General Counsel) or to the transfer agent for the Series A Preferred
Stock;
(ii) if to a holder of the Series A Preferred Stock, to such
holder at the address of such holder as listed in the stock record
books of the Corporation (which may include the records of any transfer
agent for the Series A Preferred Stock); or
(iii) to such other address as the Corporation or such holder,
as the case may be, shall have designated by notice similarly given.
B. Reacquired Shares. Any shares of Series A Preferred Stock redeemed,
purchased or otherwise acquired by the Corporation, directly or indirectly, in
any manner whatsoever shall be retired and canceled promptly after the
acquisition thereof (and shall not be deemed to be outstanding for any purpose)
and, if necessary to provide for the lawful redemption or purchase of such
shares, the capital represented by such shares shall be reduced in accordance
with the Delaware General Corporation Law. All such shares of Series A Preferred
Stock shall upon their cancellation and upon the filing of an appropriate
certificate with the Secretary of State of the State of Delaware, become
authorized but unissued shares of Preferred Stock, without par value, of the
Corporation and may be reissued as part of another series of Preferred Stock,
without par value, of the Corporation subject to the conditions or restrictions
on issuance set forth herein.
C. Enforcement. Any registered holder of shares of Series A Preferred Stock
may proceed to protect and enforce its rights and the rights of such holders by
any available remedy by proceeding at law or in equity to protect and enforce
any such rights, whether for the specific enforcement of any provision in this
Certificate of Designations or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
D. Transfer Taxes. Except as otherwise agreed upon pursuant to the terms of
this Certificate of Designations, the Corporation shall pay any and all
documentary, stamp or similar issue or transfer taxes and other governmental
charges that may be imposed under the laws of the United States of America or
any political subdivision or taxing authority thereof or therein in respect of
any issue or delivery of Common Stock or Debentures on conversion or exchange
of, or other securities or property issued on account of, shares of Series A
Preferred Stock pursuant hereto or certificates representing such shares or
securities. The Corporation shall not, however, be required to pay any such tax
or other charge that may be imposed in connection with any transfer involved in
the issue or transfer and delivery of any certificate for Common Stock or
Debentures or other securities or property in a name other than that in which
the shares of Series A Preferred Stock so converted or exchanged, or on account
of which such securities were issued, were registered and no such issue or
delivery shall be made unless and until the Person requesting such issue has
paid to the Corporation the amount of any such tax or has established to the
satisfaction of the Corporation that such tax has been paid or is not payable.
E. Transfer Agent. The Corporation may appoint, and from time to time
discharge and change, a transfer agent for the Series A Preferred Stock. Upon
any such appointment or discharge of a transfer agent, the Corporation shall
send notice thereof by first-class mail, postage prepaid, to each holder of
record of shares of Series A Preferred Stock.
F. Record Dates. In the event that the Series A Preferred Stock shall be
registered under either the Securities Act or the Exchange Act, the Corporation
shall establish appropriate record dates with respect to payments and other
actions to be made with respect to the Series A Preferred Stock.
G. Subordination to Senior Subordinated Notes. By accepting a share of
Series A Preferred Stock or Debenture, the holder thereof shall be deemed to
have acknowledged and agreed that (a) such holder's right to receive payments in
respect of the Series A Preferred Stock or Debenture is subject and subordinated
in right of payment to the payment in full and discharge of all amounts (however
denominated) then due and payable under the Senior Subordinated Notes, and (b)
until payment in full of all such amounts (however denominated) under the Senior
Subordinated Notes has been made in cash, no payment, whether directly or
indirectly, by exercise of any right of set off or otherwise in respect of the
Series A Preferred Stock or Debenture shall be made by the Corporation, and no
deposit in respect of the Series A Preferred Stock or Debenture shall be made
pursuant to the terms hereof. In the event that any payment by, or distribution
of the assets of, the Corporation of any kind or character (whether in cash,
property or securities, whether directly or indirectly, by exercise of any right
of set-off or otherwise and whether as a result of a bankruptcy proceeding with
respect to the Corporation or otherwise) shall be received by a holder of Series
A Preferred Stock at any time when such payment is prohibited by this paragraph,
such payment shall be held in trust for the benefit of, and shall be paid over
to, the holders of Senior Subordinated Notes as their interests may appear. The
preceding two sentences address the relative rights of holders of Series A
Preferred Stock or Debentures, on the one hand, and the holders of Senior
Subordinated Notes, on the other hand, and nothing in this Certificate of
Designations shall impair, as between the Corporation and the holders of Series
A Preferred Stock or Debentures, the obligation of the Corporation, which is
absolute and unconditional, to pay amounts due in respect of the Series A
Preferred Stock and Debentures in accordance with their terms. This Section G
shall not be construed to limit in any manner the subordination provisions set
forth in Section D of Article V hereof.
<PAGE>
IN WITNESS WHEREOF, this Certificate of Designations is executed on behalf
of the Corporation by its Chief Financial Officer and attested by its Assistant
Secretary, this [ ] day of [ ], 1999.
MAGELLAN HEALTH SERVICES, INC.
By:________________________________
Name: Cliff Donnelly
Title: Chief Financial Officer
[Corporate Seal]
ATTEST:
_________________________
<PAGE>
EXHIBIT B
CERTIFICATE OF DESIGNATIONS
of
SERIES B CUMULATIVE CONVERTIBLE PREFERRED STOCK
of
MAGELLAN HEALTH SERVICES, INC.
(Pursuant to Section 151 of the
Delaware General Corporation Law)
--------------
Magellan Health Services, Inc., a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "Corporation"), hereby
certifies that the following resolutions were adopted by the Board of Directors
of the Corporation (the "Board of Directors") pursuant to authority of the Board
of Directors as required by Section 151 of the General Corporation Law of the
State of Delaware:
RESOLVED, that pursuant to the authority granted to and vested in the Board
of Directors in accordance with the provisions of the Restated Certificate of
Incorporation of the Corporation, as amended (the "Certificate of
Incorporation"), the Board of Directors hereby creates a series of the
Corporation's previously authorized preferred stock, without par value (the
"Preferred Stock"), and hereby states the designation and number thereof, and
fixes the voting powers, preferences and relative, participating, optional and
other special rights, and the qualifications, limitations and restrictions
thereof, as follows:
Series B Cumulative Convertible Preferred Stock:
I. Designation and Amount
The designation of this series of shares shall be "Series B Cumulative
Convertible Preferred Stock" (the "Series B Preferred Stock"); the stated value
per share shall be $1,000 (the "Stated Value"); and the number of shares
constituting such series shall be [_________]. The number of shares of the
Series B Preferred Stock may be decreased from time to time by a resolution or
resolutions of the Board of Directors; provided, however, that such number shall
not be decreased below the aggregate number of shares of the Series B Preferred
Stock then outstanding.
II. Rank
A. With respect to dividend rights, the Series B Preferred Stock shall rank
(i) junior to each other class or series of Preferred Stock which by its terms
ranks senior to the Series B Preferred Stock as to payment of dividends, (ii) on
a parity with each other class or series of Preferred Stock which by its terms
ranks on a parity with the Series B Preferred Stock as to payment of dividends,
including the Series A Cumulative Convertible Preferred Stock, without par value
(the "Series A Preferred Stock"), of the Corporation and (iii) prior to the
Corporation's Common Stock, par value $0.25 per share (the "Common Stock"), and,
except as specified above, all other classes and series of capital stock of the
Corporation hereafter issued by the Corporation. With respect to dividends, all
equity securities of the Corporation to which the Series B Preferred Stock ranks
senior, including the Common Stock, are collectively referred to herein as the
"Junior Dividend Securities"; all equity securities of the Corporation with
which the Series B Preferred Stock ranks on a parity, including the Series A
Preferred Stock, are collectively referred to herein as the "Parity Dividend
Securities"; and all equity securities of the Corporation (other than
convertible debt securities) to which the Series B Preferred Stock ranks junior,
with respect to dividends, are collectively referred to herein as the "Senior
Dividend Securities."
B. With respect to the distribution of assets upon liquidation, dissolution
or winding up of the Corporation, whether voluntary or involuntary, the Series B
Preferred Stock shall rank (i) junior to each other class or series of Preferred
Stock which by its terms ranks senior to the Series B Preferred Stock as to
distribution of assets upon liquidation, dissolution or winding up, (ii) on a
parity with each other class or series of Preferred Stock which by its terms
ranks on a parity with the Series B Preferred Stock as to distribution of assets
upon liquidation, dissolution or winding up of the Corporation, including the
Series A Preferred Stock, and (iii) prior to the Common Stock, and, except as
specified above, all other classes and series of capital stock of the
Corporation hereinafter issued by the Corporation. With respect to the
distribution of assets upon liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, all equity securities of the
Corporation to which the Series B Preferred Stock ranks senior, including the
Common Stock, are collectively referred to herein as "Junior Liquidation
Securities" (and together with the Junior Dividend Securities are referred to
herein as the "Junior Securities"); all equity securities of the Corporation
(other than convertible debt securities) to which the Series B Preferred Stock
ranks on parity, including the Series A Preferred Stock, are collectively
referred to herein as "Parity Liquidation Securities" (and together with the
Parity Dividend Securities are referred to herein as the "Parity Securities");
and all equity securities of the Corporation to which the Series B Preferred
Stock ranks junior are collectively referred to herein as "Senior Liquidation
Securities" (and together with the Senior Dividend Securities are referred to
herein as the "Senior Securities").
III. Dividends
A. Dividends. Shares of Series B Preferred Stock shall accumulate dividends
at a rate of 6.50% per annum; provided, that in the event that the Shareholder
Approval has not been obtained by the Corporation on or prior to March 5, 2000,
shares of Series B Preferred Stock shall accumulate dividends at a rate of
12.00% per annum from and after March 5, 2000 through the Approval Date. After
the Approval Date, shares of Series B Preferred Stock shall accumulate dividends
at a rate of 6.50% per annum. Payment of dividends shall be made in cash except
as otherwise provided in this Article III. Dividends shall be paid in four equal
quarterly installments on the last day of March, June, September and December of
each year, or if any such date is not a Business Day, on the Business Day next
preceding such day (each such date, regardless of whether any dividends have
been paid or declared and set aside for payment on such date, a "Dividend
Payment Date"), to holders of record (the "Registered Holders") as they appear
on the stock record books of the Corporation on the fifteenth day prior to the
relevant Dividend Payment Date; provided, however, that the Corporation may
elect not to make any dividend payment due hereunder on any Dividend Payment
Date (other than as required in connection with any redemption or repurchase of
shares of Series B Preferred Stock or any liquidation, dissolution or winding up
of the Corporation), and any such amount then due in respect of dividends shall
constitute an Arrearage (as defined below). Dividends shall be paid only when,
as and if declared by the Board of Directors out of funds at the time legally
available for the payment of dividends. Dividends shall begin to accumulate on
outstanding shares of Series B Preferred Stock from the date of issuance and
shall be deemed to accumulate from day to day whether or not earned or declared
until paid; provided that dividends shall be deemed to have accumulated on
shares of Series B Preferred Stock issued on the date of the original issuance
of the Series B Preferred Stock from and after the date of the original issuance
of the Series A Preferred Stock (such dividends, the "Pre-Issuance Dividends"),
and when such shares of Series B Preferred Stock are issued by the Corporation
such dividends shall be considered obligations of the Corporation with respect
to such shares of Series B Preferred Stock identical in all respects to
dividends that accumulate from and after the issuance of such shares of Series B
Preferred Stock. Pre-Issuance Dividends shall be deemed to accrue at the
dividend rate that would have been in effect pursuant to this Section A had the
original issuance of the Series B Preferred Stock occurred at the time of the
original issuance of the Series A Preferred Stock. Dividends shall accumulate on
the basis of a 360-day year consisting of twelve 30-day months (four 90-day
quarters) and the actual number of days elapsed in the period for which payable.
Dividends payable at more than one annual rate for any dividend period or
partial dividend period shall be pro rated on the basis of the number of days in
such dividend period or partial dividend period, calculated as aforesaid, and
the actual number of days elapsed for which dividends are payable at each such
annual rate. Notwithstanding anything in the foregoing to the contrary, the
Dividend Payment Date with respect to any Pre-Issuance Dividend shall be deemed
to be the Dividend Payment Date that would have been applicable had the original
issuance of the Series B Preferred Stock occurred at the time of the original
issuance of the Series A Preferred Stock, and if such Dividend Payment Date is
before the date of the original issuance of the Series B Preferred Stock, the
Corporation shall be deemed to have elected not to pay such dividend in
accordance with the proviso to the fourth sentence of this Section A.
B. Accumulation. Dividends on the Series B Preferred Stock shall be
cumulative, and from and after any Dividend Payment Date on which any dividend
that has accumulated or been deemed to have accumulated through such date has
not been paid in full or any payment date set for a redemption or repurchase on
which such redemption or repurchase payment has not been paid in full,
additional dividends shall accumulate in respect of the amount of such unpaid
dividends or unpaid redemption or repurchase payment (such amount, the
"Arrearage") at the annual rate then in effect as provided in Section A of this
Article III (or such lesser rate as may be the maximum rate that is then
permitted by applicable law). Such additional dividends in respect of any
Arrearage shall be deemed to accumulate from day to day whether or not earned or
declared until the Arrearage is paid, shall be calculated as of such successive
Dividend Payment Date and shall constitute an additional Arrearage from and
after any Dividend Payment Date to the extent not paid on such Dividend Payment
Date. References in any Article herein to dividends that have accumulated or
that have been deemed to have accumulated with respect to the Series B Preferred
Stock shall include the amount, if any, of any Arrearage together with any
dividends accumulated or deemed to have accumulated on such Arrearage pursuant
to the immediately preceding two sentences. Additional dividends in respect of
any Arrearage may be declared and paid at any time, in whole or in part, without
reference to any regular Dividend Payment Date, to Registered Holders as they
appear on the stock record books of the Corporation on such record date as may
be fixed by the Board of Directors (which record date shall be no less than 10
days prior to the corresponding payment date).
C. Payment in Common Stock. Notwithstanding the provisions of Section A of
this Article III, (i) any dividend payment (such payment, a "Non-Arrearage
Payment") made in full on the first Dividend Payment Date on which such payment
is due (without taking into account the proviso to the fourth sentence of
Section A of this Article III but taking into account the last sentence of
Section A of this Article III in determining the first Dividend Payment Date on
which such payment is due) and (ii) any payment (such payment, an "Arrearage
Payment") made at any time prior to the second anniversary of the original
issuance of the Series A Preferred Stock in respect of any Arrearage, may be
made in the form of shares of Common Stock; provided that:
(i) the Common Stock is then validly listed for trading on the
NYSE or other national securities exchange or quoted on a nationally
recognized quotation system;
(ii) such shares of Common Stock have been duly authorized and
when issued in connection with such payment, will be validly issued,
fully paid and non-assessable;
(iii) the issuance of such shares of Common Stock in
satisfaction of such payment does not: (a) violate any provision of the
Certificate of Incorporation or the Bylaws; (b) give rise to any
preemptive rights, rights of first refusal or other similar rights on
behalf of any Person under any applicable Law or any provision of the
Certificate of Incorporation or the Bylaws or any agreement or
instrument applicable to the Corporation or any of its Subsidiaries;
(c) conflict with, contravene or result in a breach or violation of any
of the terms or provisions of, or constitute a default (with or without
notice or the passage of time) under, or result in or give rise to a
right of termination, cancellation, acceleration or modification of any
right or obligation under, or give rise to a right to put or to compel
a tender offer for outstanding securities of the Corporation or any of
its Subsidiaries under, or require any consent, waiver or approval
under, any note, bond, debt instrument, indenture, mortgage, deed of
trust, lease, loan agreement, joint venture agreement, Regulatory
Approval, contract or any other agreement, instrument or obligation to
which the Corporation or any of its Subsidiaries is a party or by which
the Corporation or any of its Subsidiaries or any property of the
Corporation or any of its Subsidiaries is bound (assuming for the
purpose of this clause (c) that all conditions precedent to the
conversion of Series B Preferred Stock have been satisfied and that all
outstanding shares of the Series B Preferred Stock have been converted
into Common Stock); (d) result in the creation or imposition of any
Lien upon any assets or properties of the Corporation or any of its
Subsidiaries; or (e) violate any Law applicable to the Corporation or
any of its Subsidiaries;
(iv) (a) no default or event of default, or event that with
notice or the passage of time would constitute a default or event of
default, has occurred and is continuing (or will occur as a result of
the issuance of shares of Common Stock in satisfaction of such
payment), under any contract, agreement, indenture, mortgage, note,
lease or other instrument evidencing Indebtedness of the Corporation or
any of its Subsidiaries (other than inter-company Indebtedness between
the Corporation and any of its Subsidiaries or between Subsidiaries of
the Corporation) the outstanding principal amount of which is in excess
of $10,000,000 and as a result of such default, event of default or
event the holders thereof have accelerated or have the right to
accelerate (or would have the right to accelerate with notice or the
passage of time) the maturity thereof, and (b) the Corporation has not
been notified that a breach of the Investment Agreement or the terms of
the Series A Preferred Stock or Series B Preferred Stock has occurred
and is continuing;
(v) (a) with respect to any Non-Arrearage Payment, the
Trailing Average Value (as defined below) is equal to or greater than
the product of (A) 0.40, multiplied by (B) the Conversion Price, and
(b) with respect to any Arrearage Payment, the Trailing Average Value
(as defined below) is equal to or greater than the product of (A) 0.60,
multiplied by (B) the Conversion Price;
(vi) (a) with respect to any Non-Arrearage Payment, the
average daily trading volume in the Common Stock during the period used
to calculate the Trailing Average Value is at least 50% of the average
daily trading volume in the Common Stock for the 180-day period ending
on the date of the Investment Agreement, and (b) with respect to any
Arrearage Payment, the average daily trading volume in the Common Stock
during the period used to calculate the Trailing Average Value is at
least 67% of the average daily trading volume in the Common Stock for
the 180-day period ending on the date of the Investment Agreement;
(vii) the issuance of such shares of Common Stock in
satisfaction of such payment does not require the approval or
affirmative vote of the holders of any class or series of the
Corporation's Equity Securities; and
(viii) as of the relevant Dividend Payment Date, the Shelf
Registration Statement (as such term is defined in the Registration
Rights Agreement) is effective under the Securities Act and is
available for use in connection with the offer and sale of such shares
of Common Stock by those holders of Series B Preferred Stock that have
such right under the Registration Rights Agreement (it being understood
that if a Shelf Suspension (as such term is defined in the Registration
Rights Agreement) is in effect, the Shelf Registration Statement shall
not be deemed effective or available for use); provided, however, that
in the case of any Non-Arrearage Payment (and only in the case of a
Non-Arrearage Payment), this clause (viii) shall not prohibit the
issuance of shares of Common Stock in satisfaction of such payment if
the Shelf Registration Statement is not effective or not available for
use in accordance with Section 2.1(c) of the Registration Rights
Agreement.
For the purpose of this Section C, the value of a share of Common Stock used to
pay dividends on the Series B Preferred Stock shall equal (the "Trailing Average
Value") the average of the Closing Prices per share of Common Stock for the
twenty consecutive Trading Days ending on the second Trading Day prior to the
relevant Dividend Payment Date; provided, however, that in the event that an
adjustment to the Conversion Price takes effect pursuant to Section B of Article
IX hereof during the period used to compute such average, the Closing Prices
used to compute such average for all Trading Days ended prior to the time such
adjustment takes effect shall be similarly adjusted. Except as otherwise
expressly provided in this Section C, Common Stock may not be used to make any
payment in respect of any Arrearage.
D. Method of Payment. Dividends paid on the shares of Series B Preferred
Stock in an amount less than the total amount of such dividends at the time
accumulated and payable on all outstanding shares of Series B Preferred Stock
shall be allocated pro rata on a share-by-share basis among all such shares then
outstanding. Notwithstanding the provisions of Section C of this Article III,
any such partial payment shall be made in cash. Dividends that are declared and
paid in an amount less than the full amount of dividends accumulated on the
Series B Preferred Stock (and on any Arrearage) shall be applied first to the
earliest dividend which has not theretofore been paid. All cash payments of
dividends on the shares of Series B Preferred Stock shall be made in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
IV. Liquidation Preference
In the event of a liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the holders of then-outstanding
shares of Series B Preferred Stock shall be entitled to receive out of the
assets of the Corporation, whether such assets are capital or surplus of any
nature, an amount per share equal to the sum of (i) the dividends, if any,
accumulated or deemed to have accumulated thereon to the date of final
distribution to such holders, whether or not such dividends are declared, and
(ii) the Stated Value thereof, and no more, before any payment shall be made or
any assets distributed to the holders of any Junior Liquidation Securities.
After any such payment in full, the holders of Series B Preferred Stock shall
not, as such, be entitled to any further participation in any distribution of
assets of the Corporation. All the assets of the Corporation available for
distribution to stockholders after the liquidation preferences of any Senior
Liquidation Securities shall be distributed ratably (in proportion to the full
distributable amounts to which holders of Series B Preferred Stock and Parity
Liquidation Securities, if any, are respectively entitled upon such dissolution,
liquidation or winding up) among the holders of the then-outstanding shares of
Series B Preferred Stock and Parity Liquidation Securities, if any, when such
assets are not sufficient to pay in full the aggregate amounts payable thereon.
Neither a consolidation or merger of the Corporation with or into any other
Person or Persons, nor a sale, conveyance, lease, exchange or transfer of all or
part of the Corporation's assets for cash, securities or other property to a
Person or Persons shall be deemed to be a liquidation, dissolution or winding up
of the Corporation for purposes of this Article IV, but the holders of shares of
Series B Preferred Stock shall nevertheless be entitled from and after any such
consolidation, merger or sale, conveyance, lease, exchange or transfer of all or
part of the Corporation's assets to the rights provided by this Article IV
following any such transaction. Notice of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, stating the payment
date or dates when, and the place or places where, the amounts distributable to
each holder of shares of Series B Preferred Stock in such circumstances shall be
payable, shall be given by first-class mail, postage prepaid, mailed not less
than 45 days prior to any payment date stated therein, to holders of record as
they appear on the stock record books of the Corporation as of the date such
notices are first mailed.
V. Mandatory Conversion, Redemption and Repurchase
A. Mandatory Conversion. (a) If the 180-Day Average Price and the related
Two-Week Average Price for any 180-Day Reference Period (which Reference Period
shall have ended no earlier than the first anniversary of the original issuance
of the Series A Preferred Stock and no later than the second anniversary of the
original issuance of the Series A Preferred Stock), both exceed 200% of the
Conversion Price, then the Corporation shall have the right, at its option and
election, to exchange the Series B Preferred Stock, in whole and not in part,
for shares of Common Stock, as if such shares of Series B Preferred Stock had
been converted by the holders thereof pursuant to Article IX hereof on the date
of such exchange.
(b) If the 45-Trading Day Average Price and the related Two-Week Average
Price for any 45-Trading Day Reference Period (which Reference Period shall have
ended no earlier than the second anniversary of the original issuance of the
Series A Preferred Stock), both exceed 200% of the Conversion Price, then the
Corporation shall have the right, at its option and election, to exchange the
Series B Preferred Stock, in whole and not in part, for shares of Common Stock,
as if such shares of Series B Preferred Stock had been converted by the holders
thereof pursuant to Article IX hereof on the date of such exchange.
(c) Notwithstanding anything in this Section A to the contrary, the
Corporation shall not have the right to exchange the Series B Preferred Stock
for Common Stock pursuant to this Section A unless (i) the Common Stock shall
have been validly listed for trading on the NYSE or other national securities
exchange or quoted on a nationally recognized quotation system on each day in
the relevant Reference Period and as of the date of such exchange, (ii) the
average daily trading volume in the Common Stock during the relevant Reference
Period and during the two-week calendar period ending on the last day of the
relevant Reference Period is at least 50% of the average daily trading volume in
the Common Stock for the 180-day period ending on the date of the Investment
Agreement, (iii) the Corporation shall have obtained the Shareholder Approval,
(iv) as of the date of such exchange, the Shelf Registration Statement (as such
term is defined in the Registration Rights Agreement) is effective under the
Securities Act and is available for use in connection with the offer and sale of
such shares of Common Stock by those holders that have such right under the
Registration Rights Agreement (it being understood that if a Shelf Suspension
(as such term is defined in the Registration Rights Agreement) is in effect, the
Shelf Registration Statement shall not be deemed effective or available for
use), and (v) the Corporation simultaneously exchanges the Series A Preferred
Stock pursuant to subsection (a) or (b) of Section A of Article V of the
Certificate of Designations for the Series A Preferred Stock. The Corporation
may not effect any such exchange if such exchange would: (a) violate any
provision of the certificate of incorporation or the bylaws of the Corporation;
(b) conflict with, contravene or result in a breach or violation of any of the
terms or provisions of, or constitute a default (with or without notice or the
passage of time) under, or result in or give rise to a right of termination,
cancellation, acceleration or modification of any right or obligation under, or
give rise to a right to put or to compel a tender offer for outstanding
securities of the Corporation or any of its Subsidiaries under, or require any
consent, waiver or approval under, any note, bond, debt instrument, indenture,
mortgage, deed of trust, lease, loan agreement, joint venture agreement,
Regulatory Approval, contract or any other agreement, instrument or obligation
to which the Corporation or any of its Subsidiaries is a party or by which the
Corporation or any of its Subsidiaries or any property of the Corporation or any
of its Subsidiaries is bound; (c) result in the creation or imposition of any
Lien upon any assets or properties of the Corporation or any of its
Subsidiaries; or (d) violate any Law applicable to the Corporation or any of its
Subsidiaries.
(d) Notice of an exchange of shares of Series B Preferred Stock pursuant to
this Section A (a "Notice of Exchange") shall be sent to the holders of record
of the shares of Series B Preferred Stock by first class mail, postage prepaid,
at each such holder's address as it appears on the stock record books of the
Corporation, not more than 45 nor fewer than 15 days prior to the last day of
the relevant Reference Period. The Notice of Exchange shall set forth the date
fixed for the exchange (the "Exchange Date") and shall set forth in reasonable
detail the calculations and supporting data used by the Corporation in its
determination that it had the right to effect such exchange. From and after the
Exchange Date, all dividends on shares of Series B Preferred Stock shall cease
to accumulate and all rights of the holders thereof as holders of Series B
Preferred Stock shall cease and terminate, except if the Corporation shall
default in its obligation to deliver shares of Common Stock and cash in lieu of
fractional shares to holders on the Exchange Date, in which case all such rights
shall continue unless and until such shares are exchanged (or redeemed,
repurchased or converted) in accordance with the terms hereof. Prior to the
Exchange Date, each holder shall provide a written notice to the Corporation
specifying the name or names in which such holder wishes the certificate or
certificates for shares of Common Stock to be issued. If no such notice is
delivered, such shares of Common Stock and cash in lieu of fractional shares, if
any, shall be delivered to such holder. In case such notice shall specify a name
or names other than that of such holder, such notice shall be accompanied by
payment of all transfer taxes payable upon the issuance of shares of Common
Stock in such name or names. Other than such taxes, the Corporation will pay any
and all issue and other taxes (other than taxes based on income) that may be
payable in respect of any issue or delivery of shares of Common Stock on
exchange of Series B Preferred Stock pursuant to this Section A. On or after the
Exchange Date, each holder of shares of Series B Preferred Stock shall surrender
the certificate evidencing shares of Series B Preferred Stock to the Corporation
at the place designated in the Notice of Exchange. As promptly as practical, and
in any event within three Business Days after the Exchange Date, the Corporation
shall deliver or cause to be delivered as directed by the holder of shares of
Series B Preferred Stock being exchanged (i) certificates representing the
number of validly issued, fully paid and nonassessable full shares of Common
Stock to which such holder shall be entitled and (ii) cash in lieu of fractional
shares, if any, to which such holder shall be entitled. Except as otherwise
specified in this Article V, for the purposes hereof, such exchange shall be
deemed a conversion effected pursuant to Article IX and the terms and procedures
set forth in Article IX shall apply. For such purpose, the applicable Conversion
Date shall be the Exchange Date.
(e) In the event the Corporation delivers a Notice of Exchange, the
Corporation shall be obligated to effect the exchange described therein,
provided that each of the conditions to such exchange set forth in subsections
(a), (b) and (c) above is (i) satisfied or (ii) waived by the holders of a
majority of the shares of Series B Preferred Stock then outstanding.
(f) Notwithstanding anything to the contrary in the Registration Rights
Agreement, in the event the Corporation effects an exchange pursuant to this
Section A, the Corporation shall not exercise its right to declare a Shelf
Suspension (as such term is defined in the Registration Rights Agreement)
pursuant to Section 2.1(c) of the Registration Rights Agreement during the
period beginning on the Exchange Date and ending 90 days after the Exchange
Date.
B. Mandatory Redemption. The Corporation shall not have any right to redeem
any shares of Series B Preferred Stock prior to the Mandatory Redemption Date
(as defined below). On the tenth anniversary of the original issuance of the
Series A Preferred Stock (the "Mandatory Redemption Date"), the Corporation
shall redeem (the "Mandatory Redemption") all outstanding shares of Series B
Preferred Stock by paying the redemption price therefor in cash out of funds
legally available for such purpose. The redemption price for each share of
Series B Preferred Stock shall equal the sum of (i) the amount, if any, of all
unpaid dividends accumulated thereon to the date of actual payment of the
Redemption Price, whether or not such dividends have been declared, and (ii) the
Stated Value thereof ("Redemption Price").
C. Notice and Redemption Procedures. Notice of the redemption of shares of
Series B Preferred Stock pursuant to Section B of this Article V (a "Notice of
Redemption") shall be sent to the holders of record of the shares of Series B
Preferred Stock to be redeemed by first class mail, postage prepaid, at each
such holder's address as it appears on the stock record books of the
Corporation, not more than 100 nor fewer than 60 days prior to the date fixed
for redemption, which date shall be set forth in such notice (the "Redemption
Date"); provided, however, that failure to give such Notice of Redemption to any
holder, or any defect in such Notice of Redemption to any holder shall not
affect the validity of the proceedings for the redemption of any shares of
Series B Preferred Stock held by any other holder. In order to facilitate the
redemption of shares of Series B Preferred Stock, the Board of Directors may fix
a record date for the determination of the holders of shares of Series B
Preferred Stock to be redeemed, in each case, not more than 10 days prior to the
date the Notice of Redemption is mailed. On or after the Redemption Date, except
with respect to shares of Series B Preferred Stock for which the Conversion Date
has occurred on or prior to such Redemption Date, each holder of the shares
called for redemption shall surrender the certificate evidencing such shares to
the Corporation at the place designated in such notice and shall thereupon be
entitled to receive payment of the Redemption Price. From and after the
Redemption Date, all dividends on shares of Series B Preferred Stock shall cease
to accumulate and all rights of the holders thereof as holders of Series B
Preferred Stock shall cease and terminate, except if the Corporation shall
default in payment of the Redemption Price on the Redemption Date in which case
all such rights shall continue unless and until such shares are redeemed and
such price is paid in accordance with the terms hereof.
D. Change of Control. In the event there occurs a Change of Control, any
holder of record of shares of Series B Preferred Stock, in accordance with the
procedures set forth in Section E of this Article V, may require the Corporation
to redeem any or all of the shares of Series B Preferred Stock held by such
holder in an amount per share equal to the sum of (i) the amount, if any, of all
unpaid dividends accumulated thereon to the date of actual payment thereof,
whether or not such dividends have been declared, and (ii) 101% of Stated Value
(the "Change of Control Price"). By accepting a share of Series B Preferred
Stock the holder thereof shall be deemed to have acknowledged and agreed that
(a) such holder's right, to receive payment of the Change in Control Price is
subject and subordinated in right of payment to the payment in full and
discharge of all amounts of principal, interest and fees (however denominated)
then outstanding under the Credit Agreement and the Senior Subordinated Notes
and (b) until payment in full of all such amounts (however denominated) under
the Credit Agreement and the Senior Subordinated Notes has been made in cash, no
payment, whether directly or indirectly, by exercise of any right of set off or
otherwise in respect of the Change of Control Price shall be made by the
Corporation, and, notwithstanding anything to the contrary in Section F of this
Article V, no deposit in respect of the Change of Control Price shall be made
pursuant to Section F of this Article V. In the event that any payment by, or
distribution of the assets of, the Corporation of any kind or character (whether
in cash, property or securities, whether directly or indirectly, by exercise of
any right of set-off or otherwise and whether as a result of a bankruptcy
proceeding with respect to the Corporation or otherwise) shall be received by a
holder of Series B Preferred Stock at any time when such payment is prohibited
by this paragraph, such payment shall be held in trust for the benefit of, and
shall be paid over to, the lenders under the Credit Agreement or the holders of
Senior Subordinated Notes, as the case may be, as their interests may appear.
The preceding two sentences address the relative rights of holders of Series B
Preferred Stock or Debentures, on the one hand, and the lenders under the Credit
Agreement or the holders of Senior Subordinated Notes, as the case may be, on
the other hand, and nothing in this Certificate of Designations shall impair, as
between the Corporation and the holders of Series B Preferred Stock or
Debentures, the obligation of the Corporation, which is absolute and
unconditional, to pay amounts due in respect of the Series B Preferred Stock and
Debentures in accordance with their terms. Upon a Change of Control, the
Corporation shall pay all amounts outstanding under the Credit Agreement and the
Indenture to the extent necessary in order to permit the payment of the Change
of Control Price hereunder.
E. Change of Control Notice and Redemption Procedures. Notice of any Change
of Control shall be sent to the holders of record of the outstanding shares of
Series B Preferred Stock not more than five days following a Change of Control,
which notice (a "Change of Control Notice") shall describe the transaction or
transactions constituting such Change of Control and set forth each holder's
right to require the Corporation to redeem any or all shares of Series B
Preferred Stock held by him or her out of funds legally available therefor, the
redemption date, which date shall be not less than 30 nor more than 45 days from
the date of such Change of Control Notice, (the "Change of Control Redemption
Date") and the procedures to be followed by such holders in exercising his or
her right to cause such redemption; provided, however, that if shares of Series
B Preferred Stock are owned by more than 50 holders or groups of Affiliated
holders and if the Series B Preferred Stock is listed on any national securities
exchange or quoted on any national quotation system, the Corporation shall give
such Change of Control Notice by publication in a newspaper of general
circulation in the Borough of Manhattan, The City of New York, within 30 days
following such Change of Control and, in any case, a similar notice shall be
mailed concurrently to each holder of shares of Series B Preferred Stock.
Failure by the Corporation to give the Change of Control Notice as prescribed by
the preceding sentence, or the formal insufficiency of any such Change of
Control Notice, shall not prejudice the rights of any holder of shares of Series
B Preferred Stock to cause the Corporation to redeem any such shares held by him
or her. In the event a holder of shares of Series B Preferred Stock shall elect
to require the Corporation to redeem any or all such shares of Series B
Preferred Stock pursuant to Section D hereof, such holder shall deliver, prior
to the Change of Control Redemption Date as set forth in the Change of Control
Notice, or, if the Change of Control Notice is not given as required by this
Section E, at any time following the last day the Corporation was required to
give the Change of Control Notice in accordance with this Section E (in which
case the Change of Control Redemption Date shall be the date which is the later
of (x) 45 days following the last day the Corporation was required to give the
Change of Control Notice in accordance with this Section E and (y) 30 days
following the delivery of such election by such holder), a written notice, in
the form specified by the Corporation (if the Corporation did in fact give the
notice required by this Section E), to the Corporation so stating, and
specifying the number of shares to be redeemed pursuant to Section D of this
Article V; provided, however, that if all of the shares of the Series B
Preferred Stock are owned by 50 or fewer holders or groups of affiliated
holders, such holders or groups may deliver a notice or an election to redeem at
any time within 90 days following the occurrence of a Change of Control without
awaiting receipt of a Change of Control Notice or the expiration of the time
allowed for the delivery of a Change of Control Notice hereunder. The
Corporation shall redeem the number of shares so specified on the Change of
Control Redemption Date fixed by the Corporation or as provided in the preceding
sentence. The Corporation shall comply with the requirements of Rules 13e-4 and
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with the repurchase of the shares of Series B Preferred Stock as a result of a
Change of Control. From and after the time the Change of Control Redemption
Price is paid in accordance with the terms hereof with respect to any share of
Series B Preferred Stock, all dividends on such share of Series B Preferred
Stock shall cease to accumulate and all rights of the holder thereof as a holder
of Series B Preferred Stock shall cease and terminate.
F. Deposit of Funds. The Corporation shall, no later than 11:00 a.m., New
York City time, on any Redemption Date or Change of Control Redemption Date
pursuant to this Article V, deposit with its transfer agent or other redemption
agent in the Borough of Manhattan, The City of New York having a capital and
surplus of at least $500,000,000, as a trust fund for the benefit of the holders
of the shares of Series B Preferred Stock to be redeemed, cash that is
sufficient in amount to redeem the shares to be redeemed in accordance with the
Notice of Redemption or Change of Control Notice, with irrevocable instructions
and authority to such transfer agent or other redemption agent to pay to the
respective holders of such shares, as evidenced by a list of such holders
certified by an officer of the Corporation, the Redemption Price or Change of
Control Redemption Price, as the case may be, upon surrender of their respective
share certificates. Such deposit shall be deemed to constitute full payment of
such shares to the holders, and from and after the date of such deposit, all
rights of the holders of the shares of Series B Preferred Stock that are to be
redeemed as stockholders of the Corporation with respect to such shares, except
the right to receive the Redemption Price upon the surrender of their respective
certificates and all rights under Articles IX and XI hereof, shall cease and
terminate. In case holders of any shares of Series B Preferred Stock called for
redemption shall not, within two years after such deposit, claim the cash
deposited for redemption thereof, such transfer agent or other redemption agent
shall, upon demand, pay over to the Corporation the balance so deposited.
Thereupon, such transfer agent or other redemption agent shall be relieved of
all responsibility to the holders thereof and the sole right of such holders,
with respect to shares to be redeemed, shall be to receive the Redemption Price
as general creditors of the Corporation. Any interest accrued on any funds so
deposited shall belong to the Corporation, and shall be paid to it from time to
time on demand.
G. Certain Repurchases. (a) If, at any time after March 5, 2002, one or
more members of the Investor Group (collectively, the "Selling Investors") sell
shares of Series A Preferred Stock and/or Common Shares, in a transaction or
series of related transactions (such sale, an "Investor Sale"), to any Person
other than a member of the Investor Group, the Corporation shall, if the Selling
Investors so elect, repurchase (a "Corporation Repurchase") from the Selling
Investors, for cash, shares of Series B Preferred Stock representing a number of
Conversion Shares equal to the Sale Number less the number of Make-Whole
Conversion Shares with respect to such Investor Sale. The price paid by the
Corporation in any Corporation Repurchase shall equal the Investor Sale Price
per Conversion Share represented by the securities purchased in such Corporation
Repurchase. Subject to subsection (b) of this Section G, in the event that the
Selling Investors include shares of Series B Preferred Stock in an Investor
Sale, the Corporation shall pay the Selling Investors, with respect to the
Make-Whole Conversion Shares, an amount per Make-Whole Conversion Share equal to
the Investor Sale Price less the amount per Make-Whole Conversion Share paid in
such Investor Sale (such payment, the "Make-Whole Payment"). Notwithstanding the
foregoing, the Corporation shall have no obligation to effect a Corporation
Repurchase or make a Make-Whole Payment unless the Selling Investors afford the
Corporation a reasonable opportunity to include in the Investor Sale up to that
number of shares of Common Stock that would be sufficient to permit the
Corporation to satisfy its obligations pursuant to this Section G, and the
Corporation shall have no obligation to effect a Corporation Repurchase or make
a Make-Whole Payment with respect to any Investor Sale that is consummated after
the Approval Date. Each Corporation Repurchase and Make-Whole Payment shall be
completed by the Corporation within 15 days of the consummation of the related
Investor Sale.
(b) Prior to any sale by the Selling Investors of any shares of Series B
Preferred Stock in an Investor Sale, the Selling Investors shall give written
notice to the Corporation of the Selling Investors' desire to sell such shares,
which notice shall identify the number of such shares the Selling Investors
desire to sell (such notice, a "Series B Sale Notice"). The Series B Sale Notice
shall be given at least 10 Business Days prior to the consummation of the
related Investor Sale. The Selling Investors shall not include such shares in
such Investor Sale if, within 5 Business Days of the delivery of the Series B
Sale Notice, the Corporation delivers a written notice to the Selling Investors
to the effect that it will effect a Corporation Repurchase with respect to such
shares following the completion of such Investor Sale.
(c) Prior to the Approval Date, the Corporation shall not effect any direct
or indirect redemption or repurchase of Common Stock unless it has complied with
the procedures set forth in this subsection (c). In the event the Corporation
intends to effect any direct or indirect redemption or repurchase of Common
Stock, the Corporation shall first offer (a "Repurchase Offer") to repurchase
shares of Series B Preferred Stock and Junior Preferred Stock at the Repurchase
Price (as defined below) per Conversion Share represented by the shares of
Series B Preferred Stock and Junior Preferred Stock to be repurchased. The
Corporation shall give written notice (a "Proposed Repurchase Notice") of such
offer to each holder of Series B Preferred Stock and each holder of Junior
Preferred Stock which notice shall specify (i) the aggregate number (the
"Repurchase Number") of Conversion Shares represented by shares of Series B
Preferred Stock and Junior Preferred Stock that the Corporation is willing to
repurchase, and (ii) the proposed repurchase price for each such Conversion
Share (the "Repurchase Price"). The date on which such Proposed Repurchase
Notice is given is referred to herein as the "Notice Date." To accept a
Repurchase Offer a holder must, within 20 days of the Notice Date, notify the
Corporation in writing of its acceptance of the Repurchase Offer and the number
of shares of Series B Preferred Stock and number of shares of Junior Preferred
Stock it wishes to have repurchased by the Corporation. If a holder does not
provide such notice to the Corporation within such 20-day period, then such
holder shall be deemed to have rejected the Repurchase Offer. Within 5 days
following the end of such 20-day period, the Corporation shall repurchase the
securities specified by each accepting holder at the Repurchase Price per
Conversion Share represented by such securities. The date on which such
repurchases are effected is referred to herein as the "Repurchase Date." If the
aggregate number of Conversion Shares represented by the shares of Series B
Preferred Stock and Junior Preferred Stock with respect to which holders have
accepted the Repurchase Offer exceeds the Repurchase Number, the Corporation
shall repurchase such securities on a pro rata basis based on the number of
Conversion Shares with respect to which each such holder accepted the Repurchase
Offer. During the period commencing on the Repurchase Date and ending on the
120th day after the Notice Date, the Corporation may repurchase and redeem, at a
price not in excess of the Repurchase Price per share, up to an aggregate number
of shares of its Common Stock equal to the Repurchase Number less the number of
Conversion Shares represented by the shares of Series B Preferred Stock and
Junior Preferred Stock repurchased pursuant to the Repurchase Offer. After such
120th day, in order to directly or indirectly repurchase or redeem shares of
Common Stock, the Corporation must again comply with the procedures set forth in
this subsection (c). Notwithstanding the foregoing, this paragraph shall not
prohibit (i) purchases of Equity Securities of the Corporation or any of its
Subsidiaries from executives and other management-level employees of the
Corporation or any of its Subsidiaries in connection with customary employment
and severance arrangements, or (ii) the acquisition, repurchase, exchange,
conversion, redemption or other retirement for value by the Corporation of any
Junior Dividend Securities by the Corporation in accordance with obligations in
existence at the time of original issuance of the Series A Preferred Stock.
(d) Until the Shareholder Approval is obtained, the Corporation shall not
(A) utilize amounts available under Section 6.06(a)(ii) of the Credit Agreement
(or any comparable provision of any Credit Agreement) for any purpose except to
effect repurchases or make payments in respect of the Series B Preferred Stock
as required pursuant to this Section G or to make payments with respect to the
Series A Preferred Stock, or (B) amend the Credit Agreement in any manner so as
to reduce the amounts available to effect repurchases or make payments in
respect of the Series B Preferred Stock as required pursuant to this Section G
under Section 6.06(a)(ii) of the Credit Agreement (or any comparable provision
of any Credit Agreement). Notwithstanding the foregoing, this paragraph shall
not prohibit (i) the acquisition, repurchase, exchange, conversion, redemption
or other retirement for value of shares of Series B Preferred Stock or any
Parity Dividend Security by the Corporation in accordance with the terms of such
securities, (ii) purchases of Equity Securities of the Corporation or any of its
Subsidiaries from executives and other management-level employees of the
Corporation or any of its Subsidiaries in connection with customary employment
and severance arrangements, or (iii) the acquisition, repurchase, exchange,
conversion, redemption or other retirement for value by the Corporation of any
Junior Dividend Securities by the Corporation in accordance with obligations in
existence at the time of original issuance of the Series A Preferred Stock.
(e) If a Make-Whole Payment would result in an event of default under the
Credit Agreement or the Indenture, the Corporation shall not be obligated to
make such Make-Whole Payment until such time as the Make-Whole Payment would not
result in an event of default under the Credit Agreement or the Indenture, as
the case may be; provided that if the Make-Whole Payment would not result in
such an event of default if made from the proceeds of the sale of Equity
Securities of the Corporation, the Corporation shall use commercially reasonable
efforts to effect a sale of Equity Securities to permit it to make the
Make-Whole Payment and avoid such an event of default. In the event (i) the
Corporation defaults with respect to its obligation to make a Make-Whole Payment
or (ii) a Make-Whole Payment is delayed pursuant to the preceding sentence, a
late-payment charge shall accrue with respect to the Make-Whole Payment at a per
annum rate equal to the dividend rate then in effect pursuant to Section A of
Article III hereof from (A) the time of such default in the case of clause (i)
above or (B) from the time such Make-Whole Payment would have been due except
for the operation of the preceding sentence in the case of clause (ii) above,
and shall accrue until such amount and such charge is paid.
VI. Exchange of Series B Preferred Stock for Debentures
A. The Series B Preferred Stock shall be exchangeable, at any time, at the
option of the Corporation and to the extent permitted by applicable law and the
terms of the instruments governing the Corporation's then-outstanding
Indebtedness, in whole but not in part, on any Dividend Payment Date for
unsecured Junior Subordinated Convertible Debentures (issued pursuant to an
indenture (the "Series B Indenture") prepared in accordance with the Investment
Agreement), in principal amount of $1,000 per share of Series B Preferred Stock
(a "Debenture" and, collectively, the "Debentures"), in accordance with this
Article VI:
(i) Each share of Series B Preferred Stock shall be
exchangeable at the offices of the Corporation and at such other place
or places, if any, as the Board of Directors may designate. Except with
the prior written consent of the holders of all outstanding shares of
Series B Preferred Stock, the Corporation may not exchange any shares
of Series B Preferred Stock if (a) full cumulative dividends through
the date of exchange, have not been paid, accrued or set aside for
payment on all outstanding shares of the Series B Preferred Stock, (b)
the Corporation has failed to amend its Certificate of Incorporation in
accordance with Delaware law to confer the power to vote upon holders
of the Debentures as shall be contemplated by the Series B Indenture or
(c) such exchange could result in any adverse tax consequence to any
such holder.
(ii) Prior to giving notice of its intention to exchange, the
Corporation shall execute and deliver to a bank or trust company and,
if required by applicable law, qualify under the Trust Indenture Act of
1939, as amended, the Series B Indenture.
(iii) The Corporation shall mail written notice of its
intention to exchange Series B Preferred Stock for Debentures (the
"Exchange Notice") to each holder of record of shares of Series B
Preferred Stock not less than 60 nor more than 100 days prior to the
date fixed for exchange. The Exchange Notice shall notify holders of
their right to deliver an Objection Notice (as defined below) pursuant
to Section B of this Article VI.
(iv) Prior to effecting any exchange provided above, the
Corporation shall deliver to each holder of shares of Series B
Preferred Stock an opinion of nationally recognized legal counsel to
the effect that: (a) each of the Series B Indenture and the Debentures
have been duly authorized and executed by the Corporation and, when
delivered by the Corporation in exchange for shares of Series B
Preferred Stock, will constitute valid and legally binding obligations
of the Corporation enforceable against the Corporation in accordance
with their terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and to general
principles of equity; (b) the exchange of the Debentures for the shares
of Series B Preferred Stock will not violate the provisions of this
Article VI or of the Delaware General Corporation Law, including
Section 221 thereof; and (c) the exchange of the Debentures for the
shares of Series B Preferred Stock is exempt from the registration
requirements of the Securities Act or that the exchange of such
Debentures has been duly registered under the Securities Act.
(v) The Corporation may not effect any exchange provided above
if such exchange would: (a) violate any provision of the certificate of
incorporation or the bylaws of the Corporation; (b) conflict with,
contravene or result in a breach or violation of any of the terms or
provisions of, or constitute a default (with or without notice or the
passage of time) under, or result in or give rise to a right of
termination, cancellation, acceleration or modification of any right or
obligation under, or give rise to a right to put or to compel a tender
offer for outstanding securities of the Corporation or any of its
Subsidiaries under, or require any consent, waiver or approval that has
not been obtained or granted under, any note, bond, debt instrument,
indenture, mortgage, deed of trust, lease, loan agreement, joint
venture agreement, Regulatory Approval, contract or any other
agreement, instrument or obligation to which the Corporation or any of
its Subsidiaries is a party or by which the Corporation or any of its
Subsidiaries or any property of the Corporation or any of its
Subsidiaries is bound; (c) result in the creation or imposition of any
Lien upon any assets or properties of the Corporation or any of its
Subsidiaries; or (d) violate any Law applicable to the Corporation or
any of its Subsidiaries.
(vi) Upon the exchange of shares of Series B Preferred Stock
for Debentures, the rights of the holders of shares of Series B
Preferred Stock as stockholders of the Corporation shall terminate and
such shares shall no longer be deemed outstanding.
(vii) Before any holder of shares of Series B Preferred Stock
shall be entitled to receive Debentures, such holder shall surrender
the certificate or certificates therefor, at the office of the
Corporation or at such other place or places, if any, as the Board of
Directors shall have designated, and shall state in writing the name or
names (with addresses) in which he or she wishes the certificate or
certificates for the Debentures to be issued. The Corporation will, as
soon as practicable thereafter, issue and deliver at said office or
place to such holder of shares of Series B Preferred Stock, or to his
or her nominee or nominees, certificates for the Debentures to which he
or she shall be entitled as aforesaid. Shares of Series B Preferred
Stock shall be deemed to have been exchanged as of the close of
business on the date fixed for exchange as provided above, and the
Person or Persons entitled to receive the Debentures issuable upon such
exchange shall be treated for all purposes (including the accrual and
payment of interest) as the record holder or holders of such Debentures
as of the close of business on such date.
B. For purposes of clause (c) of paragraph (i) of Section A of this Article
VI, an exchange of shares of Series B Preferred Stock shall be deemed to be an
exchange that could result in a tax consequence to any holder which is
materially adverse only if such holder shall have delivered to the Corporation a
written notice to such effect on or before the fifteenth day after its receipt
of the Exchange Notice (an "Objection Notice"), which Objection Notice shall
specify in reasonable detail the nature of such tax consequence which could
result from the exchange. If the Corporation receives an Objection Notice, then
the Corporation shall not exchange the shares of Series B Preferred Stock and
the Corporation shall, within 15 days after its receipt of the Objection Notice
mail written notice to the effect that it is canceling the proposed exchange of
shares of Series B Preferred Stock to each holder of record of shares of Series
B Preferred Stock to which it mailed the Exchange Notice. Notwithstanding the
foregoing, if the Corporation, based on the advice of nationally recognized tax
counsel, believes that the tax consequences described in an Objection Notice are
incorrect, the Corporation may contact the holder who delivered such notice to
discuss the tax consequences described therein. If such holder withdraws such
notice within 15 days of its delivery, the Corporation shall be permitted to
consummate the proposed exchange.
VII. Restrictions on Dividends
So long as any shares of the Series B Preferred Stock are outstanding, the
Board of Directors shall not declare, and the Corporation shall not pay or set
apart for payment any dividend on any Junior Securities or Parity Securities or
make any payment on account of, or set apart for payment money for a sinking or
other similar fund for, the repurchase, redemption or other retirement of, any
Junior Securities or Parity Securities or any warrants, rights or options
exercisable for or convertible into any Junior Securities or Parity Securities
(other than the repurchase, redemption or other retirement of debentures or
other debt securities that are convertible or exchangeable into any Junior
Securities or Parity Securities), or make any distribution in respect of the
Junior Securities or Parity Securities, either directly or indirectly, and
whether in cash, obligations or shares of the Corporation or other property
(other than distributions or dividends in Junior Securities to the holders of
Junior Securities), and shall not permit any Person directly or indirectly
controlled by the Corporation to purchase or redeem any Junior Securities or
Parity Securities or any warrants, rights, calls or options exercisable for or
convertible into any Junior Securities or Parity Securities (other than the
repurchase, redemption or other retirement of debentures or other debt
securities that are convertible or exchangeable into any Junior Securities or
Parity Securities) unless prior to or concurrently with such declaration,
payment, setting apart for payment, repurchase, redemption or other retirement
or distribution, as the case may be, all accumulated and unpaid dividends on
shares of the Series B Preferred Stock not paid on the dates provided for in
Section A of Article III hereof (including Arrearages and accumulated dividends
thereon and regardless of whether the Corporation shall have had the right to
elect to defer such payments as provided for in Article III hereof) shall have
been paid, except that when dividends are not paid in full as aforesaid upon the
shares of Series B Preferred Stock, all dividends declared on the Series B
Preferred Stock and any series of Parity Dividend Securities shall be declared
and paid pro rata so that the amount of dividends so declared and paid on Series
B Preferred Stock and such series of Parity Dividend Securities shall in all
cases bear to each other the same ratio that accumulated dividends (including
interest accrued on or additional dividends accumulated in respect of such
accumulated dividends) on the shares of Series B Preferred Stock and such Parity
Dividend Securities bear to each other. Notwithstanding the foregoing, this
paragraph shall not prohibit (i) the acquisition, repurchase, exchange,
conversion, redemption or other retirement for value of shares of Series B
Preferred Stock or any Parity Dividend Security by the Corporation in accordance
with the terms of such securities or (ii) the acquisition, repurchase, exchange,
conversion, redemption or other retirement for value by the Corporation of any
Junior Dividend Securities by the Corporation in accordance with obligations in
existence at the time of original issuance of the Series A Preferred Stock.
VIII. Voting Rights
A. The holders of shares of Series B Preferred Stock shall have no voting
rights except as set forth below or as otherwise from time to time required by
law.
B. Through the Approval Date, shares of Series B Preferred Stock shall have
no voting rights. After the Approval Date, so long as any shares of the Series B
Preferred Stock are outstanding, each share of Series B Preferred Stock shall
entitle the holder thereof to vote on all matters voted on by holders of Common
Stock, and the shares of Series B Preferred Stock shall vote together with
shares of Common Stock (and any shares of Series A Preferred Stock entitled to
vote) as a single class. With respect to any such vote, each share of Series B
Preferred Stock shall entitle its holder to a number of votes equal to the
number of shares of Common Stock into which such share of Series B Preferred
Stock is convertible at the time of the record date with respect to such vote
(assuming all conditions precedent to such conversion have been satisfied and
that such conversion had occurred as of the record date for such vote).
C. If on any date after the Approval Date (i) dividends payable on the
Series A Preferred Stock or Series B Preferred Stock shall not have been paid in
full when required pursuant to the terms hereof or (ii) the Corporation shall
have failed to satisfy its obligation to redeem shares of Series A Preferred
Stock or Series B Preferred Stock pursuant to the terms of the relevant
Certificate of Designations (provided, that for the purpose of this Section C,
any obligation of the Corporation to repurchase shares of Series B Preferred
Stock pursuant to Section G of Article V of this Certificate of Designations
shall not be considered an obligation to redeem such shares), then the number of
directors constituting the Board of Directors shall, without further action, be
increased by two, or if the requisite increase in the number of directors
constituting the Board of Directors would require the approval of the
Corporation's stockholders or is prohibited by the Investment Agreement, then
the number of directors constituting the Board of Directors shall be increased
to the extent the approval of the Corporation's stockholders is not required and
the Investment Agreement would not be breached and a number of directors (other
than Investor Nominees) shall resign from the Board of Directors so that the
holders of shares of Series A Preferred Stock and Series B Preferred Stock,
voting together as a single class without regard to series, may elect two
directors to the Board of Directors, and the holders of a majority of the
outstanding shares of Series A Preferred Stock and Series B Preferred Stock,
voting together as a single class without regard to series, shall have, in
addition to the other voting rights set forth herein, the exclusive right to
elect two directors (the "Additional Directors") of the Corporation to fill such
newly-created or vacated directorships. Additional Directors shall continue as
directors and such additional voting right shall continue until such time as (a)
all dividends accumulated on the Series A Preferred Stock and Series B Preferred
Stock shall have been paid in full as required pursuant to the terms hereof or
(b) any redemption obligation with respect to the Series A Preferred Stock or
Series B Preferred Stock that has become due shall have been satisfied or all
necessary funds shall have been set aside for payment, as the case may be, at
which time such Additional Directors shall cease to be directors and such
additional voting right of the holders of shares of Series A Preferred Stock and
Series B Preferred Stock shall terminate subject to revesting in the event of
each and every subsequent event of the character indicated above.
D. After the Approval Date, so long as members of the Investor Group
Beneficially Own a majority of the outstanding shares of Series A Preferred
Stock and Series B Preferred Stock, if any default or event of default has
occurred and is continuing under any contract, agreement, indenture, mortgage,
note, lease or other instrument evidencing Indebtedness of the Corporation or
any of its Subsidiaries (other than inter-company Indebtedness between the
Corporation and any of its Subsidiaries or between Subsidiaries of the
Corporation) the outstanding principal amount of which is in excess of
$10,000,000, and as a result of such default, event of default or event the
holders thereof have accelerated or have the right to accelerate the maturity
thereof, and such default or event of default is not cured or waived within 75
days of the occurrence thereof, then the number of directors constituting the
Board of Directors shall, upon the request of members of the Investor Group who
Beneficially Own a majority of the outstanding shares of Series A Preferred
Stock and Series B Preferred Stock then Beneficially Owned by members of the
Investor Group delivered to the Corporation in writing, be increased by that
number that is necessary to enable the Investor Group to designate a majority of
the members of the Board of Directors (including the Investor Nominees), or if
such requisite increase in the number of directors constituting the Board of
Directors would require the approval of the Corporation's stockholders or is
prohibited by the Investment Agreement, then the number of directors
constituting the Board of Directors shall be increased to the extent the
approval of the Corporation's stockholders is not required and the Investment
Agreement would not be breached and a number of directors (other than Investor
Nominees) shall resign from the Board of Directors so as to enable the Investor
Group to designate a majority of the Board of Directors (including the Investor
Nominees), and the holders of a majority of the outstanding shares of Series A
Preferred Stock and Series B Preferred Stock then held by the Investor Group,
voting together as a single class without regard to series, shall have, in
addition to the other voting rights set forth herein, the exclusive right,
voting separately as a class, to elect that number of directors (the "Majority
Directors") of the Corporation necessary to fill such newly-created or vacated
directorships. Majority Directors shall continue as directors and such
additional voting right shall continue until such time as such default, event of
default or event is cured, at which time such Majority Directors shall cease to
be directors and such additional voting right of the Series A Preferred Stock
and Series B Preferred Stock shall terminate subject to revesting in the event
of each and every subsequent event of the character indicated above.
E. Reserved.
F. (a) The foregoing rights of holders of shares of Series B Preferred
Stock to take any action as provided in this Article VIII may be exercised at
any annual meeting of stockholders or at a special meeting of stockholders held
for such purpose as hereinafter provided or at any adjournment thereof, or by
the written consent, delivered to the Secretary of the Corporation, of the
holders of the minimum number of shares required to take such action. So long as
such right to vote continues (and unless such right has been exercised by
written consent of the minimum number of shares required to take such action),
the Chairman of the Board of Directors may call, and upon the written request of
holders of record of 25% of the outstanding shares of Series B Preferred Stock,
addressed to the Secretary of the Corporation at the principal office of the
Corporation, shall call, a special meeting of the holders of shares entitled to
vote as provided herein. Such meeting shall be held as soon as reasonably
practicable after delivery of such request to the Secretary, at the place and
upon the notice provided by law and in the Bylaws for the holding of meetings of
stockholders.
(b) Each director elected pursuant to Section C, D or E hereof shall serve
until the next annual meeting or until his or her successor shall be elected and
shall qualify, unless the director's term of office shall have terminated
pursuant to the provisions of Section C, D or E hereof, as the case may be. In
case any vacancy shall occur among the directors elected pursuant to Section C,
D or E hereof, such vacancy shall be filled for the unexpired portion of the
term by vote of the remaining director or directors theretofore elected pursuant
to the same Section (or such director's or directors' successor in office), if
any. If any such vacancy is not so filled within 20 days after the creation
thereof or if all of the directors so elected shall cease to serve as directors
before their term shall expire, the holders of the shares of Series B Preferred
Stock then outstanding and entitled to vote for such director pursuant to the
provisions of Section C, D or E hereof, as the case may be, may elect successors
to hold office for the unexpired terms of any vacant directorships, by written
consent as provided herein, or at a special meeting of such holders called as
provided herein. The holders of a majority of the shares entitled to vote for
directors pursuant to Section C, D or E hereof, as the case may be, shall have
the right to remove with or without cause at any time and replace any directors
such holders have elected pursuant to such section, by written consent as herein
provided, or at a special meeting of such holders called as provided herein.
G. Without the consent or affirmative vote of the holders of at least
sixty-seven percent (67%) of the outstanding shares of Series B Preferred Stock,
voting separately as a class, the Corporation shall not: (i) authorize, create
or issue, or increase the authorized amount of, (a) any Senior Securities or (b)
any class or series of capital stock or any security convertible into or
exercisable for any class or series of capital stock, that is redeemable
mandatorily or redeemable at the option of the holder thereof at any time on or
prior to the Mandatory Redemption Date (whether or not only upon the occurrence
of a specified event); (ii) amend, alter or repeal any provision of the
Certificate of Incorporation or the Bylaws, if the amendment, alteration or
repeal alters or changes the powers, preferences or special rights of the Series
B Preferred Stock so as to affect them adversely; or (iii) authorize or take any
other action if such action alters or changes any of the rights of the Series B
Preferred Stock in any respect or otherwise would be inconsistent with the
provisions of this Certificate of Designations and the holders of any class or
series of the capital stock of the Corporation is entitled to vote thereon.
H. Other Securities. The Corporation shall not, from and after the date of
original issuance of the Series A Preferred Stock, enter into any agreement,
amend or modify any existing agreement or obligation, or issue any security that
prohibits, conflicts or is inconsistent with, or would be breached by, the
Corporation's performance of its obligations hereunder.
IX. Conversion
A. Conversion. (a) At the option and election of the holder thereof, each
share of Series B Preferred Stock, including all unpaid dividends accumulated
thereon to the Conversion Date (as defined below), whether or not such dividends
have been declared, may be converted in the manner provided herein, into (i)
fully paid, duly authorized and nonassessable shares of Series C Junior
Participating Preferred Stock, without par value, of the Corporation (the
"Junior Preferred Stock"), on any Conversion Date occurring prior to the
Approval Date, and (ii) fully paid and nonassessable shares of Common Stock, on
any Conversion Date occurring on or after the Approval Date. As of the
Conversion Date with respect to a share of Series B Preferred Stock, subject to
subsections (d) and (e) of this Section A, such share shall be converted into
that number of Conversion Shares (as defined below) equal to the quotient of (i)
the sum of (A) the Stated Value thereof plus (B) all unpaid dividends
accumulated on such share of Series B Preferred Stock to the Conversion Date
whether or not such dividends have been declared, divided by (ii) the Conversion
Price in effect on the Conversion Date.
(b) Conversion of shares of the Series B Preferred Stock may be effected by
any holder thereof upon the surrender to the Corporation at the principal office
of the Corporation or at the office of any agent or agents of the Corporation,
as may be designated by the Board of Directors of the Corporation and identified
to the holders in writing upon such designation, of the certificate for such
shares of Series B Preferred Stock to be converted accompanied by a written
notice stating that such holder elects to convert all or a specified whole
number of shares represented by such certificate in accordance with the
provisions of this Section A and specifying the name or names in which such
holder wishes the certificate or certificates for Conversion Shares to be
issued. In case such notice shall specify a name or names other than that of
such holder, such notice shall be accompanied by payment of all transfer taxes
payable upon the issuance of Conversion Shares in such name or names. Other than
such taxes, the Corporation will pay any and all issue and other taxes (other
than taxes based on income) that may be payable in respect of any issue or
delivery of Conversion Shares on conversion of Series B Preferred Stock pursuant
hereto. As promptly as practical, and in any event within three Business Days
after the Conversion Date, the Corporation shall deliver or cause to be
delivered as directed by the holder of shares of Series B Preferred Stock being
converted (i) certificates representing the number of validly issued, fully paid
and nonassessable full Conversion Shares to which such holder shall be entitled
to, (ii) any cash that is required to be paid pursuant to subsections (d) and
(e) of this Section A, and (iii) if less than the full number of shares of
Series B Preferred Stock evidenced by the surrendered certificate or
certificates is being converted, a new certificate or certificates, of like
tenor, for the number of shares of Series B Preferred Stock evidenced by such
surrendered certificate or certificates less the number of shares of Series B
Preferred Stock being converted. Such conversion shall be deemed to have
occurred at the close of business on the date (the "Conversion Date") of the
giving of such notice by the holder of the Series B Preferred Stock to be
converted and of such surrender of the certificate or certificates representing
the shares of Series B Preferred Stock to be converted so that as of such time
the rights of the holder thereof as to the shares being converted shall cease
except for the right to receive Conversion Shares and/or cash in accordance
herewith, and the person entitled to receive the Conversion Shares issued as a
result of such conversion shall be treated for all purposes as having become the
holder of such Conversion Shares at such time.
(c) In the event that the Series B Preferred Stock is to be redeemed or
repurchased pursuant to Article V hereof, from and after the Redemption Date or
the applicable repurchase date, the right of a holder to convert shares of
Series B Preferred Stock pursuant to this Section A shall cease and terminate,
except if the Corporation shall default in payment of the Redemption Price on
the Redemption Date or the repurchase price on the applicable repurchase date,
in which case all such rights shall continue unless and until such shares are
redeemed or repurchased and such redemption or repurchase price is paid in full
in accordance with the terms hereof. Notwithstanding anything in the foregoing
to the contrary, if the Conversion Date shall occur with respect to any shares
of Series B Preferred Stock on or prior to any Redemption Date or repurchase
date, such shares of Series B Preferred Stock shall be converted by the
Corporation into Conversion Shares in the manner provided in this Section A.
(d) In connection with the conversion of any shares of Series B Preferred
Stock, no fractions of Conversion Shares shall be issued, but in lieu thereof
the Corporation shall pay a cash adjustment in respect of such fractional
interest in an amount equal to such fractional interest multiplied by the
Closing Price per share of Common Stock on the Conversion Date (or on the
Trading Day immediately preceding the Conversion Date, if the Conversion Date is
not a Trading Day). If more than one share of Series B Preferred Stock shall be
surrendered for conversion by the same holder on the same Conversion Date, the
number of full Conversion Shares issuable on conversion thereof shall be
computed on the basis of the total number of shares of Series B Preferred Stock
so surrendered.
(e) The Corporation shall at all times reserve and keep available for
issuance upon the conversion of the Series B Preferred Stock in accordance with
the terms hereof, such number of its authorized but unissued shares of Junior
Preferred Stock and Common Stock as will from time to time be sufficient to
permit the conversion of all outstanding shares of Series B Preferred Stock, and
shall take all action required to increase the authorized number of shares of
Junior Preferred Stock or Common Stock if necessary to permit the conversion of
all outstanding shares of Series B Preferred Stock, except that from and after
the Approval Date no shares of Junior Preferred Stock shall be required to be so
reserved.
B. Adjustment of Conversion Price. Except in connection with an Organic
Change, which shall be subject to Section C below, the Conversion Price shall be
subject to adjustment from time to time as follows:
(a) Stock Dividends. In case the Corporation after the date of the original
issuance of the Series A Preferred Stock shall pay a dividend or make a
distribution to all holders of shares of Common Stock in shares of Common Stock,
then in any such case the Conversion Price in effect at the opening of business
on the day following the record date for the determination of stockholders
entitled to receive such dividend or distribution shall be reduced to a price
obtained by multiplying such Conversion Price by a fraction of which (x) the
numerator shall be the number of shares of Common Stock outstanding at the close
of business on such record date and (y) the denominator shall be the sum of such
number of shares of Common Stock outstanding and the total number of shares of
Common Stock constituting such dividend or distribution, such reduction to
become effective immediately after the opening of business on the day following
such record date. For purposes of this subsection (a), the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Corporation but shall include shares issuable in respect of
scrip certificates issued in lieu of fractions of shares of Common Stock. The
Corporation will not pay any dividend or make any distribution on shares of
Common Stock held in the treasury of the Corporation.
(b) Stock Splits and Reverse Splits. In case after the date of the original
issuance of the Series A Preferred Stock outstanding shares of Common Stock
shall be subdivided into a greater number of shares of Common Stock, the
Conversion Price in effect at the opening of business on the day following the
day upon which such subdivision becomes effective shall be proportionately
reduced, and, conversely, in case after the original issuance of the Series A
Preferred Stock outstanding shares of Common Stock shall be combined into a
smaller number of shares of Common Stock, the Conversion Price in effect at the
opening of business on the day following the day upon which such combination
becomes effective shall be proportionately increased, such reduction or
increase, as the case may be, to become effective immediately after the opening
of business on the day following the day upon which such subdivision or
combination becomes effective.
(c) Issuances Below Market. In case the Corporation after the date of the
original issuance of the Series A Preferred Stock shall issue rights or warrants
to holders of shares of Common Stock entitling them to subscribe for or purchase
shares of Common Stock at a price per share less than the Closing Price per
share on the record date for the determination of stockholders entitled to
receive such rights or warrants, the Conversion Price in effect at the opening
of business on the day following such record date shall be adjusted to a price
obtained by multiplying such Conversion Price by a fraction of which (x) the
numerator shall be the number of shares of Common Stock outstanding at the close
of business on such record date plus the number of shares of Common Stock that
the aggregate offering price of the total number of shares so to be offered
would purchase at such Closing Price and (y) the denominator shall be the number
of shares of Common Stock outstanding at the close of business on such record
date plus the number of additional shares of Common Stock so to be offered for
subscription or purchase, such adjustment to become effective immediately after
the opening of business on the day following such record date; provided,
however, that no adjustment shall be made if the Corporation issues or
distributes to each holder of Series B Preferred Stock the rights or warrants
that each such holder would have been entitled to receive had the Series B
Preferred Stock held by such holder been converted prior to such record date.
For purposes of this subsection (c), the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the
Corporation but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock. The Corporation shall not
issue any rights or warrants in respect of shares of Common Stock held in the
treasury of the Corporation. Rights or warrants issued by the Corporation to all
holders of Common Stock entitling the holders thereof to subscribe for or
purchase Equity Securities, which rights or warrants (i) are deemed to be
transferred with such shares of Common Stock, (ii) are not exercisable and (iii)
are also issued in respect of future issuances of Common Stock, including shares
of Common Stock issued upon conversion of shares of Series B Preferred Stock, in
each case in clauses (i) through (iii) until the occurrence of a specified event
or events (a "Trigger Event"), shall for purposes of this subsection (c) not be
deemed issued until the occurrence of the earliest Trigger Event.
(d) Special Dividends. In case the Corporation after the date of the
original issuance of the Series A Preferred Stock shall distribute to all
holders of shares of Common Stock evidences of its indebtedness or assets
(excluding any regular periodic cash dividend but including any extraordinary
cash dividend), Equity Securities (other than Common Stock) or rights to
subscribe (excluding those referred to in subsection (c) above) for Equity
Securities other than Common Stock, in each such case the Conversion Price in
effect immediately prior to the close of business on the record date for the
determination of stockholders entitled to receive such distribution shall be
adjusted to a price obtained by multiplying such Conversion Price by a fraction
of which (x) the numerator shall be the Closing Price per share of Common Stock
on such record date, less the then-current fair market value as of such record
date (as determined by the Board of Directors in its good faith judgment) of the
portion of assets or evidences of indebtedness or Equity Securities or
subscription rights so distributed applicable to one share of Common Stock, and
(y) the denominator shall be such Closing Price, such adjustment to become
effective immediately prior to the opening of business on the day following such
record date; provided, however, that no adjustment shall be made (1) if the
Corporation issues or distributes to each holder of Series B Preferred Stock the
subscription rights referred to above that each such holder would have been
entitled to receive had the Series B Preferred Stock held by such holder been
converted prior to such record date or (2) if the Corporation grants to each
such holder the right to receive, upon the conversion of the Series B Preferred
Stock held by such holder at any time after the distribution of the evidences of
indebtedness or assets or Equity Securities referred to above, the evidences of
indebtedness or assets or Equity Securities that such holder would have been
entitled to receive had such Series B Preferred Stock been converted prior to
such record date. The Corporation shall provide any holder of Series B Preferred
Stock, upon receipt of a written request therefor, with any indenture or other
instrument defining the rights of the holders of any indebtedness, assets,
subscription rights or Equity Securities referred to in this subsection (d).
Rights or warrants issued by the Corporation to all holders of Common Stock
entitling the holders thereof to subscribe for or purchase Equity Securities,
which rights or warrants (i) are deemed to be transferred with such shares of
Common Stock, (ii) are not exercisable and (iii) are also issued in respect of
future issuances of Common Stock, including shares of Common Stock issued upon
conversion of shares of Series B Preferred Stock, in each case in clauses (i)
through (iii) until the occurrence of a Trigger Event, shall for purposes of
this subsection (d) not be deemed issued until the occurrence of the earliest
Trigger Event.
(e) Tender or Exchange Offer. In case a tender or exchange offer made by
the Corporation or any subsidiary of the Corporation for all or any portion of
the Common Stock shall be consummated at any time after the original issuance of
the Series A Preferred Stock and such tender offer shall involve an aggregate
consideration having a fair market value (as determined by the Board of
Directors in its good faith judgment) at the last time (the "Offer Time")
tenders may be made pursuant to such tender or exchange offer (as it may be
amended) that, together with the aggregate of the cash plus the fair market
value (as determined by the Board of Directors in its good faith judgment), as
of the Offer Time, of consideration payable in respect of any tender or exchange
offer by the Corporation or any such subsidiary for all or any portion of the
Common Stock consummated preceding the Offer Time and in respect of which no
Conversion Price adjustment pursuant to this subsection (e) has been made,
exceeds 5% of the product of the Closing Price of the Common Stock at the Offer
Time multiplied by the number of shares of Common Stock outstanding (including
any tendered shares) at the Offer Time, the Conversion Price shall be reduced so
that the same shall equal the price determined by multiplying the Conversion
Price in effect immediately prior to the Offer Time by a fraction of which (x)
the numerator shall be (i) the product of the Closing Price of the Common Stock
at the Offer Time multiplied by the number of shares of Common Stock outstanding
(including any tendered shares) at the Offer Time minus (ii) the fair market
value (determined as aforesaid) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum specified in the terms
of the tender or exchange offer) of all shares validly tendered and not
withdrawn as of the Offer Time (the shares deemed so accepted, up to any such
maximum, being referred to as the "Purchased Shares") and (y) the denominator
shall be the product of (i) such Closing Price at the Offer Time multiplied by
(ii) such number of outstanding shares at the Offer Time minus the number of
Purchased Shares, such reduction to become effective immediately prior to the
opening of business on the day following the Offer Time. For purposes of this
subsection (e), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Corporation but shall
include shares issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock.
(f) Closing Price Determination. For the purpose of any computation under
subsections (c) and (d) of this Section B, the Closing Price of Common Stock on
any date shall be deemed to be the average of the Closing Prices for the five
consecutive Trading Days ending on the day in question (or if such day is not a
Trading Day, the next preceding Trading Day), provided, however, that (i) if the
"ex" date for any event (other than the issuance or distribution requiring such
computation) that requires an adjustment to the Conversion Price pursuant to
this Section occurs on or after the 20th Trading Day prior to the day in
question and prior to the "ex" date for the issuance or distribution requiring
such computation, the Closing Price for each Trading Day prior to the "ex" date
for such other event shall be adjusted by multiplying such Closing Price by the
same fraction which the Conversion Price is so required to be adjusted as a
result of such other event, (ii) if the "ex" date for any event (other than the
issuance or distribution requiring such computation) that requires an adjustment
to the Conversion Price pursuant to this Section occurs on or after the "ex"
date for the issuance or distribution requiring such computation and on or prior
to the day in question, the Closing Price for each Trading Day on and after the
"ex" date for such other event shall be adjusted by multiplying such Closing
Price by the reciprocal of the fraction by which the Conversion Price is so
required to be adjusted as a result of such other event, and (iii) if the "ex"
date for the issuance or distribution requiring such computation is on or prior
to the day in question, after taking into account any adjustment required
pursuant to clause (ii) of this proviso, the Closing Price for each Trading Day
on or after such "ex" date shall be adjusted by adding thereto the fair market
value on the day in question (as determined by the Board of Directors in a
manner consistent with any determination of such value for the purposes of
subsection (d) of this Section B) of the assets, evidences of indebtedness,
Equity Securities or subscription rights being distributed applicable to one
share of Common Stock as of the close of business on the day before such "ex"
date. For the purposes of any computation under subsection (e) of this Section
B, the Closing Price on any date shall be deemed to be the average of the daily
Closing Prices for the five consecutive Trading Days ending at the Offer Time;
provided, however, that if the "ex" date for any event (other than the tender or
exchange offer requiring such computation) that requires an adjustment to the
Conversion Price pursuant to this Section occurs on or after the date of
commencement of such tender or exchange offer and prior to the Offer Time for
such tender or exchange offer, the Closing Price for each Trading Day prior to
the "ex" date for such other event shall be adjusted by multiplying such Closing
Price by the same fraction by which the Conversion Price is so required to be
adjusted as a result of such other event. For purposes of this subsection (f),
the term "ex" date, (i) when used with respect to any issuance or distribution,
means the first date on which the Common Stock trades regular way on the NYSE or
on the relevant exchange or in the relevant market from which the Closing Price
was obtained without the right to receive such issuance or distribution, (ii)
when used with respect to any subdivision or combination of shares of Common
Stock, means the first date on which the Common Stock trades regular way on the
NYSE or such exchange or in such market after the time at which such subdivision
or combination becomes effective, and (iii) when used with respect to any tender
or exchange offer means the first date on which the Common Stock trades regular
way on the NYSE or such exchange or in such market after the Offer Time of such
tender or exchange offer.
(g) The Corporation may make such reductions in the Conversion Price, in
addition to those required by clauses (a), (b), (c), (d), (e) and (f) of this
Section B, as it considers to be advisable to avoid or diminish any income tax
to holders of Common Stock or rights to purchase Common Stock resulting from any
dividend or distribution of stock or from any event treated as such for income
tax purposes. Whenever the Conversion Price is reduced pursuant to the preceding
sentence, the Corporation shall mail to the holders of then-outstanding shares
of Series B Preferred Stock a notice of the reduction at least fifteen (15) days
prior to the date the reduced Conversion Price takes effect, and such notice
shall state the reduced Conversion Price and the period it will be in effect.
(h) No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least one percent (1%) in
the Conversion Price; provided, however, that any adjustments which by reason of
this subsection (h) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment.
(i) Notwithstanding any other provision of this Section B, no adjustment to
the Conversion Price shall reduce the Conversion Price below $0.25, and any such
purported adjustment shall instead reduce the Conversion Price to $0.25. The
Corporation hereby covenants not to take any action that would or does result in
any adjustment in the Conversion Price that, if made without giving effect to
the previous sentence, would cause the Conversion Price to be less than $0.25.
(j) Whenever the Conversion Price is adjusted as herein provided, a notice
stating that the Conversion Price has been adjusted and setting forth the
adjusted Conversion Price shall promptly be mailed by the Corporation to the
holders of the Series B Preferred Stock.
C. Organic Change.
(a) Corporation Survives. Upon the consummation of an Organic Change (other
than a transaction in which the Corporation is not the surviving entity), then
lawful provision shall be made as part of the terms of such transaction whereby
the terms hereof shall be modified, without payment of any additional
consideration by any holder, so as to provide that upon the conversion of shares
of Series B Preferred Stock following the consummation of such Organic Change,
the holder of Series B Preferred Stock shall have the right to acquire and
receive (in lieu of or in addition to the Conversion Shares acquirable and
receivable prior to the Organic Change), without payment of additional
consideration therefor, such securities, cash and other property as such holder
would have received if such holder had converted such shares of Series B
Preferred Stock into Common Stock immediately prior to such Organic Change.
Lawful provision also shall be made as part of the terms of the Organic Change
so that all other terms hereof shall remain in full force and effect following
such an Organic Change. The provisions of this subsection (a) shall similarly
apply to successive Organic Changes of the character described in this
subsection (a).
(b) Corporation Does Not Survive. The Corporation shall not enter into an
Organic Change that is a transaction in which the Corporation is not the
surviving entity unless lawful provision shall be made as part of the terms of
such transaction whereby the surviving entity shall issue new securities to each
holder of Series B Preferred Stock, without payment of any additional
consideration by such holder, with terms that provide that upon the conversion
of such securities, the holder of such securities shall have the right to
acquire and receive (in lieu of or in addition to the Conversion Shares
acquirable and receivable prior to the Organic Change), without payment of
additional consideration therefor, such securities, cash and other property (the
"New Securities") as such holder would have received if such holder had
converted such shares of Series B Preferred Stock into Common Stock immediately
prior to such Organic Change. The certificate or articles of incorporation or
other constituent document of the surviving entity shall provide for such
adjustments which, for events subsequent to the effective date of such
certificate or articles of incorporation or other constituent document, shall be
equivalent to the adjustments provided for in Section B of this Article IX. All
other terms of such New Securities shall be substantially equivalent to the
terms provided herein. The provisions of this subsection (b) shall similarly
apply to successive Organic Changes of the character described in of this
subsection (b).
D. Certain Events. If any event similar to or of the type contemplated by
the provisions of Section B or Section C of this Article IX, but not expressly
provided for by such provisions, occurs, then the Board of Directors of the
Corporation, will make an appropriate and equitable adjustment in the Conversion
Price so as to protect the rights of the holders of Series B Preferred Stock;
provided, that no such adjustment will decrease the number of Conversion Shares
issuable upon conversion of the Series B Preferred Stock.
E. Restriction on Actions Relating to Junior Preferred Stock. No action
shall be taken by the Corporation with respect to the Junior Preferred Stock,
including without limitation stock splits, stock dividends, stock combinations,
issuances below market and special dividends, which would require an adjustment
to the Conversion Price if such action were taken with respect to the Common
Stock, except pursuant to, and in accordance with, Section B or C of this
Article IX.
F. Notice of Approval Date. When and if the Approval Date shall occur, the
Corporation shall promptly mail or cause to be mailed a notice of such
occurrence to each holder of Series B Preferred Stock and Junior Preferred
Stock.
X. Additional Definitions
For the purposes of this Certificate of Designations of Series B Preferred
Stock, the following terms shall have the meanings indicated:
"Affiliate" has the meaning set forth in Rule 12b-2 under the Exchange Act
as in effect on the date of the Investment Agreement. The term "Affiliated" has
a correlative meaning. Notwithstanding the foregoing, for all purposes hereof,
the Investor, and each Person controlled by, controlling or under common control
with the Investor (each, a "TPG Person"), shall not be deemed an "Affiliate" of
any Designated Purchaser Person (as defined below), and no Designated Purchaser,
and no Person controlled by, controlling or under common control with such
Designated Purchaser (each, a "Designated Purchaser Person"), shall be deemed an
"Affiliate" of any TPG Person or any other Designated Purchaser Person, in any
such case solely as a consequence of this Agreement or the transactions
contemplated hereby.
"Approval Date" means the date, if any, on which the Corporation obtains
the Shareholder Approval.
"Beneficially Own" with respect to any securities means having "beneficial
ownership" of such securities (as determined pursuant to Rule 13d-3 under the
Exchange Act as in effect on the date of the Investment Agreement, except that a
Person shall be deemed to Beneficially Own all such securities that such Person
has the right to acquire whether such right is exercisable immediately or after
the passage of time). The terms "Beneficial Ownership" and "Beneficial Owner"
have correlative meanings. Notwithstanding the foregoing, for all purposes
hereof, no TPG Person shall be deemed to Beneficially Own any securities that
are held by any Designated Purchaser Person, and no Designated Purchaser Person
shall be deemed to Beneficially Own any securities that are held by any TPG
Person or any other Designated Purchaser Person, in any such case solely as a
consequence of the Investment Agreement or the transactions contemplated
thereby.
"Business Day" means any day, other than a Saturday, Sunday or a day on
which banking institutions in the State of New York are authorized or obligated
by law or executive order to close.
"Bylaws" means the Bylaws of the Corporation, as amended from time to time.
"Change of Control" shall be deemed to have occurred if (a) any person or
group (within the meaning of Rule 13d-5 under the Exchange Act as in effect on
February 12, 1998) shall own directly or indirectly, beneficially or of record,
shares representing more than 35% of the aggregate ordinary voting power
represented by the issued and outstanding Equity Securities of the Corporation,
other than any Person or Group that owned at least 5% of such Equity Securities
on the Closing Date (as such term is defined in the Credit Agreement as in
effect on the date of the Investment Agreement); (b) a majority of the seats
(other than vacant seats) on the board of directors of the Corporation shall at
any time be occupied by persons who were neither (i) nominated by the board of
directors of the Corporation nor (ii) appointed by directors so nominated; (c)
any change in control (or similar event, however denominated) with respect to
the Corporation shall occur under and as defined in any indenture or agreement
in respect of Indebtedness for borrowed money in excess of the aggregate
principal amount of $10,000,000 to which any Borrower (as such term is defined
in the Credit Agreement as in effect on the date of the Investment Agreement) or
any Guarantor (as such term is defined in the Credit Agreement as in effect on
the date of the Investment Agreement) is a party, other than the Existing Parent
Borrower Notes Indenture (as such term is defined in the Credit Agreement as in
effect on the date of the Investment Agreement) in connection with a Permitted
CBHS Sale (as such term is defined in the Credit Agreement as in effect on the
date of the Investment Agreement); or (d) a "Change in Control" or "Change of
Control" (or similar event) shall have occurred under the Credit Agreement or
the Senior Subordinated Notes, unless, in the case of a "Change of Control"
under the Indenture, the aggregate principal amount outstanding under the Senior
Subordinated Notes is less than $10,000,000. Notwithstanding the foregoing, no
event described above shall constitute a "Change of Control" if such event
resulted directly from any action taken by the Investor or any of its
Affiliates.
"Closing" shall have the meaning assigned to such term in the Investment
Agreement.
"Closing Price" with respect to a share of Common Stock on any day means,
subject to subsection (f) of Section B of Article IX if applicable, the last
reported sale price on that day or, in case no such reported sale takes place on
such day, the average of the last reported bid and asked prices, regular way, on
that day, in either case, as reported in the consolidated transaction reporting
system with respect to securities listed on the NYSE or, if the shares of Common
Stock are not listed on the NYSE, as reported in the principal consolidated
transaction reporting system with respect to securities listed on the principal
national securities exchange on which the shares of Common Stock are listed or,
if the shares of Common Stock are not listed on NYSE and not listed on any
national securities exchange, the last quoted price or, if not so quoted, the
average of the high bid and low asked prices on such other nationally recognized
quotation system then in use, or, if on any such day the shares of Common Stock
are not quoted on any such quotation system, the average of the closing bid and
asked prices as furnished by a professional market maker selected by the Board
of Directors in good faith making a market in the shares of Common Stock. If the
shares of Common Stock are not publicly held or so listed, quoted or publicly
traded, the "Closing Price" means the fair market value of a share of Common
Stock, as determined in good faith by the Board of Directors.
"Common Shares" means shares of Common Stock (or any successor security)
issued or issuable in respect of dividends on, or upon conversion of, shares of
Series A Preferred Stock.
"Conversion Price" shall mean $9.375, as adjusted from time to time
pursuant to Section B of Article IX hereof; provided, that in the event (A) the
Shareholder Approval is obtained by the Corporation on or prior to March 5,
2000, as of the day after the Approval Date, the Conversion Price shall equal
the product of (i) the Conversion Price in effect on the Approval Date, and (ii)
1.026666666667, or (B) the Shareholder Approval is not obtained by the
Corporation on or prior to March 5, 2000, as of March 6, 2000, the Conversion
Price shall equal the product of (i) the Conversion Price in effect on March 5,
2000 or in effect as of such later date, as the case may be, and (ii)
0.9733333333333, in each case as adjusted from time to time pursuant to Section
B of Article IX hereof.
"Conversion Shares" means (i) prior to the Approval Date, shares of Junior
Preferred Stock, and (ii) on and after the Approval Date, shares of Common
Stock, in each case, issued, or issuable upon, conversion of the Series B
Preferred Stock.
"Credit Agreement" means the Credit Agreement, dated as of February 12,
1998, among the Corporation, the banks and other financial institutions named
therein, and The Chase Manhattan Bank, as Administrative Agent, together with
all other documents entered into pursuant to or in connection with the Credit
Agreement, in each case, as the same may be amended, restated, supplemented,
extended, renewed or increased from time to time, replaced, substituted,
refunded or refinanced or otherwise modified from time to time, in whole or in
part, and any successive replacements, substitutions, refundings or
refinancings.
"Designated Purchaser" has the meaning set forth in the Investment
Agreement.
"Designated Purchaser Person" has the meaning set forth in the definition
of "Affiliate."
"Equity Securities" of any Person, means any and all common stock,
preferred stock and any other class of capital stock of, and any partnership or
limited liability company interests in, such Person or any other similar
interests of any Person that is not a corporation, partnership or limited
liability company.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder, from time to time.
"45-Trading Day Average Price" means the average of the Closing Prices per
share of Common Stock for the Trading Days in any period of 45 consecutive
Trading Days (a "45-Trading Day Reference Period"); provided, however, that in
the event that an adjustment to the Conversion Price takes effect pursuant to
Section B of Article IX hereof during the period used to compute such average,
the Closing Prices used to compute such average for all Trading Days ended prior
to the time such adjustment takes effect shall be similarly adjusted.
"45-Trading Day Reference Period" has the meaning set forth in the
definition of "45-Trading Day Average Price."
"Governmental Entity" means any government or political subdivision or
department thereof, any governmental or regulatory body, commission, board,
bureau, agency or instrumentality, or any court or arbitrator or alternative
dispute resolution body, in each case whether federal, state, local or foreign.
"Group" has the meaning set forth in Rule 13d-5 under the Exchange Act.
"Guarantee" means any direct or indirect obligation, contingent or
otherwise, to guarantee (or having the economic effect of guaranteeing)
Indebtedness in any manner, including, without limitation, any monetary
obligation to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness (whether arising by agreement to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise).
"Indebtedness" means, with respect to any Person, without duplication, (i)
all obligations of such Person for money borrowed, (ii) all obligations of such
Person evidenced by bonds, debentures, notes, or other similar instruments,
(iii) all obligations of such Person upon which interest charges are customarily
paid, (iv) all obligations of such Person under conditional sale or other title
retention agreements relating to property or assets purchased by such Person,
(v) all obligations of such Person issued or assumed as the deferred purchase
price of property or services (excluding (x) trade accounts payable and accrued
obligations incurred in the ordinary course of business and (y) deferred
earn-out and other performance-based payment obligations incurred in connection
with any Permitted Acquisition (as such term is defined in the Credit Agreement
as in effect on the date of the Investment Agreement) or any similar
transactions consummated prior to February 12, 1998), (vi) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the obligations secured thereby have
been assumed, (vii) all Guarantees by such Person of Indebtedness of others,
(viii) all capital lease obligations of such Person, (ix) all obligations
(determined on the basis of actual, not notional, obligations) of such Person in
respect of interest rate protection agreements, foreign currency exchange
agreements or other interest or exchange rate hedging arrangements and (x) all
obligations of such Person as an account party in respect of letters of credit
and bankers' acceptances issued in support of obligations that constitute
Indebtedness under any other clause of this definition (unless such obligations
are fully cash collateralized), provided that all obligations in respect of
letters of credit shall be deemed Indebtedness to the extent drawings thereunder
are unreimbursed (after any applicable grace period) regardless of the purpose
for which such letter of credit was issued. The Indebtedness of any Person shall
include the recourse Indebtedness of any partnership in which such Person is a
general partner. Notwithstanding the foregoing, no portion of Indebtedness that
becomes the subject of a defeasance (whether a legal defeasance or a "covenant"
or "in substance" defeasance) shall, at any time that such defeasance remains in
effect, be treated as Indebtedness for purposes hereof.
"Indenture" means the Indenture entered into between the Corporation and
the Marine Midland Bank, as Trustee, dated as of February 12, 1998, as the same
may be amended, restated, supplemented, extended, renewed or increased from time
to time, replaced, substituted, refunded or refinanced or otherwise modified
from time to time, in whole or in part, and any successive replacements,
substitutions, refundings or refinancings.
"Investment Agreement" means the Investment Agreement, dated as of July 19,
1999, by and between the Investor and the Corporation, as amended, supplemented
or otherwise modified from time to time.
"Investor" has the meaning set forth in the Investment Agreement.
"Investor Group" means, collectively, the Investor, the Designated
Purchasers, if any, and the respective Affiliates of such Persons.
"Investor Nominee" means a person designated for election to the Board of
Directors by the Investor pursuant to the Investment Agreement.
"Investor Sale Price" means with respect to any Investor Sale, the price
per Common Share paid in such sale; provided, that in the event shares of Series
A Preferred Stock are sold in such Investor Sale, the Investor Sale Price shall
equal the quotient of (A) the price per share of Series A Preferred Stock paid
in such Investor Sale, and (B) the number of Common Shares into which such share
of Series A Preferred Stock is convertible at the time of such sale.
"Law" means any law, treaty, statute, ordinance, code, rule, regulation,
judgment, decree, order, writ, award, injunction or determination of any
Governmental Entity.
"Lien" means any mortgage, pledge, lien , security interest, claim, voting
agreement, conditional sale agreement, title retention agreement, restriction,
option or encumbrance of any kind, character or description whatsoever.
"Make-Whole Conversion Shares" means, with respect to any Investor Sale,
the Conversion Shares represented by the shares of Series B Preferred Stock and
shares of Junior Preferred Stock included in such Investor Sale; provided, that
aggregate number of Make-Whole Conversion Shares with respect to such Investor
Sale shall not exceed the Sale Number with respect to such Investor Sale.
"NYSE" means the New York Stock Exchange, Inc.
"180-Day Average Price" means the average of the Closing Prices per share
of Common Stock for the Trading Days in any period of 180 consecutive calendar
days (a "180-Day Reference Period"); provided, however, that in the event that
an adjustment to the Conversion Price takes effect pursuant to Section B of
Article IX hereof during the period used to compute such average, the Closing
Prices used to compute such average for all Trading Days ended prior to the time
such adjustment takes effect shall be similarly adjusted.
"180-Day Reference Period" has the meaning set forth in the definition of
"180-Day Average Price."
"Organic Change" means, with respect to the Corporation, any transaction
(including without limitation any recapitalization, capital reorganization or
reclassification of any class of capital stock, any consolidation or
amalgamation of the Corporation with, or merger of the Corporation into, any
other Person, any merger of another Person into the Corporation (other than a
merger which does not result in a reclassification, conversion, exchange or
cancellation of outstanding shares of capital stock of the Corporation), any
sale or transfer or lease of all or substantially all of the assets of the
Corporation or any compulsory share exchange) pursuant to which any class of
capital stock of the Corporation is converted into the right to receive other
securities, cash or other property.
"Person" means any individual, corporation, company, association,
partnership, limited liability company, joint venture, trust or unincorporated
organization, or a government or any agency or political subdivision thereof.
"Reference Period" means a 45-Trading Day Reference Period or a 180-Day
Reference Period, as the case may be.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of July 19, 1999, by and between the Investor and the Corporation, as
amended, supplemented or otherwise modified from time to time.
"Regulatory Approvals" means any and all certificates, permits, licenses,
franchises, concessions, grants, consents, approvals, orders, registrations,
authorizations, waivers, variances or clearances from, or filings or
registrations with, Governmental Entities.
"Sale Number" means, with respect to any Investor Sale, the aggregate
number of Conversion Shares Beneficially Owned by the Selling Members prior to
such Investor Sale, multiplied by a fraction, the numerator of which is the sum
of (A) the aggregate number of Common Shares included in such Investor Sale,
plus (B) the aggregate number of Common Shares into which the shares of Series A
Preferred Stock included in such sale are convertible at the time of such sale,
and the denominator is the aggregate number of Common Shares Beneficially Owned
by the Selling Members prior to such Investor Sale.
"Securities Act" means the U.S. Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder, from time to time.
"Senior Subordinated Notes" means the Senior Subordinated Notes of the
Corporation issued pursuant to the Indenture.
"Shareholder Approval" means the approval by the stockholders of the
Corporation, in accordance with the General Corporation Law of the State of
Delaware and in accordance with and in satisfaction of Paragraph 312.00 of the
NYSE's Listed Company Manual and the related NYSE Rules and interpretations
thereof, of (i) the issuance of Common Stock in respect of accrued and unpaid
dividend obligations on the Series A Preferred Stock and Series B Preferred
Stock, (ii) the issuance of Common Stock upon the conversion or exchange of the
Series B Preferred Stock, and (iii) the vesting of voting rights in respect of
the Series B Preferred Stock, in each case in accordance with the terms hereof
and the Investment Agreement.
"Subsidiary" means as to any Person, any other Person of which more than
50% of the shares of the voting stock or other voting interests are owned or
controlled, or the ability to select or elect more than 50% of the directors or
similar managers is held, directly or indirectly, by such first Person or one or
more of its Subsidiaries or by such first Person and one or more of its
Subsidiaries; provided, however, that no Joint Venture (as such term is defined
in the Investment Agreement) shall be considered (i) a "Subsidiary" of the
Corporation or (ii) a "Subsidiary" of any Subsidiary of the Corporation.
"TPG Person" has the meaning set forth in the definition of "Affiliate."
"Trading Day" means any day on which the NYSE is open for trading, or if
the shares of Common Stock are not quoted on the NYSE, any day on which the
principal national securities exchange or national quotation system on which the
shares of Common Stock are listed, admitted to trading or quoted is open for
trading, or if the shares of Common Stock are not so listed, admitted to trading
or quoted, any Business Day.
"Two-Week Average Price" means the average of the Closing Prices per share
of Common Stock for the Trading Days in the two-calendar week period ending on
the last day of a Reference Period; provided, however, that in the event that an
adjustment to the Conversion Price takes effect pursuant to Section B of Article
IX hereof during the period used to compute such average, the Closing Prices
used to compute such average for all Trading Days ended prior to the time such
adjustment takes effect shall be similarly adjusted.
"Voting Securities" means the shares of Common Stock and any other
securities of the Corporation entitled to vote generally for the election of
directors.
XI. Miscellaneous
A. Notices. Any notice referred to herein shall be in writing and, unless
first-class mail shall be specifically permitted for such notices under the
terms hereof, shall be deemed to have been given upon personal delivery thereof,
upon transmittal of such notice by telecopy (with confirmation of receipt by
telecopy or telex) or five days after transmittal by registered or certified
mail, postage prepaid, addressed as follows:
(i) if to the Corporation, to its office at 6950 Columbia
Gateway Drive, Fourth Floor, Columbia, Maryland 21046 (Attention:
General Counsel) or to the transfer agent for the Series B Preferred
Stock;
(ii) if to a holder of the Series B Preferred Stock, to such
holder at the address of such holder as listed in the stock record
books of the Corporation (which may include the records of any transfer
agent for the Series B Preferred Stock); or
(iii) to such other address as the Corporation or such holder,
as the case may be, shall have designated by notice similarly given.
B. Reacquired Shares. Any shares of Series B Preferred Stock redeemed,
purchased or otherwise acquired by the Corporation, directly or indirectly, in
any manner whatsoever shall be retired and canceled promptly after the
acquisition thereof (and shall not be deemed to be outstanding for any purpose)
and, if necessary to provide for the lawful redemption or purchase of such
shares, the capital represented by such shares shall be reduced in accordance
with the Delaware General Corporation Law. All such shares of Series B Preferred
Stock shall upon their cancellation and upon the filing of an appropriate
certificate with the Secretary of State of the State of Delaware, become
authorized but unissued shares of Preferred Stock, without par value, of the
Corporation and may be reissued as part of another series of Preferred Stock,
without par value, of the Corporation subject to the conditions or restrictions
on issuance set forth herein.
C. Enforcement. Any registered holder of shares of Series B Preferred Stock
may proceed to protect and enforce its rights and the rights of such holders by
any available remedy by proceeding at law or in equity to protect and enforce
any such rights, whether for the specific enforcement of any provision in this
Certificate of Designations or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
D. Transfer Taxes. Except as otherwise agreed upon pursuant to the terms of
this Certificate of Designations, the Corporation shall pay any and all
documentary, stamp or similar issue or transfer taxes and other governmental
charges that may be imposed under the laws of the United States of America or
any political subdivision or taxing authority thereof or therein in respect of
any issue or delivery of Common Stock or Debentures on conversion or exchange
of, or other securities or property issued on account of, shares of Series B
Preferred Stock pursuant hereto or certificates representing such shares or
securities. The Corporation shall not, however, be required to pay any such tax
or other charge that may be imposed in connection with any transfer involved in
the issue or transfer and delivery of any certificate for Common Stock or
Debentures or other securities or property in a name other than that in which
the shares of Series B Preferred Stock so converted or exchanged, or on account
of which such securities were issued, were registered and no such issue or
delivery shall be made unless and until the Person requesting such issue has
paid to the Corporation the amount of any such tax or has established to the
satisfaction of the Corporation that such tax has been paid or is not payable.
E. Transfer Agent. The Corporation may appoint, and from time to time
discharge and change, a transfer agent for the Series B Preferred Stock. Upon
any such appointment or discharge of a transfer agent, the Corporation shall
send notice thereof by first-class mail, postage prepaid, to each holder of
record of shares of Series B Preferred Stock.
F. Record Dates. In the event that the Series B Preferred Stock shall be
registered under either the Securities Act or the Exchange Act, the Corporation
shall establish appropriate record dates with respect to payments and other
actions to be made with respect to the Series B Preferred Stock.
G. Subordination to Senior Subordinated Notes. By accepting a share of
Series B Preferred Stock or Debenture, the holder thereof shall be deemed to
have acknowledged and agreed that (a) such holder's right to receive payments in
respect of the Series B Preferred Stock or Debenture is subject and subordinated
in right of payment to the payment in full and discharge of all amounts (however
denominated) then due and payable under the Senior Subordinated Notes, and (b)
until payment in full of all such amounts (however denominated) under the Senior
Subordinated Notes has been made, no payment, whether directly or indirectly, by
exercise of any right of set off or otherwise in respect of the Series B
Preferred Stock or Debenture shall be made by the Corporation, and no deposit in
respect of the Series B Preferred Stock or Debenture shall be made pursuant to
the terms hereof. In the event that any payment by, or distribution of the
assets of, the Corporation of any kind or character (whether in cash, property
or securities, whether directly or indirectly, by exercise of any right of
set-off or otherwise and whether as a result of a bankruptcy proceeding with
respect to the Corporation or otherwise) shall be received by a holder of Series
B Preferred Stock at any time when such payment is prohibited by this paragraph,
such payment shall be held in trust for the benefit of, and shall be paid over
to, the holders of Senior Subordinated Notes as their interests may appear. The
preceding two sentences address the relative rights of holders of Series B
Preferred Stock or Debentures, on the one hand, and the holders of Senior
Subordinated Notes, on the other hand, and nothing in this Certificate of
Designations shall impair, as between the Corporation and the holders of Series
B Preferred Stock or Debentures, the obligation of the Corporation, which is
absolute and unconditional, to pay amounts due in respect of the Series B
Preferred Stock and Debentures in accordance with their terms. This Section G
shall not be construed to limit in any manner the subordination provisions set
forth in Section D of Article V hereof.
<PAGE>
IN WITNESS WHEREOF, this Certificate of Designations is executed on behalf
of the Corporation by its Chief Financial Officer and attested by its Assistant
Secretary, this [___] day of [____________], 1999.
MAGELLAN HEALTH SERVICES, INC.
By:_________________________________
Name: Cliff Donnelly
Title: Chief Financial Officer
[Corporate Seal]
ATTEST:
_________________________
<PAGE>
EXHIBIT C
Form of Junior Certificate of Designations
CERTIFICATE OF DESIGNATIONS
of
SERIES C JUNIOR PARTICIPATING PREFERRED STOCK
of
MAGELLAN HEALTH SERVICES, INC.
(Pursuant to Section 151 of the
General Corporation Law of the State of Delaware)
-----------------------------
Magellan Health Services, Inc., a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "Corporation"), hereby
certifies that the following resolutions were adopted by the Board of Directors
(the "Board of Directors") of the Corporation as required by Section 151 of the
General Corporation Law of the State of Delaware.
RESOLVED, that pursuant to the authority granted to and vested in the Board
of Directors of the Corporation in accordance with the provisions of the
Restated Certificate of Incorporation of the Corporation, as amended (the
"Certificate of Incorporation"), the Board of Directors hereby creates a series
of preferred stock, without par value, of the Corporation, and hereby states the
designation and number thereof, and fixes the voting powers, preferences and
relative, participating, optional and other special rights, and the
qualifications, limitations and restrictions thereof, as follows:
Series C Junior Participating Preferred Stock:
Section 1. Designation and Amount.
The designation of this series of shares shall be "Series C Junior
Participating Preferred Stock" (the "Series C Preferred Stock"), and the number
of shares constituting such series shall be . The number of shares of the Series
C Preferred Stock may be increased or decreased by resolution of the Board of
Directors; provided, however, that no decrease shall reduce the number of shares
of Series C Preferred Stock to a number less than the aggregate number of such
shares then outstanding.
Section 2. Dividends and Distributions.
(a) Subject to the rights of the holders of any shares of any series of
preferred stock of the Corporation (the "Preferred Stock") (or any similar
stock) ranking prior and superior to the Series C Preferred Stock with respect
to dividends, the holders of shares of Series C Preferred Stock, in preference
to the holders of the common stock, par value $0.25 per share (the "Common
Stock"), of the Corporation, and of any other class of stock of the Corporation
ranking junior to the Series C Preferred Stock, shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available for the purpose, dividends and other distributions, in an amount per
share (rounded to the nearest cent) equal to, subject to the provision for
adjustment hereinafter set forth, the amount of all cash dividends, and the
aggregate per share amount (payable in kind) of all non-cash dividends or other
distributions other than a dividend payable in shares of Common Stock, declared
on the Common Stock since the immediately preceding dividend or distribution
declared on the Series C Preferred Stock. In the event the Corporation shall
declare or pay any dividend on Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the amount per share to which holders of
shares of Series C Preferred Stock were entitled immediately prior to such event
under the preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which shall be the number of shares of Common Stock
outstanding immediately after such event and the denominator of which shall be
the number of shares of Common Stock that were outstanding immediately prior to
such event.
(b) The Corporation shall declare a dividend or distribution on the Series
C Preferred Stock as provided in paragraph (a) of this Section 2 immediately
after it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock).
(c) The Board of Directors may fix a record date for the determination of
holders of shares of Series C Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be not more
than 30 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. Except as set forth in Section 10 hereof, or as
otherwise from time to time required by law, holders of Series C Preferred Stock
shall have no voting rights and their consent shall not be required for taking
any corporate action.
Section 4. Certain Restrictions.
(a) Whenever dividends or distributions payable on the Series C Preferred
Stock as provided in Section 2 are in arrears, thereafter and until all unpaid
dividends and distributions, whether or not declared, on outstanding shares of
Series C Preferred Stock shall have been paid in full, the Corporation shall
not:
(i) declare or pay dividends, or make any other distributions, on any
shares of stock ranking junior (as to dividends) to the Series C Preferred
Stock;
(ii) declare or pay dividends, or make any other distributions, on any
shares of stock ranking on a parity (as to dividends) with the Series C
Preferred Stock, except dividends paid ratably on the Series C Preferred
Stock and all such parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which the holders of all such
shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares
of any stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up of the Corporation) to the Series C Preferred
Stock, provided, however, that the Corporation may at any time redeem,
purchase or otherwise acquire shares of any such junior stock in exchange
for shares of any stock of the Corporation ranking junior (as to dividends
and upon dissolution, liquidation or winding up of the Corporation) to the
Series C Preferred Stock or rights, warrants or options to acquire such
junior stock; or
(iv) redeem or purchase or otherwise acquire for consideration any
shares of Series C Preferred Stock, or any shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or winding
up of the Corporation) with the Series C Preferred Stock, except in
accordance with a purchase offer made in writing to all holders of such
shares of Series C Preferred Stock, or shares of Series C Preferred Stock
and parity stock, as the case may be, upon such terms as the Board of
Directors, after consideration of the respective dividend rates and other
relative rights and preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable treatment among
the respective series or classes.
(b) The Corporation shall not redeem or purchase or otherwise acquire
shares of Common Stock unless, in each case, within five days of such
transaction, the Corporation makes a purchase offer in writing to all holders of
shares of Series C Preferred Stock offering to purchase a number of shares of
Series C Preferred Stock equal to the number of shares of Common Stock redeemed
or purchased or otherwise acquired in such transaction at a price per share
equal to the amount of consideration paid for one share of Common Stock in such
transaction and otherwise on terms and conditions no less favorable to the
holders of Series C Preferred Stock than those applicable in such transaction
(as determined by the Board of Directors in good faith). In the event the
Corporation shall declare or pay any dividend on Common Stock payable in shares
of Common Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case (i) the number of shares of
Series C Preferred Stock which holders thereof were entitled to have the
Corporation offer to purchase immediately prior to such event under the
preceding sentence shall be adjusted by multiplying such number by a fraction,
the numerator of which shall be the number of shares of Common Stock outstanding
immediately after such event and the denominator of which shall be the number of
shares of Common Stock that were outstanding immediately prior to such event,
and (ii) the amount per share to which holders of shares of Series C Preferred
Stock were entitled immediately prior to such event under the preceding sentence
shall be adjusted by multiplying such amount by a fraction the numerator of
which shall be the number of shares of Common Stock outstanding immediately
prior to such event and the denominator of which shall be the number of shares
of Common Stock that were outstanding immediately after such event.
(c) The Corporation shall not, and shall not permit any Subsidiary of the
Corporation to, enter into any agreement with any Person providing for the
purchase or other acquisition by such Person (or any other Person) of shares of
Common Stock from any Person (other than the Corporation), whether pursuant to
tender offer, exchange offer or otherwise, unless, in each case, within five
days of the commencement of such transaction, such Person promptly makes a
purchase offer in writing to all holders of shares of Series C Preferred Stock
offering to purchase a number of shares of Series C Preferred Stock equal to the
number of shares of Common Stock purchased or otherwise acquired in such
transaction at a price per share equal to the amount of consideration paid for
one share of Common Stock in such transaction and otherwise on terms and
conditions no less favorable to the holders of Series C Preferred Stock than
those applicable in such transaction (as determined by the Board of Directors in
good faith). In the event the Corporation shall declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case (i) the number of shares of Series C Preferred Stock which holders
thereof were entitled to have redeemed or purchased or otherwise acquired
immediately prior to such event under the preceding sentence shall be adjusted
by multiplying such number by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which shall be the number of shares of Common Stock that were
outstanding immediately prior to such event, and (ii) the amount per share to
which holders of shares of Series C Preferred Stock were entitled immediately
prior to such event under the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which shall be the number
of shares of Common Stock outstanding immediately prior to such event and the
denominator of which shall be the number of shares of Common Stock that were
outstanding immediately after such event.
(d) The Corporation shall not permit any Subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (a) or, (b) or (c) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
(e) Notwithstanding the foregoing, this Section 4 shall not prohibit (i)
purchases of Equity Securities of the Corporation or any of its Subsidiaries
from executives and other management-level employees of the Corporation or any
of its Subsidiaries in connection with customary employment and severance
arrangements, or (ii) the acquisition, repurchase, exchange, conversion,
redemption or other retirement for value by the Corporation of any Equity
Securities of the Corporation in accordance with obligations in existence at the
time of original issuance of the Series A Preferred Stock.
Section 5. Reacquired Shares. Any shares of Series C Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
the preferred stock of the Corporation and may be reissued as part of a new
series of the preferred stock of the Corporation, subject to the conditions and
restrictions on issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be made (a)
to the holders of the Common Stock or of shares of any other stock of the
Corporation ranking junior, upon liquidation, dissolution or winding up of the
Corporation, to the Series C Preferred Stock unless, prior thereto, the holders
of shares of Series C Preferred Stock shall have received per share of Series C
Preferred Stock (i) an amount equal to declared and unpaid dividends and
distributions thereon, to the date of such payment, plus (ii) an aggregate
amount, subject to the provision for adjustment hereinafter set forth, equal to
the aggregate amount to be distributed per share to holders of shares of Common
Stock, or (b) to the holders of shares of stock ranking on a parity upon
liquidation, dissolution or winding up of the Corporation with the Series C
Preferred Stock, except distributions made ratably on the Series C Preferred
Stock and all such parity stock in proportion to the total amounts to which the
holders of all such shares are entitled upon such liquidation, dissolution or
winding up. In the event the Corporation shall declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the aggregate amount per share to which holders of shares of Series C
Preferred Stock were entitled immediately prior to such event under clause
(a)(ii) of the preceding sentence shall be adjusted by multiplying such amount
by a fraction the numerator of which shall be the number of shares of Common
Stock outstanding immediately after such event and the denominator of which
shall the number of shares of Common Stock that were outstanding immediately
prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation, merger, combination, recapitalization or other
transaction in which shares of Common Stock are converted into, exchanged for or
changed into other stock or securities, cash and/or any other property, then in
any such case each share of Series C Preferred Stock shall at the same time be
similarly converted into, exchanged for or changed into an amount per share
(subject to the provision for adjustment hereinafter set forth) equal to the
aggregate amount of stock, securities, cash and/or any other property (payable
in kind), as the case may be, into which or for which each share of Common Stock
is converted, exchanged or changed. In the event the Corporation shall declare
or pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount set forth in the preceding sentence
with respect to the conversion, exchange or change of shares of Series C
Preferred Stock shall be adjusted by multiplying such amount by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding
immediately after such event and the denominator of which shall be the number of
shares of Common Stock that were outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series C Preferred Stock shall not
be redeemable by the Corporation.
Section 9. Rank. The Series C Preferred Stock shall rank, with respect to
the payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up of the Corporation, junior to all other series of
Preferred Stock (unless the terms of any such series shall provide otherwise)
and senior to the Common Stock.
Section 10. Amendment. Without the consent or affirmative vote of the
holders of at least a majority of the outstanding shares of Series C Preferred
Stock, voting separately as a class, the Corporation shall not (i) amend, alter
or repeal any provision of the Certificate of Incorporation or the Bylaws, if
the amendment, alteration or repeal alters or changes the powers, preferences or
special rights of the Series C Preferred Stock so as to affect them adversely,
or (ii) authorize or take any other action if such action alters or changes any
of the rights of the Series C Preferred Stock in any respect or otherwise would
be inconsistent with the provisions of this Certificate of Designations and the
holders of any class or series of the capital stock of the Corporation is
entitled to vote thereon.
Section 11. Fractional Shares. Series C Preferred Stock may be issued in
fractions of a share which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series C Preferred Stock.
Section 12. Definitions. The following terms shall have the following
definitions:
"Equity Securities" of any Person, means any and all common stock,
preferred stock and any other class of capital stock of, and any
partnership or limited liability company interests in, such Person or any
other similar interests of any Person that is not a corporation,
partnership or limited liability company.
"Investment Agreement" means the Investment Agreement, dated as of
July 19, 1999, by and between the Investor and the Corporation, as amended,
supplemented or otherwise modified from time to time.
"Series A Preferred Stock" the Series A Cumulative Convertible
Preferred Stock, without par value, of the Corporation.
"Subsidiary" means as to any Person, any other Person of which more
than 50% of the shares of the voting stock or other voting interests are
owned or controlled, or the ability to select or elect more than 50% of the
directors or similar managers is held, directly or indirectly, by such
first Person or one or more of its Subsidiaries or by such first Person and
one or more of its Subsidiaries; provided, however, that no Joint Venture
(as such term is defined in the Investment Agreement) shall be considered
(i) a "Subsidiary" of the Corporation or (ii) a "Subsidiary" of any
Subsidiary of the Corporation.
"Person" means any individual, corporation, company, association,
partnership, limited liability company, joint venture, trust,
unincorporated organization, or governmental entity.
IN WITNESS WHEREOF, this Certificate of Designations is executed on behalf
of the Corporation by its Chief Financial Officer and attested by its Secretary
this [ ] day of [_____], 1999.
MAGELLAN HEALTH SERVICES, INC.
By:________________________________
Name: Cliff Donnelly
Title: Chief Financial Officer
[Corporate Seal]
ATTEST:
_________________________
<PAGE>
EXHIBIT F
Form of Escrow Agreement
THIS ESCROW AGREEMENT, dated as of the ____ day of ___________, 1999 (this
"Agreement"), by and among MAGELLAN HEALTH SERVICES, INC., a Delaware
corporation (the "Company"); TPG MAGELLAN LLC, a Delaware limited liability
company (the "Investor"); and SUNTRUST BANK, ATLANTA, a Georgia banking
corporation, as escrow agent (the "Escrow Agent");
BACKGROUND
----------
A. 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, the shares of the Company's capital stock
referred to therein. The shares of the Company's capital stock to be sold to the
Investor pursuant to the Investment Agreement include 16,362 shares (which
number of shares is subject to adjustment as described in the Investment
Agreement) of the Company's Series B Cumulative Convertible Preferred Stock,
without par value (the "Series B Preferred Stock"). Pursuant to the terms of the
Investment Agreement, the issuance of shares of Series B Preferred Stock to the
Investor is dependent upon the satisfaction of certain conditions set forth in
the Investment Agreement.
B. Pursuant to the Investment Agreement, the Investor has agreed to deposit
the purchase price for the Series B Preferred Stock into escrow pending the
Company's issuance of such shares pursuant to the terms of the Investment
Agreement and the Company has agreed that such proceeds shall be held in escrow
pursuant to the terms of this Agreement.
C. The Escrow Agent is willing to act as escrow agent under this Agreement
and to hold and distribute the Escrow Fund in accordance with the terms and
conditions set forth herein.
AGREEMENT
---------
In consideration of the premises and the mutual promises and agreements
contained herein, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Appointment of Escrow Agent. The Company and the Investor hereby
designate and appoint Escrow Agent to serve as escrow agent hereunder. The
Escrow Agent hereby confirms its agreement to act as escrow agent under the
specific terms, conditions and provisions of this Agreement and no additional
duties or obligations shall be implied hereunder.
2. Definitions.
The Company, the Investor and the Escrow Agent are each referred to herein
as a "Party" and collectively as the "Parties." Capitalized terms used but not
otherwise defined in this Agreement shall have the meanings ascribed to such
terms in the Investment Agreement.
3. Escrow Fund.
3.1 Escrow Fund. Simultaneously with the execution of this Agreement, the
Investor has delivered to the Escrow Agent SIXTEEN MILLION THREE
HUNDRED SIXTY TWO THOUSAND FIVE HUNDRED DOLLARS ($16,362,500) by wire
transfer of immediately available funds (the "Escrow Fund"). The
Escrow Agent shall invest the Escrow Fund as instructed by the Company
in writing from time to time in [ list of permitted investments
subject to discussion-- (a) direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by,
the United States of America or by any agency, instrumentality or
sponsored corporation thereof to the extent such obligations are rated
at least A or the equivalent thereof by Standard & Poor's Ratings
Group ("S&P") or at least A-2 or the equivalent thereof by Moody's
Investors Service, Inc. ("Moody's"), in each case maturing within one
year from the date of acquisition thereof; (b) investments in
commercial paper maturing within 360 days from the date of acquisition
thereof and (i) having, at such date of acquisition, a rating from S&P
of A-1 or from Moody's of P-1 or (ii) unconditionally guaranteed by
any industrial or financial company having, at such date of
acquisition, (A) a short-term commercial paper rating of at least A-1
or the equivalent thereof by S&P or at least P-1 or the equivalent
thereof by Moody's or (B) a long-term debt rating of at least A or the
equivalent thereof by S&P or at least A2 or the equivalent thereof by
Moody's; (c) investments in certificates of deposit, banker's
acceptances and demand and time deposits maturing within one year from
the date of acquisition thereof issued or guaranteed by or placed
with, and money market deposit accounts or overnight bank deposits
issued, sponsored or offered by, any domestic office of any commercial
bank organized under the laws of the United States of America or any
State thereof that has a combined capital and surplus and undivided
profits of not less than $250,000,000; (d) repurchase obligations with
a term of not more than 92 days for, and secured by, underlying
securities of the types described in clauses (a) through (c) above
entered into with a bank meeting the qualifications described in
clause (c) above; or (e) readily marketable direct obligations issued
by any state of the United States of America or any political
subdivision thereof having one of the two highest rating categories
obtainable from either Moody's or S&P, in each case maturing within
one year from the date of acquisition thereof, with the income and
investment earnings from such invested cash being held by the Escrow
Agent as part of the Escrow Fund. The Parties agree that the income
from such invested cash shall be recognized as income for federal,
state and local tax purposes by the entity that receives the income.
3.2 Disbursement of the Escrow Fund. The Escrow Fund shall secure the
obligation of the Investor to consummate the purchase of shares of the
Series B Preferred Stock pursuant to the Investment Agreement and the
obligation of the Company to return the Escrow Fund in the event that
the shares of Series B Preferred Stock are not issued in accordance
with the Investment Agreement. Accordingly, the Escrow Agent shall
disburse the Escrow Fund (including any interest income or investment
earnings thereon) (i) to the Company by wire transfer of immediately
available funds to the Company's account at First Union National Bank,
ABA No. 061000227, for credit to Account No. 2080000077640, within one
business day following receipt of a notice signed by both the Company
and the Investor stating that one of the conditions to the issuance of
the Series B Preferred Stock set forth in the third sentence of
Section 2.01(b) of the Investment Agreement has been satisfied and
that the Company has issued such shares of Series B Preferred Stock to
the Investor or (ii) to the Investor by wire transfer of immediately
available funds to the Investor's account at ______________, ABA No.
________________, for credit to Account No. ______________ within one
business day following receipt of a notice signed by both the Company
and the Investor stating that the conditions for the delivery of the
Escrow Fund to the Company set forth in the first sentence of Section
2.01(b) of the Investment Agreement have not been satisfied and that,
therefore, the Series B Preferred Stock will not be issued to the
Investor pursuant to the Investment Agreement.
3.3 Termination of Escrow Fund. The escrow provided for hereunder shall
terminate upon the disbursement of the Escrow Fund pursuant to Section
3.2.
4. Escrow Agent.
4.1 Duties. In performing its duties under this Agreement or upon the
claimed failure to perform its duties hereunder, the Escrow Agent
shall have no liability except for the Escrow Agent's willful
misconduct or gross negligence. The Escrow Agent's sole responsibility
shall be for the safekeeping and disbursement of the Escrow Fund in
accordance with the terms of this Agreement. The Escrow Agent shall
have no implied duties or obligations and shall not be charged with
knowledge or notice of any fact or circumstance not specifically set
forth herein. The Escrow Agent shall be entitled to rely upon and
shall be protected in acting upon any request, instructions, statement
or other instrument, not only as to its due execution, validity and
effectiveness, but also as to the truth and accuracy of any
information contained therein, which the Escrow Agent shall in good
faith believe to be genuine, to have been signed or presented by the
person or parties purporting to sign the same and to conform to the
provisions of this Agreement. In no event shall the Escrow Agent be
liable for incidental, indirect, special, consequential or punitive
damages. The Escrow Agent shall not be obligated to take any legal
action or to commence any proceeding in connection with the Escrow
Fund, any account in which the Escrow Fund is deposited, this
Agreement, or to appear in, prosecute or defend any such legal action
or proceedings. The Escrow Agent may consult outside legal counsel
selected by it in the event of any dispute or question as to the
construction of any of the provisions hereof or of any other agreement
or of its duties hereunder, and shall incur no liability and shall be
fully protected from any liability whatsoever in acting in accordance
with the written opinion or instruction of such counsel. The Company
shall promptly pay, upon demand, the reasonable fees and expenses of
any such counsel. The Escrow Agent shall have no obligations or
responsibilities in connection with the Investment Agreement, the
transactions contemplated by the Investment Agreement or any other
agreement between the parties, other than as set forth in this
Agreement.
5. Indemnification.
5.1 Generally. From and at all times after the date of this Escrow
Agreement, the Company shall, to the fullest extent permitted by law
and to the extent provided herein, indemnify and hold harmless the
Escrow Agent and each director, officer, employee, attorney, agent and
affiliate of the Escrow Agent (collectively, the "Indemnified
Parties") against any and all actions, claims (whether or not valid),
losses, damages, liabilities, costs and expenses of any kind or nature
whatsoever (including, without limitation, reasonable attorneys' fees,
costs and expenses) incurred by or asserted against any of the
Indemnified Parties from and after the date hereof, whether direct,
indirect or consequential, as a result of or arising from or in any
way relating to any claim, demand, suit, action or proceeding
(including any inquiry or investigation) by any person, whether
threatened or initiated, asserting a claim for any legal or equitable
remedy against any person under any statute or regulation, including,
but not limited to, any federal or state securities laws, or under any
common law or equitable cause or otherwise, arising from or in
connection with the negotiation, preparation, execution, performance
or failure of performance of this Escrow Agreement or any transactions
contemplated herein, whether or not any such Indemnified Party is a
party to any such action, proceeding, suit or the target of any such
inquiry or investigation; provided, however, that no Indemnified Party
shall have the right to be indemnified hereunder for any liability
finally determined by a court of competent jurisdiction, subject to no
further appeal, to have resulted solely from the gross negligence or
willful misconduct of such Indemnified Party. If any such action or
claim shall be brought or asserted against any Indemnified Party, such
Indemnified Party shall promptly notify the Company in writing, and
the Company shall assume the defense thereof, including the employment
of counsel and the payment of all expenses. Such Indemnified Party
shall, in its sole discretion, have the right to employ separate
counsel in any such action and to participate in the defense thereof,
and the fees and expenses of such counsel shall be paid by such
Indemnified Party unless (i) the Company agrees to pay such fees and
expenses, or (ii) the Company shall fail to assume the defense of such
action or proceeding or shall fail, in the reasonable discretion of
such Indemnified Party, to employ counsel reasonably satisfactory to
the Indemnified Party in any such action or proceeding, or (iii) the
named parties to any such action or proceeding (including any
impleaded parties) include both the Indemnified Party and the Company,
and the Indemnified Party shall have been advised by counsel that
there may be one or more legal defenses available to it which are
different from or additional to those available to the Company. All
such fees and expenses payable by the Company pursuant to the
foregoing sentence shall be paid from time to time as incurred, both
in advance of and after the final disposition of such action or claim.
All of the foregoing losses, damages, costs and expenses of the
Indemnified Parties shall be payable by the Company upon demand by
such Indemnified Party. The obligations of the Company under this
Section 5.1 shall survive any termination of this Agreement and the
resignation or removal of the Escrow Agent.
The Parties agree that neither the payment by the Company of any claim by
the Escrow Agent for indemnification hereunder nor the disbursement of any
amounts to the Escrow Agent from the Escrow Fund in respect of a claim by the
Escrow Agent for indemnification shall impair, limit, modify, or affect, as
between the Company and the Investor, the respective rights and obligations of
the Company, on the one hand, and the Investor, on the other hand, under this
Agreement. The Company and the Investor agree among themselves that any
obligation for indemnification under this Section 5.1 shall be borne by the
Company unless the loss, damage, liability, cost or expense against which the
Escrow Agent is entitled to indemnification, was caused by the gross negligence
or willful misconduct of the Investor or by actions taken by the Investor that
constitute a breach of or default under the Investment Agreement or the other
Transaction Agreements, in which event the Investor shall be responsible for
such loss, damage, liability, cost or expense, to the extent so caused by the
Investor. The causation of any loss, damage, liability, cost or expense shall be
determined by mutual agreement, arbitration (if both the Company and the
Investor agree in writing to submit the dispute to arbitration) or litigation.
5.2 Disputes. If, at any time, there shall exist any dispute between the
Company and the Investor with respect to the holding or disposition of
any portion of the Escrow Fund or any other obligations of the Escrow
Agent hereunder, or if at any time the Escrow Agent is unable to
determine, to the Escrow Agent's sole satisfaction, the proper
disposition of any portion of the Escrow Fund or the Escrow Agent's
proper actions with respect to its obligations hereunder, or if the
Company and the Investor have not, within 30 days of the furnishing by
the Escrow Agent of a notice of resignation pursuant to Section 5.3
below, appointed a successor escrow agent to act hereunder, then the
Escrow Agent may, in its sole discretion, take either or both of the
following actions:
(i) suspend the performance of any of its obligations under this
Agreement until such dispute or uncertainty shall be resolved to
the sole satisfaction of the Escrow Agent or until a successor
escrow agent shall have been appointed (as the case may be);
(ii) petition (by means of an interpleader action or any other
appropriate method) any court of competent jurisdiction in New
York City, for instructions with respect to such dispute or
uncertainty, and pay into or deposit with such court all disputed
Escrow Funds held by it in the Escrow Fund for holding and
disposition in accordance with the instructions of such court.
The Escrow Agent shall have no liability to the Company or the Investor or
any other person with respect to any such suspension of performance or
disbursement into court, specifically including any liability that may arise, or
be alleged to have arisen, out of or as a result of any delay in the
disbursement of funds held in the Escrow Fund or any delay in or with respect to
any other action required or requested of the Escrow Agent.
5.3 Resignation of Escrow Agent. The Escrow Agent may resign from the
performance of its duties hereunder at any time by giving ten days'
prior written notice to the Company and the Investor or may be
removed, with or without cause, by the Company and the Investor,
acting jointly, at any time by the giving of ten days' prior written
notice to the Escrow Agent. Such resignation or removal shall take
effect upon the appointment of a successor escrow agent as provided
herein. Upon any such notice of resignation or removal, the Company
and the Investor, acting jointly, shall appoint a successor escrow
agent hereunder, which shall be a commercial bank, trust company or
other financial institution with a combined capital and surplus in
excess of $100,000,000. Upon the acceptance in writing of any
appointment as Escrow Agent hereunder by a successor escrow agent,
such successor escrow agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the
retiring Escrow Agent, and the retiring Escrow Agent shall be
discharged from its duties and obligations under this Escrow
Agreement, but shall not be discharged from any liability for actions
taken as Escrow Agent hereunder prior to such succession. After any
retiring Escrow Agent's resignation or removal, the provisions of this
Escrow Agreement shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Escrow Agent under this Escrow
Agreement.
5.4 Receipt. By its execution and delivery of this Agreement, the Escrow
Agent acknowledges receipt of the Escrow Fund.
5.5 Fees. The Company shall compensate the Escrow Agent for all its
services hereunder in accordance with Schedule I attached hereto and,
in addition, shall reimburse the Escrow Agent for all of its
reasonable out-of-pocket expenses, including attorneys' fees, travel
expenses, telephone and facsimile transmission costs, postage
(including express mail and overnight delivery charges), copying
charges and the like. All of the compensation and reimbursement
obligations set forth in this Section 5.5 shall be payable upon demand
by the Escrow Agent and, with respect to the Escrow Agent, shall be an
obligation of the Company. The obligations of the Company under this
Section 5.5 shall survive any termination of this Agreement and the
resignation or removal of the Escrow Agent.
6. Miscellaneous.
6.1 Notices. All notices, communications and deliveries hereunder shall be
made in writing signed by or on behalf of the party making the same
and shall be delivered personally or by telecopy transmission or sent
by registered or certified mail (return receipt requested) or by any
national overnight courier service (with postage and other fees
prepaid) as follows:
If to the Company Magellan Health Services, Inc.
6950 Columbia Gateway Drive
Fourth Floor
Columbia, Maryland 210146
Attn: General Counsel
Telephone No. 410/953-1258
Facsimile No. 410/953-5215
EIN: 58-107693
with a copy (which shall not constitute notice) to:
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303
Attn: Philip A. Theodore
Telephone No. 404/572-4676
Facsimile No. 404/572-5147
If to the Investor to: TPG Magellan LLC.
201 Main Street
Suite 2420
Fort Worth, Texas 76102
Attention: Jonathan J. Coslet
Senior Vice President
Telephone No. 415/743-1527
Facsimile No. 415/743-1501
EIN: ________________
with a copy (which shall not constitute notice) to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
Attention: Michael A. Gerstenzang, Esq.
Telephone No. 212/225-2000
Facsimile No. 212/225-3999
To Escrow Agent: SunTrust Bank, Atlanta
Corporate Trust Department
3495 Piedmont Road
Building 10, Suite 810
Atlanta, Georgia 30305
Attention: Ronald C. Painter
Telephone No.: 404/240-1932
Telecopy No.: 404/ 240-2030
or to such other representative or at such other address of a Party as such
Party hereto may furnish to the other Parties in writing. Any such notice,
communication or delivery shall be deemed given or made (a) on the date of
delivery if delivered in person (by courier service or otherwise), (b) upon
transmission by facsimile if successful transmission is confirmed by the
facsimile machine of the party sending the notice and if the transmission is
made during regular business hours, or if not, the next business day, (c) on the
fifth (5th) business day after it is mailed by registered or certified mail, or
(d) on the next day if sent for next day delivery to a domestic address by a
recognized overnight delivery service.
6.2 Time of the Essence; Computation of Time. Time is of the essence for
each and every provision of this Agreement. Whenever the last day for
the exercise of any privilege or the discharge of any duty under this
Agreement shall fall upon a Saturday, Sunday or any date on which
banks in Georgia are closed, the Party having such privilege or duty
may exercise such privilege or discharge such duty on the next
succeeding day which is a regular business day.
6.3 Binding Effect. This Agreement shall inure to the benefit of and shall
be binding upon the parties hereto and their respective successors and
assigns.
6.4 Headings. The headings of the Sections of this Agreement are inserted
for reference purposes only and shall not affect the meaning or
interpretation of any provisions of this Agreement.
6.5 Waiver. Any party may, at its option, waive in writing any or all of
the conditions herein contained to which its obligations hereunder are
subject. No waiver of any provision of this Agreement, however, shall
constitute a waiver of any other provision (whether or not similar),
nor shall such waiver constitute a continuing waiver unless otherwise
expressly provided.
6.6 Construction. The provisions of this Agreement shall be construed
according to their fair meaning and neither for nor against any party
hereto irrespective of which Party caused such provisions to be
drafted. Each of the Parties acknowledge that it has been represented
by an attorney in connection with the preparation and execution of
this Agreement.
6.7 No Limitation. The Parties agree that the rights and remedies of any
Party under this Agreement shall not operate to limit any other rights
and remedies otherwise available to any Party under the Investment
Agreement.
6.8 Reliance on Counsel and Other Advisors. Each Party has consulted such
legal, financial, technical or other expert as it deems necessary or
desirable before entering into this Agreement. Each Party represents
and warrants that it has read, knows, understands and agrees with the
terms and conditions of this Agreement. No Party has relied upon any
oral representation of any other Party in entering into this
Agreement.
6.9 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all
of which together shall constitute one and the same instrument.
6.10 Severability. It is the desire and intent of the Parties hereto that
the provisions of this Agreement be enforced to the fullest extent
permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, if any
particular provision of this Agreement shall be adjudicated by a court
of competent jurisdiction to be invalid, prohibited or unenforceable
for any reason, such provision, as to such jurisdiction, shall be
ineffective, without invalidating the remaining provisions of this
Agreement or affecting the validity or enforceability of this
Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction. Notwithstanding the foregoing, if
such provision could be more narrowly drawn so as not to be invalid,
prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
6.11 Governing Law and Choice of Forum. THIS AGREEMENT WILL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW
YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICTING
PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN
THE STATE OF NEW YORK TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING,
THE INTERNAL LAW OF THE STATE OF NEW YORK WILL CONTROL THE
INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER SUCH
JURISDICTION'S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE
SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.
The Parties hereto agree that the appropriate and exclusive forum for
any disputes arising out of this Agreement shall be the United States
District Court for the Southern District of New York, and, if such
court will not hear any such suit, the courts of the state of the
Company's incorporation, and the parties hereto irrevocably consent to
the exclusive jurisdiction of such courts, and agree to comply with
all requirements necessary to give such courts jurisdiction. The
Parties hereto further agree that the Parties will not bring suit with
respect to any dispute arising out of this Agreement except as
expressly set forth below for the execution or enforcement of
judgment, in any jurisdiction other than the above specified courts.
Each of the Parties hereto irrevocably consents to the service of
process in any action or proceeding hereunder by the mailing of copies
thereof by registered or certified airmail, postage prepaid, to the
address specified in Section 6.1 hereof. The foregoing shall not limit
the rights of any Party hereto to serve process in any other manner
permitted by the law or to obtain execution of judgment in any other
jurisdiction. The Parties further agree, to the extent permitted by
law, that final and unappealable judgment against any of them in any
action or proceeding contemplated above shall be conclusive and may be
enforced in any other jurisdiction within or outside the United States
by suit on the judgment, a certified or exemplified copy of which
shall be conclusive evidence of the fact and the amount of
indebtedness. The Parties agree to waive any and all rights that they
may have to a jury trial with respect to disputes arising out of this
Agreement.
6.12 Purchase of Securities. The Escrow Agent and any stockholder,
director, officer or employee of the Escrow Agent may buy, sell, and
deal in any of the securities of the Company or the Investor and
become pecuniarily interested in any transaction in which the Company
or the Investor may be interested, and contract and lend money to the
Company or the Investor and otherwise act as fully and freely as
though it were not Escrow Agent under this Agreement. Nothing herein
shall preclude the Escrow Agent from acting in any other capacity for
the Company or the Investor or for any other entity.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of the date first above written.
MAGELLAN HEALTH SERVICES, INC.
By:_______________________________
Name:
Title:
TPG MAGELLAN LLC
By:_______________________________
Name:
Title:
SUNTRUST BANK, ATLANTA,
as Escrow Agent
By:_______________________________
Ronald C. Painter
Vice President
<PAGE>
SCHEDULE I
----------
Magellan Health Services, Inc.,
TPG Magellan LLC, and
SunTrust Bank, Atlanta, as Escrow Agent
ESCROW AGENT FEES
Annual Escrow Agent Fee: $3,000.00
The escrow agent fee for the term of this Escrow Agreement is due at signing.
Out of pocket expenses such as, but not limited to, postage, courier, insurance,
long distance telephone, stationery, travel, legal or accounting, etc., will be
billed at cost.
These fees do not include extraordinary services which will be priced according
to time and scope of duties.
It is acknowledged that the schedule of fees shown above are acceptable for the
services mutually agreed upon and the undersigned authorizes SunTrust Bank,
Atlanta to perform these services.
All escrow agent fees and expense reimbursements shall be paid by the Company.
EXHIBIT 2
---------
REGISTRATION RIGHTS AGREEMENT
dated as of July 19, 1999
between
MAGELLAN HEALTH SERVICES, INC.
and
TPG MAGELLAN LLC
<PAGE>
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.
6950 Columbia Gateway Drive
Fourth Floor
Columbia, MD 21046
Attention: General Counsel
with copies to:
King & Spalding
191 Peachtree Street
Atlanta, GA 30303-1763
Attention: Philip A. Theodore
(b) if to the Investor:
TPG Magellan LLC
201 Main Street
Suite 2420
Fort Worth, Texas 76102
Attention: Jonathan J. Coslet
with copies to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
Facsimile: (212) 225-3999
Attention: Michael A. Gerstenzang, 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.
<PAGE>
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/ CLIFFORD W. DONNELLY
----------------------------------
Name: Clifford W. Donnelly
Title: Executive Vice President and Chief
Financial Officer
TPG MAGELLAN LLC
By: /s/ JONATHAN J. COSLET
----------------------------------
Name: Jonathan J. Coslet
Title: Senior Vice President
