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As filed with the Securities and Exchange Commission on February 12, 1999.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MAGELLAN HEALTH SERVICES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 58-1076937
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
3414 PEACHTREE ROAD, N.E., SUITE 1400
ATLANTA, GA 30326
(Address of principal executive offices)
MAGELLAN HEALTH SERVICES, INC. 1998 STOCK OPTION PLAN
(Full title of the plan)
DAVID J. HANSEN
VICE PRESIDENT AND GENERAL COUNSEL
MAGELLAN HEALTH SERVICES, INC.
3414 PEACHTREE ROAD, N.E., SUITE 1400
ATLANTA, GA 30326
(Name and address of agent for service)
(404) 841-9200
(Telephone number, including area code, of agent for service)
Copies to:
JEFFREY T. HUDKINS
VICE PRESIDENT AND CONTROLLER
MAGELLAN HEALTH SERVICES, INC.
3414 PEACHTREE ROAD, N.E., SUITE 1400
ATLANTA, GA 30326
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered(1) per share(2) price(2) fee
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<S> <C> <C> <C> <C>
Common Stock, 1,000,000 $8.34 $8,237,228 $2,289.95
par value $0.25
per share
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(1) In addition, pursuant to Rule 416 (a), this Registration Statement also
covers an indeterminate number of additional shares that may be offered
and issued in accordance with the terms of the 1998 Stock Option Plan
to prevent dilution as a result of stock splits and stock dividends or
similar transactions.
(2) Shares of Common Stock being registered with respect to the 1998 Stock
Option Plan consist of 629,650 shares having a weighted average
exercise price of $8.34 per share, and 370,350 shares for which the
offering price is not known. Pursuant to Rule 457(h)(1), the aggregate
offering price of the 370,350 shares for which the offering price is
not known has been calculated pursuant to Rule 457(c) on the basis of
the average of the high and low sales prices of the Common Stock on the
New York Stock Exchange on February 8, 1999.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed by Magellan Health Services,
Inc. (the "Registrant") with the Securities and Exchange Commission hereby are
incorporated by reference into this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended September 30, 1998;
(b) All reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
since September 30, 1998; and
(c) The description of the Registrant's Common Stock, par value $0.25
per share, contained in the Registrant's registration statement on Form 8-A,
effective on December 27, 1996 under the Exchange Act, including any amendment
or report filed for the purpose of updating such description.
All documents filed by the Registrant subsequent to the date of this
Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act and prior to the filing of a post-effective amendment which
indicates that all securities offered hereunder have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
David J. Hansen, Vice President and General Counsel of the Registrant,
rendered the opinion (attached as Exhibit 5 hereto) as to the legality of the
securities registered under this Registration Statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is a Delaware corporation. Section 145 of the Delaware
General Corporation Law (the "DGCL") provides that a Delaware corporation has
the power to indemnify its officers and directors in certain circumstances.
Subsection (a) of Section 145 of the DGCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of his service as director, officer, employee or agent of the
corporation, or his service, at the corporation's request, as a director,
officer, employee or agent of another corporation or enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with such action, suit
or proceeding provided that such director or officer acted in good faith and in
a manner reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding,
provided that such director or officer had no reasonable cause to believe his
conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
director or officer, or former director or officer, who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that such person acted in any of the capacities set forth
above, against expenses (including attorneys' fees) actually and reasonably
incurred in connection with the defense or settlement of such action or suit
provided that such director or officer acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification may be made in respect of any claim,
issue or matter as to which such
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director or officer shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such director or officer is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper.
Section 145 further provides that, to the extent a director or officer
of a corporation has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) or (b) or in the defense of any claim,
issue or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith; provided that indemnification provided for by Section 145 or granted
pursuant thereto shall not be deemed exclusive of any other rights to which the
indemnified party may be entitled; and empowers the corporation to purchase and
maintain insurance on behalf of a director or officer of the corporation against
any liability asserted against him or incurred by him in any such capacity or
arising out of his status as such whether or not the corporation would have the
power to indemnify him against such liabilities under Section 145.
Article VII of the Bylaws of the Registrant provides in substance that
the Registrant shall indemnify directors and officers against all liability and
related expenses incurred in connection with the affairs of the Registrant if:
(a), in the case of actions not by or in the right of the Registrant, the
director or officer acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Registrant, and (with
respect to a criminal proceeding) had no reasonable cause to believe his conduct
was unlawful; and (b), in the case of actions by or in the right of the
Registrant, the director or officer acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Registrant, provided that no indemnification shall be made for a claim as to
which the director or officer is adjudged liable for negligence or misconduct
unless (and only to the extent that) an appropriate court determines that, in
view of all the circumstances, such person is fairly and reasonably entitled to
indemnity.
In addition, Section 102(b)(7) of the DGCL permits Delaware
corporations to include a provision in their certificates of incorporation
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that such provisions shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or that involve intentional misconduct or a knowing violation of law,
(iii) for unlawful payment of dividends or other unlawful distributions, or (iv)
for any transactions from which the director derived an improper personal
benefit. Article Twelfth of the Registrant's Restated Certificate of
Incorporation contains such a provision.
The Registrant maintains Directors' and Officers' liability insurance
with various insurance providers in the aggregate amount of $80,000,000.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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EXHIBIT DESCRIPTION
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4.1 Restated Certificate of Incorporation of the Registrant,
as filed in Delaware on October 16, 1992, which was
filed as Exhibit 3(a) to the Registrant's Annual Report
on Form 10-K for the year ended September 30, 1992, and
is incorporated herein by reference.
4.2 Bylaws of the Registrant, which were filed as Exhibit
3(b) to the Registrant's Annual Report on Form 10-K for
the year ended September 30, 1998, and are incorporated
herein by reference.
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4.3 Certificate of Ownership and Merger merging Magellan
Health Services, Inc. (a Delaware corporation) into
Charter Medical Corporation (a Delaware corporation), as
filed in Delaware on December 21, 1995, which was filed
as Exhibit 3(c) to the Registrant's Annual Report on
Form 10-K for the year ended September 30, 1995, and is
incorporated herein by reference.
4.4 Form of Share Purchase Rights Plan among the Registrant
and First Union National Bank of North Carolina, N.A.,
which was filed as Exhibit 2.5 to the Registrant's
Registration Statement on Form 8-A dated July 6, 1992,
and is incorporated herein by reference.
4.5 Stockholders' Agreement, dated December 13, 1995, among
Green Spring Health Services, Inc., Blue Cross and Blue
Shield of New Jersey, Inc., Health Care Service
Corporation, Independence Blue Cross, Pierce County
Medical Bureau, Inc. and the Registrant, which was filed
as Exhibit 4(d) to the Registrant's Quarterly Report on
Form 10-Q for the quarterly period ended December 31,
1995, and is incorporated herein by reference.
4.6 First Amendment to Stockholder's Agreement, dated
February 28, 1997 among Green Spring Health Services,
Inc., Blue Cross and Blue Shield of New Jersey, Inc.,
Healthcare Service Corporation, Independence Blue Cross,
Pierce County Medical Bureau, Inc. and the Company,
which was filed as Exhibit 4(af) to the Company's Annual
Report on Form 10-K for the year ended September 30,
1997, and is incorporated herein by reference.
4.7 Exchange Agreement, dated December 13, 1995, among Blue
Cross and Blue Shield of New Jersey, Inc., Health Care
Service Corporation, Independence Blue Cross, Pierce
County Medical Bureau, Inc. and the Registrant, which
was filed as Exhibit 4(e) to the Registrant's Quarterly
Report on Form 10-Q for the quarterly period ended
December 31, 1995, and is incorporated herein by
reference.
4.8 Stock and Warrant Purchase Agreement, dated December 22,
1995, between the Registrant and Richard E. Rainwater,
which was filed as Exhibit 4(f) to the Registrant's
quarterly report on Form 10-Q for the quarterly period
ended December 31, 1995, and is incorporated herein by
reference.
4.9 Amendment No. 1 to Stock and Warrant Purchase Agreement,
dated January 25, 1996, between the Registrant and
Rainwater-Magellan Holdings, L.P., which was filed as
Exhibit 4.7 to the Registrant's Registration Statement
on Form S-3 (Registration No. 333-01217) filed on
February 26, 1996, and is incorporated herein by
reference.
4.10 Warrant Purchase Agreement, dated January 29, 1997,
between the Company and Crescent Real Estate Equities
Limited Partnership which was filed as Exhibit 4(a) to
the Company's current report on Form 8-K filed on April
23, 1997, and is incorporated herein by reference.
4.11 Amendment No. 1, dated June 17, 1997, to the Warrant
Purchase Agreement, dated January 29, 1997, between the
Company and Crescent Real Estate Equities Limited
Partnership, which was filed as Exhibit 4(b) to the
Company's current report on Form 8-K filed on June 30,
1997, and is incorporated herein by reference.
5 Opinion of David J. Hansen as to the legality of shares
of Common Stock being registered.
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23.1 Consent of Arthur Andersen LLP.
23.2 Consent of David J. Hansen (contained in the opinion
filed as Exhibit 5).
99 1998 Stock Option Plan of the Registrant, which was
filed as Exhibit 10(az) to Amendment No. 3 to the
Registrant's Registration Statement on Form S-4
(Registration No. 333-49335) filed on September 4, 1998,
and is incorporated herein by reference.
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EXPERTS
The audited consolidated financial statements and schedule of Magellan
Health Services, Inc. and subsidiaries included in the Registrant's Annual
Report on Form 10-K for the year ended September 30, 1998 incorporated by
reference in this Registration Statement have been audited by Arthur Andersen
LLP, independent public accountants, as stated in their report thereto, and are
incorporated by reference herein in reliance upon the authority of said firm as
experts in giving said report.
Future consolidated financial statements and schedules of Magellan
Health Services, Inc. and subsidiaries and the reports thereon of independent
accountants also will be incorporated by reference in this Registration
Statement in reliance upon the authority of such accountants as experts in
giving those reports to the extent such accountants have audited those financial
statements and consented to the use of their reports thereon.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement; provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) do not apply if the Registration
Statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by
the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
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(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the Registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Magellan
Health Services, Inc. certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Atlanta, State of Georgia, on the eleventh
day of February 1999.
MAGELLAN HEALTH SERVICES, INC.
By: /S/ JEFFREY T. HUDKINS
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Jeffrey T. Hudkins
Vice President and Controller
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
/s/ Henry T. Harbin Date: February 11, 1999
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Henry T. Harbin
President and Chief Executive Officer
(Principal Executive Officer) and Director
/s/ Craig L. McKnight Date: February 11, 1999
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Craig L. McKnight
Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
/s/ Jeffrey T. Hudkins Date: February 11, 1999
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Jeffrey T. Hudkins
Vice President and Controller
(Principal Accounting Officer)
/s/ Edwin M. Banks Date: February 11, 1999
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Edwin M. Banks
Director
/s/ G. Fred DiBona, Jr. Date: February 11, 1999
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G. Fred DiBona, Jr.
Director
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Date: February __, 1999
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Andre C. Dimitriadis
Director
Date: February __, 1999
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A. D. Frazier, Jr.
Director
/s/ Raymond H. Kiefer Date: February 11, 1999
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Raymond H. Kiefer
Director
Date: February __, 1999
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Gerald L. McManis
Director
/s/ Daniel S. Messina Date: February 11, 1999
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Daniel S. Messina
Director
/s/ Robert W. Miller Date: February 11, 1999
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Robert W. Miller
Chairman of the Board of Directors
Date: February __, 1999
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Darla D. Moore
Director
/s/ Jeffrey A. Sonnenfeld Date: February 11, 1999
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Jeffrey A. Sonnenfeld
Director
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EXHIBIT 5
February 10, 1999
Magellan Health Services, Inc.
3414 Peachtree Road, N.E.
Suite 1400
Atlanta, Georgia 30326
Re: Form S-8 Registration Statement
Ladies and Gentlemen:
I have acted as counsel to Magellan Health Services, Inc., a Delaware
corporation (the "Company"), in connection with the preparation of the
registration statement on Form S-8 (the "Registration Statement") filed with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
relating to 1,000,000 shares of Company common stock, par value $0.25 per share
(the "Shares"), to be offered from time to time pursuant to the Magellan Health
Services, Inc. 1998 Stock Option Plan (the "Plan").
As counsel, I have examined and relied upon such records, documents,
certificates and other instruments as in my judgement are necessary or
appropriate to form the basis for the opinions hereinafter set forth. In all
such examinations, I have assumed the genuineness of signatures on original
documents and the conformity to such original documents of all copies submitted
to me as certified, conformed or properly given and to be accurate.
Based upon the foregoing, I am of the opinion that the Shares, when and
to the extent issued and paid for pursuant to the provisions of the Plan, will
be validly issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ David J. Hansen
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David J. Hansen
Vice President and General Counsel
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our reports dated
December 3, 1998 on the consolidated financial statements and schedules of
Magellan Health Services, Inc. and subsidiaries, and Charter Behavioral Health
Systems, LLC and subsidiaries, included in Magellan Health Services, Inc.'s
Annual Report on Form 10-K for the fiscal year ended September 30, 1998 and to
all references to our Firm included in this Registration Statement.
/s/ Arthur Andersen LLP
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Atlanta, Georgia
February 12, 1999
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