EXHIBIT 4.3
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AMENDMENT
AMENDMENT ("Amendment") dated as of January 31, 2006 (the "Effective
Date"), to the Incentive Stock Option Award Agreement dated August 1, 2004 (the
"Option Agreement") between National Imaging Associates, Inc., a Delaware
corporation (the "Company") and Xxxx X. Xxxxxxx (the "Optionee"). Certain
capitalized terms not defined herein have the meaning set forth in the Option
Agreement.
WHEREAS, the Company and TA IX L.P. has entered into an Agreement and
Plan of Merger dated as of December 12, 2005 (the "Merger Agreement") with
Magellan Health Services, Inc., a Delaware corporation, ("Magellan") and
Magellan Sub Co. I, Inc., a Delaware corporation; and
WHEREAS, the Merger Agreement provides that options to purchase shares
of common stock of the Company shall terminate and be cashed out effective as of
the consummation of the transaction contemplated thereby, except that Magellan
will assume certain options (the "Modified Options") awarded under the Company's
2002 Long Term Incentive Compensation Plan (the "Plan") as of such consummation;
and
WHEREAS, Sections 2.1(e) and 3.2(a) of the Merger Agreement, and the
agreements referred to in Exhibit 6.2(g) to the Merger Agreement, provide for
the modification of the Modified Options in connection with the assumption of
the Modified Options by Magellan; and
WHEREAS, the Company and the Optionee desire to so modify the Option
granted pursuant to the Option Agreement in accordance with the Merger
Agreement;
NOW, THEREFORE, effective immediately prior to and contingent upon the
consummation of the transaction contemplated by the Merger Agreement, the Option
Agreement is modified in accordance with the following:
1. NEW SECTION 5. A new Section 5 is added to the Option
Agreement, immediately following Section 4 thereof, to read in
its entirety as follows:
"SECTION 5. Notwithstanding anything to the contrary contained in the Plan, upon
the consummation of the transaction contemplated by the Agreement and Plan of
Merger dated as of December 12, 2005 (the "Merger Agreement") between and among
the Company, Magellan Health Services, Inc., a Delaware corporation,
("Magellan"), Magellan Sub Co. I, Inc., a Delaware corporation, and TA IX L.P.,
the Option granted pursuant to this Option Agreement shall be treated as
follows: (i) the portion of the Option related to the purchase of 28,333 Shares
of Common Stock of the Company shall terminate and be cashed out in accordance
with Section 12.4(a) of the Plan and the Merger Agreement, and (ii) the
remaining portion of the Option, which has been identified as a Modified Option
(as defined in the Merger Agreement), shall not terminate and shall not be
cashed out in such transaction, but instead shall survive such consummation, and
shall be assumed by Magellan in connection therewith, subject to the following
modifications hereto in accordance with the Merger Agreement, which such
modifications shall be effective as of and contingent upon such consummation:
(a) Section 1 of this Agreement shall provide that this Option
shall be an option to purchase 6,746 shares of common stock of
Magellan, par value $.01 per share.
(b) Section 2 of this Agreement shall provide that the Option
Price per share of common stock of Magellan, par value $.01
per share, shall be $6.20.
(c) The first paragraph of Section 3 regarding vesting and
exercisability shall be deleted in its entirety and replaced
by the following:
"Notwithstanding anything to the contrary in the Plan, the Option will
vest in equal installments of one third on each of the first three
anniversaries of the Effective Date; provided, however, that the Option
will vest in full (to the extent not already vested) upon the
occurrence of: (i) the Optionee's death, (ii) the Optionee's
Disability, as defined in Section 7(d) of the Employment Agreement
dated as of December 12, 2005 between Magellan and the Optionee (the
"Employment Agreement"), (iii) a termination of employment without
Cause (as defined in the Employment Agreement) or a termination of
employment by the Optionee, in both cases pursuant to Section 7(c) of
the Employment Agreement, or (iv) immediately prior to a change of
control of Magellan if the Options are not assumed by a successor to
Magellan in a manner that will keep the Optionee economically whole
with respect to the Options."
(d) References to the "Committee" in Section 4 shall be deemed to
refer in each case to the Management Compensation Committee of
the Board of Directors of Magellan; and any discretion under
the Plan that could be exercised by the Company or its Board
of Directors, the Compensation Committee thereof or the
administrative committee of the Plan shall instead be
exercisable by the Management Compensation Committee of the
Board of Directors of Magellan.
2. Except as expressly modified by this Amendment, the Option
Agreement shall continue in full force and effect. For the avoidance of doubt,
the Option is intended to be and is intended to remain an "incentive stock
option" under Section 422 of the Code.
2
IN WITNESS WHEREOF, this Amendment to the Option Agreement has been
executed by the undersigned as of the date first above written.
NATIONAL IMAGING ASSOCIATES, INC.
By: __________________________________
Name:
Title:
--------------------------------------
Xxxx Xxxxxxx
3
AMENDMENT
AMENDMENT ("Amendment") dated as of January 31, 2006 (the "Effective
Date"), to the Incentive Stock Option Award Agreement dated July 1, 2003 with
respect 319,000 shares of Common Stock (the "Option Agreement") between National
Imaging Associates, Inc., a Delaware corporation (the "Company") and Xxxx X.
Xxxxxxx (the "Optionee"). Certain capitalized terms not defined herein have the
meaning set forth in the Option Agreement.
WHEREAS, the Company and TA IX L.P. has entered into an Agreement and
Plan of Merger dated as of December 12, 2005 (the "Merger Agreement") with
Magellan Health Services, Inc., a Delaware corporation, ("Magellan") and
Magellan Sub Co. I, Inc., a Delaware corporation; and
WHEREAS, the Merger Agreement provides that options to purchase shares
of common stock of the Company shall terminate and be cashed out effective as of
the consummation of the transaction contemplated thereby, except that Magellan
will assume certain options (the "Modified Options") awarded under the Company's
2002 Long Term Incentive Compensation Plan (the "Plan") as of such consummation;
and
WHEREAS, Sections 2.1(e) and 3.2(a) of the Merger Agreement, and the
agreements referred to in Exhibit 6.2(g) to the Merger Agreement, provide for
the modification of the Modified Options in connection with the assumption of
the Modified Options by Magellan; and
WHEREAS, the Company and the Optionee desire to so modify the Option
granted pursuant to the Option Agreement in accordance with the Merger
Agreement;
NOW, THEREFORE, effective immediately prior to and contingent upon the
consummation of the transaction contemplated by the Merger Agreement, the Option
Agreement is modified in accordance with the following:
2. NEW SECTION 6. A new Section 6 is added to the Option
Agreement, immediately following Section 5 thereof, to read in
its entirety as follows:
"SECTION 6. Notwithstanding anything to the contrary contained in the Plan, upon
the consummation of the transaction contemplated by the Agreement and Plan of
Merger dated as of December 12, 2005 (the "Merger Agreement") between and among
the Company, Magellan Health Services, Inc., a Delaware corporation,
("Magellan"), Magellan Sub Co. I, Inc., a Delaware corporation, and TA IX L.P.,
the Option granted pursuant to this Option Agreement shall be treated as
follows: the Option, which has been identified as a Modified Option (as defined
in the Merger Agreement), shall not terminate and shall not be cashed out in
accordance with Section 12.4(a) of the Plan and the Merger Agreement, but
instead shall survive such consummation, and shall be assumed by Magellan in
connection therewith, subject to the following modifications hereto in
accordance with the Merger Agreement, which such modifications shall be
effective as of and contingent upon such consummation:
4
(a) Section 1 of this Agreement shall provide that this Option
shall be an option to purchase 41,653 shares of common stock
of Magellan, par value $.01 per share.
(b) Section 2 of this Agreement shall provide that the Option
Price per share of common stock of Magellan, par value $.01
per share, shall be $4.44.
(c) Section 3 regarding vesting and exercisability, and Schedule A
to the Option Agreement, shall be deleted in their entirety
and replaced by the following:
"3. Vesting and Initial Exercisability. Notwithstanding anything to the
contrary in the Plan, the Option will vest in equal installments of one
third on each of the first three anniversaries of the Effective Date;
provided, however, that the Option will vest in full (to the extent not
already vested) upon the occurrence of: (i) the Optionee's death, (ii)
the Optionee's Disability, as defined in Section 7(d) of the Employment
Agreement dated as of December 12, 2005 between Magellan and the
Optionee (the "Employment Agreement"), (iii) a termination of
employment without Cause (as defined in the Employment Agreement) or a
termination of employment by the Optionee, in both cases pursuant to
Section 7(c) of the Employment Agreement, or (iv) immediately prior to
a change of control of Magellan if the Options are not assumed by a
successor to Magellan in a manner that will keep the Optionee
economically whole with respect to the Options."
(d) References to the "Committee" in Section 5 shall be deemed to
refer in each case to the Management Compensation Committee of
the Board of Directors of Magellan; and any discretion under
the Plan that could be exercised by the Company or its Board
of Directors, the Compensation Committee thereof or the
administrative committee of the Plan shall instead be
exercisable by the Management Compensation Committee of the
Board of Directors of Magellan.
2. Except as expressly modified by this Amendment, the Option
Agreement shall continue in full force and effect. For the avoidance of doubt,
the Option is intended to be and is intended to remain an "incentive stock
option" under Section 422 of the Code.
5
IN WITNESS WHEREOF, this Amendment to the Option Agreement has been
executed by the undersigned as of the date first above written.
NATIONAL IMAGING ASSOCIATES, INC.
By: __________________________________
Name:
Title:
--------------------------------------
Xxxx Xxxxxxx
6
AMENDMENT
AMENDMENT ("Amendment") dated as of January 31, 2006 (the "Effective
Date"), to the Incentive Stock Option Award Agreement dated July 1, 2003 related
to the purchase of 318,993 shares of Common Stock (the "Option Agreement")
between National Imaging Associates, Inc., a Delaware corporation (the
"Company") and Xxxx X. Xxxxxxx (the "Optionee"). Certain capitalized terms not
defined herein have the meaning set forth in the Option Agreement.
WHEREAS, the Company and TA IX L.P. has entered into an Agreement and
Plan of Merger dated as of December 12, 2005 (the "Merger Agreement") with
Magellan Health Services, Inc., a Delaware corporation, ("Magellan") and
Magellan Sub Co. I, Inc., a Delaware corporation; and
WHEREAS, the Merger Agreement provides that options to purchase shares
of common stock of the Company shall terminate and be cashed out effective as of
the consummation of the transaction contemplated thereby, except that Magellan
will assume certain options (the "Modified Options") awarded under the Company's
2002 Long Term Incentive Compensation Plan (the "Plan") as of such consummation;
and
WHEREAS, Sections 2.1(e) and 3.2(a) of the Merger Agreement, and the
agreements referred to in Exhibit 6.2(g) to the Merger Agreement, provide for
the modification of the Modified Options in connection with the assumption of
the Modified Options by Magellan; and
WHEREAS, the Company and the Optionee desire to so modify the Option
granted pursuant to the Option Agreement in accordance with the Merger
Agreement;
NOW, THEREFORE, effective immediately prior to and contingent upon the
consummation of the transaction contemplated by the Merger Agreement, the Option
Agreement is modified in accordance with the following:
3. NEW SECTION 6. A new Section 6 is added to the Option
Agreement, immediately following Section 5 thereof, to read in
its entirety as follows:
"SECTION 6. Notwithstanding anything to the contrary contained in the Plan, upon
the consummation of the transaction contemplated by the Agreement and Plan of
Merger dated as of December 12, 2005 (the "Merger Agreement") between and among
the Company, Magellan Health Services, Inc., a Delaware corporation,
("Magellan"), Magellan Sub Co. I, Inc., a Delaware corporation, and TA IX L.P.,
the Option granted pursuant to this Option Agreement shall be treated as
follows: (i) the portion of the Option related to the purchase of 239,242 Shares
of Common Stock of the Company shall terminate and be cashed out in accordance
with Section 12.4(a) of the Plan and the Merger Agreement, and (ii) the
remaining portion of the Option, which has been identified as a Modified Option
(as defined in the Merger Agreement), shall not terminate and shall not be
cashed out in such transaction, but instead shall survive such consummation, and
shall be assumed by Magellan in connection therewith, subject to the following
7
modifications hereto in accordance with the Merger Agreement, which such
modifications shall be effective as of and contingent upon such consummation:
(a) Section 1 of this Agreement shall provide that this Option
shall be an option to purchase 10,413 shares of common stock
of Magellan, par value $.01 per share.
(b) Section 2 of this Agreement shall provide that the Option
Price per share of common stock of Magellan, par value $.01
per share, shall be $4.44.
(c) Section 3 regarding vesting and exercisability shall be
deleted in its entirety and replaced by the following:
"3. Vesting and Initial Exercisability.
Notwithstanding anything to the contrary in the Plan, the Option will
vest in equal installments of one third on each of the first three
anniversaries of the Effective Date; provided, however, that the Option
will vest in full (to the extent not already vested) upon the
occurrence of: (i) the Optionee's death, (ii) the Optionee's
Disability, as defined in Section 7(d) of the Employment Agreement
dated as of December 12, 2005 between Magellan and the Optionee (the
"Employment Agreement"), (iii) a termination of employment without
Cause (as defined in the Employment Agreement) or a termination of
employment by the Optionee, in both cases pursuant to Section 7(c) of
the Employment Agreement, or (iv) immediately prior to a change of
control of Magellan if the Options are not assumed by a successor to
Magellan in a manner that will keep the Optionee economically whole
with respect to the Options."
(d) References to the "Committee" in Section 5 shall be deemed to
refer in each case to the Management Compensation Committee of
the Board of Directors of Magellan; and any discretion under
the Plan that could be exercised by the Company or its Board
of Directors, the Compensation Committee thereof or the
administrative committee of the Plan shall instead be
exercisable by the Management Compensation Committee of the
Board of Directors of Magellan.
2. Except as expressly modified by this Amendment, the Option
Agreement shall continue in full force and effect. For the avoidance of doubt,
the Option is intended to be and is intended to remain an "incentive stock
option" under Section 422 of the Code.
8
IN WITNESS WHEREOF, this Amendment to the Option Agreement has been
executed by the undersigned as of the date first above written.
NATIONAL IMAGING ASSOCIATES, INC.
By: __________________________________
Name:
Title:
--------------------------------------
Xxxx Xxxxxxx
9
AMENDMENT
AMENDMENT ("Amendment") dated as of January 31, 2006 (the "Effective
Date"), to the Incentive Stock Option Award Agreement dated May 1, 2005 (the
"Option Agreement") between National Imaging Associates, Inc., a Delaware
corporation (the "Company") and Xxxx X. Xxxxxxx (the "Optionee"). Certain
capitalized terms not defined herein have the meaning set forth in the Option
Agreement.
WHEREAS, the Company and TA IX L.P. has entered into an Agreement and
Plan of Merger dated as of December 12, 2005 (the "Merger Agreement") with
Magellan Health Services, Inc., a Delaware corporation, ("Magellan") and
Magellan Sub Co. I, Inc., a Delaware corporation; and
WHEREAS, the Merger Agreement provides that options to purchase shares
of common stock of the Company shall terminate and be cashed out effective as of
the consummation of the transaction contemplated thereby, except that Magellan
will assume certain options (the "Modified Options") awarded under the Company's
2002 Long Term Incentive Compensation Plan (the "Plan") as of such consummation;
and
WHEREAS, Sections 2.1(e) and 3.2(a) of the Merger Agreement, and the
agreements referred to in Exhibit 6.2(g) to the Merger Agreement, provide for
the modification of the Modified Options in connection with the assumption of
the Modified Options by Magellan; and
WHEREAS, the Company and the Optionee desire to so modify the Option
granted pursuant to the Option Agreement in accordance with the Merger
Agreement;
NOW, THEREFORE, effective immediately prior to and contingent upon the
consummation of the transaction contemplated by the Merger Agreement, the Option
Agreement is modified in accordance with the following:
4. NEW SECTION 5. A new Section 5 is added to the Option
Agreement, immediately following Section 4 thereof, to read in
its entirety as follows:
"SECTION 5. Notwithstanding anything to the contrary contained in the Plan, upon
the consummation of the transaction contemplated by the Agreement and Plan of
Merger dated as of December 12, 2005 (the "Merger Agreement") between and among
the Company, Magellan Health Services, Inc., a Delaware corporation,
("Magellan"), Magellan Sub Co. I, Inc., a Delaware corporation, and TA IX L.P.,
the Option granted pursuant to this Option Agreement shall be treated as
follows: (i) the portion of the Option related to the purchase of 8,333 Shares
of Common Stock of the Company shall terminate and be cashed out in accordance
with Section 12.4(a) of the Plan and the Merger Agreement, and (ii) the
remaining portion of the Option, which has been identified as a Modified Option
(as defined in the Merger Agreement), shall not terminate and shall not be
cashed out in such transaction, but instead shall survive such consummation, and
shall be assumed by Magellan in connection therewith, subject to the following
modifications hereto in accordance with the Merger Agreement, which such
modifications shall be effective as of and contingent upon such consummation:
10
(a) Section 1 of this Agreement shall provide that this Option
shall be an option to purchase 5,441 shares of common stock of
Magellan, par value $.01 per share.
(b) Section 2 of this Agreement shall provide that the Option
Price per share of common stock of Magellan, par value $.01
per share, shall be $7.66.
(c) The first paragraph of Section 3 regarding vesting and
exercisability shall be deleted in its entirety and replaced
by the following:
"Notwithstanding anything to the contrary in the Plan, the Option will
vest in equal installments of one third on each of the first three
anniversaries of the Effective Date; provided, however, that the Option
will vest in full (to the extent not already vested) upon the
occurrence of: (i) the Optionee's death, (ii) the Optionee's
Disability, as defined in Section 7(d) of the Employment Agreement
dated as of December 12, 2005 between Magellan and the Optionee (the
"Employment Agreement"), (iii) a termination of employment without
Cause (as defined in the Employment Agreement) or a termination of
employment by the Optionee, in both cases pursuant to Section 7(c) of
the Employment Agreement, or (iv) immediately prior to a change of
control of Magellan if the Options are not assumed by a successor to
Magellan in a manner that will keep the Optionee economically whole
with respect to the Options."
(d) References to the "Committee" in Section 4 shall be deemed to
refer in each case to the Management Compensation Committee of
the Board of Directors of Magellan; and any discretion under
the Plan that could be exercised by the Company or its Board
of Directors, the Compensation Committee thereof or the
administrative committee of the Plan shall instead be
exercisable by the Management Compensation Committee of the
Board of Directors of Magellan.
2. Except as expressly modified by this Amendment, the Option
Agreement shall continue in full force and effect. For the avoidance of doubt,
the Option is intended to be and is intended to remain an "incentive stock
option" under Section 422 of the Code.
11
IN WITNESS WHEREOF, this Amendment to the Option Agreement has been
executed by the undersigned as of the date first above written.
NATIONAL IMAGING ASSOCIATES, INC.
By: __________________________________
Name:
Title:
--------------------------------------
Xxxx Xxxxxxx
12
