Exhibit 2.15
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
MAGELLAN HEALTH SERVICES, INC.
MAGELLAN HOLDINGS LP
AND
AETNA INC.,
DATED AS OF JANUARY __, 2004
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS.....................................................................................1
ARTICLE II EQUITY REGISTRATION RIGHTS......................................................................6
2.1 Equity Security Registration.........................................................................6
2.2 Piggyback Registration...............................................................................9
2.4 Registration Procedures.............................................................................11
2.5 Expenses............................................................................................13
2.6 Indemnification and Contribution....................................................................14
2.7 Rule 144............................................................................................17
2.8 Duration of Equity Registration Rights..............................................................17
2.9 "Market Stand-Off" Agreement........................................................................17
2.10 Transfer of Registration Rights.....................................................................18
2.11 Granting of Additional Registration Rights..........................................................18
ARTICLE IV MISCELLANEOUS PROVISIONS.......................................................................19
4.1 Successor Securities................................................................................19
4.2 Equitable Relief....................................................................................19
4.3 No Inconsistent Agreements..........................................................................19
4.4 Amendments and Waivers..............................................................................20
4.5 Notice Generally....................................................................................20
4.6 Successors and Assigns..............................................................................21
4.7 Headings............................................................................................21
4.8 Governing Law; Jurisdiction; Jury Waiver............................................................21
4.9 Severability........................................................................................22
4.10 Entire Agreement....................................................................................22
4.11 Counterparts........................................................................................22
i
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement, dated as of January __, 2004, by and
between Magellan Health Services, Inc., a Delaware corporation (the "COMPANY"),
Magellan Holdings LP ("ONEX"), Aetna Inc., a Pennsylvania corporation ("AETNA"
and, together, with Onex, and also with any successor or permitted transferee
thereof as hereinafter provided, the "SECURITYHOLDERS").
W I T N E S S E T H :
WHEREAS, the Company filed its Debtors' Third Amended Joint
Plan of Reorganization dated August 18, 2003 with the United States Bankruptcy
Court for the Southern District of New York (the "COURT") pursuant to and in
accordance with chapter 11 of the U.S. Bankruptcy Code (as so filed with the
Court and as may be amended from time to time in accordance with its terms, the
"PLAN"), which was confirmed by the Court on October 8, 2003; and
WHEREAS, capitalized terms used herein and not defined
above shall have the meanings provided by Article I hereof or otherwise provided
below; and
WHEREAS, as contemplated by the Plan, on the Effective
Date, (i) all previously outstanding shares of capital stock of the Company will
be cancelled, (ii) Onex will receive from the Company up to 8,533,835 shares of
Multi-Vote Common Stock, convertible at such time into the same number of shares
of Ordinary Common Stock and representing approximately 24% of the shares of
Common Stock to be outstanding on the Effective Date, and (iii) Aetna will
receive from the Company the Aetna Warrant; and
WHEREAS, in accordance with the Plan, the Company and the
Securityholders are entering into this Agreement on the Effective Date (i) to
provide for certain rights and obligations of the Securityholders (and any
transferees of the shares of Common Stock or Notes of the Securityholders who
may become permitted transferees of rights hereunder) with respect to their
holdings of shares of Common Stock and Notes, as the case may be;
NOW, THEREFORE, in consideration of the premises and the
covenants hereinafter contained, it is hereby agreed as follows:
ARTICLE I
DEFINITIONS.
As used in this Agreement, the following capitalized terms
shall have the meanings ascribed thereto below (such meanings being equally
applicable to both the singular and plural form of the terms defined):
"ACTION" shall have the meaning provided by Section 2.6(e).
"AFFILIATE," with respect to a Person, means any other
Person which directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, such Person, within
the meaning of Rule 12b-2 under the Exchange Act.
"AGREEMENT" shall mean this Registration Rights Agreement,
as the same may from time to time be amended, modified and supplemented in
accordance with its terms.
"CERTIFICATE OF INCORPORATION" shall mean the Amended and
Restated Certificate of Incorporation of the Company, as in effect on the
Effective Date and as the same may from time to time be amended or restated in
accordance with its terms.
"BUSINESS DAY" shall mean any day on which commercial banks
are required to be open for business in New York, New York.
"BENEFICIALLY OWNED" or "BENEFICIAL OWNERSHIP" shall have
the meaning prescribed by Regulation 13D-G under the Exchange Act, as amended
and from time to time in effect.
"COMMON STOCK" shall mean the shares of Common Stock, being
either shares of Ordinary Common Stock or shares of Multi-Vote Common Stock, of
the Company, as authorized by the Certificate of Incorporation on the Effective
Date, and any successor security as provided by Section 4.1 hereof.
"CONTROL" (including the term "CONTROLLED BY") shall mean
the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract, or otherwise.
"DEMANDING OTHER EQUITY SECURITYHOLDERS" shall have the
meaning provided by Section 2.2(a).
"EFFECTIVE DATE" shall mean the first Business Day on or
after the date by which all of the conditions precedent to the effectiveness of
the Plan specified in Section 10.2 of the Plan have been satisfied or waived or,
if a stay of the order entered by the Court confirming the Plan in accordance
with chapter 11 of the U.S. Bankruptcy Code is in effect on such date, the first
Business Day on or after the date of the expiration, dissolution, or lifting of
such stay. The Effective Date for purposes of this Agreement shall be the same
as the Effective Date for purposes of the Plan.
"EQUITY SHELF REGISTRATION" shall have the meaning provided
by Section 2.1(a).
"EQUITY SHELF REGISTRATION TERMINATION DATE" shall mean the
second anniversary of the date on which the Equity Shelf Registration first
became effective under the Securities Act or such earlier date on which there no
longer are any Registrable Equity Securities or on which all the Registrable
Equity Securities may be disposed of by the Securityholders pursuant to Rule 144
2
either within a 90 day period in accordance with the volume limitations of such
rule or without volume limitation in accordance with the provisions of Rule
144(k) or pursuant to another exemption from the registration requirements of
the Securities Act pursuant to which the Registrable Equity Securities are
thereafter freely tradable without restriction under the Securities Act.
"EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended, or any successor federal statute, and the rules and
regulations of the SEC promulgated thereunder, all as the same may be amended
and shall be in effect from time to time.
"INDEMNIFIED PARTY" shall have the meaning provided by
Section 2.6(e).
"INDEMNIFYING PARTY" shall have the meaning provided by
Section 2.6(e).
"MANAGEMENT INCENTIVE PLAN" shall mean the "New Management
Incentive Plan" defined in the Plan, in the form adopted by the Board of
Directors, in effect as of the date hereof.
"MULTI-VOTE COMMON STOCK" shall mean the shares of Multiple
and Variable Vote Restricted Convertible Common Stock, par value of $0.01 per
share, of the Company, as authorized by the Certificate of Incorporation on the
Effective Date, and any successor security as provided by Section 4.1 hereof.
"NASD" shall mean the National Association of Securities
Dealers, Inc., or any successor corporation thereto.
"NASDAQ" shall mean the Nasdaq Stock Market.
"NOTES" shall mean the unsecured notes issued or to be
issued by the Company pursuant to an indenture qualified under the Trust
Indenture Act of 1939 as provided by Section 1.74 of the Plan.
"NYSE" shall mean the New York Stock Exchange.
"ONEX" shall have the meaning set forth in the introductory
paragraph of this Agreement.
"ONEX GROUP" shall mean (i) Onex, (ii) Onex Corporation, a
corporation organized and existing under the laws of the Province of Ontario,
Canada, (iii) Onex Partners LP, a limited partnership organized and existing
under the laws of the State of Delaware, (iv) any successor to all or
substantially all the assets and business (including any interest owned by it in
the Company) of Onex Corporation or Onex Partners LP and (v) any company at the
time controlled, singly or collectively, by any of such companies, each of which
shall be considered "a member of the Onex Group" for purposes hereof. For
purposes hereof, Onex Corporation shall be deemed to control any entity
controlled by Xx. Xxxxxx X. Xxxxxxxx so long as Xx. Xxxxxx X. Xxxxxxxx controls
Onex Corporation.
3
"ORDINARY COMMON STOCK" shall mean the shares of Ordinary
Common Stock, par value of $ 0.01 per share, of the Company, as authorized by
the Certificate of Incorporation on the Effective Date, and any successor
security as provided by Section 4.1 hereof.
"PERSON" shall mean any individual, partnership (general,
limited or limited liability), corporation, limited liability company, trust,
unincorporated organization or other legal entity, and a government or agency or
political subdivision thereof.
"PIGGYBACK NOTICE" shall have the meaning provided by
Section 2.2(a) hereof.
"PIGGYBACK HOLDERS" shall have the meaning provided by
Section 2.2(b) hereof.
"PRO RATA SHARE", for purposes of Section 2.2(b) hereof,
shall mean the ratio of (i) the number of shares of Ordinary Common Stock owned
by, or issuable upon conversion of shares of Multi-Vote Common Stock owned by, a
member of the Onex Group or Aetna, as the case may be, and sought to be included
in such Registration Statement to (ii) the total number of shares of Ordinary
Common Stock owned by, or issuable upon conversion of shares of Multi-Vote
Common Stock owned by, all members of the Onex Group and Aetna and sought to be
included in the Registration Statement, such ratio calculated as of the date of
filing of the applicable Registration Statement pursuant to Section 2.2(b).
"PROSPECTUS" shall mean the prospectus included in any
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Equity Securities covered by
such Registration Statement, and all amendments and supplements thereto and all
material incorporated by reference therein.
"REGISTRABLE EQUITY SECURITIES" shall mean (i) shares of
Ordinary Common Stock owned by a member of the Onex Group or issued or issuable
upon conversion of shares of Multi-Vote Common Stock issued to or owned by a
member of the Onex Group, (ii) the shares of Ordinary Common Stock issued to the
Securityholders pursuant to the Plan, (iii) the shares of Ordinary Common Stock
which may be acquired by Aetna pursuant to the Warrant, (iv) any additional
shares of Ordinary Common Stock or other equity securities issued by the Company
to the Securityholders as a dividend upon or a distribution in respect of, or
upon conversion of or in exchange for or as a result of any reclassification of,
any such shares of Ordinary Common Stock or any other equity security that is a
Registrable Equity Security, (v) any equity security issued upon exercise of any
warrant, right or option which is a Registrable Equity Security, (vi) any other
equity security which is considered a successor security in respect of any such
security as provided in Section 4.1 hereof, in each case for so long as such
4
equity security is owned by the Securityholders or permitted transferee of such
the Securityholders' rights under ARTICLE II hereof in accordance with Section
2.10 hereof. For the avoidance of doubt, it is understood and agreed that any
particular Registrable Equity Security shall cease to be such when (A) a
Registration Statement with respect to the sale of such security shall have
become effective under the Securities Act and such security shall have been
disposed of in accordance with such Registration Statement, (B) such security
shall have been sold pursuant to Rule 144 or pursuant to another exemption from
registration under the Securities Act pursuant to which the securities sold are
thereafter freely transferable without registration and without restriction
under the Securities Act or (C) such security shall have ceased to be
outstanding.
"REGISTRATION STATEMENT" shall mean a registration
statement of the Company as it may be amended or supplemented from time to time,
including without limitation, all exhibits, financial statements, schedules and
attachments thereto.
"REQUISITE EQUITY SECURITYHOLDERS" shall mean
Securityholders who own at least 150,000 shares of Ordinary Common Stock
(including for such purpose shares of Ordinary Common Stock issuable upon
conversion of Multi-Vote Common Stock) (or equivalent successor securities as
provided by Section 4.1) and who represent to the Company that they presently
intend to sell at least such number of shares or such smaller number of shares
as constituted their remaining holding of Registrable Equity Securities.
"RULE 144" shall mean Rule 144 promulgated by the SEC under
the Securities Act, or any similar rule or regulation permitting the sale of
securities without registration under the Securities Act hereafter promulgated
by the SEC, as the same may be amended and in effect from time to time.
"RULE 415" shall mean Rule 415 promulgated by the SEC under
the Securities Act, or any similar rule or regulation relating to registration
of securities under the Securities Act for offering and sale by a continuous or
delayed offering hereafter promulgated by the SEC, as the same may be amended
and in effect from time to time.
"SEC" shall mean the Securities and Exchange Commission or
any other federal agency then administering the Securities Act and other federal
securities laws.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any successor federal statute, and the rules and regulations of the
SEC promulgated thereunder, all as the same may be amended and shall be in
effect from time to time.
"VOTING STOCK" shall mean shares of the Company, of any
class or series, entitled to vote for the election of directors of the Company,
including shares of Ordinary Common Stock and Multi-Vote Common Stock.
"WARRANT" shall mean the New Aetna Warrant (as defined in
the Plan) to purchase shares of Ordinary Common Stock issued to Aetna.
5
Other terms are defined herein and shall have the meanings elsewhere provided
herein. References herein to specific rules of the SEC refer to such rules as in
effect on the date hereof and as the same may thereafter from time to time be
amended and in effect. References herein to "Sections" shall refer to the
sections of this Agreement, unless otherwise specifically provided, and
references to "hereof," "herein" or "hereunder" shall refer to this Agreement as
a whole and not to any particular Section, paragraph, sentence or clause unless
otherwise specifically provided.
ARTICLE II
EQUITY REGISTRATION RIGHTS
2.1 Equity Security Registration.
(a) Requirement to Effect Equity Shelf Registration. The
Company shall prepare and cause to be filed with the SEC, as promptly as
practicable after but in no event later than 60 days following the Effective
Date, a Registration Statement pursuant to Rule 415 on an appropriate form
relating to the continuous offering and sale of the shares of Ordinary Common
Stock which are Registrable Equity Securities in resales by selling
Securityholders (or their permitted transferees) in market transactions on the
Nasdaq or such other national securities exchange on which the Ordinary Common
Stock is then listed (and through such other method or methods of distribution
as hereinafter provided for) (the "EQUITY SHELF REGISTRATION") and shall use its
reasonable best efforts to cause the Equity Shelf Registration to become
effective under the Securities Act, and for public sales of such shares
otherwise to be permitted, within 60 days thereafter (including, without
limitation, appropriate qualification under applicable blue sky or other state
securities laws and appropriate compliance with applicable regulations issued
under the Securities Act and any other governmental requirements or
regulations). The Company shall use its reasonable best efforts to keep the
Equity Shelf Registration effective under the Securities Act, for so long as it
is permitted to do so under Rule 415, until the Equity Shelf Registration
Termination Date, including by preparing and filing such amendments to the
Registration Statement and prospectus supplements as may be required therefor.
If at any time (before the Equity Shelf Registration Termination Date) it shall
no longer be permissible for the Company to keep the Equity Shelf Registration
effective under the Securities Act in accordance with Rule 415 but shall
thereafter become permissible for the Company to file and have effective a
Registration Statement pursuant to Rule 415 for Registrable Equity Securities,
then the Company shall, upon reasonable request of a Securityholder, again
likewise prepare and cause to be filed with the SEC, and shall use its
reasonable best efforts to become effective, as promptly as practicable, a
Registration Statement (on an appropriate form) for such purpose and (as long as
permissible under Rule 415) to keep such Registration Statement effective until
the Equity Shelf Registration Termination Date . The obligations of the Company
under this Section 2.1(a) are subject to the provisions of Section 2.1(d). The
Company shall provide for the offer and sale of such shares of Ordinary Common
Stock pursuant to the Equity Shelf Registration, both upon its initial
effectiveness or (as necessary, by amendment or supplement) at any time
thereafter before the Equity Shelf Registration Termination Date, through such
other methods of distribution as the Requisite Equity Securityholders may
reasonably request.
6
(b) Request for Equity Demand Registration . If at any time
after the Effective Date the Company has received a written request (a "DEMAND
NOTICE") from one or more members of the Onex Group or Aetna (or a permitted
transferee of either thereof in accordance herewith) requesting that the Company
effect a registration under the Securities Act of Registrable Equity Securities
and specifying the intended method or methods of disposition thereof, the
Company shall use its best efforts to prepare and cause to be filed with the
SEC, as promptly as practicable but in no event later than 60 days following
receipt of the Demand Notice, a Registration Statement on the appropriate form
relating to resales by members of the Onex Group or by Aetna of such Registrable
Equity Securities ("EQUITY DEMAND REGISTRATION") and shall use its reasonable
best efforts to cause the Equity Demand Registration to become effective under
the Securities Act, and for public sales of such shares otherwise to be
permitted, within 60 days thereafter (including, without limitation, appropriate
qualification under applicable blue sky or other state securities laws and
appropriate compliance with applicable regulations issued under the Securities
Act and any other governmental requirements or regulations). The obligations of
the Company under this Section 2.1(b) are subject to the provisions of Section
2.1(c), 2.1(d) and 2.1(e).
(c) Conditions on Requirement to Effect an Equity Demand
Registration. The obligations of the Company set forth in Section 2.1(b) are
subject to each of the following limitations, conditions and qualifications:
(i) The Company shall not be required to take any action to
effect an Equity Demand Registration unless the anticipated aggregate offering
price of the Registrable Equity Securities to be offered and sold pursuant to
such registration is at least $50,000,000 or, in the event an Equity Demand
Registration may be effected on Form S-3 or a comparable form and is not
underwritten, $25,000,000 (or, if the anticipated aggregate offering price for
all Registrable Equity Securities owned by the Onex Group or Aetna, as the case
may be, at the time such demand is made is less than $50,000,000 or $25,000,000,
as applicable, such lesser amount).
(ii) The Company shall not be required to effect an Equity
Demand Registration more than once in any nine month period or at such time as
the Company is in accordance with Section 2.2 providing to the members of the
Onex Group and Aetna piggyback registration rights in connection with an
underwritten registered public offering.
(iii) If the Company receives a request for an Equity
Demand Registration during a "lock-up" period (the "LOCK-UP PERIOD") pursuant to
Section 2.9 in connection with any underwriting or purchase agreement relating
to an equity offering under Rule 144A under the Securities Act (or any successor
rule or regulation, as the same may be amended or in effect from time to time)
or a registered public offering of Ordinary Common Stock or securities
convertible into or exchangeable for Ordinary Common Stock, the Company shall
not be required to cause a Registration Statement under Section 2.1(b) to become
effective prior to the end of the Lock-Up Period.
(iv) The Company shall not be required to take any action
to effect an Equity Demand Registration at any time when the Equity Shelf
Registration is effective under the Securities Act if the Registrable Equity
7
Securities that would be sold pursuant to the Equity Demand Registration could
be sold pursuant to the Equity Shelf Registration, unless the Company is
requested to prepare the Equity Demand Registration with respect to an
underwritten offering of such Registrable Equity Securities.
(d) Conditions to Requirements to Effect an Equity Demand
or Equity Shelf Registration. The obligations of the Company set forth in
Section 2.1(a) or 2.1(b) are subject to each of the following limitations,
conditions and qualifications:
(i) The Company's obligations shall be subject to the
obligations of each Securityholder to furnish all information and materials and
to take any and all actions as may be required of it under Federal and state
securities laws and regulations to permit the Company to comply with all
applicable requirements of the SEC and to obtain any acceleration of the
effective date of such Registration Statement. Without limiting the generality
of the forgoing, the selling Securityholders shall each furnish to the Company
in writing, promptly after receipt of a request therefor, the information
specified in Item 507 or 508 of Regulation S-K, as applicable, of the Securities
Act for use in connection with any Registration Statement or Prospectus or
preliminary Prospectus included therein. Each Securityholder agrees to promptly
furnish additional information required to be disclosed in order to make the
information previously furnished to the Company by such Securityholder not
materially misleading.
(ii) The Company shall not be obligated to cause any
special audit (other than a fiscal year-end audit) to be undertaken in
connection with preparing or causing to become effective any Registration
Statement.
(e) Underwriting. The managing underwriter for any
underwritten offering of Registrable Equity Securities pursuant to an Equity
Demand Registration under Section 2.1(b) shall be selected by Onex and shall be
reasonably acceptable to the Company, and the co-managing underwriter shall be
selected by the Company and shall be reasonably acceptable to Onex.
2.2 Piggyback Registration.
(a) If the Company at any time proposes to file on its
behalf and/or on behalf of any of the holders of its equity securities (a
"DEMANDING OTHER EQUITY SECURITYHOLDER") a Registration Statement under the
Securities Act on any form (other than a Registration Statement on Form S-4 or
S-8, or any successor form, for securities to be offered in a transaction of the
type referred to in Rule 145 under the Securities Act or to employees of the
Company pursuant to any employee benefit plan, respectively), which may be used
for the registration of shares of Ordinary Common Stock, it will give written
notice of such proposed filing to Onex and Aetna at least 20 Business Days
before the initial filing with the SEC of such Registration Statement (the
"PIGGYBACK NOTICE"), which Piggyback Notice shall set forth the number of
securities proposed to be offered and a description of the intended method of
disposition of such securities. The Piggyback Notice shall offer to include in
such filing such number of Registrable Equity Securities as a member of the Onex
Group or Aetna may request. If the registration of which the Company gives
8
notice is for a registered public offering involving an underwriting, the
Company shall so advise Onex and Aetna as part of the Piggyback Notice. In such
event, the right of a member of the Onex Group or Aetna to include its
Registrable Equity Securities in the registration shall be conditioned upon such
member of the Onex Group or Aetna, as the case may be, entering into an
underwriting agreement in customary form with the managing underwriter selected
for such underwriting by the Company.
(b) A member of the Onex Group or Aetna shall advise the
Company in writing within 10 Business Days after the date of receipt of the
Piggyback Notice from the Company, of its election to accept the Company's offer
to include its Registrable Equity Securities in the Registration Statement to be
filed by the Company pursuant to Section 2.2(a), setting forth the amount of
such Registrable Equity Securities for which registration is requested (such
Securityholders so electing, the "PIGGYBACK HOLDERS"). The Company shall
thereupon include in such filing the number of Registrable Equity Securities for
which registration is so requested; provided, however, that (i) in connection
with a primary offering by the Company, if the managing underwriter of such
proposed underwritten offering shall advise the Company in writing that, in its
opinion, the distribution of the Registrable Equity Securities requested to be
included in the registration by all Piggyback Holders concurrently with the
securities being registered by the Company would adversely affect the
distribution of the shares of Ordinary Common Stock by the Company, then the
Company and its underwriters shall be entitled to reduce the number of
Registrable Equity Securities to be registered by the Piggyback Holders, and
(ii) in connection with piggyback rights in a secondary offering by one or more
selling Demanding Other Equity Securityholders only, if the managing underwriter
of such proposed underwritten offering shall advise the Company in writing that,
in its opinion, the distribution of the Registrable Equity Securities requested
to be included in the registration by all Piggyback Holders concurrently with
the securities being registered by the Demanding Other Equity Securityholder
would adversely affect the distribution of the shares of Ordinary Common Stock
by the Demanding Other Equity Securityholder, then the Company and such
underwriters shall be entitled to reduce the number of Registrable Equity
Securities to be registered by (x) the Piggyback Holders, and (y) if the
Demanding Other Equity Securityholder is one or more members of the Onex Group
or Aetna, the Demanding Other Equity Securityholder; provided, further, however,
that the number of Registrable Equity Securities to be included in such
Registration Statement on behalf of (1) any Piggyback Holder, and, (2) if the
Demanding Other Equity Securityholder is one or more members of the Onex Group
or Aetna, the Demanding Other Equity Securityholder, shall be no less than such
holder's Pro Rata Share of all securities to be included in such Registration
Statement.
(c) The Company shall not be obligated to continue, and
shall have the right to terminate or withdraw, any Registration Statement
subject to this Section 2.2 prior to the effectiveness of such registration,
even though a member of the Onex Group or Aetna has elected to include
securities in such registration.
2.3 Postponement of Registration or Sales. The Company shall be
entitled to postpone, for a reasonable period of time (which shall be as short
as practicable), during no more than two periods of 90 days each, aggregating
not more than 120 days in total in any twelve-month period, the filing or
effectiveness of, or suspend the right of the Securityholders (or permitted
9
transferees thereof) to make sales pursuant to, any Registration Statement
otherwise required to be prepared, filed and made and kept effective by it under
the registration covenants described in Section 2.1 or 2.2 hereof, in the event
that (i) (A) an event or circumstance occurs and is continuing as a result of
which such Registration Statement, any related Prospectus or any document
incorporated therein by reference as then amended or supplemented or proposed to
be filed would, in the Company's good faith judgment, contain an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading (in which case the Company will file an
appropriate amendment to the Registration Statement as contemplated in Section
2.4(k) hereof), and (B) the Board of Directors of the Company determines in its
good faith judgment that the disclosure of the event at that time would
materially and adversely affect, interfere with or hinder the success of any
financing, acquisition, merger or similar transaction involving the Company or
otherwise have a material adverse effect on the business, operations or
prospects of the Company or (ii) the Company shall have received a notice issued
by the SEC of a stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose. If the Company
shall so postpone the filing or effectiveness of, or suspend the rights of
Securityholders to make sales pursuant to, a Registration Statement it shall
promptly notify the Securityholders in writing of such determination (a
"Suspension Notice"). The Suspension Notice shall contain a statement of the
reasons for such suspension and an approximation of the anticipated delay. A
Securityholder shall keep confidential any information received by it in a
Suspension Notice (including the fact that it has received a Suspension Notice),
except as otherwise required by law, judicial or administrative order or legal
process. Upon receipt of such Suspension Notice from the Company, to the extent
applicable, the Securityholders will forthwith discontinue disposition of
Registrable Equity Securities pursuant to the Registration Statement until (i)
they have received copies of the supplemented or amended Prospectus contemplated
by Section 2.4(b) hereof, or (ii) they are advised in writing by the Company
that the use of the Prospectus may be resumed, and have received copies of any
additional or supplemental filings that are incorporated by reference in the
Prospectus (in each case, the "Recommencement Date"). The time periods provided
herein for which the Company is required to maintain the effectiveness of an
Equity Shelf Registration or Equity Demand Registration shall be extended by the
aggregate number of days by which sales of securities pursuant to any
Registration Statement that has been declared effective has been delayed,
postponed or suspended by the Company pursuant to this Section.
2.4 Registration Procedures. If the Company is required by the
provisions of Article II to effect the registration of any Registrable Equity
Securities under the Securities Act, the Company will, as promptly as
practicable:
(a) prepare, file and cause to become effective in
accordance with this Article II a Registration Statement with respect to such
securities and, in the case of an Equity Demand Registration, use its best
efforts to keep such Registration Statement effective under the Securities Act
for at least one hundred and eighty (180) days or until the distribution
described in the Registration Statement has been completed;
10
(b) prepare and file with the SEC such amendments
(including post-effective amendments) to such Registration Statement, and such
supplements to the related prospectus, as may be required by the applicable
rules, regulations or instructions under the Securities Act during the
applicable period for maintaining the effectiveness thereof in accordance with
the intended methods of disposition, (ii) make generally available earnings
statements satisfying the provisions of Section 11(a) of the Securities Act
(provided that the Company shall be deemed to have complied with this clause if
it has complied with Rule 158 under the Securities Act) and (iii) cause the
related prospectus as so supplemented to be filed pursuant to Rule 424 under the
Securities Act;
(c) notify the Securityholders promptly and, if requested,
confirm such notice in writing (i) when a prospectus, prospectus supplement or
post-effective amendment has been filed and, with respect to such Registration
Statement or any post-effective amendment, when the same has become effective,
(ii) of any request by the SEC for amendments or supplements to such
Registration Statement or the related Prospectus or for additional information
regarding the Securityholders or any other securityholder whose shares are
registered pursuant to such Registration Statement, (iii) of the issuance by the
SEC of any stop order suspending the effectiveness of such Registration
Statement or the initiation of any proceedings for the purpose, and (iv) of the
receipt by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable Equity
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose;
(d) use best efforts to obtain the withdrawal of any order
suspending the effectiveness of such Registration Statement, or the lifting of
any suspension of the qualification or exemption from qualification of any
Registrable Equity Securities for sale in any jurisdiction in the United States;
(e) furnish to selling Securityholders, counsel for the
selling Securityholders and each managing underwriter, if any, without charge,
such number of copies of the Registration Statement as initially filed with the
SEC and of each pre-effective and post-effective amendment or supplement thereto
(in each case including at least one copy of all exhibits thereto and all
documents incorporated by reference therein) and of the Prospectus included
therein, including the preliminary Prospectus and any summary Prospectus, and
any other Prospectus filed under Rule 424 under the Securities Act in connection
with the disposition of any Registrable Equity Securities covered by such
Registration Statement, and such other documents as the selling Securityholders
may reasonably request;
(f) use its reasonable best efforts to register or qualify
the Registrable Equity Securities covered by such Registration Statement under
such other securities or blue sky laws of such jurisdictions as the selling
Securityholders may reasonably request (provided, however, that the Company
shall not be obligated to qualify as a foreign corporation to do business under
the laws of any jurisdiction in which it is not then qualified or to file any
general consent to service of process to effect such registration), and do such
other reasonable acts and things as may be required of it to enable the
11
Securityholders to consummate the disposition in such jurisdiction of the
Registrable Equity Securities covered by such Registration Statement;
(g) in the event of any underwritten public offering, use
its reasonable best efforts to furnish, at the request of the selling
Securityholders, on the date that such Registrable Equity Securities are
delivered to the underwriters for sale pursuant to such registration, (1) an
opinion, dated such date, of the independent counsel representing the Company
for the purposes of such registration, addressed to the underwriters and the
Selling Securityholders and covering matters of the type customarily covered in
such legal opinions; (2) a comfort letter dated such date, and updates thereof,
from the independent certified public accountants who have issued an audit
report on the Company's financial statements included or incorporated by
reference in the Registration Statement, addressed to the underwriters and
covering matters of the type customarily covered by such comfort letters and as
the underwriters shall reasonably request and (3) if requested and if an
underwriting agreement is entered into, indemnification of the underwriters
pursuant to provisions and procedures reasonably requested by the underwriters;
the procedures referred to in this paragraph shall be followed at each closing
under such underwriting or similar agreement, as and to the extent required
thereunder;
(h) enter into customary agreements (including an
underwriting agreement in customary form), use its reasonable best efforts to
cause the satisfaction of the conditions specified in any such underwriting
agreement, and take such other actions as are reasonably required in order to
expedite or facilitate the disposition of such Registrable Equity Securities;
(i) cooperate with the selling Securityholders, the
underwriters participating in the offering and their counsel in any due
diligence investigation reasonably requested by the selling Securityholders or
the underwriters in connection therewith, and participate, to the extent
reasonably requested by the managing underwriter for the offering or the
Securityholders, in efforts to sell the Registrable Equity Securities in the
offering (including, without limitation, participating in "roadshow" meetings
with prospective investors) that would be customary for underwritten primary
offerings of a comparable amount of equity securities by the Company;
(j) use its reasonable best efforts to cause the
Registrable Equity Securities covered by a Registration Statement to be listed
on each national securities exchange or Nasdaq, as applicable, on which the
Company's equity securities are then listed at the time of the sale of such
Registrable Equity Securities pursuant to such Registration Statement;
(k) notify the selling Securityholders, at any time when a
Prospectus is required to be delivered under the Securities Act, upon discovery
that, or upon the happening of any event as a result of which, such Prospectus
(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 (including in a
document incorporated by reference therein), in light of the circumstances under
which they were made, not misleading, and as promptly as practicable prepare a
supplement or post-effective amendment to such Registration Statement or the
12
related prospectus or a supplement or amendment to any document incorporated or
deemed to be incorporated therein by reference, and file with the SEC any other
required document so that, as thereafter delivered to the purchasers of such
Registrable Equity Securities, such Prospectus shall not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; and
(l) on or before the effective date of such Registration
Statement, provide the transfer agent of the Company for the Registrable Equity
Securities with printed certificates for the Registrable Equity Securities by
such Registration Statement, which are in a form eligible for deposit with The
Depository Trust Company.
2.5 Expenses. All expenses incurred in complying with Article II,
including, without limitation, all SEC or stock exchange registration or filing
fees (including all expenses incident to filing with the NASD), stock exchange
listing fees, Nasdaq quotation fees, printing expenses (including all expenses
of printing certificates for Registrable Equity Securities and of printing
prospectuses if the printing of prospectuses is requested by the selling
Securityholders or the managing underwriter, if any), fees and disbursements of
counsel for the Company, the reasonable fees and expenses of one counsel for the
Securityholders and all other selling securityholders (selected by those holding
a majority of the voting power of the Registrable Equity Securities being
registered, with holders of Registrable Equity Securities issuable upon
conversion of Multi-Vote Common Stock having the number of votes to which they
are entitled as holders of such Multi-Vote Common Stock), fees of the Company's
independent public accountants and the expenses of any special audit work
incident to or required for any such registration (including expenses of any
"cold comfort" letters required in connection with this Article II), but subject
to Section 2.1(d)(ii) hereof, the expenses of complying with the securities or
blue sky laws of any jurisdiction and fees and disbursements of underwriters
customarily paid by the issuers or sellers of securities (including reasonable
fees of counsel to the underwriters to the extent customarily paid by the issuer
or sellers of securities), shall be paid by the Company except that any
discounts, commissions or brokers' fees or fees of similar securities industries
professionals and transfer taxes relating to the disposition of the Registrable
Equity Securities will be payable by the Securityholders (or other
securityholders participating in such registered offering) and the Company will
have no obligation to pay any such amounts.
2.6 Indemnification and Contribution.
(a) In the event of any registration of any Registrable
Equity Securities under the Securities Act pursuant to this Agreement, the
Company shall indemnify and hold harmless the selling Securityholders, their
Affiliates, trustees, directors, officers and agents, and each other Person
(including each underwriter) who participated in the offering of such
Registrable Equity Securities and each other Person, if any, who controls any
Securityholder or such participating person within the meaning of the Securities
Act, against any losses, claims, damages or liabilities, joint or several, to
which the Securityholders or any such Affiliate, trustee, director, officer,
agent or participating person or controlling person may become subject under the
Securities Act or any other statute or at common law, insofar as such losses,
13
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement under which such
Registrable Equity Securities were registered under the Securities Act, any
preliminary Prospectus or final Prospectus contained therein, or any amendment
or supplement thereto, 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 not misleading, and shall reimburse the Securityholders or
such Affiliate, trustee, director, officer, agent or participating person or
controlling person for any legal or any other expenses reasonably incurred by
the Securityholders or such Affiliate, trustee, director, officer, agent or
participating person or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company shall not be liable in any such case to a selling
Securityholder, or its Affiliates, trustees, directors, officers, agents or
controlling persons to the extent that any such loss, claim, damage or liability
arises out of or is based upon any actual or alleged untrue statement or actual
or alleged omission made in such Registration Statement, preliminary Prospectus,
Prospectus or amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Securityholder specifically
for use therein or (in the case of any registration pursuant to Section 2.1) to
any underwriter, to the extent that any such loss, claim, damage or liability
arises out of or is based upon any actual or alleged untrue statement or actual
or alleged omission made in such Registration Statement, preliminary Prospectus,
Prospectus or amendment or supplement in reliance upon and in conformity with
written information so furnished for such purposes by such underwriter. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the Securityholders or such Affiliate, trustee,
director, officer, agent or participating person or controlling person, and
shall survive the transfer of such Registrable Equity Securities by the
Securityholders.
(b) Each selling Securityholder hereby agrees to severally,
but not jointly, indemnify and hold harmless the Company, its directors and
officers and each other Person, if any, who controls the Company within the
meaning of the Securities Act against any losses, claims, damages or
liabilities, joint or several, to which the Company or any such director or
officer or any such Person may become subject under the Securities Act or any
other statute or at common law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in any Registration Statement under which Registrable Equity Securities were
registered under the Securities Act, any preliminary Prospectus or final
Prospectus contained therein, or any amendment or supplement thereto 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 not misleading, if in
any such case such statement or alleged statement or omission or alleged
omission was made in reliance on and in conformity with information in writing
provided to the Company by such Securityholder specifically for use in such
Registration Statement, preliminary Prospectus or final Prospectus or any
amendment or supplement thereto. Notwithstanding the provisions of this
paragraph (b) or paragraph (c) below, a Securityholder shall not be required to
indemnify any Person pursuant to this Section 2.6 nor to contribute pursuant to
paragraph (c) below in an amount in excess of the amount of the aggregate net
14
proceeds received by such Securityholder in connection with any such
registration under the Securities Act.
(c) If the indemnification provided for in this Section 2.6
from the Indemnifying Party (as defined in Section 2.6(e) hereof) is unavailable
to an Indemnified Party (as defined in Section 2.6(e) hereof) hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
therein as being subject to indemnification, then the Indemnifying Party, in
lieu of indemnifying such Indemnified Party, shall contribute to the amount paid
or payable by such Indemnified Party as a result of such losses, claims,
damages, liabilities or expenses in such proportion as is appropriate to reflect
the relative fault of the Indemnifying Party and Indemnified Parties in
connection with the actions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party and Indemnified Parties shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Parties, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or proceeding. The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 2.6(c) were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to in this 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
2.6, the Indemnifying Party shall indemnify the Indemnified Party to the full
extent provided in Section 2.6(a) or 2.6(b), as applicable, without regard to
the relative fault of the Indemnifying Party or the Indemnified Party or any
other equitable consideration provided for in this Section 2.6(c).
(d) The indemnification and contribution required by this
Section 2.6 shall be made by periodic payment of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expenses are incurred.
(e) The party seeking indemnification pursuant to this
Section 2.6 is referred to as the "INDEMNIFIED PARTY" and the party from whom
indemnification is sought under this Section 2.6 is referred to as the
"INDEMNIFYING PARTY." The Indemnified Party shall give prompt written notice to
the Indemnifying Party of the commencement of any action or proceeding involving
a matter referred to in Section 2.6(a) or 2.6(b) (an "ACTION"), if an
indemnification claim in respect thereof is to be made against the Indemnifying
Party; provided, however, that the failure to give such prompt notice shall not
relieve the Indemnifying Party of its indemnity obligations hereunder with
respect to such Action, except to the extent that the Indemnifying Party is
materially prejudiced by such failure. The Indemnifying Party shall be entitled
to participate in and to assume the defense of such Action, with counsel
selected by the Indemnifying Party and reasonably satisfactory to the
15
Indemnified Party; provided, however, that (i) the Indemnifying Party, within a
reasonable period of time after the giving of notice of such indemnification
claim by the Indemnified Party, (A) notifies the Indemnified Party of its
intention to assume such defense and (B) appoints such counsel, and (ii) the
Indemnifying Party may not, without the consent of the Indemnified Party,
consent to entry of any judgment or enter into any settlement unless (A) there
is as part thereof no finding or admission of any violation of any rights of any
Person and no effect adverse to the Indemnified Party on any other claims that
may be made against the Indemnified Party, (B) the sole relief provided is
monetary damages that are paid in full by the Indemnifying Party and (C) such
judgment or settlement includes as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release, in form and
substance reasonably satisfactory to the Indemnified Party, from all liability
in respect of such claim or litigation for which such Indemnified Party would be
entitled to indemnification hereunder. If the Indemnifying Party so assumes the
defense of any such Action, (i) the Indemnifying Party shall pay all costs
associated with, any damages awarded in, and all expenses arising from the
defense or settlement of such Action, and (ii) the Indemnified Party shall have
the right to employ separate counsel and to participate in (but not control) the
defense, compromise or settlement of such Action, but the fees and expenses of
such counsel shall be at the expense of the Indemnified Party except that if (A)
the Indemnified Party has been advised by its counsel that there are likely to
be one or more defenses available to it which are different from or additional
to those available to the Indemnifying Party, or (B) such counsel has been
selected by the Indemnified Party solely due to a conflict of interest which
exists between counsel selected by the Indemnifying Party and the Indemnified
Party, the Indemnifying Party shall pay in any such case that portion of the
reasonable fees and expenses of one separate counsel per Action for an
Indemnified Party (or Indemnified Parties in the aggregate, as the case may be),
that are reasonably related to matters covered by the indemnity provided in this
Section 2.6. If the Indemnifying Party does not so assume the defense of such
Action, the Indemnified Party shall be entitled to exercise control of the
defense, compromise or settlement of such Action. No Indemnified Party shall
settle or compromise any Action for which it is entitled to indemnification
under this Agreement without the prior written consent of the Indemnifying Party
(which consent may not be unreasonably withheld or delayed). The other party
shall cooperate with the party assuming the defense, compromise or settlement of
any Action in accordance with this Agreement in any manner that such party
reasonably may request and the party assuming the defense, compromise or
settlement of any Action shall keep the other party fully informed in the
defense of such Action.
(f) The provisions of this Section 2.6 shall be in addition
to, and not in lieu of, the obligations of the Company and the Securityholders
under any underwriting agreement to which they may be party.
2.7 Rule 144. So long as the Company has securities registered under
the Exchange Act, it shall take all actions reasonably necessary to enable the
Securityholders to sell Registrable Equity Securities without registration under
the Securities Act within the limitations of the exemptions provided by Rule
144, including, without limiting the generality of the foregoing, filing on a
timely basis all reports required to be filed by the Exchange Act.
16
2.8 Duration of Equity Registration Rights. The rights and
obligations provided for under this Article II shall terminate (except for the
indemnification and contribution obligations of Section 2.6) for each
Securityholder with respect to the Equity Shelf Registration on the Equity Shelf
Registration Termination Date and with respect to the Equity Demand
Registration, on the earlier of (i) the date on which such Securityholder may
sell pursuant to Rule 144(k) any and all Registrable Equity Securities owned by
it and (ii) such time as such Securityholder no longer owns any Registrable
Equity Securities. For purposes hereof, a member of the Onex Group who owns
shares of Multi-Vote Common Stock shall be considered to own the shares of
Ordinary Common Stock into which such shares of Multi-Vote Common Stock may be
converted, and Aetna shall be considered to own the shares of Ordinary Common
Stock into which the Warrant may be converted.
2.9 "Market Stand-Off" Agreement. Each Securityholder hereby agrees
that for a period of not more than 90 days following the effective date of a
Registration Statement of the Company (other than the Equity Shelf Registration)
filed under the Securities Act relating to the sale by the Company of shares of
Ordinary Common Stock or any other equity security of the Company (provided that
a 180-day period shall apply in the case of a Registration Statement (other than
the Equity Shelf Registration) related to the first registered public offering
of equity by the Company after the Effective Date, other than such an offering
that is registered on Form S-4 or S-8 or any similar form), it shall not,
directly or indirectly, to the extent reasonably requested by the Company and
the managing underwriter, sell, assign or otherwise transfer or dispose of
(other than to transferees who agree to be similarly bound) any shares of
Ordinary Common Stock held by it at any time during such period (including any
sale pursuant to the Equity Shelf Registration), except shares of Ordinary
Common Stock owned by a Securityholder included pursuant to Section 2.2 in the
registration of the Company; provided, however, that all executive officers and
directors of the Company shall enter into written agreements in a form
satisfactory to the Company and applicable underwriter to be similarly bound;
and provided further, however, that the market stand-off agreement contemplated
by this Section 2.9 shall not apply to any Registrable Equity Securities in
respect of which any Securityholder is entitled to and has exercised its demand
registration rights under Section 2.1 hereof (unless and until the Registration
Statement required thereby has been declared effective and such securities have
not been sold pursuant thereto during the effective period thereof). In order to
enforce the foregoing covenant, the Company may impose stop-transfer
instructions with respect to the Registrable Equity Securities of the
Securityholders (and the shares or securities of every other Person subject to
the foregoing restriction) until the end of such period. The time periods
provided herein for which the Company is required to maintain the effectiveness
of an Equity Shelf Registration and an Equity Demand Registration shall be
extended by the aggregate number of days during which Securityholders shall be
prohibited from selling shares of Ordinary Common Stock pursuant to this
Section.
2.10 Transfer of Registration Rights.
(a) The rights of a Securityholder under this Article II
may not be transferred, except (i) to an Affiliate of the Securityholder, (ii)
as incident to the transfer of all the Registrable Equity Securities owned by a
17
Securityholder to a successor to all or substantially all the business and
assets of the Securityholder, or (iii) in conformity with the provisions of
Section 2.10(b) hereof; and provided that the transferee agrees in a writing
executed by such transferee and delivered to the Company to assume the
applicable obligations of the Securityholder under this Article II.
(b) The rights of the Securityholders under this Article II
may be transferred by any Securityholder to a transferee of Registrable Equity
Securities and, in the case of a member of the Onex Group, to a transferee of
Multi-Vote Common Stock (or Ordinary Stock issued or issuable upon conversion of
Multi-Vote Common Stock), and, in the case of Aetna, to a transferee of the
Warrant, by such a transferee to a subsequent transferee of Registrable Equity
Securities, but only where the transfer is not made pursuant to an effective
Registration Statement or Rule 144 or pursuant to another exemption from
registration under the Securities Act pursuant to which the securities sold are
thereafter freely transferable without registration and without restriction
under the Securities Act, and only to such a transferee.
2.11 Granting of Additional Registration Rights. The Company shall
not, without Onex's prior written consent, grant to any third party (i)
piggyback registration rights with respect to an Equity Demand Registration or
(ii) any demand registration rights.
ARTICLE III
CERTAIN SECURITYHOLDER COVENANTS
3.1 Each Securityholder shall vote any shares of Voting Stock
Beneficially Owned by it so that the Management Incentive Plan is authorized,
approved and/or ratified by the shareholders of the Company as may from time to
time be required by any legal regulation or listing standard or to satisfy any
tax requirement; provided, however, that such vote is sought within twelve (12)
months of the Effective Date. This paragraph shall not apply to Aetna as it can
not convert the Warrant into Voting Stock by such time.
ARTICLE IV
MISCELLANEOUS PROVISIONS
4.1 Successor Securities. The provisions of this Agreement pertaining
to shares of Ordinary Common Stock or Multi-Vote Common Stock shall apply
equally to any additional shares of Ordinary Common Stock or Multi-Vote Common
Stock authorized after the Effective Date and any shares of the Company,
regardless of class, series, designation or par value, that are issued as a
dividend on or in any other distribution in respect of, or as a result of a
reclassification (including a change in par value) in respect of, shares of
Ordinary Common Stock and shall also apply to any voting equity security (or, in
the case of Article II, any equity security even if not voting) issued by any
company that succeeds, by merger, consolidation, a share exchange, a
18
reorganization of the Company or any similar transaction, to all or
substantially all the business of the Company, or to the ownership thereof, if
such security was issued in exchange for or otherwise as consideration for or in
respect of shares of Ordinary Common Stock (or other shares considered as shares
of Ordinary Common Stock, as provided by this Section) or Multi-Vote Common
Stock in connection with such succession transaction.
4.2 Equitable Relief. It is hereby acknowledged that irreparable harm
would occur in the event that any of the provisions of this Agreement were not
performed fully by the parties hereto in accordance with the terms specified
herein, and that, except where explicitly provided for herein, monetary damages
are an inadequate remedy for breach of this Agreement because of the difficulty
of ascertaining and quantifying the amount of damage that will be suffered by
the parties relying hereon in the event that the undertakings and provisions
contained in this Agreement were breached or violated. Accordingly, each party
hereto hereby agrees that each other party hereto shall be entitled to an
injunction or injunctions to restrain, enjoin and prevent breaches of the
undertakings and provisions hereof and to enforce specifically the undertakings
and provisions hereof in any court of the United States or any state having
jurisdiction over the matter; it being understood that such remedies shall be in
addition to, and not in lieu of, any other rights and remedies available at law
or in equity.
4.3 No Inconsistent Agreements. The Company has not previously, or
simultaneously, entered into any agreement with respect to any of its securities
granting any registration rights to any Person. The Company shall not hereafter
enter into any agreement with respect to its securities which is inconsistent
with the rights granted to the Securityholders in this Agreement or which
violates any of the covenants of the Company made in this Agreement. The
Securityholders have not previously, or simultaneously, entered into any
agreement which is inconsistent with the performance of their obligations
hereunder and shall not do so.
4.4 Amendments and Waivers. The provisions of this Agreement may be
amended, modified or supplemented, and waivers or consents to departure from the
provisions hereof may be given, only in a writing executed by the Company and
any Securityholder who could be adversely affected thereby. To the extent
permitted by law, no failure to exercise, and no delay on the part of the
Securityholders or the Company in exercising any power or right in connection
with this Agreement, or available at law or in equity, shall operate as a waiver
thereof, and no single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such right or power, shall
preclude any other or further exercise thereof or the exercise of any other
rights or powers. Any written modification or waiver of any provision of this
Agreement shall be effective only in the specific instance and for the purpose
for which it is given.
4.5 Notice Generally. Any notice, demand, request, consent, approval,
declaration, delivery or other communication to be made pursuant to the
provisions of this Agreement or in connection herewith shall be deemed
delivered, served and received: (i) when delivered by hand to the recipient
named below, (ii) on the date of delivery to the address indicated below,
properly addressed, as confirmed by the agency or firm making delivery if the
19
notice is delivered by regularly operating overnight delivery service, such as
Federal Express, (iii) on the date of delivery to the address indicated below,
properly addressed, if sent via the United States Postal Service when sent by
either registered or certified mail, postage prepaid, return receipt requested,
(iv) if on a business day, on the date sent via telecopy, provided such delivery
is confirmed (via a fax confirmation report), or (v) five business days after
having been deposited with the United States Postal Service, properly addressed
and postage prepaid. Notices shall be addressed by name and address to the
recipient, as follows:
if to any member of the Onex Group, at:
Magellan Holdings LP
c/o Onex Investment Corp.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy similarly sent to:
Xxxx Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Telecopier: 000-000-0000
if to Aetna, at:
Aetna Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention L. Xxxxxx Xxxx, Xx., General Counsel
Telecopier: (000) 000-0000
with a copy similarly sent to:
Aetna Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Xx., Vice President
and Treasurer
Telecopier: (000) 000-0000
with a copy similarly sent to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Telecopier: (000) 000-0000, or
20
if to the Company, at:
Magellan Health Services, Inc.
0000 Xxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: General Counsel
with a copy similarly sent to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telecopier: 000-000-0000,
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice.
4.6 Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon a successor company to the Company by merger,
consolidation, reorganization or any like transaction. Except in respect of a
successor company to the Company and except as provided in respect of the rights
and obligations of the Securityholders under Articles II and III hereof, the
rights and obligations of the parties hereunder shall not be assignable.
4.7 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
4.8 Governing Law; Jurisdiction; Jury Waiver. This Agreement shall be
governed by, construed and enforced in accordance with the laws of the State of
Delaware without giving effect to the conflict or choice of laws provisions
thereof. Each of the parties hereby submits to the non-exclusive personal
jurisdiction of, and waives any objection as to venue in respect of any
litigation respecting this Agreement in, the Chancery Court of the State of
Delaware or the United States District Court for the District of Delaware. EACH
PARTY HERETO WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHT HEREUNDER.
4.9 Severability. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity only, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
21
4.10 Entire Agreement. This Agreement represents the complete
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to the subject matter hereof.
4.11 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 agreement.
[SIGNATURE PAGES FOLLOW]
22
IN WITNESS WHEREOF, the Company, Onex and the other parties
hereto have executed this Agreement as of the date first above written.
MAGELLAN HEALTH SERVICES, INC.
By:
---------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
AETNA INC.
By:
---------------------------------------------
Name:
Title:
[Additional signature page follows]
MAGELLAN HOLDINGS LP
By: Onex Partners LP, its General Partner
By: Onex Partners GP LP, its General Partner
By: Onex Partners GP Inc., its General Partner
By:
------------------------------------------------
Name:
Title:
By:
------------------------------------------------
Name:
Title:
By:
------------------------------------------------
Name:
Title:
