EXHIBIT 2
CO-INVESTMENT AGREEMENT
This Co-Investment Agreement (this "Agreement"), is made as of
January 5, 2004 by and among (i) R(2) Investments, LDC ("Investments"),
Amalgamated Gadget, L.P. ("Amalgamated") and Scepter Holdings, Inc. ("Scepter");
and (ii) Magellan Holdings LP ("MHLP"), Onex Corporation ("Onex") and Onex
Partners LP ("Onex Partners").
WHEREAS, the Third Amended Joint Plan of Reorganization (the
"Plan of Reorganization") of Magellan Health Services, Inc. (the "Company") and
certain of its subsidiaries under Chapter 11 of the Bankruptcy Code dated August
18, 2003, as amended on September 25, 2003, October 8, 2003 and October 9, 2003
was confirmed on October 8, 2003; and
WHEREAS, in order to induce Investments to agree, among other
things, not to take any action to oppose confirmation of the Plan of
Reorganization, Onex agreed, among other things, to enter into this Agreement;
and
NOW, THEREFORE, in consideration of the foregoing and the
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which the parties hereto hereby acknowledge, the
parties hereto agree as follows:
1. DEFINITIONS.
Capitalized terms used but not otherwise defined herein shall
have the meanings ascribed to such terms in the Plan of Reorganization.
"beneficial owner" (and the derivative terms "beneficially
owned" and "beneficial ownership") shall have the meaning ascribed to such terms
in the rules under Section 13(d) of the Securities Exchange Act of 1934, as
amended.
"Person" means any individual, corporation, partnership, joint
venture, incorporated or unincorporated association, joint-stock company,
limited liability company, trust, unincorporated organization or government or
other agency or political subdivision thereof or other entity of any kind.
"Onex Group" means, collectively, MHLP, Onex, Onex Partners
and any entity controlling, controlled by, or under common control with MHLP,
Onex or Onex Partners.
"R(2)" means, collectively, Investments, Amalgamated, Scepter
and any other entity controlling, controlled by, or under common control with
Investments, Amalgamated, or Scepter.
2. CO-INVESTMENT RIGHT.
Until this Agreement terminates in accordance with Section 9,
no Person within the Onex Group, on the one hand, or within R(2), on the other
hand, shall commence any tender offer for shares of New Common Stock, any shares
of any class of capital stock into or for which the New Common Stock is
converted or exchanged ("Replacement Stock"), or any warrants, options, rights,
capital stock, notes or other debt or equity securities issued by the Company
which are convertible into or exchangeable or exercisable for shares of New
Common Stock or Replacement Stock or which participate with New Common Stock or
Replacement Stock in dividends or distributions upon liquidation ("Other
Securities" and together with New Common Stock and Replacement Stock,
"Securities") unless whichever of the Onex Group or R(2) desires to commence a
tender offer (the "Initiating Party") affords the other (the "Non-Initiating
Party") the opportunity to participate in such tender offer as a bidder (whether
or not R(2) or the Onex Group elects to so participate) on the basis that the
shares purchased pursuant to such tender offer would be purchased by all Persons
within the Onex Group, on the one hand, and all Persons within R(2), on the
other hand, in proportion to (a) the number of shares (without distinction as to
class) of MVS Securities, New Common Stock and Replacement Stock (with an
appropriate adjustment in the event the New Common Stock was exchanged for or
converted into Replacement Stock on other than a one-for-one basis) beneficially
owned, or in which a full equivalent economic interest is held, including,
without limitation, through an interest in a derivative or "swap" transaction
(hereinafter, an "equivalent economic interest"), by the Onex Group and by R(2),
respectively,
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relative to (b) the total number of Shares of MVS Securities, New Common Stock
and Replacement Stock beneficially owned or in which an equivalent economic
interest is held, by the Onex Group and R(2), collectively, immediately prior to
the date of delivery of the Offer Notice (as defined below). For purposes of
this Agreement, a Person shall be deemed to beneficially own or have an
equivalent economic interest in any shares of New Common Stock or Replacement
Stock into which or for which any Other Securities beneficially owned by such
Person, or in which such Person has an equivalent economic interest, are
convertible, exchangeable or exercisable. For all purposes hereof, the Onex
Group shall be represented by Onex and R(2) shall be represented by Amalgamated.
3. PROCEDURES FOR COMMENCEMENT OF TENDER OFFER.
(a) At least 10 and no more than 30 days prior to the
commencement by any Person(s) within the Initiating Party of a tender offer for
shares of Securities, the Initiating Party shall give written notice (the "Offer
Notice") to the Non-Initiating Party offering each Person within the
Non-Initiating Party the opportunity to participate as a bidder in the proposed
tender offer to purchase in the aggregate the number of shares determined in
accordance with Section 2. The Offer Notice shall set forth the salient terms of
the proposed tender offer, including, without limitation, (i) the price per
share to be paid for the shares of the Securities, which shall be in cash and
which may be a fixed price or a variable price tied to the market price of the
Securities, (ii) the total number of shares for which the Initiating Party
proposes the tender offer will be made, based on the assumption that the
Non-Initiating Party will not elect to participate, (iii) the proposed timing of
the tender offer and (iv) the proposed conditions to the obligation of the
offeror(s) to accept shares of the Securities for payment pursuant to the tender
offer. The Offer Notice shall also set forth the number of shares of MVS
Securities, New Common Stock and Replacement Stock which the Initiating Party
beneficially owns or in which it has an equivalent economic interest as of the
date of the Offer Notice, and a description of such ownership and interest in
reasonable detail, and shall be accompanied by evidence reasonably satisfactory
to the Non-Initiating Party of such ownership and interest.
(b) The Non-Initiating Party shall have until 5:00 p.m.,
New York City time, on the fifth day (if such day is a Business Day, and if such
day is not a Business Day, then on the next Business Day) following the date of
delivery to the Non-Initiating Party of the Offer Notice (the "Offer Deadline"),
to deliver written notice (an "Election Notice") to the Initiating Party (i)
stating that it elects to participate in the tender offer, (ii) setting forth
the number of shares of MVS Securities, New Common Stock and Replacement Stock
which it beneficially owned or in which it had an equivalent economic interest
immediately prior to the date of delivery of the Offer Notice, and a description
of such ownership and interest in reasonable detail and (iii) stating the total
number of shares which the Non-Initiating Party is willing to purchase in the
tender offer, which shall not exceed the number of shares which the
Non-Initiating Party would be entitled to purchase, as determined in accordance
with Section 2 (the "Maximum Participation"). The Election Notice shall be
accompanied by evidence reasonably satisfactory to the Initiating Party that (i)
immediately prior to the date of delivery of the Offer Notice, the
Non-Initiating Party beneficially owned or had an equivalent economic interest
in the number of shares of MVS Securities, New Common Stock and/or Replacement
Stock set forth in the Election Notice in response to clause (ii) of the first
sentence of this Section 3(b) and (ii) in the event requested by the Initiating
Party, each Person within the Non-Initiating Party participating in the tender
offer has the financial capability to fulfill its share of the obligations to
purchase shares in the tender offer.
(c) Following delivery to the Initiating Party of an
Election Notice, the Non-Initiating Party (x) shall not tender any Securities
for purchase pursuant to the tender offer (and the number of shares sought in
the tender offer shall be reduced if necessary, so as not to exceed the total
number of shares outstanding that are not beneficially owned by any Person
within the Onex Group or R(2)) and (y) shall be obligated to participate in the
tender offer and to purchase the total number of shares in the tender offer set
forth in the Election Notice (subject to adjustment as provided in Section 3(f)
and 3(g)), at a price no greater than the price set forth in the Offer Notice
and on the same terms and conditions as shares are being purchased by the
Initiating Party, provided, however, that (i) in the event the tender offer has
not been consummated within 180 days following the date of delivery of the Offer
Notice (other than as a result of the failure of the Non-Initiating Party to
comply with its obligations hereunder), the Non-Initiating Party shall be
relieved of such obligations in the event it delivers written notice to the
Initiating Party that it will no longer participate in the tender offer (a
"Non-Participation Notice") and (ii) in the event the tender offer is not
commenced by the Initiating Party within 30 days following the date of delivery
of the Offer Notice (other than as a result of the failure of the Non-Initiating
Party to comply with its obligations hereunder), the Non-Initiating Party shall
be relieved of such obligations. In the event any Person(s) within the
Initiating Party desire to commence a tender offer after such 30-day period,
they shall be required to deliver another Offer Notice to
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the Non-Initiating Party and to again comply with the procedures set forth in
this Section 3. In the event the Non-Initiating Party delivers a
Non-Participation Notice to the Initiating Party, the Initiating Party shall
have the right to consummate the tender offer without the participation of the
Non-Initiating Party for a period of 90 days following the date of delivery of
the Non-Participation Notice, after which time the Initiating Party shall be
required to terminate any outstanding tender offer and if any Person(s) within
the Initiating Party desire to commence a tender offer thereafter, they shall be
required to deliver another Offer Notice to the Non-Initiating Party and to
again comply with the procedures set forth in this Section 3.
(d) In the event that (i) the tender offer is not
consummated in accordance with the terms set forth in the Offer Notice and (ii)
the Initiating Party consequently desires to increase the price to be paid for
shares or the number of outstanding shares to be purchased through an
outstanding tender offer in which the Non-Initiating Party has elected to
participate, the Initiating Party shall deliver written notice of such proposed
change to the Non-Initiating Party (the "Modification Notice"). By 5:00 p.m.,
New York City time, on the second Business Day following the date of delivery of
the Modification Notice, the Non-Initiating Party shall notify the Initiating
Party in writing whether it wishes to continue to participate in such tender
offer with such modified terms. In the event the Non-Initiating Party so elects
to continue to participate, the Non-Initiating Party shall continue to be
obligated to participate in the tender offer with such modified terms, and
otherwise in accordance with Section 3(c) as though no such modification was
made. In the event the Non-Initiating Party does not so elect to continue to
participate in such tender offer with such modified terms, or does not deliver
any written notice to the Initiating Party by 5:00 p.m., New York City time, on
the second Business Day following the date of delivery of the Modification
Notice, (i) the Initiating Party shall have the right to modify the tender offer
and consummate the tender offer at a price and for a number of shares of the
Securities equal to or greater than that set forth in the Modification Notice
without the participation of the Non-Initiating Party for a period of 90 days
following the date of delivery of the Modification Notice, after which time the
Initiating Party shall be required to terminate any outstanding tender offer and
if any Person(s) within the Initiating Party desire to commence a tender offer
thereafter, they shall be required to deliver another Offer Notice to the
Non-Initiating Party and to again comply with the procedures set forth in this
Section 3 and (ii) in the event the Initiating Party so modifies the tender
offer, the Non-Initiating Party shall no longer be obligated to participate in
the tender offer in accordance with Section 3(c).
(e) In the event the Non-Initiating Party delivers an
Election Notice to the Initiating Party with respect to a tender offer, the
Initiating Party shall control the timing and process of such tender offer and
any acquisition of shares of the Securities pursuant to the tender offer, and
all actions to be taken in connection therewith, including, without limitation,
the preparation of filings with governmental bodies, the negotiation of
documentation with third parties necessary to effect and consummate the tender
offer and purchase the Securities pursuant to the tender offer, and the
retention of counsel and other advisors; provided, however, that (i) the
Initiating Party shall keep the Non-Initiating Party reasonably informed as to
the timing and status of the tender offer and shall permit the Non-Initiating
Party to participate in the process of the tender offer and any related
acquisition of shares of the Securities and (ii) the Non-Initiating Party may
retain separate counsel and other advisors chosen by it at its own expense.
(f) In the event that the Onex Group and R(2) are unable
to agree on the respective numbers and relative proportion of shares which they
would be entitled to purchase pursuant to any tender offer for which the
Non-Initiating Party has delivered an Election Notice, any description or
calculation of the numbers, and relative proportion of shares to be purchased by
the Onex Group and R(2), respectively, as set forth in any filing or other
documentation regarding the tender offer, shall be based on the good faith
determination of the Initiating Party, taking into account the information
regarding beneficial ownership and equivalent economic interest set forth in the
Election Notice and the accompanying evidence thereof. In the event that any
such disagreement has not been resolved at the time the Initiating Party is
prepared to accept shares for payment pursuant to the tender offer, the
Initiating Party may accept such shares for payment and the Non-Initiating Party
shall purchase the proportion of shares so accepted for payment described in the
tender offer documentation, as determined by the Initiating Party in accordance
with this Section 3(f). Promptly following resolution of any such disagreement,
whether by agreement of the parties, judicial determination or otherwise, the
Non-Initiating Party shall purchase from the Initiating Party, and the
Initiating Party shall sell to the Non-Initiating Party, on such terms, the
number of shares equal to the difference between (i) the product of (A) the
lesser of (x) the maximum number of shares which the Non-Initiating Party was
entitled to purchase in the tender offer, as determined by the parties, the
court or otherwise in such resolution and (y) the number of shares which the
Non-Initiating Party elected to purchase in the Election Notice and (B) a
fraction, the numerator of which is the number of shares purchased in the tender
offer and the denominator of which is the number of shares for which the tender
offer was made, and (ii) the number of shares purchased by the Non-Initiating
Party in the tender offer. In the event such disagreement is resolved by means
other than agreement of the
Page 23 of 29 Pages
parties, all reasonable fees and expenses incurred by the Initiating Party and
the Non-Initiating Party in connection with such disagreement shall be borne by
the parties in proportion to the relative differences between each such party's
final position as to the number of shares or percentage of total shares
purchased that the Non-Initiating Party is entitled to purchase in the tender
offer, as submitted to the court or other body resolving the disagreement, and
the final determination of the court or other body resolving the disagreement;
provided, however if the body resolving the disagreement determines that the
Non-Initiating Party is entitled to purchase a number of shares greater than the
highest number proposed or lower than the lowest number proposed by the parties,
the party whose final determination submitted to the court was furthest from the
court's determination shall bear all such fees and expenses. For example, (a) if
the Non-Initiating Party's final position is that it is entitled to purchase 15%
of the total shares purchased and the Initiating Party's final position is that
the Non-Initiating Party is entitled to purchase 10% of the total shares
purchased and (b) if the body resolving the disagreement determines that the
Non-Initiating Party is entitled to purchase: (i) 14%, then the Initiating Party
would bear 80% of such fees and expenses, (ii) 9%, then the Initiating Party
would bear none of such fees and expenses, and (iii) 16%, then the Initiating
Party would bear 100% of such fees and expenses.
(g) In the event shares are accepted for payment pursuant
to a tender offer with respect to which the Non-Initiating Party delivered an
Election Notice to the Initiating Party and the number of shares tendered for
payment is less than the total number of shares for which the tender offer was
made, the numbers of shares which the parties are entitled and obligated to
purchase shall be reduced on a pro rata basis in proportion to the numbers of
shares which they would have been entitled and obligated to purchase had all
shares covered by the tender offer been tendered.
(h) In the event the Non-Initiating Party does not
deliver an Election Notice to the Initiating Party by the Offer Deadline, the
Initiating Party shall have the right, for a period of (i) 30 days following the
date of delivery of the Offer Notice to commence a tender offer and (ii) 180
days following the date of delivery of the Offer Notice to consummate a tender
offer, without any participation by any Person within the Non-Initiating Party,
at a price per share in cash and for a number of shares of the Securities equal
to or greater than the price and the number of shares set forth in the Offer
Notice and having such other terms as are materially no less favorable to the
bidder in the tender offer than those set forth in the Offer Notice.
(i) Nothing contained in this Agreement shall require the
Initiating Party to commence or consummate the proposed tender offer described
in an Offer Notice following delivery to the Non-Initiating Party of such Offer
Notice.
4. COOPERATION; INDEMNIFICATION.
In the event the Non-Initiating Party elects to participate in
a tender offer initiated by the Initiating Party, the Non-Initiating Party shall
cooperate with the Initiating Party in the commencement, conduct and
consummation of the tender offer and any related acquisition of shares of the
Securities, and shall take all actions and execute and deliver all documents
required to be taken by it in connection therewith, including, without
limitation, promptly furnishing the Initiating Party with all information
required to be included in filings required to be made with any governmental
body in connection with the tender offer or the acquisition of the Securities,
whether pursuant to the Securities Exchange Act of 1934, as amended, the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act, foreign antitrust laws, state
regulatory requirements or otherwise. The Initiating Party shall give the
Non-Initiating Party and its counsel, if any, the opportunity to review the
foregoing before filing or execution thereof and will consider in good faith the
comments of the Non-Initiating Party thereon. Unless the Non-Initiating Party
delivers a Withdrawal Notice, the Initiating Party shall undertake, in a form
and on terms reasonably acceptable to the Initiating Party, to indemnify and
hold harmless the Non-Initiating Party from and against any losses, claims,
damages, liabilities, judgments, costs and expenses arising out of any untrue
statement of a material fact contained in any such filing, or any omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, to the extent, but only to the extent, that such untrue
statement or omission relates to the Initiating Party. The Non-Initiating Party
shall undertake, in a form and on terms reasonably acceptable to the Initiating
Party, to indemnify and hold harmless the Initiating Party from and against any
losses, claims, damages, liabilities, judgments, costs and expenses arising out
of any untrue statement of a material fact contained in any such filing or any
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, to the extent, but only to the extent,
that such untrue statement or omission is based on information furnished by the
Non-Initiating Party to the Initiating Party for use in any such filing.
5. CONFIDENTIALITY.
Page 24 of 29 Pages
Any Offer Notice delivered pursuant to this Agreement and the
subject matter thereof shall be kept strictly confidential by the recipient
thereof. Notwithstanding anything to the contrary described herein, the parties
hereto and each of their respective employees, representatives or other agents,
are permitted to disclose to any and all Persons, without limitations of any
kind, the tax treatment and tax structure of the transactions contemplated by
any such Offer Notice and all materials of any kind (including opinions or other
tax analyses) that are or have been provided to such parties related to such tax
treatment and tax structure; provided, however, that the foregoing permission to
disclose the tax treatment and tax structure does not permit the disclosure of
any information that is not relevant to understanding the tax treatment or tax
structure of any such transactions (including the identity of any party and the
amounts paid or to be paid in connection with such transactions); provided,
further, however, that the tax treatment and tax structure shall be kept
confidential to the extent necessary to comply with federal or state securities
laws.
6. EXPENSES.
Subject to the last two sentences of Section 3(f), each of the
Onex Group and R(2) shall be responsible for its own fees and expenses in
connection with the negotiation, preparation and execution of this Agreement and
the performance of its obligations hereunder; provided, however, that all
out-of-pocket fees and expenses incurred by an Initiating Party (including,
without limitation, fees and expenses of counsel and other advisors) in
connection with a tender offer with respect to which the Non-Initiating Party
delivers an Election Notice and any related acquisition of shares of the
Securities shall be borne by the Onex Group and R(2) in proportion to the number
of shares required to be purchased by them in such tender offer; provided,
further, however, that (i) in the event the Initiating Party fails to commence
the tender offer within 30 days following the date of delivery of the Offer
Notice, other than as a result of the failure of the Non-Initiating Party to
comply with its obligations hereunder, then all such out-of-pocket fees and
expenses incurred by the Initiating Party shall be borne by the Initiating
Party, (ii) in the event the tender offer is not consummated within 180 days
following the date of delivery of the Offer Notice, other than as a result of
the failure of the Non-Initiating Party to comply with its obligations
hereunder, and the Non-Initiating Party delivers a Non-Participation Notice to
the Initiating Party, then all such out-of-pocket fees and expenses incurred by
the Initiating Party after the date of delivery of such Non-Participation Notice
shall be borne by the Initiating Party and (iii) in the event (x) the Initiating
Party delivers a Modification Notice to the Non-Initiating Party pursuant to
Section 3(d), (y) the Non-Initiating Party does not elect to continue to
participate in the modified tender offer and (z) the Initiating Party
consummates the modified tender offer, then all such out-of-pocket fees and
expenses incurred by the Initiating Party shall be borne by the Initiating
Party.
7. COMPLIANCE BY PERSONS WITHIN THE ONEX GROUP AND R(2).
MHLP, Onex and Onex Partners shall cause each other Person
within the Onex Group to comply with the obligations of the Onex Group hereunder
and Investments, Amalgamated and Scepter shall cause each other Person within
R(2) to comply with the obligations of R(2) hereunder.
8. SUCCESSORS AND ASSIGNS.
The terms of this Agreement shall be binding on the parties
hereto and their respective successors and assigns.
9. TERMINATION.
This Agreement shall terminate at such time as either the Onex
Group, on the one hand, or R(2), on the other hand, ceases to beneficially own
or have an equivalent economic interest in at least 5% of the aggregate number
of shares of MVS Securities, New Common Stock and Replacement Stock (with an
appropriate adjustment in the event the New Common Stock was exchanged for or
converted into Replacement Stock on other than a one-for-one basis) then
outstanding; provided, however, that any outstanding obligations of any party
hereto with respect to a tender offer for which any Non-Initiating Party has
delivered an Election Notice prior to the time of such termination shall survive
such termination.
10. NOTICES.
All notices, waivers and other communications required or
permitted by this Agreement shall be in writing and shall be deemed given to a
party when (a) delivered to the appropriate address by hand or by nationally
recognized overnight courier service (costs prepaid); (b) sent by facsimile with
confirmation of transmission by the transmitting equipment and by telephone; or
(c) received or rejected by the addressee, if sent by certified mail, return
receipt requested, in each case to the following addresses or facsimile numbers
and marked to the attention of the person (by name or title)
Page 25 of 29 Pages
designated below (or to such other address, facsimile number, e-mail address or
person as a party may designate by notice to the other parties):
If to any Person within the Onex Group:
c/o Onex Investment Corp.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xx Xxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
and:
x/x Xxxx Xxxxxxxxxxx
000 Xxx Xxxxxx
00xx Xxxxx
X.X. Xxx 000
Xxxxxxx, Xxxxxxx
X0X0X0 Xxxxxx
Attention: Xxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Xxxx Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
If to any Person within R(2):
c/o Amalgamated Gadget, L.P.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Xx.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx, LLP
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. X'Xxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Page 26 of 29 Pages
Any notice or other communication required to be delivered
hereunder to or by any Person within the Onex Group shall be deemed to have been
given if given to or by, as the case may be, Onex in accordance with this
Section 10 and any notice or other communication required to be delivered
hereunder to or by any Person within R(2) shall be deemed to have been given if
given to or by, as the case may be, Amalgamated in accordance with this Section
10.
11. EFFECTIVENESS.
This Agreement shall become effective and binding on the
Effective Date, provided that each of the parties hereto has executed and
delivered a counterpart signature page hereto.
12. AMENDMENT AND WAIVER.
Any term of this Agreement may be amended or modified and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of Onex and Amalgamated.
13. ENTIRE AGREEMENT.
This Agreement supersedes all prior agreements among the
parties with respect to its subject matter and constitutes a complete and
exclusive statement of the terms of the agreement between the parties with
respect to its subject matter.
14. SUBMISSION TO JURISDICTION; WAIVER OF TRIAL BY JURY.
Each party hereto irrevocably consents and agrees that any
legal action or proceeding with respect to this Agreement and any action for
enforcement of any judgment in respect thereof will be brought in the Chancery
Court of the State of Delaware or, if it has or can acquire jurisdiction, the
United States District Court for the District of Delaware, and, by execution and
delivery of this Agreement, each party hereby submits to and accepts for itself
and in respect of its property, generally and unconditionally, the exclusive
jurisdiction of the aforesaid courts and appellate courts from any appeal
thereof. Each party to this Agreement further irrevocably consents to the
service of process out of any of the aforementioned courts in any such action or
proceeding by the delivery of copies thereof in the manner set forth in Section
10. Each party to this Agreement hereby irrevocably waives any objection which
it may now or hereafter have to the laying of venue of any of the aforesaid
actions or proceedings arising out of or in connection with this Agreement
brought in the courts referred to above and hereby further irrevocably waives
and agrees not to plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an inconvenient forum.
Nothing in this Section shall be deemed to constitute a submission to
jurisdiction, consent or waiver with respect to any matter not specifically
referred to herein. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY
IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR
COUNTERCLAIM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY MATTER
ARISING HEREUNDER.
15. COUNTERPARTS; FACSIMILE EXECUTION.
This Agreement may be executed in any number of counterparts
and by different parties on separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed to be an original and all of
which counterparts, taken together, shall constitute but one and the same
agreement. This Agreement may be executed and delivered by telecopier, provided,
however, that the parties shall endeavor to deliver original counterpart
signatures to the other parties as soon thereafter as practicable.
16. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, ENFORCED AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CHOICE OF LAW PRINCIPLES.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
R(2) INVESTMENTS, LDC
By: Amalgamated Gadget, L.P., its
Investment Manager
Page 27 of 29 Pages
By: Scepter Holdings, Inc., its
General Partner
By: /s/ Xxxxxx XxXxxxxxx
------------------------------
Title: Vice President
AMALGAMATED GADGET, L.P.
By: Scepter Holdings, Inc., its
General Partner
By: /s/ Xxxxxx XxXxxxxxx
------------------------------
Title: Vice President
SCEPTER HOLDINGS, INC.
By: /s/ Xxxxxx XxXxxxxxx
----------------------------------
Title: Vice President
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: /s/ Xxxxxxx Xxxx
----------------------
Title: Vice President
By: /s/ Xxxx Xxxxxxx
----------------------
Title: Vice President
[Additional signature page follows]
ONEX CORPORATION
By: /s/ Xxxxxxxxxxx Xxxxx
----------------------------------
Title: Vice President Taxation
By: /s/ Xxxx Xxxxxx
----------------------------------
Title: Vice President
ONEX PARTNERS LP
By: Onex Partners GP LP, its General
Partner
By: Onex Partners GP Inc., its
General Partner
By: /s/ Xxxxxxx Xxxx
--------------------------
Page 28 of 29 Pages
Title: Vice President
By: /s/ Xxxx Xxxxxxx
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Title: Vice President
Page 29 of 29 Pages
