Exhibit 4.1
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AMENDMENT NO. 1 TO RIGHTS AGREEMENT
AMENDMENT NO. 1 (this "AMENDMENT"), dated as of April 28, 2002, to
the Rights Agreement, dated as of July 16, 1997 (the "RIGHTS AGREEMENT"),
between Trigon Healthcare, Inc., a Virginia corporation (the "COMPANY"), and
National City Bank, as successor to First Chicago Trust Company of New York, as
Rights Agent (the "RIGHTS AGENT").
WHEREAS, the Company and the Rights Agent have heretofore
executed and entered into the Rights Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
may from time to time supplement or amend the Rights Agreement in accordance
with the provisions of Section 27 thereof;
WHEREAS, the Company proposes to enter into an Agreement and Plan of
Merger, dated as of April 28, 2002 (as amended, supplemented, modified or
replaced from time to time, the "MERGER AGREEMENT"), among Anthem, Inc., an
Indiana corporation ("PARENT"), AI Sub Acquisition Corp., an Indiana corporation
and a direct, wholly owned subsidiary of Parent ("SUB"), and the Company;
WHEREAS, the Company also proposes to enter into a Stock Option
Agreement, dated as of April 28, 2002 (as amended, supplemented, modified or
replaced from time to time, the "STOCK OPTION AGREEMENT"), between the Parent
and the Company, pursuant to which the Company shall grant to the Parent the
option, exercisable upon the occurrence of certain events, to acquire shares of
the Company's Class A common stock, par value $0.01 per share ("COMPANY COMMON
STOCK");
WHEREAS, the Board of Directors of the Company has determined that
the Merger Agreement, the Stock Option Agreement and the terms and conditions
set forth therein and the transactions contemplated thereby, including, without
limitation, the Merger (as defined in the Merger Agreement), are fair to and in
the best interests of the Company and its shareholders;
WHEREAS, the Board of Directors of the Company has determined, in
connection with its contemplation of the Merger Agreement and the Stock Option
Agreement, that it is necessary and desirable to amend the Rights Agreement to
exempt the Merger Agreement, the Stock Option Agreement and the transactions
contemplated thereby, including, without limitation, the Merger and the purchase
of Company Common Stock pursuant to the Stock Option Agreement, from the
application of the Rights Agreement as set forth in this Amendment; and
WHEREAS, all acts and things necessary to make this Amendment a
valid agreement, enforceable according to its terms have been done and
performed, and the execution and delivery of this Amendment by the Company and
the Rights Agent have been in all respects duly authorized by the Company and
the Rights Agent, respectively.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the Company hereby amends the Rights
Agreement as follows:
1. Section 1(a) of the Rights Agreement is hereby amended and
supplemented by adding the following sentence to the end thereof:
"Notwithstanding anything in this Agreement to the contrary, neither
Anthem, Inc., an Indiana corporation ("Parent"), nor AI Sub
Acquisition Corp., an Indiana corporation and a direct, wholly owned
subsidiary of Parent ("Sub"), nor any of Parent's Affiliates or
Associates shall become or be deemed to be an Acquiring Person as a
result of (i) the approval, execution, delivery or performance of
the Agreement and Plan of Merger, dated as of April 28, 2002, among
Parent, Sub and the Company (as amended, supplemented, modified or
replaced from time to time, the "Merger Agreement") or the Stock
Option Agreement, dated as of April 28, 2002, between the Parent and
the Company (as amended, supplemented, modified or replaced from
time to time, the "Stock Option Agreement"), (ii) the consummation
of the Merger (as defined in the Merger Agreement), (iii) the
consummation of any other transaction contemplated in the Merger
Agreement or the Stock Option Agreement, including the purchase of
Company Common Stock thereunder, or (iv) the public announcement of
any of the foregoing."
2. Section 1(bb) of the Rights Agreement is hereby amended
and supplemented by adding the following sentence to the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a
Shares Acquisition Date shall not occur or be deemed to have
occurred as a result of (i) the approval, execution, delivery or
performance of the Merger Agreement or the Stock Option Agreement,
(ii) the consummation of the Merger, (iii) the consummation of any
other transaction contemplated in the Merger Agreement or the Stock
Option Agreement, including the purchase of Company Common Stock
thereunder, or (iv) the public announcement of any of the
foregoing."
3. Section 3(a) of the Rights Agreement is hereby amended and
supplemented by adding the following proviso to the end of the first sentence
thereof:
"; PROVIDED that notwithstanding anything in this Agreement to the
contrary, a Distribution Date shall not occur or be deemed to have
occurred as a result of (i) the approval, execution, delivery or
performance of the Merger Agreement or the Stock Option Agreement,
(ii) the consummation of the Merger, (iii) the consummation of any
other transaction contemplated in the Merger Agreement or the Stock
Option Agreement, including the purchase of Company Common Stock
thereunder, or (iv) the public announcement of any of the
foregoing."
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4. Section 7(a) of the Rights Agreement is hereby amended by
deleting "(i) the Close of Business on July 27, 2007 (the "Final Expiration
Date")," and replacing it with the following:
"(i) the earlier of (x) the Close of Business on July 27, 2007 and
(y) the closing of the transactions contemplated by the Merger
Agreement (such earlier date, the "Final Expiration Date"),"
5. Section 11(a)(ii) of the Rights Agreement is hereby amended
and supplemented by adding the following sentence to the end thereof:
"Notwithstanding anything in this Agreement to the contrary, none of
(i) the approval, execution, delivery or performance of the Merger
Agreement or the Stock Option Agreement, (ii) the consummation of
the Merger, (iii) the consummation of any other transaction
contemplated in the Merger Agreement or the Stock Option Agreement,
including the purchase of Company Common Stock thereunder, or (iv)
the public announcement of any of the foregoing, shall cause the
Rights to be adjusted or become exercisable in accordance with this
Section 11(a)(ii)."
6. Section 13 of the Rights Agreement is hereby amended and
supplemented by adding the following proviso to the end of the first sentence
thereof:
"PROVIDED that, notwithstanding anything in this Agreement to the
contrary, none of (i) the approval, execution, delivery or
performance of the Merger Agreement or the Stock Option Agreement,
(ii) the consummation of the Merger, (iii) the consummation of any
other transaction contemplated in the Merger Agreement or the Stock
Option Agreement, including the purchase of Company Common Stock
thereunder, or (iv) the public announcement of any of the foregoing,
shall be deemed to be an event of the type described in clauses (a),
(b) or (c) of this Section 13 or cause the Rights to be adjusted or
become exercisable in accordance with the terms of this Agreement or
trigger or invoke any of the provisions of this Section 13."
7. Section 29 of the Rights Agreement is hereby amended and
supplemented by adding the following sentence to the end thereof:
"Nothing in this Agreement shall be construed to give any holder of
Rights or any other Person, other than the parties hereto, any legal
or equitable rights, remedies or claims under this Rights Agreement
by virtue of the approval, execution, delivery or performance of the
Merger Agreement or the Stock Option Agreement or by virtue of any
of the transactions contemplated by the Merger Agreement or the
Stock Option Agreement."
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8. This Amendment shall be deemed effective as of the date first
written above, as if executed on such date. Except as amended hereby, the Rights
Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
9. This Amendment shall be deemed to be a contract made under the
laws of the Commonwealth of Virginia and for all purposes shall be governed by
and construed in accordance with the laws of such Commonwealth applicable to
contracts to be made and performed entirely within such Commonwealth.
10. This Amendment may be executed in any number of counterparts and
each of such counterparts shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and the same
instrument.
11. In all respects not inconsistent with the terms and provisions
of this Amendment, the Rights Agreement is hereby ratified, adopted, approved
and confirmed. In executing and delivering this Amendment, the Rights Agent
shall be entitled to all the privileges and immunities afforded to the Rights
Agent under the terms and conditions of the Rights Agreement.
12. If any term, provision, covenant or restriction of this
Amendment is held by a court of competent jurisdiction or other authority to be
invalid, illegal or incapable of being enforced, the remainder of the terms,
provisions, covenants and restrictions of this Amendment, and of the Rights
Agreement, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. Upon any such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify such provision so as to effect
the original intent of the parties as closely as possible and in an acceptable
manner with respect to such provision to the greatest extent possible.
13. Except as otherwise expressly provided herein, or unless the
context otherwise requires, all terms used herein have the meanings assigned to
them in the Rights Agreement.
14. The Rights Agent and the Company hereby waive any notice
requirement under the Rights Agreement pertaining to the matters covered by this
Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and attested, all as of the day and year first written above.
TRIGON HEALTHCARE, INC.
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx, Xx.
Title: Chairman & Chief Executive
Officer
NATIONAL CITY BANK, as Rights
Agent
By: /s/ Xxxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxxx
Title: Vice President
Rights Agreement Amendment Signature Page
