FOURTH AMENDMENT
TO
RIGHTS AGREEMENT
----------------------
THE CENTRIS GROUP, INC.
This Fourth Amendment to Rights Agreement (the "Fourth Amendment") is made
and entered into as of July 23, 1997, by and between THE CENTRIS GROUP, INC., a
Delaware corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST
COMPANY (the "Rights Agent") for the purpose of making a fourth amendment to
that certain Rights Agreement dated as of May 24, 1990 between the Company and
the Rights Agent, as amended (the "Rights Agreement").
1. Authority for Amendment.
(a) This Fourth Amendment is made and entered into pursuant to
Section 27 of the Rights Agreement.
(b) By action taken on July 23, 1997, the Board of Directors of the
Company directed the Company and the Rights Agent to amend the Rights Agreement
as hereinafter set forth.
2. The Amendment.
(a) The first paragraph of the Rights Agreement is deleted in its
entirety and the following paragraph is substituted in its place:
This Rights Agreement ("Agreement") was made and entered into as of
the 24th day of May, 1990, by and between The Centris Group, Inc.,
a Delaware corporation formerly known as US Facilities Corporation
(the "Company"), and American Stock Transfer & Trust Company, as
successor rights agent (the "Rights Agent").
A corresponding change of the parties to the Rights Agreement is
hereby made to the signature page of the Rights Agreement.
(b) In line 6 of the second Whereas paragraph on page 1 of the
Rights Agreement, the phrase "Section 11(a)(ii) Event" is deleted in its
entirety and the phrase "Distribution Date" is substituted in its place.
(c) Section 1(w) of the Rights Agreement is deleted in its entirety
and the following paragraph is substituted in its place:
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(w) "15% Ownership Date" shall mean the first date of public
announcement (which for purposes of this definition shall include,
without limitation, a report filed pursuant to Section 13(d) under
the Exchange Act) by the Company or any Person that such person has
become a 15% Stockholder, or such earlier date when a majority of
the Board of Directors of the Company shall become aware of the
existence of a 15% Stockholder; provided, however, that if such
Person is thereafter determined not to have become a 15%
Stockholder within the meaning of Section 1(x), then no 15%
Ownership Date shall be deemed to have occurred.
(d) Section 1(x) of the Rights Agreement is deleted in its entirety
and the following paragraph is substituted in its place:
(x) "15% Stockholder" shall mean any Person that, together
with all Affiliates and Associates of such Person, hereafter
acquires Beneficial Ownership of, in the aggregate, without the
prior approval of the Board of Directors of the Company, 15% or
more of the Voting Shares of the Company then outstanding;
provided, however, that the term "15% Stockholder" shall not
include: (i) the Company, any wholly owned Subsidiary of the
Company, any employee benefit plan of the Company or of a
Subsidiary of the Company, or any Person holding Voting Shares for
or pursuant to the terms of any such employee benefit plan; or (ii)
any Person if such Person would not otherwise be a 15% Stockholder
but for a reduction in the number of outstanding Voting Shares
resulting from a stock repurchase program or other similar plan of
the Company or from a self-tender offer of the Company, which plan
or tender offer commenced on or after the date hereof; provided,
however, that the term "15% Stockholder" shall include such Person
from and after the first date upon which (A) such Person, since the
date of commencement of such stock repurchase plan or Company
self-tender offer, shall have acquired Beneficial Ownership of, in
the aggregate, additional Voting Shares of the Company representing
1% or more of the Voting Shares then outstanding, and (B) such
Person, together with all Affiliates and Associates of such Person,
shall Beneficially Own 15% or more of the Voting Shares of the
Company then outstanding. In calculating the percentage of the
outstanding Voting Shares that are Beneficially Owned by the Person
for purposes of this subsection (x), Voting Shares that are
Beneficially Owned by such Person shall be deemed outstanding, and
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Voting Shares that are not Beneficially Owned by such Person and
that are subject to issuance upon the exercise or conversion of
outstanding conversion rights, exchange rights, warrants or options
shall not be deemed outstanding. The Board of Directors shall have
the sole and absolute discretion to make a final determination
as to whether any Person is or is not to be considered a 15%
Stockholder for purposes of this Rights Agreement, which
determination shall be conclusive for all purposes and shall be
binding upon all holders of the Rights. Notwithstanding the
foregoing, if the Board of Directors of the Company determines in
good faith that a Person who would otherwise be a "15%
Stockholder," as defined in this paragraph (x), has become such
inadvertently, and such Person divests as promptly as practicable a
sufficient number of Voting Shares so that such Person would no
longer be a "15% Stockholder, " as defined in this paragraph (x),
then such Person shall not be deemed to be a "15% Stockholder" for
any purposes of this Agreement.
(e) Section 3(a) of the Rights Agreement is deleted in its entirety
and the following paragraph is substituted in its place:
(a) "Distribution Date" shall mean the date, after the date
hereof, that is the earlier of (i) the Close of Business on the
tenth Business Day after the 15% Ownership Date, or (ii) the Close
of Business on the tenth Business Day after the date that a tender
offer or exchange offer by any Person is first published or given
within the meaning of Rule 14d-2(a) of the General Rules and
Regulations under the Exchange Act if, upon consummation thereof,
such Person together with its Affiliates and Associates, would be
the Beneficial Owner of 15% or more of the Voting Shares then
outstanding (irrespective of whether any shares were actually
purchased pursuant to such offer); provided, however, that each of
the time periods in (i) and (ii) above is subject to an extension
as authorized by Section 27.
(f) In line 2 and line 8 of Section 3(g) of the Rights Agreement,
the phrase "Section 11(a)(ii) Event" shall be deleted in its entirety and the
phrase "Distribution Date" is substituted in its place.
(g) The term "$50,000,000.00" in Section 21 of the Rights Agreement
is deleted and the number "$10,000,000.00" is substituted in its place.
(h) Section 23(a) of the Rights Agreement is deleted in its
entirety and the following paragraph is substituted in its place:
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(a) At any time prior to the earlier of (i) the Close of
Business on the tenth Business Day following the 15% Ownership
Date, subject to an extension as authorized by Section 27, or (ii)
the Close of Business on the Expiration Date, a majority, but not
less then three, of the Independent Directors may, at their option,
direct the Company to redeem all, but not less than all, of the
outstanding Rights at a Redemption Price of $.001 per Right, as
such Redemption Price shall be appropriately adjusted to reflect
any stock split, stock dividend or similar transaction occurring
after the date hereof (the "Redemption Price"), and the Company
shall so redeem the Rights.
(i) The last sentence of Section 23(b) of the Rights Agreement is
deleted in its entirety and the following sentence is substituted in its place:
Neither the Company nor any of its Affiliates or Associates may,
directly or indirectly, redeem, acquire or purchase for value any
Rights in any manner other than that specifically set forth in this
Section 23 or in Section 24 hereof, and other than that in
connection with the purchase of Common Shares prior to the earlier
of (i) the Close of Business on the tenth Business Day following
the 15% Ownership Date, subject to an extension as authorized by
Section 27, or (ii) the Close of Business on the Expiration Date.
(j) Section 24(a) of the Rights Agreement is deleted in its
entirety and the following paragraph is substituted in its place:
At any time after the occurrence of a Section 11(a)(ii)
Event or a Section 13(a) Event, and before any 15% Stockholder,
together with all Affiliates and Associates of such 15%
Stockholder, shall become the Beneficial Owner of 50% or more of
the Voting Shares then outstanding, a majority, but not less than
three, of the Independent Directors may, at their option, direct
the Company to exchange all, but not less than all, of the then
outstanding Rights for Common Shares at an exchange ratio of one
Common Share per Rights, as such exchange ratio shall be
appropriately adjusted to reflect any stock split, stock dividend,
or similar transaction involving Common Shares that occurs after
the date hereof (the "Exchange Ratio"), and the Company shall so
exchange the Rights.
(k) The last sentence of Section 24(b) of the Rights Agreement is
deleted in its entirety and the following sentence is substituted in its place:
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Neither the Company nor any of its Affiliates or Associates may,
directly or indirectly, redeem, acquire or purchase for value any
Rights in any manner other than that specifically set forth in
Section 23 hereof or in this Section 24, and other than in
connection with the purchase of Common Shares prior to the earlier
of (i) the Close of Business on the tenth Business Day following
the 15% Ownership Date, subject to an extension as authorized by
Section 27, or (ii) the Close of Business on the Expiration Date.
(l) The names and addresses set forth in Section 26 of the Rights
Agreement shall be amended to substitute the following in their place:
The name and address of the Company is amended to read as follows:
The Centris Group, Inc.
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Senior Vice President,
Chief Administrative Officer, Secretary and General Counsel
The name and address of the Rights Agent is amended to read as
follows:
American Stock Transfer & Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxx
(m) Section 27(a) of the Rights Agreement shall be deleted in its
entirety and the following paragraph is substituted in its place:
(a) Prior to the Distribution Date, the Board of Directors
of the Company may, in its sole and absolute discretion, and the
Rights Agent shall if the Board of Directors so directs, supplement
or amend any provision of this Agreement without the approval of
any holders of certificates representing Voting Shares, whether or
not such supplement or amendment is adverse to any holders of
Rights. From and after the Distribution Date, and subject to the
penultimate sentence of this Section 27, a majority, but not less
than three, of the Independent Directors may, and the Rights Agent
shall if a majority, but not less than three, of the Independent
Directors so directs, supplement or amend this Agreement without
the approval of any holders of Right Certificates in order to (i)
cure any ambiguity, (ii) correct or supplement any provision
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contained herein that may be defective or inconsistent with any
other provisions hereunder, (iii) shorten or lengthen any time
period hereunder, or (iv) otherwise change or supplement the
provisions hereunder in any manner that a majority, but not less
than three, of the Independent Directors may deem necessary or
desirable and that shall not materially and adversely affect the
interest of the holders of Right Certificates (other than a 15%
Stockholder or an Affiliate or Associate of any such Person);
provided, however, this Agreement may not be supplemented or
amended after the Distribution Date to (A) make the Rights again
redeemable after the Rights have ceased to be redeemable, or (B)
change the rights of, and/or the benefits to the holders of Rights
(other than any 15% Stockholder and its Associates or Affiliates).
Upon the delivery of a certificate from an appropriate officer of
the Company that states that the proposed supplement or amendment
is in compliance with the terms of this Section 27, the Rights
Agent shall execute such supplement or amendment. Prior to the
Distribution Date, the interests of the holders of Rights shall be
deemed coincident with the interests of the holders of Common
Shares.
(n) Section 31 of the Rights Agreement is deleted in its
entirety and the following paragraph is substituted in its place:
Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding anything in this Agreement
to the contrary, if any such term, provision, covenant or
restriction is held by such court or authority to be invalid, void
or unenforceable and a majority, but not less than three, of the
Independent Directors determines in its good faith judgment that
severing the invalid language from this Agreement would adversely
affect the purpose or effect of this Agreement, the right of
redemption set forth in Section 23, if lapsed, shall be reinstated
and shall not expire until the Close of Business on the tenth
(10th) Business Day following the date of such determination by the
Independent Directors.
(o) A new Section 35 shall be added to the Rights Agreement,
which new section shall read as follows:
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Section 35. Determination and Actions by the Board of
Directors. For all purposes of this Agreement, any calculation of
the number of Common Shares outstanding at any particular time,
including for purposes of determining the particular percentage of
such outstanding Common Shares of which any Person is the
Beneficial Owner, shall be made in accordance with the last
sentence of Rule 13d-3(d)(1)(i) of the General Rules and
Regulations under the Exchange Act. The Board of Directors of the
Company (acting by majority vote of the Independent Directors where
specifically provided for herein) shall have the exclusive power
and authority to administer this Agreement and to exercise all
rights and powers specifically granted to the Board of Directors of
the Company or to the Company, as may be necessary or advisable in
the administration of this Agreement, including, without
limitation, the right and power to (i) interpret the provisions of
this Agreement, and (ii) make all determinations deemed necessary
or advisable for the administration of this Agreement (including,
but not limited to, a determination to redeem or not redeem the
Rights, or to amend this Agreement). All such actions,
calculations, interpretations and determinations (including, for
purposes of clause (y) below, all omissions with respect to the
foregoing) which are done or made by the Board of Directors of the
Company in good faith, shall (x) be final, conclusive and binding
on the Company, the Rights Agent, the holders of the Rights and all
other parties, and (y) not subject any member of the Board of
Directors to any liability to the holders of the Rights or to any
other Person.
3. Miscellaneous.
(a) The Rights Agreement is further amended in all other sections
as may be necessary or proper in order to make the terms, provisions and
language of the Rights Agreement consistent with the amendments to the Rights
Agreement as previously made and hereinabove set forth, and corresponding
changes of those set forth in this Fourth Amendment to the Rights Agreement
shall be made in Exhibits A and B to the Rights Agreement.
(b) Other than as set forth in this Fourth Amendment, the Rights
Agreement, as in effect immediately prior to the effective date of this Fourth
Amendment, remains in full force and effect without change.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment
to be duly executed this 22nd day of August, 1997.
ATTEST: THE CENTRIS GROUP, INC.
By /s/ XXXX X. XXXXXXX By /s/ XXXXX X. XXXXXXX
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XXXX X. XXXXXXX, Senior Vice XXXXX X. XXXXXXX, Chairman of
President, Chief Administrative the Board, President and
Officer, Secretary and General Counsel Chief Executive Officer
ATTEST: AMERICAN STOCK TRANSFER & TRUST
COMPANY
By /s/ XXXXXX XXXXXX By /s/ X. X. XXXX
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Print Name XXXXXX XXXXXX Print Name X. X. XXXX
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Title Account Executive Title Vice President
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