Exhibit 4.5
AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT, dated as of September 15, 2004 (this
"Amendment"), to the Rights Agreement, dated as of August 9, 2001, as amended
(the "Rights Agreement"), by and between American Medical Security Group,
Inc., a Wisconsin corporation (the "Company"), and Firstar Bank, N.A., as
rights agent. Capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Rights Agreement.
WHEREAS, Firstar Bank, N.A. and the Company entered into a
Termination Agreement, dated as of December 21, 2001, terminating the
appointment of Firstar Bank, N.A. as rights agent under the Rights Agreement;
WHEREAS, LaSalle Bank National Association, a national
banking association (the "Rights Agent"), and the Company entered into an
Appointment and Assumption Agreement, dated as of December 17, 2001,
appointing LaSalle Bank National Association as Rights Agent;
WHEREAS, the Board of Directors of the Company has approved
an Agreement and Plan of Merger (the "Merger Agreement"), dated as of
September 15, 2004, by and among PacifiCare Health Systems, Inc., a Delaware
corporation ("Parent"), Ashland Acquisition Corp., a newly-formed Wisconsin
corporation and a wholly-owned subsidiary of Parent ("Merger Subsidiary"), and
the Company, pursuant to which at the Effective Time (as such term is defined
in the Merger Agreement), Merger Subsidiary will be merged with and into the
Company (the "Merger"), with the Company being, subject to the terms of the
Merger Agreement, the surviving corporation in accordance with the Wisconsin
Business Corporation Law;
WHEREAS, the Board of Directors of the Company has approved
and adopted the Merger Agreement and declared its advisability and approved
the Merger and the other transactions contemplated by the Merger Agreement;
WHEREAS, the Board of Directors of the Company has
authorized this Amendment at a meeting of directors duly called and held;
WHEREAS, in connection with the Merger and in accordance
with Section 27(a) of the Rights Agreement, the Company desires to amend the
Rights Agreement as hereinafter set forth and has executed and delivered this
Amendment immediately prior to the execution and delivery of the Merger
Agreement; and
WHEREAS, pursuant to Section 27(b) of the Rights Agreement,
the Company has delivered to the Rights Agent a certificate, dated as of the
date hereof, of an appropriate officer of the Company certifying that this
Amendment is in compliance with the terms of Section 27 of the Rights
Agreement and instructing the Rights Agent to execute and deliver this
Amendment.
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth in the Rights Agreement and this Amendment, and for other
good and valuable consideration, the parties hereto agree as follows:
1. Section 1 of the Rights Agreement is hereby amended by adding the
following definitions in alphabetical order thereto:
"(r) "Effective Time" shall have the meaning ascribed to such term in
the Merger Agreement.
(s) "Merger" shall have the meaning ascribed to such term in the
Merger Agreement.
(t) "Merger Agreement" shall mean the Agreement and Plan of Merger,
dated as of September 15, 2004, by and among Parent, Merger
Subsidiary and the Company, as the same may be amended in accordance
with the terms thereof.
(u) "Merger Subsidiary" shall mean Ashland Acquisition Corp., a
Wisconsin corporation and a wholly-owned subsidiary of Parent.
(v) "Parent" shall mean PacifiCare Health Systems, Inc., a Delaware
corporation."
2. The definition of "Acquiring Person" in Section 1(a) of the Rights
Agreement is hereby amended by adding the following sentence to the end of
such definition:
"Notwithstanding anything to the contrary contained herein, none of
Parent, Merger Subsidiary or any of their respective Affiliates or
Associates shall be, become or be deemed an Acquiring Person as a
result of the approval, execution, delivery, announcement or
performance of the Merger Agreement or the consummation of the
transactions contemplated thereby, including the Merger."
3. The definition of "Shares Acquisition Date" in Section 1(o) of the
Rights Agreement is hereby amended by adding the following sentence to the end
of such definition:
"Notwithstanding anything to the contrary contained herein, no Shares
Acquisition Date shall occur as a result of the approval, execution,
delivery, announcement or performance of the Merger Agreement or the
consummation of the transactions contemplated thereby, including the
Merger."
4. The definition of "Triggering Event" in Section 1(q) of the Rights
Agreement is hereby amended by adding the following sentence to the end of
such definition:
"Notwithstanding anything to the contrary contained herein, no
Triggering Event shall occur as a result of the approval, execution,
delivery, announcement or performance of the Merger Agreement or the
consummation of the transactions contemplated thereby, including the
Merger."
5. Section 3(a) of the Rights Agreement is hereby amended by adding
the following sentence to the end thereof:
"Notwithstanding anything to the contrary contained herein, no
Distribution Date shall occur and no provisions of this Section 3(a)
shall become applicable as a result of the approval, execution,
delivery, announcement or performance of the Merger Agreement or the
consummation of the transactions contemplated thereby, including the
Merger."
6. Section 11(a)(ii) of the Rights Agreement is hereby amended by
adding the following sentence to the end thereof:
"Notwithstanding anything to the contrary contained herein, no
Section 11(a)(ii) Event shall occur and no provisions of this Section
11(a)(ii) shall become applicable as a result of the approval,
execution, delivery, announcement or performance of the Merger
Agreement or the consummation of the transactions contemplated
thereby, including the Merger."
7. Section 13 of the Rights Agreement is hereby amended by adding the
following sentence to the end thereof:
"Notwithstanding anything to the contrary contained herein, no
Section 13 Event shall occur and no provisions of this Section 13
shall become applicable as a result of the approval, execution,
delivery, announcement or performance of the Merger Agreement or the
consummation of the transactions contemplated thereby, including the
Merger."
8. A new Section 35 with the heading "TERMINATION AT THE EFFECTIVE
TIME" is hereby added to the Rights Agreement reading in its entirety as
follows:
"(a) This Agreement and the Rights established hereby will terminate
in all respects immediately prior to the Effective Time. The Company
hereby agrees to promptly notify the Rights Agent, in writing, upon
the occurrence of the Effective Time, which notice shall specify (i)
that the Effective Time has occurred, and (ii) the date upon which
this Agreement and the Rights established hereby were terminated.
(b) The Rights Agent shall not be subject to, nor be required to
comply with, or determine if any event has occurred under (including,
but not limited to, the occurrence of the Merger or the Effective
Time), or any Person has complied with, the Merger Agreement or any
agreements and documents related to or referred to in the Merger
Agreement or any other agreement between or among the parties
thereto, even though reference thereto may be made in this Agreement,
or to comply with any notice, instruction, direction, request or
other communication, paper or document other than as expressly set
forth in this Agreement."
9. If the Merger Agreement is terminated and the Merger is abandoned,
then from and after such time this Amendment shall be of no further force and
effect and the Agreement shall remain exactly the same as it existed
immediately prior to execution of this Amendment. The Company hereby agrees to
promptly notify the Rights Agent, in writing, upon the occurrence of the
Merger Agreement being terminated and the Merger being abandoned.
10. The term "Agreement" as used in the Rights Agreement shall be
deemed to refer to the Rights Agreement as amended hereby.
11. This Amendment shall be effective as of the date hereof and,
except as set forth herein, the Rights Agreement shall remain in full force
and effect and shall be otherwise unaffected hereby.
12. This Amendment may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
13. All the covenants and provisions of this Amendment by or for the
benefit of the Company or the Rights Agent shall bind and inure to the benefit
of their respective successors and assigns hereunder.
14. Nothing in this Amendment shall be construed to give to any
Person other than the Company, the Rights Agent and the registered holders of
the Rights Certificates (and, prior to the Distribution Date, the Common
Shares) any legal or equitable right, remedy or claim under this Amendment;
but this Amendment shall be for the sole and exclusive benefit of the Company,
the Rights Agent and the registered holders of the Rights Certificates (and,
prior to the Distribution Date, the Common Shares).
15. If any term, provision, covenant or restriction of this Amendment
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 Amendment shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
16. This Amendment shall be deemed to be a contract made under the
laws of the State of Wisconsin and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts to
be made and performed entirely within such State.
The remainder of this page is intentionally left blank.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the day and year first above written.
Attest: AMERICAN MEDICAL SECURITY
GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxx
Title: Chairman, President Title: Senior Vice President of
and Chief Executive Officer Corporate Affairs,
General Counsel and
Secretary
Attest: LASALLE BANK NATIONAL ASSOCIATION,
as Rights Agent
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxxxxx
------------------------- ---------------------------------
Name: Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxxxxxx
Title: Administrative Title: Assistant Vice President
Assistant
