EXHIBIT 4.4
REMOVAL OF RIGHTS AGENT, APPOINTMENT
AND ACCEPTANCE OF SUCCESSOR RIGHTS AGENT
AND AMENDMENT NO. 2 TO RIGHTS AGREEMENT
SUN HEALTHCARE GROUP, INC., a Delaware corporation (the "Company"), and
ChaseMellon Shareholder Services LLC (as successor to Boatmen's Trust Company)
("ChaseMellon"), are parties to a Rights Agreement dated as of June 2, 1995 and
amended on August 11, 1995 (the "Rights Agreement"). Capitalized terms not
otherwise defined herein shall have the respective meanings given such terms in
the Rights Agreement.
The Company desires to remove ChaseMellon as Rights Agent, and to appoint
American Stock Transfer & Trust Company, a New York corporation ("ASTC"), as
successor Rights Agent, subject to and in accordance with the terms and
conditions thereof. ASTC desires to accept such appointment and to serve as
successor Rights Agent subject to and in accordance with such terms and
conditions.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the Company, ChaseMellon and ASTC hereby covenant and
agree as follows:
1. In the exercise of the authority vested in it pursuant to Section 21 of
the Rights Agreement, the Company hereby removes ChaseMellon as Rights Agent
under the Rights Agreement, such removal to become effective as of the close of
business on September 30, 1998 (the "Effective Time"). ChaseMellon hereby
consents to its removal as Rights Agent, and waives compliance with any period
of advance notice required by the Rights Agreement in connection with such
removal. In the exercise of the authority vested in it pursuant to Section 21 of
the Rights Agreement, the Company hereby appoints ASTC as successor Rights Agent
under the Rights Agreement, such appointment to become effective as of the
Effective Time, to succeed to all the rights, powers, duties, obligations and
immunities of ChaseMellon as Rights Agent under the Rights Agreement except as
provided for herein or in the Rights Agreement. From and after the Effective
Time, except as provided for herein or in the Rights Agreement, ChaseMellon
shall have no further responsibility for the exercise of the rights and powers
or for the performance of the duties and obligations vested in the Rights Agent
under the Rights Agreement.
2. ASTC hereby accepts its appointment, as of the Effective Time, as
successor Rights Agent under the Rights Agreement and accepts the rights,
powers, duties and obligations of the Rights Agent under the Rights Agreement,
upon the terms and conditions set forth therein and herein, all as contemplated
by Section 21 of the Rights Agreement. ASTC does hereby represent and warrant
that it is qualified and eligible to serve as successor Rights Agent under the
Rights Agreement.
3. ChaseMellon does hereby represent and warrant that it holds no property
as Rights Agent under the Rights Agreement, that it has fully performed all the
duties and obligations required to be performed by it under the Rights
Agreement, and that it has received all amounts due to it as Rights Agent for
reasonable compensation, expenses and disbursements under Section 18 of the
Rights Agreement.
4. Each party hereto represents and warrants to each other party hereto
that all action necessary on its part to authorize the execution, delivery and
performance of the instrument, the resignation of ChaseMellon as Rights Agent
and the appointment of ASTC as successor Rights Agent has been duly taken.
5. The Company, for the purpose of more fully and certainly vesting in and
confirming to ASTC, as successor Rights Agent, the powers, rights, duties and
responsibilities vested or intended to have vested in ChaseMellon, as Rights
Agent, hereby vests ASTC, as successor Rights Agent, with all of the rights,
powers, duties and obligations of ChaseMellon under the Rights Agreement upon
the terms and conditions set forth therein and herein, such action to become
effective as of the Effective Time.
6. The Rights Agreement is hereby amended and supplemented by amending the
fifth sentence of Section 21 of the Rights Agreement to read in its entirety as
follows:
Any successor Rights Agent, whether appointed by the Company or by
such a court, shall be a corporation organized and doing business
under the laws of the United States or of the State of New York (or of
any other state of the United States so long as such corporation is
authorized to do business as a banking institution in the State of
New York), in good standing, having an office in the State of New
York, which is authorized under such laws to exercise corporate
trust or stock transfer powers and is subject to supervision or
examination by federal or state authority and which has at the time of
its appointment as Rights Agent a combined capital and surplus of at
least $5,000,000.
7. This Instrument may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
8. This Instrument and the rights and obligations of the parties hereunder
shall be governed by the laws of the State of New York, both in interpretation
and performance.
9. Any notice, demand, request or instrument in writing authorized by the
Rights Agreement or herein to be given to the Rights Agent under the Rights
Agreement shall be sufficiently given for all purposes, if delivered or mailed
to ASTC at 00 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxx X'Xxxxx.
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IN WITNESS WHEREOF, the parties have caused this Instrument to be duly
executed as of the date first above written.
SUN HEALTHCARE GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Its: Vice President and Treasurer
CHASEMELLON SHAREHOLDER
SERVICES, LLC
By: /s/ X. X. Xxxxxxxx
-----------------------------
Its: Vice President
AMERICAN STOCK TRANSFER & TRUST
COMPANY, as successor Rights Agent
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Its: Vice President
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