Exhibit 4.3
AMENDMENT NO. 2
TO
AMENDED AND RESTATED RIGHTS AGREEMENT
AMENDMENT NO. 2, dated as of March 1, 1999 (the
"Amendment"), to the Amended and Restated Rights
Agreement, dated as of February 14, 1996, as amended
(the "Rights Agreement"), by and among Humana Inc.,
a Delaware corporation (the "Company"), Bank of
Louisville (formerly known as Mid-America Bank of
Louisville & Trust Company), a banking and trust
corporation organized under the laws of the
Commonwealth of Kentucky, as Rights Agent (the "Bank
of Louisville"), and National City Bank, a banking
and trust corporation organized under the laws of
Delaware ("NCB"), as successor Rights Agent.
WHEREAS, the Company and Bank of Louisville are
currently parties to the Rights Agreement, pursuant
to which Bank of Louisville serves as Rights Agent;
WHEREAS, the Company and Bank of Louisville
desire that Bank of Louisville resign as Rights
Agent and the Company and NCB desire that NCB be
appointed as successor Rights Agent, each effective
as of March 1, 1999; and
WHEREAS, the parties hereto wish to make
certain changes to the Rights Agreement to, among
other things, facilitate this succession and to
eliminate the delayed redemption provisions therein.
NOW THEREFORE, the Company, Bank of Louisville
and NCB hereby agree as follows:
1. Amendments to Rights Agreement. The
Rights Agreement shall be and hereby is amended as
provided below, effective as of the date of this
Amendment:
(a) Section 1 of the Rights Agreement is
hereby amended by deleting paragraphs (q) and (r)
therefrom and by redesignating paragraph (s) thereof
as paragraph (q).
(b) The definition of "Acquiring Person"
set forth in Section 1(a) of the Rights Agreement is
hereby amended by deleting from the end of such
definition the following language:
"; provided, however, that neither of
United HealthCare Corporation, a
Minnesota corporation ("Parent"), nor
UH-1 Inc., a Delaware corporation and
a wholly-owned subsidiary of Parent
("Merger Sub"), shall be deemed to be
an Acquiring Person to the extent
that either of Parent or Merger Sub
becomes the beneficial owner of
Common Shares solely by reason of (i)
the execution of the Agreement and
Plan of Merger, dated as of May 27,
1998, by and among the Company,
Parent and Merger Sub (the "Merger
Agreement"), the Stock Option
Agreement, dated as of May 27, 1998,
by and between the Company and Parent
(the "Stock Option Agreement"), or
the Voting Agreement, dated as of May
27, 1998, by and between Xxxxx X.
Xxxxx and Parent (the "Voting
Agreement"), or (ii) the consummation
of the transactions contemplated by
each of the Merger Agreement, the
Stock Option Agreement and the Voting
Agreement in accordance with the
respective terms thereof."
(c) The definition of "Disinterested
Directors" set forth in Section 1(h) of the Rights
Agreement is hereby amended by deleting the existing
text of clause (iii) thereof and by substituting in
its place the following new clause (iii):
"(iii) any Person who was directly
or indirectly proposed or nominated
as a director of the Company by an
Acquiring Person or by any Affiliate
or Associate of an Acquiring Person
or by any representative of any of
them."
(d) The definition of "Shares Acquisition
Date" set forth in Section 1(o) of the Rights
Agreement is hereby amended by deleting from the end
of such definition the following language:
"; provided, however, that the Shares
Acquisition Date shall not be deemed to
have occurred as a result of the public
announcement of the execution of the
Merger Agreement, the Stock Option
Agreement or the Voting Agreement or as a
result of the consummation of the
transactions contemplated thereby."
(e) Section 3 of the Rights Agreement is
hereby amended by deleting paragraph (d) of such
section in its entirety.
(f) Paragraph (c) of Section 3 of the
Rights Agreement is hereby modified and amended by
deleting from the first sentence of the legend
therein the words "Mid-America Bank of Louisville &
Trust Company, dated as of February 14, 1996" and
replacing them with the words "the Rights Agent,
dated as of February 14, 1996, as the same may be
amended from time to time".
(g) Section 23(a)(ii) of the Rights
Agreement is hereby amended by deleting the final
three words of such section and by substituting in
place of such three words the following:
"an Acquiring Person."
(h) Section 23(a) of the Rights Agreement
is hereby further amended by deleting clause (iii)
of such section in its entirety.
(i) Section 26 of the Rights Agreement is
hereby modified and amended by deleting from the
second sentence thereof the address
"Mid-America Bank of Louisville &
Trust Company
000 Xxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx Xxxxxx, President"
and replacing it with the following address:
"National City Bank
Corporate Trust Department
0000 Xxxx 0xx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Vice President"
(j) Section 27 of the Rights Agreement is
hereby amended by deleting the last sentence of such
section in its entirety.
2. Change of Rights Agent. Pursuant to
Section 21 of the Rights Agreement, Bank of
Louisville hereby resigns as Rights Agent and the
Company hereby accepts such resignation, effective
as of 12:01 a.m., Eastern Standard Time, March 1,
1999. The Company hereby appoints NCB as successor
Rights Agent, effective as of 12:01 a.m., Eastern
Standard Time, March 1, 1999, and NCB hereby accepts
such appointment, subject to all the terms and
conditions of the Rights Agreement as amended
hereby.
3. Representations and Warranties. Each
party hereto represents and warrants that (i) the
execution, delivery and performance of this
Amendment by such party have been duly authorized by
all necessary corporate action and (ii) this
Amendment constitutes a valid and binding agreement
of such party.
4. Counterparts. 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.
5. Governing Law. This Amendment shall be deemed
to be a contract made under the laws of the State of
Delaware and for all purposes shall be governed by
and construed in accordance with the laws of such
State applicable to contracts made and to be
performed entirely within such State.
IN WITNESS WHEREOF, the parties hereto have
caused this Amendment to be duly executed and
attested, all as of the date and year first above
written.
HUMANA INC.
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: President & Chief Executive Officer
BANK OF LOUISVILLE
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Sr. Vice President & General Counsel
NATIONAL CITY BANK
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
