AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This AMENDMENT NO. 1 TO RIGHTS AGREEMENT (this "Amendment"),
dated as of March 2, 1999, is between Concentra Managed Care, Inc., a
Delaware corporation (the "Corporation"), and ChaseMellon Shareholder
Services, L.L.C., as Rights Agent (the "Rights Agent").
RECITALS
WHEREAS, the Corporation and the Rights Agent are parties to a
Rights Agreement, dated as of September 29, 1997 (the "Rights Agreement"); and
WHEREAS, Yankee Acquisition Corp., a Delaware corporation
("Newco"), and the Corporation propose to enter into an Agreement and Plan of
Merger (the "Merger Agreement") pursuant to which Newco will merge with and
into the Corporation (the "Merger"), the Board of Directors of the
Corporation having approved the Merger Agreement and the Merger; and
WHEREAS, pursuant to Section 29 of the Rights Agreement, the
Board of Directors of the Corporation has determined that an amendment to the
Rights Agreement as set forth herein is necessary and desirable in connection
with the foregoing and the Corporation and the Rights Agent desire to
evidence such amendment in writing;
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements set forth herein, the parties hereto agree as follows:
(a) AMENDMENT OF SECTION 1(a). Section 1(a) of the Rights
Agreement is amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, neither WCAS nor Newco shall be deemed to be an
Acquiring Person solely by virtue of (i) the consummation of the
Merger or (ii) the execution of the Merger Agreement."
(b) AMENDMENT OF SECTION 3(a). Section 3(a) of the Rights
Agreement is amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, a Distribution Date shall not be deemed to have occurred
solely as the result of (i) the consummation of the Merger or (ii)
the execution of the Merger Agreement."
(c) AMENDMENT OF SECTION 1. Section 1 of the Rights
Agreement is amended to add the following at the end thereof:
(i) "Merger" shall have the meaning set forth in the
recital to Amendment No. 1 to Rights Agreement.
(ii) "Merger Agreement" shall mean that certain Agreement
and Plan of Merger, dated as of March 2, 1999, by
and between Newco and the Corporation, as amended
from time to time.
(iii) "Newco" shall mean Yankee Acquisition Corp., a
Delaware Corporation.
(iv) "WCAS" shall mean Xxxxx Xxxxxx, Xxxxxxxx & Xxxxx
VIII, L.P., a Delaware limited partnership.
(d) AMENDMENT OF SECTION 14. Section 14 of the Rights
Agreement is amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, (i) the consummation of the Merger and (ii) the
execution of the Merger Agreement shall not be deemed to be events
of the type described in the first sentence of this Section 14 and
shall not cause the Rights to be adjusted or exercisable in
accordance with, or any other action to be taken or obligation to
arise pursuant to, this Section 14."
(e) AMENDMENT OF SECTION 19(a). Section 19(a) of the Rights
Agreement is amended to read as follows:
"(a) The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from
time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and other disbursements incurred in the
administration and execution of this Agreement and the exercise
and performance of its duties hereunder. The Company also agrees
to indemnify the Rights Agent for, and to hold it harmless
against, any loss, liability, damage, judgment, fine, penalty,
claim, demand, settlement, cost or expense, incurred without gross
negligence, bad faith or willful misconduct on the part of the
Rights Agent, for anything done or omitted by the Rights Agent in
connection with the acceptance and administration of this
Agreement, including the costs and expenses of defending against
any claim of liability in the premises. The indemnity provided
herein shall survive the termination of this Agreement and the
termination and the expiration of the Rights. The costs and
expenses incurred in enforcing this right of indemnification shall
be paid by the Company. Anything to the contrary notwithstanding,
in no event shall the Rights Agent be liable for special,
punitive, indirect, consequential or incidental loss or damage of
any kind whatsoever (including but not limited to lost profits),
even if the Rights Agent has been advised of the likelihood of
such loss or damage. Any liability of the Rights Agent under this
Rights Agreement will be limited to the amount of fees paid by the
Company to the Rights Agent."
(f) The parties hereto hereby amend the Rights Agreement by
adding the following Section 36 to the Rights Agreement:
"Section 36. TERMINATION. Immediately prior to the
effective time of the Merger, (i) the Rights Agreement shall be
terminated and be without any further force or effect, (ii) none
of the parties to the Rights Agreement will have any rights,
obligations or liabilities thereunder, provided however,
Section 19 of the Rights Agreement shall survive termination of
the Rights Agreement, and (iii) the holders of the Rights shall
not be entitled to any benefits, rights or other interests under
the Rights Agreement, including without limitation, the right to
purchase or otherwise acquire shares of the Preferred Stock or any
other securities of the Corporation."
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(g) EFFECTIVENESS. 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.
(h) MISCELLANEOUS. 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 to be made and performed entirely within such state,
provided however, that with respect to issues concerning the Rights Agent,
the laws of the State of New York will govern. This Amendment may be
executed in any number of counterparts, 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. If any provision,
covenant or restriction of this Amendment is held by a court of competent
jurisdiction or other authority to be invalid, illegal 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
effected, impaired or invalidated.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be fully executed, all as of the date and year first above
written.
CONCENTRA MANAGED CARE, INC.
By: /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
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Title: Executive Vice President and
General Counsel
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CHASEMELLON SHAREHOLDER
SERVICES, L.L.C.
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxx
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Title: Relationship Manager
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