Exhibit 4.2
AMENDMENT NO. 2 TO RIGHTS AGREEMENT
AMENDMENT NO. 2 (this "Amendment"), dated as of July 6, 2005, to the
Rights Agreement, dated as of November 19, 1999, between PacifiCare Health
Systems, Inc., a Delaware corporation (the "Company"), and ChaseMellon
Shareholder Services, L.L.C. ("ChaseMellon"), as rights agent, as amended (the
"Agreement") on February 9, 2005 to remove ChaseMellon as rights agent and to
appoint Computershare Investor Services, LLC (the "Rights Agent") as successor
rights agent.
WHEREAS, Section 27 of the Agreement provides that prior to the
Distribution Date, the Company and the Rights Agent shall, if the Company so
directs, supplement or amend any provision of the Agreement without the
approval of any holders of the Rights; and
WHEREAS, the Company, UnitedHealth Group Incorporated, a Minnesota
corporation ("Parent"), and Point Acquisition LLC, a Delaware limited
liability company ("Merger Sub"), are entering into an Agreement and Plan of
Merger, dated as of July 6, 2005, (the "Merger Agreement"), pursuant to which
Parent will acquire the Company; and
WHEREAS, the Board of Directors has determined that it is in the best
interests of the Company and its stockholders and consistent with the
objectives of the Board of Directors in adopting the Agreement to amend the
Agreement to except the Merger Agreement and the transactions contemplated
thereby from the Agreement; and
WHEREAS, 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 Agreement and instructing the Rights Agent to execute and deliver this
Amendment.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which the parties hereby
acknowledge, the parties agree as follows:
ARTICLE 1
AMENDMENT
1.1. Amendment to Definition of "Acquiring Person". Section 1(a) of the
Agreement shall be amended by inserting the following provisions at
the end of Section 1(a):
"Notwithstanding the foregoing or any provision to the
contrary in this Agreement, none of UnitedHealth Group
Incorporated, a Minnesota corporation, ("Parent"), its
Subsidiaries, Affiliates or Associates, including Point
Acquisition, LLC, a Delaware limited liability company
("Merger Sub"), is, nor shall any of them be deemed to be, an
Acquiring Person by virtue of (i) their acquisition, or their
right to acquire, beneficial ownership of Common Shares as a
result of their execution of the Agreement and Plan of
Merger, dated as of July 6, 2005 by and among Parent, Merger
Sub and the Company (as it may be amended from time to time,
the "Merger Agreement"), (ii) the consummation of the Merger
(as defined in the Merger Agreement), or (iii) any other
transaction contemplated by the Merger Agreement, it being
the purpose of the Company in adopting this amendment to the
Agreement that neither the execution of the Merger Agreement
by any of the parties nor the consummation of the
transactions contemplated thereby shall in any respect give
rise to any provision of the Agreement becoming effective."
1.2. Amendment to Definition of "Shares Acquisition Date". Section 1(n) of
the Agreement shall be amended by inserting the following at the end
of Section 1(n):
"Notwithstanding the foregoing or any provision to the
contrary in this Agreement, a Shares Acquisition Date shall
not occur by reason of the approval, delivery or execution of
the Merger Agreement, the consummation of the Merger (as
defined in the Merger Agreement), or any other transaction
contemplated by the Merger Agreement."
1.3. Amendment to Definition of "Transaction". Section 1(p) of the
Agreement shall be amended by inserting the following at the end of
Section 1(p):
"Notwithstanding the foregoing or any provision to the
contrary in this Agreement, a Transaction shall not occur by
reason of the approval, delivery or execution of the Merger
Agreement, the consummation of the Merger (as defined in the
Merger Agreement), or any other transaction contemplated by
the Merger Agreement."
1.4. Amendment to Section 3(a). Section 3(a) of the Agreement shall be
amended by inserting the following at the end of Section 3(a):
"Notwithstanding the foregoing or any provision to the
contrary in this Agreement, a Distribution Date shall not
occur by reason of the approval, delivery or execution of the
Merger Agreement, the consummation of the Merger (as defined
in the Merger Agreement), or any other transaction
contemplated by the Merger Agreement."
1.5. Amendment to Section 7(a). Clause (i) in Section 7(a) of the Agreement
shall be amended and restated in its entirety to read as follows:
"(i) (1) the Close of Business on November 19, 2009 or (2)
immediately prior to the Effective Time (as defined in the
Merger Agreement) (the earlier of (1) and (2) being herein
referred to as the "Final Expiration Date")"
1.6. Amendment to Section 13(b). Section 13(b) of the Agreement shall be
amended by inserting the following provisions at the end of Section
13(b):
"Notwithstanding the foregoing or any provision to the
contrary in this Agreement, none of Parent, its Subsidiaries,
Affiliates or Associates, including Merger Sub, is, nor shall
any of them be deemed to be, a Principal Party by virtue of
(i) their acquisition, or their right to acquire, beneficial
ownership of Common Shares as a result of their execution of
the Merger Agreement, (ii) the consummation of the Merger (as
defined in the Merger Agreement), or (iii) any other
transaction contemplated by the Merger Agreement."
1.7. Addition of Section 35. A new Section 35 is hereby added reading in
its entirety as follows:
"This Agreement and the Rights established hereby will
terminate in all respects immediately prior to the Effective
Time (as defined in the Merger Agreement)."
1.8. Termination of Merger Agreement. If for any reason the Merger
Agreement is terminated or the Merger is abandoned, then 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.
1.9. Definitions. Terms not otherwise defined in this Amendment shall have
the meaning ascribed to such terms in the Agreement. The term
"Agreement" as used in the Agreement shall be deemed to refer to the
Agreement as amended hereby, and all references to the Agreement shall
be deemed to include this Amendment.
1.10. Governing Law. This Amendment shall be deemed to be entered into 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.
1.11. 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.
1.12. Effectiveness. This Amendment shall be effective as of the date first
written above, and except as expressly set forth herein, the Agreement
shall remain in full force and effect and otherwise shall be
unaffected hereby.
[Signature Page Follows]
IN WITNESS WHEREOF, a duly authorized representative of each party has
executed this Amendment, as of the date first written above.
PACIFICARE HEALTH SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxx
Title: General Counsel,
Executive Vice President
COMPUTERSHARE INVESTOR SERVICES, LLC
As Rights Agent
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Chief Financial Officer
