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EXHIBIT 4.3
AMENDMENT NO. 2 TO RIGHTS AGREEMENT
AMENDMENT NO. 2, dated as of July 31, 1998 (this "Amendment"), to the
RIGHTS AGREEMENT, dated as of October 31, 1995, as amended (the "Rights
Agreement") between MARINER HEALTH GROUP, INC., a Delaware corporation (the
"Company"), and STATE STREET BANK AND TRUST COMPANY, as Rights Agent. All terms
not otherwise defined herein shall have the meaning given such terms in the
Rights Agreement.
W I T N E S S E T H:
WHEREAS, on October 31, 1995, the Board of Directors of the Company
(the "Board") authorized the execution of the Rights Agreement pursuant to which
certain rights to purchase one one-hundredth of a share of the Company's Series
A Junior Participating Preferred Stock have been distributed;
WHEREAS, on April 13, 1998, the Board authorized the execution of
Amendment No. 1 to the Rights Agreement to render the Rights Agreement
inapplicable to the merger of Paragon Acquisition Sub, Inc. ("Sub"), a Delaware
corporation and a wholly-owned subsidiary of Paragon Health Network, Inc.
("Parent"), with and into the Company, with the Company surviving and continuing
as a wholly-owned subsidiary of Paragon;
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
may amend the Rights Agreement at any time prior to the Final Amendment Date (as
defined therein) without the approval of any holders of certificates
representing shares of Common Stock (as defined therein); and
WHEREAS, on July __, 1998, the Board authorized the execution of this
Amendment No. 2 to Rights Agreement pursuant to the terms of the Agreement and
Plan of Merger (the "Merger Agreement"), dated as of April 13, 1998, among
Parent, the Company and Sub.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
1. Section 7(a) of the Rights Agreement shall be amended in its
entirety to read as follows:
(a) Subject to Section 7(e) hereof, the registered holder
of any Rights Certificate may exercise the Rights evidenced
thereby (except as otherwise provided herein including,
without limitation, the restrictions set forth in Section
9(c), Section 11(a)(iii) and Section 23(a) hereof) in whole
or in part at any time after the Distribution Date upon
surrender of the Rights Certificate, with the form of
election to purchase set forth on the reverse side thereof
and the certificate contained therein completed and duly
executed, to the Rights Agent at the office of the Rights
Agent designated for such purpose, together with payment of
the aggregate Purchase Price with respect to the total
number of one one-hundredths of a share of Preferred Stock
(or other securities, cash or other assets, as the case may
be) as to which such surrendered Rights are then
exercisable, until immediately prior to the effective time
of the merger contemplated by by the Agreement and Plan of
Merger dated as of April 13, 1998 among Paragon Health
Network, Inc., a Delaware corporation, the Company and
Paragon Acquisition Sub, Inc. (the "Expiration Date").
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2. Parent and Sub are third party beneficiaries of this Amendment and
the terms of this Amendment shall not be withdrawn, amended or otherwise
modified without their written consent.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2
to the Rights Agreement to be duly executed and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
Attest:
MARINER HEALTH GROUP, INC.
By:---------------------------- By: /s/ Xxxxxx X. Xxxxxxxx Xx., M.D.
Name: Name: Xxxxxx X. Xxxxxxxx, Xx., M.D.
Title: Title: President and Chief
Executive Officer
Attest:
STATE STREET BANK AND TRUST COMPANY
By: Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
By: Xxxx Xxxxxxxx Title: Vice President
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Name: Xxxx Xxxxxxxx
Title: Vice President
