EXHIBIT 4.4(d)
AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT, dated as of June 4, 2002, to Rights Agreement by and
between American Medical Security Group, Inc., a Wisconsin corporation (the
"Company"), and Firstar Bank, N.A., as Rights Agent, dated as of August 9, 2001,
as amended (the "Rights Agreement").
WHEREAS, Firstar Bank, N.A. and the Company entered into a
Termination Agreement, dated as of December 21, 2001, terminating the
appointment of Firstar Bank, N.A. as Rights Agent under the Rights Agreement;
WHEREAS, LaSalle Bank National Association, a national banking
association (the "Rights Agent"), and the Company entered into an Appointment
and Assumption Agreement, dated as of December 17, 2001, appointing LaSalle Bank
National Association as Rights Agent;
WHEREAS, the Company, Cobalt Corporation and Blue Cross & Blue
Shield United of Wisconsin entered into a Stock Purchase Agreement, dated as of
March 19, 2002 (the "Stock Purchase Agreement"), providing for this amendment to
the Rights Agreement;
WHEREAS, the Company and the Rights Agent desire to formally amend
the Rights Agreement, in accordance with Section 27 of the Rights Agreement, as
contemplated by the Stock Purchase Agreement;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, and for other good and valuable consideration, the parties hereto agree
as follows:
1. (a) The definition of "Acquiring Person" in Section 1(a) of the Rights
Agreement is hereby replaced by the following definition:
"Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person,
shall become the Beneficial Owner (as such term is hereinafter
defined) of such number of Common Shares as is equal to 16% (the
"Maximum Number")or more of the Common Shares of the Company then
outstanding after the date hereof. Notwithstanding the foregoing,
the term "Acquiring Person" shall not include (i) the Company; (ii)
any Subsidiary (as such term is hereinafter defined) of the Company;
(iii) any employee benefit plan or employee stock ownership plan of
the Company or any Subsidiary of the Company; (iv) any entity
holding Common Shares for or pursuant to the terms of any such plan;
(v) BCBS and its Affiliates and Associates, provided that from time
to time after the date hereof BCBS and its Affiliates and Associates
do not increase the aggregate number of Common Shares over which
such
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Persons have beneficial ownership as of any such time (other than
Common Shares the beneficial ownership of which was acquired through
(A) any dividend or distribution of any Common Shares or any Company
securities convertible or exchangeable into Common Shares or any
stock split or (B) any grants of Common Shares or any Company
securities exercisable for Common Shares (or the exercise of any
such securities for Common Shares) under any benefit plan of the
Company generally available for directors of the Company), PROVIDED,
HOWEVER, that nothing in this clause (v) shall prohibit BCBS and its
Affiliates and Associates from collectively owning less than the
Maximum Number of the Common Shares of the Company then outstanding;
or (vi) any Person who or which together with all Affiliates and
Associates of such Person shall become an "Acquiring Person" as the
result of an acquisition of Common Shares by the Company which, by
reducing the number of shares outstanding, increases the
proportional number of shares beneficially owned by such Person
together with all Affiliates and Associates of such Person to the
Maximum Number or more of the Common Shares of the Company then
outstanding, PROVIDED, HOWEVER, that if a Person shall become the
Beneficial Owner of the Maximum Number or more of the Common Shares
of the Company then outstanding by reason of share purchases by the
Company and shall, after such share purchases by the Company, become
the Beneficial Owner of any additional Common Shares of the Company,
then such Person shall be deemed to be an "Acquiring Person".
Notwithstanding the foregoing, if the Board of Directors of the
Company determines in good faith that a Person who would otherwise
be an "Acquiring Person," as defined pursuant to the foregoing
provisions of this paragraph (a), has become such inadvertently, and
such Person divests as promptly as practicable a sufficient number
of Common Shares so that such Person would no longer be an
"Acquiring Person," as defined pursuant to the foregoing provisions
of this paragraph (a), then such Person shall not be deemed to be an
"Acquiring Person" for any purposes of this Agreement. For the
avoidance of doubt, a Person who merely enters into an agreement to
acquire, directly or indirectly, the stock of BCBS or Cobalt
Corporation, shall not, by reason of that act alone, become an
"Acquiring Person," PROVIDED that such Person does not, at the time
of such agreement beneficially own any of the Company's Common
Shares, or any Company securities convertible or exchangeable into,
or exercisable for, Common Shares, in each case other than those
Common Shares then beneficially owned by BCBS and Cobalt Corporation
that are indirectly acquired by virtue of such acquisition of the
stock of BCBS or Cobalt Corporation, and PROVIDED FURTHER that if,
following such agreement to acquire, or ACQUISITION OF, the stock of
BCBS or Cobalt Corporation, such Person increases the aggregate
number of Common Shares, (or any Company securities convertible or
exchangeable into, or exercisable for, Common Shares), over which
such Person has beneficial ownership or otherwise becomes the
Beneficial Owner of or beneficially owns other
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Common Shares (or any Company Securities convertible or exchangeable
into, or exercisable for, Common Shares) (other than Common Shares
the beneficial ownership of which was acquired through (x) any
dividend or distribution of any Common Shares or any Company
securities convertible or exchangeable into Common Shares or any
stock split or (y) any grants of Common Shares or any Company
securities exercisable for Common Shares (or the exercise of any
such securities for Common Shares) under any benefit plan of the
Company generally available for directors of the Company), then such
Person shall be deemed an "Acquiring Person" for all purposes of
this Agreement.
(b) In Section 3(a) of the Rights Agreement, the percentage "12%" is
hereby replaced by the term "the Maximum Number," as defined in Section
1(a) in this amendment.
2. The term "Agreement" as used in the Rights Agreement shall be deemed to
refer to the Rights Agreement as amended hereby.
3. The foregoing amendment shall be effective as of the date hereof and,
except as set forth herein, the Rights Agreement shall remain in full
force and effect and shall be otherwise unaffected hereby.
4. This amendment may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this amendment to
be duly executed as of the day and year first above written.
ATTEST: American Medical Security Group, Inc.
s/s Xxxxx X. XxxXxxxxxx By: s/s Xxxxxxx X. Xxxxx
Name: Xxxxx X. XxxXxxxxxx Name: Xxxxxxx X. Xxxxx
Title: Vice President Title: Senior Vice President, General
Assistant Secretary Counsel and Secretary
ATTEST: LaSalle Bank National Association
Rights Agent
s/s Xxxxxx X. Xxxxxxxx By: s/s Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxxxxxx
Title: Trust Officer Title: Assistant Vice President
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