EXHIBIT 99.(d)(6)
FIRST AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT made and entered into as of the 4th day of May, 2000, by and
between ProVantage Health Services, Inc. (the "Company") and Norwest Bank
Minnesota, National Association (the "Right Agent"), under the Rights Agreement,
dated as of March 12, 1999, by and between the Company and the Rights Agent (the
"Agreement").
WHEREAS, the Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
may from time to time prior to any person becoming an Acquiring Person (as
defined in the Rights Agreement) supplement or amend the Rights Agreement in
accordance with the provisions of Section 27 thereof;
WHEREAS, it is proposed that the Company enter into an Agreement and
Plan of Merger (the "Merger Agreement"), among the Company, Merck & Co., Inc.
("Parent") and PV Acquisition Corp., a wholly-owned subsidiary of Parent;
WHEREAS, Parent has required, as a condition to its willingness to
enter into the Merger Agreement, that ShopKo Stores, Inc. and ShopKo Holdings,
Inc enter into a Stockholder Agreement (the "Stockholder Agreement") with
Parent;
WHEREAS, the Board of Directors of the Company has determined that the
transactions contemplated by the Merger Agreement are fair to and in the best
interests of the Company and its stockholders; and
WHEREAS, the Board of Directors has determined that it is in the best
interests of the Company and its stockholders to amend the Agreement to exempt
the Merger Agreement and the Stockholder Agreement and the transactions
contemplated thereby from the application of the Rights Agreement.
NOW THEREFORE, the Company and the Rights Agent hereby amend the
Rights Agreement as follows:
A. Section 1(c) of the Agreement is hereby amended by adding the
following at the end of such Section:
Notwithstanding the foregoing, for purposes of this Agreement, neither
Merck & Co., Inc. ("Parent") nor PV Acquisition Corp., a wholly-owned
subsidiary of Parent, nor any other wholly-owned subsidiary of Parent
(collectively, the "Permitted Purchasers"), shall be deemed to be the
Beneficial Owner of or to beneficially own any Common Shares as a
result of (i) that certain Agreement and Plan of Merger (the "Merger
Agreement"), dated as of May 4, 2000, among the Company and the
Permitted Purchasers, or any purchase of Common Shares thereunder, or
(ii) that certain Stockholder
Agreement (the "Stockholder Agreement"), dated as of May 4, 2000,
among the Company and the Permitted Purchasers, or any purchase of
Common Shares thereunder.
B. The Agreement is hereby further amended to add a new Section 34 to
the Agreement which shall read in its entirety as follows:
Section 34. Excluded Transactions. Nothing in this Agreement shall
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be construed to create or cause a Distribution Date or Shares
Acquisition Date or to constitute an event pursuant to which any
Person becomes an Acquiring Person for purposes of Section 11(a)(ii)
or any of the events described in clauses (a), (b) or (c) of Section
13 or give any holder of Rights or any other Person a legal or
equitable right, remedy or claim as a result of the execution of the
Merger Agreement and/or the Stockholder Agreement or the commencement
or consummation of the transactions contemplated by the Merger
Agreement and/or the Stockholder Agreement.
C. This Amendment shall be irrevocable and deemed to be a contract
made under the laws of the State of Delaware and for all purpose 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.
D. This Amendment may be executed in any number of counterparts, each
of which shall for all purposes be deemed an original, and all of which together
shall constitute but one and the same instrument.
E. Except as expressly set forth herein, this Amendment shall not by
implication or otherwise alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements contained in the
Agreement, all of which are ratified and affirmed in all respects and shall
continue in full force and effect.
F. Parent and the Permitted Purchasers are intended third party
beneficiaries of this Amendment.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the date first above written.
Attest: PROVANTAGE HEALTH SERVICES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxx
Title: Secretary Title: President and Chief Executive
Officer
Attest: NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx X. Xxxxxx Name:
Title: Assistant Secretary Title: AVP
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