Exhibit 4.1
FOURTH AMENDMENT
TO
RIGHTS AGREEMENT
THIS FOURTH AMENDMENT to that certain Rights Agreement dated February
11, 1999 (the "Agreement"), by and between Per-Se Technologies, Inc., a Delaware
corporation ("Per-Se"), and American Stock Transfer & Trust Company, a New York
banking corporation, as Rights Agent (the "Rights Agent"), is made and entered
into this 18th day of February, 2005.
WHEREAS, the Agreement provides for the dividend distribution of one
Right for each share of outstanding Common Stock of Per-Se, each Right initially
representing the right to purchase one one-hundredth of a share of Series A
Junior Participating Preferred Stock;
WHEREAS, Per-Se and the Rights Agent have entered into three previous
amendments to the Agreement, each relating to exclusions from the definition of
"Acquired Person"; and
WHEREAS, the Company desires to further amend the Agreement to (i)
remove the "slow hand" provisions contained in Section 23(c) of the Agreement
that restrict the actions of or place procedural obligations on the Company's
Board of Directors in certain circumstances and (ii) add a three-year
independent director evaluation ("TIDE") provision.
NOW, THEREFORE, in consideration of the premises and mutual agreements
set forth herein, the parties agree as follows:
1. AMENDMENTS TO SECTION 1:
(a) The text contained in Section 1(a) (the definition of
"Acquiring Person"), clause (x)(iv), is hereby amended by deleting the
words "during the Special Period (as defined in Section 23(c) hereof)
or".
(b) The text contained in Section 1(d) (the definition of
"Affected Transaction") is hereby deleted in its entirety.
(c) The text contained in Section 1(r) (the definition of
"Independent Advisor") is hereby deleted in its entirety.
(d) The text contained in Section 1(s) (the definition of
"Interest") is hereby deleted in its entirety.
(e) The text contained in Section 1(ff) (the definition of
"Special Period") is hereby deleted in its entirety.
(f) The text contained in Section 1(mm) (the definition of
"Transaction") is hereby deleted in its entirety.
(g) The text contained in Section 1(oo) (the definition of
"Value Enhancement Procedures") is hereby deleted in its entirety.
(h) The following new Section 1(pp) is hereby added to the end
of Section 1 as follows: "(pp) "TIDE Committee" shall have the meaning
set forth in Section 29(b) hereof."
2. AMENDMENTS TO SECTION 3:
(a) Section 3(a), clause (ii), is amended by deleting the
words ", provided, however, that no deferral of a Distribution Date by
the Board pursuant to this clause (ii) may be made at any time during
the Special Period".
3. AMENDMENTS TO SECTION 11:
(a) Section 11(a)(ii), clause (b) is amended by deleting the
words "(provided, however, that no such determination shall be made
during the Special Period)".
4. AMENDMENTS TO SECTION 23:
(a) Section 23(c) is hereby deleted in its entirety.
5. AMENDMENTS TO SECTION 27:
(a) Section 27(b) is amended by deleting the words "during the
Special Period or".
6. AMENDMENTS TO SECTION 29:
Section 29 is hereby amended and restated in its entirety to
read as follows:
(a) For all purposes of this Agreement, any calculation of the
number of shares of Common Stock outstanding at any particular time,
including for purposes of determining the particular percentage of such
outstanding shares of Common Stock of which any Person is the
Beneficial Owner, shall be made in accordance with the last sentence of
Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the
Exchange Act. The Board of Directors of the Company shall have the
exclusive power and authority to administer this Agreement and to
exercise all rights and powers specifically granted to the Board or the
Company, or as may be necessary or advisable in the administration of
this Agreement, including, without limitation, the right and power to
(i) interpret the process of this Agreement, and (ii) make all
determinations deemed necessary or advisable for the administration of
this Agreement (including a determination to redeem or not redeem the
Rights or to amend the Agreement). All such actions, calculations,
interpretations and determinations (including, for purposes of clause
(y) below, all omissions with respect to the foregoing) which are done
or made by the Board of Directors in good faith, shall (x) be final,
conclusive and binding on the Company, the Rights Agent, the holders of
the Rights and all other parties, and (y) not subject the Board of
Directors, or any of the directors on the Board of Directors, to any
liability to the holders of the Rights.
2
(b) It is understood that the TIDE Committee (as described
below) of the Board of Directors shall review and evaluate this
Agreement in order to consider whether the maintenance of this
Agreement continues to be in the best interests of the Company, its
stockholders and other relevant constituencies of the Company at least
once every three years, or sooner than that if (i) any Person shall
have made a proposal to the Company or its stockholders, or taken any
other action, that, if effective, could cause such Person to become an
Acquiring Person hereunder, and (ii) a majority of the members of the
TIDE Committee shall deem such review and evaluation appropriate after
giving due regard to all relevant circumstances. Following each such
review, the TIDE Committee shall communicate its conclusions to the
full Board of Directors, including any recommendation in light thereof
as to whether this Agreement should be modified or the Rights should be
redeemed. The TIDE Committee shall be comprised of members of the Board
of Directors who are not officers, employees or Affiliates of the
Company and shall be the Corporate Governance Committee of the Board of
Directors as long as the members of the Corporate Governance Committee
meet such requirements.
(c) The TIDE Committee and the Board of Directors, when
considering whether this Agreement should be modified or the Rights
should be redeemed, shall have the power to set their own agenda and to
retain at the expense of the Company their choice of legal counsel,
investment bankers and other advisors. The TIDE Committee and the Board
of Directors, when considering whether this Agreement should be
modified or the Rights should be redeemed, shall have the authority to
review all information of the Company and to consider any and all
factors they deem relevant to an evaluation of whether this Agreement
should be modified or the Rights should be redeemed.
7. AMENDMENTS TO EXHIBIT C:
(a) The second paragraph of Exhibit C is amended by deleting
the words ", provided, however, that no deferral of a Distribution Date
by the Board pursuant to the terms of the Rights Agreement described in
this clause (ii) may be made at any time during the Special Period (as
defined below)".
(b) The tenth paragraph of Exhibit C is hereby deleted in its
entirety.
(c) The second sentence of the penultimate paragraph of
Exhibit C is amended by deleting the words "during the Special Period
or".
8. Capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the Agreement.
3
9. Except as specifically amended herein, the Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, each of the parties has caused this Fourth
Amendment to the Agreement to be executed by its duly authorized representative
as of the day and year first above written.
PER-SE TECHNOLOGIES, INC. AMERICAN STOCK TRANSFER &
TRUST COMPANY, as Rights
Agent
By: /s/ PHILIP M. PEAD By: /s/ HERBERT J. LEMMER
--------------------------------- -----------------------------------
Philip M. Pead Name: Herbert J. Lemmer
Chairman, President Title: Vice President
and Chief Executive Officer
4