Exhibit 10.8
AMENDMENT No. 3 TO RIGHTS AGREEMENT
This Amendment No. 3 to Rights Agreement (this "Amendment") is between
Optical Sensors Incorporated, a Delaware corporation (the "Company"), and Xxxxx
Fargo Bank, N.A., a national banking association (the "Rights Agent"), effective
as of April 19, 2001.
A. The Company and the Rights Agent have entered into a Rights
Agreement, dated as of December 3, 1996, as amended by Amendment No. 1
("Amendment No. 1") to Rights Agreement effective as of March 9, 2000 and
Amendment No. 2 ("Amendment No. 2") to Rights Agreement effective as of August
8, 2000 (as amended, the "Rights Agreement"). Capitalized terms used and not
otherwise defined herein will have the meaning given in the Rights Agreement.
B. Section 27 of the Rights Agreement provides that, prior to the
Distribution Date, the Company may amend the Rights Agreement, including without
limitation the definition of an Acquiring Person (as amended by Amendment No. 1
and Amendment No. 2) as set forth in Section 1(a) thereof, upon the approval of
at least a majority of the Continuing Directors, and that, upon any such
amendment, the Rights Agent shall amend the Rights Agreement as the Company
directs.
C. The Company desires, and hereby directs the Rights Agent, to amend
the Rights Agreement as set forth herein and the Rights Agent agrees to such
amendments, on the terms and conditions hereof.
Accordingly, the Company and the Rights Agent agree as follows:
1. Representations and Warranties. The Company represents and warrants to
the Rights Agent that:
(a) to the best knowledge of the Company, the Distribution Date has not
occurred prior to the effective date hereof; and
(b) this Amendment is authorized pursuant to the requirements of
Section 27 of the Rights Agreement, having been approved by a majority
of the Company's Continuing Directors.
2. Amendment of Section 1(a). Section 1(a) of the Rights Agreement is
hereby amended by deleting Section 1(a) in its entirety and
substituting the following therefor:
"Acquiring Person" shall mean any Person, who or which, alone or
together with all Affiliates and Associates of such Person, shall be
the Beneficial Owner of 15% or more of the Common Shares then
outstanding (the "Acquiring Person Trigger Amount") (other than as a
result of a Permitted Offer (as hereinafter defined)), but shall not
include (a) the Company or any Subsidiary of the Company, (b) any
employee benefit plan of the Company or of any Subsidiary of the
Company or any Person organized, appointed or established by the
Company for or pursuant to the terms of any such plan or (c) Xxxxxx X.
Xxxxxxx ("Xxxxxxx") or Circle F
Ventures, LLC, a Georgia limited liability company ("Circle F")
(Xxxxxxx and Circle F are collectively referred to as the "Circle F
Group") or any Affiliate or Associate of the Circle F Group.
Notwithstanding the foregoing, no Person shall become an "Acquiring
Person": (i) as the result of an acquisition of Common Shares by the
Company which, by reducing the number of Common Shares outstanding,
increases the proportionate number of Common Shares beneficially owned
by such Person to the Acquiring Person Trigger Amount; provided,
however, that if a Person shall become the Beneficial Owner of the
Acquiring Person Trigger Amount by reason of Common Share purchases by
the Company and shall thereafter become the Beneficial Owner of any
additional Common Shares, other than pursuant to the receipt of stock
dividends or stock splits on a pro rata basis on Common Shares already
beneficially owned by such Person, then such Person shall be deemed to
be an "Acquiring Person" or (ii) who is a Person who is the Beneficial
Owner of the Acquiring Person Trigger Amount but who acquired
Beneficial Ownership of Common Shares without any plan or intention to
seek or affect control of the Company, if such Person promptly enters
into an irrevocable commitment promptly to divest, and thereafter
promptly divests (without exercising or retaining any power, including
voting, with respect to such shares), sufficient shares of Common
Shares (or securities convertible into, exchangeable into or
exercisable for Common Shares) so that such Person ceases to be the
Beneficial Owner of the Acquiring Person Trigger Amount or (iii) who
beneficially owns Common Shares consisting solely of one or more (A)
Common Shares beneficially owned pursuant to the grant for exercise of
an option granted to such Person by the Company in connection with an
agreement to merge with, or acquire, the Company entered into prior to
a Section 11(a)(ii) Trigger Date, (B) Common Shares (or securities
convertible into, exchangeable into or exercisable for Common Shares),
beneficially owned by such Person or its Affiliates or Associates at
the time of grant of such option or (C) Common Shares (or securities
convertible into, exchangeable into or exercisable for Common Shares)
acquired by Affiliates or Associates of such Person after the time of
such grant which, in the aggregate, amount to less than 1% of the
outstanding Common Shares. For purposes of the definition of "Acquiring
Person", the Acquiring Person Trigger Amount for Special Situations
Fund III, L.P., a Delaware limited partnership ("SSF III"), MGP
Advisers Limited Partnership, a Delaware limited partnership ("MGP"),
Special Situations Cayman Fund, L.P., a Cayman Islands limited
partnership (SS Cayman"), AWM Investment Company, Inc., a Delaware
corporation ("AWM"), Xxxxxx X. Xxxxx ("Marxe") or Xxxxx Greenhouse
("Greenhouse") (SSF III, MGP, SS Cayman, AWM, Marxe and Greenhouse are
collectively referred to as "Special Situations Group"), shall be 24%
or more of the Common Shares then outstanding (the "Special Situations
Trigger Amount") which shall be applicable if any member of the Special
Situations Group has, or, together with any Affiliates and Associates
of such member, shall be the Beneficial Owner of, such Special
Situations Trigger Amount.
3. Amendment of Section 3(a). Subpart (ii) of the first sentence of
Section 3(a) of the Rights Agreement is hereby amended by deleting such
subpart in its entirety and substituting the following therefor:
(ii) the close of business on the tenth Business Day (or such later
date as may be determined by the Board, acting by a majority
of the Continuing Directors, prior to such time as any Person
has become an Acquiring Person) after the date that a tender
or exchange offer (other than a Permitted Offer) by any Person
(other than (a) the Company or any Subsidiary of the Company,
(b) any employee benefit plan of the Company or of any
Subsidiary of the Company or any Person organized, appointed
or established by the Company for or pursuant to the terms of
any such plan or (c) the Circle F Group or any Affiliate or
Associate of the Circle F Group) is first published or sent or
given within the meaning of the Rule 14d-2(a) of the General
Rules and Regulations under the Exchange Act (or any
comparable or successor rule), if upon consummation thereof,
such Person would be the Beneficial Owner of the Acquiring
Person Trigger Amount; provided, however, if such an offer is
made by a member of the Special Situations Group (a "Special
Situations Offer"), which, upon consummation thereof, would
result in any member of the Special Situations Group having
or, together with any Affiliates and Associates of such
member, becoming the Beneficial Owner of, less than the
Special Situations Trigger Amount, then such Special
Situations Offer shall not be considered to be a Distribution
Date, but if the consummation of such Special Situations Offer
would result in any member of the Special Situations Group
having, or, together with any Affiliates and Associates of
such member, becoming the Beneficial Owner of, the Special
Situations Trigger Amount, then such Special Situations Offer
shall be considered a Distribution Date, or
4. No Other Changes. Except as specifically amended by this Amendment, all
other provisions of the Rights Agreement shall remain in full force and
effect. This Amendment shall not constitute or operate as a waiver of,
or estoppel with respect to, any provisions of the Rights Agreement by
any party hereto.
5. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement.
The Company and the Rights Agent have caused this Amendment to be duly
executed on their behalf by their respective duly authorized representatives as
of the date first written above.
OPTICAL SENSORS INCORPORATED XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxxx X. XxXxxxxx By: /s/ Xxxxx X. Xxxxxx
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Xxxxxxx X. XxXxxxxx Xxxxx X. Xxxxxx
Its: President and Chief Executive Its: Vice President
Officer
