1
EXHIBIT 10.62
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This Amendment No. 1 dated December 9, 1999 hereby amends the Rights
Agreement dated as of January 23, 1992 (the "Agreement"), between PolyMedica
Corporation (then PolyMedica Industries, Inc.), a Massachusetts corporation (the
"Company"), and BankBoston, N.A. (then The First National Bank of Boston), a
national banking association, as Rights Agent (the "Rights Agent").
W I T N E S S E T H:
WHEREAS, no Person has become an Acquiring Person as such terms are
defined in the Agreement; and
WHEREAS, the Company has directed the Rights Agent to enter into this
Amendment No. 1 pursuant to Section 27 of the Agreement;
NOW, THEREFORE, in consideration of the premises and mutual agreements
set forth herein, the parties hereby agree as follows:
1. Section 1(a) of the Agreement is hereby deleted in its entirety and the
following substituted in lieu thereof:
(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person,
shall be the Beneficial Owner of 15% or more of the shares of
Common Stock then outstanding, but shall not include (i) the
Company, (ii) any Subsidiary of the Company, (iii) any
employee benefit plan of the Company or of any Subsidiary of
the Company, or any Person or entity organized, appointed or
established by the Company for or pursuant to the terms of any
such plan, (iv) any such Person who becomes the beneficial
owner of 15% or more of the shares of Common Stock then
outstanding as a result of a reduction in the number of shares
of Common Stock outstanding due to the repurchase of shares of
Common Stock by the Company unless and until such Person,
after becoming aware that such Person has become the
Beneficial Owner of 15% or more of the then outstanding shares
of Common Stock, acquires beneficial ownership of additional
shares of Common Stock representing 1% or more of the shares
of Common Stock then outstanding or (v) an Exempted 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 shares of Common
26
2
Stock so that such Person would no longer be the Beneficial
Owner of 10% or more of the shares of Common Stock then
outstanding, then such Person shall not be deemed to be an
"Acquiring Person" for any purposes of this Agreement unless
and until such Person shall again become an "Acquiring
Person."
2. Section 1 of the Agreement is hereby further amended by adding new
paragraph (m-1), immediately after paragraph (m), as follows:
(m-1) "Exempted Person" shall mean SAFECO Common Stock
Trust, SAFECO Resource Series Trust, SAFECO Asset
Management Company and SAFECO Corporation
(collectively, "SAFECO"), unless and until such time
as SAFECO, together with its Affiliates, directly or
indirectly, becomes the Beneficial Owner of 20% or
more of the Common Stock then outstanding, in which
event SAFECO immediately shall cease to be an
Exempted Person.
3. Section 11(a)(ii))B) of the Agreement is hereby deleted and the
following substituted in lieu thereof:
(B) any Person (other than the Company, any Subsidiary of
the company, any employee benefit plan of the Company
or of any Subsidiary of the Company, or any Person or
entity organized, appointed or established by the
Company for or pursuant to the terms of any such
plan), alone or together with its Affiliates and
Associates, shall, at any time after the Rights
Dividend Declaration Date, become the Beneficial
Owner of 15% or more (or, in the case of an Exempted
Person, 20% or more) of the shares of Common Stock
then outstanding, unless the event causing the 15%
threshold (or in the case of an Exempted Person, the
20% threshold) to be crossed is a transaction set
forth in Section 13(a) hereof, or is an acquisition
of shares of Common Stock pursuant to a tender offer
or an exchange offer for all outstanding shares of
Common Stock at a price and on terms determined by at
least a majority of the members of the Board of
Directors who are not officers of the Company and who
are not representatives, nominees, Affiliates or
Associates of an Acquiring Person, after receiving
advice from a nationally recognized investment
banking firm selected by the Board of Directors of
the Company, to be (a) at a price that is fair to
stockholders (taking into account all factors which
such members of the Board deem relevant including,
without limitation, prices which could reasonably be
achieved if the Company or its assets were sold on an
orderly basis designed to realize maximum value) and
(b) otherwise in the best interests of the Company
and its stockholders, or
27
3
IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to
be duly executed and their respective corporate seals to be hereunto affixed and
attested as of the day and year first written above.
POLYMEDICA CORPORATION
Attest:
/s/ Xxxx X. Xxxxxxx /s/ Xxxxxx X. Xxx
_____________________________ By:______________________________________
Name: Xxxx X. Xxxxxxx Name: Xxxxxx X. Xxx
Title: Chief Financial Officer Title: Chairman of the Board
and Chief Executive Officer
Seal
BANKBOSTON, N.A.
Attest:
/s/ Xxxxxxxx X. XxXxxx /s/ Xxxxxx X. XxXxxx
______________________________ By:______________________________________
Name: Xxxxxxxx X. XxXxxx Name: Xxxxxx X. XxXxxx
Title: Account Manager Title: Senior Account Manager
28
