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EXHIBIT 4
AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT, dated as of October 31, 1997, to the Rights
Agreement, dated as of May 22, 1995 (the "Rights Agreement"), between
Healthdyne Technologies, Inc., a Georgia corporation (the "Company"), and
SunTrust Bank, Atlanta, a Georgia banking corporation, as Rights Agent (the
"Rights Agent").
WHEREAS, the Company and the Rights Agent entered into the
Rights Agreement specifying the terms of the Rights (as defined therein);
WHEREAS, the Company and the Rights Agent desire to amend the
Rights Agreement in accordance with Section 26 of the Rights Agreement;
WHEREAS, the Board of Directors of the Company has voted in
favor of this Amendment at a meeting of directors duly called and held;
WHEREAS, there are Continuing Directors (as defined in the
Rights Agreement) serving on the Board of Directors of the Company and a
majority of the Continuing Directors have voted in favor of this Amendment at a
meeting of directors duly called and held;
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth in the Rights Agree-
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ment and this Amendment, the parties hereby agree as follows:
1. Section 1 of the Rights Agreement is amended to add the
following new subsection (o) at the end thereof:
"(o) "Offer" shall mean a written proposal delivered
to the Company by any Person who both beneficially owns 5% or
less of the outstanding shares of Common Stock as of the date
such proposal is delivered to the Company and who has not
within one year prior to the delivery of such written proposal
(x) beneficially owned in excess of 5% of the outstanding
shares of Common Stock and (y) (at any time when such Person
beneficially owned such 5% stake) disclosed, or caused the
disclosure of, any intention which relates to or would result
in the acquisition of influence or control of the Company (such
Person being referred to as an "Offeror"), and which proposal:
(i) provides for the acquisition of all of the outstanding
shares of Common Stock held by any Person other than the
Offeror and its Affiliates for cash at the same price and at
a price which is at least 15% higher than the "current market
price" per share of Common Stock on the day immediately
preceding the date on which the Offeror's proposal is delivered
to the Company (as determined pursuant to Section 11(d)(i)
hereof for the purposes of computations made pursuant to
Section 11(a)(iii) hereof, but utilizing the ten (10)
consecutive Trading Days immediately preceding the date on
which the Offeror's proposal is delivered to the Company);
(ii) states that the Offeror has obtained written
financing commitments from recognized financing sources, and/or
has on hand cash or cash equivalents, for the full amount of
all financing necessary to consummate the Offer (including
amounts necessary to refinance any
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indebtedness of the Company or its subsidiaries which will
become due upon consummation of the Offer); and
(iii) requests the Company to call a special meeting of the
holders of Common Stock for the purpose of voting on a
resolution requiring the Board of Directors to redeem the
Rights and contains a written agreement of the Offeror to pay
the Company's costs of such special meeting (inclusive of the
Company's costs of preparing and mailing proxy material for its
own solicitation but exclusive of the fees and expenses of the
Company's own financial and legal advisors, and proxy
solicitor)."
2. Section 23 of the Rights Agreement is amended to delete
existing subsection (c) and add the following new subsections (c) and (d) at
the end of such Section:
"(c) Notwithstanding any other provision of this Agreement,
the Rights may be redeemed without the approval of the Board of
Directors or the Continuing Directors as follows:
(i) In the event the Company receives an Offer from any
Offeror, the Board of Directors of the Company shall call a
special meeting of stockholders (the "Special Meeting") for the
purpose of voting on a resolution requesting the Board of
Directors to redeem the Rights (the "Resolution"). The Special
Meeting shall be held on a date selected by the Board of
Directors, which date shall be not less than 90 and not more
than 120 days after the later of (A) the date such Offer is
received by the Company (the "Offer Date") and (B) the date of
any meeting of stockholders already scheduled as of the Offer
Date; provided, however, that if (x) such other meeting shall
have been called for the purpose of voting on a resolution with
respect to another Offer and (y) the Offer Date shall
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be not later than fifteen days after the date such other Offer
was received by the Company, then both the Resolution and such
other resolution shall be voted on at such meeting and such
meeting shall be deemed to be the Special Meeting. The Board
of Directors shall set a date for determining the stockholders
of record entitled to notice of and to vote at the Special
Meeting in accordance with the Company's Articles of
Incorporation and By-laws and with applicable law. At the
Offeror's request, the Company shall include in any proxy
soliciting material prepared by it in connection with the
Special Meeting proxy soliciting material submitted by the
Offeror; provided, however, that the Offeror shall by written
agreement with the Company contained in or delivered with such
request have indemnified the Company against any and all
liabilities resulting from any misstatements, misleading
statements and omissions contained in the Offeror's proxy
soliciting material. Notwithstanding the foregoing, no Special
Meeting shall be held from and after such time as any Person
becomes an Acquiring Person, and any Special Meeting scheduled
prior to such time and not theretofore held shall be cancelled.
(ii) If at the Special Meeting the Resolution receives the
affirmative vote of a majority of the shares of Common Stock
outstanding as of the record date of the Special Meeting, then
all of the Rights shall be redeemed by such stockholder
action at the Redemption Price, effective immediately prior to
the consummation of any tender offer (provided that such tender
offer is consummated prior to 60 days after the date of the
Special Meeting) pursuant to which any Person offers to
purchase all of the shares of Common Stock held by Persons
other than such Person and its Affiliates at a price per share
in cash equal to or greater than the price contained in the
Resolution approved at the Special Meeting; provided, however,
that the Rights shall not be redeemed at any time from and
after such time as any Person becomes an
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Acquiring Person.
(iii) Nothing contained in this subsection (c) shall be deemed
to be in derogation of the obligation of the Board of Directors
of the Company to exercise its fiduciary duty. Without
limiting the foregoing, nothing contained herein shall be
construed to suggest or imply that the Board of Directors shall
not be entitled to reject any Offer, or to recommend that
holders of shares of Common Stock reject any tender offer, or
to take any other action (including, without limitation, the
commencement, prosecution, defense or settlement of any
litigation and the submission of additional or alternative
Offers or other proposals to the Special Meeting) with respect
to any Offer or any tender offer that the Board of Directors
believes is necessary or appropriate in the exercise of its
fiduciary duty.
(iv) Nothing in this subsection (c) shall be construed as
limiting or prohibiting the Company or any Offeror from
proposing or engaging, at any time, in any acquisition,
disposition or other transfer of any securities of the Company,
any merger or consolidation involving the Company, any sale or
other transfer of assets of the Company, any liquidation,
dissolution or winding-up of the Company, or any other business
combination or other transaction, or any other action by the
Company or such Offeror; provided, however, that the holders of
Rights shall have the rights set forth in this Agreement with
respect to any such acquisition, disposition, transfer, merger,
consolidation, sale, liquidation, dissolution, winding-up,
business combination, transaction or action.
(d) Immediately upon the action of the Board of Directors of the
Company ordering the redemption of the Rights, or upon effectiveness of
the redemption of the Rights pursuant to subsection (c) of this Section
23, evidence of which shall have been filed with the Rights Agent and
without any further action and without any notice, the right to
exercise the
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Rights will terminate and the only right thereafter of the holders of
Rights shall be to receive the Redemption Price for each Right so held.
Promptly after the action of the Board of Directors ordering the
redemption of the Rights, or promptly following the redemption of the
Rights pursuant to subsection (c) of this Section 23, the Company
shall give notice of such redemption to the Rights Agent and the
holders of the then outstanding Rights by mailing such notice to all
such holders at each holder's last address as it appears upon the
registry books of the Rights Agent or, prior to the Distribution Date,
on the registry books of the Transfer Agent for the Common Stock. Any
notice which is mailed in the manner herein provided shall be deemed
given, whether or not the holder receives the notice. Each such notice
of redemption will state the method by which the payment of the
Redemption Price will be made."
3. The term "Agreement" as used in the Rights Agreement
shall be deemed to refer to the Rights Agreement as amended hereby.
4. 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.
5. 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.
HEALTHDYNE TECHNOLOGIES, INC.
By: /s/ M. Xxxxx Xxxxxxxx
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Name: M. Xxxxx Xxxxxxxx
Title:Vice President-Finance
SUNTRUST BANK, ATLANTA
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title:Vice President
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