EXHIBIT 1.1
AMENDMENT NO. 1
TO THE
RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO THE RIGHTS AGREEMENT (this
"Amendment") is entered into as of this 30th day of June, 1997
between APRIA HEALTHCARE GROUP INC., a Delaware corporation
formerly called Abbey Healthcare Group Incorporated (the
"Company"), U.S. STOCK TRANSFER CORPORATION, a California
corporation (the "Initial Rights Agent"), and NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION (the "Successor Rights Agent").
INTRODUCTORY PROVISIONS
The following provisions form a part of and constitute the basis
for this Amendment:
A. The Company and the Initial Rights Agent are parties to
that certain Rights Agreement dated as of February 8, 1995 (the
"Rights Agreement").
B. Since the execution of the Rights Agreement, the
Company's name has been changed from Abbey Healthcare Group
Incorporated to Apria Healthcare Group Inc. and the "Right
Certificates" (as defined in the Rights Agreement) have been
listed with the New York Stock Exchange (the "Exchange").
C. According to the rules of the Exchange, the Initial
Rights Agent does not satisfy all requirements established by the
Exchange for a registrar or transfer agent and is therefore
precluded from acting as the "Rights Agent" (as defined in the
Rights Agreement) under the Rights Agreement.
D. The Successor Rights Agent meets the requirements of
the Exchange with respect to a registrar and transfer agent for
securities listed on the Exchange and is therefore qualified to
act as the Rights Agent under the Rights Agreement.
E. The Company desires to amend the Rights Agreement by
replacing the Initial Rights Agent with the Successor Rights
Agent as the "Rights Agent" under the Rights Agreement, amending
the provisions of the Rights Agreement which relate to the
removal and replacement of the Rights Agent, and amending certain
provisions which relate the definitions of the Company,
"Acquiring Person," "Trigger Date" and the issuance of "Right
Certificates" thereunder.
F. The Company has delivered to the Initial Rights Agent
and the Successor Rights Agent a certificate from its Vice
President, General Counsel and Secretary stating that the
provisions of this Amendment are in compliance with the terms of
Section 26 of the Rights Agreement.
G. The parties wish to execute this Amendment to properly
evidence such amendments.
NOW, THEREFORE, in consideration of the premises and
the mutual agreements herein set forth, the parties hereby agree
as follows:
1. The Rights Agreement is hereby amended so
that all references therein to the Company
as "Abbey Healthcare Group Incorporated"
are changed to "Apria Healthcare Group
Inc."
2. From and after the full and final
execution of this Amendment, the Initial
Rights Agent shall no longer be the Rights
Agent under the Rights Agreement, and the
Successor Rights Agent shall become and be
the Rights Agent thereunder. Initial
Rights Agent shall immediately remit to
Successor Rights Agent all books, records,
funds, certificates or other documents and
instruments of any kind in its possession
which have been acquired by Initial Rights
Agent in the performance of its duties
under the Rights Agreement. Upon delivery
of the foregoing items to Successor Rights
Agent, Initial Rights Agent shall be
deemed absolved and relieved from its
prospective obligations under the Rights
Agreement. Successor Rights Agent hereby
agrees to act as the Rights Agent under
the Rights Agreement and agrees to perform
each and every obligation of the Rights
Agreement which shall become performable
after the full and final execution hereof
as the same becomes performable.
3. Section 21 of the Rights Agreement is
hereby amended and restated in full as
follows:
Section 21. Change of Rights Agent. The
Rights Agent or any successor Rights Agent
may resign and be discharged from its
duties under this Rights Agreement upon
notice in writing mailed to the Company
and to each transfer agent of the Common
Shares and/or Preferred Shares, as
applicable, by registered or certified
mail. The Company may remove the Rights
Agent or any successor Rights Agent upon
notice in writing, mailed to the Rights
Agent or successor Rights Agent, as the
case may be, and to each transfer agent of
the Common Shares and/or Preferred Shares,
as applicable, by registered or certified
mail. If the Rights Agent shall resign,
or be removed or shall otherwise become
incapable of acting, the resigning,
removed, or incapacitated Rights Agent
shall remit to the Company, or to any
successor Rights Agent designated by the
Company, all books, records, funds,
certificates or other documents or
instruments of any kind then in its
possession which were acquired by such
resigning, removed or incapacitated Rights
Agent in connection with its services as
Rights Agent hereunder, and shall
thereafter be discharged from all further
duties and obligations which have not yet
become performable hereunder. Following
notice of such removal, resignation or
incapacity, the Company shall appoint a
successor to such Rights Agent. If the
Company shall fail to make such
appointment within a period of thirty (30)
days after such removal or after it has
been notified in writing of such
resignation or incapacity by the resigning
or incapacitated Rights Agent or by the
holder of a Right Certificate (who shall,
with such notice, submit his Right
Certificate for inspection by the
Company), then the registered holder of
any Right Certificate may apply to any
court of competent jurisdiction for the
appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed
by the Company or by such a court, shall
be (i) a corporation or banking
association organized and doing business
under the laws of the United Sates or of
any State of the United States and
authorized under such laws to exercise
stock transfer or corporate trust powers;
(ii) subject to supervision or examination
by federal or state authority; (iii) an
entity which has, at the time of its
appointment as Rights Agent, a combined
capital and surplus of at least
$10,000,000; and (iv) an entity which is
duly qualified to act as a transfer agent
and registrar under the rules of the
Exchange and any other exchange with which
the Right Certificates are registered.
After appointment, the successor Rights
Agent shall be vested with the same
powers, rights, duties and
responsibilities as if it had been
originally named as Rights Agent without
further act or deed; but the predecessor
Rights Agent shall deliver and transfer to
the successor Rights Agent any property at
the time held by it hereunder, and execute
and deliver any further assurance,
conveyance, act or deed necessary for the
purpose. Not later than the effective
date of any such appointment, the Company
shall file notice thereof in writing with
the predecessor Rights Agent and each
transfer agent of the Common Shares and/or
Preferred Shares, as applicable. The
Company shall inform the holders of Right
Certificates of any such appointment by
including notice thereof in one of the
Company's periodic filings under the
Securities Exchange Act of 1934, as
amended, filed within one year after the
appointment. In addition, if such
appointment shall occur on or after the
Distribution Date, the newly appointed
Rights Agent shall mail written notice of
its appointment to the registered holders
of the Right Certificates within 30 days
after the appointment. However, failure
to give any notice provided for in this
Section 21, or any defect therein, shall
not affect the legality or validity of the
appointment of the successor Rights Agent,
as the case may be.
4. The Rights Agreement is hereby further
amended so that each reference in the
Rights Agreement to 20% of the Common
Shares of the Company is hereby amended to
read 15% of the Common Shares, including
all references in Sections 1.1, 1.11 and
3.1 of the Rights Agreement.
5. Except as specifically provided herein, the
Rights Agreement shall remain in full force
and affect as originally executed.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and their respective corporate
seals to be hereunto affixed, all as of the day and year first
above written.
THE COMPANY:
APRIA HEALTHCARE GROUP INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer
INITIAL RIGHTS AGENT:
U.S. STOCK TRANSFER CORPORATION
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
SUCCESSOR RIGHTS AGENT:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
