Exhibit 6
FOCAL, INC.
AMENDMENT NO. 2 TO RIGHTS AGREEMENT
This Amendment No. 2 (this "Amendment"), dated as of April 25, 2001, to the
Preferred Shares Rights Agreement dated as of December 17, 1997 (the "Rights
Agreement"), is by and between Focal, Inc., a Delaware corporation (the
"Company"), and Xxxxx Fargo Bank Minnesota, N.A., as successor to Norwest Bank
Minnesota, N.A., (the "Rights Agent").
WHEREAS, the Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
may from time to time supplement or amend the Rights Agreement in accordance
with the provisions of Section 27 thereof;
WHEREAS, the Company proposes to enter into an Agreement and Plan of
Merger (the "Genzyme Merger Agreement"), among Genzyme Corporation, a
Massachusetts corporation ("Genzyme"), Xxxxx Merger Corp., a Delaware
corporation and a direct wholly-owned subsidiary of Genzyme, and the Company;
WHEREAS, the Board of Directors of the Company has determined that the
Genzyme Merger Agreement and the terms and conditions set forth therein and the
transactions contemplated thereby, including, without limitation, the Merger (as
defined in the Genzyme Merger Agreement), are fair to and in the best interests
of the Company and its shareholders; and
WHEREAS, the Board of Directors of the Company has determined, in
connection with its contemplation of the Genzyme Merger Agreement, that it is
necessary and desirable to amend the Rights Agreement to exempt the Genzyme
Merger Agreement and the transactions contemplated thereby, including, without
limitation, the Merger, from the application of the Rights Agreement as set
forth in this Amendment.
NOW, THEREFORE, the Company hereby amends the Rights Agreement as
follows:
1. Acting in accordance with Section 27 of the Rights Agreement, the first
subparagraph of Section 1, the definition of "Acquiring Person," is hereby
amended and restated so that such subparagraph reads in its entirety as follows:
"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 Common Shares 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, (iv) any entity holding Common Shares for or pursuant to the
terms of any such plan, or (v) Genzyme Corporation, a Massachusetts
corporation ("Genzyme"), if but only if, Genzyme would become the
Beneficial Owners of 15% or more of the Common Shares then outstanding
as a result of purchases ("Permitted Purchases") by Genzyme of Common
Shares pursuant to Section 1, 7.1 or 8.3 of that
certain Stock Purchase Agreement dated October 21, 1999 between Genzyme
and the Company, as modified by that certain letter agreement between
the Company and Genzyme dated as of April 24, 2001. Notwithstanding
anything in this Rights Agreement to the contrary, neither Genzyme, nor
Xxxxx Merger Corp., a Delaware corporation and a wholly-owned
subsidiary of Genzyme ("Sub"), nor any of Genzyme's Affiliates or
Associates shall become an Acquiring Person as a result of the
approval, execution, delivery or performance of (i) the Agreement and
Plan of Merger, dated as of April 24, 2001, among Genzyme, Sub and the
Company (as it may be amended or supplemented from time to time, the
"Genzyme Merger Agreement"), (ii) the Voting Agreements (as defined in
the Genzyme Merger Agreement) (as each such Voting Agreements may be
amended or supplemented from time to time with the consent of the
Company), or (iii) the consummation of the transactions contemplated
thereby, including the Merger (as defined in the Genzyme Merger
Agreement) (such approval, execution, delivery, performance and
consummation being referred to herein as the "Permitted Merger Events",
and together with Permitted Purchases, "Permitted Events").
Notwithstanding any of the foregoing, no Person shall be deemed to be
an Acquiring Person as the result of an acquisition of Common Shares by
the Company which, by reducing the number of shares outstanding,
increases the proportionate number of shares beneficially owned by such
Person to 15% or more of the Common Shares of the Company then
outstanding; PROVIDED, HOWEVER, that if a Person shall become the
Beneficial Owner of 15% or more of the Common Shares of the Company
then outstanding by reason of share purchases by the Company and shall,
after such share purchases by the Company, become the Beneficial Owner
of any additional Common Shares of the Company (other than pursuant to
a dividend or distribution paid or made by the Company on the
outstanding Common Shares in Common Shares or pursuant to a split or
subdivision of the outstanding Common Shares), then such Person shall
be deemed to be an Acquiring Person unless upon becoming the Beneficial
Owner of such additional Common Shares of the Company such Person does
not beneficially own 15% or more of the Common Shares of the Company
then outstanding. Notwithstanding the foregoing, (i) if a majority of
the Continuing Directors then in office 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 (including, without limitation, because (A) such
Person was unaware that it beneficially owned a percentage of the
Common Shares that would otherwise cause such Person to be an
"Acquiring Person," as defined pursuant to the foregoing provisions of
this paragraph (a), or (B) such Person was aware of the extent of the
Common Shares it beneficially owned but had no actual knowledge of the
consequences of such beneficial ownership under this Agreement) and
without any intention of changing or influencing control of the
Company, and if such Person divested or divests as promptly as
practicable a sufficient number of Common Shares so that such Person
would no longer be an "Acquiring Person," as defined pursuant to the
foregoing provisions of this paragraph (a), then such Person shall not
be deemed to be or to have become an "Acquiring Person" for any
purposes of this Agreement; and (ii) if, as of the date hereof, any
Person is Beneficial Owner of 15% or more of the Common Shares
outstanding, such Person shall not be or become an "Acquiring Person,"
as defined pursuant to the foregoing provisions of this paragraph (a),
unless and until such time as such Person shall become the Beneficial
Owner of additional Common Shares (other than
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pursuant to a dividend or distribution paid or made by the Company on
the outstanding Common Shares in Common Shares or pursuant to a split
or subdivision of the outstanding Common Shares), unless, upon becoming
the Beneficial Owner of such additional Common Shares, such Person is
not then the Beneficial Owner of 15% or more of the Common Shares then
outstanding."
2. Section 1(jj) of the Rights Agreement is hereby amended and
supplemented by adding the following sentence to the end thereof:
"Notwithstanding anything in this Rights Agreement to the contrary, a
Shares Acquisition Date shall not occur or be deemed to occur as a
result of any Permitted Event."
3. Section 3(a) of the Rights Agreement is hereby amended and
supplemented by adding the following sentence to the end thereof:
"Notwithstanding anything in this Rights Agreement to the contrary, a
Distribution Date shall not occur or be deemed to occur as a result of
any Permitted Event."
4. Section 1(s) of the Rights Agreement is hereby amended by deleting
it and replacing it with the following:
"(s) "FINAL EXPIRATION DATE" shall mean the earlier of (x) January 28,
2007 and (y) the closing of the transactions contemplated by the
Genzyme Merger Agreement."
5. This Amendment shall be deemed to be a contract made under the laws
of the State of Delaware and for all purposes shall be governed by and construed
in accordance with the laws of such State applicable to contracts to be made and
performed entirely within such State.
6. This Amendment may be executed in any number of counterparts, each
of such counterparts shall for all purposes be deemed an original and all such
counterparts shall together constitute but one and the same instrument.
7. This Amendment shall be deemed effective as of the date first set
forth above and immediately prior to the execution of the Genzyme Merger
Agreement. In all respects not inconsistent with the terms and provisions of
this Amendment, the Rights Agreement is hereby ratified, adopted, approved and
confirmed. In executing and delivering this Amendment, the Rights Agent shall be
entitled to all the privileges and immunities afforded to the Rights Agent under
the terms and conditions of the Rights Agreement.
8. If any term, provision, covenant or restriction of this Amendment is
held by a court of competent jurisdiction or other authority to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Amendment, and of the Rights Agreement, shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
9. Except as otherwise expressly provided herein, or unless the context
otherwise requires, all terms used herein have the meanings assigned to them in
the Rights Agreement.
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to
Rights Agreement to be executed in counterparts as of the date first written
above.
ATTEST: FOCAL, INC.
By: /s/ Xxxxx X. Xxxxx III By: /s/ Xxxxxx X. Xxxxxxxx
------------------------- -----------------------------
Name: Xxxxx X. Xxxxx III Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer Title: President and Chief
Executive Officer
XXXXX FARGO BANK MINNESOTA, N.A.
As Rights Agent
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Assistant Vice President
By: /s/ Xxxxx Van Dell
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Name: Xxxxx Van Dell
Title: Vice President
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