EXHIBIT 4.1
AMENDMENT TO RIGHTS AGREEMENT
This Amendment dated as of January 12, 2004 (the "Amendment"), to the
Rights Agreement (the "Rights Agreement"), dated as of March 7, 2003, between
TheraSense, Inc., a Delaware corporation (the "Company"), and ComputerShare
Investor Services, as Rights Agent (the "Rights Agent"), is being executed at
the direction of the Company, by and between the Company and the Rights Agent.
Capitalized terms used without definition in this Amendment shall have the
meanings ascribed to such capitalized terms used in the Rights Agreement.
WHEREAS, the Company, Xxxxxx Laboratories, an Illinois corporation
("Parent"), and Corvette Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of Parent ("Sub"), intend to enter into an Agreement
and Plan of Merger (the "Merger Agreement") pursuant to which Parent, Sub and
the Company will agree to enter into a business combination by means of the
merger of Sub with and into the Company (the "Merger") upon the terms and
subject to the conditions set forth in the Merger Agreement;
WHEREAS, in connection with the Merger Agreement, Parent, Sub and
certain stockholders of the Company intend to enter into a stockholder
agreement (the "Stockholder Agreement") pursuant to which, among other things,
such stockholders will agree to vote to approve and adopt the Merger Agreement
and the Merger and to take certain other actions in furtherance of the Merger,
upon the terms and subject to the conditions set forth in the Stockholder
Agreement;
WHEREAS, on January 12, 2004, the Board of Directors of the Company
resolved to amend the Rights Agreement to render the Rights (as defined in the
Rights Agreement) inapplicable to the Merger and the other transactions
contemplated by the Merger Agreement and Stockholder Agreement; and
WHEREAS, the Company wishes to supplement and amend the Rights
Agreement, as permitted by Section 23 thereof, to render the Rights Agreement
inapplicable to the Merger Agreement, the Stockholder Agreement, the Merger and
the other transactions contemplated by the Merger Agreement and the Stockholder
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the agreements,
provisions and covenants contained in this Amendment, each of the Company and
the Rights Agent agrees as follows:
1. Amendments to Rights Agreement.
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(a) A new Section 31 is hereby added as follows:
"Section 31. Permitted Transactions. Reference is made
to the Agreement and Plan of Merger (as it may be amended
or supplemented from time to time, the "Merger Agreement")
dated as of January 12, 2004 by and among Xxxxxx
Laboratories, an Illinois corporation
("Parent"), Corvette Acquisition Corp., a Delaware
corporation and wholly owned subsidiary of Parent ("Sub"),
and the Company and the Stockholder Agreement (as it may be
amended or supplemented from time to time, the "Stockholder
Agreement") dated as of January 12, 2004 by and among
Parent, Sub and certain stockholders of the Company. All
capitalized terms used in this Section 31 shall have the
meanings given to them in the Merger Agreement unless
otherwise defined herein. Notwithstanding any other
provision of this Agreement to the contrary, neither Parent
nor Sub nor any of their respective Affiliates shall be or
become an Acquiring Person, and no Distribution Date, Stock
Acquisition Date, Section 8(a)(ii) Event or Section 10
Event shall occur, and the Rights shall not become
exercisable, by reason of (a) the execution of the Merger
Agreement or the Stockholder Agreement (or the public
announcement thereof), (b) the consummation of the Merger,
(c) the conversion of shares of Common Stock into the right
to receive the Merger Consideration in accordance with
Section 3.1(c) of the Merger Agreement, (d) the
consummation of the other transactions contemplated by the
Merger Agreement, (e) the agreement pursuant to the
Stockholder Agreement of certain stockholders of the
Company to vote their shares of Common Stock in favor of
the approval and adoption of the Merger Agreement and the
Merger, or their granting of irrevocable proxies to Parent
to do so, or (f) any other actions taken or effected
pursuant to the Stockholder Agreement; and none of the
Company, Parent, Sub, the Surviving Corporation or any of
their respective Affiliates shall have any obligations
under this Agreement to any holder or former holder of
Rights as of and following the execution and delivery of
the Merger Agreement and the Stockholder Agreement, the
consummation of the Merger, the Effective Time or the
occurrence of any other events set forth in this sentence;
provided, however, that if after the date of execution of
the Merger Agreement, the Merger Agreement is terminated in
accordance with its terms, this Section 31 shall no longer
be applicable with respect to the determination of whether
Parent, Sub or any of their respective Affiliates is an
Acquiring Person or whether a Distribution Date, Stock
Acquisition Date, Section 8(a)(ii) Event or Section 10
Event has occurred."
(b) The definition of "Final Expiration Date" contained in
Section 1(a) of the Rights Agreement is hereby amended and restated
in its entirety as follows:
"Final Expiration Date" means the earlier of (i) the
date and time immediately prior to the Effective Time (as
such term is defined in the Merger Agreement referred to in
Section 31) and (ii) the close of business on February 25,
2013."
2. Effective Date. This Amendment shall become effective as of the day and
year first written above. Except as modified by this Amendment, the Rights
Agreement shall remain in full force and effect without any modification;
provided,
2
however, that if after the date of execution of the Merger Agreement, the
Merger Agreement is terminated in accordance with its terms, this Amendment
shall no longer be applicable, and the Rights Agreement, without giving effect
to this Amendment, shall remain in full force and effect.
3. Certification Pursuant to Section 23 of the Rights Agreement. The
certificate referred to in Section 23 of the Rights Agreement stating that this
Amendment is in compliance with the terms of the Rights Agreement has been
executed by an appropriate officer or director of the Company and is attached
as Annex A hereto.
4. Inconsistencies. In the event of a conflict or inconsistency between
this Amendment and the Rights Agreement and the exhibits thereto, the
provisions of this Amendment shall govern.
5. Third Party Beneficiaries. Each of Parent and Sub shall be a third
party beneficiary of this Amendment.
6. Counterparts. This Amendment may be executed in several counterparts,
each of which shall constitute an original and all of which, when taken
together, shall constitute one agreement.
[Signatures Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered as of the day and year first written above.
THERASENSE, INC.
By: /s/ W. Xxxx Xxxxx
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Name: W. Xxxx Xxxxx
Title: President, Chief Executive
Officer and Chairman
COMPUTERSHARE INVESTOR SERVICES
By: /s/ Xxxx Ashbury
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Name: Xxxx Ashbury
Title: Relationship Manager
ANNEX A
THERASENSE, INC.
CERTIFICATE PURSUANT TO SECTION 23
OF THE RIGHTS AGREEMENT
I, W. Xxxx Xxxxx, Chairman of the Board, President and Chief Executive
Officer of the TheraSense, Inc, a Delaware corporation (the "Company"), do
hereby certify pursuant to Section 23 of the Rights Agreement (the "Rights
Agreement") dated as of March 7, 2003, between the Company and ComputerShare
Investor Services, as Rights Agent, that the proposed amendment to the Rights
Agreement dated January 12, 2004 is in compliance with the terms of the Rights
Agreement.
IN WITNESS WHEREOF, I have signed this certificate.
Dated: January 12, 2004
By:
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Name: W. Xxxx Xxxxx
Title: Chairman of the Board, President
and Chief Executive Officer
