EXHIBIT 10.5
FIRST AMENDMENT TO RIGHTS AGREEMENT
This FIRST AMENDMENT TO RIGHTS AGREEMENT, dated as of October 9, 1997
(this "Agreement"), by and between ANGEION CORPORATION, a Minnesota corporation
(the "Company"), and NORWEST BANK MINNESOTA, N.A., a national banking
association, as Rights Agent ("Rights Agent").
WHEREAS, on April 8, 1996, the Board of Directors of the Company (the
"Board") authorized the issuance of Rights to purchase, on the terms and subject
to the provisions of that certain Rights Agreement dated April 8, 1996 between
the parties hereto (the "Rights Agreement"; all terms not defined herein shall
have the meanings set forth in the Rights Agreement), one one-thousandth of a
Preferred Share of the Company;
WHEREAS, the Board authorized and declared a dividend distribution of:
(a) one Right for each Common Share of the Company outstanding at the close of
business on the Record Date and (b) one Right for each Common Share into which
Series A Preferred Shares outstanding on the Record Date are convertible;
WHEREAS, the Company has entered into that certain Investment and
Master Strategic Relationship Agreement between the Company and Synthelabo, a
society anonyme, dated as of October 9, 1997, pursuant to which the Company has
agreed to amend certain provisions of the Rights Agreement; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, at least a
majority of the Continuing Directors has approved the amendment of certain
provisions of the Rights Agreement.
NOW, THEREFORE, in consideration of these premises, the mutual
agreements set forth, and other good and valuable consideration, the sufficiency
of which is hereby acknowledged by each party, the Rights Agreement is hereby
amended as follows:
1. Section 1(a) is hereby amended by deleting Section 1(a) in its
entirety and substituting the following therefor:
"(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 Common Shares then outstanding (the
"Acquiring Person Trigger Amount") (other than as a result of a Permitted Offer
(as hereinafter defined)), but shall not include the Company, any Subsidiary of
the Company, or any employee benefit plan of the Company or of any Subsidiary of
the Company or any Persons organized, appointed or established by the Company
for or pursuant to the terms of any such plan. Notwithstanding the foregoing, no
Person shall become an "Acquiring Person": (i) as the result of an acquisition
of Common Shares by the Company which, by reducing the number of Common Shares
outstanding, increases the proportionate number of Common Shares beneficially
owned by such Person to the Acquiring Person Trigger Amount; provided, however,
that if a Person shall become the Beneficial Owner of the Acquiring Person
Trigger Amount by reason of Common Share purchase by the Company and shall
thereafter become the Beneficial Owner of any additional Common Shares, other
than pursuant
to the receipt of stock dividends or stock splits on a pro rata basis on Common
Shares already beneficially owned by such Person, then such Person shall be
deemed to be an "Acquiring Person" or (ii) who is a Person who is the Beneficial
Owner of the Acquiring Person Trigger Amount but who acquired Beneficial
Ownership of Common Shares without any plan or intention to seek or affect
control of the Company, if such Person promptly enters into an irrevocable
commitment promptly to divest, and thereafter promptly divests (without
exercising or retaining any power, including voting, with respect to such
shares), sufficient shares of Common Shares (or securities convertible into,
exchangeable into or exercisable for Common Shares) so that such Person ceases
to be the Beneficial Owner of the Acquiring Person Trigger Amount or (iii) who
Beneficially Owns Common Shares consisting solely of one or more of (A) Common
Shares Beneficially Owned pursuant to the grant for exercise of an option
granted to such Person by the Company in connection with an agreement to merge
with, or acquire, the Company entered into prior to Section 11(a)(ii) Trigger
Date, (B) shares of Common Stock (or securities convertible into, exchangeable
into or exercisable for Common Shares), beneficially Owned by such Person or its
Affiliates or Associates at the time of grant of such option or (C) shares of
Common Shares (or securities convertible into, exchangeable into or exercisable
for Common Shares) acquired by Affiliates or Associates of such Person after the
time of such grant which, in the aggregate, amount to less than 1% of the
outstanding shares of Common Stock. For purposes of the definition of "Acquiring
Person," the Acquiring Person Trigger Amount for Synthelabo, a societe anonyme
("Synthelabo"), ELA Medical, Inc., a Delaware corporation ("ELA USA") and ELA
Medical, S.A., a societe anonyme ("ELA France"; Synthelabo, ELA USA and ELA
France, collectively the "Synthelabo Group") shall be 20% or more of the Common
Shares then outstanding (the "Synthelabo Trigger Amount") which shall be
applicable if any member of the Synthelabo Group has, or, together with any
Affiliates and Associates of such member, shall be the Beneficial Owner of, such
Synthelabo Trigger Amount."
2. Section 1(d) is hereby amended by deleting Section 1(d) in its
entirety and substituting the following therefor:
"(d) "Adverse Person" shall mean any Person determined to be
an Adverse Person pursuant to the criteria set forth in Section 11(a)(ii)(B);
provided however, notwithstanding anything to the contrary, no member of the
Synthelabo Group shall be deemed an "Adverse Person" hereunder."
3. Subpart (ii) of the first sentence of Section 3(a) is hereby amended
by deleting such subpart in its entirety and substituting the following
therefor:
"(ii) the close of business on the tenth Business Day (or such
later date as may be determined by the Board, acting by a majority of the
Continuing Directors, prior to such time as any Person has become an Acquiring
Person) after the date that a tender or exchange offer by 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) is first published or sent or given within the meaning of the Rule
14d-2(a) of the General Rules and Regulations under the Exchange Act (or any
comparable or successor rule) (and if such provisions are not applicable, such
offer is published, sent or given in substantially the same manner as if such
provisions were applicable), if upon consummation thereof, such Person would be
the Beneficial Owner of the Acquiring Person Trigger Amount; provided, however,
if such an
offer is made by a member of the Synthelabo Group (a "Synthelabo Offer"), which,
upon consummation thereof, would result in any member of the Synthelabo Group
having or, together with any Affiliates and Associates of such member, becoming
the Beneficial Owner of, less than the Synthelabo Trigger Amount, then such
Synthelabo Offer shall not be considered to be a Distribution Date (as defined
below), but if the consummation of such Synthelabo Offer would result in any
member of the Synthelabo Group having, or, together with any Affiliates and
associates of such member, becoming the Beneficial Owner of, the Synthelabo
Trigger Amount, then such Synthelabo Offer shall be considered a Distribution
Date, or"
4. Except as expressly amended hereby, the Rights Agreement shall
remain in full force and effect.
5. This Agreement shall be deemed a contract made under the laws of the
State of Minnesota and for all purposes shall be governed by and construed in
accordance with the laws of such state applicable to contracts made and to be
performed entirely within such state.
6. This Agreement may be executed in any number of counterparts and
each of such counterparts shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be duly executed and delivered as of the date first above written.
ANGEION CORPORATION
By: /s/ Xxxxxxx X. XxXxxxxx
Name: Xxxxxxx X. XxXxxxxx
Its: President/ CEO
NORWEST BANK MINNESOTA, N.A.
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Its: Norwest Bank MN N.A. Officer
Angeion Corporation
Officer's Certificate
The undersigned, Xxxxxxx X. XxXxxxxx, the Chief Executive Officer of
Angeion Corporation (the "Company") hereby certifies that the attached proposed
First Amendment (the "First Amendment") to the Rights Agreement (the "Rights
Agreement") dated April 8, 1996 between the Company and Norwest Bank Minnesota,
N.A. (the "Rights Agent") complies with the terms of Section 27 of the Rights
Agreement. The Rights Agent is hereby directed to execute and deliver the First
Amendment.
Dated the 9th day of October, 1997.
/s/ Xxxxxxx X. XxXxxxxx
Xxxxxxx X. XxXxxxxx
