EXHIBIT 10.6
SECOND AMENDMENT TO RIGHTS AGREEMENT
This SECOND AMENDMENT TO RIGHTS AGREEMENT, dated as of December 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
societe anonyme ("Synthelabo"), dated as of October 9, 1997;
WHEREAS, the Rights Agreement was amended by that certain First
Amendment to Rights Agreement, dated as of October 9, 1997, by and between the
Company and the Rights Agent (the "First Amendment");
WHEREAS, the Company has agreed pursuant to the amendment and
restatement of the Investment and Master Strategic Relationship Agreement
between the Company and Synthelabo (the "Amended and Restated Investment
Agreement") to further 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 further amendment of
certain provisions of 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
further 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 Person 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 purchases 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 a 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, 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; provided that the Synthelabo Trigger Amount shall be
0.1% above such higher percentage of the Common Shares from time to time
outstanding as may result from any issuance to the Synthelabo Group of
additional Common Shares pursuant to Sections 2.1, 2.2, 2.3, 2.4 or 4.1(d) of
the Amended and Restated
Investment Agreement (including any Common Shares issued as dividends or as a
result of stock splits and similar reclassifications with respect to any such
Common Shares) and such percentage shall automatically adjust to take into
account the changes specified in this Section 1(a) below, following any Excess
Threshold Event, it being the intention of the parties that the Synthelabo
Trigger Amount shall increase to a level greater than 20% of the Common Shares
from time to time outstanding to the extent necessary in order to permit the
Beneficial Ownership by the Synthelabo Group of Common Shares acquired or to be
acquired pursuant to Sections 2.1, 2.2, 2.3, 2.4 or 4.1(d) of the Amended and
Restated Investment Agreement taking into account Common Shares previously
acquired pursuant to Section 4.2(b)(ii) of the Amended and Restated Investment
Agreement (in each case including any Common Shares issued as dividends or as a
result of stock splits and similar reclassifications with respect to any such
Common Shares) (any such event which results in the Beneficial Ownership by the
Synthelabo Group of more than 20% of the Common Shares from time to time
outstanding being referred to as an "Excess Threshold Event"). From and after
any Excess Threshold Event, the Synthelabo Trigger Amount shall equal 0.1% above
the percentage of Common Stock Beneficially Owned by the Synthelabo Group
immediately after the occurrence of any Excess Threshold Event; provided,
however, that such Synthelabo Trigger Amount shall subsequently be reduced (but
in no event less than 20%) upon the issuance by the Company of additional Common
Shares which has the effect of diluting the Synthelabo Group's Beneficial
Ownership (after giving effect to any participation in such issuance by the
Synthelabo Group pursuant to Section 2.3 or 2.4 of the Amended and Restated
Investment Agreement) such that the Synthelabo Trigger Amount shall thereafter
equal 0.1% above the percentage of Common Shares Beneficially Owned by the
Synthelabo Group immediately after such issuance based upon the total Common
Shares of the Company outstanding at such time."
2. 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, Common Shares in amount that is 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, Common Shares equal to or in excess of the Synthelabo
Trigger Amount, then such Synthelabo Offer shall be considered a Distribution
Date, or"
3. Except as expressly amended hereby and pursuant to the First
Amendment, the Rights Agreement shall remain in full force and effect.
4. 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.
5. 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 caused this Agreement to be
duly executed and delivered as of the date first above written.
ANGEION CORPORATION
By: /s/ Xxxxxxx X. XxXxxxxx
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Name: Xxxxxxx X. XxXxxxxx
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Its: Chairman/CEO
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NORWEST BANK MINNESOTA, N.A.
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
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Its: Norwest Bank MN N.A. Officer
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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
Second Amendment (the "Second Amendment") to the Rights Agreement, dated April
8, 1996 between the Company and Norwest Bank Minnesota, N.A. (the "Rights
Agent"), as previously amended (the "Rights Agreement") complies with the terms
of Section 27 of the Rights Agreement. The Rights Agent is hereby directed to
execute and delivery the Second Amendment.
Dated the 9th day of December 1997.
/s/ Xxxxxxx X. XxXxxxxx
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Xxxxxxx X. XxXxxxxx
