EXHIBIT 4.4
THIRD AMENDMENT
to the
PREFERRED SHARES RIGHTS AGREEMENT
between
FUSION MEDICAL TECHNOLOGIES, INC.
and
EQUISERVE TRUST COMPANY, N.A.
This third amendment (the "Amendment") to the Preferred Shares Rights
Agreement is made and entered into as of February 26, 2002 between Fusion
Medical Technologies, Inc., a Delaware corporation (the "Company"), and
EquiServe Trust Company, N.A. (the "Rights Agent"). Capitalized terms used in
this Amendment without definition shall have the respective meanings ascribed to
them in the Rights Agreement (as defined herein).
RECITALS
WHEREAS, the Company and BankBoston, N.A., predecessor in interest to the
Rights Agent, entered into the Preferred Shares Rights Agreement dated as of
October 10, 1997 (as amended on March 30, 1999 and April 11, 2001, the "Rights
Agreement");
WHEREAS, EquiServe Trust Company, N.A. has assumed the duties of Rights
Agent from BankBoston, N.A.;
WHEREAS, Section 27 of the Rights Agreement provides that prior to the
Distribution Date (as defined in the Rights Agreement), the Company may
supplement or amend the Rights Agreement in any respect without the approval of
any holders of Rights (as defined in the Rights Agreement);
WHEREAS, the Company, Xxxxxx International Inc., a Delaware corporation
("Parent") and HB2002 Corporation, a Delaware corporation and a wholly-owned
subsidiary of Parent ("Merger Sub") intend to enter into an Agreement and Plan
of Merger and Reorganization (the "Reorganization Agreement") pursuant to which,
among other things, Merger Sub will merge with the Company (the "Merger") and
each outstanding share of common stock of the Company will be converted into the
right to receive $10.00 in shares of common stock of Xxxxxx International Inc.,
upon the terms and subject to the conditions of the Reorganization Agreement;
WHEREAS, on February 26, 2002, the Board of Directors of the Company
resolved to amend the Rights Agreement to render the Rights inapplicable to the
Merger and the other transactions contemplated by the Reorganization Agreement;
and
WHEREAS, the Company intends to modify the terms of the Rights Agreement in
certain respects as set forth herein, and in connection therewith, is entering
into this Amendment and directing the Rights Agent to enter into this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Effect of Amendment. Except as expressly provided herein, the Rights
Agreement shall be and remain in full force and effect.
2. Section 1(a) of the Rights Agreement is hereby amended by inserting the
following at the end of the definition of "Acquiring Person":
"Notwithstanding the foregoing, neither Xxxxxx International Inc., a
Delaware corporation ("Acquiror"), nor HB2002 Corporation, a Delaware
corporation and a wholly-owned subsidiary of Acquiror ("Merger Sub"),
or any other subsidiary or affiliate of Acquiror, shall be an
"Acquiring Person" solely by virtue of the execution of the Agreement
and Plan of Merger and Reorganization dated as of February 26, 2002
(the "Reorganization Agreement"), by and among Acquiror, Merger Sub
and the Company, the execution of the Voting Agreements dated as of
February 26, 2002 between the Acquiror and certain stockholders of the
Company (the "Voting Agreements") or the consummation of the Merger
(as defined in Reorganization Agreement)."
3. Section 1(jj) of the Rights Agreement is hereby amended by inserting the
following at the end of the definition of "Shares Acquisition Date":
"Notwithstanding the foregoing, no "Shares Acquisition Date" shall
occur solely by reason of the execution of the Reorganization
Agreement, the execution of the Voting Agreements or the consummation
of the Merger (as defined in the Reorganization Agreement)."
4. Section 1(qq) of the Rights Agreement is hereby amended by inserting the
following at the end of the definition of "Triggering Event":
"Notwithstanding the foregoing, a "Triggering Event" shall not occur
solely by reason of the execution of the Reorganization Agreement, the
execution of the Voting Agreements or the consummation of the Merger
(as defined in the Reorganization Agreement)."
5. Section 3(a) of the Rights Agreement is hereby amended by inserting the
following at the end of the section:
"Notwithstanding the foregoing or any provision to the contrary in
this Agreement, a "Distribution Date" shall not occur solely by reason
of the execution of the Reorganization Agreement, the execution of the
Voting Agreements or the consummation of the Merger (as defined in the
Reorganization Agreement)."
6. Section 3(c) of the Rights Agreement is hereby amended by inserting the
following at the end of the legend, which is the second paragraph in Section
3(c):
"EQUISERVE TRUST COMPANY, N.A. IS THE SUCCESSOR RIGHTS AGENT TO THE
ABOVE-REFERENCED AGREEMENT"
7. Section 13 of the Rights Agreement is hereby amended by inserting the
following as Section 13(h) at the end of Section 13:
"(h) Notwithstanding the foregoing, no Section 13 Event shall occur
solely by reason of the execution of the Reorganization Agreement, the
execution of the Voting Agreements or the consummation of the Merger
(as defined in the Reorganization Agreement)."
8. Section 21 of the Rights Agreement is hereby deleted in its entirety and
amended to read as follows:
"Change of Rights Agent. The Rights Agent or any successor Rights
----------------------
Agent may resign and be discharged from its duties under this
Agreement upon 30 days' notice in writing mailed to the Company and to
each transfer agent of the Common Shares or Preferred Shares by
registered or certified mail and to the holders of the Rights
Certificates by first-class mail. In the event the Transfer Agency and
Services Agreement terminates, the Rights Agent will be deemed to
resign automatically on the effective date of such termination; and
any required notice will be sent by the Company. The Company may
remove the Rights Agent or any successor Rights Agent upon 30 days'
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 or Preferred Shares by registered or certified mail, and to the
holders of the Rights Certificates by first-class mail. If the Rights
Agent shall resign or be removed or shall otherwise become incapable
of acting, the Company shall appoint a successor to the Rights Agent.
If the Company shall fail to make such appointment within a period of
30 days after giving notice of 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 Rights Certificate
(who shall, with such notice, submit such holder's Rights Certificate
for inspection by the Company), then the registered holder of any
Rights 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 a
corporation or trust company organized and doing business under the
laws of the United States, in good standing, which is authorized under
such laws to exercise
corporate trust or stock transfer powers and is subject to supervision
or examination by federal or state authority and which has
individually or combined with an affiliate at the time of its
appointment as Rights Agent a combined capital and surplus of at least
$100 million dollars. 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 or Preferred Shares, and
mail a notice thereof in writing to the registered holders of the
Rights Certificates. Failure to give any notice provided for in this
Section 21, however, or any defect therein, shall not affect the
legality or validity of the resignation or removal of the Rights Agent
or the appointment of the successor Rights Agent, as the case may be."
9. The address contained in Section 26 of the Rights Agreement is hereby
deleted in its entirety and amended to read as follows:
EquiServe Trust Company, N.A.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
ATTN: Client Administration
10. Effective Date. This Amendment shall be deemed effective as of the date
first written above but such effectiveness is contingent upon (a) the execution
of this Amendment by the Company and authorization by the Board of Directors of
the Company approving the Amendment; (b) delivery of a certificate of compliance
with Section 27 of the Rights Agreement; and (c) the execution and delivery of
this Amendment by the Rights Agent.
11. Governing Law. This Amendment shall be governed by, construed and
enforced in accordance with the laws of the State of Delaware without reference
to the conflicts or choice of law principles thereof.
12. Counterparts. This Amendment may be executed in separate counterparts,
each of which when executed and delivered is an original but all of which taken
together constitute one and the same instrument.
13. Fax Transmission. A facsimile, telecopy or other reproduction of this
Amendment may be executed by one or more parties hereto, and an executed copy of
this Amendment may be delivered by one or more parties hereto by facsimile or
similar instantaneous electronic transmission device pursuant to which the
signature of or on behalf of such party can be seen, and such execution and
delivery shall be considered valid, binding and effective for all purposes. At
the request of any party hereto, all parties hereto agree to execute an original
of the Amendment as well as any facsimile, telecopy or other reproduction
thereof.
14. The undersigned officer of the Company, being an appropriate officer of
the Company and authorized to do so by resolution of the Board of Directors of
the Company dated as of February 26, 2002, hereby certifies to the Rights Agent
that these amendments are in compliance with the terms of Section 27 of the
Rights Agreement.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
and attested, all as of the day and year first above written.
Fusion Medical Technologies, Inc.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President, Finance and Chief
Financial Officer
EQUISERVE TRUST COMPANY, N.A., as Rights
Agent
By: /s/ Xxxxx Xxxxxx-Xxxx
---------------------------------------
Name: Xxxxx Xxxxxx-Xxxx
Title: Managing Director Client
Administration
[SIGNATURE PAGE TO THIRD AMENDMENT TO RIGHTS AGREEMENT]
