Contract
Exhibit 2.3
AMENDMENT
NO. 1 TO RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO RIGHTS
AGREEMENT (this “Amendment”) is entered into as of October 28, 2009 by and
between Invacare Corporation, an Ohio corporation (the “Company”), and Xxxxx
Fargo Bank, N.A., a national banking association, successor to National City
Bank, as Rights Agent (the “Rights Agent”).
WHEREAS, effective as of the date
hereof, the Rights Agent has been appointed by the Company as successor to
National City Bank, as Rights Agent under that certain Rights Agreement, dated
as of July 8, 2005 (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 thereof; and
WHEREAS, the Company desires to effect
certain changes to the Rights Agreement, as provided herein.
NOW, THEREFORE, in consideration of the
premises and mutual agreements contained in the Rights Agreement and this
Amendment, the parties hereby agree as follows:
1. Capitalized
terms used and not otherwise defined herein shall have the meanings ascribed to
them in the Rights Agreement.
2. The
reference in the first paragraph of the Rights Agreement to “NATIONAL CITY BANK,
a national banking association, as Rights Agent” is hereby deleted and “XXXXX
FARGO BANK, N.A., a national banking association, successor to National City
Bank, as Rights Agent” is inserted in lieu thereof. Each other
reference in the Rights Agreement and the Exhibits thereto to “National City
Bank,” is hereby deleted and “Xxxxx Fargo Bank, N.A., successor to National City
Bank” is inserted in lieu thereof.
3. Section
8 of the Rights Agreement is hereby amended to read in its entirety as
follows:
“Section
8. Cancellation and Destruction
of Rights Certificates. All Rights Certificates surrendered
for the purpose of exercise, transfer, split up, combination or exchange shall,
if surrendered to the Company or any of its agents, be delivered to the Rights
Agent for cancellation or in cancelled form, or, if surrendered to the Rights
Agent, shall be cancelled by it, and no Rights Certificates shall be issued in
lieu thereof except as expressly permitted by any of the provisions of this
Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel and retire,
any other Rights Certificate purchased or acquired by the Company otherwise than
upon the exercise thereof. Subject to applicable law and regulation,
the Rights Agent shall maintain (i) in a retrievable database electronic records
or (ii) physical records of all Rights Certificates cancelled or destroyed by
the Rights Agent. The Rights Agent shall maintain such electronic
records or physical records for the time period required by applicable law and
regulation. Upon written request of the Company (and at the expense of the
Company), the Rights Agent shall provide to the Company or its designee copies
of such electronic records or physical records relating to Rights Certificates
cancelled or destroyed by the Rights Agent.”
4. In
Section 26 of the Rights Agreement, the reference to “National City Bank,
Corporate Trust Administration, 000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxx
00000, Attention: Xxxxx Xxxxxx” is hereby deleted in its entirely and
the following is inserted in lieu thereof:
“Xxxxx
Fargo Bank, N.A.
000 Xxxxx
Xxxxxxx Xxxxxxxx
Xxxxx Xx.
Xxxx, XX 00000
Attention: Account
Manager”
5. Each
reference in the Rights Agreement to “this Agreement,” “hereof,” “herein,”
“hereunder” or “hereby” and each other similar reference shall be deemed to
refer to the Rights Agreement, as amended by this Amendment.
6. Except
as specifically set forth herein, the Rights Agreement shall remain in full
force and effect in accordance with its terms.
7. This
Amendment shall be deemed to be a contract made under the laws of the State of
Ohio and for all purposes shall be governed by and construed in accordance with
the laws of Ohio applicable to contracts made and to be performed entirely
within Ohio.
8. This
Amendment 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 Amendment to be duly
executed and attested, all as of the day and year first above
written.
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Attest:
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INVACARE
CORPORATION
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/s/
Xxxxxxx X. XxXxxxx
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/s/
Xxxxxx X. Xxxxxxxxxx
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Name:
Xxxxxxx X. XxXxxxx
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Name:
Xxxxxx X. Xxxxxxxxxx
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Title:
Secretary, Sr. Vice President, and General Counsel
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Title:
Sr. Vice President and Chief Financial Officer
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Attest:
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XXXXX
FARGO BANK, N.A.
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/s/
Xxxxxxx X. Xxxxx
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/s/
Xxxxxxx X. Xxxxxx
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Name:
Xxxxxxx X. Xxxxx
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Name:
Xxxxxxx X. Xxxxxx
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Title:
Vice President and Assistant Secretary
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Title:
Officer
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