SECOND AMENDMENT TO RIGHTS AGREEMENT
Published on January 23, 2001
EXHIBIT 4.1
SECOND AMENDMENT TO RIGHTS AGREEMENT
SECOND AMENDMENT, dated as of January 23, 2001 ("Second Amendment"),
to Rights Agreement dated as of April 23, 1997 and amended on March 19, 1999
(the "Rights Agreement"), between ResMed Inc. (the "Company"), and American
Stock Transfer & Trust Company (the "Rights Agent"). Capitalized terms used but
not otherwise defined herein shall have the meanings ascribed to them in the
Rights Agreement.
WHEREAS, the Company and the Rights Agent previously entered into the
Rights Agreement; and
WHEREAS, pursuant to Section 26 of the Rights Agreement, the Company
and the Rights Agent may from time to time supplement or amend any provision of
the Rights Agreement in accordance with the terms of such Section 26.
NOW, THEREFORE, in consideration of the foregoing premises and mutual
agreements set forth in this Second Amendment, the parties hereby further amend
the Rights Agreement as follows:
1. Section 1.1 of the Rights Agreement is hereby amended and
restated in its entirety as follows:
"1.1 "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person, shall be
the Beneficial Owner (as such term is hereinafter defined) of 20% or more
of the Common Shares of the Company then outstanding 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 entity holding
shares of capital stock of the Company for or pursuant to the terms of any
such plan, in its capacity as an agent or trustee for any such plan.
Notwithstanding the foregoing, no Person shall become an "Acquiring Person"
as the result of an acquisition of Common Shares by the Company which, by
reducing the number of shares outstanding, increases the proportionate
number of shares beneficially owned by such Person to 20% or more of the
Common Shares of the Company then outstanding; provided, however, that if a
Person shall become the Beneficial Owner of 20% or more of the Common
Shares of the Company then outstanding solely by reason of share purchases
by the Company and shall, after such share purchases by the Company, become
the Beneficial Owner of any additional Common Shares of the Company, then
such Person shall be deemed to be an "Acquiring Person." Notwithstanding
the foregoing, if the Board of Directors of the Company determines in good
faith that a Person who would otherwise be an "Acquiring Person," as
defined pursuant to the foregoing provisions of this Section 1.1, has
become such inadvertently, and such Person divests as promptly as
practicable a sufficient number of Common Shares so that such Person would
no longer be an Acquiring Person, as
defined pursuant to the foregoing provisions of this Section 1.1, then such
Person shall not be deemed to be an "Acquiring Person" at any time for any
purposes of this Agreement."
2. Section 1.11 of the Rights Agreement is hereby amended and
restated in its entirety as follows:
"1.11 A "Trigger Event" shall be deemed to have occurred upon any
Person becoming an Acquiring Person. Notwithstanding the foregoing, a
Trigger Event shall not be deemed to have occurred if the event causing the
20% ownership threshold to be crossed is an acquisition of Common Shares
made pursuant to a cash tender offer made pursuant to the rules and
regulations under the Exchange Act and filed with the Securities and
Exchange Commission on Schedule 14D-1 (or any successor form) for all
outstanding Common Shares not beneficially owned by the Person making such
offer (or by its Affiliates or Associates) so long as the Board of
Directors of the Company determines prior to the time that any Person has
become an Acquiring Person and, after receiving advice from one or more
investment banking firms, that such offer is (i) at a price and on terms
which are fair to stockholders (taking into account all factors which such
members of the Board deem relevant, including without limitation, prices
which could reasonably be achieved if the Company or its assets were sold
on an orderly basis designed to realize maximum value) and (ii) otherwise
in the best interests of the Company and its stockholders."
3. Section 3.1 of the Rights Agreement is hereby amended and restated
in its entirety as follows:
"3.1 Rights Evidenced by Share Certificates. Until the earlier of (i)
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the tenth day after the Shares Acquisition Date or (ii) the tenth day after
the date of the commencement of, or first public announcement of the intent
of 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 entity holding shares of capital stock of the Company for or pursuant
to the terms of any such plan, in its capacity as an agent or trustee for
any such plan) to commence, a tender or exchange offer the consummation of
which would result in any Person becoming the Beneficial Owner of Common
Shares aggregating 20% or more of the then outstanding Common Shares of the
Company (the earlier of (i) and (ii) being herein referred to as the
"Distribution Date," whether or not either such date occurs prior to the
Record Date), (x) the Rights (unless earlier expired, redeemed or
terminated) will be evidenced (subject to the provisions of Section 3.2)
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by the certificates for Common Shares registered in the names of the
holders thereof (which certificates for Common Shares shall also be deemed
to be Right Certificates) and not by separate certificates, and (y) the
Rights (and the right to receive certificates therefor) will be
transferable only in connection with the transfer of the underlying Common
Shares. The preceding sentence
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notwithstanding, prior to the occurrence of a Distribution Date specified
as a result of an event described in clause (ii) (or such later
Distribution Date as the Board of Directors of the Company may select
pursuant to this sentence), the Board of Directors of the Company may
postpone, one or more times, the Distribution Date which would occur as a
result of an event described in clause (ii) beyond the date set forth in
such clause (ii). Nothing herein shall permit such a postponement of a
Distribution Date after a Person becomes an Acquiring Person, except as a
result of the operation of the third sentence of Section 1.1. As soon as
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practicable after the Distribution Date, the Rights Agent will send, by
first-class, postage-prepaid mail, to each record holder of Common Shares
as of the close of business on the Distribution Date, at the address of
such holder shown on the records of the Company, one or more certificates
for Rights, in substantially the form of Exhibit B hereto (a "Right
Certificate"), evidencing one Right (subject to adjustment as provided
herein) for each Common Share so held. As of the Distribution Date, the
Rights will be evidenced solely by such Right Certificates."
4. The second paragraph of Exhibit C to the Rights Agreement
(SUMMARY OF RIGHTS TO PURCHASE PREFERRED SHARES), is hereby amended and restated
in its entirety as follows:
"Until the earlier to occur of (i) ten (10) days following a public
announcement that a person or group of affiliated or associated persons (an
"Acquiring Person") has acquired, or obtained the right to acquire,
beneficial ownership of 20% or more of the Common Shares or (ii) ten (10)
days, or such later date as may be determined by the Board of Directors
prior to such time as any person or group of affiliated persons becomes an
Acquiring Person, following the commencement or announcement of an
intention to make a tender offer or exchange offer the consummation of
which would result in the beneficial ownership by a person or group of 20%
or more of the Common Shares (the earlier of (i) and (ii) being called the
"Distribution Date," whether or not either such date occurs prior to the
Record Date), the Rights will be evidenced, with respect to any of the
Common Share certificates outstanding as of the Record Date, by such Common
Share certificate together with a copy of this Summary of Rights."
5. The seventh paragraph of Exhibit C to the Rights Agreement
(SUMMARY OF RIGHTS TO PURCHASE PREFERRED SHARES), is hereby amended and restated
in its entirety as follows:
"In the event that a Person becomes an Acquiring Person (except
pursuant to certain cash offers for all outstanding Common Shares approved
by the Board) or if the Company were the surviving corporation in a merger
with an Acquiring Person or any affiliate or associate of an Acquiring
Person and the Common Shares were not changed or exchanged, each holder of
a Right, other than Rights
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that are or were acquired or beneficially owned by the 20% stockholder
(which Rights will thereafter be void), will thereafter have the right to
receive upon exercise that number of Common Shares having a market value of
two times the then current Purchase Price of the Right. With certain
exceptions, in the event that the Company were acquired in a merger or
other business combination transaction or more than 50% of its assets or
earning power were sold, proper provision shall be made so that each holder
of a Right shall thereafter have the right to receive, upon the exercise
thereof at the then current Purchase Price of the Right, that number of
shares of common stock of the acquiring company which at the time of such
transaction would have a market value of two times the then current
Purchase Price of the Right."
6. This Second Amendment shall be effective as of the date hereof
and, except as expressly set forth herein, the Rights Agreement shall remain in
full force and effect and be otherwise unaffected hereby.
7. This Second Amendment may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all such counterparts shall together constitute one and the same document.
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IN WITNESS WHEREOF, the parties have executed this Second Amendment as
of the date first written above.
RESMED INC.
By: /s/ Peter C. Farrell
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Peter C. Farrell
President
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ Paula Caroppoli
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Paula Caroppoli
Vice President
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