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Exhibit 4.1
AMENDMENT TO AMENDED AND RESTATED RIGHTS AGREEMENT
BETWEEN ACUSON CORPORATION AND BANKBOSTON, N.A.
This Amendment To Amended and Restated Rights Agreement (the "Amendment")
is made this 26th day of September, 2000, by and between Acuson Corporation, a
Delaware corporation (the "Company"), and BankBoston, N.A., a national banking
association (the "Rights Agent").
WHEREAS, the Company is entering into an Agreement and Plan of Merger (as
the same may be amended from time to time, the "Merger Agreement"), among the
Company, Siemens Corporation, a Delaware corporation ("Parent"), and Sigma
Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of
Parent ("Subsidiary"), pursuant to which (i) Subsidiary will commence a tender
offer within the meaning of the Securities Exchange Act of 1934, as amended, for
all of the outstanding common stock, $0.001 par value per share, of the Company
and (ii) if the tender offer is consummated, Subsidiary will merge with and into
the Company, and the Company will survive as a wholly owned subsidiary of
Parent;
WHEREAS, the Company and the Rights Agent are parties to that certain
Rights Agreement, dated as of June 8, 1998 as amended and restated by that
certain Amended and Restated Rights Agreement, dated as of November 5, 1998 (the
"Rights Agreement");
WHEREAS, the Company desires to amend the Rights Agreement in connection
with the execution and delivery of the Merger Agreement; and
WHEREAS, the Board of Directors of the Company has approved this Amendment
and authorized its appropriate officers to execute and deliver the same to the
Rights Agent.
NOW, THEREFORE, in accordance with the procedures for amendment of the
Rights Agreement set forth in Section 26 thereof, and in consideration of the
foregoing and the mutual agreements herein set forth, the parties hereby agree
as follows:
1. Capitalized terms that are not otherwise defined herein shall have the
meanings ascribed to them in the rights agreement.
2. The definition of "Acquiring Person" set forth in Section 1(a) of the Rights
Agreement is amended by adding the following sentence to the end of that
section:
Notwithstanding the foregoing, no Person shall be or become an
Acquiring Person by reason of (i) the execution and delivery of the
Agreement and Plan of Merger, dated as of September 26, 2000, among Siemens
Corporation, a Delaware corporation ("Parent"), Sigma Acquisition Corp., a
Delaware corporation and a wholly owned subsidiary of Parent ("Merger Sub")
and the Company (the "Merger Agreement") or the execution of any amendment
thereto, (ii) the commencement by Merger Sub of a tender offer within the
meaning of the Exchange Act for all of the outstanding Company Common Stock
pursuant to the Merger Agreement (the "Tender Offer"), (iii) the merger of
Merger Sub with and into the Company, or (iv) the consummation of any other
transaction contemplated by the Merger Agreement, as it may be amended from
time to time.
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3. The definition of "Stock Acquisition Date" in Section l(u) of the Rights
Agreement is hereby amended by adding the following sentence to the end of
that section:
Notwithstanding anything else set forth in this Agreement, a Stock
Acquisition Date shall not be deemed to have occurred by reason of (i) the
execution and delivery or amendment of the Merger Agreement, (ii) the
commencement or consummation of the Tender Offer, (iii) the merger of
Merger Sub with and into the Company, or (iv) the consummation of any other
transaction contemplated by the Merger Agreement.
4. Section 3(a) of the Rights Agreement is hereby amended by adding the
following sentence to the end of that section:
Notwithstanding anything else set forth in this Agreement, no
Distribution Date shall be deemed to have occurred by reason of (i) the
execution and delivery or amendment of the Merger Agreement, (ii) the
commencement or consummation of the Tender Offer, (iii) the merger of
Merger Sub with and into the Company, or (iv) the consummation of any other
transaction contemplated by the Merger Agreement.
5. Section 11(a)(ii) is hereby amended by adding the following sentence to the
end of that section:
Notwithstanding anything else set forth in this Agreement, no event
requiring an adjustment under this Section 11(a)(ii) shall be deemed to
have occurred by reason of (i) the execution and delivery or amendment of
the Merger Agreement, (ii) the commencement or consummation of the Tender
Offer, (iii) the merger of Merger Sub with and into the Company, or (iv)
the consummation of any other transaction contemplated by the Merger
Agreement.
6. Section 11(n)(i) of the Rights Agreement is hereby amended to read as
follows:
(i) consolidate with any other Person (other than (y) a wholly owned
Subsidiary of the Company in a transaction which complies with Section
11(o) hereof or (z) Merger Sub pursuant to the Merger Agreement),
7. Section 11(n)(ii) of the Rights Agreement is hereby amended to read as
follows:
merge with or into any other Person (other than (y) a wholly owned
Subsidiary of the Company in a transaction which complies with Section
11(o) hereof or (z) Merger Sub pursuant to the Merger Agreement), or
8. Clause "(y)" of Section 13(a) is hereby amended to read as follows:
(y) any Person (other than (i) a wholly owned Subsidiary of the Company in
a transaction which complies with Section 11(o) hereof or (ii) Merger Sub
pursuant to the Merger Agreement) shall consolidate with, or merge with or
into, the Company, and the Company shall be the surviving corporation of
such consolidation or merger and, in connection with such consolidation or
merger, all or part of the outstanding shares of Company Common Stock shall
be changed into or exchanged for stock or other securities of the Company
or any other Person or cash or any other property, or
9. The first phrase of Section 13(c) of the Rights Agreement is hereby amended
to read as follows:
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The Company shall not consummate any such consolidation, merger (other
than the merger of Merger Sub with and into the Company), sale or transfer
unless the Principal Party shall have a sufficient number of authorized
shares of its Common Stock that have not been issued or reserved for
issuance to permit the exercise in full of the Rights in accordance with
this Section 13, and unless prior thereto the Company and such Principal
Party and each other Person who may become a Principal Party as a result of
such consolidation, merger, sale or transfer shall have executed and
delivered to the Rights Agent a supplemental agreement providing for the
terms set forth in paragraphs (a) and (b) of this Section 13 and further
providing that, as soon as practicable after the date of any consolidation,
merger, sale or transfer of assets mentioned in this paragraph (a) of this
Section 13, the Principal Party at its own expense will: ...
The remaining portion of Section 13(c) shall be unchanged and shall remain in
full force and effect.
10. Section 13(f) of the Rights Agreement is hereby amended to read as follows:
(f) Notwithstanding anything contained herein to the contrary, in the
event of the closing of any merger or other acquisition transaction
involving the Company (including the consummation of the Tender Offer
pursuant to the Merger Agreement) pursuant to a merger or other acquisition
agreement between the Company and any Person (or one or more of such
Person's Affiliates or Associates) which agreement has been approved by the
Board of Directors prior to any Person becoming an Acquiring Person, this
Agreement and the rights of holders of Rights hereunder shall be terminated
in accordance with Section 7(a) hereof.
11. The Rights Agreement, as amended by this Amendment, shall remain in full
force and effect in accordance with its terms.
12. All the covenants and provisions of this Amendment by or for the benefit of
the Company or the Rights Agent shall bind and inure to the benefit of
their respective successors and assigns hereunder.
13. Nothing in this Amendment shall be construed to give to any person or
corporation other than the Company, the Rights Agent and the registered
holders of the Right Certificates (and, prior to the Distribution Date, the
Company Common Stock) any legal or equitable right, remedy or claim under
this Amendment; but this Amendment shall be for the sole and exclusive
benefit of the Company, the Rights Agent and the registered holders of the
Right Certificates (and, prior to the Distribution Date, the Company Common
Stock).
14. If any term, provision, covenant or restriction of this Amendment is held
by a court of competent jurisdiction or other authority to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Amendment shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
15. This Amendment shall be deemed to be a contract made under the laws of the
State of Delaware and for all purposes shall be governed by and construed
in accordance with the laws of such State applicable to contracts to be
made and performed entirely within such State.
16. 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.
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17. The Company hereby certifies to the Rights Agent that this Amendment is in
compliance with Section 26 of the Rights Agreement. In Witness Whereof, the
parties herein have caused this Amendment to be duly executed and attested,
all as of the date and year first above written.
Acuson Corporation
By: /s/ Samuel H. Maslak
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Name: Samuel H. Maslak
Title: Chairman of the Board and
Chief Executive Officer
Attest:/s/ Charles H. Dearborn
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Name: Charles H. Dearborn
Title: Secretary
Fleet National Bank
By: /s/ M. Prentice
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Name: M. Prentice
Title: Managing Director
Attest:/s/ Neil Nolan
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Name: Neil Nolan
Title: Account Manager
