EXHIBIT 4.1
AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT, dated as of February 25, 1998 (this "AMENDMENT"), to the
Rights Agreement dated as of December 31, 1997 (the "RIGHTS AGREEMENT), between
OPHTHALMIC IMAGING SYSTEMS, a California corporation (the "COMPANY"), and
AMERICAN SECURITIES TRANSFER, INC. (the "RIGHTS AGENT").
WHEREAS, the Company has entered into a Stock Purchase Agreement with
Premier Laser Systems, Inc, a California corporation ("PREMIER"), of even date
herewith (the "STOCK PURCHASE AGREEMENT") pursuant to which Premier will acquire
in excess of 50% of the Company's Common Shares (as defined in the Rights
Agreement) and commence a tender offer to acquire the remaining Common Shares
not already owned by Premier;
WHEREAS, the Company and the Rights Agent entered into the Rights
Agreement which specified the terms of the Rights (as defined therein);
WHEREAS, the Company and the Rights Agent desire to amend the Rights
Agreement in accordance with Section 27 of the Rights Agreement to permit the
purchase of Common Shares pursuant to the Stock Purchase Agreement without
causing a Distribution Date under the terms of the Rights Agreement; and
WHEREAS, the Board of Directors of the Company has voted in favor of
this Amendment at a meeting of the Board of Directors duly called and held.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth in the Rights Agreement and this Amendment, the parties
hereto agree as follows:
1. AMENDMENT TO RIGHTS AGREEMENT. The Rights Agreement shall be amended
as follows:
(a) Section 1(a) of the Rights Agreement is hereby deleted in
its entirety and replaced by the following:
"(a) "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 (as such term is hereinafter
defined) of the Company, any employee benefit plan of the
Company or any Subsidiary of the Company, or any entity
holding Common Shares for or pursuant to such plan.
Notwithstanding the foregoing, Premier Laser Systems, Inc., a
corporation which as of the date hereof has filed a Statement
on Schedule 13D (a "SCHEDULE 13D") under the Exchange Act (as
such term is hereinafter defined), or any Affiliate or
Associate thereof
(together, "PREMIER LASER") shall not be deemed an "ACQUIRING
PERSON"); PROVIDED, HOWEVER, that if after the Close of
Business (as such term is hereinafter defined) on February 25,
1998 (the "EFFECTIVE DATE"), Premier Laser shall become the
Beneficial Owner of an additional 1% or more of the Common
Shares of the Company then-outstanding from that number of
Common Shares Beneficially Owned by Premier Laser as of the
Close of Business on the Effective Date, then Premier Laser
shall be deemed an "ACQUIRING PERSON"; PROVIDED, FURTHER, that
in the event Premier Laser (i) reduces its ownership of Common
Shares of the Company and thereafter shall become the
Beneficial Owner of any additional Common Shares of the
Company, then Premier Laser shall be deemed an "ACQUIRING
PERSON", or (ii) reduces its ownership of Common Shares of the
Company below 20% or more of the Common Shares of the Company
then-outstanding, then Premier Laser will be treated like any
other holder of the Common Shares of the Company for purposes
of determining whether it is an "ACQUIRING PERSON".
Notwithstanding the foregoing, no Person shall become an
"ACQUIRING PERSON" as a result of an acquisition of Common
Shares of 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 (or, in the case of
Premier Laser, by an additional 1% or more of the Common
Shares of the Company then-outstanding than Premier Laser
Beneficially owned as of the Close of Business on the
Effective Date, or in the event Premier Laser reduces its
ownership of the Common Shares of the Company after the
Effective Date, by any additional Common Shares of the
Company); PROVIDED, HOWEVER, that if a Person should become
the Beneficial Owner of 20% or more of the Common Shares of
the Company then-outstanding (or, in the case of Premier
Laser, an additional 1% or more of the Common Shares of the
Company then-outstanding than Premier Laser Beneficially Owned
as of the Close of Business on the Effective Date) 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" for any purpose of
this Agreement."
2. REFERENCE TO AND EFFECT ON RIGHTS AGREEMENT. On and after the date
of this Amendment, each reference in the Rights Agreement to the term
"Agreement", or to "hereof", "hereunder", or "herein" should be deemed to refer
to the Rights Agreement as amended hereby.
3. EFFECTIVE DATE. This Amendment and the amendments to the Rights
Agreement effected hereby shall be effective as of the date hereof and, except
as set forth herein, the Rights Agreement shall remain in full force and effect
and shall otherwise be unaffected hereby.
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4. COUNTERPARTS. The Amendment may be executed in one or more
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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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested, effective as of the day and year first above
written.
OPHTHALMIC IMAGING SYSTEMS
Attest:
By: /s/ STEVEN C. LAGORIO By: /s/ STEVEN R. VERDOONER
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Steven C. Lagorio Steven R. Verdooner
Director of Finance Chief Executive Officer
AMERICAN SECURITIES TRANSFER, INC.
Attest:
By: /s/ LAURA SISNEROS By: /s/ KELLIE GWINN
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Title: Vice President Title: Senior Vice President
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