Exhibit 10.25
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 (this "Amendment"), dated as of December 9, 1999,
to the Rights Agreement, dated as of October 22, 1997 (the "Rights Agreement"),
between Biosite Diagnostics Incorporated, a Delaware corporation (the
"Company"), and BankBoston, N.A., as Rights Agent (the "Rights Agent"), is made
with reference to the following facts:
A. The Company and the Rights Agent have heretofore entered into the
Rights Agreement. Pursuant to Section 27 of the Rights Agreement, the Company
and the Rights Agent may, from time to time, supplement or amend the Rights
Agreement in accordance with the provisions of such Section.
B. The Board of Directors of the Company has determined that it is in
the best interests of the Company to amend the Rights Agreement such that, with
respect to the acquisition by Xxxx Holding Company, XxXxx X. Xxxx, Xxxx
Investment Advisor, Inc. and Xxxx Emerging Growth Fund (collectively, "Xxxx") of
up to an aggregate of 20% of the shares of Common Stock of the Company that
neither Xxxx nor any of its affiliates is or will become an "Acquiring Person"
and that no "Stock Acquisition Date" or "Distribution Date" (as such terms are
defined in the Rights Agreement) will occur.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein, the parties hereto agree as follows:
1. The definition of "Acquiring Person" set forth in Section 1(a) of
the Rights Agreement is hereby amended in its entirety to read as follows:
(a) "Acquiring Person" shall mean any Person (as such term
is hereinafter defined) who or which, together with all
Affiliates (as such term is hereinafter defined) and Associates
(as such term is hereinafter defined) of such Person, shall be
the Beneficial Owner (as such term is hereinafter defined) of
securities representing 15% or more of the shares of Common Stock
then outstanding or who was such a Beneficial Owner at any time
after the date hereof, whether or not such Person continues to be
the Beneficial Owner of securities representing 15% or more of
the outstanding shares of Common Stock. Notwithstanding the
foregoing,
(i) in no event shall a Person who or which, together
with all Affiliates and Associates of such Person, is the
Beneficial Owner of less than 15% of the Company's
outstanding shares of Common Stock become an Acquiring
Person solely as a result of a reduction of the number of
shares of outstanding Common Stock, including repurchases of
outstanding shares of Common Stock by the Company, which
reduction increases the percentage of outstanding shares of
Common Stock beneficially owned by such Person (provided
that any subsequent increase in the amount of Common Stock
beneficially owned by such Person, together with all
Affiliates and Associates of such Person, without the prior
approval of the Company shall cause such Person to be an
Acquiring Person);
(ii) the term Acquiring Person shall not mean (A) the
Company, (B) any subsidiary of the Company (as such term is
hereinafter defined), (C) any employee benefit plan of the
Company or any of its subsidiaries, (D) any entity holding
securities of the Company organized, appointed or
established by the
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Company or any of its subsidiaries for or pursuant to the
terms of any such plan or (E) Xxxx, or any Affiliate or
Associate thereof as a result of the acquisition by Xxxx of
up to 20% of the shares of Common Stock of the Company; and
(iii) no Person shall be deemed to be an Acquiring
Person if (A) within five business days after such Person
would otherwise have become an Acquiring Person (but for the
operation of this clause (iii)), such Person notifies the
Board of Directors that such Person did so inadvertently and
within two business days after such notification, such
Person is the Beneficial Owner of less than 15% of the
outstanding shares of Common Stock, (B) by reason of such
Person's Beneficial Ownership of 15% or more of the
outstanding shares of Common Stock on the date hereof if
prior to the Record Date, such Person notifies the Board of
Directors that such Person is no longer the Beneficial Owner
of 15% or more of the then outstanding shares of Common
Stock or (C) if the Board of Directors determines in good
faith that a Person who would otherwise be an "Acquiring
Person," as defined pursuant to the foregoing provisions of
this paragraph (a), has become such inadvertently, and such
Person divests as promptly as practicable a sufficient
number of Common Stock so that such Person would no longer
be an "Acquiring Person," as defined pursuant to the
foregoing provisions of this paragraph (a).
2. The first sentence of Section 3(a) of the Rights Agreement is
hereby amended by adding the following to the end of such sentence:
; PROVIDED, HOWEVER, that in no event shall a Distribution
Date be deemed to occur as a result of the acquisition by
Xxxx of up to 20% of the shares of Common Stock of the
Company.
3. No "Stock Acquisition Date" shall be deemed to occur under the
Rights Agreement as a result of to the acquisition by Xxxx of up to 20% of the
shares of Common Stock of the Company.
4. Section 1(d) of the Rights Agreement is hereby amended in its
entirety to read as follows:
(d) "Business Day" shall mean any day other than a Saturday,
Sunday or a day on which banking institutions in the
Commonwealth of Massachusetts are authorized or obligated by
law or executive order to close.
5. Section 26 of the Rights Agreement is hereby amended to substitute
"Equiserve Limited Partnership" for "Boston Equiserve Limited Partnership" and
to substitute "Client Administration" for "Shareholder Services, Mail Stop:
00-00-000".
6. All amendments made to the Rights Agreement in this Amendment shall
be deemed to apply retroactively as well as prospectively.
7. This Amendment shall be governed by and construed in accordance
with the laws of the State of Delaware and for all purposes shall be governed by
and construed in accordance with all laws of such State applicable to contracts
to be made and performed entirely within such State.
8. This Amendment may be executed in counterparts, each of which shall
be an original, but such counterparts shall together constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and attested, all as of the date and year first above written.
Attest: BIOSITE DIAGNOSTICS INCORPORATED
By: /s/ Xxxxx Xxxxxx By: /s/ Xxx Xxxxxxxxxxxx
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Title: Chief Financial Officer Title: President
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Attest: BANKBOSTON, N.A.
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxxxxx Xxxxxxxx
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Title: Account Manager Title: Director of Client Services
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