EXHIBIT 4.1
RIGHTS AGREEMENT AMENDMENT
This Rights Agreement Amendment, dated as of March 1, 2000 (this
"Amendment"), to the Rights Agreement, dated as of June 12, 1998 (the "Rights
Agreement"), between Biopool International, Inc., a Delaware corporation (the
"Company") and American Stock Transfer & Trust Company, as Rights Agent (the
"Rights Agent").
The Company and the Rights Agent have heretofore executed and delivered the
Rights Agreement. Pursuant to Section 28 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 Section 28 thereof.
In consideration of the foregoing premises and mutual agreements set forth
in the Rights Agreement, as amended, and this Amendment, the parties hereto
agree as follows:
1. The definition of "Acquiring Person" in Section 1 of the Rights
Agreement is hereby amended and restated to read in its entirety as follows:
"`Acquiring Person' shall mean (i) any Person (as hereinafter
defined) who is an Adverse Person (as hereinafter defined), or (ii)
any Person who or which, together with all Affiliates (as hereinafter
defined) and Associates (as hereinafter defined) of such Person,
shall, subsequent to the Declaration Date, become the Beneficial
Owners (as hereinafter defined) of 15% or more of the shares of Common
Stock then outstanding, but shall not include (x) an Exempt Person (as
hereinafter defined) or (y) any Person who becomes a Beneficial Owner
of 15% or more of the share of Common Stock then outstanding solely
because (1) of a change in the aggregate number of shares of Common
Stock outstanding since the last date on which such Person acquired
Beneficial Ownership of any shares of Common Stock, or (2) it acquired
such Beneficial Ownership in the good faith belief that such
acquisition would not (A) cause such Beneficial Ownership to equal or
exceed 15% of the shares of Common Stock then outstanding (or, in the
case of Xtrana, Inc., a Delaware corporation ("Xtrana"), the
percentage Xtrana may hold without ceasing to be an Exempt Person) and
such Person relied in good faith in computing the percentage of its
Beneficial Ownership on publicly filed reports or documents of the
Company which are inaccurate or out-of-date, or (B) otherwise cause a
Distribution Date or the adjustment provided for in Section 14 to
occur. Notwithstanding clause (y) of the prior sentence, if any Person
that is not an Acquiring Person because of the operation of such
clause (y) does not reduce its Beneficial Ownership of shares of
Common Stock to less than 15% (or, in the case of Xtrana, the
percentage Xtrana may hold without ceasing to be an Exempt Person) by
the close of business on the fifth Business Day after notice from the
Company (the date of notice being the first day) that such Person's
Beneficial Ownership of Common stock so equals or exceeds 15% (or, in
the case of Xtrana, the percentage Xtrana. may hold without ceasing to
be an Exempt Person), such Person shall, at the end of such five
Business Day period, become an Acquiring Person (and clause (y) shall
no longer apply to such Person). For purposes of this definition, the
determination whether any Person acted in "good faith" shall be
conclusively determined by the Board of Directors, acting by a vote of
those directors of the Company whose approval would be required to
redeem the Rights under Section 25."
2. The definition of "Exempt Person" in Section 1 of the Rights Agreement
is hereby amended and restated to read in its entirety as follows:
"`Exempt Person' shall include (i) the Company, (ii) any
Subsidiary (as hereinafter defined) of the Company, (iii) any employee
benefit plan of the Company or any of its Subsidiaries, or any entity
holding shares of Common Stock which was organized, appointed or
established by the Company or any Subsidiary of the Company for or
pursuant to the terms of any such plan and (iv) Xtrana, so long as its
aggregate Beneficial Ownership of Common Stock does not exceed 19.9%
of Common Stock then outstanding, and so long as Xtrana does not
acquire any additional shares of Common Stock or commence a tender
offer or an exchange offer for additional shares of Common Stock,
other than in connection with the merger described in that certain
Letter of Intent, dated March 10, 2000, between the Company and Xtrana
(the "Letter of Intent")."
3. Section 3(a) of the Rights Agreement is amended by adding a new
sentence as the final sentence thereto, which shall read in its entirety as
follows:
"Notwithstanding anything in this Rights Agreement to the
contrary, a Distribution Date shall not be deemed to have occurred
solely as a result of (i) the approval, execution or delivery of the
Merger Agreement described in the Letter of Intent (the "Merger
Agreement") or any of the agreements or instruments required to be
executed and delivered in connection with the transactions
contemplated therein, or (ii) the consummation of the Merger (as
defined in the Merger Agreement)."
4. This Amendment shall be governed by and construed in accordance with
the laws of the State of Delaware.
5. This Amendment may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed an original, and all such
counterparts shall together constitute but one and the same instrument.
6. Except as expressly set forth herein, this Amendment shall not by
implication or otherwise alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements contained in the Rights
Agreement, all of which are ratified and affirmed in all respects and shall
continue in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
BIOPOOL INTERNATIONAL, INC.
By: /s/ XXXX X. XXXXXXX
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Title: Chief Executive Officer
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ XXXXXXX XXXXX
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Title: Vice President
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