EXHIBIT 1
AMENDMENT NO. 1
TO RIGHTS AGREEMENT
Amendment No. 1 to Rights Agreement, dated as of January 19, 2004
(the "Amendment"), between XXXXX MEDICAL CORP., a Delaware corporation (the
"Company"), and AMERICAN STOCK TRANSFER & TRUST CO. (the "Rights Agent").
WHEREAS, the Company and the Rights Agent entered into a Rights
Agreement, dated as of November 18, 1998 (the "Rights Agreement");
WHEREAS, the Company desires to enter into an agreement providing
for the merger of the Company with a wholly-owned subsidiary of McKesson
Corporation;
WHEREAS, there is not as of the date hereof any Acquiring Person
(as defined in the Rights Agreement);
WHEREAS, the Company desires to amend the Rights Agreement in
accordance with Section 26 thereof; and
WHEREAS, the effectiveness of this Amendment is conditioned upon
approval of the terms set forth herein by the Company's Board of Directors and
the receipt by the Rights Agent of a Certificate of an appropriate officer of
the Company certifying that this Amendment is in compliance with the terms of
Section 26 of the Rights Agreement;
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth in the Rights Agreement and this Amendment, the parties
hereby agree as follows:
Section 1. Amendment to Definitions. Section 1(a) of the
Rights Agreement is amended to add the following paragraph as the last
paragraph thereof:
"Notwithstanding the foregoing, neither McKesson Corporation ("McKesson")
nor any of its Affiliates or Associates shall become an Acquiring Person,
nor shall any Distribution Date or Stock Acquisition Date occur or be
deemed to occur, nor shall any holder of Rights be entitled to any rights
or benefits pursuant to any provision of this Agreement, in each case as a
result of the execution of the Agreement and Plan of Merger, dated as of
January 19, 2004, among the Company, Merger Sub (as defined in the Merger
Agreement) and McKesson (as the same may be amended from time to time, the
"Merger Agreement") or consummation of the transactions contemplated
thereby pursuant to the terms of the Merger Agreement."
Section 2. Amendment for Termination. The Rights Agreement is
hereby amended to add a new Section 34, which shall read in its entirety as
follows:
"Section 34. Termination. Notwithstanding anything to the contrary
contained herein, this Agreement shall terminate and the Rights shall
expire and be of no further force and effect immediately prior to the
Effective Time (as defined in the Merger Agreement)."
Section 3. Rights Agreement as Amended. The term "Agreement" as used
in the Rights Agreement shall be deemed to refer to the Rights Agreement as
amended hereby. The foregoing amendments 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 be otherwise unaffected hereby.
Section 4. Certification. The undersigned officer of the
Company certifies by execution hereof that this Amendment is in compliance
with the terms of Section 26 of the Rights Agreement.
Section 5. Counterparts. This Amendment may be executed in any
number of counterparts, and each of such counterparts shall for all purposes be
deemed an original, but all such counterparts shall together constitute but one
and the same instrument.
Section 6. Governing Law. 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 made to be performed entirely within such State.
Section 7. Descriptive Headings. Descriptive headings of the
several Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the day and year first above written.
XXXXX MEDICAL CORP.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President & CEO
AMERICAN STOCK TRANSFER & TRUST CO.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
