EXHIBIT G
---------
AMENDMENT NO. 1 TO THE RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO THE RIGHTS AGREEMENT, dated as of August 31, 2001,
is made between LabOne, Inc., a Missouri corporation (the "Company"), and
American Stock Transfer & Trust Company (the "Rights Agent").
W I T N E S S E T H
WHEREAS, on February 11, 2000, the Company and the Rights Agent entered
into a Rights Agreement (the "Rights Agreement") to provide certain Rights to
holders of Common Stock; and
WHEREAS, the parties hereto desire to amend the Rights Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
1. Subsection (a) of Section 1 is hereby deleted in its entirety, and the
following new subsection (a) is hereby inserted in lieu thereof:
(a) "Acquiring Person" shall mean any Person who or which, together
with all Affiliates and Associates of such Person, without the Prior
Written Approval of the Company granted after the date hereof, shall be
the Beneficial Owner of 15% or more of the shares of Common Stock then
outstanding, other than as a result of a Qualifying Offer, whether or not
such Person together with all Affiliates and Associates of such Person
continues to be the Beneficial Owner of 15% or more of such shares.
Notwithstanding the foregoing,
(i) the term "Acquiring Person" shall not include any Exempt
Person (as hereinafter defined),
(ii) a Person shall not become an Acquiring Person solely as a
result of a reduction in the number of shares of Common Stock outstanding
due to the repurchase of shares of Common Stock by the Company, unless and
until such Person (together with all Affiliates and Associates of such
Person) shall purchase or otherwise become the Beneficial Owner of
additional shares of Common Stock, other than pursuant to a Qualifying
Offer or with the Prior Written Approval of the Company,
(iii) the term "Acquiring Person" shall not include any of the
Grant Family Members, acting individually or as a group, unless and until
such Person or Persons (together with all Affiliates and Associates of
such Person or Persons) shall become (other than pursuant to a Qualifying
Offer or with the Prior Written Approval of the Company) the Beneficial
Owners of 20% or more of the shares of Common Stock then outstanding,
provided that such Person or Persons or Affiliates or Associates shall not
be deemed the Beneficial Owners of shares of Common Stock or other
securities acquired on or after the
Rights Dividend Declaration Date pursuant to any employee or director
benefit plan of the Company or any Subsidiary of the Company;
(iv) the term "Acquiring Person" shall not include Welsh,
Carson, Xxxxxxxx & Xxxxx, IX, L.P. ("WCAS"), any general partner of WCAS,
any member of the general partner of WCAS (collectively the "WCAS
Parties") or any Controlled Entity, only so long as the WCAS Parties
comply with Section 6.03 of that certain Securities Purchase Agreement
dated August 31, 2001 among the Company, WCAS and the other purchasers
named on Schedule I thereto ("Securities Purchase Agreement");
(v) notwithstanding any other provision hereof to the contrary,
a Person shall not be deemed to be an Acquiring Person if, within ten
Business Days after the Board of Directors is given written notice that
such Person has become an Acquiring Person, the Board of Directors
determines in good faith that such Person who would otherwise be an
"Acquiring Person" has become such inadvertently and the Board of
Directors provides such Person a period not to exceed thirty days to
divest a sufficient number of securities so that such Person would no
longer be an Acquiring Person, as defined in the foregoing provisions of
this paragraph (a), and such Person has so divested prior to the end of
such period.
Notwithstanding anything in this Agreement to the contrary, the
term "then outstanding," when used with reference to a Person's beneficial
ownership of securities of the Company, shall mean the number of such
securities then issued and outstanding together with the number of such
securities not then actually issued and outstanding which such Person
would be deemed to beneficially own hereunder.
2. Subsection (b) of Section 1 is hereby amended by adding at the end of
subsection (b) the following:
Notwithstanding the foregoing, (i) no Affiliate or Associate of any
of the WCAS Parties that is not a Controlled Entity shall be deemed to be
the Beneficial Owner of shares of Common Stock beneficially owned by the
WCAS Parties solely by reason of such Person being an Affiliate or
Associate of any of the WCAS Parties and (ii) none of the Grant Family
Members, on the one hand, and WCAS Parties, on the other hand, shall be
deemed to beneficially own the shares of Common Stock beneficially owned
by the other as a result of (A) the execution, delivery and performance of
the Voting Agreement dated August 31, 2001 between certain WCAS Parties
and certain Grant Family Members or (B) compliance by the Company and any
of the WCAS Parties with Section 6.02 of the Securities Purchase
Agreement.
3. Subsection (y) of Section 1 is hereby deleted in its entirety, and the
following new subsection (y) is hereby inserted in lieu thereof:
(y) "Prior Written Approval" shall mean the prior express written
consent of the Company to any Person becoming an Acquiring Person,
executed on behalf of the Company by a duly authorized officer of the
Company following express approval by action of the
2
Board of Directors (and approval of a majority of the Non-WCAS Directors
with respect to WCAS or any Controlled Entity becoming an Acquiring Person
and approval of a majority of the WCAS Directors with respect to any Grant
Family Member becoming an Acquiring Person), provided that all conditions
precedent and subsequent established by the Board of Directors (and not
waived by the Board of Directors prior to violation of any such condition)
in connection with such approval shall be satisfied.
4. Section 1 is hereby amended to include the following new subsection
after subsection (pp):
(qq) "Controlled Entity" shall mean any entity in which any one or
more of the WCAS Parties owns a majority of the voting shares or
securities or has the ability (whether through the ownership of voting
securities, contract or otherwise) to elect a majority of the board of
directors or similar governing body or of which any one or more of the
WCAS Parties has the authority to control or direct investment decisions.
5. Section 1 is hereby amended to include the following new subsection
after subsection (qq):
(rr) "WCAS Director" shall mean each member of the Board of
Directors who is: (i) directly elected by the Series B-1 Preferred Stock
and/or Series C-1 Preferred Stock of the Company or (ii) nominated or
designated for nomination by the Purchaser Representative (as defined in
such agreement) pursuant to Section 6.02 of the Securities Purchase
Agreement dated August 31, 2001 among the Company, WCAS and the other
purchasers named on Schedule I thereto.
6. Section 1 is hereby amended to include the following new subsection
after subsection (rr):
(ss) "Non-WCAS Director" shall mean each member of the Board of
Directors who is not a WCAS Director.
7. Section 27 is hereby deleted in its entirety, and the following new
Section 27 is hereby inserted in lieu thereof:
At any time and from time to time prior to the close of business on
the tenth Business Day after the Stock Acquisition Date, the Board of
Directors, upon vote of a majority of the Board of Directors then in
office, may in its sole and absolute discretion amend or supplement this
Agreement without the approval of any holders of Rights; provided that any
amendment that deletes, modifies, supersedes or otherwise affects Sections
1(a)(iv), 1(y), 1(qq), 1(rr), 1(ss) or 27 shall also require the approval
of a majority of the Non-WCAS Directors, and provided, further that any
amendment that deletes, modifies, supersedes or otherwise affects Sections
1(a)(iii), 1(y), 1(rr), 1(ss) or 27 shall also require the approval of a
majority of the WCAS Directors. At any time and from time to time after
the close of business on the tenth Business Day after the Stock
Acquisition Date, the Board of Directors, upon vote of a majority of the
Board of Directors then in office, may
3
supplement or amend this Agreement without the approval of any holders of
the Rights, provided that no such supplement or amendment adversely
affects the interests of the holders of Rights as such (other than an
Acquiring Person or an Affiliate or Associate of an Acquiring Person).
Upon the delivery of a certificate from an appropriate officer of the
Company which states that the proposed supplement or amendment is in
compliance with the terms of this Section 27, the Rights Agent shall
execute such supplement or amendment; provided, however, that the Rights
Agent may, but shall not be obligated to, enter into any such supplement
or amendment which adversely affects the Rights Agent's own rights, duties
or immunities under this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.1 to
the Rights Agreement to be duly executed as of the day and year first above
written.
LABONE, INC.
By: /s/ W. Xxxxxx Xxxxx XX
____________________________________________
Name: W. Xxxxxx Xxxxx XX
Title: Chairman of the Board, President
and Chief Executive Officer
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ Xxxxxxx Xxxxxx
____________________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
