EXHIBIT 4.1
SECOND AMENDMENT TO RIGHTS AGREEMENT
This SECOND AMENDMENT TO RIGHTS AGREEMENT (this "AMENDMENT") is entered
into as of November 20, 2003 between Gen-Probe Incorporated, a Delaware
corporation (the "COMPANY"), and Mellon Investor Services LLC, a New Jersey
limited liability company, as Rights Agent (the "RIGHTS AGENT"). Capitalized
terms used but not otherwise defined herein shall have the meanings ascribed to
them in the Rights Agreement (as defined below).
WHEREAS, the Company and the Rights Agent previously entered into the
Rights Agreement dated as of September 16, 2002 between the Company and the
Rights Agent, as amended by the First Amendment to Rights Agreement, dated as of
October 9, 2002 (the "RIGHTS AGREEMENT");
WHEREAS, pursuant to Section 26 of the Rights Agreement, the Company
and the Rights Agent may from time to time supplement or amend any provision of
the Rights Agreement in accordance with the terms of such Section 26.
NOW, THEREFORE, in consideration of the foregoing promises and mutual
agreements set forth in this Amendment, the parties hereby amend the Rights
Agreement as follows:
1. Section 7.2 of the Rights Agreement is hereby deleted in its
entirety and replaced with the following:
7.2 Purchase. The Purchase Price for each one
one-hundredth of a Preferred Share pursuant to the exercise of a Right
shall be $300.00, shall be subject to adjustment from time to time as
provided in Sections 11, 13 and 26, and shall be payable in lawful
money of the United States of America in accordance with Section 7.3
2. Exhibit C (the "SUMMARY OF RIGHTS") to the Rights Agreement is
hereby replaced in its entirety by EXHIBIT C attached hereto.
3. This Amendment may be executed in one or more counterparts,
each of which when executed shall be deemed to be an original, including
counterparts transmitted by facsimile, but all of which taken together shall
constitute one and the same agreement.
4. 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 to
be made and performed entirely within such State.
5. On and after the date hereof, each reference in the Rights
Agreement to the "Agreement" shall mean the Rights Agreement as amended hereby.
Except as specifically amended above, the Rights Agreement shall remain in full
force and effect and is hereby ratified and confirmed. The execution, delivery
and effectiveness of this Amendment shall not, except as expressly provided
herein, operate as a waiver of any right, power or remedy of any party hereto,
nor constitute a waiver of any provision of the Rights Agreement.
[SIGNATURE PAGE FOLLOWS]
1.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
GEN-PROBE INCORPORATED
By: /s/ R. XXXXXXX XXXXX
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Name: R. Xxxxxxx Xxxxx
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Title: Vice President & General Counsel
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MELLON INVESTOR SERVICES LLC,
as Rights Agent
By: /s/ XXXXXX X. LUG
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Name: Xxxxxx X. Lug
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Title: Vice President
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2.
EXHIBIT C
SUMMARY OF RIGHTS TO PURCHASE PREFERRED SHARES
GEN-PROBE INCORPORATED
DISTRIBUTION OF RIGHTS: On September 16, 2002, the Board of Directors of
Gen-Probe Incorporated (the "COMPANY") declared a
dividend of one preferred share purchase right (a
"RIGHT") for each share of common stock, $.0001 par
value (the "COMMON SHARES"), of the Company
outstanding at the close of business on September 26,
2002 (the "RECORD DATE"). As a result of the dividend
of one Common Share paid for each outstanding Common
Share distributed on September 30, 2003 (and subject
to further adjustment), as long as the Rights are
attached to the Common Shares, the Company will issue
one-half of a Right with each new Common Share so
that all such shares will have attached Rights. The
Rights are not exercisable until the Distribution
Date, which is described below.
RIGHTS AGREEMENT: The description and terms of the Rights are set forth
in a Rights Agreement, dated as of September 16,
2002, as the same may be amended from time to time
(the "AGREEMENT"), between the Company and Mellon
Investor Services LLC, a New Jersey limited liability
company, as Rights Agent (the "RIGHTS AGENT").
Capitalized terms used herein and not otherwise
defined herein shall have the meaning given to such
terms in the Agreement.
TRANSFER OF RIGHTS; The Agreement provides that until the Distribution
RIGHTS CERTIFICATES: Date or earlier redemption, exchange, termination, or
expiration of the Rights, the Rights will be
evidenced, with respect to any of the Common Share
certificates outstanding as of the Record Date, by
such Common Share certificate together with a copy of
this Summary of Rights and that the Rights will be
transferred with and only with the Common Shares.
Until the Distribution Date (or earlier redemption or
expiration of the Rights), new Common Share
certificates issued after the Close of Business on
the Record Date will contain a notation incorporating
the Agreement by reference. Until the Distribution
Date (or earlier redemption, exchange, termination or
expiration of the Rights), the surrender for transfer
of any certificates for Common Shares, with or
without such notation or a copy of this Summary of
Rights, will also constitute the transfer of the
Rights associated with the Common Shares represented
by such certificate. As soon as practicable following
the Distribution Date, separate certificates
evidencing the Rights ("RIGHT CERTIFICATES") will be
mailed to holders of record of the Common Shares as
of the Close of Business on the Distribution Date and
such separate Right Certificates alone will evidence
the Rights.
C-1.
DISTRIBUTION DATE: Rights will separate from the Common Shares and
become exercisable upon the earlier to occur of (i)
ten (10) days following a public announcement that a
person or group of Affiliated or Associated persons
(other than an Existing Holder (as defined below),
unless and until such time as the Existing Holder
becomes the beneficial owner of an additional 2% or
more of the Common Shares) has acquired, or obtained
the right to acquire, beneficial ownership of 15% or
more of the Common Shares (an "ACQUIRING PERSON") or
(ii) ten (10) business days (or such later date as
may be determined by action of the Board of Directors
prior to such time as any person or group of
Affiliated persons becomes an Acquiring Person)
following the commencement or announcement of an
intention to make a tender offer or exchange offer
the consummation of which would result in the
beneficial ownership by a person or group of 15% or
more of the Common Shares (the earlier of (i) and
(ii) being called the "DISTRIBUTION DATE"). "EXISTING
HOLDER" means Capital Research and Management
Company, together with all of its Affiliates and
Associates. As described in the Rights Agreement,
Rights which are held by or have been held by an
Acquiring Person or Associates or Affiliates thereof
and certain transferees thereof will become null and
void and will no longer be transferable.
PREFERRED STOCK When exercisable, each Right will entitle the
PURCHASABLE UPON registered holder to purchase from the Company one
EXERCISE OF RIGHTS: one-hundredth of a share of Series A Junior
Participating Preferred Stock (the "PREFERRED
SHARES") at a price of $300.00 per one one-hundredth
of a Preferred Share, subject to adjustment (the
"PURCHASE PRICE"), unless the "Flip-In" or
"Flip-Over" provisions described below are
applicable. Because of the nature of the Preferred
Share's dividend, liquidation and voting rights, the
value of one one-hundredth of a Preferred Share
purchasable upon exercise of each Right should
approximate the value of one Common Share. For more
information about the Preferred Shares, see "Terms of
Preferred Shares" below.
FLIP-IN: In the event that a Person becomes an Acquiring
Person or if the Company were the surviving
corporation in a merger with an Acquiring Person or
any Affiliate or Associate of an Acquiring Person and
the Common Shares were not changed or exchanged, each
holder of a Right, other than Rights that are or were
acquired or beneficially owned by the Acquiring
Person (which Rights will thereafter be null and
void), will thereafter have the right to receive,
upon exercise, Common Shares having a market value of
two times the then-current Purchase Price of the
Right.
FLIP-OVER: In the event that, after a Person has become an
Acquiring Person, the Company were acquired in a
merger or other business
C-2.
combination transaction or more than 50% of its
assets or earning power were sold, proper provision
shall be made so that each holder of a Right shall
thereafter have the right to receive, upon the
exercise thereof at the then current Purchase Price
of the Right, common stock of the acquiring company
having a market value at the time of such transaction
equal to two times the then current Purchase Price of
the Right.
EXCHANGE PROVISION: At any time after a Person becomes an Acquiring
Person and prior to the acquisition of the Company in
a merger or other business combination transaction,
the sale of more than 50% of the Company's assets or
earning power or the acquisition by such Acquiring
Person of 50% or more of the outstanding Common
Shares, the Board of Directors may cause the Company
to exchange the Rights (other than Rights owned by an
Acquiring Person which will have become null and
void), in whole or in part, for Common Shares equal
to the Spread (as defined in the Agreement), subject
to adjustment.
REDEMPTION OF THE The Rights may be redeemed in whole, but not in part,
RIGHTS: at a price of $.01 per Right (the "REDEMPTION PRICE")
by the Board of Directors at any time prior to the
time that a person becomes an Acquiring Person. The
redemption of the Rights may be made effective at
such time, on such basis and with such conditions as
the Board of Directors in its sole discretion may
establish. Immediately upon any redemption of the
Rights, the right to exercise the Rights will
terminate and the only right of the holders of Rights
will be to receive the Redemption Price.
EXPIRATION OF THE The Rights will expire on September 26, 2012, subject
RIGHTS: to the Company's right to extend such date (the
"FINAL EXPIRATION DATE"), unless earlier redeemed or
exchanged by the Company or terminated.
AMENDMENT OF TERMS OF Any of the provisions of the Agreement may be amended
THE RIGHTS: by the Board of Directors of the Company for so long
as the Rights are then redeemable, and after the
Rights are no longer redeemable, the Company may
amend or supplement the Agreement in any manner that
does not adversely affect the interests of the
holders of the Rights.
VOTING AND OTHER Until a Right is exercised, the holder thereof, as
RIGHTS: such, will have no rights as a stockholder of the
Company beyond those as an existing stockholder,
including, without limitation, the right to vote or
to receive dividends.
ANTI-DILUTION The Purchase Price payable, and the number of
PROVISIONS: Preferred Shares or other securities or property
issuable, upon exercise of the Rights
C-3.
are subject to adjustment from time to time to
prevent dilution (i) in the event of a stock dividend
on, or a subdivision, combination or reclassification
of the Preferred Shares, (ii) upon the grant to
holders of the Preferred Shares of certain rights or
warrants to subscribe for or purchase Preferred
Shares or convertible securities at less than the
current market price of the Preferred Shares or (iii)
upon the distribution to holders of the Preferred
Shares of evidences of indebtedness, cash, securities
or assets (excluding regular periodic cash dividends
at a rate not in excess of 125% of the rate of the
last regular periodic cash dividend previously paid
or, in case regular periodic cash dividends have not
previously been paid, at a rate not in excess of 50%
of the average net income per share of the Company
for the four quarters ended immediately prior to the
payment of such dividend, or dividends payable in
Preferred Shares (which dividends will be subject to
the adjustment described in clause (i) above)) or of
subscription rights or warrants (other than those
referred to above). No adjustment in the Purchase
Price will be required until cumulative adjustments
require an adjustment of at least 1% in such Purchase
Price. No fractional Preferred Shares or Common
Shares will be issued (other than fractions of
Preferred Shares which are integral multiples of one
one-hundredth of a Preferred Share, which may, at the
election of the Company, be evidenced by depository
receipts), and in lieu thereof, a payment in cash
will be made based on the market price of the
Preferred Shares or Common Shares on the last trading
date prior to the date of exercise.
TERMS OF PREFERRED Each Preferred Share purchasable upon exercise of the
SHARES: Rights will be entitled, when, as and if declared, to
a minimum preferential quarterly dividend payment of
$1.00 per share but will be entitled to an aggregate
dividend of 100 times the dividend, if any, declared
per Common Share. In the event of liquidation,
dissolution or winding up of the Company, the holders
of the Preferred Shares will be entitled to a minimum
preferential liquidation payment of $100 per share
(plus any accrued but unpaid dividends) but will be
entitled to an aggregate payment of 100 times the
payment made per Common Share. Each Preferred Share
will have 100 votes and will vote together with the
Common Shares. Finally, in the event of any merger,
consolidation or other transaction in which Common
Shares are exchanged, each Preferred Share will be
entitled to receive 100 times the amount received per
Common Share. Preferred Shares will not be
redeemable. These rights are protected by customary
antidilution provisions.
C-4.
A copy of the Agreement has been filed with the Securities and
Exchange Commission as an Exhibit to a Current Report on Form 8-K. A copy of the
Agreement is available free of charge from the Company. This summary description
of the Rights does not purport to be complete and is qualified in its entirety
by reference to the Agreement, which is incorporated herein by reference.
C-5.
