AMENDMENT NO. 1 TO RIGHTS AGREEMENT
AMENDMENT
NO. 1 TO RIGHTS AGREEMENT
Amendment
No. 1, dated as of November 4, 2007 (the “Amendment”), between Chindex
International, Inc., a Delaware corporation (the “Company”), and American
Stock Transfer & Trust Company, as Rights Agent (the “Rights
Agent”).
WHEREAS,
the Company and the Rights Agent entered into a Rights Agreement, dated as
of
June 7, 2007 (the “Rights Agreement”);
WHEREAS,
the Company intends to enter into a certain Stock Purchase Agreement with
Magenta Magic Limited, (the “Purchaser”); Investor Rights Agreement with
the Purchaser; Tranche B Convertible Note to the Purchaser and Tranche C
Convertible Note to the Purchaser (all of the foregoing agreements, the
“Investment Agreements”); and
WHEREAS,
the Company desires to amend the Rights Agreement as set forth herein and to
direct the Rights Agent to execute this Amendment in accordance with Section
28
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:
1. Amendment
toDefinition ofAcquiring Person. Section 1(a) of the
Rights Agreement is hereby amended to add the following sentence at the end
thereof:
Notwithstanding
anything to the contrary in this Agreement, the Purchaser shall not be and
shall
not be deemed to be an Acquiring Person solely by virtue of (x) the execution
and delivery of any of the agreements, arrangements or understandings entered
into by the Company or the Purchaser as expressly contemplated by the Investment
Agreements if such agreements, arrangements or understandings are in accordance
with the terms and conditions of the respective Investment Agreements or (y)
the
consummation of the transactions contemplated by the Investment Agreements
upon
the terms and conditions of the respective Investment Agreements (each of the
events set forth in the foregoing clauses (x), and (y), an “Exempt
Event”).
2. New
Definitions. Section 1 of the Rights Agreement is hereby amended
to add the following defined terms at the end thereof:
(ff) “Exempt
Event” shall have the meaning set forth in Section 1(a) hereof.
(gg) “Investment
Agreements” shall mean (i) the Securities Purchase Agreement, dated as of
November [ ], 2007, by and among the Company and Magenta Magic
Limited, a Delaware corporation (“Purchaser”); (ii) the Investor Rights
Agreement, dated as of such date by and among the Company and the Purchaser;
(iii) Tranche B Convertible Note due 2017 from the Company to
the
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Purchaser;
and (iv) the Tranche C Convertible Note due 2017 from the Company to the
Purchaser, each as it may be amended or supplemented from time to
time.
3. Amendment
to Section 13(a). Section 13(a) of the Rights Agreement is
hereby amended by adding the following sentence at the end thereof:
Notwithstanding
anything to the contrary in this Agreement, the provisions of this Section
13
and Section 14 hereof shall not apply to any Exempt Event.
4. Amendment
to Section 31. Section 31 of the Rights Agreement is hereby
amended by adding the following sentence at the end thereof:
Notwithstanding
the foregoing, nothing in this Agreement shall be construed to give any holder
of Rights or any other Person any legal or equitable rights, remedy or claim
under this Agreement in connection with any Exempt Event.
5. Directions
to Rights Agent; Officer’s Certificate. The Company hereby
directs the Rights Agent, in accordance with the terms of Section 28 of the
Rights Agreement, to execute this Amendment in its capacity as Rights
Agent. The undersigned officer of the Company, being duly authorized
on behalf of the Company, hereby certifies on behalf of the Company that (a)
he
holds the office set forth under his name on the signature page hereto and
(b)
this Amendment is in compliance with Section 28 of the Rights
Agreement.
6. Miscellaneous. The
term “Agreement” as used in the Rights Agreement shall be deemed to refer to the
Rights Agreement as amended hereby. In accordance with the
resolutions adopted by the Company’s Board of Directors, this Amendment is
effective as of the time at which such resolutions were so
adopted. Except as set forth in this Amendment, the Rights Agreement
shall remain in full force and effect and shall be otherwise unaffected
hereby. 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,
it being understood that counterparts may be delivered by facsimile or
.pdf. Headings of the several Sections of the Amendment are inserted
for convenience only and shall not control or affect the meaning or construction
of any of the provisions hereof.
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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.
CHINDEX
INTERNATIONAL, INC.
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By:
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/s/
Xxxxxxx Xxxxxx
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Name:
Xxxxxxx Xxxxxx
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Title: Chief
Executive Officer and President
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AMERICAN
STOCK TRANSFER AND TRUST COMPANY, as Rights Agent
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By:
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/s/
Xxxxxxx X. Xxxxxx
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Name:
Xxxxxxx X. Xxxxxx
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Title: Vice
President
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