EXHIBIT 2.2
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AMENDMENT
to the
PREFERRED SHARES RIGHTS AGREEMENT
between
APPLIED IMAGING CORP.
and
XXXXX FARGO BANK MINNESOTA, N.A.
This Amendment (the "Amendment") to the Preferred Shares Rights Agreement
is made and entered into as of February 7, 2002 between APPLIED IMAGING CORP., a
Delaware corporation (the "Company"), and XXXXX FARGO BANK MINNESOTA, N.A., as
Rights Agent (the "Rights Agent").
R E C I T A L S
WHEREAS, the Company and Norwest Bank Minnesota, N.A., predecessor in
interest to the Rights Agent, entered into the Preferred Shares Rights Agreement
dated as of May 29, 1998 (the "Rights Agreement"); and
WHEREAS, Xxxxx Fargo Bank Minnesota, N.A. has assumed the duties of Rights
Agent from Norwest Bank Minnesota, N.A.; and
WHEREAS, Section 27 of the Rights Agreement provides that prior to the
Distribution Date (as defined in the Rights Agreement), the Company may
supplement or amend the Rights Agreement in any respect without the approval of
any holders of Rights; and
WHEREAS, the Company intends to modify the terms of the Rights Agreement in
certain respects as set forth herein, and in connection therewith, is entering
into this Amendment and directing the Rights Agent to enter into this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Effect of Amendment. Except as expressly provided herein, the Rights
Agreement shall be and remain in full force and effect.
2. Capitalized Terms. All capitalized, undefined terms used in this
Amendment shall have the meanings assigned thereto in the Rights Agreement.
3. Supplement to Definitions. The definitions contained in Section 1 of the
Rights Agreement shall be supplemented by adding the following:
"SSF" shall mean Special Situations Fund III, L.P., Special Situations
Cayman Fund, L.P., Special Situations Private Equity Fund, L.P., Special
Situations Technology Fund, L.P. and any related investment funds, whether now
existing or organized in the future, their respective investment advisers and
general and limited partners, any officers, directors, shareholders or equity
holders of any of the foregoing and any person or entity which is an Affiliate
or Associate of any of the foregoing.
4. Amendment to Definitions. The following definitions contained in Section
1 of the Rights Agreement are hereby deleted in their entirety and amended to
read as follows:
"ACQUIRING PERSON" shall mean any Person who or which, together with all
Affiliates and Associates of such Person, shall be the Beneficial Owner of 20%
or more of the Common Shares then outstanding, but shall not include the
Company, or any Subsidiary of the Company, or any employee benefit plan of the
Company or of any Subsidiary of the Company, or any entity holding Common Shares
for or pursuant to the terms of any such plan. An Acquiring Person shall also
not include SSF, unless and until SSF shall have become the Beneficial Owner of
a percentage of Common Shares then outstanding of 25% or more, at which time SSF
shall be an Acquiring Person. Notwithstanding the foregoing, no Person shall be
deemed to be an Acquiring Person as the result of an acquisition of Common
Shares by the Company which, by reducing the number of shares outstanding,
increases the proportionate number of shares beneficially owned by such Person
to 20% or more (or, in the case of SSF, of 25% or more) of the Common Shares of
the Company then outstanding; PROVIDED, HOWEVER, that if a Person shall become
the Beneficial Owner of 20% or more (or, in the case of SSF, of 25% or more) of
the Common Shares of the Company then outstanding by reason of share purchases
by the Company and shall, after such share purchases by the Company, become the
Beneficial Owner of any additional Common Shares of the Company (other than
pursuant to a dividend or distribution paid or made by the Company on the
outstanding Common Shares in Common Shares or pursuant to a split or subdivision
of the outstanding Common Shares), then such Person shall be deemed to be an
Acquiring Person unless upon becoming the Beneficial Owner of such additional
Common Shares of the Company such Person does not beneficially own 20% or more
(or, in the case of SSF, of 25% or more) of the Common Shares of the Company
then outstanding. Notwithstanding the foregoing, (i) if a majority of the
Continuing Directors then in office determines in good faith that a Person who
would otherwise be an "Acquiring Person," as defined pursuant to the foregoing
provisions of this paragraph (a), has become such inadvertently (including,
without limitation, because (A) such Person was unaware that it beneficially
owned a percentage of the Common Shares that would otherwise cause such Person
to be an "Acquiring Person," as defined pursuant to the foregoing provisions of
this paragraph (a), or (B) such Person was aware of the extent of the Common
Shares it beneficially owned, but had no actual knowledge of the consequences
of, such beneficial ownership under this Agreement) and without any intention of
changing or influencing control of the Company, and if such Person divested or
divests as promptly as practicable a sufficient number of Common Shares so that
such Person would no longer be an "Acquiring Person," as defined pursuant to the
foregoing provisions of this paragraph (a), then such Person shall not be deemed
to be or to have become an Acquiring
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Person for any purposes of this Agreement; and (ii) if, as of the date hereof,
any Person is the Beneficial Owner of 20% or more (or, in the case of SSF, of
25% or more) of the Common Shares outstanding, such Person shall not be or
become an "Acquiring Person," as defined pursuant to the foregoing provisions of
this paragraph (a), unless and until such time as such Person shall become the
Beneficial Owner of additional Common Shares (other than pursuant to a dividend
or distribution paid or made by the Company on the outstanding Common Shares in
Common Shares or pursuant to a split or subdivision of the outstanding Common
Shares), unless, upon becoming the Beneficial Owner of such additional Common
Shares, such Person is not then the Beneficial Owner of 20% or more (or, in the
case of SSF, of 25% or more) of the Common Shares then outstanding.
5. Effective Date. This Amendment shall become effective as of the date
first above written but such effectiveness is contingent upon (a) the execution
of this Amendment by the Company and authorization by the Board of Directors of
the Company approving the Amendment; (b) delivery of a certificate from an
appropriate officer of the Company stating that this Amendment is in compliance
with Section 27 of the Rights Agreement; and (c) the execution and delivery of
this Amendment by the Rights Agent.
6. Governing Law. This Amendment shall be governed by, construed and
enforced in accordance with the laws of the State of Delaware without reference
to the conflicts or choice of law principles thereof.
7. Counterparts. This Amendment may be executed in separate counterparts,
each of which when executed and delivered is an original but all of which taken
together constitute one and the same instrument.
8. Fax Transmission. A facsimile, telecopy or other reproduction of this
Amendment may be executed by one or more parties hereto, and an executed copy of
this Amendment may be delivered by one or more parties hereto by facsimile or
similar instantaneous electronic transmission device pursuant to which the
signature of or on behalf of such party can be seen, and such execution and
delivery shall be considered valid, binding and effective for all purposes. At
the request of any party hereto, all parties hereto agree to execute an original
of the Amendment as well as any facsimile, telecopy or other reproduction
thereof.
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IN WITNESS WHEREOF, the Company and the Rights Agent have caused this Amendment
to be duly executed as of the day first above written.
APPLIED IMAGING CORP.
By: /s/ XXXXX XXXXXXXXX
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Xxxxx Xxxxxxxxx
Title: Chief Financial Officer
XXXXX FARGO BANK MINNESOTA, N.A., as Rights
Agent
By: /s/ XXXXXXXX XXXX
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Xxxxxxxx Xxxx
Title: Officer
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