FIRST AMENDMENT TO RIGHTS AGREEMENT
FIRST AMENDMENT TO RIGHTS AGREEMENT
This FIRST AMENDMENT (this “Amendment”) to the Rights Agreement, dated as of February 6, 2004
(the “Rights Agreement”), between Symbion, Inc., a Delaware corporation (the “Company”) and
Computershare Trust Company, N.A., as successor to SunTrust Bank, as
rights agent (the “Rights
Agent”), is entered into and effective as of April 24, 2007. Capitalized terms used herein and not
otherwise defined shall have the respective meanings ascribed to such terms in the Rights
Agreement.
WHEREAS, the Company and the Rights Agent have heretofore executed and entered into the Rights
Agreement;
WHEREAS, the Company proposes to enter into an Agreement and Plan of Merger (as it may be
amended from time to time, the “Merger Agreement”), among the Company, Symbol Acquisition, L.L.C.
(“Parent”), and Symbol MergerSub, Inc. (“Acquisition”), and the Company, providing for the merger
(the “Merger”) of the Company and Acquisition, with the Company continuing as the surviving
corporation;
WHEREAS, the Board of Directors of the Company has determined, in connection with the
execution of the Merger Agreement, that it is necessary and desirable to amend the Rights Agreement
to exempt the Merger Agreement, the execution thereof and the transactions contemplated thereby,
including, without limitation, the Merger, from the application of the Rights Agreement, in each
case as set forth in this Amendment;
WHEREAS, (i) Section 29 of the Rights Agreement provides that, so long as the Rights are then
redeemable, the Company may, and the Rights Agent shall if so directed by the Company, supplement
or amend any provision of the Rights Agreement without the approval of any holders of the Right
Certificates or Common Shares (subject to limited exceptions that do not apply for purposes
hereof); (ii) pursuant to Section 29 of the Rights Agreement, an appropriate officer of the Company
has delivered a certificate to the Rights Agent stating that the proposed supplements and
amendments to the Rights Agreement set forth in this Amendment are in compliance with Section 29 of
the Rights Agreement; and (iii) pursuant to the terms of the Rights Agreement and in accordance
with Section 29 thereof, the Company has directed that the Rights Agreement should be amended and
supplemented as set forth in this Amendment prior to the execution of the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth,
the parties hereby agree as follows:
Section 1. Amendments to Rights Agreement.
A. The definition of “Acquiring Person” in Section 1(a) of the Rights Agreement is
amended by inserting the following at the end of such definition:
“Notwithstanding anything in this Section 1(a) to the contrary, none of Symbol
Acquisition, L.L.C., a Delaware limited liability company (“Parent”), Symbol
MergerSub, Inc., a Delaware corporation (“Acquisition”), any employees or
stockholders of the Company who have agreed or after the date
hereof shall agree with Parent to contribute Common Shares to Parent or
Acquisition in exchange for Parent equity interests immediately prior to the
Effective Time (as defined below) (such agreements to contribute being
hereinafter defined as “Contribution Agreements”), or any of its respective
Affiliates, either individually, collectively or in any combination, shall be
deemed to be an “Acquiring Person” solely by virtue or as a result of (i) the
approval, execution, delivery, adoption or performance of the Agreement and Plan
of Merger, dated as of April 24, 2007, among Parent, Acquisition and the Company
(as it may be amended or supplemented from time to time, the “Merger
Agreement”), (ii) the consummation of the Merger (as defined in the Merger
Agreement) or any other transactions contemplated thereby or (iii) the
execution, delivery or performance of the Contribution Agreements (such actions
described in this sentence, collectively, the “Permitted Events”, and
individually, a “Permitted Event”).”
B. The definition of “Business Day” in Section 1(f) of the Rights Agreement is modified,
amended and restated as follows:
“‘Business Day’ shall mean any day other than a Saturday, Sunday or a day on
which banking institutions in the Commonwealth of Massachusetts are authorized
or obligated by law or executive order to close.”
C. The definition of “Close of Business” in Section 1(g) of the Rights Agreement is
modified, amended and restated as follows:
“‘Close of Business’ on any given date shall mean 5:00 P.M., Boston,
Massachusetts time, on such date; PROVIDED, HOWEVER, that if such date is not a
Business Day it shall mean 5:00 P.M., Boston, Massachusetts time, on the next
succeeding Business Day.”
D. The definition of “Shares Acquisition Date” in Section 1(aa) of the Rights Agreement
is amended to add the following sentence at the end thereof:
“Notwithstanding anything in this Agreement to the contrary, a Shares
Acquisition Date shall not be deemed to have occurred solely by virtue or as a
result of the public announcement of any Permitted Event.”
E. The last sentence of Section 2 of the Rights Agreement is deleted in its entirety and
replaced with the following:
“The Company may from time to time appoint such co-Rights Agents as it may deem
necessary or desirable, upon ten (10) days’ prior written notice to the Rights
Agent. The Rights Agent shall have no duty to supervise, and in no event be
liabile for, the acts or omissions of any such co-Rights Agent.”
F. Section 3(a) of the Rights Agreement is amended to add the following sentence at the
end thereof:
“Notwithstanding anything in this Agreement to the contrary, a Distribution Date
shall not be deemed to have occurred solely as the result of any Permitted
Event.”
G. Section 8(a) of the Rights Agreement is modified, amended and restated as follows:
“Subject to the provisions of Section 8(e) hereof, the registered holder of any
Right Certificate may exercise the Rights evidenced thereby (except as otherwise
provided herein) in whole or in part at any time after the Distribution Date
upon surrender of the Right Certificate, with the form of election to purchase
on the reverse side thereof duly executed, to the Rights Agent at its Corporate
Trust Office, together with payment of the Purchase Price for each one
one-thousandth (1/1000) of a Preferred Share (or other securities) as to which
the Rights are exercised, at or prior to the earliest of (1) the Close of
Business on the Final Expiration Date, (2) the time of redemption on the
Redemption Date, (3) the time at which such Rights are mandatorily redeemed and
exchanged as provided in Section 25 hereof, or (4) the time immediately prior to
the Effective Time (as defined in the Merger Agreement) (the “Effective Time”),
but only if the Effective Time shall occur. The Company will provide the Rights
Agent with notice of the Effective Time, provided, however, that
failure to notify the Rights Agent of the Effective Time shall not in any way
affect the time at which the Rights cease to be exercisable pursuant to the
foregoing sentence.”
H. The following sentence is added as the second sentence of Section 22 of the Rights
Agreement:
“In the event the transfer agency relationship in effect between the Company and
the Rights Agent terminates, the Rights Agent will be deemed to resign
automatically on the effective date of such termination; and any required notice
will be sent by the Company.”
I. The address of the Rights Agent included in Section 28 of the Rights Agreement is
deleted in its entirety and replaced with the following:
“Computershare Trust Company, N.A.
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Client Administration”
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Client Administration”
J. A new Section 37 is added to read in its entirety as follows:
“Section 37. TERMINATION. Notwithstanding anything herein to the contrary,
immediately prior to the Effective Time, but only if the Effective
Time shall occur, (a) this Agreement shall be terminated and be without further
force or effect, (b) none of the parties to this Agreement will have any rights,
obligations or liabilities hereunder, and (c) the holders of the Rights shall
not be entitled to any benefits, rights or other interests under this Agreement,
including, without limitation, the right to purchase or otherwise acquire
Preferred Shares or any other securities of the Company or of any other Person;
provided, however, that notwithstanding the foregoing, Sections
19 and 20 hereof shall survive the termination of this Agreement.”
Section 2. Interpretation. The term “Agreement” as used in the Rights Agreement shall
be deemed to refer to the Rights Agreement as amended hereby.
Section 3. Severability. If any term, provision, covenant or restriction of this
Amendment is held by a court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and restrictions of this
Amendment, and of the Rights Agreement, shall remain in full force and effect and shall in no way
be affected, impaired or invalidated.
Section 4. Waiver of Notice. The Rights Agent and the Company hereby waive any notice
requirement under the Rights Agreement pertaining to the matters covered by this Amendment.
Section 5. Effectiveness. This Amendment is effective as set forth above. Except as
expressly amended herein, all other terms and conditions of the Rights Agreement shall remain in
full force and effect. Without limiting the foregoing, the Rights Agent shall not be subject to,
nor required to interpret or comply with, or determine if any Person has complied with, the Merger
Agreement even though reference thereto may be made in this Amendment and the Rights Agreement.
Section 6. Governing Law. This Amendment shall be deemed a contract made under the
laws of the State of Delaware, and for all purposes of this Amendment shall be governed by and
construed in accordance with the laws of such State applicable to contracts made and to be
performed entirely within such State.
Section 7. Counterparts. This Amendment may be executed in any number of counterparts,
each of which shall be an original and all of which shall constitute one and the same document.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Amendment, or caused this Amendment to be
executed by their authorized representatives, as of the date stated in the introductory paragraph
of this Amendment.
| SYMBION, INC.: |
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| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Chairman and Chief Executive Officer | |||
| COMPUTERSHARE TRUST COMPANY, N.A.: |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | General Counsel | |||
