AMENDMENT NO. 1 TO THE
AMENDED AND RESTATED RIGHTS AGREEMENT
This Amendment to the Amended and Restated Rights Agreement, dated as of
May 24, 1999, is made by and between Unilab Corporation, a Delaware corporation
(the "Company"), and Xxxxx Xxxxxx Shareholder Services, a New York banking
corporation (the "Rights Agent"), and amends the Amended and Restated Rights
Agreement, dated as of March 15, 1996, between the Company and the Rights Agent
(the "Amended and Restated Rights Agreement").
RECITALS
WHEREAS, the Company intends to enter into an Agreement and Plan of Merger,
dated as of May 24, 1999 (the "Merger Agreement"), with UC Acquisition Sub, Inc.
("Merger Sub"), a Delaware corporation and wholly owned subsidiary of Xxxxx
Investment Associates VI L.P. and KEP VI LLC, pursuant to which Merger Sub will
merge (the "Merger") with and into the Company, the Board of Directors of the
Company having approved the Merger Agreement and Merger; and
WHEREAS, pursuant to Section 27 of the Amended and Restated Rights
Agreement, the Board Directors of the Company has determined that an amendment
to the Amended and Restated Rights Agreement as set forth herein is necessary
and desirable in connection with the foregoing and the Company and the Rights
Agent desire to evidence such amendment in writing; and
NOW, THEREFORE, the Company and the Rights Agent agree as follows:
1. Amendment to Definition of "Acquiring Person". The parties hereby agree
to amend the definition of "Acquiring Person" in Section 1(a) of the Amended and
Restated Rights Agreement to add the following sentence to the end of the
current definition:
"Notwithstanding the foregoing, Xxxxx Investment Associates VI L.P., a
Delaware limited partnership, KEP VI LLC, a Delaware limited liability company,
Xxxxx & Co., L.P., a Delaware limited partnership, UC Acquisition Sub, Inc.
("Merger Sub"), a Delaware corporation, any stockholder of Merger Sub and
Affiliates and Associates of any of the foregoing shall not be deemed,
individually or collectively, to be an Acquiring Person by virtue of the
execution, delivery and performance of the Agreement and Plan of Merger (the
"Merger Agreement"), dated as of May 24, 1999, between the Company and Merger
Sub or any of the transactions contemplated thereby, including consummation of
the Merger."
2. Amendment to Definition of "Distribution Date". The parties hereby agree
to amend the definition of "Distribution Date" in Section 1(k) of the Amended
and Restated Rights Agreement to add the following sentence to the end of the
current definition:
"Notwithstanding anything in this Agreement to the contrary, a Distribution
Date shall not be deemed to have occurred as the result of (i) the execution of
the Merger Agreement, (ii) the announcement of the Merger or any of the other
transactions contemplated in the Merger Agreement or (iii) the consummation of
the Merger."
3. Amendment to Definition of "Final Expiration Date". The parties hereby
agree to amend, and restate in its entirety, the definition of "Final Expiration
Date" in Section 1(o) of the Amended and Restated Rights Agreement as follows:
"(o) "Final Expiration Date" shall mean the earlier of (i) Close of
Business on March 16, 2004 and (ii) the time immediately prior to filing of a
Certificate of Merger with the Secretary of State of the State of Delaware,
pursuant to the Merger Agreement."
4. Amendment to Definition of "Stock Acquisition Date". The parties hereby
agree to amend the definition of "Stock Acquisition Date" in Section 1(v) of the
Amended and Restated Rights Agreement to add the following sentence to the end
of the current definition:
"Notwithstanding anything in this Agreement to the contrary, a Stock
Acquisition Date shall not be deemed to have occurred as the result of (i) the
execution of the Merger Agreement, (ii) the announcement of the Merger or any of
the other transactions contemplated in the Merger Agreement or (iii) the
consummation of the Merger."
5. Amendment of Section 30. The parties hereby agree to amend Section 30 of
the Amended and Restated Rights Agreement to add the following sentence at the
end thereof:
"Nothing in this Agreement shall be construed to give any holder of Rights
or any other Person any legal or equitable rights, remedies or claims under this
Agreement by virtue of (i) the execution of the Merger Agreement, (ii) the
announcement of the Merger or any of the other transactions contemplated in the
Merger Agreement or (iii) the consummation of the Merger."
6. Miscellaneous.
(a) Except as otherwise expressly provided, or unless the context otherwise
requires, all capitalized terms used herein have the meanings assigned to them
in the Amended and Restated Rights Agreement.
(b) Each party hereto waives any requirement under the Amended and Restated
Rights Agreement that any additional notice be provided to it pertaining to the
matters covered by this Amendment.
(c) This Amendment may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one end and the same document.
(d) Except as expressly provided herein, the Amended and Restated Rights
Agreement is not being amended, modified or supplemented in any respect, and it
remains in full force and effect.
(e) 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 made and to be
performed entirely within such State.
(f) This Amendment shall be deemed effective as of the date first written
above, as if executed on such date.
IN WITNESS WHEREOF, the parties have caused this Amendment to Amended and
Restated Rights Agreement to be duly executed as of the day and year first
written above.
Attest: Unilab Corporation
By: /s/ Xxxx Xxxx By: /s/ Xxxxx Xxxxxx
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Name: Xxxx Xxxx Name: Xxxxx Xxxxxx
Title: Secretary Title: Chief Executive Officer
Attest: XXXXX XXXXXX SHAREHOLDER SERVICES
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx Name: Xxxx Xxxxxxxx
Title: Relationship Manager Title: Relationship Manager
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Notary Public, State of New York
No. 01HE5031478
Qualified in New York County
Commission Expires Aug. 1, 2000
