AMENDMENT NO. 1 TO
PREFERRED STOCK RIGHTS AGREEMENT
This Amendment No. 1 dated as of February 18, 2003 (this "Amendment")
to the to Preferred Stock Rights Agreement dated as of October 24, 2001 (the
"Rights Agreement") between Third Wave Technologies, Inc., a Delaware
corporation (the "Company"), and EquiServe Trust Company N.A., a national
banking association (the "Rights Agent").
WHEREAS, the Board of Directors of the Company, at a meeting held on
December 13, 2002 has determined that it is advisable and in the best interest
of the Company to amend the Rights Agreement between the Company and the Rights
Agent as set forth below;
WHEREAS, at the date of this Amendment, a Distribution Date has not
occurred and there is no Acquiring Person; and
WHEREAS, in compliance with Section 27 of the Rights Agreement, the
Company and the Rights Agent are willing to amend the Rights Agreement as
hereinafter set forth and the Company and the Rights Agent have each executed
and delivered this Amendment.
NOW, THEREFORE, in consideration of the Rights Agreement and the
premises and mutual agreements herein set forth, the parties hereto agree as
follows:
SECTION 1. AMENDMENT OF SECTION 1(a) OF THE RIGHTS AGREEMENT. (a)
Section 1(a) of the Rights Agreement is hereby amended to read in its entirety
as follows:
"(a) "ACQUIRING PERSON" shall mean (i) any Person, other than
the State of Wisconsin Investment Board ("SWIB"), who or which, together
with all Affiliates and Associates of such Person, shall be the Beneficial
Owner of 15% or more of the Common Shares then outstanding, or (ii) SWIB on
such date as it, together with all of its Affiliates and Associates, shall
be the Beneficial Owner of 16.5% or more of the Common Shares then
outstanding, but shall not include the Company, 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. 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 15% or more (16.5% or more in the case of SWIB) of the Common
Shares of the Company then outstanding; provided, however, that if a Person
shall become the Beneficial Owner of 15% or more (16.5% or more in the case
of SWIB) 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 15% or more (16.5% or more in the case of
SWIB) of the Common Shares of the Company then outstanding. Notwithstanding
the foregoing, (i) if the Company's Board of Directors 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 Person"
for any purposes of this Agreement; and (ii) if, as of the date hereof, any
Person is the Beneficial Owner of 15% 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 15% or more
of the Common Shares then outstanding."
SECTION 2. AMENDMENT OF SECTION 3(c) OF THE RIGHTS AGREEMENT. Section
3(c) of the Rights Agreement is hereby amended to add the words "AS AMENDED AS
OF FEBRUARY 18, 2003" after the words "RIGHTS AGREEMENT DATED AS OF OCTOBER 24,
2001".
SECTION 3. AMENDMENT OF SECTION 21 OF THE RIGHTS AGREEMENT. Section 21
of the Rights Agreement is hereby amended by adding thereto, after the end of
the first sentence of Section 21, the following: "If the Rights Agent shall no
longer serve as the transfer agent for the Common Shares, the Rights Agent shall
be deemed to have resigned as such effective as of the date on which the Rights
Agent no longer serves as such transfer agent."
SECTION 4. AMENDMENT OF SECTION 26 OF THE RIGHTS AGREEMENT. Section 26
of the Rights Agreement is hereby amended (a) to change the Attention: line
under the address to which notices or demands to be given to the Rights Agent
must be sent to "Client Administration" and (b) to change the firm and address
to which copies of notices or demands to be given to the Company must be sent
to:
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Sidley Xxxxxx Xxxxx & Xxxx
Bank One Plaza
00 X. Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxxx
SECTION 5. AMENDMENT TO ADD SECTION 35 TO THE RIGHTS AGREEMENT. The
Rights Agreement is further amended to add a new Section 35 to the Rights
Agreement, such Section to read in its entirety as follows:
"SECTION 35. FORCE MAJEURE. Notwithstanding anything to the contrary
contained herein, neither the Company nor the Rights Agent shall be liable
for any delays or failures in performance resulting from acts beyond its
reasonable control including, without limitation, acts of God, terrorist
acts, shortage of supply, breakdowns or malfunctions, interruptions or
malfunction of computer facilities, or loss of data due to power failures
or mechanical difficulties with information storage or retrieval systems,
labor difficulties, war or civil unrest."
SECTION 6. AMENDMENT OF FORM OF RIGHTS CERTIFICATE. The first paragraph
of the form of Rights Certificate attached to the Rights Agreement as Exhibit B
is hereby amended to add the words "as amended as of February 18, 2003" after
the words "Rights Agreement dated as of October 24, 2001,".
SECTION 7. AMENDMENT OF SUMMARY OF RIGHTS. (a) The paragraph opposite
the caption "Distribution Date:" in the Summary of Rights attached to the Rights
Agreement as Exhibit C is hereby amended to read in its entirety as follows;
"Rights will separate from the Common Stock and become exercisable
following (a) the tenth day (or such later date as may be determined by a
majority of the Directors) after a person or group acquires beneficial
ownership of 15% or more (16.5% or more in the case of the State of
Wisconsin Investment Board ("SWIB")) of the Company's Common Stock or (b)
the tenth business day (or such later date as may be determined by a
majority of the Directors) after a person or group announces a tender or
exchange offer, the consummation of which would result in ownership by a
person or group of 15% or more (16.5% or more in the case of SWIB) of the
Company's Common Stock."
(b) The Summary of Rights is further amended to add the parenthetical
"(16.5% in the case of SWIB)" after each reference to "15% or more" in each of
the paragraphs opposite the captions "Flip-In:", "Exchange Provision:" and
"Redemption of the Rights:".
SECTION 8. INTERPRETATION.
(a) Unless otherwise defined herein, capitalized terms used herein
shall have the meanings given to such terms in the Rights Agreement.
(b) Except as otherwise expressly set forth herein, this Amendment
shall not by implication or otherwise alter, modify or in any other manner
affect any of the terms, conditions,
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obligations, covenants or agreements contained in the Rights Agreement, all of
which are hereby ratified and confirmed in all respects and shall continue in
full force and effect.
(c) Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute part of this Amendment
for any other purpose.
SECTION 9. EXECUTION IN COUNTERPARTS. This Amendment may be executed in
any number of counterparts, each of which when so executed and delivered shall
be deemed to be an original and all of which taken together shall constitute one
and the same instrument.
SECTION 10. GOVERNING LAW. 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.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first above written.
THIRD WAVE TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Vice President, General Counsel &
Secretary
EQUISERVE TRUST COMPANY N.A.
By:________________________________
Name:
Title:
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