Exhibit 4.1
AMENDMENT NO. 3 TO THE RIGHTS AGREEMENT
THIS AMENDMENT NO. 3 TO THE RIGHTS AGREEMENT, dated as of August 8, 2005,
is made between LabOne, Inc., a Missouri corporation (the "Company"), and
American Stock Transfer & Trust Company (the "Rights Agent").
W I T N E S S E T H
WHEREAS, on February 11, 2000, the Company and the Rights Agent entered
into a Rights Agreement (as amended, the "Rights Agreement") to provide certain
Rights to holders of Common Stock;
WHEREAS, on August 31, 2001, the Company and the Rights Agent entered into
Amendment No. 1 to the Rights Agreement, and on April 20, 2005, the Company and
the Rights Agent entered into Amendment No. 2 to the Rights Agreement;
WHEREAS, the Company intends to enter into an Agreement and Plan of Merger
(the "Merger Agreement") with Quest Diagnostics Incorporated ("Quest") and
Fountain, Inc., a Missouri corporation and wholly-owned subsidiary of Quest,
which provides for, among other things, the merger of Merger Sub with and into
the Company (the "Merger"), subject to shareholder and regulatory approval and
other terms and conditions;
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company and
the Rights Agent may from time to time supplement or amend the Rights Agreement
in accordance with the provisions of Section 27 thereof; and
WHEREAS, the Board of Directors of the Company has determined that it is
in the best interests of the Company and its shareholders and consistent with
the objectives of the Board of Directors in adopting the Rights Agreement to
amend the Rights Agreement to except the Merger Agreement and the actions and
transactions contemplated thereby and effected in connection therewith from the
Rights Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
1. Subsection (a) of Section 1 is hereby amended by adding the following at
the end of subsection (a) of Section 1:
Notwithstanding the foregoing or any provision to the contrary in
this Agreement, none of Quest Diagnostics Incorporated, a
Delaware corporation ("Quest") or any of its Subsidiaries,
Affiliates or Associates, shall be deemed to be an Acquiring
Person by virtue of the approval, execution, delivery or
performance of the Agreement and Plan of Merger, dated as of
August 8, 2005 (as the same may be amended from time to time, the
"Merger Agreement"), by and among Quest, Fountain, Inc., a
Missouri corporation and wholly-owned subsidiary of Quest
("Merger Sub") and the Company, or the
consummation of any of the transactions contemplated by the
Merger Agreement, including, without limitation, the merger of
Merger Sub with and into the Company (the "Merger") or the
announcement of any of the foregoing transactions.
2. The definition of "Section 13 Event" in Section 1(ii) of the Rights
Agreement is hereby amended by adding the following sentence at the end thereof:
Notwithstanding anything in this Agreement to the contrary, a
Section 13 Event shall not be deemed to have occurred as the
result of the approval, execution, delivery or performance of the
Merger Agreement or the consummation of the transactions
contemplated by the Merger Agreement, including without
limitation, the Merger, or the announcement of any of the
foregoing transactions.
3. The definition of "Stock Acquisition Date" in Section 1(kk) of the Rights
Agreement is hereby amended by adding the following sentence at the end thereof:
Notwithstanding anything in this Agreement to the contrary, a
Stock Acquisition Date shall not be deemed to have occurred as a
result of the approval, execution, delivery or performance of the
Merger Agreement or the consummation of the transactions
contemplated by the Merger Agreement, including without
limitation, the Merger, or the announcement of any of the
foregoing transactions.
4. The definition of "Triggering Event" in Section 1(pp) of the Rights
Agreement is hereby amended by adding the following sentence at the end thereof:
Notwithstanding anything in this Agreement to the contrary, a
Triggering Event shall not be deemed to have occurred as the
result of the approval, execution, delivery or performance of the
Merger Agreement or the consummation of the transactions
contemplated by the Merger Agreement, including without
limitation, the Merger, or the announcement of any of the
foregoing transactions.
5. Section 3(a) of the Rights Agreement is hereby amended by adding 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 as a
result of the approval, execution, delivery or performance of the
Merger Agreement or the consummation of the transactions
contemplated by the Merger Agreement, including without
limitation, the Merger, or the announcement of any of the
foregoing transactions."
6. Section 11 of the Rights Agreement is hereby amended by adding the
following sentence at the end of Section 11(a)(ii):
Notwithstanding anything in this Agreement to the contrary, a
Section 11(a)(ii) Event shall not be deemed to have occurred as a
result of the approval, execution, delivery or performance of the
Merger Agreement or the consummation of the transactions
contemplated by the Merger Agreement, including without
limitation, the Merger, or the announcement of any of the
foregoing transactions.
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7. Section 30 of the Rights Agreement is hereby amended to add the following
sentence at the end thereof:
Nothing in this Agreement shall be construed to give any holder
of Rights (and, prior to the Distribution Date, registered
holders of the Common Stock) or any other Person any legal or
equitable rights, remedies, or claims under this Agreement by
virtue of the approval, execution, delivery or performance of the
Merger Agreement or the consummation of the transactions
contemplated by the Merger Agreement, including without
limitation, the Merger, or the announcement of any of the
foregoing transactions.
8. A new Section 35 of the Rights Agreement is hereby added, reading in its
entirety as follows:
This Agreement and the Rights established hereby will terminate
in all respects immediately prior to the Effective Time (as
defined in the Merger Agreement).
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3 to
the Rights Agreement to be duly executed as of the day and year first above
written.
LabOne, Inc.
By:/s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title: Executive Vice President and
General Counsel
American Stock Transfer & Trust Company
By:
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Name:
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Title:
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