Common use of Specified Exceptions Clause in Contracts

Specified Exceptions. Notwithstanding anything in this Agreement to the contrary, (i) no Person shall become an Acquiring Person or shall be deemed to have become an Acquiring Person, (ii) no Person shall be deemed to have acquired Beneficial Ownership of any securities of the Company, (iii) no Distribution Date or consolidation or merger shall occur or be deemed to have occurred, and (iv) no other event or occurrence resulting in a triggering of rights of holders of Rights, or of obligations of the Company (including, without limitation, any obligation to issue Rights Certificates or to provide notice to holders of Rights), under the Rights Agreement shall occur or be deemed to have occurred, in each case by reason of (A) the approval, adoption, execution, delivery or performance or, if approved by the Board of Directors of the Company, amendment, modification or waiver of the Agreement and Plan of Merger and Reorganization by and among the Company, Matrix Merger Sub, Inc., and MedAvail, Inc., dated as of June 30, 2020 (as may be amended, restated, supplemented or otherwise modified from time to time, the “Merger Agreement”), (B) the approval, execution, delivery or performance or, if approved by the Board of Directors of the Company, amendment, modification or waiver of the Voting Agreement (as defined in the Merger Agreement), (C) the consummation of the Merger (as defined in the Merger Agreement) or any other transaction contemplated by the Merger Agreement or the Voting Agreement or (D) the public announcement of any of the foregoing.” 2. Section 7(a) of the Agreement, as amended by the First Amendment, is hereby further amended and restated as follows: “Subject to Section 7(e) hereof, the registered holder of any Rights Certificate may exercise the Rights evidenced thereby (except as otherwise provided herein including, without limitation, in the restrictions on exercisability set forth in Sections 9(c), 11(a)(iii) and 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of the Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each one one-thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the case may be) as to which the Rights are exercised, prior to the earliest of: (i) immediately prior to the Effective Time (as that term is defined in the Merger Agreement); (ii) the Close of Business on February 21, 2021 (the “Final Expiration Date”); (iii) the time at which the Rights are redeemed pursuant to Section 23 hereof (the "Redemption Date"); (iv) the time at which the Rights are exchanged pursuant to Section 24 hereof (the "Exchange Date"); or (v) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in Section 13(f) at which time the Rights are terminated; (the earliest of (i), (ii), (iii), (iv) and (v) being herein referred to as the “Expiration Date”).” 3. This Amendment is effective as of the Effective Date. 4. The undersigned representative of the Company hereby certifies in such capacity to the Rights Agent that he is the duly elected and qualified Chief Executive Officer of the Company and that this Amendment complies with the terms of Section 27 of the Agreement. 5. In the event of any inconsistency or conflict between the terms and provisions of this Second Amendment and those contained in the Agreement or First Amendment to which this Second Amendment refers, the terms and provisions of this Second Amendment shall govern and be binding. 6. Subject to the terms and provisions of this Second Amendment, the Agreement and First Amendment are unaffected and shall continue in full force and effect in accordance with their terms. 7. This Second Amendment may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same Second Amendment. The counterparts of this Second Amendment may be executed and delivered by facsimile or other electronic signature (including portable document format).

Specified Exceptions. Notwithstanding anything in this Agreement to the contrary, (i) no Person shall become an Acquiring Person or shall be deemed to have become an Acquiring Person, (ii) no Person shall be deemed to have acquired Beneficial Ownership of any securities Distribution Date, Stock Acquisition Date, Triggering Event, event described in Section 11(a)(ii) of the Company, (iii) no Distribution Date Agreement or consolidation or merger event described in Section 13 of the Agreement shall occur or be deemed to have occurred, occurred and (iviii) no other event or occurrence resulting in a triggering of rights of holders of Rights, or of obligations of the Company (including, without limitation, any obligation to issue Rights Certificates or to provide notice to holders of Rights), under the Rights Agreement shall occur or be deemed to have occurred, in each case by reason of (A) the approval, adoption, execution, delivery or performance or, if approved by the Board of Directors of the Company, amendment, modification or waiver of the Agreement and Plan of Merger and Reorganization by and among the Company, Matrix Merger Sub, Inc., and MedAvail, Inc.Merger, dated as of June 30May 1, 2020 2012 (as may be amended, restated, supplemented or otherwise modified amended from time to time, the “Merger Agreement”), by and among the Company, LD Commodities Sugar Holdings LLC, a Delaware limited liability company (“Parent”), and ▇▇▇▇▇ ▇▇▇▇▇▇▇ Commodities Subsidiary Inc., a Texas corporation and wholly owned subsidiary of Parent, (B) the approval, execution, execution and delivery or performance or, if approved by the Board of Directors Company of the CompanyMerger Agreement or any amendment thereto, amendment, modification or waiver (C) the execution and delivery of the Voting any Stockholder Tender Agreement (as defined in the Merger Agreement), (CD) the consummation transactions contemplated by the Merger Agreement, including, without limitation, the Offer, the purchase of shares of Common Stock pursuant to the Offer, the issuance and purchase of Top-Up Option Shares and the Merger (as each such term is defined in the Merger Agreement), (E) or any other transaction the transactions contemplated by the Merger Agreement or the Voting any Stockholder Tender Agreement or (DF) the public announcement of any of the foregoing.” 2. Section 7(a) of the Agreement, as amended by the First Amendment, is hereby further amended and restated as follows: “Subject to Section 7(e) hereof, the registered holder of any Rights Certificate may exercise the Rights evidenced thereby (except as otherwise provided herein including, without limitation, in the restrictions on exercisability set forth in Sections 9(c), 11(a)(iii) and 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of the Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each one one-thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the case may be) as to which the Rights are exercised, prior to the earliest of: (i) immediately prior to the Effective Time (as that term is defined in the Merger Agreement); (ii) the Close of Business on February 21, 2021 (the “Final Expiration Date”); (iii) the time at which the Rights are redeemed pursuant to Section 23 hereof (the "Redemption Date"); (iv) the time at which the Rights are exchanged pursuant to Section 24 hereof (the "Exchange Date"); or (v) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in Section 13(f) at which time the Rights are terminated; (the earliest of (i), (ii), (iii), (iv) and (v) being herein referred to as the B. The definition “Expiration Date”).” 3. This Amendment ” is effective hereby amended to read in its entirety as of the Effective Date. 4. The undersigned representative of the Company hereby certifies in such capacity to the Rights Agent that he is the duly elected and qualified Chief Executive Officer of the Company and that this Amendment complies with the terms of Section 27 of the Agreement. 5. In the event of any inconsistency or conflict between the terms and provisions of this Second Amendment and those contained in the Agreement or First Amendment to which this Second Amendment refers, the terms and provisions of this Second Amendment shall govern and be binding. 6. Subject to the terms and provisions of this Second Amendment, the Agreement and First Amendment are unaffected and shall continue in full force and effect in accordance with their terms. 7. This Second Amendment may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same Second Amendment. The counterparts of this Second Amendment may be executed and delivered by facsimile or other electronic signature (including portable document format).follows: