AMENDMENT TO RIGHTS AGREEMENT BETWEEN SYNTHEMED, INC. AND AMERICAN STOCK TRANSFER & TRUST COMPANY
AMENDMENT
TO RIGHTS AGREEMENT
BETWEEN
SYNTHEMED, INC. AND
AMERICAN
STOCK TRANSFER & TRUST COMPANY
THIS AMENDMENT TO RIGHTS
AGREEMENT (the “Amendment”)
is made as of the 22nd day of December 2010, by and between SyntheMed, Inc., a Delaware corporation (the
“Company”),
and American Stock Transfer & Trust Company, LLC, a New York limited
liability company (the “Rights
Agent”).
WHEREAS, the Company is
entering into an Agreement and Plan of Merger (as the same may be amended from
time to time, the “Merger Agreement”) with Pathfinder, LLC, a Massachusetts limited
liability company (“Pathfinder”),
pursuant to which Merger Sub (as such term is defined in the Merger Agreement),
a Massachusetts corporation and wholly-owned subsidiary of the Company (“Merger
Sub”), will merge with and into Pathfinder, and Pathfinder will survive
as a wholly-owned subsidiary of the Company, and the former members of
Pathfinder will receive shares of common stock of the Company representing in
the aggregate greater than a majority of the number of outstanding shares of
common stock of the Company immediately after the transaction;
WHEREAS, the Company and the
Rights Agent are parties to that certain Rights Agreement, dated as of May 20,
2008 (the “Rights
Agreement”);
WHEREAS, the Company desires
to amend the Rights Agreement in connection with the execution and delivery of
the Merger Agreement; and
WHEREAS, the Board of
Directors of the Company has approved this Amendment and authorized its
appropriate officers to execute and deliver the same to the Rights
Agent.
NOW, THEREFORE, in accordance
with the procedures for amendment of the Rights Agreement set forth in
Section 26 thereof, and in consideration of the foregoing and the mutual
agreements herein set forth, the parties hereby agree as follows:
1. Capitalized terms that are
not otherwise defined herein shall have the meanings ascribed to them in the
Rights Agreement.
2. The definition of
“Acquiring Person” set forth in Section 1.1 of the Rights Agreement is
amended by adding the following sentence to the end of that
section:
Notwithstanding the foregoing, no
Person shall be or become an Acquiring Person by reason of (i) the
approval, execution, delivery or performance of the Agreement and Plan of
Merger, dated as of December 22, 2010, by and between the Company and
Pathfinder, LLC, a Massachusetts limited liability company (“Pathfinder”),
(as the same may be amended from time to time, the “Merger
Agreement”) or any amendment thereto or contract or instrument entered
into by the Company in connection therewith, (ii) the consummation of the
Merger (as such term is defined in the Merger Agreement), (iii) the issuance of
Common Shares (or assumption of stock options) pursuant to the Merger Agreement,
(iv) the announcement of the Merger Agreement or Merger or (v) the
consummation of any other transaction contemplated by the Merger
Agreement.
3. The definition of “Shares
Acquisition Date” in Section l.9 of the Rights Agreement is hereby
amended by adding the following sentence to the end of that
section:
Notwithstanding
anything else set forth in this Agreement, a Shares Acquisition Date shall not
be deemed to have occurred by reason of (i) the approval, execution,
delivery or performance of the Merger Agreement or any amendment thereto or
contract or instrument entered into by the Company in connection therewith,
(ii) the consummation of the Merger, (iii) the issuance of Common Shares
(or assumption of options) pursuant to the Merger Agreement, (iv) the
announcement of the Merger Agreement or Merger or (v) the consummation of
any other transaction contemplated by the Merger Agreement.
4. Section 3.1 of the
Rights Agreement is hereby amended by adding the following sentence to the end
of that section:
Notwithstanding
anything else set forth in this Agreement, no Distribution Date shall be deemed
to have occurred by reason of (i) the approval, execution, delivery or
performance of the Merger Agreement or any amendment thereto or contract or
instrument entered into by the Company in connection therewith, (ii) the
consummation of the Merger, (iii) the issuance of Common Shares (or assumption
of options) pursuant to the Merger Agreement, (iv) the announcement of the
Merger Agreement or Merger or (v) the consummation of any other transaction
contemplated by the Merger Agreement.
5. Section 7.1(i) of the
Rights Agreement is hereby amended to delete the phrase “(the “Final Expiration
Date”)” so that it shall read as follows:
(i) the Close of Business on June 2,
2018,
6. Section 7.1 is further
amended by deleting the word “or” at the end of Section 7.1(iii) and by adding
the following clause at the end of Section 7.1:
, or (v) the moment in time immediately
prior to the Effective Time (as such term is defined in the Merger Agreement)
(the earliest to occur of the events described in clauses (i) and (v) of this
section shall be referred to as the “Final Expiration Date.”).
7. Section 11.1.2 is
hereby amended by adding the following sentence to the end of that
section:
Notwithstanding anything else set
forth in this Agreement, no event requiring an adjustment under this
Section 11.1.2 shall be deemed to have occurred by reason of (i) the
approval, execution, delivery or performance of the Merger Agreement or any
amendment thereto or contract or instrument entered into by the Company in
connection therewith, (ii) the consummation of the Merger, (iii) the
issuance of Common Shares (or assumption of options) pursuant to the Merger
Agreement, (iv) the announcement of the Merger Agreement or Merger or
(v) the consummation of any other transaction contemplated by the Merger
Agreement.
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8. Section 13.1 is hereby
amended by adding the following sentence immediately after the first sentence
thereof:
Notwithstanding
anything in this Agreement to the contrary, none of the events described in
clauses (A) through (C) of the first sentence of Section 13.1 shall be deemed to
have occurred by reason of (i) the approval, execution, delivery or
performance of the Merger Agreement or any amendment thereto or contract or
instrument entered into by the Company in connection therewith, (ii) the
consummation of the Merger, (iii) the issuance of Common Shares (or assumption
of options) pursuant to the Merger Agreement, (iv) the announcement of the
Merger Agreement or Merger or (v) the consummation of any other transaction
contemplated by the Merger Agreement.
9. The Rights Agreement, as
amended by this Amendment, shall remain in full force and effect in accordance
with its terms.
10. All the covenants and
provisions of this Amendment by or for the benefit of the Company or the Rights
Agent shall bind and inure to the benefit of their respective successors and
assigns hereunder.
11. Nothing in this Amendment
shall be construed to give to any person or corporation other than the Company,
the Rights Agent and the registered holders of the Right Certificates (and,
prior to the Distribution Date, the Common Shares) any legal or equitable right,
remedy or claim under this Amendment; but this Amendment shall be for the sole
and exclusive benefit of the Company, the Rights Agent and the registered
holders of the Right Certificates (and, prior to the Distribution Date, the
Common Shares).
12. 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
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
13. 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.
14. This Amendment may be
executed in any number of counterparts and each of such counterparts shall for
all purposes be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument.
15. The Company hereby
certifies to the Rights Agent that this Amendment is in compliance with
Section 26 of the Rights Agreement.
[Signature
Pages Follow]
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IN WITNESS WHEREOF, the
parties herein have caused this Amendment to be duly executed and attested, all
as of the date and year first above written.
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By:
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/s/
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Name:
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Title:
CEO
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AMERICAN
STOCK TRANSFER & TRUST COMPANY
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By:
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/s/
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Name:
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▇. ▇▇▇▇▇▇
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Title:
Vice President
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Attest:
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/s/
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Name:
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Title:
Assistant Secretary
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AMENDMENT
TO RIGHTS AGREEMENT
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