EXHIBIT 4.3
FIRST AMENDMENT TO RIGHTS AGREEMENT
This FIRST AMENDMENT TO RIGHTS AGREEMENT (this "Amendment") is
entered into as of October 9, 2002 between Gen-Probe Incorporated, a Delaware
corporation (the "Company"), and Mellon Investor Services LLC, a New Jersey
limited liability company, as Rights Agent (the "Rights Agent"). Capitalized
terms used but not otherwise defined herein shall have the meanings ascribed to
them in the Rights Agreement (as defined below).
WHEREAS, the Company and the Rights Agent previously entered
into the Rights Agreement dated as of September 16, 2002 between the Company and
the Rights Agent (the "Rights Agreement"); and
WHEREAS, pursuant to Section 26 of the Rights Agreement, the
Company and the Rights Agent may from time to time supplement or amend any
provision of the Rights Agreement in accordance with the terms of such Section
26.
NOW, THEREFORE, in consideration of the foregoing promises and
mutual agreements set forth in this Amendment, the parties hereby amend the
Rights Agreement as follows:
1. Exhibit C (the "Summary of Rights") to the Rights Agreement
is hereby replaced in its entirety by Exhibit C attached hereto.
2. This Amendment may be executed in one or more counterparts,
each of which when executed shall be deemed to be an original, including
counterparts transmitted by facsimile, but all of which taken together shall
constitute one and the same agreement.
3. 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.
4. On and after the date hereof, each reference in the Rights
Agreement to the "Agreement" shall mean the Rights Agreement as amended hereby.
Except as specifically amended above, the Rights Agreement shall remain in full
force and effect and is hereby ratified and confirmed. The execution, delivery
and effectiveness of this Amendment shall not, except as expressly provided
herein, operate as a waiver of any right, power or remedy of any party hereto,
nor constitute a waiver of any provision of the Rights Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Amendment as
of the date first written above.
GEN-PROBE INCORPORATED
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
R. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President and General
Counsel
MELLON INVESTOR SERVICES LLC,
as Rights Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Assistant Vice President
2
Exhibit C
SUMMARY OF RIGHTS TO PURCHASE PREFERRED SHARES
GEN-PROBE INCORPORATED
DISTRIBUTION OF RIGHTS: On September 16, 2002, the Board of Directors
of Gen-Probe Incorporated (the "Company")
declared a dividend of one preferred share
purchase right (a "Right") for each share of
common stock, $.0001 par value (the "Common
Shares"), of the Company outstanding at the
close of business on September 26, 2002 (the
"Record Date"). As long as the Rights are
attached to the Common Shares, the Company will
issue one Right (subject to adjustment) with
each new Common Share so that all such shares
will have attached Rights. The Rights are not
exercisable until the Distribution Date, which
is described below.
RIGHTS AGREEMENT: The description and terms of the Rights are set
forth in a Rights Agreement, dated as of
September 16, 2002, as the same may be amended
from time to time (the "Agreement"), between
the Company and Mellon Investor Services LLC, a
New Jersey limited liability company, as Rights
Agent (the "Rights Agent"). Capitalized terms
used herein and not otherwise defined herein
shall have the meaning given to such terms in
the Agreement.
TRANSFER OF RIGHTS; RIGHTS
CERTIFICATES: The Agreement provides that until the
Distribution Date or earlier redemption,
exchange, termination, or expiration of the
Rights, the Rights will be evidenced, with
respect to any of the Common Share certificates
outstanding as of the Record Date, by such
Common Share certificate together with a copy
of this Summary of Rights and that the Rights
will be transferred with and only with the
Common Shares. Until the Distribution Date (or
earlier redemption or expiration of the
Rights), new Common Share certificates issued
after the Close of Business on the Record Date
will contain a notation incorporating the
Agreement by reference. Until the Distribution
Date (or earlier redemption, exchange,
termination or expiration of the Rights), the
surrender for transfer of any certificates for
Common Shares, with or without such notation or
a copy of this Summary of Rights, will also
constitute the transfer of the Rights
associated with the Common Shares represented
by such certificate. As soon as practicable
following the Distribution Date, separate
certificates evidencing the Rights ("Right
Certificates") will be mailed to holders of
record of the Common Shares as of the Close of
Business on the Distribution Date and such
separate Right Certificates alone will evidence
the Rights.
DISTRIBUTION DATE: Rights will separate from the Common Shares and
become exercisable upon the earlier to occur of
(i) ten (10) days following a public
announcement that a person or group of
Affiliated or Associated persons (other than an
Existing Holder (as defined below), unless and
until such time as the Existing Holder becomes
the beneficial owner of an additional 2% or
more of the Common Shares) has acquired, or
obtained the right to acquire, beneficial
ownership of 15% or more of the Common Shares
(an "Acquiring Person") or (ii) ten (10)
business days (or such later date as may be
determined by action of the Board of Directors
prior to such time as any person or group of
Affiliated persons becomes an
Acquiring Person) following the commencement or
announcement of an intention to make a tender
offer or exchange offer the consummation of
which would result in the beneficial ownership
by a person or group of 15% or more of the
Common Shares (the earlier of (i) and (ii)
being called the "Distribution Date").
"Existing Holder" means Capital Research and
Management Company, together with all of its
Affiliates and Associates. As described in the
Rights Agreement, Rights which are held by or
have been held by an Acquiring Person or
Associates or Affiliates thereof and certain
transferees thereof will become null and void
and will no longer be transferable.
PREFERRED STOCK PURCHASABLE
UPON EXERCISE OF RIGHTS: When exercisable, each Right will entitle the
registered holder to purchase from the Company
one one-hundredth of a share of Series A Junior
Participating Preferred Stock (the "Preferred
Shares") at a price of $100.00 per one
one-hundredth of a Preferred Share, subject to
adjustment (the "Purchase Price"), unless the
"Flip-In" or "Flip-Over" provisions described
below are applicable. Because of the nature of
the Preferred Share's dividend, liquidation and
voting rights, the value of one one-hundredth
of a Preferred Share purchasable upon exercise
of each Right should approximate the value of
one Common Share. For more information about
the Preferred Shares, see "Terms of Preferred
Shares" below.
FLIP-IN: In the event that a Person becomes an Acquiring
Person or if the Company were the surviving
corporation in a merger with an Acquiring
Person or any Affiliate or Associate of an
Acquiring Person and the Common Shares were not
changed or exchanged, each holder of a Right,
other than Rights that are or were acquired or
beneficially owned by the Acquiring Person
(which Rights will thereafter be null and
void), will thereafter have the right to
receive, upon exercise, Common Shares having a
market value of two times the then-current
Purchase Price of the Right.
FLIP-OVER: In the event that, after a Person has become an
Acquiring Person, the Company were acquired in
a merger or other business combination
transaction or more than 50% of its assets or
earning power were sold, proper provision shall
be made so that each holder of a Right shall
thereafter have the right to receive, upon the
exercise thereof at the then current Purchase
Price of the Right, common stock of the
acquiring company having a market value at the
time of such transaction equal to two times the
then current Purchase Price of the Right.
EXCHANGE PROVISION: At any time after a Person becomes an Acquiring
Person and prior to the acquisition of the
Company in a merger or other business
combination transaction, the sale of more than
50% of the Company's assets or earning power or
the acquisition by such Acquiring Person of 50%
or more of the outstanding Common Shares, the
Board of Directors may cause the Company to
exchange the Rights (other than Rights owned by
an Acquiring Person which will have become null
and void), in whole or in part, for Common
Shares
2
equal to the Spread (as defined in the
Agreement), subject to adjustment.
REDEMPTION OF THE RIGHTS: The Rights may be redeemed in whole, but not in
part, at a price of $.01 per Right (the
"Redemption Price") by the Board of Directors
at any time prior to the time that a person
becomes an Acquiring Person. The redemption of
the Rights may be made effective at such time,
on such basis and with such conditions as the
Board of Directors in its sole discretion may
establish. Immediately upon any redemption of
the Rights, the right to exercise the Rights
will terminate and the only right of the
holders of Rights will be to receive the
Redemption Price.
EXPIRATION OF THE RIGHTS: The Rights will expire on September 26, 2012,
subject to the Company's right to extend such
date (the "Final Expiration Date"), unless
earlier redeemed or exchanged by the Company or
terminated.
AMENDMENT OF TERMS OF THE
RIGHTS: Any of the provisions of the Agreement may be
amended by the Board of Directors of the
Company for so long as the Rights are then
redeemable, and after the Rights are no longer
redeemable, the Company may amend or supplement
the Agreement in any manner that does not
adversely affect the interests of the holders
of the Rights.
VOTING AND OTHER RIGHTS: Until a Right is exercised, the holder thereof,
as such, will have no rights as a stockholder
of the Company beyond those as an existing
stockholder, including, without limitation, the
right to vote or to receive dividends.
ANTI-DILUTION PROVISIONS: The Purchase Price payable, and the number of
Preferred Shares or other securities or
property issuable, upon exercise of the Rights
are subject to adjustment from time to time to
prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or
reclassification of the Preferred Shares, (ii)
upon the grant to holders of the Preferred
Shares of certain rights or warrants to
subscribe for or purchase Preferred Shares or
convertible securities at less than the current
market price of the Preferred Shares or (iii)
upon the distribution to holders of the
Preferred Shares of evidences of indebtedness,
cash, securities or assets (excluding regular
periodic cash dividends at a rate not in excess
of 125% of the rate of the last regular
periodic cash dividend previously paid or, in
case regular periodic cash dividends have not
previously been paid, at a rate not in excess
of 50% of the average net income per share of
the Company for the four quarters ended
immediately prior to the payment of such
dividend, or dividends payable in Preferred
Shares (which dividends will be subject to the
adjustment described in clause (i) above)) or
of subscription rights or warrants (other than
those referred to above). No adjustment in the
Purchase Price will be required until
cumulative adjustments require an adjustment of
at least 1% in such Purchase Price. No
fractional Preferred Shares or Common Shares
will be issued (other than fractions of
Preferred Shares which are integral multiples
of one one-hundredth of a Preferred Share,
which may, at the election of the Company, be
evidenced by depository receipts), and
3
in lieu thereof, a payment in cash will be made
based on the market price of the Preferred
Shares or Common Shares on the last trading
date prior to the date of exercise.
TERMS OF PREFERRED SHARES: Each Preferred Share purchasable upon exercise
of the Rights will be entitled, when, as and if
declared, to a minimum preferential quarterly
dividend payment of $1.00 per share but will be
entitled to an aggregate dividend of 100 times
the dividend, if any, declared per Common
Share. In the event of liquidation, dissolution
or winding up of the Company, the holders of
the Preferred Shares will be entitled to a
minimum preferential liquidation payment of
$100 per share (plus any accrued but unpaid
dividends) but will be entitled to an aggregate
payment of 100 times the payment made per
Common Share. Each Preferred Share will have
100 votes and will vote together with the
Common Shares. Finally, in the event of any
merger, consolidation or other transaction in
which Common Shares are exchanged, each
Preferred Share will be entitled to receive 100
times the amount received per Common Share.
Preferred Shares will not be redeemable. These
rights are protected by customary antidilution
provisions.
A copy of the Agreement has been filed with the Securities and Exchange
Commission as an Exhibit to a Current Report on Form 8-K. A copy of the
Agreement is available free of charge from the Company. This summary description
of the Rights does not purport to be complete and is qualified in its entirety
by reference to the Agreement, which is incorporated herein by reference.
4