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Title: |
Rights Agreement |
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Date: |
2001 |
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Size: |
Preview shows 14KB of 200KB total |
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$79 |
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ID: |
#279418 |
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LUMINEX CORPORATION
AND
MELLON INVESTOR SERVICES LLC,
RIGHTS AGENT
----------------
RIGHTS AGREEMENT
DATED AS OF JUNE 20, 2001
================================================================================
{PAGE} 2
TABLE OF CONTENTS
{TABLE}
{S} {C} {C}
Section 1. Certain Definitions.............................................................................1
Section 2. Appointment of Rights Agent.....................................................................7
Section 3. Issue of Rights Certificates....................................................................7
Section 4. Form of Rights Certificates.....................................................................9
Section 5. Countersignature and Registration..............................................................10
Section 6. Transfer, Split-Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates.........................10
Section 7. Exercise of Rights; Purchase Price.............................................................11
Section 8. Cancellation and Destruction of Rights Certificates............................................13
Section 9. Reservation and Availability of Capital Stock..................................................13
Section 10. Preferred Stock Record Date....................................................................15
Section 11. Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights....................15
Section 12. Certificate of Adjusted Purchase Price or Number of Shares.....................................22
Section 13. Consolidation, Merger or Sale or Transfer of Assets, Cash Flow or Earning Power................22
Section 14. Fractional Rights and Fractional Shares........................................................25
Section 15. Rights of Action...............................................................................26
Section 16. Agreement of Rights Holders....................................................................26
Section 17. Rights Certificate Holder Not Deemed a Stockholder.............................................27
Section 18. Concerning the Rights Agent....................................................................27
Section 19. Merger or Consolidation or Change of Name of Rights Agent......................................28
Section 20. Duties of Rights Agent.........................................................................29
Section 21. Change of Rights Agent.........................................................................31
Section 22. Issuance of New Rights Certificates............................................................31
{/TABLE}
i
{PAGE} 3
{TABLE}
{S} {C} {C}
Section 23. Redemption and Termination.....................................................................32
Section 24. Exchange.......................................................................................33
Section 25. Notice of Certain Events.......................................................................34
Section 26. Notices........................................................................................34
Section 27. Supplements and Amendments.....................................................................35
Section 28. Successors.....................................................................................36
Section 29. Determinations and Actions by the Board of Directors, etc......................................36
Section 30. Benefits of this Agreement.....................................................................36
Section 31. Severability...................................................................................37
Section 32. Governing Law..................................................................................37
Section 33. Counterparts...................................................................................37
Section 34. Descriptive Headings...........................................................................37
{/TABLE}
Exhibit A - Form of Certificate of Designations of Series A Junior
Participating Preferred Stock
Exhibit B - Form of Rights Certificate
Exhibit C - Summary of Rights
ii
{PAGE} 4
RIGHTS AGREEMENT
This Rights Agreement, dated as of June 20, 2001 (the "Agreement"),
between Luminex Corporation, a Delaware corporation (the "Company"), and Mellon
Investor Services LLC, a New Jersey limited liability company (the "Rights
Agent").
WITNESSETH:
WHEREAS, on June 20, 2001 (the "Rights Dividend Declaration Date"), the
Board of Directors of the Company authorized and declared a dividend of one
Right for each share of common stock, par value $.001 per share, of the Company
(the "Common Stock") outstanding at the close of business on July 2, 2001 (the
"Record Date"), and has authorized the issuance of one Right (as such number may
hereinafter be adjusted pursuant to the provisions of Section 11(p) hereof) for
each share of Common Stock of the Company issued (whether originally issued or
delivered from the Company's treasury) between the Record Date and the earlier
of the Distribution Date (as hereinafter defined) and the Expiration Date (as
hereinafter defined), and, in certain circumstances provided for in Section 22
hereof, after the Distribution Date, each Right initially representing the right
to purchase one Fractional Share (as hereinafter defined) of Series A Junior
Participating Preferred Stock of the Company, upon the terms and subject to the
conditions hereinafter set forth (the "Rights");
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms shall have the meanings indicated:
"Acquiring Person" shall mean any Person who or which, together with
all Affiliates and Associates of such Person, shall be the Beneficial Owner of
20% or more of the shares of Common Stock then outstanding, but shall not
include any Exempt Person; provided, however, that a Person shall not be or
become an Acquiring Person if such Person, together with its Affiliates and
Associates, shall become the Beneficial Owner of 20% or more of the shares of
Common Stock then outstanding solely as a result of a reduction in the number of
shares of Common Stock outstanding due to the repurchase of Common Stock by the
Company, unless and until such time as such Person together with its Affiliates
and Associates shall purchase or otherwise become the Beneficial Owner of
additional shares of Common Stock constituting 1% or more of the then
outstanding shares of Common Stock or any other Person (or Persons) who is (or
collectively are) the Beneficial Owner of shares of Common Stock constituting 1%
or more of the then outstanding shares of Common Stock shall become an Affiliate
or Associate of such Person, unless, in either such case, such Person, together
with all Affiliates and Associates of such Person, is not then the Beneficial
Owner of 20% or more of the shares of Common Stock then outstanding; and
provided, further, that if the Board of Directors, with the concurrence of a
majority of the members of the Board of Directors who are not, and are not
representatives, nominees, Affiliates or Associates of, such Person or an
Acquiring Person, determines in good faith that a Person that would otherwise be
an "Acquiring Person" has become such inadvertently (including, without
limitation, because (i) such Person was unaware that it beneficially owned a
percentage of Common Stock that would otherwise cause such Person to be an
"Acquiring Person" or (ii) such Person was aware of the extent of its Beneficial
Ownership of Common
1
{PAGE} 5
Stock 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 as promptly as
practicable divested or divests itself of Beneficial Ownership of a sufficient
number of shares of Common Stock so that such Person would no longer be an
"Acquiring Person," then such Person shall not be deemed to be or to have become
an "Acquiring Person" for any purposes of this Agreement.
At any time that the Rights are redeemable, the Board of Directors may,
generally or with respect to any specified Person or Persons, determine to
increase to a specified percentage or amount greater than that set forth herein
or decrease to a specified percentage or amount lower than that set forth herein
or determine a number of shares to be (but in no event less than or equal to the
percentage or number of shares of Common Stock then beneficially owned by such
Person), the level of Beneficial Ownership of Common Stock at which a Person or
such Person or Persons becomes an Acquiring Person.
"Adjustment Shares" shall have the meaning set forth in Section
11(a)(ii) hereof.
"Affiliate" shall have the meaning ascribed to such term in Rule 12b-2
of the General Rules and Regulations under the Exchange Act, as in effect on the
date of this Agreement.
"Associate" shall mean, with reference to any Person, (1) any
corporation, firm, partnership, association, unincorporated organization or
other entity (other than the Company or a Subsidiary of the Company) of which
such Person is an officer or general partner (or officer or general partner of a
general partner) or is, directly or indirectly, the Beneficial Owner of 10% or
more of any class of equity securities, (2) any trust or other estate in which
such Person has a substantial beneficial interest or as to which such Person
serves as trustee or in a similar fiduciary capacity and (3) any relative or
spouse of such Person, or any relative of such spouse, who has the same home as
such Person.
A Person shall be deemed the "Beneficial Owner" of, and shall be deemed
to "beneficially own," any securities:
(i) that such Person or any of such Person's Affiliates or Associates,
directly or indirectly, is the "beneficial owner" of (as determined
pursuant to Rule 13d-3 of the General Rules and Regulations under the
Exchange Act as in effect on the date of this Agreement) or otherwise has
the right to vote or dispose of, including pursuant to any agreement,
arrangement or understanding (whether or not in writing); provided,
however, that a Person shall not be deemed the "Beneficial Owner" of, or to
"beneficially own," any security under this subparagraph (i) as a result of
an agreement, arrangement or understanding to vote such security if such
agreement, arrangement or understanding: (A) arises solely from a revocable
proxy or consent given in response to a public (i.e., not including a
solicitation exempted by Rule 14a-2(b)(2) of the General Rules and
Regulations under the Exchange Act as in effect on the date of this
Agreement) proxy or consent solicitation made pursuant to, and in
accordance with, the applicable provisions of the General Rules and
Regulations under the Exchange Act, (B) is not then reportable by such
Person on Schedule 13D under the Exchange Act (or any comparable or
successor report) and (C) does not constitute a trust, proxy, power of
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