EXHIBIT 4
AMENDMENT NO. 3 TO RIGHTS AGREEMENT
This Amendment No. 3 to the Preferred Shares Rights Agreement, dated
June 4, 1999 ("Amendment"), amends that certain Preferred Shares Rights
Agreement (the "Rights Agreement"), dated as of August 21, 1996 between Metra
Biosystems, Inc., a California corporation (the "Company"), and American Stock
Transfer & Trust Company (the "Rights Agent"), as amended.
WHEREAS, the Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement.
WHEREAS, the Company, Quidel Corporation, a Delaware corporation,
("Quidel"), and MBS Acquisition Corporation, a Delaware corporation ("Sub"),
contemplate entering into an Agreement and Plan of Merger (the "Merger
Agreement") pursuant to which, among other things, Sub will commence a cash
tender offer (the "Offer") to purchase all the outstanding shares of the Company
and, following the commencement of the Offer, Sub would merge with and into the
Company (the "Merger").
WHEREAS, the Company, Quidel and Sub also contemplate entering into a
Stock Option Agreement (the "Stock Option Agreement") pursuant to which the
Company would agree to issue Common Shares in connection with the Offer in order
to achieve at least 90% of the outstanding Common Shares tendered in the Offer.
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
and the Rights Agent may from time to time supplement and amend the Rights
Agreement in order to make any change which the Company may deem necessary or
desirable and which shall be consistent with, and for the purposes of
fulfilling, the objectives of the Board of Directors of the Company in adopting
the Rights Agreement.
WHEREAS, the Board of Directors of the Company has determined that an
amendment to the Rights Agreement as set forth herein is necessary and desirable
and is consistent with the objectives of the Board of Directors of the Company
in adopting the Rights Agreement, and the Company and the Rights Agent desire to
evidence such amendment in writing.
WHEREAS, all acts and things necessary to make this Amendment a valid
agreement, enforceable according to its terms, have been done and performed, and
the execution and delivery of this Amendment by the Company and the Rights Agent
have been in all respects duly authorized by the Company and the Rights Agent.
NOW, THEREFORE, the parties hereto agree as follows:
1. Amendment to Section 1. Section 1 of the Rights Agreement is
supplemented to add the following definitions in the appropriate locations:
"'Merger' shall have the meaning set forth in the Merger Agreement."
"'Merger Agreement' shall mean the Agreement and Plan of Merger, dated
as of June 4, 1999, by and among Quidel Corporation, MBS Acquisition Corporation
and Metra Biosystems, Inc., as it may be amended from time to time."
"'Offer' shall have the meaning set forth in the Merger Agreement."
"'Option' shall have the meaning set forth in the Stock Option
Agreement."
"'Stock Option Agreement' shall mean the Stock Option Agreement dated
as of June 4, 1999 by and among Quidel Corporation, MBS Acquisition Corporation
and Metra Biosystems, Inc."
2. Amendment of the definition of "Acquiring Person." The definition
of "Acquiring Person" in Section 1(a) of the Rights Agreement shall be amended
by adding the following at the end of Section 1(a):
"Notwithstanding the foregoing or any provision to the contrary in
this Agreement none of Quidel, Sub, or any of their respective Affiliates or
Associates shall, individually or collectively, be deemed to be an Acquiring
Person pursuant to this Agreement by virtue of (i) the execution of the Merger
Agreement or the Stock Option Agreement (ii) the commencement or the
consummation of the Offer, (iii) the acquisition of Common Shares by Sub, Quidel
or any of their respective Affiliates or Associates pursuant to the Offer or the
exercise of the Option, and (iv) the consummation of the Merger or the other
transactions contemplated in the Merger Agreement or the Stock Option
Agreement."
3. Amendment of the definition of "Distribution Date." The
definition of "Distribution Date" in Section 1(h) of the Rights Agreement is
amended by adding the following sentence at the end thereof:
"Notwithstanding the foregoing or any provision to the contrary in
this Agreement, a Distribution Date shall not be deemed to occur by reason of
(i) the execution of the Merger Agreement or the Stock Option Agreement, (ii)
the commencement or consummation of the Offer, (iii) the acquisition of Common
Shares by Sub, Quidel or any of their respective Affiliates or Associates
pursuant to the Offer or exercise of the Option (iv) the consummation of the
Merger, or the other transactions contemplated in the Merger Agreement or the
Stock Option Agreement and (v) the announcement of the Offer, the Merger or the
other transactions contemplated by the Merger Agreement, or the Stock Option
Agreement."
4. Amendment of the definition of "Expiration Date". Section 1(j) of
the Rights Agreement is amended and restated to read in its entirety as follows:
"Expiration Date" shall mean the earliest of (i) immediately prior to
the consummation of the Offer, (ii) the Redemption Date, (iii) the time at which
the Board of Directors orders the exchange of the Rights as provided in Section
24 hereof and (iv) the Close of Business on the Final Expiration Date."
5. Amendment of the definition of "Permitted Offer." Section 1(l) of
the Rights Agreement is amended and restated to read in its entirety as follows:
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"'Permitted Offer' shall mean a tender offer for all outstanding
Common Shares, or for 49.99% of the Common Shares, in either case, followed by a
merger, such tender offer to be made in a manner prescribed by Section 14(d) of
the Exchange Act and the rules and regulations thereunder; PROVIDED, HOWEVER,
that the tender offer occurs at a time when Directors are in office and a
majority of the Directors then in office has determined that the offer is both
adequate and otherwise in the best interests of the Company and its shareholders
(taking into account all factors that such Directors deem relevant, including
without limitation, prices that could reasonably be achieved if the Company or
its assets were sold on an orderly basis designed to realize maximum value)."
6. Amendment of the definition of "Shares Acquisition Date." Section
l(u) of the Rights Agreement by adding the following sentence at the end
thereof:
"Notwithstanding the foregoing or any provision to the contrary in
this Agreement, a Shares Acquisition Date shall not be deemed to occur by virtue
of (i) the execution of the Merger Agreement or the Stock Option Agreement, (ii)
the consummation of the Offer, (iii) the acquisition of Common Shares by Sub,
Quidel or any of their respective Affiliates or Associates pursuant to the Offer
or exercise of the Option (iv) the consummation of the Merger, or the other
transactions contemplated in the Merger Agreement or the Stock Option Agreement,
and (v) the announcement of the Offer, the Merger or the other transactions
contemplated by the Merger or the Stock Option Agreement."
7. Amendment to Section 30. Section 30 of the Rights Agreement is
amended to add the following sentence at the end thereof:
"Nothing in this Agreement shall be construed to give any holder of
Rights or any other Person any legal or equitable rights, remedies or claims
under this Agreement by virtue of the execution of the Merger Agreement or by
virtue of any of the transactions contemplated by the Merger Agreement or the
Stock Option Agreement."
8. This Amendment shall be deemed to be entered into under the laws
of the State of California 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.
9. 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.
10. As amended hereby, the Agreement shall remain in full force and
effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment on
the date first written above.
METRA BIOSYSTEMS, INC.
By:
/s/ George W. Dunbar, Jr.
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Name: George W. Dunbar, Jr.
Title: President and Chief Executive
Officer
Attest:
/s/ Mark Weeks
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AMERICAN STOCK TRANSFER &
TRUST COMPANY,
as Rights Agent
By:
/s/ George Karfunkel
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Name: George Karfunkel
Title: Executive Vice President
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