EXHIBIT 4.4


 


CIPHERGEN
BIOSYSTEMS, INC.


 


AMENDMENT
TO RIGHTS AGREEMENT


 


THIS AMENDMENT TO
RIGHTS AGREEMENT (this “Amendment”) is made as of July 22,
2005 between CIPHERGEN BIOSYSTEMS, INC., a
Delaware company (the “Company”), and WELLS FARGO
BANK, N.A. (the “Rights
Agent”).


 


WHEREAS,
the Company and Continental Stock Transfer & Trust Company entered
into a Preferred Shares Rights Agreement, dated as of March 20, 2002 (the “Rights
Agreement”) (capitalized terms used in this Amendment but not defined
herein shall have the meaning assigned to them in the Rights Agreement); and


 


WHEREAS,
the Rights Agent became party to the Rights Agreement upon their appointment as
the Company’s transfer agent; and


 


WHEREAS,
the Company and the Rights Agent desire to amend the Rights Agreement as
provided below.


 


NOW, THEREFORE,
in consideration of the foregoing premises and the mutual covenants and
conditions set forth below, and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties to this Amendment to the
Rights Agreement hereby agree as follows:


 


AMENDMENT


 


1.                                       Amendment of
the Rights Agreement.


 


1.1                                 Section 1(a) of
the Rights Agreement is hereby amended by inserting the following sentence
immediately after the last sentence thereof:


 


“Notwithstanding the foregoing, none of Quest Diagnostics Incorporated,
nor any of its Affiliates, shall be deemed an Acquiring Person and neither a
Shares Acquisition Date nor a Distribution Date shall be deemed to occur and
the Rights will not separate from Company Common Shares, in each case, solely
by reason of the execution, delivery, performance or consummation of the
transactions contemplated under the Stock Purchase Agreement and the Warrant
(including the issuance and exercise thereof) each dated as of July 22,
2005, between the Company and Quest Diagnostics Incorporated (including any
amendment or supplement thereto).”


 


2.                                       No Other
Amendment.  Except as modified by this Amendment, the Rights Agreement shall
remain in full force and effect without any modification.  By executing this Amendment below, the
Company certifies that this Amendment has been executed and delivered in
compliance with the terms of Section 27 of the Rights Agreement.  This Amendment shall be deemed an amendment
to the Rights Agreement and shall become effective when executed and delivered
by the Company and the Rights Agent as provided under Section 27 of the
Rights


 





















 


Agreement.  This Amendment shall be irrevocable and Quest
Diagnostics, Inc. shall be an express third party beneficiary hereof.


 


3.                                       Effect of
Amendment.  This
Amendment shall be deemed to be in force and effect immediately prior to the
execution of the Stock Purchase Agreement. 
Except as and to the extent expressly modified by this Amendment, the
Rights Agreement and the exhibits thereto, shall remain in full force and
effect in all respects.  In the event of
a conflict or inconsistency between this Amendment and the Rights Agreement and
the exhibits thereto, the provisions of this Amendment shall govern.


 


4.                                       Counterparts.  This Amendment may be executed in several
counterparts, each of which shall constitute an original and all of which, when
taken together, shall constitute one agreement.


 


5.                                       Miscellaneous.  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.  If any term or other provision of
this Amendment is determined to be invalid, illegal or incapable of being
enforced by any rule of law or public policy, all other terms and
provisions of this Amendment shall nonetheless remain in full force and effect
and upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, this Amendment and such term or other
provision shall be deemed to have been amended so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the
Board of Directors of the Company.


 


[Remainder of Page Left Blank
Intentionally]


 





















 


The
parties hereto have caused this Amendment to be executed and delivered as of
the day and year first written above.


 


	
  WELLS FARGO BANK, N.A.

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Jennifer Leno

  	
   

  
	
   

  
	
  Name:

  	
  Jennifer Leno

  	
   

  
	
   

  	
   

  
	
  Title:

  	
  Assistant Vice President

  	
   

  
	
   

  	
   

  
	
  CIPHERGEN BIOSYSTEMS, INC.

  
	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ William E. Rich

  	
   

  
	
   

  
	
  Name:

  	
  William E. Rich

  	
   

  
	
   

  	
   

  
	
  Title:

  	
  President and Chief Executive Officer

  	
   

  
					



 


 


[SIGNATURE
PAGE TO AMENDMENT TO THE RIGHTS AGREEMENT]