AMENDMENT NUMBER TWO TO RIGHTS AGREEMENT BETWEEN SIRNA THERAPEUTICS, INC. AND AMERICAN STOCK TRANSFER AND TRUST COMPANY
EXHIBIT
4.1
AMENDMENT
NUMBER TWO TO RIGHTS AGREEMENT
BETWEEN
SIRNA
THERAPEUTICS, INC.
AND
AMERICAN
STOCK TRANSFER AND TRUST COMPANY
This
Amendment Number Two to Rights Agreement (this “Second Amendment”), made as of
this 30th day of October, 2006, between Sirna Therapeutics, Inc., a Delaware
corporation (the “Company”), and American Stock Transfer & Trust Company, a
New York banking corporation, as rights agent (the “Rights Agent”), amends the
Rights Agreement dated as of November 22, 2000 between the Company and the
Rights Agent (as amended to date, the “Rights Agreement”).
RECITALS
A. Pursuant
to the Rights Agreement, the Board of Directors of the Company authorized and
declared a dividend distribution of one right (each a “Right” and collectively
the “Rights”) for each share of the Common Stock (as defined in the Rights
Agreement) of the Company outstanding at the close of business on December
8,
2000 (the “Record Date”), and authorized the issuance of one Right in respect of
each share of common stock of the Company issued between the Record Date and
the
Distribution Date (as such term is defined in Section 3 of the Rights
Agreement), each Right representing the right to purchase one one-hundredths
of
a share of Series AA Preferred Stock of the Company having the rights, powers
and preferences set forth in the form of Certificate of Designation attached
to
the Rights Agreement as Exhibit A, upon the terms and subject to the conditions
set forth in the Rights Agreement.
B. On
February 11, 2003, the Company and the Rights Agent entered into an Amendment
to
Rights Agreement (the “First Amendment”) that amended the Rights Agreement to,
among other matters, exempt the Investors (as defined in the First Amendment)
from the definition of “Acquiring Person” under the Rights Agreement and to
clarify that the announcement, approval, execution or delivery of the Stock
Purchase Agreement (as defined in the First Amendment) shall not cause a
“Distribution Date” to have occurred under the Rights Agreement.
C. The
Board
of Directors of the Company has determined that it is in the best interests
of
the Company and its stockholders to further amend the Rights Agreement,
including all applicable sections, to, among other things, revise the
definitions of (i) “Acquiring Person” to exempt Merck & Co., Inc., a
Delaware corporation (“Parent”), Spinnaker Acquisition Corp.,
a
Delaware corporation and a wholly-owned subsidiary of Parent (“Merger Sub”), and
all of their respective affiliates therefrom,
and (ii) “Expiration Date” to mean immediately prior to the Effective Time, as
such term is defined in the Agreement and Plan of Merger, dated as of October
30, 2006, by and among the Company, Parent and Merger
Sub (the “Merger Agreement”), and to clarify that no “Shares Acquisition Date”
or “Distribution Date” will occur solely by reason of the approval, execution or
delivery of the Merger Agreement or the Voting Agreements (as defined in the
Merger Agreement) or the consummation of the transactions contemplated
thereby.
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D. Pursuant
to Section 27 of the Rights Agreement, the Board of Directors of the Company
has
determined that an amendment to the Rights Agreement as set forth herein is
necessary and desirable in order to reflect the foregoing, and the Company
and
the Rights Agent desire to evidence such amendment in writing.
NOW
THEREFORE, intending to be legally bound, the Company and the Rights Agent
hereby agree that the Rights Agreement is hereby amended as set forth
below:
1. Section
1(a) of the Rights Agreement is amended to add the following sentence at the
end
thereof:
“Notwithstanding
anything in this Rights Agreement to the contrary, none of Parent, Merger
Sub, or any of their respective Affiliates or Associates, individually
or collectively, shall be deemed to be an Acquiring Person solely as a result
of
(i) the announcement, approval, execution or delivery of the Merger Agreement
or
the Voting Agreements or (ii) the consummation of the transactions contemplated
by the Merger Agreement or the Voting Agreements.”
2. The
following Section 1(k) is inserted into the Rights Agreement, and all subsequent
subsections of Section 1 are renumbered accordingly, and all cross-references
to
such renumbered subsections are changed to refer to such subsections as if
renumbered:
“1(k)
“Merger Agreement” shall mean the Agreement and Plan of Merger, dated as of
October 30, 2006, by and among Merck & Co., Inc., a Delaware corporation,
Spinnaker Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of Parent, and the Company, as it may be amended from time to time.
The defined terms “Parent,” “Merger Sub,” “Effective Time” and “Voting
Agreements” used herein shall have the meanings ascribed to such terms in the
Merger Agreement.”
3. Section
1(s) (after giving effect to the renumbering caused by this Second Amendment)
of
the Rights Agreement is hereby amended to add the following sentence at the
end
thereof:
“Notwithstanding
anything in this Rights Agreement to the contrary, a Stock Acquisition Date
shall not be deemed to have occurred solely as a result of (i) the announcement,
approval, execution or delivery of the Merger Agreement or the Voting Agreements
or (ii) the consummation of the transactions contemplated by the Merger
Agreement or the Voting Agreements.”
4. Section
3(a) of the Rights Agreement is amended to add the following sentence at the
end
thereof:
“Notwithstanding
anything in this Rights Agreement to the contrary, a Distribution Date shall
not
be deemed to have occurred solely as a result of (i) the announcement,
approval, execution or delivery of the Merger Agreement or the Voting Agreements
or (ii) the consummation of the transactions contemplated by the Merger
Agreement or the Voting Agreements.”
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5. The
second to last sentence of Section 7(a) of the Rights Agreement is deleted
in
its entirely and replaced with the following sentence:
“The
“Expiration Date,” as used in this Rights Agreement, shall be the earliest of
(i) the Final Expiration Date (as defined below), (ii) the time at which the
Rights are redeemed as provided in Section 23 hereof, (iii) the time at which
the Rights are exchanged as provided in Section 24 hereof or (iv) the time
immediately prior to the Effective Time.”
6. Section
11(b)(ii) of the Rights Agreement is amended to add the following sentence
at
the end thereof:
“Notwithstanding
anything in this Rights Agreement to the contrary, neither (i) the announcement,
approval, execution or delivery of the Merger Agreement or the Voting Agreements
nor (ii) the consummation of the transactions contemplated by the Merger
Agreement or the Voting Agreements shall be deemed to be an event described
in
Section 11(b)(i) and shall not cause the Rights to be adjusted or exercisable
in
accordance with Section 11 or 12.”
7. Section
13(a) of the Rights Agreement is amended to add the following sentence at the
end thereof:
“Notwithstanding
anything in this Rights Agreement to the contrary, neither (i) the announcement,
approval, execution or delivery of the Merger Agreement or the Voting Agreements
nor (ii) the consummation of the transactions contemplated by the Merger
Agreement or the Voting Agreements shall be deemed to be an event described
in
this Section 13(a) and shall not cause the Rights to be adjusted or exercisable
in accordance with Section 12 or 13.”
8. Section
13(b)(ii) of the Rights Agreement is amended to add the following at the end
thereof:
“Notwithstanding
anything in this Rights Agreement to the contrary, none of Parent, Merger
Sub, or any of their respective Affiliates or Associates, individually
or collectively, shall be deemed to be a Principal Party solely as a result
of
(i) the announcement, approval, execution or delivery of the Merger Agreement
or
the Voting Agreements or (ii) the consummation of the transactions contemplated
by the Merger Agreement or the Voting Agreements.”
9. The
following Section 15 is inserted into the Rights Agreement, and all subsequent
sections are renumbered accordingly, and all cross-references to such renumbered
sections are changed to refer to such sections as if renumbered:
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“15.
TREATMENT OF MERGER AGREEMENT. Notwithstanding anything in this Rights Agreement
to the contrary, neither (i) the announcement, approval, execution nor delivery
of the Merger Agreement or the Voting Agreements or (ii) the consummation of
the
transactions contemplated by the Merger Agreement or the Voting Agreements,
shall cause a Distribution Date, a Stock Acquisition Date, a Flip-In Event
or a
Flip-Over Event.”
10. EFFECTIVENESS.
This Second Amendment shall be deemed effective immediately upon execution
hereof by the Company and the Rights Agent. Except as amended hereby, the Rights
Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
11. MISCELLANEOUS.
This Second Amendment shall be deemed to be a contract made under the laws
of
the State of Colorado and for all purposes shall be governed by and construed
in
accordance with the laws of such state applicable to contracts made and
performed entirely within such state. This Second Amendment may be executed
in
any number of counterparts, each of such counterparts shall for all purposes
be
deemed to be an original, and all such counterparts shall together constitute
one and the same instrument. If any provision, covenant or restriction of this
Second Amendment is held by a court of competent jurisdiction or other authority
to be invalid, illegal or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Second Amendment shall remain in full force
and effect and shall in no way be effected, impaired or invalidated. In the
event of any conflict or inconsistency between this Second Amendment, on the
one
hand, and the First Amendment, on the other hand, this Second Amendment shall
govern.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have executed this Second Amendment as
of
the date first set forth above.
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SIRNA
THERAPEUTICS, INC.
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AMERICAN
STOCK TRANSFER AND TRUST COMPANY
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By:
/s/
Xxxxxx X. Xxxxx
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By:
/s/
Xxxxxxx Xxxxx
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Name:
Xxxxxx X. Xxxxx
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Name:
Xxxxxxx Xxxxx
|
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Title:
President and Chief Executive Officer
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Title:
Vice President
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