EXHIBIT 1
AMENDMENT TO RIGHTS AGREEMENT
THIS AMENDMENT (this "AMENDMENT"), is entered into as of July 30, 2002,
by and between TRIANGLE PHARMACEUTICALS, INC., a Delaware corporation (the
"COMPANY"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, as Rights Agent (the
"RIGHTS AGENT").
RECITALS
A. The Company and the Rights Agent are parties to a Rights Agreement
dated as of February 1, 1999, as amended by the Amendment to Rights Agreement
dated as of June 2, 1999 (the "FIRST AMENDMENT"), and as further amended by the
Amendment to Rights Agreement dated as of August 24, 2001 (as so amended, the
"RIGHTS AGREEMENT").
B. The First Amendment was made in connection with certain arrangements
between the Company and Xxxxxx Laboratories, an Illinois corporation ("ABBOTT"),
and, contemporaneously with this Amendment, such arrangements are being
modified.
C. The Board of Directors of the Company has determined that an
amendment to the Rights Agreement as set forth herein is necessary and desirable
to reflect the foregoing and certain other matters, and the Company and the
Rights Agent desire to evidence such amendment in writing.
Accordingly, the parties agree that:
1. AMENDMENT TO DEFINITION OF "ACQUIRING PERSON" SET FORTH IN SECTION
1(A). The definition of "Acquiring Person" set forth in Section 1(a) of the
Rights Agreement is amended to read in its entirety as follows:
(a) "ACQUIRING PERSON" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person,
shall be the Beneficial Owner (as such term is hereinafter defined) of
15% or more of the shares of Common Stock of the Company then
outstanding but shall not include (1) the Company, any Subsidiary (as
such term is hereinafter defined) of the Company, any employee benefit
plan of the Company or any Subsidiary of the Company, or any entity
holding shares of Common Stock for or pursuant to the terms of any such
plan, or (2) Warburg Pincus Private Equity VIII, L.P., together with
all its Affiliates ("Warburg"), unless and until Warburg becomes the
Beneficial Owner of more than the Permitted Percentage (as hereinafter
defined); provided, however, that if Warburg files a Schedule 13D (or
comparable or successor form or report) under the Exchange Act
disclosing that Warburg holds the Common Stock for any purpose of, or
with the effect of, causing the Company to enter into a merger,
consolidation, business combination, acquisition, restructuring,
recapitalization, tender or exchange offer, or similar transaction
involving the Company, or its securities or a material portion of its
assets (other than such a transaction approved by the Board of
Directors of the Company), or in connection with or as a participant in
any transaction under Rule 13d-3(b) under the Exchange Act and
Warburg's Beneficial Ownership of Common Stock equals fifteen percent
(15%) or more, then Warburg shall become an Acquiring Person.
Notwithstanding the foregoing:
(i) no Person shall become an "Acquiring Person" as
the result of an acquisition of shares of Common Stock by the Company
which, by reducing the number of shares outstanding, increases the
proportionate number of shares beneficially owned by such Person to 15%
or more (or in the case of Warburg, more than the Permitted Percentage)
of the shares of Common Stock of the Company then outstanding;
provided, however, that if by reason of share purchases by the Company,
a Person shall become the Beneficial Owner of 15% or more (or in the
case of Warburg, more than the Permitted Percentage) of the shares of
Common Stock of the Company then outstanding and such Person shall,
after such share purchases by the Company, become the Beneficial Owner
of any additional shares of Common Stock of the Company, then such
Person shall be deemed to be an "Acquiring Person" hereunder; and
(ii) if the Board of Directors of the Company
determines in good faith that a Person who would otherwise be an
"Acquiring Person" as defined pursuant to the foregoing provisions of
this paragraph (a), has become such inadvertently, and such Person
divests as promptly as practicable a sufficient number of shares of
Common Stock so that such Person would no longer be an "Acquiring
Person" (as defined pursuant to the foregoing provisions of this
paragraph (a)), then such Person shall not be deemed to be an
"Acquiring Person" for any purpose of this Agreement."
2. AMENDMENT TO DEFINITION OF "TRIGGERING EVENT" SET FORTH IN SECTION
1(OO). The last sentence in the definition of "Triggering Event" set forth in
Section 1 (oo) of the Rights Agreement is amended to read in its entirety as
follows:
"Notwithstanding anything in this Rights Agreement to the contrary, a
Triggering Event shall not be deemed to have occurred by virtue of the
Warburg Stock Purchase Agreement or by virtue of any of the
transactions contemplated thereby."
3. FURTHER AMENDMENT TO SECTION 1. Sections 1(pp), 1(qq), 1(rr)
and 1(ss) of the Rights Agreement are hereby amended to read in their respective
entirety as follows:
"(pp) RESERVED"
"(qq) RESERVED"
"(rr) RESERVED"
"(ss) RESERVED"
4. AMENDMENT TO SECTION 3(A). The first sentence of Section 3(a)
of the Rights Agreement is amended to read in its entirety as follows:
"Until the earlier of (i) the Close of Business on the Shares
Acquisition Date and (ii) the Close of Business on the tenth Business
Day (or such later date as may be determined by action of the Company's
Board of Directors prior to such time as any Person becomes an
Acquiring Person and of which the Company will give the Rights Agent
prompt written notice) after the date that a tender or exchange offer
by any Person (other than the Company, any Subsidiary of the Company,
any employee benefit plan of the Company or of any Subsidiary of the
Company or any entity holding shares of Common Stock for or pursuant to
the terms of any such plan) is first published or sent or given within
the meaning of Rule 14d-4(a) of the Exchange Act Regulations or any
successor rule or of the first public announcement of the intention of
any Person (other than the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or of any Subsidiary of the
Company or any entity holding shares of Common Stock for or pursuant to
the terms of any such plan) to commence, a tender or exchange offer, if
upon consummation thereof such Person would be the Beneficial Owner of
15% or more (or in the case of Warburg, more than the Permitted
Percentage) of the shares of Company Common Stock then outstanding,
(the earlier of (i) and (ii) above being the "DISTRIBUTION DATE"), (x)
the Rights will be evidenced (subject to the provisions of Section 3(b)
hereof) by the certificates for shares of Common Stock registered in
the names of the holders thereof (which certificates shall also be
deemed to be Rights Certificates) and not by separate Rights
Certificates, and (y) the right to receive Rights Certificates will be
transferable only in connection with the transfer of shares of Common
Stock."
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. This 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 but one and the same instrument. If any term, provision,
covenant or restriction of this Amendment is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Amendment
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
(SIGNATURE ON FOLLOWING PAGE)
(SIGNATURE PAGE TO THE AMENDMENT TO RIGHTS AGREEMENT)
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
Rights Agreement to be duly executed and attested, all as of the day and year
first above written.
ATTEST: TRIANGLE PHARMACEUTICALS, INC.
By: /s/ XXXXXX XXXXXX By: /s/ XXXXX X. XXXXXX
--------------------------- -----------------------------
Name: Xxxxxx Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Secretary Title: President and Chief
Operating Officer
ATTEST: AMERICAN STOCK TRANSFER & TRUST
COMPANY
By: /s/ XXXXX X. XXXXXXXXX By: /s/ XXXXXXX X. XXXXXX
--------------------------- -----------------------------
Name: Xxxxx X. Xxxxxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Title: Vice President,
General Counsel
