NABI BIOPHARMACEUTICALS
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EXHIBIT 4.4
AGREEMENT OF SUBSTITUTION AND AMENDMENT OF
RIGHTS AGREEMENT
This Agreement of Substitution and Amendment is entered into as of July
1, 2002, by and among Nabi Biopharmaceuticals, a Delaware corporation (the
"Company"), Registrar and Transfer Company (the "Old Agent") and American Stock
Transfer & Trust Company, a New York banking corporation (the "New Agent").
RECITALS
A. On or about August 1, 1997, the Company entered into a Rights
Agreement, as subsequently amended (the "Rights Agreement"), with the
Old Agent as rights agent.
B. The Company wishes to amend the Rights Agreement in accordance with
Section 27 thereof.
C. The Company wishes to remove the Old Agent and substitute the New Agent
as rights agent pursuant to Section 21 of the Rights Agreement.
D. The Company has given the Old Agent proper notice of removal of the Old
Agent as rights agent.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and of other
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. In accordance with Section 27 of the Rights Agreement, the Company
hereby amends the Rights Agreement by deleting the second sentence of
Section 21 in its entirety and inserting the following in lieu thereof:
"The Company may remove the Rights Agent or any successor Rights Agent
upon 30 days' notice in writing, mailed to the Rights Agent or any
successor Rights Agent, as the case may be, and to each transfer agent
of the Common Shares or Series One Preferred Shares by registered or
certified mail."
2. In accordance with Section 27 of the Rights Agreement, the Company
hereby amends the Rights Agreement by deleting the fifth sentence of
Section 21 in its entirety and inserting the following in lieu thereof:
"Any successor Rights Agent, whether appointed by the Company or by
such a court, shall be (i) a corporation organized and doing business
under the laws of the United States or of the State of Florida (or of
any other state of the United States), in good standing, which is
authorized under such laws to exercise corporate trust or stock
transfer powers and is subject to supervision or examination by federal
or state authority and which has at the time of its appointment as
Rights Agent a combined capital and surplus of at least $10 million or
(ii) an Affiliate of a corporation described in clause (i) of this
sentence."
3. The Company hereby removes the Old Agent as rights agent pursuant to
Section 21 of the Rights Agreement.
4. The Old Agent hereby acknowledges that the Company has given the Old
Agent proper notice of removal of the Old Agent as rights agent.
5. The Company hereby appoints the New Agent as rights agent pursuant to
Section 21 of the Rights Agreement, to serve in that capacity for the
consideration and subject to all of the terms and conditions of the
Rights Agreement.
6. The New Agent hereby accepts the appointment as rights agent pursuant
to Section 21 of the Rights Agreement and agrees to serve in that
capacity for the consideration and subject to all of the terms and
conditions of the Rights Agreement.
7. From and after the effective date hereof, each and every reference in
the Rights Agreement to a "Rights Agent" shall be deemed to be a
reference to the New Agent.
8. In accordance with Section 27 of the Rights Agreement, the Company
hereby amends the Rights Agreement by deleting the form of legend in
Section 3(b) in its entirety and inserting the following in lieu
thereof:
"This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in a Rights Agreement between Nabi
Biopharmaceuticals and American Stock Transfer & Trust Company, dated
as of August 1, 1997, as amended (the "Rights Agreement"), the terms of
which are hereby incorporated herein by reference and a copy of which
is on file at the principal executive offices of Nabi
Biopharmaceuticals. Under certain circumstances, as set forth in the
Rights Agreement, such Rights will be evidenced by separate
certificates and will no longer be evidenced by this certificate. Nabi
Biopharmaceuticals will mail to the holder of this certificate a copy
of the Rights Agreement without charge after receipt of a written
request therefor.
Under certain circumstances set forth in the Rights Agreement, Rights
issued to, or held by, any Person who is, was or becomes an Acquiring
Person or any Affiliate or Associate thereof (as such terms are defined
in the Rights Agreement), whether currently held by or on behalf of
such Person or by any subsequent holder, may become null and void. The
Rights shall not be exercisable, and shall be void so long as held by a
holder in any jurisdiction where the requisite qualification to the
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issuance to such holder, or the exercise by such holder, of the Rights
in such jurisdiction shall not have been obtained or be obtainable."
9. In accordance with Section 27 of the Rights Agreement, the Company
hereby amends the Rights Agreement to provide that notices or demands
pursuant to Section 26 shall be addressed as follows:
If to the Company: Nabi Biopharmaceuticals
0000 Xxxx xx Xxxxxxxx Xxxxxxxxx, XX
Xxxx Xxxxx, XX 00000
Attention: Chief Financial Officer
If to the Rights Agent: American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attention: Shareholder Services Division
10. The undersigned officer of the Company hereby certifies that this
Agreement of Substitution and Amendment is in compliance with the terms
of Section 27 of the Rights Agreement.
11. Except as expressly modified herein, the Rights Agreement shall remain
in full force and effect.
12. This Agreement of Substitution and Amendment may be executed in one or
more counterparts, each of which shall together constitute one and the
same document.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date indicated above.
NABI BIOPHARMACEUTICALS
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Sr. Vice President and CFO
REGISTRAR AND TRANSFER COMPANY
By: /s/ Xxxxxxx X. Tatler
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Name: Xxxxxxx X. Tatler
Title: Vice President
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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