FIRST AMENDMENT TO RIGHTS AGREEMENT
Exhibit 4.1
FIRST AMENDMENT TO RIGHTS AGREEMENT
FIRST AMENDMENT (this “Amendment”) dated as of February 21, 2008, to the
RIGHTS AGREEMENT, dated as of January 2, 2002 (the “Rights Agreement”), between
ENCYSIVE PHARMACEUTICALS INC. (formerly TEXAS BIOTECHNOLOGY CORPORATION), a
Delaware corporation (the “Company”), and THE BANK OF NEW YORK, a New York
corporation (the “Rights Agent”).
RECITALS
WHEREAS, the Company and the Rights Agent have heretofore executed and entered into the Rights
Agreement (capitalized terms used herein but not defined herein shall have the meanings given to
such terms in the Rights Agreement);
WHEREAS, pursuant to Section 27 of the Rights Agreement, for as long as the Rights are
redeemable, the Company may in its sole and absolute discretion, and the Rights Agent shall, if the
Company so directs, supplement or amend any provision of the Rights Agreement without the approval
of any holders of the Rights;
WHEREAS, the Company desires to amend the Rights Agreement to render the Rights inapplicable
to the Offer and the Merger (each as defined in the Merger Agreement (as defined below)) and the
other transactions contemplated by the Merger Agreement; and
WHEREAS, the Board of Directors has determined that it is in the best interests of the Company
and its stockholders to amend the Rights Agreement as set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and
other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby amend the Rights Agreement
as follows:
Section 1. Amendments.
(a) Amendment to Section 1(a). The following text is added at the end of the
definition of “Acquiring Person” in Section 1(a) of the Rights Agreement:
“Notwithstanding the foregoing or anything in this Agreement to the
contrary, none of Parent or Purchaser shall be deemed to be an Acquiring
Person, either individually or collectively, by virtue of (i) the approval,
execution or delivery of the Merger Agreement, (ii) the announcement of the
Merger or the Offer, (iii) the consummation of the Offer, the Merger or the
other transactions contemplated by the Merger Agreement or (iv) the
acquisition of Common Stock pursuant to the Offer, the Merger or the Merger
Agreement.”
(b) Amendment to Section 1(h). The following text is added at the end of the
definition of “Distribution Date” in Section 1(h) of the Rights Agreement:
“Notwithstanding the foregoing or anything in this Agreement to the
contrary, no Distribution Date shall occur by virtue of (i) the approval,
execution or delivery
of the Merger Agreement, (ii) the announcement of the Merger or the Offer,
(iii) the commencement of the Offer, (iv) the consummation of the Offer, the
Merger or the other transactions contemplated by the Merger Agreement or (v)
the acquisition of Common Stock pursuant to the Offer, the Merger or the
Merger Agreement.”
(c) Amendment to Section 1(l). The definition of “Expiration Date” shall be amended
and restated in its entirety to read as follows:
“ “Expiration Date” means the earlier of (i) the Final Expiration Date, (ii)
the time at which all Rights are redeemed as provided in Section 23 are
exchanged as provided in Section 24 and (iii) the Effective Time.”
(d) Amendment to Section 1(x). The following text is added at the end of the
definition of “Stock Acquisition Date” in Section 1(x) of the Rights Agreement:
“Notwithstanding the foregoing or anything in this Agreement to the
contrary, no Stock Acquisition Date shall occur by virtue of (i) the
approval, execution or delivery of the Merger Agreement, (ii) the
announcement of the Merger or the Offer, (iii) the commencement of the
Offer, (iv) the consummation of the Offer, the Merger or the other
transactions contemplated by the Merger Agreement or (v) the acquisition of
Common Stock pursuant to the Offer, the Merger or the Merger Agreement.”
(e) The following definitions are added to Section 1 of the Rights Agreement in the
appropriate alphabetical order:
“Effective Time” shall have the meaning assigned to such term in the
Merger Agreement.
“Merger Agreement” shall mean the Agreement and Plan of Merger dated as
of February 20, 2008, among Parent, Purchaser and the Company, as the same
may be amended from time to time.
“Merger” shall have the meaning assigned to such term in the Merger
Agreement.
“Purchaser” shall mean Explorer Acquisition Corp., a Delaware
corporation, and a wholly owned subsidiary of Parent.
“Offer” shall have the meaning assigned to such term in the Merger
Agreement.
“Parent” shall mean Pfizer Inc., a Delaware corporation.
(f) Amendment to Section 7(e). Section 7(e) of the Rights Agreement is amended
by adding the following sentence at the end thereof:
“Notwithstanding the foregoing or anything in this Agreement to the
contrary, the time from and after which any Person first becomes an
Acquiring Person shall not occur by virtue of (i) the approval, execution or
delivery of the Merger
Agreement, (ii) the announcement of the Merger or the Offer, (iii) the
consummation of the Offer, the Merger or the other transactions contemplated
by the Merger Agreement or (iv) the acquisition of Common Stock pursuant to
the Offer, the Merger or the Merger Agreement.”
(g) Section 11(a)(ii) of the Rights Agreement is amended by adding the following sentence at
the end thereof:
“Notwithstanding the foregoing or anything in this Agreement to the
contrary, this Section 11(a)(ii) shall not apply by virtue of (i)
the approval, execution or delivery of the Merger Agreement, (ii)
the announcement of the Merger or the Offer, (iii) the consummation
of the Offer, the Merger or the other transactions contemplated by
the Merger Agreement or (iv) the acquisition of Common Stock
pursuant to the Offer, the Merger or the Merger Agreement.”
(h) Section 13 of the Rights Agreement is amended by adding the following provision at the end
thereof:
“(i) Notwithstanding the foregoing or anything in this Agreement to
the contrary, this Section 13 shall not apply by virtue of (i) the
approval, execution or delivery of the Merger Agreement, (ii) the
announcement of the Merger or the Offer, (iii) the consummation of
the Offer, the Merger or the other transactions contemplated by the
Merger Agreement or (iv) the acquisition of Common Stock pursuant to
the Offer, the Merger or the Merger Agreement.”
Section 2. Full Force and Effect. Except as expressly amended hereby, the Rights
Agreement shall continue in full force and effect in accordance with the provisions thereof on the
date hereof.
Section 3. Governing Law. This Amendment for all purposes shall be governed by, and
construed in accordance with, the laws of the State of Texas applicable to contracts executed in
and to be performed entirely in such State.
Section 4. Counterparts. 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.
Section 5. Authority. Each party represents that such party has full power and
authority to enter into this Amendment and that this Amendment constitutes a legal, valid and
binding obligation of such party, enforceable against such party in accordance with its terms.
Section 6. Severability. If any term, provision, covenant or restriction of this
Amendment or applicable to 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 PAGE FOLLOWS]
IN WITNESS,WHEREOF, the Company has caused this Amendment to be duly executed as of the day
and year first above written.
| ENCYSIVE PHARMACEUTICALS INC. | ||||
By:
|
/s/ Xxxx Xxxxxxxx | |||
| Name: Xxxx Xxxxxxxx | ||||
| Title: Vice President and General Counsel | ||||
| Acknowledged and Approved by: | ||||
| THE BANK OF NEW YORK, as Rights Agent | ||||
By:
|
/s/ Xxxxxx Xxxxx | |||
| Name: Xxxxxx Xxxxx | ||||
| Title: Vice President | ||||
