EXHIBIT 4.1
AMENDMENT NO. 3 TO
SHAREHOLDER PROTECTION RIGHTS AGREEMENT
THIS AMENDMENT NO. 3, dated as of May 15, 2002 (the "Amendment"), to the
Shareholder Protection Rights Agreement, dated as of September 15, 1997, as
amended by Amendment No. 1 thereto, dated March 16, 1999 and by Amendment No. 2
thereto, dated May 10, 2001 (collectively, the "Rights Agreement"), by and
between CollaGenex Pharmaceuticals, Inc., a Delaware company (the "Company"),
and American Stock Transfer & Trust Company, as Rights Agent (the "Agent").
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. AMENDMENTS.
A. The reference to and definition of "Disinterested Directors" in
Section 1.1 of the Rights Agreement is hereby deleted in its entirety.
B. Section 5.1(a) of the Rights Agreement is hereby amended and
restated in its entirety to read as follows:
"(a) the Board of Directors of the Company may, at its option,
at any time until 10 days after the Flip-in Date, elect to redeem
all (but not less than all), the then outstanding Rights at the
Redemption Price and the Company, at its option, may pay the
Redemption Price either in cash or shares of Common Stock or other
securities of the Company deemed by the Board of Directors, in the
exercise of its sole discretion, to be at least equivalent in value
to the Redemption Price. Notwithstanding anything contained in this
Agreement to the contrary, the Rights shall not become exercisable
until such time as the Company's right of redemption pursuant to
this Section 5.1 shall expire."
C. Section 5.4 of the Rights Agreement is hereby amended and
restated in its entirety to read as follows:
"Prior to the Separation Time and subject to the penultimate
sentence of this Section 5.4, the Company may, and the Rights Agent
shall if the Company so directs, supplement or amend any provision
of this Agreement without the approval of any holders of Rights.
From and after the Separation Time, and subject to the penultimate
sentence of this Section 5.4, the Company may, and the Rights Agent
shall if the Company so directs, supplement or amend this Agreement
without the approval of any holders of Rights in order (i) to cure
any ambiguity, (ii) to correct or supplement any provision contained
herein which may be defective or inconsistent with any other
provisions herein, (iii) to change or supplement the provisions
hereunder in any manner which the Company
may deem necessary or desirable and which shall not adversely affect
the interests of the holders of Rights (other than an Acquiring
Person or an Affiliate or Associate of an Acquiring Person), (iv) to
suspend the effectiveness of Section 3.1(b) hereof, or (v) to
shorten or lengthen any time period hereunder; provided, this
Agreement may not be supplemented or amended to lengthen, pursuant
to clause (v) of this sentence, (A) a time period relating to when
the Rights may be redeemed at such time as the Rights are not then
redeemable or (B) any other time period unless such lengthening is
for the purpose of protecting, enhancing or clarifying the rights
of, and/or the benefits to, the holders of Rights. Upon the delivery
of a certificate from an appropriate officer of the Company which
states that the proposed supplement or amendment is in compliance
with the terms of this Section 5.4, the Rights Agent shall execute
such supplement or amendment. Notwithstanding anything contained in
this Agreement to the contrary, no supplement or amendment shall be
made after the Separation Time which (i) changes the Redemption
Price, the Exercise Price or the number of one one-hundredths of a
share of Preferred Stock for which a Right is exercisable or (ii)
shortens the Expiration Time. Prior to the Separation Time, the
interests of the holders of Rights shall be deemed coincident with
the interests of the holders of Common Stock."
2. REFERENCE TO AND EFFECT ON THE RIGHTS AGREEMENT.
(a) On and after the effective date hereof, each reference to "this
Agreement," "hereunder," "hereof," "herein," or words of like import shall
mean and be a reference to the Rights Agreement as amended hereby. No
reference to this Amendment need be made in any instrument or document at
any time referring to the Rights Agreement. A reference to the Rights
Agreement in any of such instrument or document shall be deemed to be a
reference to the Rights Agreement as amended hereby.
(b) Except as expressly amended by this Amendment, the provisions of
the Rights Agreement shall remain in full force and effect.
3. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware.
4. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute a single instrument.
5. EFFECTIVE DATE. This Amendment shall be effective immediately upon
execution by the Company and the Agent.
* * * * * *
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IN WITNESS WHEREOF, the parties have executed and delivered this Amendment
as of the date first above written.
COLLAGENEX PHARMACEUTICALS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
Vice President and Chief Financial Officer
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Vice President
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