AMENDMENT TO SHAREHOLDER RIGHTS AGREEMENT
This Amendment, dated the 18th day of September, 1998, is between
Aquila Biopharmaceuticals, Inc., a Delaware corporation (the "Company") and
American Stock Transfer & Trust Company, a trust company organized under the
laws of the State of New York (the "Rights Agent").
WHEREAS, the Company and the Rights Agent entered into a
Shareholder Rights Agreement dated May 26, 1998 (the "Agreement"); and
WHEREAS, the parties hereto desire to amend the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants provided
herein and in the Agreement, the parties hereto agree as follows:
1. To amend Xxxxxxx 0, Xxxxxxxxx (x) by deleting the following
parenthetical:
"(provided that at the time of such determination of the Board
of Directors there are then in office not less than five Continuing Directors
and such determination is approved by a majority of the Continuing Directors
then in office)."
2. To delete Section 1, Paragraph (h) in its entirety.
3. To delete from Xxxxxxx 00, Xxxxxxxxx (x)(xx) the reference to
"Continuing Directors" and substitute in place thereof, "Directors".
4. To delete from Section 11, Paragraph (d)(i), in the third
sentence, the following:
"including, if at the time of such determination there is an
Acquiring Person or an Adverse Person, a majority of the Continuing Directors
then in office, or if there are no Continuing Directors, by a nationally
recognized investment firm selected by the Board of Directors,".
5. To delete from Xxxxxxx 00, Xxxxxxxxx (x)(xx), the following:
"including, if at the time of such determination there is an
Acquiring Person or an Adverse Person, a majority of the Continuing Directors
then in office, or if there are no Continuing Directors, by a nationally
recognized investment firm selected by the Board of Directors,".
6. To delete from Xxxxxxx 00, Xxxxxxxxx (x)(xxx), the following:
"including, if at the time of such determination there is an
Acquiring Person or an Adverse Person, a majority of the Continuing Directors
then in office, or if there are no Continuing Directors, by a nationally
recognized investment firm selected by the Board of Directors,".
7. To delete from the last sentence of Xxxxxxx 00, Xxxxxxxxx (x):
"there are Continuing Directors then in office and" and
"including at least a majority of the Continuing Directors."
8. To delete from Section 26, clause (iii) the following:
"(which shortening or lengthening shall be effective only if
there are Continuing Directors then in office and shall require the concurrence
of such Continuing Directors if (A) such supplement or amendment occurs at or
after the time a person becomes an Acquiring Person or an Adverse Person, or
(B) such supplement or amendment occurs on or after the date of a change
(resulting from one or more proxy or consent solicitations) in a majority of
the directors then in office at the commencement of such solicitation if any
Person who is a participant in such solicitation has stated (or, if upon the
commencement of such solicitation, a majority of the Board of Directors of the
Company has determined in good faith) that such Person (or any of its Affiliates
or Associates) intends to take, or may consider taking, any action which would
result in such Person becoming an Acquiring Person or an Adverse Person or which
would cause the occurrence of a Triggering Event)".
9. To delete from Section 28, in the two places where such quote
appears therein, the following:
"(with, where specifically provided for herein, the concurrence
of the Continuing Directors)"
and further to delete the following from said Section 28:
"(or, where specifically provided for herein, by the Continuing
Directors)"
and further to delete the following from the last sentence of said Section
28, clause (y):
"or any of the Continuing Directors".
10. To delete from Section 30 the following:
"(including, if at the time of such determination, there is an
Acquiring Person or an Adverse Person, a majority of the Continuing Directors
then in office)".
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
AQUILA BIOPHARMACEUTICALS, INC.
/s/ Xxxxxx Xxxxxxx-Xxxxx
By:_________________________________
AMERICAN STOCK TRANSFER & TRUST COMPANY
/s/ Xxxxxxx X. Xxxxxx
By:___________________________
