Exhibit 1
RIGHTS AGREEMENT AMENDMENT
This Amendment, dated as of September ____, 2006 (the "AMENDMENT"), to
the Rights Agreement, dated as of May 13, 2005, as amended June 7, 2006 (the
"RIGHTS AGREEMENT"), is between Axonyx Inc., a Nevada corporation (the "COMPANY
"), and The Nevada Agency and Trust Company (the "RIGHTS AGENT").
WHEREAS, the Company entered into an Agreement and Plan of Merger and
Reorganization with TorreyPines Therapeutics, Inc., a Delaware corporation
("TORREYPINES") and Autobahn Acquisition, Inc., a Delaware corporation and
wholly-owned subsidiary of the Company ("MERGER SUB"), pursuant to which, among
other things, Merger Sub will be merged with and into TorreyPines, with
TorreyPines continuing on as a wholly-owned subsidiary of the Company (the
"MERGER");
WHEREAS, in connection with the Merger, the Company will change its
name from "Axonyx Inc." to "TorreyPines Therapeutics, Inc.";
WHEREAS, immediately prior to the closing of the Merger and effective
upon the filing of a certificate of conversion with the Delaware Secretary of
State (the "REINCORPORATION EFFECTIVE TIME"), the Company will reincorporate
from the State of Nevada to the State of Delaware; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
and the Rights Agent may from time to time supplement or amend the Rights
Agreement in accordance with the provisions of Section 27 thereof and the
Company desires and directs the Rights Agent to so amend the Rights Agreement.
In consideration of the foregoing premises and mutual agreements set
forth in the Rights Agreement and this Amendment, the parties hereto agree as
follows:
1. Effective as of the Reincorporation Effective Time,
the Certificate of Designation of Axonyx Inc. attached as Exhibit A to the
Rights Agreement, shall be replaced in its entirety by the Certificate of
Incorporation of TorreyPines Therapeutics, Inc. in the form attached hereto as
Exhibit A.
2. Effective as of the Reincorporation Effective Time,
Section 32 of the Rights Agreement, is hereby modified and amended to read in
its entirety as follows:
"Governing Law. This Agreement, each Right and each Rights
Certificate issued hereunder 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 to be performed entirely within
such state."
3. Except as expressly amended hereby, the Rights
Agreement remains in full force and effect in accordance with its terms. By
executing this Amendment below, the Company certifies that this Amendment has
been executed and delivered in compliance with the
terms of Section 27 of the Rights Agreement. This Amendment shall become
effective as of the Reincorporation Effective Time.
4. All acts and things necessary to make this Amendment
a valid agreement according to its terms have been done and performed, and the
execution and delivery of this Amendment by the Company and the Rights Agent
have been in all respects authorized by the Company and the Rights Agent.
5. This Amendment to the Rights Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware.
6. This Amendment to the Rights Agreement may be
executed in any number of counterparts and each of such counterparts shall for
all purposes be deemed an original, and all such counterparts shall together
constitute but one and the same instrument.
7. Except as expressly set forth herein, this Amendment
to the Rights Agreement shall not by implication or otherwise alter, modify,
amend or in any way affect any of the terms, conditions, obligations, covenants
or agreements contained in the Rights Agreement, all of which are ratified and
affirmed in all respects and shall continue in full force and effect.
8. 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.
9. Capitalized terms used herein but not defined shall
have the meanings given to them in the Rights Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to the Rights Agreement to be duly executed as of the day and year
first above written.
Axonyx Inc.
By:
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Name:
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Title:
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The Nevada Agency and Trust Company,
as Rights Agent
By:
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Name:
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Title:
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EXHIBIT A
CERTIFICATE OF INCORPORATION
OF
TORREYPINES THERAPEUTICS, INC.
