Exhibit 4.1
AMENDMENT NO. 1
TO
RIGHTS AGREEMENT
This AMENDMENT NO. 1 TO RIGHTS AGREEMENT (the "Amendment") is entered into as of
August 27, 2003, between Hybridon, Inc., a Delaware corporation (the "Company"),
and Mellon Investor Services LLC, a New Jersey limited liability company, as
Rights Agent (the "Rights Agent"). Capitalized terms not otherwise defined
herein shall have the meanings given them in the Rights Agreement dated as of
December 10, 2001, between the parties hereto.
RECITALS
WHEREAS, the Board has determined that it is in the best interest of the Company
to amend the Rights Agreement to modify the definition of Acquiring Person to
exclude a certain stockholder of the Company from such definition in specified
circumstances; and
WHEREAS, the Company has determined that the Rights Agreement be amended in
accordance with Section 27 of the Rights Agreement, as set forth herein, and the
Rights Agent is hereby directed to join in the amendment to the Rights Agreement
as set forth herein.
AGREEMENT
NOW THEREFORE, the parties hereto, intending to be legally bound, hereby agree
as follows:
1. Section 1(a) of the Rights Agreement is hereby amended to read in its
entirety as follows:
"(a) "Acquiring Person" shall mean any Person who or which, together
with all Affiliates and Associates of such Person, shall be the Beneficial
Owner of 15% or more of the shares of Common Stock then outstanding, but
shall not include (i) the Company, (ii) any Subsidiary of the Company,
(iii) any employee benefit plan of the Company or of any Subsidiary of the
Company, (iv) any Person organized, appointed or established by the Company
for or pursuant to the terms of any such plan, or (v) an Exempted Person.
Notwithstanding the foregoing, (x) no Person shall become an "Acquiring
Person" as the result of an acquisition of Common Stock by the Company
which, by reducing the number of shares outstanding, increases the
proportionate number of shares beneficially owned by such Person to 15% or
more of the shares of Common Stock of the Company then outstanding;
provided, however that if a Person shall become the Beneficial Owner of 15%
or more of the shares of Common Stock of the Company then outstanding as
the result of an acquisition of Common Stock by the Company and shall,
following written notice from, or public disclosure by the Company of such
share purchases by the Company become the Beneficial Owner of any
additional Common Stock of the Company and shall then beneficially own 15%
or more of the shares of Common Stock then outstanding, then such Person
shall be deemed to be an "Acquiring Person" and (y) no Person who was a
holder of Series A Preferred Stock on the date of this Agreement shall
become an "Acquiring Person" solely as the result of such holder's receipt
after the date of this Agreement of additional shares of Series A Preferred
Stock as a payment-in-kind dividend (or as a result of the conversion into
Common Stock of any such additional shares of Series A Preferred Stock),
unless and until such Person becomes the Beneficial
Owner of 15% or more of the shares of Common Stock of the Company then
outstanding (disregarding for purposes of this calculation (but not for
purposes of any other calculation under this Agreement) (1) any Series A
Preferred Stock received by such Person after the date of this Agreement as
a payment-in-kind dividend and (2) any shares of Common Stock received by
such Person as a result of the conversion into Common Stock of any shares
of Series A Preferred Stock referred to in the foregoing clause (1)) and
(z) if the Board determines in good faith that a Person who would otherwise
be an "Acquiring Person," as defined pursuant to the foregoing provisions
of this paragraph (a), has become such inadvertently, and such Person
divests as promptly as practicable (as determined in good faith by the
Board), but in any event within 15 Business Days, following receipt of
written notice from the Company of such event, of Beneficial Ownership of a
sufficient number of shares of Common Stock so that such Person would no
longer be an "Acquiring Person," as defined pursuant to the foregoing
provisions of this paragraph (a), then such Person shall not be deemed to
be an "Acquiring Person," for any purposes of this Agreement unless and
until such Person shall again become an "Acquiring Person.""
2. Section 1 of the Rights Agreement is hereby amended by adding the following
section:
"(oo) "Exempted Person" shall mean Pillar Investment Limited, together with
all of its Affiliates and Associates ("Pillar"), unless and until the
earlier of such time as Pillar, directly or indirectly, becomes the
Beneficial Owner of (x) more than 11,000,000 shares of Common Stock
(subject to appropriate adjustment for stock splits, stock dividends,
recapitalizations, reclassifications and other similar events
affecting the Common Stock) or (y) less than 14% of the Common Stock
then outstanding, in either of which event, Pillar immediately shall
cease to be an Exempted Person."
3. Section 3(a) of the Rights Agreement is hereby amended by deleting the
first sentence of Section 3(a) in its entirety and inserting in lieu thereof the
following sentence:
"Section 3. Issuance of Rights.
(a) Until the earlier of (i) the Close of Business on the tenth
Business Day (or such later date as may be determined by the Board) after
the Stock Acquisition Date (or, if the tenth Business Day after the Stock
Acquisition Date occurs before the Record Date, the close of business on
the Record Date), or (ii) the Close of Business on the tenth Business Day
(or such later date as may be determined by action of the Board) after the
date that a tender or exchange offer (other than a Permitted Offer) by any
Person (other than the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any Subsidiary of the Company, or any
Person organized, appointed or established by the Company for or pursuant
to the terms of any such plan) is first published or sent or given within
the meaning of Rule 14d-2 of the General Rules and Regulations under the
Exchange Act, if upon consummation thereof, such Person would be the
Beneficial Owner of 15% or more of the shares of Common Stock then
outstanding, or in the case of an Exempted Person, more than 11,000,000
shares of Common Stock (subject to appropriate adjustment for stock splits,
stock dividends, recapitalizations, reclassifications and other similar
events affecting the Common Stock)
(the earlier of (i) and (ii) being herein referred to as the "Distribution
Date"), (x) the Rights will be evidenced by the certificates for the Common
Stock registered in the names of the holders of the Common Stock (which
certificates for Common Stock shall be deemed also to be certificates for
Rights) and not by separate certificates, and (y) the Rights will be
transferable only in connection with the transfer of the underlying shares
of Common Stock (including a transfer to the Company)."
4. Except as amended hereby, the Rights Agreement shall remain unchanged and
shall remain in full force and effect.
5. This Amendment may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one instrument.
6. This Amendment 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 Delaware applicable to contracts made and to be
performed entirely within Delaware; provided, however, that all rights, duties
and obligations of the Rights Agent shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed entirely within such state.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by
their respective duly authorized representatives as of the date first above
written.
HYBRIDON, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
MELLON INVESTORS SERVICES LLC,
as Rights Agent
By: /s/ Xxxxxx XxXxxxxx
Name: Xxxxxx XxXxxxxx
Title: Vice President
