EXHIBIT 1
AMENDMENT TO RIGHTS AGREEMENT
THIS AMENDMENT (this "AMENDMENT") is entered into as of December 3, 2002,
by and between TRIANGLE PHARMACEUTICALS, INC., a Delaware corporation (the
"COMPANY"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, as Rights Agent (the
"RIGHTS AGENT").
RECITALS
A. The Company and the Rights Agent are parties to a Rights Agreement dated
as of February 1, 1999, as amended by the Amendment to Rights Agreement dated as
of June 2, 1999, as further amended by the Amendment to Rights Agreement dated
as of August 24, 2001, and as further amended by the Amendment to Rights
Agreement dated as of July 30, 2002 (as so amended, the "RIGHTS AGREEMENT").
B. The Company, Gilead Sciences, Inc., a Delaware corporation ("PARENT")
and Simbolo Acquisition Sub, Inc., a Delaware corporation and a wholly owned
subsidiary of Parent ("ACQUISITION SUB"), intend to enter into an Agreement and
Plan of Merger (as such agreement may be amended or supplemented from time to
time, the "ACQUISITION AGREEMENT") pursuant to which, among other things, (i)
Acquisition Sub will commence the Offer (as defined in the Acquisition
Agreement), and (ii) if the Offer is consummated pursuant to the Acquisition
Agreement, the Merger (as defined in the Acquisition Agreement) will be
consummated, and the Company will survive the Merger as a wholly owned
subsidiary of Parent;
C. On December 3, 2002, the Board of Directors of the Company resolved to
amend the Rights Agreement to render the Rights inapplicable to the Offer, the
Merger and the other transactions contemplated by the Acquisition Agreement,
including, without limitation, the execution of, and the consummation of the
transactions contemplated by, (i) the Stockholder Agreements (as defined in the
Acquisition Agreement) and (ii) the Financing Documents (as defined in the
Acquisition Agreement).
D. The Board of Directors of the Company has determined it in the best
interest of the Company's stockholders to amend the Rights Agreement as set
forth in this Amendment to ensure that the performance of the Acquisition
Agreement or the other actions set forth in this Amendment will not cause
Parent, Acquisition Sub or any of their "Affiliates" or "Associates" (as each
such term is defined in the Rights Agreement) to become an "Acquiring Person"
(as defined in the Rights Agreement) or to otherwise give rise to a
"Distribution Date," "Shares Acquisition Date," or trigger the Rights.
E. The Company has delivered to the Rights Agent the appropriate
certificate in accordance with Section 27 of the Rights Agreement; and
F. The Company desires to amend the Rights Agreement in accordance with
Section 27 of the Rights Agreement.
Accordingly, the parties agree that:
1. AMENDMENT TO DEFINITION OF "ACQUIRING PERSON" SET FORTH IN SECTION 1(A).
The definition of "Acquiring Person" set forth in Section 1(a) of the Rights
Agreement is amended by adding the following new paragraph at the end of Section
1(a):
"Notwithstanding anything in this Agreement that might otherwise be
deemed to the contrary, (i) neither Gilead Sciences, Inc., a Delaware
corporation ("PARENT"), Simbolo Acquisition Sub, Inc., a wholly owned
subsidiary of Parent ("ACQUISITION SUB"), nor any Affiliates or
Associates of Parent or Acquisition Sub shall be deemed an Acquiring
Person, (ii) no Distribution Date, Triggering Event or Shares
Acquisition Date shall be deemed to occur and (iii) the Rights will not
separate from the Common Stock, in each such case of clauses (i), (ii)
and (iii), in connection with or as a result of the execution, delivery
or performance of the Agreement and Plan of Merger dated as of December
3, 2002, including any amendment or supplement thereto, among Parent,
Acquisition Sub and the Company (the "ACQUISITION AGREEMENT") or the
Stockholder Agreements (as defined in the Acquisition Agreement), the
Financing Documents (as defined in the Acquisition Agreement) or the
purchase of or payment for shares of Common Stock pursuant to the Offer
(as defined in the Acquisition Agreement) or the consummation of the
Merger (as defined in the Acquisition Agreement) or any of the
transactions contemplated thereby or by the Acquisition Agreement or
the public announcement of the execution and delivery of the
Acquisition Agreement, the Stockholder Agreements or the Financing
Documents. No such event shall entitle or permit the holders of the
Rights to exercise the Rights or otherwise affect the rights of the
holders of Rights, including giving the holders of the Rights the right
to acquire securities of any party to the Acquisition Agreement."
2. AMENDMENT TO DEFINITION OF "SHARES ACQUISITION DATE" SET FORTH IN
SECTION 1(JJ). Section 1(jj) of the Rights Agreement, the definition of "Shares
Acquisition Date," is hereby amended by adding the following new paragraph at
the end of Section 1(jj):
"Notwithstanding anything in this Agreement that might otherwise be
deemed to the contrary, a Shares Acquisition Date shall not be deemed
to have occurred in connection with or as a result of the execution,
delivery or performance of the Acquisition Agreement, the Stockholder
Agreements, the Financing Documents or the purchase of or payment for
shares of Common Stock pursuant to the Offer or the consummation of the
Merger or any of the transactions contemplated thereby or by the
Acquisition Agreement or the public announcement of the execution and
delivery of the Acquisition Agreement, the Stockholder Agreements or
the Financing Documents."
3. AMENDMENT TO DEFINITION OF "TRIGGERING EVENT" SET FORTH IN SECTION
1(OO). The last sentence of Section 1(oo) of the Rights Agreement, the
definition of "Triggering Event," is hereby amended to read as follows:
"Notwithstanding anything in this Agreement that might otherwise be
deemed to the contrary, a Triggering Event shall not be deemed to have
occurred (i) by virtue of the Warburg Stock Purchase Agreement or by
virtue of any of the transactions contemplated thereby or (ii) in
connection with or as a result of the execution, delivery or
performance
of the Acquisition Agreement, the Stockholder Agreements, the Financing
Documents or the purchase of or payment for shares of Common Stock
pursuant to the Offer or the consummation of the Merger or any of the
transactions contemplated thereby or by the Acquisition Agreement or
the public announcement of the execution and delivery of the
Acquisition Agreement, the Stockholder Agreements or the Financing
Documents."
4. AMENDMENT TO SECTION 3(A). Section 3(a) of the Rights Agreement is
hereby amended by adding the following new paragraph at the end of Section 3(a):
"Notwithstanding anything in this Agreement that might otherwise be
deemed to the contrary, a Distribution Date shall not be deemed to have
occurred in connection with or as a result of the execution, delivery
or performance of the Acquisition Agreement, the Stockholder
Agreements, the Financing Documents or the purchase of or payment for
shares of Common Stock pursuant to the Offer or the consummation of
the Merger or any of the transactions contemplated thereby or by the
Acquisition Agreement or the public announcement of the execution and
delivery of the Acquisition Agreement, the Stockholder Agreements or
the Financing Documents."
5. AMENDMENT TO SECTION 7(A). Section 7(a) of the Rights Agreement is
hereby amended by replacing the word "or" that appears immediately prior to the
symbol "(iii)" with a comma and deleting the parenthetical contained at the end
of Section 7(a) and by adding the following to the end of the amended Section
7(a):
", or (iv) the moment in time immediately prior to the Effective Time
(as defined in the Acquisition Agreement) (the earliest of (i), (ii),
(iii) and (iv) being herein referred to as the "EXPIRATION DATE")"
6. MISCELLANEOUS. Except as set forth herein, the Rights Agreement shall
remain in full force and effect and shall be otherwise unaffected by this
Amendment. 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 such State applicable to contracts to be made and
performed entirely within such State. This Amendment may be executed in any
number of counterparts, 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. 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 and shall in no way be affected, impaired or invalidated.
(signature on following page)
(Signature Page to the Amendment to Rights Agreement)
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to Rights
Agreement to be duly executed and attested, all as of the day and year first
above written.
ATTEST: TRIANGLE PHARMACEUTICALS, INC.
By: /s/ R. XXXXXX XXXXXX By: /s/ XXXXXX X. XXXXX
------------------------------- -----------------------------------
Name: R. Xxxxxx Xxxxxx Name: Xxxxxx X. Xxxxx
Title: Secretary Title: Chairman and Chief Executive
Officer
ATTEST: AMERICAN STOCK TRANSFER & TRUST
COMPANY
By: /S/ XXXXX XXXXXX By: /S/ XXXXXXX X. XXXXXX
--------------------------- -----------------------------------
Name: Xxxxx Xxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary Title: Vice President
