EXHIBIT 4.2
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 (this "Amendment"), dated as of November 4, 2002,
to the Rights Agreement, dated as of May 10, 2001 (the "Rights Agreement"),
between Applied Molecular Evolution, Inc., a Delaware corporation (the
"Company"), and EquiServe Trust Company, N.A., as Rights Agent (the "Rights
Agent"), is made with reference to the following facts:
A. The Company and the Rights Agent have heretofore entered into the
Rights Agreement. 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 such Section.
B. The Board of Directors of the Company has determined that it is in
the best interests of the Company to amend the Rights Agreement in certain
respects.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein, the parties hereto agree as follows:
1. Subsection 1(a)(ii) of the Rights Agreement is hereby amended by
adding, after clause D, the following clauses:
or (E) Xxxxxxx X. Xxxx, M.D., Ph.D. ("Xxxx"), or any Affiliate or
Associate thereof, as a result of the acquisition by Xxxx of up to 17.5%
of the shares of Common Stock of the Company due to the issuance of
compensatory stock options, or the issuance of Common Stock on the
exercise thereof, previously or subsequently granted under agreements
approved by the Company's Board of Directors pursuant to stock option
plans approved by the stockholders of the Company, or (F) BVF Partners
L.P. ("BVF"), or any Affiliate or Associate thereof, as a result of the
acquisition by BVF and its Affiliates and Associates of up to an
aggregate of 15.8% of the shares of Common Stock of the Company;
2. The first sentence of Section 3(a) of the Rights Agreement is hereby
amended by adding the following to the end of such sentence:
; provided, however, that in no event shall a Distribution Date
be deemed to occur as a result of (i) the acquisition by Xxxx of
up to 17.5% of the shares of Common Stock of the Company due to
the issuance of compensatory stock options, or the issuance of
Common Stock on the exercise thereof, previously or subsequently
granted under agreements approved by the Company's Board of
Directors pursuant to stock option plans approved by the
stockholders of the Company or (ii) the acquisition by BVF and
its Affiliates and Associates of up to an aggregate of 15.8% of
the shares of Common Stock of the Company.
3. No "Stock Acquisition Date" shall be deemed to occur under the Rights
Agreement as a result of (i) the acquisition by Xxxx of up to 17.5% of the
shares of Common Stock of the Company or (ii) the acquisition by BVF and its
Affiliates and Associates of up to an aggregate of 15.8% of the shares of Common
Stock of the Company.
4. Section 22 of the Rights Agreement is hereby amended by adding the
following sentence after the first sentence:
In the event the transfer agency relationship in effect between the
Company and the Rights Agent terminates, the Rights Agent will be deemed
to resign automatically on the effective date of such termination; and
any required notice will be sent by the Company.
5. The Rights Agreement is hereby amended by adding Section 35 which
shall read in its entirety as follows:
Force Majeure. Notwithstanding anything to the contrary contained
herein, Rights Agent shall not be liable for any delays or failures in
performance resulting from acts beyond its reasonable control including,
without limitation, acts of God, terrorist acts, shortage of supply,
breakdowns or malfunctions, interruptions or malfunction of computer
facilities, or loss of data due to power failures or mechanical
difficulties with information storage or retrieval systems, labor
difficulties, war, or civil unrest.
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6. All amendments made to the Rights Agreement in this Amendment shall
be deemed to apply retroactively as well as prospectively.
7. This Amendment shall be governed by and construed in accordance with
the laws of the State of Delaware and for all purposes shall be governed by and
construed in accordance with all laws of such State applicable to contracts to
be made and performed entirely within such State.
8. This Amendment may be executed in counterparts, each of which shall
be an original, but such counterparts shall together constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and attested, all as of the date and year first above written.
Attest: APPLIED MOLECULAR EVOLUTION, INC.
By: /s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxx
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Title: Chief Financial Officer Title: Chief Executive Officer
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Attest: EQUISERVE TRUST COMPANY, N.A.
By: /s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxxxx X. XxXxxx
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Title: Account Manager Title: Senior Account Manager
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