EXHIBIT 4.4
SECOND AMENDMENT TO RIGHTS AGREEMENT
THIS SECOND AMENDMENT TO RIGHTS AGREEMENT (this "Second Amendment") is
entered into as of the 30th day of October, 2002, by and between Zonagen, Inc.,
a Delaware corporation (the "Company"), and Computershare Investor Services, LLC
("Rights Agent"), and amends that certain Rights Agreement dated as of September
1, 1999 and amended as of September 6, 2002 by and between the Company and the
Rights Agent.
RECITALS
WHEREAS, the Company and Rights Agent are parties to a Rights Agreement
dated as of September 1, 1999, as amended by a First Amendment to Rights
Agreement dated September 6, 2002 (as amended, the "Rights Agreement"); and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
and the Rights Agent, at the direction of the Company, hereby agree to amend the
Rights Agreement as set forth below.
NOW, THEREFORE, the Rights Agreement is hereby amended as follows:
1. Section 1(p) of the Rights Agreement is hereby amended and restated
in its entirety to read as follows:
"(p) Exempt Person" shall mean (i) the Company, (ii) any
Subsidiary (as such term is hereinafter defined) of the
Company, (iii) any employee benefit plan of the Company or
(iv) Lavipharm S.A., a Greek corporation ("Lavipharm Greece"),
Lavipharm Group Holding S.A., a Luxembourg corporation
(together with Lavipharm Greece, the "Lavipharm
Stockholders"), and any Affiliate or Associate of a Lavipharm
Stockholder."
2. Section 3(a) of the Rights Agreement is hereby amended by inserting
the following sentence immediately after the last sentence thereof:
Notwithstanding anything in this Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred and no
Rights shall be exercisable pursuant to any provision of this
Agreement solely by reason of (i) (x) the approval, execution
or delivery of, (y) consummation of the transactions
contemplated under, or (z) the issuance to the Lavipharm
Stockholders of Common Shares pursuant to, the Agreement and
Plan of Merger, dated as of October 30, 2002, among the
Company, Lavipharm Corp., a Delaware corporation, and the
Lavipharm Stockholders, as the same may be amended from time
to time in accordance with its terms or (ii) any other
acquisition of, or agreement to acquire, Common Shares by a
Lavipharm Stockholder or any Affiliate or Associate thereof.
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3. The Recitals set forth at the beginning of this Second Amendment are
incorporated herein.
4. Except as amended by this Second Amendment, the Rights Agreement
shall remain in full force and effect.
5. This Second 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 Second 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 Second Amendment is held by a court of competent
jurisdiction or other authority to be invalid, illegal, or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Second
Amendment shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed and attested, all as of the day and year first
above written.
COMPUTERSHARE INVESTOR
SERVICES LLC, as Rights Agent
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, Director,
Client Services
ZONAGEN, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx Xxxxxxxx, President and
Chief Executive Officer
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