Exhibit 4.2
FIRST AMENDMENT TO THE RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO THE RIGHTS AGREEMENT (this "Amendment"),
dated as of November 12, 2002, is made by and between OraPharma, Inc., a
Delaware corporation (the "Company"), and StockTrans, Inc., as Rights Agent (the
"Rights Agent"). The Company and the Rights Agent may be individually referred
to herein as a "Party" and, collectively, as the "Parties."
BACKGROUND
A. The Parties entered into a Rights Agreement, dated as of August 1, 2002
(the "Agreement"). Capitalized terms not otherwise defined herein shall have the
meaning ascribed to such terms in the Agreement.
X. Xxxxxxx & Xxxxxxx, a New Jersey corporation ("Parent"), Pivot Merger
Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent
("Sub") and the Company are entering into an Agreement and Plan of Merger, dated
as of the date hereof (as amended or supplemented from time to time, the "Merger
Agreement"), pursuant to which Sub shall be merged with and into the Company
with the Company surviving the merger.
C. Certain stockholders of the Company, in connection with the Merger
Agreement, are entering into that certain Stockholder Agreement with Parent,
dated as of the date hereof (as amended or supplemented from time to time, the
"Stockholder Agreement"), and Parent will become a Beneficial Owner (as such
term is defined in the Agreement) of the shares subject to the Stockholder
Agreement upon its execution.
D. The Board of Directors of the Company has determined that an amendment
to the Rights Agreement as set forth herein is advisable and in the best
interests of the Company and its stockholders.
E. Pursuant to Section 27 of the Agreement, the Company has directed the
Rights Agent to join this Amendment.
TERMS
In consideration of the mutual covenants contained herein and in the
Agreement and intending to be legally bound hereby, the Parties agree as
follows:
1. Amendment of Section 1(a). The definition of "Acquiring Person"
in Section 1(a) of the Agreement is hereby amended by adding the following at
the end thereof:
"none of Xxxxxxx & Xxxxxxx, a New Jersey corporation ("Parent"),
Pivot Merger Sub, Inc., a Delaware corporation and a wholly owned
subsidiary of Parent ("Sub" and collectively with Parent,
"Acquiror") nor any of their respective Affiliates or Associates
shall be deemed to be an Acquiring Person solely by reason of the
approval, execution, delivery and performance of the Agreement and
Plan of Merger, dated as of November 12, 2002, by and among Parent,
Sub and the Company (as amended or supplemented from time to time,
the "Merger Agreement"), or the Stockholder Agreement, dated as of
November 12, 2002 by and among Parent and certain stockholders of
the Company party thereto (as amended or supplemented from time to
time, but excluding any amendment or supplement that has the effect
of adding a stockholder of the Company as a party thereto) (the
"Stockholder Agreement") or the consummation of any other
transaction to be effected thereby."
2. Amendment to Section 1(hh). The definition of "Stock Acquisition
Date" in Section 1(hh) of the Agreement is amended by inserting the following
sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a Stock
Acquisition Date shall not be deemed to have occurred solely as the
result of the public announcement, approval, execution, delivery and
performance of the Merger Agreement or the Stockholder Agreement or
the consummation of any other transaction to be effected thereby."
3. Amendment to Section 1(mm). The definition of "Triggering Event"
in Section 1(mm) of the Agreement is hereby deleted in its entirety and replaced
with the following:
"(mm) "Triggering Event" shall mean any Section 11(a)(ii) Event or
Section 13 Event, provided that none of the approval, execution,
delivery and performance of the Merger Agreement or the Stockholder
Agreement or the consummation of any other transaction to be
effected thereby shall be deemed to be a Triggering Event."
4. Amendment to Section 3(a). Section 3(a) of the 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 solely by
reason of the approval, execution, delivery and performance of the
Merger Agreement or the Stockholder Agreement or the consummation of
any other transaction to be effected thereby."
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5. Amendment to Section 11(a)(ii). Section 11(a)(ii) of the
Agreement is hereby amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, none of
the approval, execution, delivery and performance of the Merger
Agreement or the Stockholder Agreement or the consummation of any
other transaction to be effected thereby shall cause the Rights to
be adjusted or become exercisable in accordance with this Section
11(a)(ii)."
6. Amendment to Section 7(a). Section 7(a) of the Agreement is
hereby amended by adding the phrase "(x)" immediately following the phrase
"(i)"; by deleting the phrase (the "Final Expiration Date") and replacing such
phrase with the following clause "(y)" or (y) immediately prior to the Effective
Time (as defined in the Merger Agreement) (the earlier to occur of (x) or (y),
the "Final Expiration Date")."
7. Amendment to Section 13. The following Section 13(f) is hereby
added after Section (e):
"(f) Notwithstanding anything contained in this Agreement to the
contrary, in no event shall the provisions of this Section 13 apply
to the approval, execution, delivery and performance of the Merger
Agreement or the Stockholder Agreement or the consummation of any
other transaction to be effected thereby."
8. Other Provisions Unaffected. This Amendment shall be deemed to be
in full force and effect immediately prior to the execution and delivery of the
Merger Agreement and the Stockholder Agreement.
9. Miscellaneous.
a. Counterparts. This Amendment may be executed in any number of
counterparts and 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.
b. Governing Law. This Amendment, the Agreement, each Right and each
Right Certificate issued hereunder or thereunder 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 and in accordance with the laws of such State
applicable to contracts to be made and performed entirely within such State;
provided, however, that all provisions regarding the 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 to be made and
performed entirely within such state.
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c. Further Assurances. Each Party shall cooperate and take such
action as may be reasonably requested by another Party in order to carry out the
provisions and purposes of this Amendment, the Agreement, generally, and the
transactions contemplated hereunder and/or thereunder.
d. Descriptive Headings. Descriptive headings of the several
Sections of this Amendment and the Agreement are inserted for convenience only
and shall not control or affect the meaning or construction of any of the
provisions hereof or thereof.
e. Entire Agreement. This Amendment and the Agreement, and all of
the provisions hereof and /or thereof, shall be binding upon and inure to the
benefit of the Parties and their respective successors and permitted assigns and
executors, administrators and heirs. This Amendment, together with the
Agreement, sets forth the entire agreement and understanding among the Parties
as to the subject matter hereof and merges with and supercedes all prior
discussions and understandings of any and every nature among them.
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IN WITNESS WHEREOF, the Parties have executed this First Amendment
to the Rights Agreement as the date first set forth above.
ORAPHARMA, INC.
/s/ Xxxxxxx X. Xxxxxxxxx
By: _______________________________
Name: Xxxxxxx X. Xxxxxxxxx
Title: President and CEO
STOCKTRANS, INC.
/s/ Xxxx Xxxxxx
By: _______________________________
Name: Xxxx Xxxxxx
Title: Vice President
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