EXHIBIT 4.3
FIRST AMENDMENT TO RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO RIGHTS AGREEMENT (this "First Amendment") is
entered into as of the 6th day of September, 2002, by and between Zonagen, Inc.,
a Delaware corporation (the "Company"), and Computershare Investor Services, LLC
("Computershare") and Xxxxxx Trust and Savings Bank ("Xxxxxx"), and amends that
certain Rights Agreement dated as of September 1, 1999 by and between the
Company and the Rights Agent (the "Rights Agreement").
RECITALS
WHEREAS, the Company and Xxxxxx are parties to a Rights Agreement dated as
of September 1, 1999 (the "Rights Agreement");
WHEREAS, the Company desires to appoint Computershare as successor Rights
Agent under the Rights Agreement, effective as of September 6, 2002, and as of
such date, Xxxxxx will be relieved of its duties as Rights Agent under the
Rights Agreement;
WHEREAS, the Company, pursuant to Section 27 of the Rights Agreement,
desires to amend the Rights Agreement to extend the date of termination and on
September 6, 2002, the Board of Directors approved resolutions authorizing the
amendment of the Rights Plan as herein provided; 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. Termination of Rights Agent. The Company hereby terminates Xxxxxx as
Rights Agent under the Rights Agreement, effective as of September 6, 2002.
2. Appointment of the Successor Rights Agent. The Company hereby appoints
Computershare as successor Rights Agent under the Rights Agreement, effective as
of September 6, 2002, and Computershare hereby accepts such appointment.
3. Amendment of Rights Agreement. Effective as of the date of appointment
of Computershare as successor Rights Agent, the Rights Agreement shall be
amended as follows:
(a) Section 25 of the Rights Agreement is hereby amended by deleting the
address for notice or demand to be given to the Rights Agent therein and
substituting in lieu thereof the following:
"Computershare Investor Services, LLC
Xxx Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx"
(b) All references in the Rights Agreement to "Xxxxxx Trust and Savings
Bank" or any prior Rights Agents shall for all purposes be deemed to refer
to "Computershare Investor Services, LLC."
(c) Section 7(a) of the Rights Agreement is hereby amended by replacing
the reference to "September 13, 2002" in subsection (i) of Section 7(a)
with "September 13, 2005."
(d) Amendment of Section 21.
Section 21 of the Rights Agreement is amended and replaced in its
entirety to read as follows:
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under
this Agreement upon thirty (30) days' notice in writing mailed to the
Company and to each transfer agent of the Preferred Stock and Common Stock
by registered or certified mail, and to the holders of the Right
Certificates by first-class mail. The Company may remove the Rights Agent
or any successor Rights Agent upon thirty (30) days' notice in writing,
mailed to the Rights Agent or successor Rights Agent, as the case may be,
and to each transfer agent of the Preferred Stock or Common Stock by
registered or certified mail, and to the holders of the Right Certificates
by first-class mail. If the Rights Agent shall resign or be removed or
shall otherwise become incapable of acting, the resigning, removed, or
incapacitated Rights Agent shall remit to the Company, or to any successor
Rights Agent designated by the Company, all books, records, funds,
certificates or other documents or instruments of any kind then in its
possession which were acquired by such resigning, removed or incapacitated
Rights Agent in connection with its services as Rights Agent hereunder,
and shall thereafter be discharged from all duties and obligations
hereunder. Following notice of such removal, resignation or incapacity,
the Company shall appoint a successor to such Rights Agent. If the Company
shall fail to make such appointment within a period of thirty (30) days
after giving notice of such removal or after it has been notified in
writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a Right Certificate (who
shall, with such notice, submit his Right Certificate for inspection by
the Company), then any registered holder of any Right Certificate may
apply to any court of competent jurisdiction for the appointment of a new
Rights Agent. Any successor Rights Agent, whether appointed by the Company
or by such a court, shall be (a) a corporation, limited liability company
or trust company (or similar form of entity under the laws of any state of
the United States or a foreign jurisdiction) authorized to conduct
business under the laws of the United States or any state of the United
States, which is authorized under such laws to exercise corporate trust,
fiduciary or stockholder services powers and is subject to supervision or
examination by a federal or state authority and which has at the time of
its appointment as Rights Agent a combined capital and surplus of at least
$10,000,000 or (b) an Affiliate
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controlled by an entity described in clause (a) of this sentence. After
appointment, the successor Rights Agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally
named as Rights Agent without further act or deed; but the predecessor
Rights Agent shall deliver and transfer to the successor Rights Agent any
property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Not
later than the effective date of any such appointment, the Company shall
file notice thereof in writing with the predecessor Rights Agent and each
transfer agent of the Common Stock or Preferred Stock, and mail a notice
thereof in writing to the registered holders of the Right Certificates.
Failure to give any notice provided for in this Section 21, however, or
any defect therein, shall not affect the legality or validity of the
resignation or removal of the Rights Agent or the appointment of the
successor Rights Agent, as the case may be.
4. The Recitals set forth at the beginning of this First Amendment are
incorporated herein.
5. Except as amended by this First Amendment, the Rights Agreement shall
remain in full force and effect.
6. Miscellaneous.
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, illegal, 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.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed and attested, all as of the day and year first above written.
ZONAGEN, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
President and Chief Executive Officer
COMPUTERSHARE INVESTOR SERVICES, LLC
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Manager, Client Services
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxxx X. XxXxxx, Xx.
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Name: Xxxxxx X. XxXxxx, Xx.
Title: Vice President
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