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EXHIBIT 4.1
GLIATECH INC.
00000 XXXXXXXX XXXX XXXX
XXXXXXXXX, XXXX
May 29, 2000
American Stock Transfer & Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
Re: Amendment No. 2 to Rights Agreement
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Ladies and Gentlemen:
Pursuant to Section 27 of the Rights Agreement (the "Rights
Agreement"), dated as of July 1, 1997, as amended November 17, 1999, between
Gliatech Inc. (the "Company") and American Stock Transfer & Trust Company, as
rights agent, the Company, by resolution adopted by its Directors, hereby amends
the Rights Agreement as follows:
1. Section 1(j) of the Rights Agreement is hereby amended and restated
in its entirety as follows:
(j) "Expiration Date" means the earliest of (i) the Close of
Business on the Final Expiration Date, (ii) the time at which
the Rights are redeemed as provided in Section 23, (iii) the
time at which all exercisable Rights are exchanged as provided
in Section 24, and (iv) immediately prior to the Effective
Time (as defined in the Merger Agreement."
2. Section 1(a) of the Rights Agreement is hereby amended by adding the
following new Section 1(ff) at the end of such Section:
(ff) "Merger Agreement" means the Agreement and Plan of Merger,
dated as of May 29, 2000, among the Company, St. Xxxx
Development Corp., a Delaware corporation ("Merger Co.") and
Guilford Pharmaceuticals Inc., a Delaware corporation
("Acquiror").
3. Section 1 of the Rights Agreement is hereby amended by adding the
following new paragraph at the end of that Section:
Notwithstanding anything in this Agreement to the
contrary, none of Acquiror, Merger Co., any of their
Affiliates or Associates or any of their permitted assignees
or transferees shall be deemed an Acquiring Person and none
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American Stock Transfer & Trust Company
May 29, 2000
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of a Distribution Date, a Share Acquisition Date, or a
Triggering Event shall be deemed to occur or to have occurred,
and that the Rights will not become separable, distributable,
unredeemable or exercisable, in each such case, by reason or
as a result of the approval, execution or delivery of the
Merger Agreement (as defined in the Merger Agreement), the
consummation of the Merger (as defined in the Merger
Agreement) or the consummation of the other transactions
contemplated by the Merger Agreement, including, without
limitation, the execution of a Stockholder Agreement in favor
of the Acquiror by each of the directors and certain officers
of the Company.
4. The Rights Agreement shall not otherwise be supplemented or amended
by virtue of this Amendment No. 2 to the Rights Agreement, but shall remain in
full force and effect.
5. Capitalized terms used without other definitions in this Amendment
No. 2 to the Rights Agreement shall be used as defined in the Rights Agreement.
6. This Amendment No. 2 to the Rights Agreement shall be deemed to be a
contract made under the laws of the State of Delaware and for all purposes will
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.
7. This Amendment No. 2 to the Rights Agreement may be executed in any
number of counterparts and each such counterpart shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
8. This Amendment No. 2 to the Rights Agreement shall be effective as
of, and immediately prior to, the execution and delivery of the Merger
Agreement, and all references to the Rights Agreement shall, from and after such
time, be deemed to be references to the Rights Agreement as amended hereby.
9. Exhibits B and C to the Rights Agreement shall be deemed amended in
a manner consistent with this Amendment No. 2 to the Rights Agreement.
Very truly yours,
Gliatech Inc.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Executive V.P. and CFO
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American Stock Transfer & Trust Company
May 29, 2000
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Accepted and agreed to as of the
effective time specified above:
American Stock Transfer & Trust Company
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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