EXHIBIT 4.5
THIRD AMENDMENT TO STOCKHOLDER RIGHTS AGREEMENT
THIS THIRD AMENDMENT TO STOCKHOLDER RIGHTS AGREEMENT (this "Amendment"),
is executed by and between Enchira Biotechnology Corporation (f/k/a Energy
BioSystems Corporation), a Delaware corporation (the "Company"),
Computershare Investor Services, LLC ("Computershare") and Xxxxxx Trust and
Savings Bank ("Xxxxxx"), at the direction of the Company.
RECITALS
WHEREAS, the Company and Xxxxxx are parties to a Stockholder Rights
Agreement dated as of March 8, 1995, as amended by that certain First
Amendment dated as of April 30, 1997 and Second Amendment to Rights Agreement
dated June 22, 2000 (the "Rights Agreement");
WHEREAS, the Company desires to appoint Computershare as successor
Rights Agent under the Rights Agreement, effective as of February 25, 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 26 of the Rights Agreement,
desires to amend the Rights Agreement and on February 19, 2002, the Board of
Directors approved resolutions authorizing the amendment of the Rights Plan
as herein provided; and
WHEREAS, pursuant to Section 26 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 February 25, 2002.
2. APPOINTMENT OF THE SUCCESSOR RIGHTS AGENT. The Company hereby
appoints Computershare as successor Rights Agent under the Rights Agreement,
effective as of February 25, 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) AMENDMENT OF SECTION 1.
A. Section 1(a) of the Rights Agreement is amended in its entirety
to read as follows:
(a) "Acquiring Person" shall mean any Person (as
such term is hereinafter defined) who or which, together
with all Affiliates and Associates (as such terms are
hereinafter defined) of such Person, shall be the
Beneficial Owner (as such term is hereinafter defined) of
20% or more of the Common Shares of the Company then
outstanding, but shall not include (i) the Company, (ii)
any Subsidiary (as such term is hereinafter defined) of
the Company, (iii) any employee benefit plan of the
Company or of any Subsidiary of the Company or any Person
or entity holding shares of capital stock of the Company
for or pursuant to the terms of any such plan, in its
capacity as an agent or trustee for any such plan, and
(iv) any registered investment company or registered
investment adviser acquiring or holding shares in the
ordinary course of business for its clients and not for
its own benefit for so long as such registered investment
company or registered investment adviser is permitted to
report its Beneficial Ownership of Common Shares on a
Schedule 13G filed under the Exchange Act (as such term is
hereinafter defined) (such registered investment company
and registered investment adviser being hereinafter
referred to as a "Schedule 13G Filer"). Notwithstanding
the foregoing, no Person shall become an "Acquiring
Person" as the result of an acquisition of Common Shares
(i) by the Company which, by reducing the number of
shares outstanding, increases the proportionate number of
shares beneficially owned by such Person to 20% or more
of the Common Shares of the Company then outstanding or
(ii) by the Person solely as the result of the conversion
or redemption of shares of the Company's Series B
Preferred Stock, par value $.01 per share ("Series B
Preferred Stock"), held by such Person (including any
Common Shares received in such conversion or redemption
in payment of any accrued but unpaid dividends on the
Series B Preferred Stock held by such Person); provided,
however, that such Person shall be deemed to be an
"Acquiring Person" if such Person shall become the
Beneficial Owner of 20% or more of the Common Shares of
the Company then outstanding as a result of either share
purchases by the Company or the conversion or redemption
of Series B Preferred Stock owned by such Person
(including any Common Shares received in such conversion
or redemption in payment of any accrued but unpaid
dividends on the Series B Preferred Stock held by such
Person) and shall, after such share purchases by the
Company or such conversion or redemption of Series B
Preferred Stock, as the case may be, become the Beneficial
Owner of any additional Common Shares of the Company.
B. Section 1(s) of the Rights Agreement is amended to remove the
references to the definitions of "Ethyl," "Gryphon" and "Xxxxx" contained
therein.
(d) AMENDMENT OF SECTION 3.
Section 3(a) of the Rights Agreement is amended in its entirety to read
as follows:
(a) Until the earlier of (i) the close of business on the
30th day after the Shares Acquisition Date and (ii) the close
of business on the 30th day after the date that a tender or
exchange offer by any Person
(other than the Company, any Subsidiary of the Company,
any employee benefit plan of the Company or of any
Subsidiary of the Company, or any entity holding shares
of capital stock of the Company for or pursuant to the
terms of any such plan, in its capacity as an agent or
trustee for any such plan or a Schedule 13G Filer) is
first published or sent or given within the meaning of
Rule 14d-2(a) (or any successor rule) of the General
Rules and Regulations under the Exchange Act, the
consummation of which would result in any Person becoming
the Beneficial Owner of Common Shares aggregating 20% or
more of the then outstanding Common Shares (including any
such date which is after the date of this Agreement and
prior to the issuance of the Rights; the earlier of such
dates being herein referred to as the "Distribution
Date"), (x) the Rights will be evidenced (subject to the
provisions of paragraph (b) of this Section 3) by the
certificates for Common Shares registered in the names of
the holders thereof (which certificates for Common Shares
shall also be deemed to be certificates for the Rights)
and not by separate certificates, and (y) the Rights and
interests therein will be transferable only in connection
with the transfer of the associated Common Shares. As
soon as practicable after the Distribution Date, the
Company will prepare and execute, the Rights Agent will
countersign, and the Company will send or cause to be
sent (and the Rights Agent will, if requested, send) by
first-class, insured, postage-prepaid mail, to each
record holder of Common Shares as of the close of
business on the Distribution Date, at the address of such
holder shown on the records of the Company, one or more
Rights certificates, in substantially the form of Exhibit
B hereto (a "Rights Certificate"), evidencing one Right
for each Common Share so held, subject to adjustment as
provided herein. In the event that an adjustment in the
number of Rights per Common Share has been made pursuant
to Section 11(n) hereof, then at the time of distribution
of the Rights Certificates, the Company shall make the
necessary and appropriate rounding adjustments (in
accordance with Section 14(a) hereof) so that Rights
Certificates representing only whole numbers of Rights
are distributed and cash is paid in lieu of any fractional
Rights. As of and after the Distribution Date, the Rights
will be evidenced solely by such Rights Certificate.
(e) AMENDMENT OF SECTION 11.
Section 11(a)(ii) of the Rights Agreement is amended in its entirety to
read as follows:
(ii) In the event that any Person (other than (i)
the Company, (ii) any Subsidiary of the Company, (iii)
any employee benefit plan of the Company or of any
Subsidiary of the Company or any Person or entity holding
shares of capital stock of the Company for or pursuant to
the terms of any such plan, in its capacity as an agent
or trustee for any such plan or (iv) a Schedule 13G
Filer), alone or together with its Affiliates and
Associates, shall, at any time after the Rights Dividend
Declaration Date, become an Acquiring Person then,
promptly following the first occurrence of such event,
proper provision shall be made so that each holder of a
Right (except as provided in Section 7(e) hereof) shall
thereafter have the right to receive, upon exercise
thereof at the then current Purchase Price in accordance
with the terms of this Agreement and in lieu of Preferred
Share Fractions, such number of Common Shares
of the Company as shall equal the result obtained by (x)
multiplying the then current Purchase Price by the then
number of Preferred Share Fractions for which a Right is
then exercisable and (y) dividing that product (which
shall thereafter be referred to as the "Purchase Price"
for each Right and for all purposes of this Agreement) by
50% of the then current market price (determined pursuant
to Section 11(d) hereof) per Common Share on the fifth day
after the date on which a Person has become an Acquiring
Person, or the fifth day after the Shares Acquisition
Date, whichever market price shall be less (such number
of shares being hereinafter referred to as the
"Adjustment Shares"). In the event that any Person shall
become an Acquiring Person and the Rights shall then be
outstanding, the Company shall not take any action that
would eliminate or diminish the benefits intended to be
afforded by the Rights.
(f) 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 Shares and
Common Shares by registered or certified mail, and to the
holders of the Rights 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 Shares or Common Shares by registered or
certified mail, and to the holders of the Rights
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 Rights Certificate (who shall, with such
notice, submit his Rights Certificate for inspection by
the Company), then any registered holder of any Rights
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 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 Shares or Preferred
Shares, and mail a notice thereof in writing to the
registered holders of the Rights 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. EFFECTIVENESS.
This Amendment shall be deemed effective as of February 25, 2002.
Except as amended hereby, the Rights Agreement shall remain in full force and
effect and shall be otherwise unaffected hereby.
5. 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 Amendment to be
duly executed on February 20, 2002.
ENCHIRA BIOTECHNOLOGY CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxxx, Ph.D.
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Xxxxx X. Xxxxxxxxxx, Ph.D.
President and Chief Executive Officer
COMPUTERSHARE INVESTOR SERVICES, LLC
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
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Title: Executive Vice President of Client Services
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XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxxx X. XxXxxx
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Name: Xxxxxx X. XxXxxx
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Title: Vice President
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