EXHIBIT 4.3
AMENDMENT TO RIGHTS AGREEMENT
BETWEEN
GENEMEDICINE, INC.
AND
AMERICAN STOCK TRANSFER & TRUST COMPANY
THIS AMENDMENT TO RIGHTS AGREEMENT (this "Amendment") is made this 24th day
of October, 1998, by and between GeneMedicine, Inc., a Delaware corporation (the
"Company"), and American Stock Transfer & Trust Company, as rights agent (the
"Rights Agent").
WHEREAS, the Company is entering into an Agreement and Plan of Merger and
Reorganization (as the same may be amended from time to time, the "Merger
Agreement") among the Company, Megabios Corp., a Delaware corporation
("Megabios"), and Montana Acquisition Sub, Inc., a Delaware corporation and a
wholly-owned subsidiary of Megabios (the "Merger Sub"), pursuant to which Merger
Sub will merge with and into the Company and the Company will survive as a
wholly-owned subsidiary of Megabios, and the former stockholders of the Company
will receive shares of Common Stock of Megabios; and
WHEREAS, the Company and the Rights Agent are parties to a Rights
Agreement, dated as of January 16, 1996, as amended (the "Rights Agreement");
and
WHEREAS, the parties desire to amend the Rights Agreement in connection
with the execution and delivery of the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
herein set forth, the parties hereby agree as follows:
1. The definition of "Acquiring Person" set forth in Section 1(a) of the
Rights Agreement is hereby amended by adding the following sentence to the end
of that section:
Notwithstanding the foregoing, no Person shall be or become an
Acquiring Person by reason of (i) the execution and delivery of the
Agreement and Plan of Merger and Reorganization, dated as of October
24, 1998, among Megabios Corp., a Delaware corporation, Montana
Acquisition Sub, Inc., a Delaware corporation ("Merger Sub"), and the
Company (the "Merger Agreement") or the execution of any amendment
thereto, (ii) the merger of Merger Sub with and into the Company, or
(iii) the consummation of any other transaction contemplated by the
Merger Agreement.
2. The definition of "Change of Control" set forth in Section 1(e) of the
Rights Agreement is hereby amended by adding the following sentence to the end
of that section:
Notwithstanding the foregoing, no Change of Control shall be
deemed to have occurred by reason of (i) the execution and delivery or
amendment of the Merger Agreement, (ii) the merger of Merger Sub with
and into the Company, or (iii) the consummation of any other
transaction contemplated by the Merger Agreement.
3. The definition of "Shares Acquisition Date" in Section 1(n) of the
Rights Agreement is hereby amended by adding the following sentence to the end
of that section:
Notwithstanding anything else set forth in this Agreement, a
Shares Acquisition Date shall not be deemed to have occurred by reason
of (i) the public announcement, public disclosure, execution and
delivery or amendment of the Merger Agreement, (ii) the merger of
Merger Sub with and into the Company, or (iii) the consummation of any
other transaction contemplated by the Merger Agreement.
4. Section 3(a) of the Rights Agreement is hereby amended by adding the
following sentence to the end of that section:
Notwithstanding anything else set forth in this Agreement, no
Distribution Date shall be deemed to have occurred by reason of (i)
the execution and delivery or amendment of the Merger Agreement, (ii)
the merger of Merger Sub with and into the Company, or (iii) the
consummation of any other transaction contemplated by the Merger
Agreement.
5. Section 7(a) of the Rights Agreement is hereby amended by deleting the
word "or" on the penultimate line of the section and adding the following clause
at the end of that section:
, or (iv) immediately before the Effective Time, as
defined in the Merger Agreement.
6. Section 13(c) of the Rights Agreement is hereby amended to add the
following parenthetic phrase at the beginning of the second line of that
section: (other than any such transaction contemplated by the Merger Agreement)
7. The Rights Agreement, as amended by this Amendment, shall remain in
full force and effect in accordance with its terms.
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8. 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, void 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 herein have caused this Amendment to be
duly executed and attested, all as of the date and year first above written.
GENEMEDICINE, INC.
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: President & CEO
Attest: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and
Chief Financial Officer
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ Xxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
Attest: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Secretary
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