EXHIBIT 4.3
FIRST AMENDMENT TO RIGHTS AGREEMENT
FIRST AMENDMENT, dated as of February 26, 2004 (this "Amendment"), to
the Rights Agreement, dated effective as of April 10, 2001 (the "Rights
Agreement"), between ILEX Oncology, Inc., a Delaware corporation (the
"Company"), and American Stock Transfer & Trust Company, as Rights Agent (the
"Rights Agent").
W I T N E S S E T H:
WHEREAS, the Company is entering into an Agreement and Plan of Merger
dated February 26, 2004 (as the same may be amended from time to time, the
"Merger Agreement"), among the Company, Genzyme Corporation, a Massachusetts
corporation ("Parent"), GLBC Corp., a Delaware corporation ("Sub"), and GLBC
LLC, a Delaware limited liability company ("LLC"), pursuant to which, among
other things, Sub shall be merged with and into the Company and the Company will
become a wholly-owned subsidiary of Parent, the Company shall be merged with and
into LLC and the outstanding capital stock of the Company will be converted into
the right to receive shares of Parent common stock, $0.01 par value per share;
WHEREAS, the Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement, prior to a
Distribution Date (as defined therein), the Company and the Rights Agent may
from time to time supplement or amend the Rights Agreement in any respect
without approval of any holders of the Rights Certificates (as defined in the
Rights Agreement), whether or not such supplement or amendment is adverse to any
holders of rights under the Rights Agreement; and
WHEREAS, the parties desire to amend the Rights Agreement in connection
with the execution and delivery of the Merger Agreement, dated as of February
26, 2004, among Parent, Sub, LLC and the Company; and
WHEREAS, the Board of Directors of the Company has determined that this
Amendment is in the best interests of holders of the Rights Certificates;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein, the Company and the Rights Agent agree as follows:
1. Section 1(a) of the Rights Agreement is hereby amended and
restated to read in its entirety as follows:
"Acquiring Person" shall mean any Person who or which, together with
all Affiliates and Associates of such Person, shall be the Beneficial
Owner of 20% or more of the Common Shares then outstanding, but shall
not include (i) the Company; (ii) any Subsidiary of the Company; (iii)
any employee benefit plan of the Company or of any Subsidiary of the
Company; (iv) any Person holding Common Shares for or pursuant to the
terms of any such plan to the extent, and only to the extent, of the
Common Shares so held; and (v) Genzyme Corporation.
Notwithstanding the foregoing, no Person shall become an "Acquiring
Person" as the result of an acquisition of Common Shares 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 then outstanding; provided, however, that
if a Person becomes the Beneficial Owner of 20% or more of the Common
Shares then outstanding by reason of share acquisitions by the Company
and shall, after such share acquisitions by the Company, become the
Beneficial Owner of any additional Common Shares, then such Person
shall be deemed to be an "Acquiring Person."
2. Section 1(c) of the Rights Agreement is hereby amended and
restated to read in its entirety as follows:
A Person shall be deemed the "Beneficial Owner" of and shall be deemed
to "beneficially own" any securities:
(i) which such Person or any of such Person's
Affiliates or Associates beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's
Affiliates or Associates has (A) the right to acquire (whether such
right is exercisable immediately or only after the passage of time)
pursuant to any agreement, arrangement or understanding (other than
customary agreements with and between underwriters and selling group
members with respect to a bona fide public offering of securities), or
pursuant to the exercise of conversion rights, exchange rights, rights
(other than the Rights), warrants or options, or otherwise; provided,
however, that a Person shall not be deemed the Beneficial Owner of, or
to beneficially own, securities tendered pursuant to a tender or
exchange offer made by or on behalf of such Person or any of such
Person's Affiliates or Associates until such tendered securities are
accepted for purchase or exchange; or (B) the right to vote or consent
to action pursuant to any agreement, arrangement or understanding;
provided, however, that a Person shall not be deemed the Beneficial
Owner of, or to beneficially own, any security if the agreement,
arrangement or understanding to vote such security or consent to action
(1) arises solely from a revocable proxy or consent given to such
Person in response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules and
regulations promulgated under the Exchange Act and (2) is not also then
reportable on Schedule 13D promulgated under the Exchange Act (or any
comparable or successor report); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person with which such Person or any of such
Person's Affiliates or Associates has any agreement, arrangement or
understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide
public offering of securities) for the purpose of acquiring, holding,
voting or consenting to action (except to the extent
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contemplated by the proviso to Section 1(c)(iii) hereof) or disposing
of any securities of the Company.
Notwithstanding the foregoing, any securities that are owned or held by
(i) the Company; (ii) any Subsidiary of the Company; (iii) any employee
benefit plan of the Company or of any Subsidiary of the Company; (iv)
any securities that are owned or held by any Person pursuant to the
terms of any such plan (to the extent, and only to the extent, of the
securities so held); or (v) Genzyme Corporation shall not be deemed to
be beneficially owned by any other Person and no other Person shall be
deemed to be the Beneficial Owner of such securities. Further,
notwithstanding anything in this definition of Beneficial Ownership to
the contrary, the phrase "then outstanding", when used with reference
to a Persons Beneficial Ownership of securities of the Company, shall
mean the number of such securities then issued and outstanding together
with the number of such securities not then actually issued and
outstanding which such Person would be deemed to own beneficially
hereunder.
3. Section 3(a) of the Rights Agreement is hereby amended and
restated to read in its entirety as follows:
Until the earlier (the earlier of such dates being herein referred to
as the "Distribution Date") of (i) the Close of Business on the tenth
Business Day after the Shares Acquisition Date and (ii) the Close of
Business on the tenth Business Day after the date of the commencement
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, any Person holding Common Shares for or pursuant to the terms
of any such plan to the extent such Person is so acting with the
approval or consent of the Company, or Genzyme Corporation) of, or of
the first public announcement of the intention of 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, any Person
holding Common Shares for or pursuant to the terms of any such plan to
the extent such Person is so acting with the approval or consent of the
Company, or Genzyme Corporation) to commence, a tender or exchange
offer the consummation of which would result in any Person becoming the
Beneficial Owner of 20% or more of the Common Shares then outstanding,
including any such date which is after the date of this Agreement and
prior to the issuance of the Rights, (x) the Rights will be evidenced
(subject to the provisions of Section 3(b) hereof) by the certificates
for Common Shares registered in the names of the holders thereof (which
certificates shall also be deemed to be Right Certificates) and not by
separate Right Certificates, and (y) the right to receive Right
Certificates will be transferable only in connection with the transfer
of Common Shares of the Company. 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 and provided with all
necessary information, send), by first-class, insured, postage prepaid
mail, to each record holder of Common Shares as
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of the Close of Business on the Distribution Date, at the address of
such holder shown on the records of the Company, a Right Certificate,
in substantially the form of Exhibit B hereto (a "Right Certificate"),
evidencing one Right for each Common Share of the Company so held. As
of the Distribution Date, the Rights will be evidenced solely by such
Right Certificates.
4. Section 13(c) is hereby incorporated into the Rights Agreement
and will read as follows:
(c) Notwithstanding the provisions of this Section 13, upon the
occurrence of the Mergers (as defined in the Agreement and Plan of
Merger, dated February 26, 2004, by and among Genzyme Corporation, GLBC
Corp., GLBC LLC and the Company, as may be amended from time to time
(the "Merger Agreement")), this Agreement shall terminate and the
Rights will be cancelled and extinguished in accordance with the
provisions of the Merger Agreement.
5. Section 25(a) of the Rights Agreement is hereby amended and
restated to read in its entirety as follows:
In case the Company shall propose (i) to pay any dividend payable in
stock of any class to the holders of Preferred Shares or to make any
other distribution to the holders of Preferred Shares (other than a
regular quarterly cash dividend), (ii) to offer to the holders of
Preferred Shares rights (preemptive or otherwise) or warrants to
subscribe for or to purchase any additional Preferred Shares or shares
of stock of any class or any other securities, rights or options, (iii)
to effect any reclassification of Preferred Shares (other than a
reclassification involving only the subdivision of outstanding
Preferred Shares), (iv) except with respect to the Mergers (as defined
in the Merger Agreement), to effect any consolidation or merger into or
with, or to effect any sale or other transfer (or to permit one or more
of its Subsidiaries to effect any sale or other transfer), in one or
more transactions, of 50% or more of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to, any other Person,
(v) to effect the liquidation, dissolution or winding up of the
Company, or (vi) to declare or pay any dividend on the Common Shares
payable in Common Shares, to reclassify the Common Shares, or to
otherwise effect a split-up, division or combination of the Common
Shares, then, in each such case, the Company shall give to each holder
of a Right Certificate and the Rights Agent, in accordance with Section
26 hereof, a notice of such proposed action, which shall specify the
record date for purposes of such stock dividend, or distribution of
rights or warrants, or the date on which such reclassification,
consolidation, merger, sale, transfer, liquidation, dissolution, or
winding up is to take place and the date of participation therein by
the holders of the Common Shares and/or Preferred Shares, if any such
date is to be fixed, and such notice shall be so given in the case of
any action described by clause (i) or (ii) above at least ten days
prior to the record date for determining holders of the Preferred
Shares for purposes of such action, and in the case of any such other
action, at least ten days prior to the date of the taking of such
proposed action or
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the date of participation therein by the holders of the Common Shares
and/or Preferred Shares, whichever shall be the earlier.
6. This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware.
7. This Amendment may not be amended or modified, and no
provision hereof may be waived, except in accordance with Section 27 of the
Rights Agreement.
8. Except as otherwise modified by this Amendment, the provisions
of the Rights Agreement shall continue to be and remain in full force and
effect.
9. This Amendment may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
[signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
ILEX ONCOLOGY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President and CEO
AMERICAN STOCK TRANSFER AND TRUST
CO., as Rights Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
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