EXHIBIT 4.1(bbbb)
AMENDMENT OF RIGHTS PLAN
AMENDMENT (this "Amendment"), dated as of August 18, 2000, to the Rights
Agreement (the "Rights Agreement"), dated as of June 26, 1997 and amended as of
March 8, 1998 and further amended as of April 13, 1999, by and between
Pathogenesis Corporation, a Delaware corporation (the "Company"), and Harris
Trust and Savings Bank, an Illinois banking corporation, as Rights Agent (the
"Rights Agent"), at the direction of the company.
R E C I T A L S
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A. The Company has entered into an Agreement and Plan of Merger,
dated as of August 13, 2000 (as it may be amended or supplemented from time to
time, the "Merger Agreement") by and among the Company, Chiron Corporation, a
Delaware corporation ("Chiron"), and Picard Acquisition Corp., a wholly owned
subsidiary of Chiron ("Merger Sub"), with respect to a tender offer by Merger
Sub for shares of common stock, par value $0.001 per share, of the Company,
followed by the merger of Merger Sub with and into the Company (the "Merger").
B. Pursuant to Section 27 of the Rights Agreement, the Company may
from time to time supplement or amend the Rights Agreement in accordance with
the provisions of Section 27 thereof.
C. The Board of Directors has approved and declares advisable the
Offer (as defined in the Merger Agreement), the Merger (as defined in the Merger
Agreement) and the Merger Agreement and the transactions contemplated by the
Merger Agreement and has declared that it is in the best interests of the
Company's stockholders that the Company enter into the Merger Agreement and
consummate the Offer (as defined in the Merger Agreement) and the Merger (as
defined in the Merger Agreement) on the terms and subject to the conditions set
forth in the Merger Agreement.
D. The Board of Directors determined on August 13, 2000 that it is
in the best interests of the Company and its stockholders to amend the Rights
Agreement to exempt the Offer (as defined in the Merger Agreement), the Merger
(as defined in the Merger Agreement) and the Merger Agreement, and all of the
transactions contemplated by the Merger Agreement, from the application of the
Rights Agreement.
E. The Merger Agreement contemplates that the Rights Agreement
will be amended to exempt the Offer (as defined in the Merger Agreement), the
Merger (as defined in the Merger Agreement) and the Merger Agreement, and all
of the transactions contemplated by the Merger Agreement, from the application
of the Rights Agreement.
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A G R E E M E N T
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NOW, THEREFORE, in consideration of the foregoing and the covenants set
forth herein, the Company hereby directs, and the parties hereto agree that, the
Rights Agreement is amended as follows:
1. The definition of "Acquiring Person" in Section 1(a) of the
Rights Agreement is hereby amended by adding the sentence at the end thereof:
"Notwithstanding anything to the contrary in this Agreement, none of
Chiron Corporation, a Delaware corporation ("Chiron"), and its
subsidiaries (including Picard Acquisition Corp., a Delaware
corporation and wholly owned subsidiary of Chiron ("Merger Sub")),
shall be deemed to be an Acquiring Person by reason of the execution,
delivery or performance of the Agreement and Plan of Merger, dated as
of August 13, 2000, by and among the Company, Chiron, and Merger Sub
(as it may be amended from time to time, the "Merger Agreement"), or
the consummation of the Offer (as defined in the Merger Agreement), the
Merger (as defined in the Merger Agreement) or the other transactions
contemplated by the Merger Agreement."
2. The definition of "Stock Acquisition Date" in Section 1(v) of
the Rights Agreement is hereby amended by adding the following to the end
thereof (immediately preceding the period):
"; provided that a "Stock Acquisition Date" shall not occur solely by
reason of the execution, delivery or performance of the Merger Agreement
or the consummation of the Offer (as defined in the Merger Agreement),
the Merger (as defined in the Merger Agreement) or the other
transactions contemplated by the Merger Agreement."
3. Section 3(b) of the Rights Agreement is hereby amended by adding
the following sentence to the end thereof:
"Notwithstanding anything to the contrary in this Agreement, a
"Distribution Date" shall not occur solely by reason of the execution
and delivery of the Merger Agreement or the consummation of the Offer
(as defined in the Merger Agreement), the Merger (as defined in the
Merger Agreement) or the other transactions contemplated by the Merger
Agreement."
4. Section 7(a) of the Rights Agreement is hereby amended by
deleting the word "or" between clauses (ii) and (iii) of the second sentence of
Section 7(a)and adding the following to the end thereof (immediately preceding
the period):
", or (iv) the time immediately prior to the Acceptance Date (as
defined in the Merger Agreement)."
5. Section 15 of the Rights Agreement is hereby amended by adding
the following sentence at the end thereof:
"Notwithstanding the foregoing, nothing in this Agreement shall be
construed to give any holder of Rights or any other Person any legal or
equitable rights, rem-
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edy or claim under this Agreement in connection with the Offer (as
defined in the Merger Agreement), the Merger (as defined in the Merger
Agreement) or any other transactions contemplated by the Merger
Agreement."
6. 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, without giving to its
principles of conflicts of laws.
7. This Amendment may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together
constitute one and the same instrument.
8. Terms not defined herein shall, unless the context otherwise
requires, have the meanings assigned to such terms in the Rights Agreement.
9. In all respects not inconsistent with the terms and provisions
of this Amendment, the Rights Agreement is hereby ratified, adopted, approved
and confirmed. In executing and delivering this Amendment, the Rights Agent
shall be entitled to all the privileges and immunities afforded to the Rights
Agent under the terms and conditions of the Rights Agreement.
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IN WITNESS WHEREOF, this Amendment has been duly executed by the
Company and the Rights Agent as of the day and year first written above.
Attest: PATHOGENESIS CORPORATION
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By: /s/ Marvin B. Tepper By: /s/ Wilbur H. Gantz
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Name: Marvin B. Tepper Name: Wilbur H. Gantz
Title: Secretary Title: Chairman and Chief
Executive Officer
Attest: HARRIS TRUST AND SAVINGS BANK,
------ AS RIGHTS AGENT
By: /s/ Susan M. Shadel By: /s/ M. J. McHale
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Name: Susan M. Shadel Name: M. J. McHale
Title: Relationship Manager Title: Vice President
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