exv4w5



 








Exhibit 4.5




FOURTH AMENDMENT TO RIGHTS AGREEMENT




     THIS FOURTH AMENDMENT TO RIGHTS AGREEMENT (this “Fourth Amendment”) is entered into as of the
9th day of January, 2008, by and between Repros Therapeutics Inc. (formerly Zonagen, Inc.), a
Delaware corporation (the “Company”), and Computershare Trust Company, N.A. (successor-in-interest
to Computershare Trust Company, Inc.) (“Rights Agent”), and amends that certain Rights Agreement
dated as of September 1, 1999 and amended as of September 6, 2002, October 30, 2002 and June 30,
2005 by and between the Company and the Rights Agent.



RECITALS




     WHEREAS, the Company and Rights Agent are parties to a Rights Agreement dated as of September
1, 1999, as amended by a First Amendment to Rights Agreement dated September 6, 2002, a Second
Amendment to Rights Agreement dated October 30, 2002 and a Third Amendment to Rights Agreement
dated June 30, 2005 (as amended, the “Rights Agreement”); and



     WHEREAS, pursuant to Section 27 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. Section 1(e) of the Rights Agreement is hereby amended to delete the term “Illinois” and
replace it with “the Commonwealth of Massachusetts”.



     2. Section 1(f) of the Rights Agreement is hereby amended to delete the two references to
“Houston, Texas” and replace each with “New York City, New York”.



     3. Section 1(p) of the Rights Agreement is hereby amended and restated in its entirety to read
as follows:




"(p) “Exempt Person” shall mean (i) the Company, (ii) any Subsidiary
(as such term is hereinafter defined) of the Company, (iii) any
employee benefit plan of the Company or (iv) Efficacy Capital, LTD
(“Efficacy”) and any Affiliate or Associate of Efficacy to the
extent that Efficacy becomes a Beneficial Owner of no more than 33%
of the Common Stock of the Company then outstanding; provided,
however, that Efficacy and any Affiliate or Associate of Efficacy
shall be considered an Exempt Person to such extent for so long as
that certain Standstill Agreement dated January 9, 2008 between the
Company and Efficacy (the “Standstill Agreement”) remains in
effect.”



 









 








     4. Section 2 of the Rights Agreement is hereby amended to add the following language to the
end of the last sentence:




“, upon ten (10) days’ prior written notice to the Rights
Agent. The Rights Agent shall have no duty to supervise, and shall
in no event be liable for, the acts or omissions of any such
co-Rights Agent.”



     5. Section 3(a) of the Rights Agreement is hereby amended by inserting the following sentence
immediately after the last sentence thereof:




“Notwithstanding anything in this Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred and no Rights
shall be exercisable pursuant to any provision of this Agreement
solely by reason of any acquisition of, or agreement to acquire,
Common Shares by Efficacy or any of its Affiliates or Associates for
the period in which the Standstill Agreement is in effect which
would cause Efficacy to become a Beneficial Owner of 33% or less of
the Common Stock of the Company then outstanding.”



     6. Section 21 of the Rights Agreement is hereby amended to add the following new sentence
after the existing first sentence:




“In the event the transfer agency relationship in effect between the
Company and the Rights Agent terminates, the Rights Agent will be
deemed to have resigned automatically and be discharged from its
duties under this Agreement as of the effective date of such
termination, and the Company shall be responsible for sending any
required notice.”



     7. The Rights Agreement is hereby amended to add the following new section:




“Section 35. Force Majeure. Notwithstanding anything to the
contrary contained herein, the Rights Agent shall not be liable for
any delays or failures in performance resulting from acts beyond its
reasonable control including, without limitation, acts of God,
terrorist acts, shortage of supply, breakdowns or malfunctions,
interruptions or malfunction of computer facilities, or loss of data
due to power failures or mechanical difficulties with information
storage or retrieval systems, labor difficulties, war, or civil
unrest.”



     8. The Recitals set forth at the beginning of this Fourth Amendment are incorporated herein.



 









 








     9. Except as amended by this Fourth Amendment, the Rights Agreement shall remain in full force
and effect.



     10. This Fourth 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
Fourth 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 Fourth
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 Fourth
Amendment shall remain in full force and effect and shall in no way be affected, impaired or
invalidated.



[Remainder of Page Intentionally Left Blank]




 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to be duly executed
and attested, all as of the day and year first above written.



	 	 	 	 	 
	 	COMPUTERSHARE TRUST COMPANY, N.A., as Rights Agent

 	 
	 	By:  	/s/ Kellie Gwinn
 	 
	 	 	Name:  	Kellie Gwinn 	 
	 	 	Title:  	Vice President 	 
	 
	 	REPROS THERAPEUTICS INC.

 	 
	 	By:  	/s/ Joseph Podolski
 	 
	 	 	Name:  	Joseph S. Podolski 	 
	 	 	Title:  	President and CEO