Suraypharm 42, rue du Docteur Blanche 75016 Paris France
Exhibit (d)(28)
Suraypharm
00, xxx xx Xxxxxxx Xxxxxxx
00000 Xxxxx
Xxxxxx
Tercica, Inc.
0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
XXX
Attention: Xxxxxxx Xxxxxxxxxx
Xxxxxx Godward LLP
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx
Xxxxxxxxxx 00000
Xxxxxx Xxxxxx of America
Attention: Xxxxxxx Xxxxxxxx Xxxxxx
Xxxx 4, 2008
| Re: |
Amendment to Rights Agreement |
Dear Xxxxxxx:
We refer to the Affiliation Agreement between Tercica, Inc., Suraypharm and Xxxxx, X.X. (the Affiliation Agreement) effective as of October 13, 2006 and the Rights Agreement between Tercica, Inc. and Computershare Trust Company, N.A. (the Rights Agent) dated as of October 13, 2006 (the Rights Agreement). Unless the context otherwise requires, words and expressions defined in the Affiliation Agreement shall have the same meanings where used in this letter.
Under the terms of the Affiliation Agreement and the Rights Agreement, the Investor’s prior written consent is necessary in order for the Company to undertake certain actions, including those actions described in Sections 3(s) and 3(c) of the Affiliation Agreement and Section 27 of the Rights Agreement.
In connection with the Agreement and Plan of Merger, dated the date hereof by and among the Company, Beaufour Xxxxx Pharma, S.A.S. and Tribeca Acquisition Corporation, and effective upon the execution by all parties (the Merger Agreement), we hereby consent to and approve of the amendment to the Rights Agreement (Amendment No. 1 to Rights Agreement), dated as of the date hereof, and its execution and delivery to the Rights Agent.
Nothing in this letter shall constitute a waiver of any of the Investor’s rights under the Affiliation Agreement (and for clarity, the waiver herein shall not apply to the Investor’s veto right over a transaction with any Person other than the Investor or its Affiliates).
This letter shall be construed in accordance with, and this letter and all matters arising out of or relating in any way whatsoever (whether in contract, tort or otherwise) to this letter shall be governed by, the law of the State of New York.
[Signature Page Follows]
2
| Yours sincerely, |
| XXXX-XXX BÉLINGARD |
| /s/ Xxxx-Xxx Bélingard |
| Duly authorized for and on behalf of |
| Suraypharm |
| Acknowledgment |
| Received and agreed |
| /s/ Xxxxxxx X. Xxxxxxxxxx |
| Duly authorized for and on behalf of Tercica, Inc. |
