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EXHIBIT 11
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
AMENDMENT NO. 1 TO RIGHTS AGREEMENT ("Amendment No. 1"), dated as of
June 11, 1999, between Unimed Pharmaceuticals, Inc., a Delaware corporation (the
"Company"), and XXXXXX TRUST AND SAVINGS BANK (the "Rights Agent"), amending the
Rights Agreement, dated as of June 16, 1997, between the Company and the Rights
Agent (the "Rights Agreement").
W I T N E S S E T H
WHEREAS, the Board of Directors of the Company has approved an
Agreement and Plan of Merger (the "Merger Agreement") among Solvay
Pharmaceuticals, Inc., a Georgia corporation ("Parent"), Utah Acquisition
Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent
("Acquisition Sub"), and the Company, providing for Acquisition Sub to commence
an all-cash tender offer for all outstanding shares of the common stock, par
value $.25 per share, of the Company (the "Offer") and for the subsequent merger
of Acquisition Sub with and into the Company (the "Merger");
WHEREAS, the Board of Directors of the Company has determined that the
Merger Agreement and the transactions contemplated thereby, including, without
limitation, the Offer and the Merger, are fair to and in the best interests of
the Company and its stockholders;
WHEREAS, Section 27 of the Rights Agreement provides that the Company
may from time to time supplement or amend the Rights Agreement without the
approval of any stockholders of the Company to, among other things, make any
provisions with respect to the Rights which the Company may deem necessary or
desirable; provided, however, that from and after the Distribution Date, the
Rights Agreement may not be supplemented or amended in any manner which would
adversely affect the interests of the holders of Rights; and
WHEREAS, in compliance with Section 27 of the Rights Agreement, on June
8, 1999 the Board of Directors of the Company resolved to amend the Rights
Agreement as hereinafter set forth and has executed and delivered this Amendment
No. 1 immediately prior to the execution and delivery of the Merger Agreement,
and directs the Rights Agent to enter into this Amendment No. 1.
NOW, THEREFORE, the Company hereby amends the Rights Agreement as
follows:
1. Section 1 of the Rights Agreement is hereby amended by adding the
following definitions thereto:
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"Acquisition Sub" shall mean Utah Acquisition Corporation, a
Delaware corporation and wholly-owned subsidiary of Parent.
"Merger" shall mean the merger of Acquisition Sub with and
into the Company as contemplated by the Merger Agreement.
"Merger Agreement" shall mean the Agreement and Plan of
Merger, dated as of June 11, 1999, by and among Parent, Acquisition Sub
and the Company, as the same may be amended in accordance with the
terms thereof.
"Offer" shall have the meaning set forth in the Merger
Agreement.
"Parent" shall mean Solvay Pharmaceuticals, Inc., a Georgia
corporation.
2. Section 1(a) of the Rights Agreement is hereby amended by adding to
the end thereof the following:
"Notwithstanding anything to the contrary contained herein,
neither Parent, Merger Sub, nor any Affiliate of Parent or Merger Sub
shall be or become an Acquiring Person (and no Stock Acquisition Date,
Distribution Date or Triggering Event shall occur) as a result of (i)
the announcement, commencement or consummation of the Offer, or (ii)
the execution, delivery or performance of the Merger Agreement (or any
amendment thereto in accordance with the terms thereof) or the
consummation of the transactions contemplated thereby (including,
without limitation, the Offer and the Merger)."
3. Sections 1(g) and 3(a) of the Rights Agreement are hereby amended by
adding to the end thereof the following:
"Notwithstanding anything to the contrary contained herein, no
Distribution Date shall occur as a result of (i) the announcement,
commencement or consummation of the Offer, or (ii) the execution,
delivery or performance of the Merger Agreement (or any amendment
thereto in accordance with the terms thereof) or the consummation of
the transactions contemplated thereby (including, without limitation,
the Offer and the Merger)."
4. Section 11 of the Rights Agreement is hereby amended by adding to
the end thereof the following:
"(q) Notwithstanding anything to the contrary contained
herein, the provisions of this Section 11 will not apply to or be
triggered by (i) the announcement, commencement or consummation of the
Offer, or (ii) the
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execution, delivery or performance of the Merger Agreement (or any
amendment thereto in accordance with the terms thereof) or the
consummation of the transactions contemplated thereby (including,
without limitation, the Offer and the Merger)."
5. Section 13 of the Rights Agreement is hereby amended by adding to
the end thereof the following:
"(d) Notwithstanding anything to the contrary contained
herein, the provisions of this Section 13 will not apply to or be
triggered by (i) the announcement, commencement or consummation of the
Offer, or (ii) the execution, delivery or performance of the Merger
Agreement (or any amendment thereto in accordance with the terms
thereof) or the consummation of the transactions contemplated thereby
(including, without limitation, the Offer and the Merger)."
6. The term "Agreement" as used in the Rights Agreement shall be deemed
to refer to the Rights Agreement as amended by this Amendment No. 1.
7. Capitalized terms used herein but not defined herein shall have the
respective meanings ascribed to them in the Rights Agreement.
8. Except as set forth herein, the Rights Agreement shall remain in
full force and effect and shall be otherwise unaffected hereby.
9. This Amendment No. 1 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to be duly executed, as of the day and year first above written.
UNIMED PHARMACEUTICALS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: President and Chief Executive
Officer
XXXXXX TRUST AND SAVINGS BANK,
as Rights Agent
By: /s/ X.X. Xxxx
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Name: X.X. Xxxx
Title: Assistant Vice President
