AMENDMENT NO. 1 TO STOCKHOLDER RIGHTS AGREEMENT
Exhibit
10.7
AMENDMENT
NO. 1 TO
This
Amendment No. 1 to Stockholder Rights Agreement (the “Amendment”),
dated
as of January 11, 2007, by and between Alteon Inc., a Delaware corporation
(the
“Company”),
and
American Stock Transfer & Trust Company (the “Rights
Agent”),
amending that certain Amended and Restated Stockholder Rights Agreement, dated
as of July 25, 2005, between the Company and the Rights Agent (the “Agreement”).
WHEREAS,
the parties desire to amend the Agreement, pursuant to Section 27 thereof,
in
connection with the transactions contemplated
by the Memorandum of Proposed Terms for Private Placement of Preferred Stock
and
Warrants of Alteon Inc., dated as of January 4, 2007
(the
“Memorandum”).
NOW
THEREFORE, the parties hereby agree as follows:
1. Definition
of “Acquiring Person.”
The
definition of “Acquiring Person” as set forth in Section 1(a) of the Agreement
is hereby amended by adding the following to the end thereof:
“Notwithstanding
anything herein to the contrary, none of Xxxxx Brothers Investments LLC, nor
any
Affiliates thereof (“BBI”)
shall
be deemed to be an Acquiring Person solely by virtue of the transactions
contemplated by the Memorandum of Proposed Terms for Private Placement of
Preferred Stock and Warrants of Alteon Inc., dated as of January 4,
2007
(the
“Memorandum”),
including but not limited to, where applicable, the receipt of Preferred Stock,
Common Stock, or securities convertible into Common Stock, by BBI pursuant
to
the conversion of the Preferred Stock, the Convertible Notes or the exercise
of
the Warrants (each as defined in the Memorandum); nor shall the provisions
of
this Agreement apply to BBI for a period of five years from the closing of
the
transactions contemplated by the Memorandum”.
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2. Definition
of “Stock Acquisition Date.”
The
definition of “Stock Acquisition Date” as set forth in Section 1(oo) of the
Agreement is hereby amended by adding the following to the end
thereof:
“Notwithstanding
anything herein to the contrary, the execution, delivery and performance by
BBI
of the transactions contemplated by the Memorandum shall not be deemed, by
itself, to constitute or lead to a Stock Acquisition Date under this Agreement.”
3. Definition
of “Distribution Date.”
The
definition of “Distribution Date” as set forth in Section 3(a) of the Agreement
is hereby amended by adding the following to the end thereof:
“Notwithstanding
anything herein to the contrary, the execution, delivery and performance by
BBI
of the transactions contemplated by the Memorandum shall not be deemed, by
itself, to constitute or lead to a Distribution Date under this Agreement.”
4. Ratification.
The
parties hereby ratify and confirm in all respects the Agreement, as amended
by
this Amendment.
5. Governing
Law. 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.
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6. Counterparts.
This
Amendment may be executed in any number of counterparts and 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.
7. Descriptive
Headings.
Descriptive
headings of the several Sections of this Amendment are inserted for convenience
only and shall not control or affect the meaning or construction of any of
the
provisions hereof.
[remainder
left intentionally blank]
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IN
WITNESS WHEREOF, the parties have entered into this Amendment No. 1 to
Stockholder Rights Agreement as of the date first stated above.
ALTEON
INC.
By:_/s/
Noah Berkowitz_____________________
Xxxx
Xxxxxxxxx, President and Chief Executive Officer
AMERICAN
STOCK TRANSFER & TRUST COMPANY
By:__/s/
Xxxxxxx Lemmer__________________
Name:
Xxxxxxx X. Xxxxxx
Title:
Vice President
