EXHIBIT 4.01
SECOND AMENDMENT TO RIGHTS AGREEMENT
This SECOND AMENDMENT TO RIGHTS AGREEMENT (this "Amendment"), adopted
by the board of directors of NeoPharm, Inc., a Delaware corporation (the
"Company"), on November 11, 2004 and dated as of November 11, 2004, is by and
between the Company and Computershare Investor Services, L.L.C., a Delaware
limited liability company ("Computershare"). Capitalized terms not otherwise
defined in this Amendment shall have the meanings set forth in the Rights
Agreement (as defined below).
Recitals
WHEREAS, the Company and Computershare are parties to a Preferred
Stock Rights Agreement, dated as of June 30, 2003 (the "Rights Agreement"),
which Rights Agreement was amended on September 20, 2004;
WHEREAS, the Rights Agreement currently provides that Xxxx X. Xxxxxx,
Ph.D. ("Kapoor"), one of the founders of the Company, and his Affiliates could
be or become the beneficial owner of up to 22% of the Company's Common Shares
then outstanding without being deemed to be an Acquiring Person;
WHEREAS, as of the date hereof, Kapoor and his Affiliates
beneficially owned and as of the date hereof beneficially own 21.7% of the
Common Shares outstanding;
WHEREAS, the Board of Directors of the Company has approved certain
changes to the definition of the term "Acquiring Person" in the Rights
Agreement as more specifically set forth herein to increase from 22% to 30%
the percentage of outstanding Common Shares which Kapoor, together with his
Affiliates, must be or become the beneficial owner of before being deemed to
be an Acquiring Person; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Board of
Directors of the Company has determined that an amendment to the Rights
Agreement as set forth herein is necessary and desirable, and the Company and
the other parties hereto desire to evidence such amendment in writing.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
1. Amendment of Section 1(a). Section 1(a) of the Rights Agreement is
hereby amended by replacing "22%" with "30%" in each place where "22%" appears
in such Section.
2. Effectiveness. This Amendment shall be deemed effective as of the
date first written above, as if executed on such date. Except as amended
hereby, the Rights Agreement shall remain in full force and effect and shall
be otherwise unaffected hereby.
3. 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 the State of Delaware
applicable to contracts made and to be performed entirely within such State.
4. Miscellaneous.
(a) This 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.
(b) If any provision, covenant or restriction of this 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 Amendment shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
[Signature page follows.]
EXECUTED as of the date first set forth above.
Attest: NEOPHARM, INC.
By:
/s/ Xxxxxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer Title: President and Chief
and Secretary Executive Officer
Attest: COMPUTERSHARE INVESTOR
SERVICES, L.L.C.
By:
/s/ Xxxxx Xxxxxxxxxxxx /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxxxxxxx Name: Xxxxx Xxxxxxx
Title: Assistant Secretary Title: Vice President
