Contract
Exhibit
4.5
RIGHTS AGREEMENT AMENDMENT
NO. 3
This
Amendment No. 3, dated as of April 21, 2009, to the Rights Agreement, dated as
of October 23, 2002, as amended on October 23, 2006 and on January 3, 2008
(collectively the “Rights
Agreement”), is between Pharmos Corporation, a Nevada corporation (the
“Company”),
and American Stock Transfer & Trust Company, LLC (the “Rights
Agent”).
The
Company and the Rights Agent have heretofore executed and entered into the
Rights Agreement. Pursuant to Section 27 of the Rights Agreement, the
Company and the Rights Agent may from time to time supplement or amend the
Rights Agreement in accordance with the provisions of Section 27 thereof
and the Company desires and directs the Rights Agent to so amend the Rights
Agreement. All acts and things necessary to make this Amendment a valid
agreement according to its terms have been done and performed, and the execution
and delivery of this Amendment by the Company and the Rights Agent have been in
all respects authorized by the Company and the Rights Agent.
In
consideration of the foregoing premises and mutual agreements set forth in the
Rights Agreement and this Amendment, the parties hereto agree as
follows:
1.
Section 1(a) of the Rights Agreement, which sets forth the definition of
“Acquiring Person,” is hereby modified and amended to read in its entirety as
follows:
(a)
“Acquiring Person” shall mean any Person (as such term is hereinafter defined)
who or which, together with all Affiliates (as such term is hereinafter defined)
and Associates (as such term is hereinafter defined) of such Person, shall be
the Beneficial Owner (as such term is hereinafter defined) of 15% or more of the
shares of Common Stock then outstanding or who was such a Beneficial Owner at
any time after the date hereof, whether or not such Person continues to be the
Beneficial Owner of 15% or more of the outstanding shares of Common Stock.
Notwithstanding the foregoing, (i) in no event shall a Person who or which,
together with all Affiliates and Associates of such Person, is the Beneficial
Owner of less than 15% of the Company’s outstanding shares of Common Stock
become an Acquiring Person solely as a result of a reduction of the number of
shares of outstanding Common Stock, including repurchases of outstanding shares
of Common Stock by the Company, which reduction increases the percentage of
outstanding shares of Common Stock beneficially owned by such Person (provided
that any subsequent increase in the amount of Common Stock beneficially owned by
such Person, together with all Affiliates and Associates of such Person, without
the prior approval of the Company shall cause such Person to be an Acquiring
Person); (ii) the term Acquiring Person shall not mean (A) the Company, (B) any
subsidiary of the Company (as such term is hereinafter defined), (C) any
employee benefit plan of the Company or any of its subsidiaries, or (D) any
entity holding securities of the Company organized, appointed or established by
the Company or any of its subsidiaries for or pursuant to the terms of any such
plan; and (iii) no Person shall be deemed to be an Acquiring Person if (A)
within five business days after such Person would otherwise have become an
Acquiring Person (but for the operation of this clause (iii)), such Person
notifies the Board of Directors that such Person did so inadvertently and,
within two business days after such notification, such Person is the Beneficial
Owner of less than 15% of the outstanding shares of Common Stock, (B) by reason
of such
Person’s
Beneficial Ownership of 15% or more of the outstanding shares of Common Stock on
the date hereof if, prior to the Record Date, such Person notifies the Board of
Directors that such Person is no longer the Beneficial Owner of 15% or more of
the then outstanding shares of Common Stock or (C) the Board of Directors
determines in good faith that a Person who would otherwise be an Acquiring
Person, as defined pursuant to the foregoing provisions of this paragraph (a),
has become such inadvertently, and such Person divests Beneficial Ownership as
promptly as practicable of a sufficient number of shares of Common Stock so that
such Person would no longer be an Acquiring Person, as defined pursuant to the
foregoing provisions of this paragraph (a). In addition, notwithstanding the
foregoing, none of Xxxx Pharmaceuticals Inc., a Delaware corporation (“Xxxx”),
or any Affiliate or Associate thereof, or any stockholder of Xxxx (including,
without limitation, New Enterprise Associates, Venrock Associates and Xxxxxx
Xxxxxxxx) or Xxxxx X. Xxxxxx, III, or their respective Affiliates or Associates,
shall become an “Acquiring Person” as a result of (i) the approval, execution,
delivery or performance of that certain Agreement and Plan of Merger dated as of
March 14, 2006, as amended (and as the same may hereafter be amended from time
to time, the “Merger Agreement”), by and among the Company, Xxxx and Xxxx
Acquisition Corporation and Xxxx Acquisition No.2 Corporation, including the
approval, execution, delivery or performance of any amendments thereto, (ii) the
consummation of the Merger (as such term is defined in the Merger Agreement),
(iii) the issuance of Common Stock pursuant to the Merger Agreement, (iv) the
announcement of the Merger Agreement or the Merger, (v) the consummation of any
other transaction contemplated by the Merger Agreement, (vi) the approval,
execution, delivery or performance of that certain Securities Purchase Agreement
dated as of January 3, 2008 (and as the same may hereafter be amended from time
to time, the “Debenture Purchase Agreement”) by and among the Company and the
purchasers identified on the signature pages hereto, including the approval,
execution, delivery or performance of any amendments thereto, (vii) the issuance
of the Debentures, as defined in the Debenture Purchase Agreement (the
“Debentures”), (viii) the issuance of Common Stock upon conversion of the
Debentures or any interest accrued thereon, (ix) the announcement of the
transactions contemplated by the Debenture Purchase Agreement, or (x) the
consummation of any other transaction contemplated by the Debenture Purchase
Agreement. Additionally, notwithstanding the foregoing, none of New
Enterprise Associates, Venrock Associates or Xxxxxx Xxxxxxxx, or their
respective Affiliates or Associates, shall become an “Acquiring Person” as a
result of (i) the approval, execution, delivery or performance of that certain
Securities Purchase Agreement dated as of the date hereof (and as the same may
hereafter be amended from time to time, the “Securities Purchase Agreement”) by
and among the Company and the purchasers identified on the signature pages
hereto, including the approval, execution, delivery or performance of any
amendments thereto, (ii) the issuance of the Shares or the Warrants (as defined
in the Securities Purchase Agreement) pursuant to the terms of the Securities
Purchase Agreement, (iii) the issuance of Common Stock upon exercise of such
Warrants, (iv) the announcement of the transactions contemplated by the
Securities Purchase Agreement, or (v) the consummation of any other transaction
contemplated by the Securities Purchase Agreement. Furthermore, none
of Xxxx or any Affiliate or Associate thereof, or any stockholder of Xxxx (other
than New Enterprise Associates, Venrock Associates and Xxxxxx Xxxxxxxx) or Xxxxx
X. Xxxxxx, III, shall become an “Acquiring Person” until such time as such
Person, together with all Affiliates and Associates, is the Beneficial Owner of
20% or more of the shares of Common Stock then outstanding, and none of New
Enterprise Associates, Venrock
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Associates
or Xxxxxx Xxxxxxxx, together with their Affiliates and Associates, shall become
an “Acquiring Person” under any circumstances.
2.
Section 1(i) of the Rights Agreement, which sets forth the definition of
“Stock Acquisition Date,” is hereby amended by adding as the final sentence
thereto the following:
Notwithstanding
anything in the Agreement to the contrary, no Stock Acquisition Date shall be
deemed to have occurred in connection with or as a result of (i) the approval,
execution, delivery or performance of the Merger Agreement, (ii) the
consummation of the Merger, (iii) the issuance of Common Stock pursuant to the
Merger Agreement, (iv) the announcement of the Merger Agreement or the Merger or
(v) the consummation of any other transaction contemplated by the Merger
Agreement, (vi) the approval, execution, delivery or performance of the
Debenture Purchase Agreement, (vii) the issuance of the Debentures, (viii) the
issuance of Common Stock upon conversion of the Debentures or any interest
accrued thereon, (ix) the announcement of the transactions contemplated by the
Debenture Purchase Agreement, or (x) the consummation of any other transaction
contemplated by the Debenture Purchase Agreement (xi) the approval, execution,
delivery or performance of the Securities Purchase Agreement, (xii) the issuance
of the Shares and the Warrants pursuant to the Securities Purchase Agreement,
(xiii) the issuance of Common Stock upon exercise of such Warrants, (xiv) the
announcement of the transactions contemplated by the Securities Purchase
Agreement, or (xv) the consummation of any other transaction contemplated by the
Securities Purchase Agreement.
3.
Section 3(b) of the Rights Agreement is hereby amended by adding as the
final sentence thereto the following:
Notwithstanding
anything in this Agreement to the contrary, no Distribution Date shall be deemed
to have occurred in connection with or as a result of (i) the approval,
execution, delivery or performance of the Merger Agreement, (ii) the
consummation of the Merger, (iii) the issuance of Common Stock pursuant to the
Merger Agreement, (iv) the announcement of the Merger Agreement or the Merger or
(v) the consummation of any other transaction contemplated by the Merger
Agreement, (vi) the approval, execution, delivery or performance of the
Debenture Purchase Agreement, (vii) the issuance of the Debentures, (viii) the
issuance of Common Stock upon conversion of the Debentures or any interest
accrued thereon, (ix) the announcement of the transactions contemplated by the
Debenture Purchase Agreement, or (x) the consummation of any other transaction
contemplated by the Debenture Purchase Agreement, (xi) the approval, execution,
delivery or performance of the Securities Purchase Agreement, (xii) the issuance
of the Shares and the Warrants pursuant to the Securities Purchase Agreement,
(xiii) the issuance of Common Stock upon exercise of such Warrants, (xiv) the
announcement of the transactions contemplated by the Securities Purchase
Agreement, or (xv) the consummation of any other transaction contemplated by the
Securities Purchase Agreement..
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4.
Section 11(a)(ii) of the Rights Agreement is hereby amended by adding as
the final sentence thereto the following:
Notwithstanding
anything in this Agreement to the contrary, no event described in this Section
11(a)(ii) shall be deemed to have occurred solely as a result of (i) the
approval, execution, delivery or performance of the Merger Agreement, (ii) the
consummation of the Merger, (iii) the issuance of Common Stock pursuant to the
Merger Agreement, (iv) the announcement of the Merger Agreement or the Merger or
(v) the consummation of any other transaction contemplated by the Merger
Agreement, (vi) the approval, execution, delivery or performance of the
Debenture Purchase Agreement, (vii) the issuance of the Debentures, (viii) the
issuance of Common Stock upon conversion of the Debentures or any interest
accrued thereon, (ix) the announcement of the transactions contemplated by the
Debenture Purchase Agreement, or (x) the consummation of any other transaction
contemplated by the Debenture Purchase Agreement, (xi) the approval, execution,
delivery or performance of the Securities Purchase Agreement, (xii) the issuance
of the Shares and the Warrants pursuant to the Securities Purchase Agreement,
(xiii) the issuance of Common Stock upon exercise of such Warrants, (xiv) the
announcement of the transactions contemplated by the Securities Purchase
Agreement, or (xv) the consummation of any other transaction contemplated by the
Securities Purchase Agreement..
5.
Section 13(a) of the Rights Agreement is hereby amended by adding as the
final sentence thereto the following:
Notwithstanding
anything in this Agreement to the contrary, none of the events described in
clauses (x) through (z) of the first sentence of Section 13(a)
shall be deemed to have occurred solely as a result of (i) the approval,
execution, delivery or performance of the Merger Agreement, (ii) the
consummation of the Merger, (iii) the issuance of Common Stock pursuant to the
Merger Agreement, (iv) the announcement of the Merger Agreement or the Merger or
(v) the consummation of any other transaction contemplated by the Merger
Agreement, (vi) the approval, execution, delivery or performance of the
Debenture Purchase Agreement, (vii) the issuance of the Debentures, (viii) the
issuance of Common Stock upon conversion of the Debentures or any interest
accrued thereon, (ix) the announcement of the transactions contemplated by the
Debenture Purchase Agreement, or (x) the consummation of any other transaction
contemplated by the Debenture Purchase Agreement, (xi) the approval, execution,
delivery or performance of the Securities Purchase Agreement, (xii) the issuance
of the Shares and the Warrants pursuant to the Securities Purchase Agreement,
(xiii) the issuance of Common Stock upon exercise of such Warrants, (xiv) the
announcement of the transactions contemplated by the Securities Purchase
Agreement, or (xv) the consummation of any other transaction contemplated by the
Securities Purchase Agreement..
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6.
Except as expressly amended hereby, the Rights Agreement remains in full force
and effect in accordance with its terms. By executing this Amendment below, the
Company certifies that this Amendment has been executed and delivered in
compliance with the terms of Section 27 of the Rights Agreement.
7.
This Amendment to the Rights Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada.
8.
This Amendment to the Rights Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed an
original, and all such counterparts shall together constitute but one and the
same instrument.
9.
Except as expressly set forth herein, this Amendment to the Rights Agreement
shall not by implication or otherwise alter, modify, amend or in any way affect
any of the terms, conditions, obligations, covenants or agreements contained in
the Rights Agreement, all of which are ratified and affirmed in all respects and
shall continue in full force and effect.
10.
If any term, provision, covenant or restriction of this Amendment is held by a
court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Amendment shall remain in full force and
effect.
11.
Capitalized terms used herein but not defined shall have the meanings given to
them in the Rights Agreement.
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to the Rights
Agreement to be duly executed as of the day and year first above
written.
Pharmos
Corporation
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By:
__________________________________
Name:_____________________________
Title:______________________________
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American
Stock Transfer & Trust Company, LLC
as
Rights Agent
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By:
__________________________________
Name:_____________________________
Title:______________________________
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