AMENDMENT TO STOCKHOLDER RIGHTS AGREEMENT
AMENDMENT
TO STOCKHOLDER RIGHTS AGREEMENT
THIS
AMENDMENT (the “Amendment”) is entered into as of the 4th
day of
December, 2006, by and between eXegenics, Inc., a Delaware corporation (the
“Company”) and American Stock Transfer & Trust Company, as Rights Agent (the
“Rights Agent”).
RECITALS
A. The
Company and the Rights Agent are parties to a Rights Agreement dated as of
June
9, 2003, as amended on July 15, 2003 (the “Rights Agreement”). Capitalized terms
used herein and not otherwise defined herein shall have the meanings ascribed
to
them in the Rights Agreement.
B. The
Company and certain investors named therein (the “Investors”) have entered into
a Stock Purchase Agreement dated as of August 14, 2006 (the “Stock Purchase
Agreement”), pursuant to which the Company will issue shares of its common stock
to the Investors, which shares will represent upon issuance on a fully diluted
basis fifty one percent (51%) of the issued and outstanding shares of common
stock of the Company (the “Stock Sale Transaction”).
C. On
November 13, 2006, the Board of Directors of the Company determined it is in
the
best interest of the Company’s stockholders to amend the Rights Agreement to
render the Rights inapplicable to the Stock Sale Transaction or any of the
other
transactions contemplated by the Stock Purchase Agreement, including without
limitation the issuance of shares to the Investors; and
D.
The
Company desires to amend the Rights Agreement in accordance with Section 27
of
the Rights Agreement.
Accordingly,
the parties agree that:
1. Amendment
to Definition of “Acquiring Person” set forth in Section 1(a). The
definition of “Acquiring Person” in Section 1(a) of the Rights Agreement is
hereby amended by adding the following additional paragraph at the end of
Section 1(a):
“Notwithstanding
anything in this Agreement that might otherwise be deemed to be contrary, no
Person will become an Acquiring Person solely by reason of the execution,
delivery, amendment, supplement or performance of the Stock Purchase Agreement,
dated as of August 14, 2006, as the same may be amended from time to time (the
“Stock Purchase Agreement”) between the Company and those investors listed in
Exhibit A to the Stock Purchase Agreement, or their respective successors or
assigns (the “Investors”), or the execution, delivery, amendment, supplement or
performance of any other agreement contemplated by the Stock Purchase Agreement
(the “Ancillary Agreements”); provided that any Person who (X) would be an
Acquiring Person but for this sentence, and (Y) prior to the closing of the
transaction contemplated by the Stock Purchase Agreement becomes the Beneficial
Owner of any shares of Common Stock other than as contemplated by the Stock
Purchase Agreement shall be deemed an “Acquiring Person.”
2. Amendment
to definition of “Stock Acquisition Date” set forth in Section
1(jj).
The
definition of “Stock Acquisition Date” set forth in Section 1(jj) of the Rights
Agreement is hereby amended by adding the following new paragraph at the end
of
Section 1(jj):
”Notwithstanding
anything in this Agreement that might otherwise be deemed to the contrary,
a
Stock Acquisition Date shall not be deemed to have occurred solely by reason
of
(i) the execution, delivery, amendment, supplement or performance of the Stock
Purchase Agreement or the execution, delivery, amendment, supplement or
performance of any of the Ancillary Agreements, (ii) the consummation of the
transactions contemplated by the Stock Purchase Agreement or the Ancillary
Agreements, or (iii) any public announcement of the execution, delivery,
amendment, supplement or performance of the Stock Purchase Agreement or the
Ancillary Agreements.”
3. Amendment
to definition of “Triggering Event” set forth in Section 1(nn).
The
definition of “Triggering Event” set forth in Section 1(nn) of the Rights
Agreement is hereby amended by adding the following new paragraph at the end
of
Section 1(nn):
”Notwithstanding
anything in this Agreement that might otherwise be deemed to the contrary,
a
Triggering Event shall not be deemed to have occurred solely by reason of (i)
the execution, delivery, amendment, supplement or performance of the Stock
Purchase Agreement or the execution, delivery, amendment, supplement or
performance of any of the Ancillary Agreements, (ii) the consummation of the
transactions contemplated by the Stock Purchase Agreement or the Ancillary
Agreements, or (iii) any public announcement of the execution, delivery,
amendment, supplement or performance of the Stock Purchase Agreement or the
Ancillary Agreements.”
4. Amendment
to Section 3(a) “Issue of Rights Certificates.”
Section
3(a) of the Rights Agreement is hereby amended by adding the following new
paragraph at the end of Section 3(a):
”Notwithstanding
anything in this Agreement that might otherwise be deemed to the contrary,
a
Distribution Date shall not be deemed to have occurred solely by reason of
(i)
the execution, delivery, amendment, supplement or performance of the Stock
Purchase Agreement or the execution, delivery, amendment, supplement or
performance of any of the Ancillary Agreements, (ii) the consummation of the
transactions contemplated by the Stock Purchase Agreement or the Ancillary
Agreements, or (iii) any public announcement of the execution, delivery,
amendment, supplement or performance of the Stock Purchase Agreement or the
Ancillary Agreements.”
5. Miscellaneous.
Except
as set forth herein, the Rights Agreement shall remain in full force and effect
and shall be otherwise unaffected by this Amendment. 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. This Amendment may be executed in any number or 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.
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 and shall
in no way be affected, impaired or invalidated.
[SIGNATURE
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to the
Stockholder Rights Agreement to be executed and attested, all as of the day
and
year first above written.
| EXEGENICS, INC. | ||
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| By: | /s/ Xxxx X. Xxxxxxxxx | |
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Name: Xxxx X. Xxxxxxxxx |
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| Title: Chairman and Chief Executive Officer | ||
| AMERICAN STOCK TRANSFER & TRUST COMPANY | ||
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| By: | /s/ Xxxxxxx X. Xxxxxx | |
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Name: Xxxxxxx X. Xxxxxx |
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Title:
Vice President
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