EXHIBIT 10.01
AGREEMENT, dated as of November 11, 2004 (this "Agreement"), among
NEOPHARM, INC., a Delaware corporation (the "Company"), Xxxx X. Xxxxxx, Ph.D.
("Kapoor"), Xxxxx X. Xxxxxx ("Xxxxxx"), Xxxxxxx X. Xxxxx ("Xxxxx"), and Xx.
Xxxxx X. Xxxxxx ("Safavi").
W I T N E S S E T H:
WHEREAS, Kapoor has commenced a consent solicitation to, among other
things, remove from the Board the Resigning Directors and the Continuing
Directors (other than Xxxxxxx X. Xxxxx);
WHEREAS, the Company, Kapoor and each of the Continuing Directors
have determined that it is in their respective best interests to enter into
this Agreement; and
WHEREAS, immediately prior to the execution of this Agreement, each
of the Resigning Directors has entered into an agreement with the Company,
whereby, among other things, each of the Resigning Directors has resigned as a
director from the Board of Directors.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the parties hereto agree as follows:
1. Definitions. Capitalized terms shall have the following meanings
for purposes of this Agreement (and shall apply equally to both the singular
as well as the plural forms):
(a) "Affiliate" shall have the meaning assigned to such term in Rule
12b-2 promulgated under the Exchange Act.
(b) "Annual Meeting" shall mean the Annual Meeting of the Company's
stockholders to be held during the 2005 calendar year.
(c) "Associate" shall have the meaning assigned to such term in Rule
12b-2 promulgated under the Exchange Act.
(d) "Board of Directors" shall mean the board of directors of the
Company.
(e) "By-laws" shall mean the Amended and Restated By-laws of the
Company, as in effect on the date hereof.
(f) "Commission" shall mean the United States Securities and Exchange
Commission.
(g) "Common Stock" shall mean the common stock, par value $.0002145
per share, of the Company.
(h) "Consent Solicitation" shall mean the solicitation of written
consents from the Company's stockholders commenced by Kapoor pursuant to his
definitive consent statement filed with the Securities and Exchange Commission
on September 27, 2004.
(i) "Continuing Directors" shall mean Xxxxxx, Young and Safavi.
(j) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(k) "New Directors" shall mean Xx. Xxxxxxx X. Xxx, Xxxxxx Xxxxxx,
Xxxx X. Xxxxxxx and Xxxxx X. Xxxxxx.
(l) "person" shall mean an individual, corporation, partnership,
limited partnership, limited liability company, association, trust, estate, or
other entity or organization.
(m) "Resigning Directors" shall mean Xx. Xxxxxxx X. Xxxxx and Sander
X. Xxxxx.
2. Representations and Warranties. (a) Each of Kapoor, Hanson, Young
and Safavi hereby severally represents and warrants to the Company and each
other party as follows:
(i) Such person has all requisite power and authority to execute,
deliver and perform its respective obligations under this Agreement. The
execution, delivery and performance of this Agreement by such person and the
consummation of the transactions contemplated hereby have been duly authorized
by all requisite action on the part of such person. Such person is of sound
mind and has all requisite legal capacity to execute and deliver this
Agreement.
(ii) This Agreement has been duly executed and delivered by such
person and (assuming due and valid execution and delivery by the Company and
each other party hereto) constitutes a legal, valid and binding obligation of
such person, enforceable against such person in accordance with its terms.
(iii) The execution, delivery and performance of this Agreement by
such person does not and will not violate or conflict with (i) any law, rule,
regulation, order, judgment or decree applicable to such person, or (ii)
result in any breach or violation of or constitute a default (or an event
which with notice or lapse of time or both could become a default) under or
pursuant to, any agreement, contract, commitment, understanding or arrangement
(any of the foregoing, a "Contract") to which such person is a party.
(iv) No consent, approval, authorization, license or clearance of, or
filing or registration with, or notification to, any court, legislative,
executive or regulatory authority or agency (a "Governmental Authority") is
required in order to permit such person to perform its respective obligations
under this Agreement, except for such as have been obtained.
(b) The Company hereby represents and warrants to each of the other
parties as follows:
(i) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement. The
execution, delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby have been duly authorized
by all requisite corporate action on the part of the Company.
(ii) This Agreement has been duly executed and delivered by the
Company and (assuming due and valid execution and delivery hereof by each of
the other parties hereto) constitutes a legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms.
(iii) The execution, delivery and performance of this Agreement by
the Company does not and will not (i) violate or conflict with (A) the
certificate of incorporation of the Company or By-laws or (B) any law, rule,
regulation, order, judgment or decree applicable to the Company, or (ii)
result in any breach or violation of or constitute a default (or an event
which with notice or lapse of time or both could become a default) under or
pursuant to, any Contract to which the Company is a party.
(iv) No consent, approval, authorization, license or clearance of, or
filing or registration with, or notification to, any Governmental Authority,
is required in order to permit the Company to perform its obligations under
this Agreement, except for such as have been obtained.
3. Resigning Directors. Fully executed copies of the Separation
Agreements entered into between each of the Resigning Directors and the
Company have heretofore been delivered to Kapoor, each such agreement being
effective on the Effective Date immediately prior to the execution of this
Agreement.
4. Board of Directors Consent; Consent Solicitation. Concurrent with
the execution of this Agreement,
(a) the Continuing Directors and Kapoor have executed the unanimous
written consent of directors attached hereto as Exhibit A, and
(b) Kapoor shall terminate, effective immediately, the Consent
Solicitation and revoke in writing any consents that he or his Affiliates or
Associates have delivered in connection therewith. Without limiting the
generality of the foregoing, not later than one business day after the date
hereof, Kapoor shall notify the staff of the Commission in writing that he has
terminated the Consent Solicitation. Promptly thereafter, the Company and
Kapoor shall issue the joint press release attached hereto as Exhibit B, which
the Company shall file with the Commission as additional definitive proxy
materials under the Exchange Act.
5. Annual Meeting. (a) The Company shall (1) cause to be nominated
for election as directors to the Board of Directors at the Annual Meeting,
each of: (i) the Continuing Directors; (ii) Kapoor; and (iii) the New
Directors (the persons listed in clauses (i), (ii) and (iii), collectively,
the "Nominees"), (2) publicly support and recommend that the Company's
stockholders vote to elect the Nominees as directors of the Company at the
Annual Meeting, (3) include the foregoing recommendation in its proxy
materials for the Annual Meeting, and (4) solicit authority (and the Company's
form of proxy shall so solicit) to vote for the Nominees at the Annual
Meeting. The Company shall use its best efforts to solicit proxies in favor of
the election of the Nominees at the Annual Meeting. In connection with the
Annual Meeting, each of Kapoor and the Continuing Directors shall, and shall
each cause its respective Affiliates and Associates to, support the Nominees
as directors of the Company at the Annual Meeting. Each of the Company, Kapoor
and the Continuing Directors acknowledge that to the best of their knowledge,
(A) there are no circumstances that would preclude any of the New Directors
from serving as members of the Board of Directors and (B) each of the New
Directors are suitable nominees for election to the Board of Directors.
(b) In connection with the election of directors at any meeting of
stockholders or in connection with any action by written consent in lieu of a
meeting related to the election of directors, each of the Continuing Directors
and Kapoor shall vote, in person or by proxy or written consent, as the case
may be, any and all shares of Common Stock over which such person has voting
power in favor of the election of the Nominees to the Board of Directors and
shall cause his Affiliates and Associates to so vote or consent with respect
to shares of Common Stock over which they have voting power.
(c) Each of the Company and the Continuing Directors agrees that (i)
so long as Kapoor submits to the Company the requisite information required by
applicable law and Section 2.4 of the By-laws as such Section 2.4 is in effect
immediately prior to the execution of this Agreement (the "Advance Notice
Provisions") no later than 5:00pm, New York City time, December 30, 2005, and
notwithstanding any amendment of the Advance Notice Provisions or adoption of
other restrictions with respect to the 2006 Annual Meeting, Kapoor shall be
entitled to nominate directors and propose other business at the annual
meeting of the Company's stockholders for the 2006 calendar year (the "2006
Annual Meeting") and (ii) the Company and the Continuing Directors will not
take any action, including action with respect to the mailing of the Company's
proxy materials for the 2006 Annual Meeting or scheduling of the date of the
2006 Annual Meeting, intended to preclude or that would have the effect of
precluding Kapoor from nominating directors or proposing other business at the
2006 Annual Meeting.
6. Restriction on Certain Activities. (a) The Company, Kapoor and
each of the Continuing Directors hereby agree that, during the term of this
Agreement, they shall not, alone or as part of a group, and will not encourage
or assist another party to, take any action, including the "solicitation" of
"proxies" or consents (as such terms are defined in Rule 14a-1 under the
Exchange Act), seeking the removal of any Nominee from the Board of Directors
and that they will not vote or consent with respect to any shares of Common
Stock over which such person has voting power in favor of the removal of any
of the Nominees from the Board of Directors and shall each cause his
Affiliates and Associates not to take any such action or so vote or consent
with respect to any shares over which they have voting power. The Company,
Kapoor and each of the Continuing Directors agree that, during the term of
this agreement they shall not, alone or as part of a group, and will not
encourage or assist another party to, commence or initiate any "solicitation"
of "proxies" relating to the election of directors of the Company, except (i)
in favor of the Nominees at the Annual Meeting or (ii) in favor of a matter
that is approved by the Board of Directors, and that they will cause their
Affiliates and Associates not to commence or initiate any such action. Each of
the Continuing Directors and Kapoor agrees not to, alone or as part of a
group, and will not encourage or assist another party to, initiate, propose or
otherwise solicit stockholders of the Company for the approval of any
stockholder proposals, whether made pursuant to Rule 14a-8 under the Exchange
Act or otherwise (other than any proposal supported by the Company with the
approval of the Board of Directors). Each of the Company, the Continuing
Directors and Kapoor agrees not to, alone or as part of a group, and will not
encourage or assist another party to, make any publicly disclosed proposal
regarding any of the matters described in the preceding sentences of this
Section 6(a) and they will cause each of their Affiliates and Associates not
to take any such action. It is understood and agreed that the foregoing shall
not be deemed to prohibit any of the Continuing Directors or Kapoor from
engaging in any lawful acts in his capacity as a director of the Company that,
if such action was not taken, would result in a breach of such person's
fiduciary duties to the Company's stockholders under the Delaware General
Corporation Law.
(b) The Company represents and warrants to Kapoor that the By-laws
have not been amended or modified since September 7, 2004.
(c) In the event that the Company breaches any provision of, or fails
to perform any of its obligations under, the first sentence of Section 5(a) of
this Agreement, then: (i) any restrictions on the right or ability of Kapoor,
his Affiliates or his Associates to vote their shares of Common Stock or
solicit "proxies" (as such term is defined in Rule 14a-1 under the Exchange
Act), including the restrictions set forth in Section 6(a) of this Agreement,
shall cease to apply and shall be of no further force or effect with respect
to Kapoor, his Affiliates or his Associates; (ii) Kapoor shall have the right
to nominate candidates for director or propose any other business in
connection with the Annual Meeting; and (iii) any time periods, advance notice
requirements, informational requirements, conditions, or other restrictions
established by the By-laws (including Section 2.4 of the By-laws), by
resolution of the Board of Directors or otherwise, that apply to the right or
ability of Kapoor, his Affiliates or his Associates to nominate candidates for
director or propose any other business shall not apply to such persons at the
Annual Meeting, and the nomination of any candidates for director by Kapoor or
the proposal of any other business by Kapoor shall be deemed conclusively to
have been properly brought before the Annual Meeting or any postponement or
adjournment thereof. It is understood and agreed that any Nominee's inability
or unwillingness to serve as a director, which then precludes the Company from
being able to fully comply with the first sentence of Section 5(a), shall not
constitute a breach of such sentence by the Company.
(d) Kapoor agrees that he shall not in any way publicly disparage the
Company or its current and former officers, directors and employees or
publicly disparage or make any public statements or proposals that are
critical of, or alternatives to, the Company's business strategy or practices,
verbally or in writing, or make any public statements that may reasonably be
derogatory or detrimental to the good name or business reputation of any of
the foregoing. Likewise, the Company and the Continuing Directors agree that
they shall not in any way publicly disparage Kapoor or his Affiliates or
Associates or make any public statements or proposals that are critical of
Kapoor's views on the Company's business strategy or practices, verbally or in
writing, or make any public statements that may reasonably be derogatory or
detrimental to Kapoor's good name or business reputation. Nothing in this
section shall preclude any party from responding truthfully to inquiries made
in connection with any legal or governmental proceeding or from making such
other statements as may be required by applicable law.
(e) Kapoor agrees that he shall not seek to be elected or agree to
serve as the Chairman of the Board of Directors until the date of the Annual
Meeting.
(f) None of the Company, the Continuing Directors or Kapoor shall
make any public request to amend, waive or terminate any provision of this
Agreement.
7. Additional Agreements. Not later than the second business day
after the date hereof, the Company shall reimburse Kapoor, in cash in
immediately available funds, an amount up to $350,000 in documented,
out-of-pocket fees and expenses incurred by Kapoor and payable to third
parties not related to Kapoor in connection with the Consent Solicitation.
8. Enforcement. The parties acknowledge and agree that irreparable
harm would result if any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
Accordingly, the parties will be entitled to seek an injunction or injunctions
to prevent breaches of this Agreement and to enforce specifically its
provisions in any court having jurisdiction, this being in addition to any
other remedy to which they may be entitled at law or in equity.
9. Entire Agreement; Waivers. This Agreement constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions, whether oral or written, of the parties with
respect to such subject matter. The parties expressly disclaim reliance on any
information, statements, representations, or warranties regarding the subject
matter of this Agreement other than the terms of this Agreement. No waiver of
any provision of this Agreement shall be deemed or shall constitute a waiver
of any other provision hereof (whether or not similar), shall constitute a
continuing waiver unless otherwise expressly provided, or shall be effective
unless in writing and executed by the party against which enforcement of such
waiver is sought.
10. Amendment or Modification; Severability. The parties hereto may
not amend or modify this Agreement except in such manner as may be agreed upon
by a written instrument executed by all of the parties hereto. If any
provision of this Agreement is held by a court of competent jurisdiction to be
unenforceable, the remaining provisions shall remain in full force and effect.
It is declared to be the intention of the parties that they would have
executed the remaining provisions without including any that may be declared
unenforceable.
11. Successors and Assigns. All the terms and provisions of this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors, and each successor shall be deemed to
be a party hereto for all purposes hereof.
12. Headings; Interpretation; Counterparts. Descriptive headings are
for convenience only and will not control or affect the meaning or
construction of any provision of this Agreement. The words "include,"
"includes," and "including" shall be deemed to be followed by the phrase
"without limitation." Words denoting gender shall include all genders. For the
convenience of the parties, any number of counterparts of this Agreement may
be executed by the parties, and each such executed counterpart will be an
original instrument.
13. Notices. Any notices or other communications required or
permitted hereunder shall be sufficiently given if in writing (including
telecopy or similar teletransmission), addressed as follows:
If to the Company or the Continuing Directors, to:
NeoPharm, Inc.
000 Xxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
and
Xxxxx, Xxxxxx, XxXxx & Seritella, P.C.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxxxx
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
If to Kapoor, to:
Xxxx X. Xxxxxx, Ph.D.
000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000, x110
Facsimile No.: (000) 000-0000
with a copy to:
XxXxxxxxx Will & Xxxxx LLP
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Unless otherwise specified herein, such notices or other communications shall
be deemed received (a) in the case of any notice or communication sent other
than by mail, on the date actually delivered to such address (evidenced, in
the case of delivery by overnight courier, by confirmation of delivery from
the overnight courier service making such delivery, and in the case of a
telecopy, by receipt of a transmission confirmation form or the addressee's
confirmation of receipt), or (b) in the case of any notice or communication
sent by mail, three business days after being sent, if sent by registered or
certified mail, with first-class postage prepaid. Each of the parties hereto
shall be entitled to specify a different address by giving notice as aforesaid
to each of the other parties hereto.
14. Termination. This Agreement shall remain in full force and effect
from the date hereof until December 1, 2005. Notwithstanding anything in this
Agreement to the contrary, the provisions of Section 5(c), Section 6(c) and
Sections 9 through 16, inclusive, shall survive any termination of this
Agreement.
15. Governing Law. This Agreement shall be governed by and construed
in accordance with the domestic substantive law of the State of Delaware,
without giving effect to any choice or conflict of law provision or rule that
would cause the application of the law of any other jurisdiction.
16. Exclusive Submission to Jurisdiction. Any disputes arising out of
or in connection with this Agreement shall be adjudicated in the Court of
Chancery of the State of Delaware. Each party hereto irrevocably submits to
the personal jurisdiction of such court for the purposes of any such suit,
action, counterclaim or proceeding arising out of this Agreement
(collectively, a "Suit"). Each of the parties hereto hereby waives and agrees
not to assert by way of motion, as a defense or otherwise in any such Suit,
any claim that it is not subject to jurisdiction of the above court, that such
Suit is brought in an inconvenient forum, or the venue of such Suit is
improper. Each of the parties hereby agrees that service of all writs, process
and summonses in any Suit may be made upon such party by mail to the address
as provided in this Agreement. Nothing herein shall in anyway be deemed to
limit the ability of any party to serve any such writs, process or summonses
in any other matter permitted by applicable law.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written by their respective duly
authorized representatives.
NEOPHARM, INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
and President
/s/ Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx, Ph.D.
/s/ Xxxxxxx X. Xxxxx
---------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxx
---------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
---------------------------------
Xx. Xxxxx X. Xxxxxx
EXHIBIT A
UNANIMOUS WRITTEN CONSENT
OF
THE BOARD OF DIRECTORS OF
NEOPHARM, INC.
November 11, 2004
The undersigned, being all of the directors of the board of directors
(the "Board of Directors") of NeoPharm, Inc., a Delaware corporation (the
"Company"), hereby consent in writing, pursuant to Section 141(f) of the
Delaware General Corporation Law, to the adoption of the following resolutions
by written consent in lieu of a meeting:
RESOLVED that the resignations of Xx. Xxxxxxx X. Xxxxx and Sander X.
Xxxxx as directors of the Company are hereby accepted.
RESOLVED that the Board of Directors approves and declares it
advisable that the Company enter into (i) the Agreement, dated as of the date
hereof, among the Company, Xxxxxxx X. Xxxxx, Xxxxx X. Xxxxxx, Xxxxx X. Xxxxxx
and Xxxx X. Xxxxxx, Ph.D. (the "Agreement") and (ii) the Separation Agreements
dated as of the date hereof, with each of Xx. Xxxxxxx X. Xxxxx and Sander X.
Xxxxx (the "Separation Agreements").
RESOLVED that the form, terms and conditions of the Agreement and the
Separation Agreements, copies of which have been provided to the members of
the Board of Directors, be, and the same hereby are, approved, authorized and
adopted by the Company, and the acts and transactions contemplated by the
Agreement and the Separation Agreements and all other actions or matters
necessary or appropriate to give effect to the foregoing be, and the same
hereby are, in all respects, approved, authorized and adopted by the Board of
Directors.
RESOLVED that, pursuant to Section 3.2 of the Amended and Restated
By-laws of the Company, as in effect on the date hereof, the number of
directors of the Corporation shall be set at eight (8).
RESOLVED that the vacancies created by (i) the resignation of Xx.
Xxxxxxx X. Xxxxx and Sander X. Xxxxx as directors from the Board of Directors
and (ii) the expansion of the size of the Board of Directors pursuant to the
immediately preceding resolution, shall be filled by the following
individuals: Xx. Xxxxxxx X. Xxx, Xxxxxx Xxxxxx, Xxxx X. Xxxxxxx and Xxxxx X.
Xxxxxx.
RESOLVED that Section 1(a) of the Rights Agreement dated as of June
30, 2003, and amended as of September 20, 2004, between the Company and
Computershare Investor Services, L.L.C. (the "Rights Agreement") is hereby
amended by replacing "22%" with "30%" in each place "22%" appears in such
section, as evidenced by the Second Amendment to the Rights Agreement dated as
of the date hereof and attached hereto as Annex I.
RESOLVED, that the officers of the Company, or any one of them, is
hereby authorized, empowered and directed for, in the name of and on behalf of
the Company, to take any and all actions,, to enter into all agreements,
perform all such further acts and things, to execute, file, deliver, or record
in the name of and on behalf of the Company all such certificates, instruments
or other documents, and to make all such payments as they, in their judgment,
or in the judgment of any one or more of them, may deem necessary or advisable
in order to carry out fully the intent and purpose of the foregoing
resolutions.
[Signature page follows.]
IN WITNESS WHEREOF, the undersigned, being all of the directors of
the board of directors of the Company, have executed this Unanimous Written
Consent as of the date first written above.
___________________________________
Xxxxxxx X. Xxxxx
___________________________________
Xxxxx X. Xxxxxx
___________________________________
Xx. Xxxxx X. Xxxxxx
___________________________________
Xxxx X. Xxxxxx, Ph.D.
ANNEX I TO
UNANIMOUS WRITTEN CONSENT
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
among 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:
------------------------------ --------------------------------
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer Title: President and
and Secretary Chief Executive Officer
Attest: COMPUTERSHARE INVESTOR
SERVICES, L.L.C.
By:
------------------------------ --------------------------------
Name: Xxxxx Xxxxxxxxxxxx Name: Xxxxxxx Xxxx
Title: Assistant Secretary Title: General Counsel
EXHIBIT B
[Form of Joint Press Release]
