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UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 30, 2024
Eagle
Pharmaceuticals, Inc.
(Exact name of Registrant
as Specified in Its Charter)
| Delaware |
001-36306 |
20-8179278 |
| (State
or Other Jurisdiction |
(Commission |
(IRS Employer |
| of Incorporation) |
File Number) |
Identification No.) |
50
Tice Boulevard, Suite 315
Woodcliff Lake, NJ |
|
07677 |
| (Address of Principal Executive Offices) |
|
(Zip Code) |
Registrant’s Telephone
Number, Including Area Code: (201) 326-5300
(Former Name or Former Address, if Changed Since
Last Report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered
pursuant to Section 12(b) of the Act:
| Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
| Common
Stock, $0.001 par value |
|
EGRX |
|
The Nasdaq Stock Market LLC(1) |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. ¨
| | (1) | On October 1, 2024, Eagle Pharmaceuticals, Inc. received
a notice from The Nasdaq Stock Market LLC (“Nasdaq”) indicating that the Nasdaq Hearings
Panel had determined to delist the Company’s Common Stock, par value $0.001 per share (the “Common Stock”),
from Nasdaq. Trading in the Common Stock on Nasdaq was suspended effective October 3, 2024. The Common Stock began trading on the
OTC Expert Market on October 4, 2024 under the symbol “EGRX.” |
Item 1.01 Entry into a Material Definitive Agreement.
On October 30, 2024, the Board of Directors (the
“Board”) of Eagle Pharmaceuticals, Inc. (the “Company”), a Delaware corporation, declared a dividend of one preferred
share purchase right (“Right”) to purchase one-thousandth of one share of the Company’s newly designated Preferred Shares
(as defined below) for each outstanding share of Common Stock (“Company Common Stock”) to the stockholders of record as of
the close of business on November 11, 2024 (the “Record Date”), and adopted
a limited duration stockholder rights plan (the “Rights Plan”), effective immediately, as set forth in the Rights Agreement,
dated as of October 30, 2024 (the “Rights Agreement”), by and between the Company and Equiniti Trust Company, LLC, as Rights
Agent (as defined therein). The Rights Agent currently serves as the Company’s transfer agent with respect to Company Common Stock
and also has been appointed transfer agent with respect to the Series A Junior Participating Preferred Stock, par value $0.001 per share
(each, a “Preferred Share” and, collectively, the “Preferred Shares”), if any, that may be issued pursuant to
the exercise of Rights under the Rights Agreement. The Rights will expire on October 30, 2025 (the “Final Expiration Date”),
unless the Rights are earlier redeemed or exchanged by the Company. The Company does not have any obligation under the Rights Agreement
to seek stockholder approval for the Rights Plan.
In general terms, the Rights Agreement is designed
to impose a penalty upon any person or group that acquires beneficial ownership of 10% (15% in the case of a passive institutional investor)
or more of the outstanding shares of Company Common Stock without the approval of the Board. The Company continues to experience a significant
dislocation in the trading price of its common stock. The Rights Plan is intended to enable all of the Company’s stockholders to
have the opportunity to realize the long-term value of their investment. The Rights Plan is intended to reduce the likelihood that any
person or group gains control of the Company through open market accumulation or other means without appropriately compensating all stockholders
or without providing the Board sufficient time to make informed judgments and take actions that are in the best interests of the Company
and its stockholders. The Rights Plan was adopted in response to the significant and ongoing dislocation in the trading price of the Company’s
common stock and recent unsolicited efforts by third parties to capitalize on this dislocation, including through accumulations of the
Company’s common stock. The Rights Plan is similar to other plans adopted by publicly held companies in comparable circumstances,
and does not contain any dead-hand, slow-hand, no-hand or similar feature that limits the ability of a future Board to redeem the rights.
A summary of the key terms of the Rights Agreement
follows:
The
Rights. Pursuant to the terms of the Rights Agreement, the Rights will not be exercisable and will trade with shares of
Company Common Stock until the earlier to occur of (a) the tenth calendar day (or such later date as may be determined by the Board)
after a person or group acquires beneficial ownership of 10% (15% in the case of a passive institutional investor) or more of
outstanding Company Common Stock (an “Acquiring Person”), in the event that the Board determines on or before such tenth
(10) calendar day to effect an exchange and determines in that a later date is advisable, such later date that is not more than
twenty (20) calendar days after the date such shares of Company Common Stock are acquired, or (b) the tenth business day (or such
later date as may be determined by action of the Board prior to such time as any person or entity becomes an Acquiring Person)
following the date of commencement, or the first announcement, of an intention to commence, a tender offer or exchange offer, the
consummation of which would result in any person or entity, or group of persons or entities acting in concert, becoming an Acquiring
Person. The term “Acquiring Person” is subject to certain customary exceptions whereby certain stockholders that would
have otherwise been an Acquiring Person are excluded from the definition of “Acquiring Person”. Any stockholders with
beneficial ownership of Company Common Stock above the applicable threshold as of the first public announcement of the Rights Plan
on October 31, 2024 are grandfathered at their then current ownership levels but are not permitted to increase their ownership
without triggering the Rights. Prior to exercise, the Rights do not give their holder any dividend, voting or liquidation
rights.
The date when the Rights separate from Company
Common Stock and become exercisable is referred to herein as the “Distribution Date”. Unless and until the occurrence of such
date, Company Common Stock certificates or, in the case of uncertificated shares, notations in the book-entry account system, will evidence
the Rights, and any transfer of shares of Company Common Stock will constitute a transfer of the related Rights. After the Distribution
Date, the Rights will be evidenced by separate book-entry credits or by Rights certificates that the Company will mail to all eligible,
certificated holders of Company Common Stock. Any Rights held by an Acquiring Person will be null and void and may not be exercised.
Exercise
Price. Pursuant to the terms of the Rights Agreement, after the Distribution Date, each Right will entitle the holder thereof
to purchase one-thousandth (1/1000th) of a Preferred Share for $10.00, subject to adjustment (the “Exercise Price”).
Each one-thousandth (1/1000th) of a Preferred Share has economic terms similar to that of one share of Company Common Stock.
The Exercise Price payable, and the number of Preferred Shares or other securities or other property issuable upon exercise of the Rights,
will be subject to adjustment from time to time to prevent dilution in the event of a stock dividend on, or a subdivision, combination
or reclassification of, the Preferred Shares. The exercise of Rights to purchase Preferred Shares will at all times be subject to the
availability of a sufficient number of authorized but unissued Preferred Shares. Notwithstanding the foregoing, with certain exceptions,
no adjustment in the Exercise Price will be required until cumulative adjustments require an adjustment of at least 1% in such Exercise
Price. No fractional Preferred Shares will be issued (other than fractions which are integral multiples of the number of one one-thousandth
(1/1,000th) of a Preferred Share issuable upon the exercise of one Right, which may, at the Company’s election, be evidenced
by depositary receipts), and in lieu thereof, an adjustment in cash will be made based on the market price of the Preferred Shares on
the last trading day prior to the date of exercise.
Beneficial
Ownership. Pursuant to the terms of the Rights Agreement, certain synthetic interests in securities created by derivative positions
— whether or not such interests are considered to be ownership of underlying shares of Company Common Stock or are reportable for
purposes of Regulation 13D of the Securities Exchange Act of 1934, as amended — are treated as beneficial ownership of the number
of shares of Company Common Stock equivalent to the economic exposure created by the derivative position, to the extent actual shares
of Company Common Stock are directly or indirectly held by counterparties to the derivatives contracts. Swaps dealers unassociated with
any control intent or intent to evade the purposes of the Rights Agreement are excepted from such imputed beneficial ownership. In addition,
shares held by affiliates and associates of an Acquiring Person, including shares that are subject of, or the reference securities for, or
that underly, any derivative position of such persons, will be deemed to be beneficially owned by the Acquiring Person. In addition, any
securities beneficially owned by a third party with whom the Acquiring Person has any agreement, arrangement or understanding (whether
or not in writing) (i) for the purpose of acquiring, holding or voting securities of the Company or (ii) to cooperate in obtaining, changing
or influencing control of the Company, will be deemed to be beneficially owned by the Acquiring Person.
Consequences of a Person or Group Becoming
an Acquiring Person.
| · | Flip-In. If a person or
group becomes an Acquiring Person, all holders of Rights except the Acquiring Person or its affiliates may, for the Exercise Price, purchase
shares of Company Common Stock with a market value of twice the Exercise Price. |
| · | Exchange. In lieu of the
“flip-in” feature described above, the Board may, at its option at any time after a person or group becomes an Acquiring
Person, exchange the Rights (other than Rights owned by the Acquiring Person or its affiliates), in whole or in part, for shares of Company
Common Stock at an exchange ratio of one share of Company Common Stock per Right (subject to adjustment). |
| · | Flip-Over. If the Company
is later acquired in a merger or similar transaction after the Distribution Date, all holders of Rights except the Acquiring Person or
its affiliates may purchase, for the Exercise Price, a number of shares of the common stock of the Principal Party (as defined in the
Rights Agreement) having a market value of twice the Exercise Price. |
Company Preferred Share Provisions.
Each Preferred Share, if issued:
| · | when, as and if any dividend is declared on Company Common Stock,
entitle the holder to quarterly dividend payments in an amount per share equal to 1,000 times the aggregate per share amount of all
cash dividends, and 1,000 times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions
other than a dividend payable in Company Common Stock or a subdivision of the outstanding Company Common Stock (by reclassification
or otherwise), declared on Company Common Stock since the immediately preceding quarterly dividend payment date or, with respect to the first date when quarterly dividends are payable in cash, since the first issuance of any share or fraction of
a share of Series A Junior Participating Preferred Stock; |
| · | will entitle the holder upon liquidation
either to receive a preferential liquidation payment of the greater of (a) $1,000 per Preferred Share, plus an amount equal to accrued
and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment and (b) an aggregate amount per
Preferred Share equal to 1,000 times the aggregate amount to be distributed per share to holders of Company Common Stock plus an amount
equal to any accrued and unpaid dividends on such Preferred Shares; |
| · | will have the same voting power
as 1,000 shares of Company Common Stock; |
| · | if shares of Company Common Stock
are exchanged via merger, consolidation, or a similar transaction, will entitle the holder to a per share payment equal to the payment
made on 1,000 shares of Company Common Stock; and |
| · | will rank junior to any other
series of the Company’s preferred stock in the event such other preferred stock is issued by the Company, unless the terms of any
such series provide otherwise. |
The value of one one-thousandth (1/1000th)
interest in a Preferred Share is intended to approximate the value of one share of Company Common Stock.
Expiration.
The Rights will expire on the Final Expiration Date, unless the Rights are earlier redeemed or exchanged by the Company.
Redemption.
The Board may redeem the Rights for $0.001 per Right at any time prior to the earlier of (A) such time as any person or group becomes
an Acquiring Person or (B) the close of business on the Final Expiration Date. Following the expiration of the above periods, the Rights
become nonredeemable. If the Board redeems any Rights, it must redeem all of the Rights. Once the Rights are redeemed, the only right
of the holders of Rights pursuant to the Rights Agreement will be to receive the redemption price of $0.001 per Right. The redemption
price will be adjusted if the Company effects a stock split or stock dividend of Company Common Stock.
Anti-Dilution
Provisions. Rights will have the benefit of certain anti-dilution provisions set forth in the Rights Agreement.
Amendments.
The terms of the Rights Agreement may be amended by the Board without the consent of the holders of the Rights. After a person or group
becomes an Acquiring Person, the Board may not amend the Rights Agreement in a way that adversely affects holders of the Rights.
Miscellaneous.
The Rights Agreement does not contain any dead-hand, slow-hand, no-hand or similar feature that limits the ability of a future
Board to redeem the Rights. Until a Right is exercised, it does not entitle the holder thereof to any additional rights as a stockholder
of the Company, including, without limitation, the right to vote or to receive dividends.
The summary of the Rights Agreement set forth
under this Item 1.01 is qualified in its entirety by reference to the complete terms and conditions of the Rights Agreement, which is
filed as Exhibit 4.1 to this Current Report on Form 8-K, and incorporated by reference into this Item 1.01.
Item 3.03 Material Modification to Rights of Security Holders.
The information
appearing above under Item 1.01 above is incorporated herein by reference.
Item 5.03 Amendment to Articles of Incorporation or Bylaws; Change
in Fiscal Year.
In connection with the adoption of the Rights
Agreement described in Item 1.01 above, the Board approved a Certificate of Designation establishing the Preferred Shares and the rights,
preferences and privileges thereof (the “Certificate of Designations”). The Certificate of Designation was filed with the
Secretary of State of the State of Delaware on October 31, 2024. The Certificate of Designation is attached hereto as Exhibit 3.1 and
is incorporated herein by reference. The information appearing above under Item 1.01 is incorporated herein by reference.
Item 7.01 Regulation FD Disclosure.
On October 31, 2024, the Company issued a press
release announcing the adoption of the Rights Plan. The full text of the press release is attached as Exhibit 99.1 to this Current Report
on Form 8-K, and is incorporated herein by reference.
The information furnished under this Item 7.01,
including Exhibit 99.1, shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, and shall not be deemed incorporated
by reference into any of the Company’s filings under the Securities Act of 1933, as amended, or the Securities Act, or the Exchange
Act, whether made before or after the date hereof, regardless of any general incorporation language in such filing, except as shall be
expressly set forth by specific reference in such filing.
Forward-Looking Statements
This Current Report on Form 8-K contains
“forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, as amended, and
other securities law. Forward-looking statements are statements that are not historical facts. Words and phrases such as
“anticipated,” “forward,” “will,” “would,” “could,” “may,”
“intend,” “remain,” “regain,” “maintain,” “potential,”
“prepare,” “expected,” “believe,” “plan,” “seek,”
“continue,” “goal,” “estimate,” and similar expressions are intended to identify forward-looking
statements. These statements include, but are not limited to, statements with respect to: the impact of the adoption of the Rights
Plan, including the ability of the Rights Plan to protect stockholders’ ability to realize the long-term value of their
investment and to effectively provide the Board sufficient time to make informed judgments and take actions that are in the best
interests of the Company and its stockholders, and expectations regarding the Company’s process to review potential
financing and other alternatives, including the types of arrangements or transactions, if any, that the Company may determine to
pursue, the scope and timing of such review process, the potential value of any such arrangements or transactions and the outcome of
such review process. All of such statements are subject to certain risks and uncertainties, many of which are difficult to predict
and generally beyond the Company’s control, which could cause actual results to differ materially from those expressed in, or
implied or projected by, the forward-looking information and statements. Such risks and uncertainties include, but are not limited
to: the completion of the review and preparation of the Company’s financial information and internal control over financial
reporting and disclosure controls and procedures and the timing thereof; the discovery of additional information; further delays in
the Company’s financial reporting, including as a result of unanticipated factors; the Company’s ability to obtain
resolution with respect to the events of default under its Third Amended and Restated Credit Agreement, as amended; the Company's
ability to obtain financing and the timing and potential terms thereof; whether the objectives of the review of potential financing
and other alternatives process will be achieved, the terms, structure, benefits and costs of any arrangement or transaction
resulting therefrom, and whether any transaction will be consummated at all; the extent to which the Rights under the Rights Plan
become exercisable, if at all; the risk that the review of potential financing and other alternatives and its announcement could
have an adverse effect on the ability of the Company to retain customers and retain and hire key personnel and maintain
relationships with customers, suppliers, employees, stockholders and other relationships and on its operating results and business
generally; the risk that the review of potential financing and other alternatives could divert the attention and time of the
Company’s management; the costs resulting from the review of potential financing and other alternatives; the risk of the
Company potentially seeking protection under bankruptcy laws; the possibility that the Company will be unable to re-list its common
stock on the Nasdaq or another exchange and, if re-listed, the possibility that the Company thereafter will be unable to continue to
comply with the listing rules of such exchange; the limitations on trading of the Company’s common stock related to the
Company’s trading on the OTC Expert Market; the impact on the price of the Company’s common stock and the
Company’s reputation; the Company’s ability to remediate material weaknesses in its internal control over financial
reporting; the Company’s ability to recruit and hire a new Chief Executive Officer and new Chief Financial Officer and retain
key personnel; the ability of the Company to realize the anticipated benefits of its plan designed to improve operational
efficiencies and realign its sales and marketing expenditures and the impacts thereof; the Company’s reliance on third parties
to manufacture commercial supplies of its products and clinical supplies of its product candidates; the impacts of geopolitical
factors such as the conflicts between Russia and Ukraine and Hamas, Iran and Israel; delay in or failure to obtain regulatory
approval of the Company’s or its partners’ product candidates and successful compliance with Federal Drug
Administration, European Medicines Agency and other governmental regulations applicable to product approvals; changes in the
regulatory environment; the uncertainties and timing of the regulatory approval process; whether the Company can successfully market
and commercialize its products; the success of the Company's relationships with its partners; the outcome of litigation and other
legal proceedings and the risk of additional litigation and legal proceedings, including with respect to the matters referenced
herein; the strength and enforceability of the Company’s intellectual property rights or the rights of third parties;
competition from other pharmaceutical and biotechnology companies and competition from generic entrants into the market; unexpected
safety or efficacy data observed during clinical trials; clinical trial site activation or enrollment rates that are lower than
expected; the risks inherent in drug development and in conducting clinical trials; risks inherent in estimates or judgments
relating to the Company’s critical accounting policies, or any of the Company’s estimates or projections, which may
prove to be inaccurate; unanticipated factors in addition to the foregoing that may impact the Company’s financial and
business projections and may cause the Company’s actual results and outcomes to materially differ from its estimates and
projections; and those risks and uncertainties identified in the “Risk Factors” sections of the Company’s Annual
Report on Form 10-K for the year ended December 31, 2022, filed with the SEC on March 23, 2023, the Company’s Quarterly
Reports on Form 10-Q for the quarter ended March 31, 2023, filed with the SEC on May 9, 2023, and for the quarter
ended June 30, 2023, filed with the SEC on August 8, 2023, and its subsequent filings with the SEC. Readers are cautioned not to
place undue reliance on these forward-looking statements. All forward-looking statements contained in this Current Report on Form
8-K speak only as of the date on which they were made. Except to the extent required by law, the Company undertakes no obligation to
update such statements to reflect events that occur or circumstances that exist after the date on which they were made. There is no
deadline or definitive timetable for the completion of the Company’s review process to evaluate potential financing and other
alternatives, there can be no assurance as to the outcome of such process, and the Company does not intend to disclose or comment on
further developments with respect to such process unless and until it determines that further disclosure is required by law or it
otherwise deems appropriate.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
| |
EAGLE PHARMACEUTICALS, INC. |
| |
|
| Dated: October 31, 2024 |
By: |
/s/ Michael Graves |
| |
|
Michael Graves |
| |
|
Interim Principal Executive Officer |
Exhibit 3.1
CERTIFICATE OF DESIGNATION
OF RIGHTS, PREFERENCES AND PRIVILEGES OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK OF EAGLE PHARMACEUTICALS, INC.
The undersigned, Michael Graves,
does hereby certify:
1. That
he is duly elected and acting Interim Principal Executive Officer of Eagle Pharmaceuticals, Inc. a Delaware corporation (the “Corporation”).
2. That
pursuant to the authority conferred upon the Board of Directors of the Corporation (the “Board”) by the Amended
and Restated Certificate of Incorporation, as amended, of the Corporation, the Board on October 30, 2024 adopted the following resolutions
(the “Resolutions”) creating a series of 100,000 shares of Preferred Stock designated as Series A Junior Participating
Preferred Stock (capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the following Resolutions):
“RESOLVED, that pursuant
to the authority vested in the Board by the Amended and Restated Certificate of Incorporation of the Corporation, as amended, the Board
does hereby provide for the issue of a series of Preferred Stock and does hereby fix and herein state and express the designations, powers,
preferences and relative and other special rights and the qualifications, limitations and restrictions of such series of Preferred Stock
as follows:
Section 1. Designation and Amount. The shares of such series of preferred stock, par value of $0.001 per share, of the Company (“Preferred
Stock”) shall be designated as “Series A Junior Participating Preferred Stock.” The Series A Junior
Participating Preferred Stock shall have a par value of $0.001 per share, and the number of shares constituting the Series A Junior Participating
Preferred Stock shall be 100,000. Such number of shares may be increased or decreased by resolution of the Board; provided, however, that
no decrease shall reduce the number of shares of Series A Junior Participating Preferred Stock to less than the number of shares then
issued and outstanding plus the number of shares issuable upon exercise of outstanding rights, options or warrants or upon conversion
of outstanding securities issued by the Corporation.
Section 2. Proportional Adjustment. In the event that the Corporation shall at any time after the issuance of any share or shares of Series A
Junior Participating Preferred Stock (i) declare any dividend on the common stock, par value $0.001 per share, of the Corporation
(“Common Stock”) payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock or (iii) combine
the outstanding Common Stock into a smaller number of shares, then in each such case the Corporation shall simultaneously effect a proportional
adjustment to the number of outstanding shares of Series A Junior Participating Preferred Stock.
Section 3. Dividends and Distributions.
(a) Subject
to the prior and superior right of the holders of any shares of any series of Preferred Stock ranking prior and superior to the
shares of Series A Junior Participating Preferred Stock with respect to dividends, the holders of shares of Series A Junior
Participating Preferred Stock shall be entitled to receive when, as and if declared by the Board out of funds legally available for
the purpose, quarterly dividends payable in cash on the last day of March, June, September and December in each year (each such date
being referred to herein as a “Quarterly Dividend Payment Date”), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or fraction of a share of Series A Junior Participating Preferred Stock,
in an amount per share of Series A Junior Participating Preferred Stock (rounded to the nearest cent) equal to 1,000 times the
aggregate per share amount of all cash dividends, and 1,000 times the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions other than a dividend payable in shares of Common Stock or a subdivision of the outstanding shares
of Common Stock (by reclassification or otherwise), declared on the Common Stock since the immediately preceding Quarterly Dividend
Payment Date, or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a
share of Series A Junior Participating Preferred Stock.
(b) The Corporation shall declare a dividend or distribution on the Series A Junior Participating Preferred Stock as provided in paragraph
(a) above immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common
Stock).
(c) Dividends shall begin to accrue on outstanding shares of Series A Junior Participating Preferred Stock from the Quarterly Dividend
Payment Date immediately preceding the date of issue of such shares of Series A Junior Participating Preferred Stock, unless the date
of issue of such shares of Series A Junior Participating Preferred Stock is prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series A Junior
Participating Preferred Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Series A Junior Participating Preferred Stock in an amount less than the total amount of such dividends
at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board may fix a record date for the determination of holders of shares of Series A Junior Participating Preferred Stock
entitled to receive payment of a dividend or distribution declared thereon, which record date shall be no more than 60 days prior to the
date fixed for the payment thereof.
Section 4. Voting Rights. The holders of shares of Series A Junior Participating Preferred Stock shall have the following voting rights:
(a) Each share of Series A Junior Participating Preferred Stock shall entitle the holder thereof to 1,000 votes on all matters submitted
to a vote of the stockholders of the Corporation.
(b) Except as otherwise provided herein or by law, the holders of shares of Series A Junior Participating Preferred Stock and the holders
of shares of Common Stock shall vote together as one class on all matters submitted to a vote of stockholders of the Corporation.
(c) Except
as required by law or provided in the Amended and Restated Certificate of Incorporation of the Corporation, as then amended (including
this Certificate of Designation), the holders of Series A Junior Participating Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent that they are entitled to vote with holders of Common Stock as set forth herein)
for taking any corporate action.
(d) If, at the time of any annual meeting of stockholders for the election of directors, the equivalent of six quarterly dividends (whether
or not consecutive) payable on any share or shares of Series A Junior Participating Preferred Stock are in default, the number of directors
constituting the Board of Directors of the Corporation shall be increased by two. In addition to voting together with the holders of Common
Stock for the election of other directors of the Corporation, the holders of record of the Series A Junior Participating Preferred Stock,
voting separately as a class to the exclusion of the holders of Common Stock, shall be entitled at said meeting of stockholders (and at
each subsequent annual meeting of stockholders), unless all dividends in arrears on the Series A Junior Participating Preferred Stock
have been paid or declared and set apart for payment prior thereto, to vote for the election of two directors of the Corporation, the
holders of any Series A Junior Participating Preferred Stock being entitled to cast a number of votes per share of Series A Junior Participating
Preferred Stock as is specified in paragraph (a) of this Section 4. Each such additional director shall not be a member of Class I, Class
II or Class III of the Board of Directors of the Corporation, but shall serve until the next annual meeting of stockholders for the election
of directors, or until his successor shall be elected and shall qualify, or until his right to hold such office terminates pursuant to
the provisions of this Section 4(d). Until the default in payments of all dividends which permitted the election of said directors shall
cease to exist, any director who shall have been so elected pursuant to the provisions of this Section 4(d) may be removed at any time,
without cause, only by the affirmative vote of the holders of the shares of Series A Junior Participating Preferred Stock at the time
entitled to cast a majority of the votes entitled to be cast for the election of any such director at a special meeting of such holders
called for that purpose, and any vacancy thereby created may be filled by the vote of such holders. If and when such default shall cease
to exist, the holders of the Series A Junior Participating Preferred Stock shall be divested of the foregoing special voting rights, subject
to revesting in the event of each and every subsequent like default in payments of dividends. Upon the termination of the foregoing special
voting rights, the terms of office of all persons who may have been elected directors pursuant to said special voting rights shall forthwith
terminate, and the number of directors constituting the Board of Directors shall be reduced by two. The voting rights granted by this
Section 4(d) shall be in addition to any other voting rights granted to the holders of the Series A Junior Participating Preferred Stock
in this Section 4.
Section 5. Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or distributions payable on the Series A Junior Participating Preferred Stock as provided
in Section 3 are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares
of Series A Junior Participating Preferred Stock outstanding shall have been paid in full, the Corporation shall not:
(i) declare
or pay dividends on, make any other distributions on, or redeem or purchase or otherwise acquire for consideration any shares of
stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Junior Participating
Preferred Stock;
(ii) declare or pay dividends on, or make any other distributions on any shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A Junior Participating Preferred Stock, except dividends paid ratably on
the Series A Junior Participating Preferred Stock and all such parity stock on which dividends are payable or in arrears in proportion
to the total amounts to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Junior Participating Preferred Stock, provided that the Corporation may at any
time redeem, purchase or otherwise acquire shares of any such parity stock in exchange for shares of any stock of the Corporation ranking
junior (either as to dividends or upon dissolution, liquidation or winding up) to the Series A Junior Participating Preferred Stock;
(iv) purchase or otherwise acquire for consideration any shares of Series A Junior Participating Preferred Stock, or any shares of stock
ranking on a parity with the Series A Junior Participating Preferred Stock, except in accordance with a purchase offer made in writing
or by publication (as determined by the Board) to all holders of such shares upon such terms as the Board, after consideration of the
respective annual dividend rates and other relative rights and preferences of the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the respective series or classes.
(b) The Corporation shall not permit any subsidiary of the Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (a) of this Section 5, purchase or otherwise acquire such shares
at such time and in such manner.
Section 6. Reacquired Shares. Any shares of Series A Junior Participating Preferred Stock purchased or otherwise acquired by the Corporation
in any manner whatsoever shall be retired promptly after the acquisition thereof. All such shares of Series A Junior Participating Preferred
Stock shall upon their retirement become authorized but unissued shares of Preferred Stock and may be reissued as part of a new series
of Preferred Stock to be created by resolution or resolutions of the Board, subject to the conditions and restrictions on issuance set
forth herein and in the Amended and Restated Certificate of Incorporation of the Corporation, as then in effect.
Section
7. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution shall be made to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Junior Participating Preferred Stock
unless, prior thereto, the holders of shares of Series A Junior Participating Preferred Stock shall have received the greater of (a)
$1,000 per share, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the
date of such payment and (b) an aggregate amount per share, subject to the provision for adjustment hereinafter set forth, equal to
1,000 times the aggregate amount to be distributed per share to holders of shares of Common Stock plus an amount equal to any
accrued and unpaid dividends on such shares of Series A Junior Participating Preferred Stock.
Section 8. Consolidation, Merger, etc. In case the Corporation shall enter into any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in
any such case the shares of Series A Junior Participating Preferred Stock shall at the same time be similarly exchanged or changed in
an amount per share equal to 1,000 times the aggregate amount of stock, securities, cash and/or any other property (payable in kind),
as the case may be, into which or for which each share of Common Stock is changed or exchanged.
Section 9. No Redemption. The shares of Series A Junior Participating Preferred Stock shall not be redeemable by the Corporation.
Section 10. Ranking. The Series A Junior Participating Preferred Stock shall rank junior to all other series of the Corporation’s Preferred
Stock as to the payment of dividends and the distribution of assets upon any liquidation, dissolution or winding up of the Corporation,
unless the terms of any such series shall provide otherwise, and shall rank senior to the Common Stock as to such matters.
Section 11. Amendment. At any time that there are shares of Series A Junior Participating Preferred Stock outstanding, the Amended and Restated
Certificate of Incorporation, as amended, of the Corporation shall not be further amended (by merger, consolidation, statutory conversion,
transfer, domestication or continuance or otherwise) in any manner which would materially alter or change the powers, preference or special
rights of the Series A Junior Participating Preferred Stock so as to affect them adversely without the affirmative vote of the holders
of a majority of the outstanding shares of Series A Junior Participating Preferred Stock, voting separately as a series.
Section 12. Fractional Shares. Series A Junior Participating Preferred Stock may be issued in fractions of a share which shall entitle the holder,
in proportion to such holder’s fractional shares, to exercise voting rights, receive dividends, participate in distributions and
to have the benefit of all other rights of holders of Series A Participating Preferred Stock.
RESOLVED FURTHER, that any
authorized officer of this Corporation be, and they hereby are, authorized and directed to prepare and file a Certificate of Designation
of Rights, Preferences and Privileges in accordance with the foregoing resolution and the provisions of Delaware law and to take such
actions as they may deem necessary or appropriate to carry out the intent of the foregoing resolution.”
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has executed this Certificate this 31st day of October, 2024.
| |
Eagle Pharmaceuticals, Inc. |
| |
|
| |
By: |
/s/ Michael Graves |
| |
Name: Michael Graves |
| |
Title: Interim Principal Executive Officer |
Exhibit 4.1
EAGLE
PHARMACEUTICALS, INC.
and
EQUINITI TRUST COMPANY, LLC, as Rights Agent
RIGHTS
AGREEMENT
October 30, 2024
Table
of Contents
Page
| Section 1. Certain Definitions |
1 |
| Section 2. Appointment of Rights Agent |
9 |
| Section 3. Issuance of Rights |
9 |
| Section 4. Form of Right Certificates |
11 |
| Section 5. Countersignature and Registration |
12 |
| Section 6. Transfer, Split Up, Combination and Exchange of Right Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates |
13 |
| Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights |
14 |
| Section 8. Cancellation and Destruction of Right Certificates |
16 |
| Section 9. Availability of Preferred Shares |
16 |
| Section 10. Preferred Shares Record Date |
17 |
| Section 11. Adjustment of Purchase Price, Number of Shares or Number of Rights |
17 |
| Section 12. Certificate of Adjusted Purchase Price or Number of Shares |
24 |
| Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power |
25 |
| Section 14. Fractional Rights and Fractional Shares |
27 |
| Section 15. Rights of Action |
29 |
| Section 16. Agreement of Right Holders |
29 |
| Section 17. Right Certificate Holder Not Deemed a Stockholder |
30 |
| Section 18. Concerning the Rights Agent |
30 |
| Section 19. Merger or Consolidation or Change of Name of Rights Agent |
31 |
| Section 20. Duties of Rights Agent |
32 |
| Section 21. Change of Rights Agent |
35 |
| Section 22. Issuance of New Right Certificates |
36 |
| Section 23. Redemption |
36 |
| Section 24. Exchange |
38 |
| Section 25. Notice of Certain Events |
40 |
| Section 26. Notices |
40 |
Table
of Contents
(continued)
Page
| Section 27. Supplements and Amendments |
41 |
| Section 28. Determination and Actions by the Board of Directors, Etc. |
42 |
| Section 29. Successors |
42 |
| Section 30. Benefits of this Agreement |
42 |
| Section 31. Severability |
42 |
| Section 32. Governing Law |
43 |
| Section 33. Counterparts |
43 |
| Section 34. Descriptive Headings |
43 |
| Section 35. Force Majeure |
43 |
| Section 36. Interpretive Matters |
43 |
EXHIBIT A - FORM OF CERTIFICATE OF
DESIGNATION
EXHIBIT B - FORM OF RIGHT CERTIFICATE
RIGHTS
AGREEMENT
This
Rights Agreement (this “Agreement”) is dated as of October 30, 2024 (the “Agreement
Date”) and is made between Eagle Pharmaceuticals, Inc., a Delaware corporation (the “Company”),
and Equiniti Trust Company, LLC, a New York limited liability trust company, as rights agent (“Rights Agent”).
Recitals
The Board of Directors of
the Company (the “Board”) has authorized and declared a dividend of one preferred share purchase right (a “Right”)
for each Common Share (as such term is hereinafter defined) outstanding at the Close of Business (as such term is hereinafter defined)
on November 11, 2024 (the “Record Date”), each Right representing the right to purchase one one-thousandth
of a Preferred Share (as such term is hereinafter defined), subject to adjustment upon the terms and subject to the conditions herein
set forth, and has further authorized and directed the issuance of one Right with respect to each Common Share that shall become outstanding
between the Record Date and the earliest to occur of the Close of Business on the Distribution Date, the Redemption Date and the Close
of Business on the Final Expiration Date (as such terms are hereinafter defined); provided, however, that Rights may be issued
with respect to Common Shares that shall become outstanding after the Close of Business on the Distribution Date and prior to the earlier
of the Redemption Date and the Close of Business on the Final Expiration Date in accordance with the provisions of Section 22 hereof.
Agreement
Accordingly, in consideration
of the premises and the mutual agreements herein set forth, the parties hereby agree as follows:
Section 1.
Certain Definitions.
For purposes of this Agreement, the following
terms have the meanings indicated:
(a) “Agreement”
shall have the meaning set forth in the first paragraph hereof.
(b) “Agreement
Date” shall have the meaning set forth in the first paragraph hereof.
(c) “Acquiring
Person” shall mean any Person who or that, together with all Affiliates and Associates of such Person shall be the Beneficial
Owner of 10% or more of the Common Shares then outstanding; provided, however, the term “Acquiring Person”
shall be deemed to exclude: (i) the Company; (ii) any Subsidiary of the Company; (iii) any employee benefit or compensation
plan of the Company or of any Subsidiary of the Company; (iv) any Person holding Common Shares for or pursuant to the terms of any
such employee benefit plan or compensation plan of the Company or any Subsidiary of the Company, but solely to the extent such Common
Shares are held for or pursuant to the terms of any such plan; and (v) a Passive Institutional Investor (but only if such Person
remains a “Passive Institutional Investor” in accordance with the definition thereof or divests sufficient Common Shares
after ceasing to be a Passive Institutional Investor as contemplated by the definition thereof (and following such divestment, such Person
shall no longer be a Passive Institutional Investor)). Notwithstanding the foregoing: (A) any Person who or that, together with
its Affiliates and Associates, (x) is, as of the time of the first public announcement of the declaration of the Rights dividend,
the Beneficial Owner of 10% (or, in the case of a Person that would otherwise be a Passive Institutional Investor but for such ownership,
15%) or more of the Common Shares outstanding and (y) continuously maintains its level of Beneficial Ownership at or above 10% or
15%, as applicable, of the Common Shares outstanding from and after the time of such first public announcement shall not be deemed to
be an “Acquiring Person” until such time after the first public announcement of the declaration of the Rights dividend that
any such Person shall become the Beneficial Owner of any additional Common Shares (other than by the declaration or payment of any dividend
by the Company or the making of any distribution by the Company on the outstanding Common Shares or pursuant to a split or subdivision
of the outstanding Common Shares) and shall then beneficially own 10% (or, in the case of a Person that would otherwise be a Passive
Institutional Investor but for such ownership, 15%) or more of the Common Shares then outstanding; (B) no Person shall become an
“Acquiring Person” (x) as the result of an acquisition or cancellation of Common Shares by the Company that, by reducing
the number of shares outstanding, increases the proportionate number of shares beneficially owned by such Person to 10]% (15% in the
case of a Person who would otherwise be a Passive Institutional Investor but for such acquisition of Common Shares by the Company) or
more of the Common Shares then outstanding (provided, however, that if a Person shall become the Beneficial Owner of 10% (15%
in the case of a Person that would otherwise be a Passive Institutional Investor but for such acquisition) or more of the Common Shares
then outstanding by reason of share purchases by the Company and, following written notice from, or public disclosure by, the Company
of such share purchases by the Company, shall become the Beneficial Owner of one or more additional Common Shares (other than by the
declaration or payment of any dividend by the Company or the making of any distribution by the Company on the outstanding Common Shares
or pursuant to a split or subdivision of the outstanding Common Shares) and shall then be the Beneficial Owner of 10% (15% in the case
of a Person that would otherwise be a Passive Institutional Investor but for such ownership) or more of the Common Shares then outstanding,
then such Person shall be deemed to be an “Acquiring Person”) or (y) if the Board determines in good faith that a Person
who would otherwise be an “Acquiring Person,” as defined pursuant to the foregoing provisions of this Section 1(c),
has become such inadvertently (including, without limitation, because such Person was unaware that it beneficially owned that number
of shares of Common Shares that would otherwise cause such Person to be an “Acquiring Person” or such Person was aware of
the extent of its Beneficial Ownership of Common Shares but had no actual knowledge of the consequences of such Beneficial Ownership
under this Agreement), and without any intention of obtaining, changing or influencing control of the Company, and such Person does not,
with such Person’s Affiliates and Associates, become the Beneficial Owner of any additional Common Shares after learning of or
having been informed of such Person becoming (save for this clause) an Acquiring Person, and, such Person divests, as promptly as practicable
(as determined in good faith by the Board), following receipt of written notice from the Company of such event, Beneficial Ownership
of a sufficient number of Common Shares so that such Person would no longer be an Acquiring Person, as defined pursuant to the foregoing
provisions of this Section 1(c), then such Person shall not be deemed to be an “Acquiring Person” for any purposes of
this Agreement; (C) no Person shall become an “Acquiring Person” solely as a result of any unilateral grant of any security
by the Company or through the exercise of any options, warrants, rights or similar interests (including restricted stock) granted by
the Company to its directors, officers and employees (provided, however, that if a Person, together with its Affiliates and Associates,
shall become the Beneficial Owner of 10% (15% in the case of a Person that would otherwise be a Passive Institutional Investor but for
such acquisition) or more of the Common Shares then outstanding by reason of a unilateral grant of a security by the Company, or through
the exercise of any options, warrants, rights or similar interests (including restricted stock) granted by the Company to its directors,
officers and employees and such Person, together with its Affiliates and Associates, shall become the Beneficial Owner of one or more
additional Common Shares (other than by the declaration or payment of any dividend by the Company or the making distribution by the Company
on the outstanding Common Shares or pursuant to a split or subdivision of the outstanding Common Shares or pursuant to a grant or exercise
described in this clause (C)) and shall then be the Beneficial Owner of 10% (15% in the case of a Person that would otherwise be a Passive
Institutional Investor but for such ownership) or more of the Common Shares then outstanding, then such Person shall be deemed to be
an “Acquiring Person”); (D) no Person shall become an “Acquiring Person” by means of share purchases directly
from or issuances (including debt for equity exchanges) directly by the Company or indirectly through an underwritten offering by the
Company, in a transaction approved by the Board of Directors of the Company (provided, however, that a Person shall be deemed
to be an “Acquiring Person” if such Person, together with its Affiliates and Associates, (x) is or becomes the Beneficial
Owner of 10% (15% in the case of a Person that would otherwise be a Passive Institutional Investor but for such ownership) or more of
the Common Shares then outstanding following such transaction and (y) subsequently becomes the Beneficial Owner of one or more additional
Common Shares (other than by the declaration or payment of any dividend by the Company or the making distribution by the Company on the
outstanding Common Shares or pursuant to a split or subdivision of the outstanding Common Shares or pursuant to a grant or exercise described
in the preceding clause (C)) without the prior written consent of the Company and shall then be the Beneficial Owner of 10% (15% in the
case of a Person that would otherwise be a Passive Institutional Investor but for such ownership) or more of the Common Shares then outstanding);
and (E) no Person shall become an “Acquiring Person” solely as the result of the acquisition by such Person of Beneficial
Ownership of Common Shares from an individual who, on the later of the date hereof and the first public announcement of this Agreement,
is the Beneficial Owner of 10% (15% in the case of a Passive Institutional Investor) or more Common Shares then outstanding if such Common
Shares are received by such Person upon such individual’s death pursuant to such individual’s will or pursuant to a charitable
trust created by such individual for estate planning purposes; provided, however, in each case, that if such Person shall, together
with its Affiliates and Associates, again become the Beneficial Owner of 10% (15% in the case of a Person who would otherwise be a Passive
Institutional Investor but for such ownership) or more of the Common Shares then outstanding, such Person shall be deemed an “Acquiring
Person,” subject to the exceptions set forth in this Section 1(c).
(d) “Affiliate”
and “Associate” shall have the respective meanings ascribed to such terms in Rule 12b-2 under the Exchange Act
as in effect on the Agreement Date.
(e) A
Person shall be deemed the “Beneficial Owner” of, and shall be deemed to “beneficially own,” and
shall be deemed to have “Beneficial Ownership” of, any securities:
(i) that
such Person, or any of such Person’s Affiliates or Associates, is deemed to beneficially own within the meaning of Rule 13d-3
under the Exchange Act as in effect on the Agreement Date;
(ii) that
such Person or any of such Person’s Affiliates or Associates, has or shares (A) the right or the obligation to acquire (whether
such right is exercisable, or such obligation is required to be performed, immediately or only after the passage of time or upon the
satisfaction or occurrence of one or more conditions other than the Distribution Date) pursuant to any agreement, arrangement or understanding,
whether or not in writing (other than customary agreements with and between underwriters and selling group members with respect to a
bona fide public offering of securities), or upon the exercise of conversion rights, exchange rights, rights (other than the Rights),
warrants or options, or otherwise; provided, however, that a Person shall not be deemed the Beneficial Owner of, to beneficially
own, or to have Beneficial Ownership of (w) securities tendered pursuant to a tender or exchange offer made pursuant to, and in
accordance with, the applicable rules and regulations promulgated under the Exchange Act by or on behalf of such Person or any of
such Person’s Affiliates or Associates until such tendered securities are accepted for purchase or exchange (x) securities
which such Person has a right to acquire upon the exercise of Rights at any time prior to the time that any Person becomes an Acquiring
Person, (y) securities issuable upon the exercise of Rights from and after the time that any Person becomes an Acquiring Person
if such Rights were acquired by such first Person or any of such first Person’s Affiliates or Associates prior to the Distribution
Date or pursuant to Section 3(a) or Section 22 hereof (“Original Rights”) or pursuant to Section 11(i) or
Section 11(o) with respect to an adjustment to Original Rights, or (z) securities which such Person or any of such Person’s
Affiliates or Associates may acquire, does or do acquire or may be deemed to have the right to acquire, pursuant to any merger or other
acquisition agreement between the Company and such Person (or one or more of such Person’s Affiliates or Associates) if such agreement
has been approved by the Board of Directors of the Company prior to such Person’s becoming an Acquiring Person; or (B) the
right or power to vote (directly or indirectly) pursuant to any agreement, arrangement or understanding, whether or not in writing; provided,
however, that a Person shall not be deemed the Beneficial Owner of, to beneficially own, or to have Beneficial Ownership of any security
by reason of such agreement, arrangement or understanding if the agreement, arrangement or understanding to vote such security (1) arises
solely from a revocable proxy or consent given to such Person in response to a public proxy or consent solicitation made pursuant to,
and in accordance with, the applicable rules and regulations promulgated under the Exchange Act and (2) is not also then reportable
on Schedule 13D under the Exchange Act (or any comparable or successor report);
(iii) that
are beneficially owned, directly or indirectly, by any other Person (or an Affiliate or Associate thereof) with which such Person (or
any of such Person’s Affiliates or Associates), has any agreement, arrangement or understanding (other than customary agreements
with and between underwriters and selling group members with respect to a bona fide public offering of securities), whether or not in
writing, for the purpose of acquiring, holding, voting or disposing of such securities; or
(iv) which
are the subject of, or the reference securities for, or that underlie, any Derivative Position of such Person or any of such Person’s
Affiliates or Associates, with the number of Common Shares deemed beneficially owned in respect of a Derivative Position being the notional
or other number of Common Shares in respect of such Derivative Position that is specified in (A) one or more filings with the Securities
and Exchange Commission by such Person or any of such Person’s Affiliates or Associates or (B) the documentation evidencing
such Derivative Position as the basis upon which the value or settlement amount of such Derivative Position, or the opportunity of the
holder of such Derivative Position to profit or share in any profit, is to be calculated in whole or in part (whichever of (A) or
(B) is greater), or if no such number of Common Shares is specified in such filings or documentation (or such documentation is not
available to the Board), as determined by the Board in its sole discretion; provided, however, that the number of securities beneficially
owned by each Counterparty (including its Affiliates and Associates) under a Derivatives Contract shall for purposes of this clause (iv) be
deemed to include all securities that are beneficially owned, directly or indirectly, by any other Counterparty (or any of such other
Counterparty’s Affiliates or Associates) under any Derivatives Contract to which such first Counterparty (or any of such first
Counterparty’s Affiliates or Associates) is a Receiving Party, with this proviso being applied to successive Counterparties as
appropriate.
Notwithstanding the foregoing
in this definition: (i) the phrase “then outstanding,” when used with reference to a Person’s Beneficial Ownership
of securities of the Company, shall mean the number of such securities then issued and outstanding together with the number of such securities
not then actually issued and outstanding that such Person would be deemed to beneficially own hereunder; (ii) nothing contained
in this Section 1(e) shall cause a Person ordinarily engaged in business as an underwriter of securities to be deemed the “Beneficial
Owner” of, or to “beneficially own”, or to have “Beneficial Ownership” of, any securities acquired or to
be acquired in either (A) a bona fide firm underwriting pursuant to an underwriting agreement entered into by the Company and such
Person or (B) a bona fide offering of securities pursuant to Rule 144A under the Securities Act pursuant to a purchase agreement
entered into by the Company and such Person; (iii) no director, officer or employee of the Company or its Subsidiaries shall be
deemed to beneficially own securities beneficially owned by the Company, any of its Subsidiaries or any other director, officer or employee
of the Company or its Subsidiaries solely due to their capacities as a director, officer or employee of the Company or any of its Subsidiaries;
(iv) no Person shall be deemed the “Beneficial Owner” of any security as a result of an agreement, arrangement or understanding
to vote such security that would otherwise render such Person the Beneficial Owner of such security. if such agreement, arrangement or
understanding is not also then reportable on Schedule 13D or 13G under the Exchange Act (or any comparable or successor report) and arises
solely from a revocable proxy or consent given to such Person in response to a public proxy or consent solicitation made pursuant to,
and in accordance with, the applicable provisions of the Exchange Act; and (v) no Person shall be deemed the “Beneficial Owner”
of any security if such Person is a “clearing agency” (as defined in Section 3(a)(23) of the Exchange Act) and has acquired
such security solely as a result of such status.
(f) “Board”
shall have the meaning set forth in the Recitals hereof.
(g) “Book-Entry”
shall mean any uncertificated share represented by book-entry.
(h) “Business
Day” shall mean any day other than a Saturday, a Sunday, or a day on which banking institutions in the State of New York
are authorized or obligated by law or executive order to close.
(i) “Close
of Business” on any given date shall mean 5:00 p.m., New York, New York time, on such date; provided, however, that
if such date is not a Business Day it shall mean 5:00 p.m., New York, New York time, on the next succeeding Business Day.
(j) “Common
Shares” shall mean the shares of Common Stock, par value $0.001 per share, of the Company; provided, however, that,
“Common Shares,” when used in this Agreement in connection with a specific reference to any Person other than the Company,
shall mean the shares of the class or series of capital stock (or equity interest) with the greatest voting power of such other Person
or, if such other Person is a Subsidiary of another Person, the Person or Persons that ultimately control such first-mentioned Person.
(k) “Company”
shall have the meaning set forth in the first paragraph hereof.
(l) “current
per share market price” shall have the meaning set forth in Section 11(d) hereof, except as otherwise set forth
in this Agreement.
(m) “Current
Value” shall have the meaning set forth in Section 11(a)(iii) hereof.
(n) “Derivatives
Contract” shall mean a contract between two parties (the “Receiving Party” and the “Counterparty”)
that is designed to produce economic benefits and risks to the Receiving Party that correspond substantially to the ownership by the
Receiving Party of a number of Common Shares specified or referenced in such contract, regardless of whether obligations under such contract
are required or permitted to be settled through the delivery of cash, Common Shares or other property, without regard to any short or
other position that hedges the economic effect of such Derivatives Contract under the same or any other Derivatives Contract. For the
avoidance of doubt, interests in broad-based index options, broad-based index futures and broad-based publicly traded market baskets
of stocks approved for trading by the appropriate federal governmental authority shall not be deemed to be Derivatives Contracts.
(o) “Derivative
Position” shall mean any Derivatives Contract or any other option, warrant, convertible security, stock appreciation right,
or other security, contract right or derivative position or similar right (other than, for the avoidance of doubt, the Rights, but including
any “swap” transaction with respect to any security, other than a broad based market basket or index), whether or not presently
exercisable, that has an exercise price or conversion privilege or a settlement payment or mechanism at a price related to the value
of the Common Shares or a value determined in whole or in part with reference to, or derived in whole or in part from, the value of the
Common Shares and that increases in value as the market price or value of the Common Shares increases or that provides an opportunity,
directly or indirectly, to profit or share in any profit derived from any increase in the value of the Common Shares, in each case regardless
of whether (i) it conveys any voting rights in such Common Shares to any Person, (ii) it is required to be, or capable of being,
settled through delivery of Common Shares or (iii) any Person (including the holder of such Derivative Position) may have entered
into other transactions that hedge its economic effect.
(p) “Distribution
Date” shall have the meaning set forth in Section 3(a) hereof.
(q) “earning
power” shall have the meaning set forth in Section 13(b) hereof.
(r) “Equivalent
Preferred Shares” shall have the meaning set forth in Section 11(b) hereof.
(s) “Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended and as in effect on the date in question, unless otherwise
specifically provided.
(t) “Exchange
Property” shall have the meaning set forth in Section 24(e) hereof.
(u) “Exchange
Ratio” shall have the meaning set forth in Section 24(a) hereof.
(v) “Exchange
Recipient” shall have the meaning set forth in Section 24(e) hereof.
(w) “Final
Expiration Date” shall mean one year after the Agreement Date.
(x) “Ownership
Statement” shall mean, with respect to any Book-Entry Common Share, the current ownership statement issued to the record
holder thereof in lieu of a certificate representing such Common Share.
(y) “Passive
Institutional Investor” shall mean any Person who or that, together with all Affiliates and Associates of such Person,
is the Beneficial Owner of less than 15% of the Common Shares then outstanding and who or that is entitled to file and files or has filed,
a statement on Schedule 13G under the Exchange Act (or any comparable or successor report) pursuant to Rule 13d-1(b)(1) or
13d-1(c)(1) under the Exchange Act, as in effect on the Record Date, with respect to the Common Shares that are beneficially owned
by such Person, but only so long as (x) such Person is eligible to report such ownership on Schedule 13G under the Exchange Act
(or any comparable or successor report), and (y) such Person has not reported and is not required to report such ownership on Schedule
13D under the Exchange Act (or any comparable or successor report). Notwithstanding anything to the contrary in this Agreement, a former
Passive Institutional Investor that should report (or reports) or becomes required to report Beneficial Ownership of Common Shares on
Schedule 13D will not be deemed to be an Acquiring Person by reason of ceasing to be a Passive Institutional Investor if (but only if):
(i) at the time it should report (or reports) or becomes required to report Beneficial Ownership of Common Shares on Schedule 13D,
that formerly Passive Institutional Investor has Beneficial Ownership of less than 10% of the Common Shares then outstanding; or (ii) (A) it
divests as promptly as practicable (but in any event not later than 15 Business Days after reporting or becoming required to report on
Schedule 13D) Beneficial Ownership of a sufficient number of Common Shares so that it would no longer be an Acquiring Person, and (B) prior
to reducing its Beneficial Ownership to below 10%, it does not increase its Beneficial Ownership of the Common Shares then outstanding
(other than by reason of share purchases by the Company) above the lowest Beneficial Ownership of such Person at any time during the
(15)-Business Day period.
(z) “Person”
shall mean any individual, firm, corporation, limited liability company, partnership, joint venture, association, trust, syndicate, unincorporated
organization or other entity, and shall include any successor (by merger or otherwise) of such entity, as well as any group under Rule 13d-5(b)(1) of
the Exchange Act.
(aa) “Preferred
Shares” shall mean shares of Series A Junior Participating Preferred Stock, par value $0.001 per share, of the Company,
having the designations and the powers, preferences and rights, and the qualifications, limitations and restrictions set forth as Exhibit A
hereto, as the same may be amended from time to time and, to the extent that there are not a sufficient number of shares of Series A
Junior Participating Preferred Stock authorized to permit the full exercise of the Rights, any other series of preferred stock of the
Company designated for such purpose containing terms substantially similar to the terms of the Series A Junior Participating Preferred
Stock.
(bb) “Principal
Party” means (i) in the case of any transaction described in clause (i) or (ii) of Section 13(a),
(A) the Person that is the issuer of the securities into which the Common Shares are converted in the consolidation or merger, or,
if there is more than one such issuer, the issuer whose Common Shares have the greatest aggregate market value of shares outstanding;
or (B) if no securities are so issued, (1) the Person that is the other party to the consolidation or merger, if such Person
survives the consolidation or merger, or, if there is more than one such Person, the Person whose Common Shares has the greatest aggregate
market value of shares outstanding; (2) if the Person that is the other party to the merger does not survive such consolidation
or merger, the Person that does survive such consolidation or merger (including the Company if it survives); or (3) the Person resulting
from the consolidation or merger; and (ii) in the case of any transaction described in clause (iii) of Section 13(a),
the Person that is the party receiving the greatest portion of the assets, cash flow or earning power transferred pursuant to such transaction
or transactions, or, if more than one Person that is a party to such transaction or transactions receives the same portion of the assets
or earning power so transferred and each such portion would, were it not for the other equal portions, constitute the greatest portion
of the assets or earning power so transferred, or if the Person receiving the greatest portion of the assets or earning power cannot
be determined, whichever of such Persons is the issuer of Common Shares having the greatest aggregate market value of shares outstanding.
For purposes of this definition, if the shares of Common Shares of such Person are not at such time, or have not been continuously over
the preceding 12-month period, registered pursuant to Section 12 of the Exchange Act, then if such Person is (x) a
direct or indirect Subsidiary of another Person whose Common Shares is and has been so registered, the term “Principal Party”
will refer to such other Person, (y) a direct or indirect Subsidiary of more than one Person whose shares of Common Shares is and
has been so registered, the term “Principal Party” will refer to whichever of such Persons is the issuer of Common Shares
having the greatest aggregate market value of shares outstanding, or (z) owned, directly or indirectly, by a joint venture formed
by two or more Persons that are not owned, directly or indirectly, by the same Person, the rules set forth in clauses (x) and
(y) above will apply to each of the owners having an interest in the venture as if the Person owned by the joint venture was a Subsidiary
of both or all of such joint venturers, and the Principal Party in each such case must bear the obligations set forth in Section 13
in the same ratio as its interest in such Person bears to the total of such interests.
(cc) “Purchase
Price” shall have the meaning set forth in Section 7(b) hereof.
(dd) “Record
Date” shall have the meaning set forth in the Recitals hereof.
(ee) “Redemption
Date” shall have the meaning set forth in Section 23(c) hereof.
(ff) “Redemption
Price” shall have the meaning set forth in the Section 23(b) hereof.
(gg) “Right”
shall have the meaning set forth in the Recitals hereof.
(hh) “Right
Certificate” shall have the meaning set forth in Section 3(a) hereof.
(ii) “Rights
Agent” shall have the meaning set forth in the first paragraph hereof.
(jj) “Section 11(a)(ii) Trigger
Date” shall have the meaning set forth in Section 11(a)(iii) hereof.
(kk) “Securities
Act” shall mean the Securities Act of 1933, as amended and as in effect on the date in question, unless otherwise specifically
provided.
(ll) “Security”
shall have the meaning set forth in Section 11(d)(i) hereof.
(mm) “Shares
Acquisition Date” shall mean the earlier of the date of (i) public announcement by the Company or an Acquiring Person
that an Acquiring Person has become such and (ii) public disclosure of facts by the Company or an Acquiring Person indicating that
an Acquiring Person has become such.
(nn) “Signature
Guarantee” shall mean any guaranty of signature by an “eligible guarantor institution” that is a member or
participant in the Securities Transfer Agents Medallion Program or other comparable “signature guarantee program” or insurance
program in addition to, or in substitution for, the foregoing.
(oo) “Subsidiary”
of any Person shall mean any corporation or other entity of which (i) a majority of the voting power of the voting equity securities
or equity interest is owned, directly or indirectly, by such Person or (ii) an amount of securities or other ownership interests
having ordinary voting power sufficient to elect at least a majority of the directors or other Persons having similar functions of such
corporation or other entity are at the time, directly or indirectly, beneficially owned, or otherwise controlled by such Person.
(pp) “Substitution
Period” shall have the meaning set forth in Section 11(a)(iii).
(qq) “Trading
Day” shall have the meaning set forth in Section 11(d)(i).
(rr) “Trust
Agreement” shall have the meaning set forth in Section 24(e).
Section 2.
Appointment of Rights Agent.
The Company hereby appoints
the Rights Agent to act as agent for the Company in accordance with the express terms and conditions hereof (and no implied terms or
conditions), and the Rights Agent hereby accepts such appointment. The Company may from time to time appoint such co-Rights Agents as
it may deem necessary or desirable (the term “Rights Agent” being used herein to refer, collectively, to the Rights Agent
together with any such co-Rights Agents), upon ten (10) calendar days’ prior written notice to the Rights Agent. In the event
the Company appoints one or more co-Rights Agents, the respective duties of the Rights Agent and any co-Rights Agents shall be as the
Company reasonably determines, provided that such duties are consistent with the terms and conditions of this Agreement and that contemporaneously
with such appointment the Company shall notify, in writing, the Rights Agent and any co-Rights Agents of any such duties. The Rights
Agent shall have no duty to supervise, and shall in no event be liable for, the acts or omissions of any such co-Rights Agent.
Section 3.
Issuance of Rights.
(a) Until
the earlier of the Close of Business on the (i) tenth calendar day after the Shares Acquisition Date (including any such date that
is after the Agreement Date and prior to the issuance of the Rights) or, in the event that the Board determines on or before such tenth
calendar day to effect an exchange in accordance with Section 24 and determines in accordance with Section 24(e) that
a later date is advisable, such later date that is not more than twenty (20) calendar days after the Shares Acquisition Date and (ii) the
tenth Business Day (or such later date as may be determined by action of the Board prior to such time as any Person becomes an Acquiring
Person) after the date of the commencement by any Person (other than the Company, any Subsidiary of the Company, any employee benefit
or compensation plan of the Company or of any Subsidiary of the Company or any Person holding Common Shares for or pursuant to the terms
of any such plan) of, or of the first public announcement of the intention of any Person (other than any of the Persons referred to in
the preceding parenthetical) to commence, a tender or exchange offer the consummation of which would result in any Person becoming an
Acquiring Person (the Close of Business on the earlier of such dates being herein referred to as the “Distribution Date”);
provided, however, that, if such earlier date is prior to the Record Date, the Distribution Date shall be the Close of Business
on the Record Date: (A) the Rights will be evidenced by the certificates for Common Shares (which certificates shall also be deemed
to be Right Certificates) or, in the case of uncertificated shares, by the balances indicated in the book-entry account system of the
transfer agent for the Book-Entry Common Shares (together with a transaction advise with respect to such shares), registered in the names
of the holders thereof and not by separate Right Certificates; (B) the registered holders of Common Shares shall also be the registered
holders of the Rights issued with respect thereto; and (C) the Rights (and the right to receive Right Certificates therefor) will
be transferable only in connection with the transfer of Common Shares. As soon as practicable after the Distribution Date, the Company
will prepare and execute, the Rights Agent will countersign, and the Company will send or cause to be sent (and the Rights Agent will,
if requested and provided with all necessary information and documents, at the expense of the Company, send or cause to be sent by such
means as the Company may reasonably select), to each record holder of Common Shares (other than any Acquiring Person or any Associate
or Affiliate of an Acquiring Person) as of the Close of Business on the Distribution Date, at the address of such holder shown on the
records of the Company or transfer agent or registrar for the Common Shares (and if the Rights Agent is not the transfer agent or registrar
for the Common Shares, the Company shall, as promptly as practicable, provide such information to the Rights Agent in a form reasonably
satisfactory to the Rights Agent), a Right Certificate, in substantially the form of Exhibit B hereto (a “Right
Certificate”), evidencing one Right for each Common Share so held, subject to the adjustment provisions of Section 11;
provided, however, that the Company may implement such procedures as it deems appropriate in its sole discretion, to minimize
the possibility that Rights are sent to Persons for whom the Rights would be null and void under Section 11(a)(ii) hereof.
Despite the foregoing, the Company may elect to use book entry positions in lieu of physical certificates, in which case, the “Right
Certificates” shall be deemed to mean the book entry position representing the related Rights. As of and after the Distribution
Date, the Rights will be evidenced solely by such Right Certificates. The Company shall as promptly as practicable notify the Rights
Agent in writing upon the occurrence of the Distribution Date, the Redemption Date or the Final Expiration Date and, if such notification
is given orally, the Company shall confirm the same in writing on or prior to the Business Day next following. Until such written notice
is received by the Rights Agent, the Rights Agent may presume conclusively for all purposes that the Distribution Date, Redemption Date
or the Final Expiration Date, as applicable, has not occurred.
(b) With
respect to certificates for Common Shares or Book-Entry Common Shares outstanding as of the Record Date, until the Close of Business
on the Distribution Date, the Rights will be evidenced by such certificates registered in the names of the holders thereof (or, for shares
participating in the direct registration system, by notations in the respective book entry accounts for the Common Shares). Until the
Close of Business on the Distribution Date (or the earlier of the Redemption Date and the Close of Business on the Final Expiration Date),
the surrender for transfer of any certificate for Common Shares or the transfer of any Book-Entry Common Shares outstanding on the Record
Date shall also constitute the transfer of the Rights associated with the Common Shares represented thereby.
(c) Certificates
for Common Shares that become outstanding (including reacquired Common Shares referred to in the penultimate sentence of this Section 3(c))
after the Record Date but prior to the earliest of the Close of Business on the Distribution Date, the Redemption Date or the Close of
Business on the Final Expiration Date shall have impressed on, printed on, written on or otherwise affixed to them a legend in substantially
the following form:
THIS CERTIFICATE ALSO EVIDENCES AND
ENTITLES THE HOLDER HEREOF TO CERTAIN RIGHTS AS SET FORTH IN A RIGHTS AGREEMENT BETWEEN EAGLE PHARMACEUTICALS, INC. (THE “COMPANY”)
AND EQUINITY TRUST COMPANY, LLC, AS RIGHTS AGENT (AND ANY SUCCESSOR RIGHTS AGENTS, THE “RIGHTS AGENT”), DATED AS OF OCTOBER
30, 2024, AS AMENDED FROM TIME TO TIME (THE “RIGHTS AGREEMENT”), THE TERMS OF WHICH ARE HEREBY INCORPORATED HEREIN BY REFERENCE
AND A COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY. UNDER CERTAIN CIRCUMSTANCES, AS SET FORTH IN THE RIGHTS
AGREEMENT, SUCH RIGHTS WILL BE EVIDENCED BY SEPARATE CERTIFICATES AND WILL NO LONGER BE EVIDENCED BY THIS CERTIFICATE. THE COMPANY WILL
DELIVER TO THE HOLDER OF THIS CERTIFICATE A COPY OF THE RIGHTS AGREEMENT WITHOUT CHARGE AFTER RECEIPT OF A WRITTEN REQUEST THEREFOR ADDRESSED
TO THE SECRETARY OF THE COMPANY. AS DESCRIBED IN THE RIGHTS AGREEMENT, RIGHTS HELD BY OR ISSUED TO ANY PERSON WHO IS OR BECOMES AN ACQUIRING
PERSON OR AN AFFILIATE OR ASSOCIATE THEREOF, (AS DEFINED IN THE RIGHTS AGREEMENT), WHETHER CURRENTLY HELD BY OR ON BEHALF OF SUCH PERSON
OR BY ANY SUBSEQUENT HOLDER, SHALL BECOME NULL AND VOID AND NO LONGER TRANSFERRABLE.
With respect to any Book-Entry
Common Shares, a legend substantially similar to such legend shall be included in the Ownership Statement in respect of such Common Share
or in a notice to such record holder of such Common Share in accordance with applicable law. With respect to the Common Shares, until
the earliest of the Close of Business on the Distribution Date, the Redemption Date or the Close of Business on the Final Expiration
Date, the Rights associated with the Common Shares represented by such certificates or Book-Entry Shares shall be evidenced by such certificates
or book-entry notation (including any Ownership Statement) alone, and the transfer of any Common Shares, whether by transfer of such
certificate or in book-entry, shall also constitute the transfer of the Rights associated with the Common Shares represented thereby.
In the event that the Company purchases or acquires any Common Shares after the Record Date but prior to Close of Business on the Distribution
Date, any Rights associated with such Common Shares shall be deemed canceled and retired so that the Company shall not be entitled to
exercise any Rights associated with the Common Shares that are no longer outstanding. Notwithstanding this Section 3(c), the omission
of a legend shall not affect the enforceability of any part of this Agreement or the rights of any holder of the Rights.
(d) Notwithstanding
anything to the contrary contained herein, Common Shares and Rights (and any securities issuable on their exercise) may be issued and
transferred by book-entry and not represented by physical certificates. Where Common Shares and Rights (and any securities issuable on
their exercise) are held in uncertificated form, references in this Agreement to Right Certificates shall be deemed to refer to the notations
in the book entry accounts reflecting ownership of such shares and, the Company and Rights Agent shall cooperate in all reasonable respects
to give effect to the intent of the provisions contained herein.
Section 4.
Form of Right Certificates.
(a) The
Right Certificates (and the form of election to purchase Preferred Shares, the form of assignment and the form of certification to be
printed on the reverse thereof) shall be substantially the same as Exhibit B hereto and may have such marks of identification
or designation and such legends, summaries or endorsements printed thereon as the Company may deem appropriate (but which do not affect
the rights, duties, liabilities or responsibilities of the Rights Agent) and as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any applicable law or with any rule or regulation made pursuant thereto or with any rule or
regulation of the Financial Industry Regulatory Authority or any stock exchange quotation system on which the Rights may from time to
time be listed, or to conform to usage. Subject to the other provisions of this Agreement, the Right Certificates shall entitle the holders
thereof to purchase such number of one one-thousandths of a Preferred Share as shall be set forth therein at the Purchase Price, but
the number of such one one-thousandths of a Preferred Share and the Purchase Price shall be subject to adjustment as provided herein.
(b) Any
Right Certificate issued pursuant to Section 3(a) or Section 22 hereof that represents Rights that are null and void pursuant
to the second paragraph of Section 11(a)(ii) hereof and any Right Certificate issued pursuant to Section 6 or Section 11
hereof upon transfer, exchange, replacement or adjustment of any other Right Certificate referred to in this sentence shall contain (to
the extent feasible) substantially the following legend:
THE
RIGHTS REPRESENTED BY THIS RIGHT CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON
OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE
AND THE RIGHTS REPRESENTED HEREBY ARE NULL AND VOID.
The provisions of Section 11(a)(ii) hereof
shall be operative whether or not the foregoing legend is contained on any such Right Certificate. The Company shall instruct the Rights
Agent in writing of the Right that should be so legended. The Company shall give written notice to the Rights Agent as soon as practicable
after it becomes aware of the existence and identity of any Acquiring Person or any Associate or Affiliate of an Acquiring Person thereof.
Section 5.
Countersignature and Registration.
The Right Certificates shall
be executed on behalf of the Company by any authorized officer of the Company either manually or by electronic signature. The Right Certificates
shall be countersigned by the Rights Agent either manually or by electronic signature and shall not be valid for any purpose unless so
countersigned. In case any officer of the Company who shall have signed any of the Right Certificates shall cease to be such an officer
before countersignature by the Rights Agent and issuance and delivery by the Company, such Right Certificates, nevertheless, may be countersigned
by the Rights Agent and issued and delivered by the Company with the same force and effect as though the person who signed such Right
Certificates had not ceased to be such an officer; and any Right Certificate may be signed on behalf of the Company by any person who,
at the actual date of the execution of such Right Certificate, shall be a proper officer of the Company to sign such Right Certificate,
although at the date of the execution of this Agreement any such person was not such an officer.
Following the Distribution
Date and receipt by the Rights Agent of notice to that effect and all other relevant information referred to in Section 3(a), the
Rights Agent will keep or cause to be kept, at its office or offices designated for such purpose, books for registration and transfer
of the Right Certificates issued hereunder. Such books shall show the names and addresses of the respective holders of the Right Certificates,
the number of Rights evidenced on its face by each of the Right Certificates, the certificate number of each Right Certificate and the
date of each of the Right Certificates.
Section 6.
Transfer, Split Up, Combination and Exchange of Right Certificates; Mutilated, Destroyed,
Lost or Stolen Right Certificates.
Subject
to the provisions of Section 11(a)(ii), Section 14 and Section 24 hereof, at any time after the Close of Business on the
Distribution Date, and at or prior to the earlier of the Redemption Date or the Close of Business on the Final Expiration Date, any Right
Certificate or Right Certificates (other than Right Certificates representing Rights that have become null and void pursuant to
Section 11(a)(ii) hereof or that have been exchanged pursuant to Section 24 hereof) may be transferred, split up, combined
or exchanged for another Right Certificate or Right Certificates, entitling the registered holder to purchase a like number of one one-thousandths
of a Preferred Share (or such other security as contemplated herein) as the Right Certificate or Right Certificates surrendered then
entitled such holder to purchase. Any registered holder desiring to transfer, split up, combine or exchange any Right Certificate or
Right Certificates shall make such request in writing delivered to the Rights Agent, and shall surrender the Right Certificate or Right
Certificates to be transferred, split up, combined or exchanged at the office of the Rights Agent designated for such purpose. The Right
Certificates are transferable only on the registry books of the Rights Agent. Neither the Rights Agent nor the Company shall be obligated
to take any action whatsoever with respect to the transfer, split up, combination or exchange of any such surrendered Right Certificate
or Right Certificates until the registered holder shall have (i) properly completed and duly executed the certificate contained
in the form of assignment set forth on the reverse side of each such Right Certificate accompanied by a Signature Guarantee, (ii) provided
such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof and
other documentation as the Company or the Rights Agent shall reasonably request and (iii) paid a sum sufficient to cover any tax
or charge that may be imposed in connection with any such transfer in accordance with Section 9 and to the Company in the manner
required by this Agreement. Thereupon the Rights Agent shall, subject to the terms of this Agreement, countersign and deliver to the
Person entitled thereto a Right Certificate or Right Certificates, as the case may be, as so requested, registered in such name or names
as may be designated by the surrendering registered holder. The Company may require payment of a sum sufficient to cover any tax or charge
that may be imposed in connection with any transfer, split up, combination or exchange of Right Certificates. The Rights Agent shall
promptly forward any such sum collected by it to the Company or to such Person or Persons as the Company shall specify by written notice.
The Rights Agent shall have no duty to deliver any Right Certificate unless and until it is satisfied that all such payments have been
made and shall have no duty or obligation to take any action with respect to a Rights holder under any Section of this Agreement
which requires the payment by such Rights holder of applicable taxes and/or charges unless and until the Rights Agent is satisfied that
all such taxes and/or charges have been paid.
Subject to the
provisions of this Agreement, at any time after the Distribution Date and prior to the Expiration Date, upon receipt by the Company
and the Rights Agent of evidence reasonably satisfactory to them of the loss, theft, destruction or mutilation of a Right
Certificate, and, in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to them, and, at the
Company’s request, reimbursement to the Company and the Rights Agent of all reasonable expenses incidental thereto, and upon
surrender to the Rights Agent and cancellation of the Right Certificate if mutilated, the Company will issue, execute and deliver a
new Right Certificate of like tenor to the Rights Agent for countersignature and delivery to the registered holder in lieu of the
Right Certificate so lost, stolen, destroyed or mutilated. Without limiting the foregoing, the Rights Agent may require the owner of
any lost, stolen or destroyed Right Certificate, or their legal representative, to provide to the Right Agent an open penalty surety
bond to indemnify the Rights Agent against any claim that may be made against it on account of the alleged loss, theft or
destruction of any such Right Certificate or the issuance of any such new Right Certificate.
Section 7.
Exercise of Rights; Purchase Price; Expiration Date of Rights.
(a) The
registered holder of any Right Certificate may exercise the Rights evidenced thereby (except as otherwise provided herein) in whole or
in part at any time after the Distribution Date upon surrender of the Right Certificate, with the form of election to purchase on the
reverse side thereof properly completed and duly executed, to the Rights Agent at the office or offices of the Rights Agent designated
for such purpose, accompanied by a Signature Guarantee and such other documentation as the Rights Agent may reasonably request together
with payment of the Purchase Price in cash, or by certified check, cashier’s check, bank draft or money order payable to the order
of the Company for each one one-thousandth of a Preferred Share (or such other number of shares or other securities) as to which the
Rights are exercised, prior to the earliest of (i) the Close of Business on the Final Expiration Date, (ii) the Redemption
Date, (iii) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type
described in Sections 1(e)(ii)(A)(z) and 13(f) at which time the Rights are terminated and (iv) the time at which the
right to exercise such Rights is terminated as provided in Section 24 hereof. Except for those provisions herein which expressly
survive the termination of this Agreement, this Agreement shall terminate at such time as the Rights are no longer exercisable hereunder.
(b) The
purchase price for each one one-thousandths of a Preferred Share pursuant to the exercise of a Right shall initially be $10.00
(the “Purchase Price”), shall be subject to adjustment from time to time as provided in Section 11
and Section 13 hereof and shall be payable in lawful money of the United States of America in accordance with Section 7(c) below.
In no event shall the Purchase Price to be paid upon the exercise of one Right be less than the aggregate par value of the shares of
capital stock of the Company issuable upon the exercise of such Right.
(c) Except
as otherwise provided herein, upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase
properly completed and duly executed, accompanied by payment of the Purchase Price for the shares to be purchased and an amount equal
to any applicable tax or charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof
by cash, certified check, cashier’s check, bank draft or money order payable to the order of the Company, the Rights Agent shall
thereupon promptly (i) (A) requisition from any transfer agent for the Preferred Shares certificates for the number of one
one-thousandths of a Preferred Shares to be purchased and the Company hereby irrevocably authorizes its transfer agent to comply with
all such requests, or (B) if the Company, in its sole discretion, shall have elected to deposit the Preferred Shares issuable upon
exercise of the Rights hereunder into a depository, and provides written notice of such election to the Rights Agent, requisition from
the depositary agent depositary receipts representing such number of one one-thousandths of a Preferred Share as are to be purchased
(in which case certificates for the Preferred Shares represented by such receipts shall be deposited by the transfer agent with the depositary
agent) and the Company hereby directs the depositary agent to comply with such request, (ii) when necessary to comply with this
Agreement, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional shares in accordance with Section 14
hereof, (iii) after receipt of such certificates or depositary receipts, cause the same to be delivered to or upon the order of
the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when
necessary to comply with this Agreement, after receipt, deliver such cash to or upon the order of the registered holder of such Right
Certificate. In the event that the Company is obligated to issue securities of the Company other than Preferred Shares (including Common
Shares) pursuant to Section 11(a) hereof, the Company will make all arrangements necessary so that such other securities are
available for distribution by the Rights Agent, if and when necessary to comply with this Agreement. Until so received, the Rights Agent
shall have no duties or obligations with respect to such securities.
In addition, in the case
of an exercise of the Rights by a holder pursuant to Section 11(a)(ii) hereof, the Rights Agent, if requested and provided
with all necessary information and documents, shall return such Right Certificate to the registered holder thereof after imprinting,
stamping or otherwise indicating thereon that the rights represented by such Right Certificate no longer include the rights provided
by Section 11(a)(ii) hereof, and, if fewer than all the Rights represented by such Right Certificate were so exercised, the
Rights Agent shall indicate on the Right Certificate the number of Rights represented thereby that continue to include the rights provided
by Section 11(a)(ii) hereof.
(d) Except
as otherwise provided herein, in case the registered holder of any Right Certificate shall exercise fewer than all the Rights evidenced
thereby (other than a partial exercise of rights pursuant to Section 11(a)(ii) as described in Section 7(c) hereof),
a new Right Certificate evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered
holder of such Right Certificate or to the duly authorized assigns of such holder, subject to the provisions of Section 14 hereof.
(e) Notwithstanding
anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action with
respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless such
registered holder shall have (i) properly completed and duly executed the certification following the form of election to purchase
set forth on the reverse side of the Right Certificate surrendered for such exercise, (ii) tendered the Purchase Price (and an amount
equal to any applicable tax or charge required to be paid by the holder of such Right Certificate in accordance with Section 9)
to the Company in the manner set forth in Section 7(c), and (iii) provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall reasonably
request.
Section 8.
Cancellation and Destruction of Right Certificates.
All Right Certificates surrendered
for the purpose of exercise, transfer, split up, combination or exchange shall, if surrendered to the Company or to any of its agents,
be delivered to the Rights Agent for cancellation or in canceled form, or, if delivered or surrendered to the Rights Agent, shall be
canceled by it, and no Right Certificates shall be issued in lieu thereof except as expressly permitted by any of the provisions of this
Agreement. The Company shall deliver to the Rights Agent for cancellation and retirement, and the Rights Agent shall so cancel and retire,
any other Right Certificate purchased or acquired by the Company otherwise than upon the exercise thereof. At the Company’s expense,
the Rights Agent shall deliver all canceled Right Certificates to the Company, or shall, at the written request of the Company, destroy
such canceled Right Certificates, and in such case shall deliver a certificate of destruction thereof to the Company.
Section 9.
Availability of Preferred Shares.
The
Company covenants and agrees that it shall use its best efforts to cause to be reserved and kept available out of its authorized and
unissued Preferred Shares or any Preferred Shares held in its treasury the number of Preferred Shares that will be sufficient to permit
the exercise in full of all outstanding Rights in accordance with Section 7 hereof. The Company covenants and agrees that
it will take all such action as may be necessary to ensure that all Preferred Shares (or Common Shares and other securities, as the case
may be) delivered upon exercise of Rights shall, at the time of delivery of the certificates for such Preferred Shares (or Common Shares
and other securities, as the case may be) (subject to payment of the Purchase Price), be duly and validly authorized and issued and fully
paid and nonassessable shares or other securities. The Company further covenants and agrees that it will pay when due and payable any
and all federal and state transfer taxes and charges that may be payable in respect of the issuance or delivery of the Right Certificates
or of any Preferred Shares (or Common Shares and other securities, as the case may be) upon the exercise of Rights. The Company shall
not, however, be required to pay any tax or charge that may be payable in respect of any transfer or delivery of Right Certificates to
a Person other than, or the issuance or delivery of certificates or depositary receipts for the Preferred Shares (or Common Shares and
other securities as the case may be) in a name other than that of, the registered holder of the Right Certificate evidencing Rights surrendered
for exercise or to issue or to deliver any certificates or depositary receipts for Preferred Shares (or Common Shares and other securities
as the case may be) upon the exercise of any Rights until any such tax or charge shall have been paid (any such tax or charge being payable
by the holder of such Right Certificate at the time of surrender) or until it has been established to the Company’s or the Rights
Agent’s satisfaction that no such tax or charge is due.
Section 10.
Preferred Shares Record Date.
Each
Person in whose name any certificate for Preferred Shares or other securities is issued upon the exercise of Rights shall for all purposes
be deemed to have become the holder of record of the Preferred Shares or other securities represented thereby on, and such certificate
shall be dated, the date upon which the Right Certificate evidencing such Rights was duly surrendered with the forms of election and
certification properly completed and duly executed and payment of the Purchase Price (and any applicable taxes or charges) was duly made;
provided, however, that if the date of such surrender and payment is a date upon which the Preferred Shares or other securities
transfer books of the Company are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate
shall be dated, the next succeeding Business Day on which the Preferred Shares or other securities transfer books of the Company are
open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate, as such, shall not be entitled to any
rights of a holder of Preferred Shares or other securities for which the Rights shall be exercisable, including, without limitation,
the right to vote, to receive dividends or other distributions, or to exercise any preemptive rights, and shall not be entitled to receive
any notice of any proceedings of the Company, except as provided herein.
Section 11.
Adjustment of Purchase Price, Number of Shares or Number of Rights.
The Purchase Price, the number
of Preferred Shares or other securities or assets covered by each Right and the number of Rights outstanding are subject to adjustment
from time to time as provided in this Section 11.
(a) (i) In
the event the Company shall at any time after the Agreement Date (A) declare a dividend on the Preferred Shares payable in Preferred
Shares, (B) subdivide or split the outstanding Preferred Shares, (C) combine or consolidate the outstanding Preferred Shares
into a smaller number of Preferred Shares or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares
(including any such reclassification in connection with a share exchange, consolidation or merger in which the Company is the continuing
or surviving entity), except as otherwise provided in this Section 11(a), the Purchase Price in effect at the time of the record
date for such dividend or of the effective date of such subdivision, split, combination, consolidation or reclassification, and the number
and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised
after such time shall be entitled to receive the aggregate number and kind of shares of capital stock that, if such Right had been exercised
immediately prior to such date and at a time when the Preferred Shares transfer books of the Company were open, such holder would have
owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, split, combination, consolidation or reclassification;
provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate
par value of the shares of capital stock of the Company issuable upon exercise of one Right. If an event occurs that would require an
adjustment under both Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall
be in addition to, and shall be made prior to any adjustment required pursuant to Section 11(a)(ii) hereof.
(ii) Subject
to Section 24 hereof, in the event any Person becomes an Acquiring Person, each holder of a Right shall thereafter have a right
to receive, upon exercise thereof at a price equal to the then current Purchase Price multiplied by the number of one one-thousandths
of a Preferred Share for which a Right is then exercisable, in accordance with the terms of this Agreement and in lieu of Preferred Shares,
such number of Common Shares as shall equal the result obtained by (A) multiplying the then current Purchase Price by the number
of one one-thousandths of a Preferred Share for which a Right is then exercisable and dividing that product by (B) 50% of the then
current per share market price of the Common Shares (determined pursuant to Section 11(d) hereof) on the date such Person became
an Acquiring Person; provided, however, that if the transaction that would otherwise give rise to the foregoing adjustment is
also subject to the provisions of Section 13 hereof, then only the provisions of Section 13 hereof shall apply and no adjustment
shall be made pursuant to this Section 11(a)(ii). In the event that any Person shall become an Acquiring Person and the Rights shall
then be outstanding, the Company shall not take any action that would eliminate or diminish the benefits intended to be afforded by the
Rights.
Notwithstanding anything
in this Agreement to the contrary, from and after the time any Person becomes an Acquiring Person, any Rights (x) beneficially owned
by such Acquiring Person or an Associate or Affiliate of such Acquiring Person or (y) that were beneficially owned by such Acquiring
Person or an Associate or Affiliate of such Acquiring Person and are beneficially owned by (A) a transferee of such Acquiring Person
(or of any such Associate or Affiliate) who received such Rights after the earlier of the date the Acquiring Person became such and the
Distribution Date or (B) a transferee of such Acquiring Person (or of any such Associate or Affiliate) who received such Rights
prior to or on the earlier of the date the Acquiring Person became such and the Distribution Date and pursuant to either (1) a transfer
(whether or not for consideration) from the Acquiring Person (or of any such Associate or Affiliate) to holders of equity interests in
such transferring Person or to any Person with whom the Acquiring Person (or of any such Associate or Affiliate) has any continuing agreement,
arrangement or understanding, whether or not in writing, regarding the transferred Rights or (2) a transfer that the Board has determined
is part of a plan, arrangement or understanding, whether or not in writing, that has as a primary purpose or effect the avoidance of
this Section 11(a)(ii), shall become null and void without any further action and no holder of such Rights shall have any rights
whatsoever with respect to such Rights, whether under any provision of this Agreement or otherwise. The Company shall use all reasonable
efforts to ensure that the provisions of this Section 11(a)(ii) and Section 4(b) hereof are complied with, but neither
the Company nor the Rights Agent shall have liability to any holder of Right Certificates or other Person (without limiting the rights
of the Rights Agent hereunder) as a result of the Company’s failure to make any determinations hereunder with respect to an Acquiring
Person or its Affiliates, Associates or transferees. No Right Certificate shall be issued at any time upon the transfer of any Rights
to an Acquiring Person whose Rights would be null and void pursuant to the first sentence of this paragraph or any Associate or Affiliate
thereof or to any nominee of any of them; and any Right Certificate delivered to the Rights Agent for transfer to any Person whose Rights
would be null and void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of any of them shall
be cancelled. The Company shall give the Rights Agent written notice of the identity of any such Person, Associate or Affiliate and the
nominee of any of the foregoing promptly after it becomes aware of such identity, and the Rights Agent may rely conclusively on such
notice in carrying out its duties under this Agreement. Until such written notice is received by the Rights Agent, the Rights Agent may
assume conclusively for all purposes that no such Acquiring Person exists.
(iii) In
lieu of issuing Common Shares in accordance with Section 11(a)(ii) hereof, the Company may, if the Board determines that such
action is necessary or appropriate and not contrary to the interests of holders of Rights, elect to (and, in the event that the Board
has not exercised the exchange right contained in Section 24(c) hereof and there are not sufficient treasury shares and authorized
but unissued Common Shares to permit the exercise in full of the Rights in accordance with Section 11(a)(ii) hereof, the Company
shall) take all such action as may be necessary to authorize, issue or pay, upon the exercise of the Rights, cash (including by way of
a reduction of the Purchase Price), property, debt or other equity securities (including, without limitation, shares, or units of shares,
of preferred stock, such as the Preferred Shares, which the Board has deemed to have essentially the same value or economic rights as
Common Shares) or any combination thereof having an aggregate value equal to the value of the Common Shares that otherwise would have
been issuable pursuant to Section 11(a)(ii) hereof (the “Current Value”), which aggregate value shall
be determined by the Board upon consideration of the advice of a nationally recognized investment banking firm selected by the Board;
provided, however, if the Company shall not have made adequate provision to deliver value if required pursuant to the first parenthetical
of this sentence within thirty (30) days following the first occurrence of an event triggering the rights to purchase Common Shares described
in Section 11(a)(ii) (the “Section 11(a)(ii) Trigger Date”), then the Company shall be
obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Common Shares (to
the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the excess of the Current
Value over the Purchase Price. For purposes of the preceding sentence, Current Value shall be determined pursuant to Section 11(d) hereof.
If the Board of the Company shall determine in good faith that it is likely that sufficient additional Common Shares could be authorized
for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary,
but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek stockholder
approval for the authorization of such additional shares (such period, as it may be extended, the “Substitution Period”).
To the extent that the Company determines that some action need or should be taken pursuant to this Section 11(a)(iii), the Company
(x) shall provide, subject to Section 7(e) hereof and the last paragraph of Section 11(a)(ii) hereof, that such
action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration
of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution
to be made pursuant to this Section 11(a)(iii) and to determine the value thereof. In the event of any such suspension, the
Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended. The Company shall
promptly notify the Rights Agent in writing upon the occurrence of such suspension, and if such notification is given orally, the Company
shall confirm the same in writing on or prior to the Business Day next following. Until such notice is received by the Rights Agent,
the Rights Agent may presume conclusively that no such suspension has occurred. The Board may, but shall not be required to, establish
procedures to allocate the right to receive Common Shares upon the exercise of the Rights among the holders of Rights pursuant to this
Section 11(a)(iii).
(b) In
case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling
them to subscribe for or purchase Preferred Shares (or shares having the same designations and the powers, preferences and rights, and
the qualifications, limitations and restrictions as the Preferred Shares (“Equivalent Preferred Shares”)) or
securities convertible into Preferred Shares or Equivalent Preferred Shares at a price per Preferred Share or Equivalent Preferred Share
(or having a conversion price per share, if a security convertible into Preferred Shares or Equivalent Preferred Shares) less than the
then current per share market price of the Preferred Shares on such record date, the Purchase Price to be in effect after such record
date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator
of which shall be the number of Preferred Shares outstanding on such record date plus the number of Preferred Shares that the aggregate
offering price of the total number of Preferred Shares or Equivalent Preferred Shares so to be offered (or the aggregate initial conversion
price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which shall
be the number of Preferred Shares outstanding on such record date plus the number of additional Preferred Shares or Equivalent Preferred
Shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible);
provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate
par value of the shares of capital stock of the Company issuable upon exercise of one Right. In case such subscription price may be paid
in a consideration part or all of which shall be in a form other than cash, the value of such consideration shall be as determined in
good faith by the Board, whose determination shall be described in a written statement filed with the Rights Agent. Preferred Shares
owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment
shall be made successively whenever such a record date is fixed; and in the event that such rights, options or warrants are not so issued,
the Purchase Price shall be adjusted to be the Purchase Price that would then be in effect if such record date had not been fixed.
(c) In
case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares (including any such
distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving entity) of evidences
of indebtedness or assets (other than a regular quarterly cash dividend or a dividend payable in Preferred Shares) or subscription rights
or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date
shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of
which shall be the then current per share market price of the Preferred Shares on such record date, less the fair market value (as determined
in good faith by the Board, whose determination shall be described in a written statement filed with the Rights Agent) of the portion
of the assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred
Share and the denominator of which shall be such current per share market price of the Preferred Shares; provided, however, that
in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital
stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date
is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price
that would then be in effect if such record date had not been fixed.
(d) (i) For
the purpose of any computation hereunder, the “current per share market price” of any security (a “Security”
for the purpose of this Section 11(d)(i)) on any date shall be deemed to be the average of the daily closing prices per share of
such Security for the thirty (30) consecutive Trading Days immediately prior to, but not including, such date; provided, however,
that in the event that the current per share market price of the Security is determined during a period following the announcement by
the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities
convertible into such shares, or (B) any subdivision, combination or reclassification of such Security or securities convertible
into such shares and prior to, but not including, the expiration of thirty (30) Trading Days after the ex-dividend date for such dividend
or distribution, or the record date for such subdivision, combination or reclassification, then, and in each such case, the current per
share market price shall be appropriately adjusted to reflect the current market price per share equivalent of such Security. The closing
price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing
bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on The New York Stock Exchange or The Nasdaq Stock Market or, if the Security is not listed
or admitted to trading on The New York Stock Exchange or The Nasdaq Stock Market, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national securities exchange on which the Security is listed or admitted
to trading or, if the Security is not listed or admitted to trading on any national securities exchange, the last quoted price or, if
not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported in the OTC Bulletin Board,
the Pink OTC Markets, Inc. or such other system then in use, or, if on any such date the Security is not quoted by any such organization,
the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Security selected
by the Board or, if on any such date no professional market maker is making a market in the Security, the price as determined in good
faith by the Board. The term “Trading Day” shall mean a day on which the principal national securities exchange
on which the Security is listed or admitted to trading is open for the transaction of business or, if the Security is not listed or admitted
to trading on any national securities exchange, a Business Day.
(ii) For
the purpose of any computation hereunder, the “current per share market price” of the Preferred Shares shall
be determined in accordance with the method set forth in Section 11(d)(i) hereof. If the Preferred Shares are not publicly
traded, the “current per share market price” of the Preferred Shares shall be conclusively deemed to be the current per share
market price of the Common Shares as determined pursuant to Section 11(d)(i) hereof (appropriately adjusted to reflect any
stock split, stock dividend or similar transaction occurring after the Agreement Date) multiplied by one thousand. If neither the Common
Shares nor the Preferred Shares are publicly traded, “current per share market price” shall mean the fair value per share
as determined in good faith by the Board, whose determination shall be set forth in a written statement filed with the Rights Agent.
(e) No
adjustment in the Purchase Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the
Purchase Price; provided, however, that any adjustments that by reason of this Section 11(e) are not required to be
made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 11 shall
be made to the nearest cent or to the nearest one one-hundred thousandths of a Preferred Share or one one-thousandths of any other share
or security as the case may be. Notwithstanding the first sentence of this Section 11(e), any adjustment required by this Section 11
shall be made no later than the earlier of (i) three years from the date of the transaction that requires such adjustment and (ii) the
date of the expiration of the right to exercise any Rights.
(f) If
as a result of an adjustment made pursuant to Section 11(a) hereof, the holder of any Right thereafter exercised shall become
entitled to receive any shares of capital stock of the Company other than Preferred Shares, thereafter the number of such other shares
so receivable upon exercise of any Right shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent
as practicable to the provisions with respect to the Preferred Shares contained in Section 11(a) through Section 11(c) hereof,
inclusive, and the provisions of Section 7, Section 9, Section 10, Section 13 and Section 14 hereof with respect
to the Preferred Shares shall apply on like terms to any such other shares.
(g) All
Rights originally issued by the Company subsequent to any adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of one one-thousandths of a Preferred Share purchasable from time to time hereunder
upon exercise of the Rights, all subject to further adjustment as provided herein.
(h) Unless
the Company shall have exercised its election as provided in Section 11(i) hereof, upon each adjustment of the Purchase Price
as a result of the calculations made in Section 11(b) and Section 11(c) hereof, each Right outstanding immediately
prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Purchase Price, that number of
one one-thousandths of a Preferred Share (calculated to the nearest one one-hundred thousandths of a Preferred Share) obtained by (i) multiplying
(x) the number of one one-thousandths of a Preferred Share covered by a Right immediately prior to this adjustment by (y) the
Purchase Price in effect immediately prior to such adjustment of the Purchase Price and (ii) dividing the product so obtained by
the Purchase Price in effect immediately after such adjustment of the Purchase Price.
(i) The
Company may elect on or after the date of any adjustment of the Purchase Price to adjust the number of Rights, in substitution for any
adjustment in the number of one one-thousandths of a Preferred Share purchasable upon the exercise of a Right. Each of the Rights outstanding
after such adjustment of the number of Rights shall be exercisable for the number of one one-thousandths of a Preferred Share for which
a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights
shall become that number of Rights (calculated to the nearest one one-thousandths) obtained by dividing the Purchase Price in effect
immediately prior to adjustment of the Purchase Price by the Purchase Price in effect immediately after adjustment of the Purchase Price.
The Company shall make a public announcement (with prompt written notice thereof to the Rights Agent; and until such written notice is
received by the Rights Agent, the Rights Agent may presume conclusively that no such election has occurred) of its election to adjust
the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made.
This record date may be the date on which the Purchase Price is adjusted or any day thereafter, but, if the Right Certificates have been
issued, shall be at least ten (10) days later than the date of the public announcement. If Right Certificates have been issued,
upon each adjustment of the number of Rights pursuant to this Section 11(i), the Company shall, as promptly as practicable, cause
to be distributed to holders of record of Right Certificates on such record date Right Certificates evidencing, subject to Section 14
hereof, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the Company,
shall cause to be distributed to such holders of record in substitution and replacement for the Right Certificates held by such holders
prior to the date of adjustment, and upon surrender thereof, if required by the Company, new Right Certificates evidencing all the Rights
to which such holders shall be entitled after such adjustment. Right Certificates to be so distributed shall be issued, executed, delivered
and countersigned by the Rights Agent in the manner provided for herein and shall be registered in the names of the holders of record
of Right Certificates on the record date specified in the public announcement.
(j) Irrespective
of any adjustment or change in the Purchase Price or the number of one one-thousandths of a Preferred Share issuable upon the exercise
of the Rights, the Right Certificates theretofore and thereafter issued may continue to express the Purchase Price and the number of
one one-thousandths of a Preferred Share that was expressed in the initial Right Certificates issued hereunder.
(k) Before
taking any action that would cause an adjustment reducing the Purchase Price below one one-thousandths of the then par value, if any,
of the Preferred Shares issuable upon exercise of the Rights, the Company shall take any corporate action that may, in the opinion of
its counsel, be necessary to enable the Company to validly and legally issue fully paid and nonassessable Preferred Shares at such adjusted
Purchase Price.
(l) In
any case in which this Section 11 shall require that an adjustment in the Purchase Price be made effective as of a record date for
a specified event, the Company may elect to defer (with prompt written notice thereof to the Rights Agent; and until such written notice
is received by the Rights Agent, the Rights Agent may presume conclusively that no such election has occurred) until the occurrence of
such event the issuing to the holder of any Right exercised after such record date of the Preferred Shares and other capital stock or
securities of the Company, if any, issuable upon such exercise on the basis of the Purchase Price in effect prior to such adjustment;
provided, however, that the Company shall deliver to such holder a due bill or other appropriate instrument evidencing such holder’s
right to receive such additional shares upon the occurrence of the event requiring such adjustment.
(m) The
Company covenants and agrees that, after the Distribution Date, it will not, except as permitted by this Agreement, take (or permit any
Subsidiary to take) any action the purpose of which is to, or if at the time such action is taken it is reasonably foreseeable that the
effect of such action is to, materially diminish or eliminate the benefits intended to be afforded by the Rights. Any such action taken
by the Company during any period after any Person becomes an Acquiring Person but prior to the Distribution Date shall be null and void
unless such action could be taken under this Section 11(m) from and after the Distribution Date.
(n) Notwithstanding
anything in this Section 11 to the contrary, the Company shall be entitled to make such reductions in the Purchase Price, in addition
to those adjustments expressly required by this Section 11, as and to the extent that it in its sole discretion shall determine
to be advisable in order that any (i) combination or subdivision of the Preferred Shares, (ii) issuance wholly for cash of
any Preferred Shares at less than the current market price, (iii) issuance wholly for cash of Preferred Shares or securities that
by their terms are convertible into or exchangeable for Preferred Shares, (iv) dividends on Preferred Shares payable in Preferred
Shares or (v) issuance of rights, options or warrants referred to hereinabove in Section 11(b), hereafter made by the Company
to holders of its Preferred Shares shall not be taxable to such stockholders.
(o) In
the event that at any time after the Agreement Date and prior to the Distribution Date, the Company shall (i) declare or pay any
dividend on the Common Shares payable in Common Shares or (ii) effect a subdivision, split, combination or consolidation of the
Common Shares (by reclassification or otherwise other than by payment of dividends in Common Shares) into a greater or lesser number
of Common Shares, then in any such case (A) the number of one one-thousandths of a Preferred Share purchasable after such event
upon proper exercise of each Right shall be determined by multiplying the number of one one-thousandths of a Preferred Share so purchasable
immediately prior to such event by a fraction, the numerator of which is the number of Common Shares outstanding immediately before such
event and the denominator of which is the number of Common Shares outstanding immediately after such event, (B) each Common Share
outstanding immediately after such event shall have issued with respect to it that number of Rights that each Common Share outstanding
immediately prior to such event had issued with respect to it, and (C) the Purchase Price immediately prior to the record date for
such dividend or the effective date of such subdivision, split, combination or consolidation of the Common Shares (by reclassification
or otherwise other than by payment of dividends in Common Shares) shall be adjusted so that the Purchase Price after such event shall
be determined by multiplying the Purchase Price in effect immediately prior to such event by a fraction, the numerator of which is the
number of Common Shares outstanding immediately prior to such event and the denominator of which is the number of Common Shares outstanding
immediately after such event. The adjustments provided for in this Section 11(o) shall be made successively whenever such a
dividend is declared or paid or such a subdivision, combination or consolidation is effected.
Section 12.
Certificate of Adjusted Purchase Price or Number of Shares.
Whenever
an adjustment is made or any event affecting the Rights or their exercisability (including without limitation an event that causes
Rights to become null and void) occurs as provided in Section 11 and Section 13 hereof, the Company shall as promptly as practicable
(a) prepare a certificate setting forth such adjustment or describing such event, and a brief, reasonably detailed statement of
the facts, computations and methodology accounting for such adjustment, (b) file with the Rights Agent and with each transfer agent
for the Common Shares or the Preferred Shares a copy of such certificate and (c) if such adjustment occurs following a Distribution
Date, mail a brief summary thereof to each holder of a Right Certificate in accordance with Section 25 and Section 26 hereof.
Notwithstanding the foregoing sentence, the failure of the Company to make such certification or give such notice shall not affect the
validity of such adjustment or the force or effect of the requirement for such adjustment. The Rights Agent shall be fully protected
in relying on any such certificate and on any adjustment or statement therein contained and shall have no duty or liability with respect
to, and shall not be deemed to have knowledge of, any adjustment or any such event unless and until it shall have received such certificate.
Section 13.
Consolidation, Merger or Sale or Transfer of Assets or Earning Power.
(a) In
the event that, at any time after a Person becomes an Acquiring Person, directly or indirectly, (i) the Company shall consolidate
with, or merge with and into, any other Person, (ii) any Person shall consolidate with the Company, or merge with and into the Company
and the Company shall be the continuing or surviving corporation of such merger and, in connection with such merger, all or part of the
Common Shares shall be changed into or exchanged for stock or other securities of any other Person (or the Company) or cash or any other
property, or (iii) the Company shall sell or otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise transfer),
in one or more transactions, assets or earning power aggregating 50% or more of the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to any other Person other than the Company or one or more of its wholly-owned Subsidiaries, then, and in each such
case, proper provision shall be made so that (A) each holder of a Right (except as otherwise provided herein) shall thereafter have
the right to receive, upon the exercise thereof at a price equal to the then current Purchase Price multiplied by the number of one one-thousandths
of a Preferred Share for which a Right is then exercisable, in accordance with the terms of this Agreement and in lieu of Preferred Shares,
such number of Common Shares of the Principal Party (free and clear of all liens, encumbrances, rights of first refusal and other adverse
claims) as shall equal the result obtained by (x) multiplying the then current Purchase Price by the number of one one-thousandths
of a Preferred Share for which a Right is then exercisable and dividing that product by (y) 50% of the then current per share market
price of the Common Shares of the Principal Party (determined pursuant to Section 11(d) hereof) on the date of consummation
of such consolidation, merger, sale or transfer; (B) the Principal Party shall thereafter be liable for, and shall assume, by virtue
of such consolidation, merger, sale or transfer, all the obligations and duties of the Company pursuant to this Agreement; (C) the
term “Company” shall thereafter be deemed to refer to the Principal Party; and (D) the Principal Party shall take such
steps (including the reservation of a sufficient number of its Common Shares in accordance with Section 9 hereof) in connection
with such consummation as may be necessary to assure that the provisions hereof shall thereafter be applicable, as nearly as reasonably
may be, in relation to the Common Shares thereafter deliverable upon the exercise of the Rights.
(b) The
Company covenants and agrees that it shall not consummate any such consolidation, merger, sale or transfer unless prior thereto the Company
and the Principal Party shall have executed and delivered to the Rights Agent an agreement confirming that the requirements of this Section 13
shall promptly be performed in accordance with their terms and that such consolidation, merger, sale or transfer of assets shall not
result in a default by the Principal Party under this Agreement as the same shall have been assumed by the Principal Party pursuant to
this Section 13 and providing that, as soon as practicable after executing such agreement pursuant to this Section 13, the
Principal Party will:
(i) prepare
and file a registration statement under the Securities Act, if necessary, with respect to the Rights and the securities purchasable upon
exercise of the Rights on an appropriate form, use its best efforts to cause such registration statement to become effective as soon
as practicable after such filing and use its best efforts to cause such registration statement to remain effective (with a prospectus
at all times meeting the requirements of the Securities Act) until the Final Expiration Date and similarly comply with applicable state
securities laws;
(ii) use
its best efforts, if the Common Shares of the Principal Party shall be listed or admitted to trading on the New York Stock Exchange,
The Nasdaq Stock Market or another national securities exchange, to list or admit to trading (or continue the listing of) the Rights
and the securities purchasable upon exercise of the Rights on the New York Stock Exchange, The Nasdaq Stock Market or such other national
securities exchange, or, if the Common Shares of the Principal Party shall not be listed or admitted to trading on the New York Stock
Exchange, The Nasdaq Stock Market or another national securities exchange, to cause the Rights and the securities receivable upon exercise
of the Rights to be authorized for quotation on any other system then in use;
(iii) deliver
to holders of the Rights historical financial statements for the Principal Party which comply in all respects with the requirements for
registration on Form 10 (or any successor form) under the Exchange Act; and
(iv) obtain
waivers of any rights of first refusal or preemptive rights in respect of the Common Shares of the Principal Party subject to purchase
upon exercise of outstanding Rights.
(c) In
case the Principal Party has a provision in any of its authorized securities or in its certificate of incorporation or bylaws or other
instrument governing its affairs, which provision would have the effect of (i) causing such Principal Party to issue (other than
to holders of Rights pursuant to this Section 13), in connection with, or as a consequence of, the consummation of a transaction
referred to in this Section 13, Common Shares (or equivalents thereof) of such Principal Party at less than the then current market
price per share thereof (determined pursuant to Section 11(d) hereof) or securities exercisable for, or convertible into, Common
Shares (or equivalents thereof) of such Principal Party at less than such then current market price, or (ii) providing for any special
payment, tax or similar provision in connection with the issuance of the Common Shares of such Principal Party pursuant to the provisions
of Section 13, then, in such event, the Company hereby agrees with each holder of Rights that it shall not consummate any such transaction
unless prior thereto the Company and such Principal Party shall have executed and delivered to the Rights Agent a supplemental agreement
providing that the provision in question of such Principal Party shall have been canceled, waived or amended, or that the authorized
securities shall be redeemed, so that the applicable provision will have no effect in connection with, or as a consequence of, the consummation
of the proposed transaction.
(d) The
Company shall not enter into any transaction of the kind referred to in this Section 13 if (i) at the time of such transaction
there are any rights, warrants, instruments or securities outstanding or any agreements or arrangements which, as a result of the consummation
of such transaction, would eliminate or substantially diminish the benefits intended to be afforded by the Rights, (ii) prior to,
simultaneously with or immediately after such consolidation, merger, sale, transfer or other transaction, the shareholders of the Person
who constitutes, or would constitute, the Principal Party shall have received a distribution of Rights previously owned by such Person
or any of its Affiliates or Associates or (iii) the form or nature of organization of the Principal Party would preclude or limit
the exercisability of the Rights. The provisions of this Section 13 shall similarly apply to successive mergers or consolidations
or sales or other transfers.
(e) For
purposes hereof, the “earning power” of the Company and its Subsidiaries shall be determined in good faith
by the Board on the basis of the operating earnings of each business operated by the Company and its Subsidiaries during the three fiscal
years preceding the date of such determination (or, in the case of any business not operated by the Company or any Subsidiary during
three full fiscal years preceding such date, during the period such business was operated by the Company or any Subsidiary).
(f) Notwithstanding
anything contained herein to the contrary, in the event of any merger or other acquisition transaction involving the Company pursuant
to a merger or other acquisition agreement between the Company and any Person (or one or more of such Person’s Affiliates or Associates)
which agreement has been approved by the Board of Directors prior to any Person becoming an Acquiring Person, this Agreement and the
rights of holders of Rights hereunder shall be terminated in accordance with Section 7(a).
Section 14.
Fractional Rights and Fractional Shares.
(a) The
Company shall not be required to issue fractions of Rights or to distribute Right Certificates that evidence fractional Rights. In lieu
of such fractional Rights, there shall be paid to the registered holders of the Right Certificates with regard to which such fractional
Rights would otherwise be issuable, an amount in cash equal to the same fraction of the current market value of a whole Right. For the
purposes of this Section 14(a), the current market value of a whole Right shall be the closing price of the Rights for the Trading
Day immediately prior to the date on which such fractional Rights would have been otherwise issuable. The closing price for any day shall
be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed
or admitted to trading on The New York Stock Exchange or The Nasdaq Stock Market, or if the Rights are not listed or admitted to trading
on The New York Stock Exchange or The Nasdaq Stock Market, as reported in the principal consolidated transaction reporting system with
respect to securities listed on the principal national securities exchange on which the Rights are listed or admitted to trading or,
if the Rights are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted,
the average of the high bid and low asked prices in the over-the-counter market, as reported in the OTC Bulletin Board, the Pink OTC
Markets, Inc. or such other system then in use or, if on any such date the Rights are not quoted by any such organization, the average
of the closing bid and asked prices as furnished by a professional market maker making a market in the Rights selected by the Board,
or if on any such date no such market maker is making a market in the Rights, the fair value of the Rights on such date as determined
in good faith by the Board shall be used.
(b) The
Company shall not be required to issue fractions of Preferred Shares (other than fractions that are integral multiples of one one-thousandths
of a Preferred Share) upon exercise of the Rights or to distribute certificates that evidence fractional Preferred Shares (other than
fractions that are integral multiples of one one-thousandths of a Preferred Share). Fractions of Preferred Shares in integral multiples
of one one-thousandths of a Preferred Share may, at the election of the Company, be evidenced by depositary receipts; provided, however,
that holders of such depositary receipts shall have all of the designations and the powers, preferences and rights, and the qualifications,
limitations and restrictions to which they are entitled as beneficial owners of the Preferred Shares represented by such depositary receipts.
In lieu of fractional Preferred Shares that are not integral multiples of one one-thousandths of a Preferred Share, the Company shall
pay to the registered holders of Right Certificates at the time such Rights are exercised as herein provided an amount in cash equal
to the same fraction of the current market value of one Preferred Share. For the purposes of this Section 14(b), the current market
value of a Preferred Share shall be the closing price of a Preferred Share (as determined pursuant to the second sentence of Section 11(d)(i) hereof)
for the Trading Day immediately prior to the date of such exercise; provided, however, that if the Preferred Shares are not publicly
traded at the time of such exercise, the current market value of a Preferred Share shall be determined in accordance with Section 11(d)(ii) hereof
for the Trading Day immediately prior to the date of such exercise.
(c) Following
the occurrence of one of the transactions or events specified in Section 11 hereof giving rise to the right to receive Common Shares
or other securities (other than Preferred Shares) upon the exercise of a Right, the Company shall not be required to issue fractions
of Common Shares or other securities upon exercise of the Rights or to distribute certificates that evidence fractional Common Shares
or other securities. In lieu of fractional Common Shares or other securities, the Company may pay to the registered holders of Right
Certificates at the time such Rights are exercised as herein provided an amount in cash equal to the same fraction of the current market
value of one Common Share or one such other security. For purposes of this Section 14(c), the current market value shall be the
closing price for one Common Share or such other security, as applicable (as determined pursuant to the second sentence of Section 11(d)(i) hereof)
for the Trading Day immediately prior to the date of such exercise; provided, however, that if such other security is not publicly
traded at the time of such exercise, such security shall have the value of one one-thousandths (subject to appropriate adjustment in
the case of a subdivision or combination) of a Preferred Share as determined pursuant to Section 14(b) hereof.
(d) The
holder of a Right by the acceptance of the Right expressly waives any right such holder may have to receive any fractional Rights or
any fractional shares upon exercise of a Right (except as provided above).
(e) Whenever
a payment for fractional Rights or fractional shares is to be made by the Rights Agent, the Company shall (i) promptly prepare and
deliver to the Rights Agent a certificate setting forth in reasonable detail the facts related to such payments and the prices or formulas
utilized in calculating such payments, and (ii) provide sufficient monies to the Rights Agent in the form of fully collected funds
to make such payments. The Rights Agent shall be fully protected in relying upon such a certificate and shall have no duty with respect
to, and shall not be deemed to have knowledge of any payment for fractional Rights or fractional shares under any Section of this
Agreement relating to the payment of fractional Rights or fractional shares unless and until the Rights Agent shall have received such
a certificate and sufficient monies.
Section 15.
Rights of Action.
(a) All
rights of action in respect of this Agreement, excepting the rights of action given to the Rights Agent under Section 18 and Section 20
and any other Section hereof, are vested in the respective registered holders of the Right Certificates (and, prior to the Distribution
Date, the registered holders of the Common Shares) and any registered holder of any Right Certificate (or, prior to the Distribution
Date, of the Common Shares), without the consent of the Rights Agent or of the holder of any other Right Certificate (or, prior to the
Distribution Date, of the Common Shares), may, in such holder’s own behalf and for such holder’s own benefit, enforce, and
may institute and maintain any suit, action or proceeding against the Company to enforce, or otherwise act in respect of, such holder’s
right to exercise the Rights evidenced by such Right Certificate in the manner provided in such Right Certificate and in this Agreement.
Without limiting the foregoing or any remedies available to the holders of Rights, it is specifically acknowledged that the holders of
Rights would not have an adequate remedy at law for any breach by the Company of this Agreement and will be entitled to specific performance
of the obligations hereunder, and injunctive relief against actual or threatened violations by the Company of the obligations of the
Company under this Agreement.
(b) Notwithstanding
anything in this Agreement to the contrary, neither the Company nor the Rights Agent shall have any liability to any holder of a Right
or other Person as a result of the inability of the Company or the Rights Agent to perform any of its obligations under this Agreement
by reason of any preliminary or permanent injunction or other order, judgment, decree or ruling (whether interlocutory or final) issued
by a court of competent jurisdiction or by a governmental, regulatory, self-regulatory or administrative agency or commission, or any
statute, rule, regulation or executive order promulgated or enacted by any governmental authority, prohibiting or otherwise restraining
performance of such obligation; provided, however, that the Company shall use all reasonable efforts to oppose any action for any such
injunction order, judgment, decree or ruling and to have any such injunction, order, judgment, decree or ruling lifted or otherwise overturned
as soon as possible.
Section 16.
Agreement of Right Holders.
Every holder of a Right,
by accepting the same, consents and agrees with the Company and the Rights Agent and with every other holder of a Right that:
(a) prior
to the Distribution Date, the Rights will be transferable only in connection with the transfer of the Common Shares;
(b) after
the Distribution Date, the Right Certificates are transferable (subject to the provisions of this Agreement) only on the registry books
of the Rights Agent if surrendered at the office or offices of the Rights Agent designated for such purpose, duly endorsed or accompanied
by a proper instrument of transfer and with all appropriate forms and certificates fully executed, accompanied by a Signature Guarantee
and such other documents as the Rights Agent may request; and
(c) subject
to Section 6 and Section 7(e) hereof, the Company and the Rights Agent may deem and treat the Person in whose name the
Right Certificate (or, prior to the Distribution Date, the associated Common Shares certificate (or Book-Entry Common Share)) is registered
as the absolute owner thereof and of the Rights evidenced thereby (notwithstanding any notations of ownership or writing on the Right
Certificates or the associated Common Shares certificate (or Ownership Statements or other notices provided to holders of Book-Entry
Common Shares) made by anyone other than the Company or the Rights Agent) for all purposes whatsoever, and neither the Company nor the
Rights Agent shall be affected by any notice to the contrary.
Section 17.
Right Certificate Holder Not Deemed a Stockholder.
No holder, as such, of any
Right Certificate shall be entitled to vote, receive dividends or be deemed for any purpose the holder of the Preferred Shares or any
other securities of the Company that may at any time be issuable on the exercise or exchange of the Rights represented thereby, nor shall
anything contained herein or in any Right Certificate be construed to confer upon the holder of any Right Certificate, as such, any of
the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders
at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting
stockholders (except as provided in Section 25 hereof), or to receive dividends or subscription rights, or otherwise, until the
Right or Rights evidenced by such Right Certificate shall have been exercised or exchanged in accordance with the provisions hereof.
Section 18.
Concerning the Rights Agent.
The Company agrees to pay
to the Rights Agent reasonable compensation for all services rendered by it hereunder in accordance with a fee schedule to be mutually
agreed upon and, from time to time, on demand of the Rights Agent, its reasonable expenses and counsel fees (including counsel fees incurred
under Section 20(a) below), and other disbursements incurred in the preparation, negotiation, delivery, amendment, administration
and execution of this Agreement and the exercise and performance of its duties hereunder. The Company also agrees to indemnify the Rights
Agent for, and to hold it harmless against, any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, claim, cost
or expense (including, without limitation, the reasonable fees and expenses of legal counsel and reasonable fees and expenses arising
directly or indirectly from enforcing its rights hereunder) paid, incurred, or to which it may become subject, without gross negligence,
bad faith or willful misconduct on the part of the Rights Agent (which gross negligence, bad faith or willful misconduct must be determined
by a final, non-appealable judgment of a court of competent jurisdiction), for any action taken, suffered or omitted to be taken by the
Rights Agent in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement,
including the costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing
its rights hereunder. The provisions of this Section 18 and Section 20 below shall survive the termination of this Agreement,
the exercise, termination or expiration of the Rights and the resignation, replacement or removal of the Rights Agent and the exercise,
termination and expiration of the Rights. The Rights Agent shall be authorized and protected and shall incur no liability for, or in
respect of any action taken, suffered or omitted to be taken by it in connection with its acceptance and administration of this Agreement
and the exercise and performance of its duties hereunder, in reliance upon any Right Certificate or certificate for the Preferred Shares
or Common Shares or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit,
letter, notice, direction, consent, certificate, statement, or other paper or document believed by it to be genuine and to be signed,
executed and, where necessary, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counsel as
set forth in Section 20 hereof. The Rights Agent shall not be deemed to have any knowledge of any event of which it was to receive
notice thereof hereunder, and the Rights Agent shall be fully protected and shall incur no liability for failing to take any action in
connection therewith, unless and until it has received such notice in writing.
Section 19.
Merger or Consolidation or Change of Name of Rights Agent.
(a) Any
Person into which the Rights Agent or any successor Rights Agent may be merged or with which it may be consolidated, or any Person resulting
from any merger or consolidation to which the Rights Agent or any successor Rights Agent shall be a party, or any Person succeeding to
the shareholder services or corporate trust business of the Rights Agent or any successor Rights Agent, shall be the successor to the
Rights Agent under this Agreement without the execution or filing of any paper or document or any further act on the part of any of the
parties hereto, provided that such Person would be eligible for appointment as a successor Rights Agent under the provisions of Section 21
hereof. The purchase of all or substantially all of the Rights Agent’s assets employed in the performance of the transfer agent
activities shall be deemed a merger or consolidation for purposes of this Section 19. In case at the time such successor Rights
Agent shall succeed to the agency created by this Agreement any of the Right Certificates shall have been countersigned but not delivered,
any such successor Rights Agent may adopt the countersignature of the predecessor Rights Agent and deliver such Right Certificates so
countersigned; and in case at that time any of the Right Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Right Certificates either in the name of the predecessor Rights Agent or in the name of the successor Rights Agent;
and in all such cases such Right Certificates shall have the full force provided in the Right Certificates and in this Agreement.
(b) In
case at any time the name of the Rights Agent shall be changed and at such time any of the Right Certificates shall have been countersigned
but not delivered, the Rights Agent may adopt the countersignature under its prior name and deliver Right Certificates so countersigned;
and in case at that time any of the Right Certificates shall not have been countersigned, the Rights Agent may countersign such Right
Certificates either in its prior name or in its changed name; and in all such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Agreement.
Section 20.
Duties of Rights Agent.
The Rights Agent undertakes
to perform only the duties and obligations expressly imposed by this Agreement (and no implied duties) upon the following terms and conditions,
by all of which the Company and the holders of Right Certificates, by their acceptance thereof, shall be bound:
(a) The
Rights Agent may consult with legal counsel of its choice (who may be legal counsel for the Company, an employee of the Rights Agent
or otherwise), and the advice or opinion of such counsel shall be full and complete authorization and protection to the Rights Agent
and the Rights Agent shall incur no liability for in respect of any action taken, suffered or omitted to be taken by it in the absence
of bad faith, gross negligence or willful misconduct in accordance with such advice or opinion.
(b) Whenever
in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including
without limitation, the identity of an Acquiring Person and the determination of the current per share market price of any security)
be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless
other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate
signed by any authorized officer of the Company and delivered to the Rights Agent; and such certificate shall be full and complete authorization
and protection to the Rights Agent and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted
to be taken by it in the absence of bad faith, gross negligence or willful misconduct under the provisions of this Agreement in reliance
upon such certificate. The Rights Agent shall have no duty to act without such certificate as set forth in this Section 20(b).
(c) The
Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconduct
(which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent
jurisdiction).
(d) The
Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the
Right Certificates (except its countersignature thereof) or be required to verify the same, but all such statements and recitals are
and shall be deemed to have been made by the Company only.
(e) The
Rights Agent shall not have any liability for or be under any responsibility in respect of the validity of this Agreement or the execution
and delivery hereof (except the due execution hereof by the Rights Agent) or in respect of the legality or validity or execution of any
Right Certificate (except its countersignature thereof); nor shall it be liable or responsible for any breach by the Company of any covenant
or condition contained in this Agreement or in any Right Certificate; nor shall it be liable or responsible for any change in the exercisability
of the Rights (including the Rights becoming null and void pursuant to Section 11(a)(ii) hereof) or any change or adjustment
in the terms of the Rights (including the manner, method or amount thereof) provided for in Section 3, Section 11, Section 13,
Section 23 or Section 24 hereof, or the ascertaining of the existence of facts that would require any such calculation, change
or adjustment (except with respect to the exercise of Rights evidenced by Right Certificates after receipt of a certificate pursuant
to Section 12, upon which the Rights Agent may rely, hereof describing such change or adjustment, upon which the Rights Agent may
conclusively rely); nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation
of any Preferred Shares to be issued pursuant to this Agreement or any Right Certificate or as to whether any Preferred Shares will,
when issued, be validly authorized and issued, fully paid and nonassessable.
(f) The
Rights Agent shall not be liable or responsible for any failure of the Company to comply with any of its obligations relating to any
registration statement filed with the Securities and Exchange Commission or this Agreement, including obligations under applicable regulation
or law.
(g) The
Rights Agent shall not have any duty or responsibility in the case of the receipt of any written demand from any holder of Rights with
respect to any action or default by the Company, including, without limiting the generality of the foregoing, any duty or responsibility
to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(h) The
Company will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further
and other acts, instruments and assurances as may reasonably be required or requested by the Rights Agent for the carrying out or performing
by the Rights Agent of the provisions of this Agreement.
(i) The
Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from any
authorized officer of the Company and to apply to such officers for advice or instructions in connection with its duties, and such instructions
shall be full authorization and protection to the Rights Agent and the Rights Agent shall not be liable or responsible for or in respect
of any action taken, suffered or omitted to be taken by it in accordance with instructions of any such officer or for any delay in acting
while waiting for those instructions. The Rights Agent shall be fully authorized and protected in relying in the absence of bad faith,
gross negligence or willful misconduct upon the most recent instructions received by it from any such officer. Any application by the
Rights Agent for written instructions from the Company may, at the option of the Rights Agent, set forth in writing any action proposed
to be taken, suffered or omitted to be taken by the Rights Agent under this Agreement and the date on or after which such action shall
be taken or suffered or such omission shall be effective. The Rights Agent shall not be liable for any action taken or suffered by or
omission of or for any delay in acting while waiting for advice or instructions, the Rights Agent in accordance with a proposal included
in any such application on or after the date specified therein (which date shall not be less than five (5) Business Days after the
date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to an earlier
date) unless, prior to taking any such action (or the effective date in the case of an omission), the Rights Agent shall have received
written instructions in response to such application specifying the action to be taken, suffered or omitted to be taken.
(j) If,
with respect to any Right Certificate surrendered to the Rights Agent for exercise or transfer, the certificate contained in the form
of assignment or the form of election to purchase set forth on the reverse thereof, as the case may be, has either not been completed,
not executed or has been altered, the Rights Agent shall not take any further action with respect to such requested exercise or transfer
without first consulting with the Company; provided, however that Rights Agent shall not be liable for any delays arising from the duties
under this Section 20(j).
(k) The
Rights Agent and any stockholder, affiliate, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights
or other securities of the Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract
with or lend money to the Company or otherwise act as fully and freely as though it were not Rights Agent under this Agreement. Nothing
herein shall preclude the Rights Agent or any such stockholder, affiliate, director, officer, employee, agent or representative of the
Rights Agent from acting in any other capacity for the Company or for any other Person.
(l) The
Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself (through
its directors, officers and employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable
for any act, omission, default, neglect or misconduct of any such attorneys or agents or for any loss to the Company or any other Person
resulting from any such act, omission, default, neglect or misconduct, absent gross negligence or bad faith in the selection and continued
employment thereof (which gross negligence or bad faith must be determined by a final, non-appealable judgment of a court of competent
jurisdiction).
(m) No
provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it reasonably believes that repayment
of such funds or adequate indemnification against such risk or liability is not reasonably assured to it.
(n) The
Rights Agent shall have no responsibility to the Company, any holders of Rights or any other Person for interest or earnings on any moneys
held by the Rights Agent pursuant to this Agreement.
(o) The
Rights Agent shall not be required to take notice or be deemed to have notice of any event or condition hereunder, including any event
or condition that may require action by the Rights Agent, unless the Rights Agent, shall be specifically notified in writing of such
event or condition by the Company, and all notices or other instruments required by this Agreement to be delivered to the Rights Agent
must, in order to be effective, be received by the Rights Agent as specified in Section 26 hereof, and in the absence of such notice
so delivered, the Rights Agent may conclusively assume no such event or condition exists.
(p) The
Rights Agent may rely on and be fully authorized and protected in acting or failing to act upon (a) any Signature Guarantee or (b) any
law, act, regulation or any interpretation of the same.
(q) In
the event the Rights Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or
other communication, paper or document received by the Rights Agent hereunder, the Rights Agent, may (upon notice to the Company of such
ambiguity or uncertainty) in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable
in any way to the Company, the holder of any Right Certificate or any other Person for refraining from taking such action, unless the
Rights Agent receives written instructions signed by the Company that eliminate such ambiguity or uncertainty to the satisfaction of
the Rights Agent.
Section 21.
Change of Rights Agent.
The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this Agreement upon thirty (30) days’ notice in writing mailed
to the Company and, in the event that the Rights Agent or one of its affiliates is not also the transfer agent for the Company, to each
transfer agent for the Common Shares or Preferred Shares known to the Rights Agent by registered or certified mail and the Company shall
be responsible for sending any required notice. The Company may remove the Rights Agent or any successor Rights Agent, in each case,
with or without cause, upon thirty (30) days’ notice in writing, mailed to the Rights Agent or successor Rights Agent, as the case
may be, and to each transfer agent for the Common Shares or Preferred Shares by registered or certified mail, and, if after the Distribution
Date, to the holders of the Right Certificates by first-class mail. If the Rights Agent shall resign or be removed or shall otherwise
become incapable of acting, the Company shall appoint a successor to the Rights Agent. If the Company shall fail to make such appointment
within a period of thirty (30) days after giving notice of such removal or after it has been notified in writing of such resignation
or incapacity by the resigning or incapacitated Rights Agent or by the holder of a Right Certificate (which holder shall, with such notice,
submit such holder’s Right Certificate for inspection by the Company), then the registered holder of any Right Certificate may
apply to the court referenced in Section 32 of this Agreement or, solely if such court declines jurisdiction, any court of competent
jurisdiction for the appointment of a new Rights Agent. Any successor Rights Agent, whether appointed by the Company or by such a court,
shall be either (a) a Person organized and doing business under the laws of the United States or of any state of the United States
that is authorized under such laws to exercise corporate trust or stock transfer powers and is subject to supervision or examination
by federal or state authority and that has, along with its Affiliates, at the time of its appointment as Rights Agent a combined capital
and surplus or net assets, on a consolidated basis, of at least $50 million or (b) an Affiliate of such Person. After appointment,
the successor Rights Agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named
as Rights Agent without further act or deed; but the predecessor Rights Agent shall deliver and transfer to the successor Rights Agent
any property at the time held by it hereunder, and execute and deliver any conveyance, act or deed reasonably necessary for the purpose,
but such predecessor Rights Agent shall not be required to make any additional expenditure or assume any additional liability in connection
with the foregoing. Not later than the effective date of any such appointment the Company shall file notice thereof in writing with the
predecessor Rights Agent and each transfer agent for the Common Shares or Preferred Shares, and, if after the Distribution Date, mail
a notice thereof in writing to the registered holders of the Right Certificates. Failure to give any notice provided for in this Section 21,
however, or any defect therein, shall not affect the legality or validity of the resignation or removal of the Rights Agent or the appointment
of the successor Rights Agent, as the case may be. In the event that the transfer agency relationship in effect between the Company and
the Rights Agent terminates, the Rights Agent will be deemed to have resigned automatically and be discharged from its duties under this
Agreement as of the effective date of such termination, and the Company shall be responsible for sending any required notice.
Section 22.
Issuance of New Right Certificates.
Notwithstanding
any of the provisions of this Agreement or of the Rights to the contrary, the Company may, at its option, issue new Right Certificates
evidencing Rights in such form as may be approved by the Board to reflect any adjustment or change in the Purchase Price and the number
or kind or class of shares or other securities or property purchasable under the Right Certificates made in accordance with the provisions
of this Agreement. In addition, in connection with the issuance or sale of Common Shares following the Distribution Date and prior to
the earlier of the Redemption Date and the Close of Business on the Final Expiration Date, the Company (a) shall with respect to
Common Shares so issued or sold pursuant to the exercise of stock options or under any employee plan or arrangement in existence prior
to the Distribution Date, or upon the exercise, conversion or exchange of securities, notes or debentures issued by the Company and in
existence prior to the Distribution Date, and (b) may, in any other case, if deemed necessary or appropriate by the Board, issue
Right Certificates representing the appropriate number of Rights in connection with such issuance or sale; provided, however,
that (i) the Company shall not be obligated to issue any such Right Certificates if, and to the extent that, the Company shall be
advised by counsel that such issuance would create a significant risk of material adverse tax consequences to the Company or the Person
to whom such Right Certificate would be issued, and (ii) no Right Certificate shall be issued if, and to the extent that, appropriate
adjustment shall otherwise have been made in lieu of the issuance thereof.
Section 23.
Redemption.
(a) Neither
the Company nor any of its Affiliates or Associates may redeem, acquire or purchase for value any Rights at any time in any manner (i) other
than that specifically set forth in this Section 23 or in Section 24 hereof, or (ii) other than in connection with the
purchase of Common Shares prior to the Distribution Date.
(b) The
Board may, at its option, at any time prior to the earlier of (A) such time as any Person becomes an Acquiring Person and (B) the
Close of Business on the Final Expiration Date, redeem all but not less than all of the then outstanding Rights at a redemption price
of $0.001 per Right (rounded up to the nearest whole $0.01 in the case of any holder whose holdings are not in a multiple of ten), appropriately
adjusted to reflect any stock split, stock dividend or similar transaction occurring after the Agreement Date (such redemption price
being hereinafter referred to as the “Redemption Price”), and the Company may, at its option, pay the Redemption
Price in Common Shares (based on the “current per-share market price,” as such term is defined in Section 11(d) hereof,
of the Common Shares at the time of redemption), cash or any other form of consideration (or a mix of any of the foregoing) deemed appropriate
by the Board. The redemption of the Rights by the Board may be made effective at such time, on such basis and subject to such conditions
as the Board in its sole discretion may establish. Notwithstanding anything contained in this Agreement to the contrary, the Rights shall
not be exercisable pursuant to Section 11(a)(ii) hereof prior to the expiration or termination of the Company’s right
of redemption under this Section 23(b).
(c) Immediately
upon the time of the effectiveness of the redemption of the Rights pursuant to Section 23(b) hereof or such earlier time as
may be determined by the Board in the action ordering such redemption (although not earlier than the time of such action) (such time,
the “Redemption Date”), and without any further action and without any notice, the right to exercise the Rights
will terminate and the only right thereafter of the holders of Rights shall be to receive the Redemption Price. The Company shall promptly
give public notice of any such redemption (with prompt written notice thereof to the Rights Agent; and until such written notice is received
by the Rights Agent, the Rights Agent may presume conclusively that no such redemption has occurred); provided, however, that
the failure to give, or any defect in, any such notice shall not affect the validity of such redemption. Within ten (10) days after
such action of the Board ordering the redemption of the Rights pursuant to Section 23(b) hereof, the Company shall mail a notice
of redemption to all the holders of the then outstanding Rights at their last addresses as they appear upon the registry books of the
Rights Agent or, prior to the Distribution Date, on the registry books of the transfer agent for the Common Shares, provided, however,
that failure to give, or any defect in, any such notice shall not affect the validity of such redemption. Any notice that is mailed in
the manner herein provided shall be deemed given, whether or not the holder receives the notice. Each such notice of redemption will
state the method by which the payment of the Redemption Price will be made.
(d) Notwithstanding
Section 23(c) hereof, the Company may, at its option, discharge all of its obligations with respect to any redemption of the
Rights by (i) issuing a press release announcing the manner of redemption of the Rights (with prompt written notice thereof to the
Rights Agent; and until such written notice is received by the Rights Agent, the Rights Agent may presume conclusively that no such discharge
has occurred) and (ii) mailing payment of the Redemption Price to the registered holders of the Rights at their last addresses as
they appear on the registry books of the Rights Agent or, prior to the Distribution Date, on the registry books of the transfer agent
for the Common Shares, and upon such action, all outstanding Right Certificates shall be null and void without any further action by
the Company. In the event the Company elects to discharge all of its obligations with respect to any redemption of Rights by mailing
payment of the Redemption Price to the registered holders of the Rights as set forth in the preceding sentence, the dollar amount sent
to each such registered holder representing the full Redemption Price to which such registered holder is entitled shall be rounded up
to the nearest whole cent.
Section 24.
Exchange.
(a) The
Board may, at its option, at any time after any Person becomes an Acquiring Person, exchange all or part of the then outstanding and
exercisable Rights (which shall not include Rights that have become void pursuant to the provisions of Section 11(a)(ii) hereof)
for Common Shares at an exchange ratio of one Common Share per Right, appropriately adjusted to reflect any stock split, stock dividend
or similar transaction occurring after the Agreement Date (such exchange ratio being hereinafter referred to as the “Exchange
Ratio”). Notwithstanding the foregoing, the Board shall not be empowered to effect such exchange at any time after any
Person (other than the categories of Persons described in Section 1(c)(i)-(iv) hereof), together with all Affiliates and Associates
of such Person, becomes the Beneficial Owner of 50% or more of the Common Shares then outstanding. From and after the occurrence of an
event specified in Section 13(a) hereof, any Rights that theretofore have not been exchanged pursuant to this Section 24(a) shall
thereafter be exercisable only in accordance with Section 13 hereof and may not be exchanged pursuant to this Section 24(a).
(b) Subject
to Section 24(c) hereof, immediately upon the action of the Board ordering the exchange of any Rights pursuant to Section 24(a) hereof
and without any further action and without any notice, the right to exercise such Rights shall terminate and the only right thereafter
of a holder of such Rights shall be to receive that number of Common Shares equal to the number of such Rights held by such holder multiplied
by the Exchange Ratio. The Company shall promptly give public notice of any such exchange (with prompt written notice to the Rights Agent);
provided, however, that the failure to give, or any defect in, such notice shall not affect the validity of such exchange.
The Company promptly shall mail a notice of any such exchange to all of the holders of such Rights at their last addresses as they appear
upon the registry books of the Rights Agent; provided, however, that the failure to give, or any defect in, such notice
shall not affect the validity of such exchange. Any notice that is mailed in the manner herein provided shall be deemed given, whether
or not the holder receives the notice. Each such notice of exchange will state the method by which the exchange of the Common Shares
for Rights will be effected and, in the event of any partial exchange, the number of Rights that will be exchanged. Any partial exchange
shall be effected pro rata based on the number of Rights (other than Rights that have become void pursuant to the provisions of Section 11(a)(ii) hereof)
held by each holder of Rights. The Company may establish procedures to determine those Rights (and the Beneficial Owner or Owners thereof)
that may not be exchanged pursuant to this Section 24 because such Rights have become void pursuant to the provisions of Section 11(a)(ii) hereof.
(c) In
lieu of issuing Common Shares in accordance with Section 24(a) hereof, the Company may, if the Board determines that such action
is necessary or appropriate and not contrary to the interests of the holders of Rights (other than Rights that have become null and void
in accordance with Section 11(a)(ii) hereof), elect to (and, in the event that there are not sufficient treasury shares and
authorized but unissued Common Shares to permit any exchange of the Rights in accordance with Section 24(a) hereof, the Company
shall) take all such action as may be necessary to authorize, issue or pay, upon the exchange of the Rights, cash, property, Common Shares,
other securities or any combination thereof having an aggregate value equal to the value of the Common Shares that otherwise would have
been issuable pursuant to Section 24(a) hereof, which aggregate value shall be determined based upon the advice of a nationally
recognized investment banking firm selected by the Board. For purposes of the preceding sentence, the value of the Common Shares shall
be determined pursuant to Section 11(d) hereof. Following the Distribution Date, the Board may suspend the exercisability of
the Rights for a period of up to one-hundred twenty (120) days following the Distribution Date to the extent that the Board has not determined
whether to exercise the right of exchange under this Section 24(c). In the event of any such suspension, the Company shall issue
a public announcement stating that the exercisability of the Rights has been temporarily suspended.
(d) The
Company shall not be required to issue fractions of Common Shares or to distribute certificates that evidence fractional Common Shares.
In lieu of such fractional Common Shares, the Company shall pay to the registered holders of the Right Certificates with regard to which
such fractional Common Shares would otherwise be issuable an amount in cash equal to the same fraction of the current market value of
a whole Common Share. For the purposes of this Section 24(d), the current market value of a whole Common Share shall be the closing
price of a Common Share (as determined pursuant to the second sentence of Section 11(d)(i) hereof) for the Trading Day immediately
after the date of the first public announcement by the Company that an exchange is to be effected pursuant to this Section 24.
(e) Notwithstanding
anything in this Section 24 to the contrary, the exchange of the Rights may be effected at such time, on such basis and with such
conditions as the Board in its sole discretion may establish. Without limiting the foregoing, the Board may (i) in lieu of transferring
cash, property, Common Shares, other securities or any combination thereof contemplated by this Section 24 to the Persons entitled
thereto (the “Exchange Recipients”) in connection with the exchange, issue, transfer or deposit all such cash,
property, Common Shares, other securities or any combination thereof (the “Exchange Property”) to or into a
trust or other Person that is not controlled by the Company or any of its Affiliates or Associates to hold such Exchange Property for
the benefit of the Exchange Recipients pursuant to an agreement in such form and on such terms as the Board shall approve (a “Trust
Agreement”), (ii) permit such trust or other Person to exercise all of the rights that a stockholder of record would
possess with respect to any Common Shares deposited in such trust or other Person and (iii) impose such procedures as it determines
to be appropriate to verify that the Exchange Recipients are not Acquiring Persons or Affiliates or Associates of Acquiring Persons as
of any time period or periods established by the Board. In such event, such trust or other Person shall use commercially reasonable efforts
to distribute the Exchange Property (and any dividends or other distributions thereon following the date of deposit into such trust or
with such other Person) to the Exchange Recipients as promptly as practicable after its receipt of such property, and the Exchange Recipients
shall thereafter be entitled to receive the Exchange Property only from such trust or other Person in accordance with the terms and subject
to the conditions set forth in the Trust Agreement. If the Board determines, before the Distribution Date, to effect an exchange in accordance
with this Section 24, the Board may delay the occurrence of the Distribution Date to such time no later than twenty (20) calendar
days after the Shares Acquisition Date as the Board determines to be advisable.
Section 25.
Notice of Certain Events.
In
case the Company shall after the Distribution Date propose (i) to pay any dividend payable in stock of any class to the holders
of its Preferred Shares or to make any other distribution to the holders of its Preferred Shares (other than a regular quarterly cash
dividend), (ii) to offer to the holders of its Preferred Shares rights or warrants to subscribe for or to purchase any additional
Preferred Shares or shares of stock of any class or any other securities, rights or options, (iii) to effect any reclassification
of its Preferred Shares (other than a reclassification involving only the subdivision of outstanding Preferred Shares), (iv) to
effect any share exchange, consolidation or merger into or with, or to effect any sale or other transfer (or to permit one or more of
its Subsidiaries to effect any sale or other transfer), in one or more transactions, of 50% or more of the assets or earning power of
the Company and its Subsidiaries (taken as a whole), to any other Person or Persons (other than the Company or any of its Subsidiaries
in one or more transactions each of which complies with Section 11(m) hereof), (v) to effect the liquidation, dissolution
or winding up of the Company, or (vi) to declare or pay any dividend on the Common Shares payable in Common Shares or to effect
a subdivision, combination or consolidation of the Common Shares (by reclassification or otherwise than by payment of dividends in Common
Shares), then, in each such case, the Company shall give to the Rights Agent and (to the extent practicable) each holder of a Right Certificate,
in accordance with Section 26 hereof, a notice of such proposed action, which shall specify the record date for the purpose of such
stock dividend, or distribution of rights or warrants, or the date on which such reclassification, share exchange, consolidation, merger,
sale, transfer, liquidation, dissolution, or winding up is to take place and the date of participation therein by the holders of the
Common Shares or the Preferred Shares, if any such date is to be fixed, and such notice shall be so given in the case of any action covered
by clause (i) or (ii) above at least ten (10) days prior to the record date for determining holders of the Preferred Shares
for purposes of such action, and in the case of any such other action, at least ten (10) days prior to the date of the taking of
such proposed action or the date of participation therein by the holders of the Common Shares or the Preferred Shares, whichever shall
be the earlier. In case any event set forth in Section 11(a)(ii) hereof shall occur, then the Company shall as soon as practicable
thereafter give to each holder of a Right Certificate and to the Rights Agent, in accordance with Section 26 hereof, a notice of
the occurrence of such event, which notice shall describe such event and the consequences of such event to holders of Rights under Section 11(a)(ii) hereof.
Section 26.
Notices.
Notices or demands authorized
by this Agreement to be given or made by the Rights Agent or by the holder of any Right Certificate to or on the Company shall be sufficiently
given or made only if sent in a manner authorized by the Company in writing or if sent by overnight delivery source or first-class mail,
postage prepaid, addressed (until another address is filed in writing with the Rights Agent) as follows:
Eagle Pharmaceuticals, Inc.
50 Tice Boulevard, Suite 315
Woodcliff Lake, NJ 07677
Attention: Michael Graves
Subject to the provisions
of Section 21 hereof, any notice or demand authorized by this Agreement to be given or made by the Company or by the holder of any
Right Certificate to or on the Rights Agent shall be sufficiently given or made if in writing and sent by overnight delivery source or
first-class mail, postage prepaid, addressed (until another address is filed in writing with the Company) as follows:
Equiniti Trust Company, LLC
48 Wall Street, Floor 23
New York, NY 10005
Attention: Relationship Management
Notices or demands authorized
by this Agreement to be given or made by the Company or the Rights Agent to the holder of any Right Certificate shall be sufficiently
given or made if sent by first-class mail, postage prepaid, addressed to such holder at the address of such holder as shown on the registry
books of the Company.
Section 27.
Supplements and Amendments.
Subject to this Section 27,
the Company may, and the Rights Agent shall, if directed by the Company, from time to time supplement or amend this Agreement without
the approval of any holders of Right Certificates or any other securities of the Company in order to cure any ambiguity, to correct or
supplement any provision contained herein which may be defective or inconsistent with any other provisions herein, or to make any other
changes which the Company may deem necessary or desirable, any such supplement or amendment to be evidenced by a writing signed by the
Company (provided that the Company has delivered to the Rights Agent a certificate from any authorized officer of the Company that states
that the proposed supplement or amendment complies with the terms of this Agreement) and the Rights Agent; provided, however,
that, from and after such time as any Person becomes an Acquiring Person, this Agreement shall not be amended or supplemented in any
manner which would (a) adversely affect the interests of the holders of Rights as such (other than holders of Rights that have become
null and void in accordance with Section 11(a)(ii)), (b) cause this Agreement to be again subject to amendment or waiver other
than in accordance with this sentence or (c) again cause the Rights to become subject to redemption. For the avoidance of doubt,
the Company shall be entitled to adopt and implement such procedures and arrangements (including with third parties) as it may deem necessary
or desirable to facilitate the exercise, exchange, trading, issuance or distribution of the Rights (and Preferred Shares) as contemplated
hereby and to ensure that an Acquiring Person does not obtain the benefits thereof, and amendments in respect of the foregoing shall
not be deemed to adversely affect the interests of the holders of Rights. No supplement or amendment to this Agreement shall be effective
unless duly executed by the Rights Agent and the Company. Upon the delivery of a certificate from an appropriate officer of the Company
which states that the supplement or amendment is in compliance with the terms of this Section 27, the Rights Agent shall execute
such supplement or amendment; provided that, any supplement or amendment that does not amend Sections 18, 19, 20 or 21 hereof or this
Section 27 in a manner adverse to the Rights Agent shall become effective immediately upon execution by the Company, whether or
not also executed by the Rights Agent.
Section 28.
Determination and Actions by the Board of Directors, Etc.
The Board shall have the
exclusive power and authority to administer this Agreement and to exercise all rights and powers specifically granted to the Board, or
the Company, or as may be necessary or advisable in the administration of this Agreement, including without limitation, the right and
power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for
the administration of this Agreement (including a determination to redeem or not redeem the Rights or to amend the Agreement). Without
limiting any of the rights and immunities of the Rights Agent, all such actions, calculations, interpretations and determinations (including,
for purposes of clause (y) below, all omissions with respect to the foregoing) that are done or made by the Board in good faith,
shall (x) be final, conclusive and binding on the Rights Agent and the holders of the Rights, and (y) not subject the Board
to any liability to the holders of the Rights. The Rights Agent is entitled always to assume the Board acted in good faith and shall
be fully protected and incur no liability in reliance thereon. Notwithstanding anything herein to the contrary, in no event shall a determination
of the Board that may adversely affect the rights of the Rights Agent under this Agreement be binding upon the Rights Agent without the
express written consent of the Rights Agent, in its sole discretion.
Section 29.
Successors.
All the covenants and provisions
of this Agreement by or for the benefit of the Company or the Rights Agent shall bind and inure to the benefit of their respective successors
and assigns hereunder.
Section 30.
Benefits of this Agreement.
Nothing in this Agreement
shall be construed to give to any Person other than the Company, the Rights Agent and the registered holders of the Right Certificates
(and, prior to the Distribution Date, the registered holders of Common Shares) any legal or equitable right, remedy or claim under this
Agreement; but this Agreement shall be for the sole and exclusive benefit of the Company, the Rights Agent and the registered holders
of the Right Certificates (and, prior to the Distribution Date, the Common Shares).
Section 31.
Severability.
If
any term, provision, covenant or restriction of this Agreement 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 Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated; provided, however, that notwithstanding
anything in this Agreement to the contrary, if any such term, provision, covenant or restriction is held by such court or authority to
be invalid, void or unenforceable and the Board determines in its good faith judgment that severing the invalid language from this Agreement
would adversely affect the purpose or effect of this Agreement, the right of redemption set forth in Section 23 hereof shall be
reinstated (if earlier expired) and (without regard to whether earlier expired) shall not expire until the Close of Business on the tenth
Business Day following the date of such determination by the Board. Notwithstanding any other term of this Agreement, if any such excluded
term, provision, covenant or restriction shall adversely affect the rights, immunities, liabilities, duties or obligations of the Rights
Agent, the Rights Agent shall be entitled to resign upon ten (10) Business Days’ prior written notice to the Company pursuant
to the requirements of Section 26.
Section 32.
Governing Law; Forum Selection.
This Agreement, the Rights
and each Right Certificate issued hereunder 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 made and performed entirely
within such State. To the fullest extent permitted by law, any claim relating to or brought pursuant to this Agreement by any person
(including any record or beneficial owner of Common Shares or Preferred Shares, any registered or beneficial owner of a Right, any Acquiring
Person or the Rights Agent) shall be brought solely and exclusively in the Court of Chancery of the State of Delaware (or, if such court
does not have jurisdiction, the Superior Court of the State of Delaware, or, if such other court does not have jurisdiction, the United
States District Court for the District of Delaware).
Section 33.
Counterparts.
This Agreement 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. A signature to this Agreement transmitted electronically shall have the same
authority, effect, and enforceability as an original signature.
Section 34.
Descriptive Headings
Descriptive headings of the
several Sections of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any
of the provisions hereof.
Section 35.
Force Majeure
Notwithstanding
anything to the contrary contained herein, the Rights Agent shall not be liable for any delays or failures in performance or responsibility
resulting from acts beyond its reasonable control including, without limitation, any act or provision for any present or future law or
regulation or governmental authority, acts of God, terrorist acts, epidemics, pandemics, shortage of supply, breakdowns or malfunctions,
interruptions or malfunction of computer facilities, or loss of data due to power failures or mechanical difficulties with information
storage or retrieval systems, labor difficulties, war, or military or civil unrest. The Rights Agent shall provide the Company notice
as soon as practicable in the event that any such delay or failure in performance occurs and keep the Company apprised of material developments
with respect thereto.
Section 36.
Interpretive Matters
For
purposes of this Agreement, each of the Company and the Rights Agent agrees that: (a) whenever the context requires, the
singular number shall include the plural, and vice versa; (b) the word “extent” in the phrase “to the extent”
means the degree to which a subject or other thing extends, and does not simply mean “if”; (c) where a word or phrase
is defined in this Agreement, each of its other grammatical forms has a corresponding meaning unless the context otherwise requires;
(d) the word “or” shall be deemed to mean “or” unless the Company and the Rights Agent determines the context
requires otherwise; (e) the meaning assigned to each capitalized term defined and used in this Agreement is equally applicable to
both the singular and the plural forms of such term, and words denoting any gender include all genders; and (f) the words “include”
and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be
followed by the words “without limitation.”
[Signature page follows.]
The parties hereto have caused
this Agreement to be duly executed as of the day and year first above written.
| EAGLE PHARMACEUTICALS, INC. |
|
EQUINITI TRUST COMPANY, LLC, As Rights Agent |
| |
|
|
| By: |
/s/ Michael Graves |
|
By: |
/s/ Sharon Best-Jhagroo |
| Name: |
Michael Graves |
|
Name: |
Sharon Best-Jhagroo |
| Title: |
Interim Principal Executive Officer |
|
Title: |
S.V. P - Relationship Director |
[Signature Page to Rights
Agreement]
Exhibit A
(Form of
Certificate of Designation)
CERTIFICATE OF DESIGNATION
OF RIGHTS, PREFERENCES AND PRIVILEGES OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK OF EAGLE PHARMACEUTICALS, INC.
The undersigned, Michael Graves,
does hereby certify:
1. That
he is duly elected and acting Interim Principal Executive Officer of Eagle Pharmaceuticals, Inc. a Delaware corporation (the “Corporation”).
2. That
pursuant to the authority conferred upon the Board of Directors of the Corporation (the “Board”) by the Amended
and Restated Certificate of Incorporation, as amended, of the Corporation, the Board on October 30, 2024 adopted the following resolutions
(the “Resolutions”) creating a series of 100,000 shares of Preferred Stock designated as Series A Junior Participating
Preferred Stock (capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the following Resolutions):
“RESOLVED, that pursuant
to the authority vested in the Board by the Amended and Restated Certificate of Incorporation of the Corporation, as amended, the Board
does hereby provide for the issue of a series of Preferred Stock and does hereby fix and herein state and express the designations, powers,
preferences and relative and other special rights and the qualifications, limitations and restrictions of such series of Preferred Stock
as follows:
Section 1. Designation and Amount. The shares of such series of preferred stock, par value of $0.001 per share, of the Company (“Preferred
Stock”) shall be designated as “Series A Junior Participating Preferred Stock.” The Series A Junior
Participating Preferred Stock shall have a par value of $0.001 per share, and the number of shares constituting the Series A Junior Participating
Preferred Stock shall be 100,000. Such number of shares may be increased or decreased by resolution of the Board; provided, however, that
no decrease shall reduce the number of shares of Series A Junior Participating Preferred Stock to less than the number of shares then
issued and outstanding plus the number of shares issuable upon exercise of outstanding rights, options or warrants or upon conversion
of outstanding securities issued by the Corporation.
Section 2. Proportional Adjustment. In the event that the Corporation shall at any time after the issuance of any share or shares of Series A
Junior Participating Preferred Stock (i) declare any dividend on the common stock, par value $0.001 per share, of the Corporation
(“Common Stock”) payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock or (iii) combine
the outstanding Common Stock into a smaller number of shares, then in each such case the Corporation shall simultaneously effect a proportional
adjustment to the number of outstanding shares of Series A Junior Participating Preferred Stock.
Section 3. Dividends and Distributions.
(a) Subject
to the prior and superior right of the holders of any shares of any series of Preferred Stock ranking prior and superior to the
shares of Series A Junior Participating Preferred Stock with respect to dividends, the holders of shares of Series A Junior
Participating Preferred Stock shall be entitled to receive when, as and if declared by the Board out of funds legally available for
the purpose, quarterly dividends payable in cash on the last day of March, June, September and December in each year (each such date
being referred to herein as a “Quarterly Dividend Payment Date”), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or fraction of a share of Series A Junior Participating Preferred Stock,
in an amount per share of Series A Junior Participating Preferred Stock (rounded to the nearest cent) equal to 1,000 times the
aggregate per share amount of all cash dividends, and 1,000 times the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions other than a dividend payable in shares of Common Stock or a subdivision of the outstanding shares
of Common Stock (by reclassification or otherwise), declared on the Common Stock since the immediately preceding Quarterly Dividend
Payment Date, or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a
share of Series A Junior Participating Preferred Stock.
(b) The Corporation shall declare a dividend or distribution on the Series A Junior Participating Preferred Stock as provided in paragraph
(a) above immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common
Stock).
(c) Dividends shall begin to accrue on outstanding shares of Series A Junior Participating Preferred Stock from the Quarterly Dividend
Payment Date immediately preceding the date of issue of such shares of Series A Junior Participating Preferred Stock, unless the date
of issue of such shares of Series A Junior Participating Preferred Stock is prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series A Junior
Participating Preferred Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Series A Junior Participating Preferred Stock in an amount less than the total amount of such dividends
at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board may fix a record date for the determination of holders of shares of Series A Junior Participating Preferred Stock
entitled to receive payment of a dividend or distribution declared thereon, which record date shall be no more than 60 days prior to the
date fixed for the payment thereof.
Section 4. Voting Rights. The holders of shares of Series A Junior Participating Preferred Stock shall have the following voting rights:
(a) Each share of Series A Junior Participating Preferred Stock shall entitle the holder thereof to 1,000 votes on all matters submitted
to a vote of the stockholders of the Corporation.
(b) Except as otherwise provided herein or by law, the holders of shares of Series A Junior Participating Preferred Stock and the holders
of shares of Common Stock shall vote together as one class on all matters submitted to a vote of stockholders of the Corporation.
(c) Except
as required by law or provided in the Amended and Restated Certificate of Incorporation of the Corporation, as then amended (including
this Certificate of Designation), the holders of Series A Junior Participating Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent that they are entitled to vote with holders of Common Stock as set forth herein)
for taking any corporate action.
(d) If, at the time of any annual meeting of stockholders for the election of directors, the equivalent of six quarterly dividends (whether
or not consecutive) payable on any share or shares of Series A Junior Participating Preferred Stock are in default, the number of directors
constituting the Board of Directors of the Corporation shall be increased by two. In addition to voting together with the holders of Common
Stock for the election of other directors of the Corporation, the holders of record of the Series A Junior Participating Preferred Stock,
voting separately as a class to the exclusion of the holders of Common Stock, shall be entitled at said meeting of stockholders (and at
each subsequent annual meeting of stockholders), unless all dividends in arrears on the Series A Junior Participating Preferred Stock
have been paid or declared and set apart for payment prior thereto, to vote for the election of two directors of the Corporation, the
holders of any Series A Junior Participating Preferred Stock being entitled to cast a number of votes per share of Series A Junior Participating
Preferred Stock as is specified in paragraph (a) of this Section 4. Each such additional director shall not be a member of Class I, Class
II or Class III of the Board of Directors of the Corporation, but shall serve until the next annual meeting of stockholders for the election
of directors, or until his successor shall be elected and shall qualify, or until his right to hold such office terminates pursuant to
the provisions of this Section 4(d). Until the default in payments of all dividends which permitted the election of said directors shall
cease to exist, any director who shall have been so elected pursuant to the provisions of this Section 4(d) may be removed at any time,
without cause, only by the affirmative vote of the holders of the shares of Series A Junior Participating Preferred Stock at the time
entitled to cast a majority of the votes entitled to be cast for the election of any such director at a special meeting of such holders
called for that purpose, and any vacancy thereby created may be filled by the vote of such holders. If and when such default shall cease
to exist, the holders of the Series A Junior Participating Preferred Stock shall be divested of the foregoing special voting rights, subject
to revesting in the event of each and every subsequent like default in payments of dividends. Upon the termination of the foregoing special
voting rights, the terms of office of all persons who may have been elected directors pursuant to said special voting rights shall forthwith
terminate, and the number of directors constituting the Board of Directors shall be reduced by two. The voting rights granted by this
Section 4(d) shall be in addition to any other voting rights granted to the holders of the Series A Junior Participating Preferred Stock
in this Section 4.
Section 5. Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or distributions payable on the Series A Junior Participating Preferred Stock as provided
in Section 3 are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares
of Series A Junior Participating Preferred Stock outstanding shall have been paid in full, the Corporation shall not:
(i) declare
or pay dividends on, make any other distributions on, or redeem or purchase or otherwise acquire for consideration any shares of
stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Junior Participating
Preferred Stock;
(ii) declare or pay dividends on, or make any other distributions on any shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A Junior Participating Preferred Stock, except dividends paid ratably on
the Series A Junior Participating Preferred Stock and all such parity stock on which dividends are payable or in arrears in proportion
to the total amounts to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Junior Participating Preferred Stock, provided that the Corporation may at any
time redeem, purchase or otherwise acquire shares of any such parity stock in exchange for shares of any stock of the Corporation ranking
junior (either as to dividends or upon dissolution, liquidation or winding up) to the Series A Junior Participating Preferred Stock;
(iv) purchase or otherwise acquire for consideration any shares of Series A Junior Participating Preferred Stock, or any shares of stock
ranking on a parity with the Series A Junior Participating Preferred Stock, except in accordance with a purchase offer made in writing
or by publication (as determined by the Board) to all holders of such shares upon such terms as the Board, after consideration of the
respective annual dividend rates and other relative rights and preferences of the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the respective series or classes.
(b) The Corporation shall not permit any subsidiary of the Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (a) of this Section 5, purchase or otherwise acquire such shares
at such time and in such manner.
Section 6. Reacquired Shares. Any shares of Series A Junior Participating Preferred Stock purchased or otherwise acquired by the Corporation
in any manner whatsoever shall be retired promptly after the acquisition thereof. All such shares of Series A Junior Participating Preferred
Stock shall upon their retirement become authorized but unissued shares of Preferred Stock and may be reissued as part of a new series
of Preferred Stock to be created by resolution or resolutions of the Board, subject to the conditions and restrictions on issuance set
forth herein and in the Amended and Restated Certificate of Incorporation of the Corporation, as then in effect.
Section
7. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution shall be made to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Junior Participating Preferred Stock
unless, prior thereto, the holders of shares of Series A Junior Participating Preferred Stock shall have received the greater of (a)
$1,000 per share, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the
date of such payment and (b) an aggregate amount per share, subject to the provision for adjustment hereinafter set forth, equal to
1,000 times the aggregate amount to be distributed per share to holders of shares of Common Stock plus an amount equal to any
accrued and unpaid dividends on such shares of Series A Junior Participating Preferred Stock.
Section 8. Consolidation, Merger, etc. In case the Corporation shall enter into any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in
any such case the shares of Series A Junior Participating Preferred Stock shall at the same time be similarly exchanged or changed in
an amount per share equal to 1,000 times the aggregate amount of stock, securities, cash and/or any other property (payable in kind),
as the case may be, into which or for which each share of Common Stock is changed or exchanged.
Section 9. No Redemption. The shares of Series A Junior Participating Preferred Stock shall not be redeemable by the Corporation.
Section 10. Ranking. The Series A Junior Participating Preferred Stock shall rank junior to all other series of the Corporation’s Preferred
Stock as to the payment of dividends and the distribution of assets upon any liquidation, dissolution or winding up of the Corporation,
unless the terms of any such series shall provide otherwise, and shall rank senior to the Common Stock as to such matters.
Section 11. Amendment. At any time that there are shares of Series A Junior Participating Preferred Stock outstanding, the Amended and Restated
Certificate of Incorporation, as amended, of the Corporation shall not be further amended (by merger, consolidation, statutory conversion,
transfer, domestication or continuance or otherwise) in any manner which would materially alter or change the powers, preference or special
rights of the Series A Junior Participating Preferred Stock so as to affect them adversely without the affirmative vote of the holders
of a majority of the outstanding shares of Series A Junior Participating Preferred Stock, voting separately as a series.
Section 12. Fractional Shares. Series A Junior Participating Preferred Stock may be issued in fractions of a share which shall entitle the holder,
in proportion to such holder’s fractional shares, to exercise voting rights, receive dividends, participate in distributions and
to have the benefit of all other rights of holders of Series A Participating Preferred Stock.
RESOLVED FURTHER, that any
authorized officer of this Corporation be, and they hereby are, authorized and directed to prepare and file a Certificate of Designation
of Rights, Preferences and Privileges in accordance with the foregoing resolution and the provisions of Delaware law and to take such
actions as they may deem necessary or appropriate to carry out the intent of the foregoing resolution.”
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has executed this Certificate this __ day of _________________, 2024.
| |
Eagle Pharmaceuticals, Inc. |
| |
|
| |
By: |
|
| |
Name: |
| |
Title: |
Exhibit B
Form of
Right Certificate
| Certificate No. R- |
____ Rights |
NOT
EXERCISABLE AFTER THE FINAL EXPIRATION DATE (AS DEFINED IN THE AGREEMENT) OR EARLIER IF REDEMPTION OR EXCHANGE OCCURS.
THE RIGHTS ARE SUBJECT TO REDEMPTION AT $0.001 PER RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE AGREEMENT. UNDER
CERTAIN CIRCUMSTANCES, AS SET FORTH IN THE AGREEMENT, RIGHTS OWNED BY OR TRANSFERRED TO ANY PERSON WHO IS OR BECOMES AN ACQUIRING
PERSON (AS DEFINED IN THE AGREEMENT) AND CERTAIN TRANSFEREES THEREOF WILL BECOME NULL AND VOID AND WILL NO LONGER BE
TRANSFERABLE.
Right Certificate
[●]
This
certifies that [●], or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles
the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated as of October 30, 2024 (as amended
and/or restated from time to time, the “Agreement”), between Eagle Pharmaceuticals, Inc., a Delaware corporation (the
“Company”), and Equiniti Trust Company, LLC (and any successor rights agents, the “Rights Agent”), to
purchase from the Company at any time after the Distribution Date (as such term is defined in the Agreement) and prior to the Final Expiration
Date (as such term is defined in the Agreement), at the Rights Agent’s office designated for such purpose, or at the office of
its successor as Rights Agent, one one-thousandths of a fully paid non-assessable share of Series A Junior Participating Preferred
Stock, par value $0.001 per share, of the Company (the “Preferred Shares”), at a purchase price of $10.00 per one one-thousandths
of a Preferred Share (the “Purchase Price”), upon presentation and surrender of this Right Certificate with the Form of
Election to Purchase duly executed. The number of Rights evidenced by this Right Certificate (and the number of one one-thousandths of
a Preferred Share which may be purchased upon exercise hereof) set forth above, and the Purchase Price set forth above, are the number
and Purchase Price as of October 30, 2024, based on the Preferred Shares as constituted at such date. As provided in the Agreement,
the Purchase Price and the number of one one-thousandths of a Preferred Share which may be purchased upon the exercise of the Rights
evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events.
From and after the time any
Person becomes an Acquiring Person, any Rights beneficially owned by such Acquiring Person or an Associate or Affiliate of such Acquiring
Person, or certain transferees thereof, shall become null and void without any further action and no holder of such Rights shall have
any rights whatsoever with respect to such Rights.
This Right Certificate is
subject to all of the terms, provisions and conditions of the Agreement, which terms, provisions and conditions are hereby incorporated
herein by reference and made a part hereof and to which Agreement reference is hereby made for a full description of the rights, limitations
of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates. Copies
of the Agreement are on file at the principal executive offices of the Company and the offices of the Rights Agent.
This Right Certificate, with
or without other Right Certificates, upon surrender at the office or offices of the Rights Agent designated for such purpose, may be
exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase
a like aggregate number of Preferred Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall
have entitled such holder to purchase. If this Right Certificate shall be exercised in part, the holder shall be entitled to receive
upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised.
Subject to the provisions
of the Agreement, the Rights evidenced by this Right Certificate (i) may be redeemed by the Company at a redemption price of $0.001
per Right or (ii) may be exchanged in whole or in part for Preferred Shares or shares of the Company’s common stock, par value
$0.001 per share.
No fractional Preferred Shares
will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions which are integral multiples of one one-thousandths
of a Preferred Share, which may, at the election of the Company, be evidenced by depositary receipts), but, in lieu thereof, a cash payment
will be made, as provided in the Agreement.
No holder of this Right Certificate
shall be entitled to vote or receive dividends or be deemed for any purpose the holder of the Preferred Shares or of any other securities
of the Company which may at any time be issuable on the exercise or exchange hereof, nor shall anything contained in the Agreement or
herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote
for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to
any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Agreement),
or to receive dividends or subscription rights, or otherwise, until the Right or Rights evidenced by this Right Certificate shall have
been exercised or exchanged as provided in the Agreement.
This Right Certificate shall
not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature
of the proper officers of the Company and its corporate seal. Dated as of , ____.
| Attest: |
|
Eagle Pharmaceuticals, Inc. |
| |
|
|
| By |
|
|
By: |
|
| |
Name: |
|
Name: |
| |
Title: |
|
Title: |
| |
Countersigned: |
|
|
| |
|
|
| [NAME] |
|
|
| |
|
|
| By |
|
|
|
| |
Name: |
|
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Title: |
|
|
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To
be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
| FOR VALUE RECEIVED hereby sells, assigns and _____________________ transfers unto |
|
| |
(Please print name and address of transferee) |
this Right Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and appoint _______________ Attorney, to transfer the within Right
Certificate on the books of the within-named Company, with full power of substitution.
Dated: ___________________
Signature Guaranteed:
Signatures must be guaranteed
by a member or participant in the Medallion Signature Guarantee Program at a guarantee level acceptable to the Company’s transfer
agent.
The undersigned hereby certifies
that the Rights evidenced by this Right Certificate are not beneficially owned by an Acquiring Person or an Affiliate or Associate thereof
(as defined in the Agreement) and are not issued with respect to a Derivative Position described in clause (iv) of the definition
of Beneficial Owner (as such terms are defined in the Agreement).
Form of Reverse Side of Right Certificate
– continued
FORM OF ELECTION TO PURCHASE
(To
be executed if holder desires to exercise
Rights represented by the Right Certificate.)
To:
[NAME]
The undersigned hereby
irrevocably elects to exercise _________________ Rights represented by this Right Certificate to purchase the Preferred Shares
issuable upon the exercise of such Rights and requests that certificates for such Preferred Shares be issued in the name of:
Please
insert social security
or other identifying number
(Please
Print Name and Address)
If such number of Rights shall not be all the Rights evidenced by
this Right Certificate, a new Right Certificate for the balance remaining of such Rights shall be registered in the name of and delivered
to:
Please
insert social security
or other identifying number
(Please
Print Name and Address)
Dated: ___________________
Signature Guaranteed:
Signatures must be guaranteed
by a member or participant in the Medallion Signature Guarantee Program at a guarantee level acceptable to the Company’s transfer
agent.
The undersigned hereby certifies
that (1) the Rights evidenced by this Right Certificate are not beneficially owned by an Acquiring Person or an Affiliate or Associate
thereof (as defined in the Agreement) and are not issued with respect to a Derivative Position described in clause (iv) of the definition
of Beneficial Owner (as such terms are defined in the Agreement), (2) this Right Certificate is not being sold, assigned or transferred
to or on behalf of any Acquiring Person or Affiliate or Associate thereof and (3) the undersigned did not acquire the Rights evidenced
by this Right Certificate from any Person who is or was an Acquiring Person or an Affiliate or Associate thereof.
NOTICE
The signature in the Form of
Assignment or Form of Election to Purchase, as the case may be, must conform to the name as written upon the face of this Right
Certificate in every particular, without alteration or enlargement or any change whatsoever.
In the event the certification set forth above
in the Form of Assignment or the Form of Election to Purchase, as the case may be, is not completed, the Company and the Rights
Agent will deem the Beneficial Owner of the Rights evidenced by this Right Certificate to be an Acquiring Person or an Affiliate or Associate
thereof (as defined in the Agreement) and such Assignment or Election to Purchase will not be honored.
Exhibit 99.1
EAGLE PHARMACEUTICALS ADOPTS LIMITED DURATION
STOCKHOLDER RIGHTS PLAN
WOODCLIFF LAKE, New Jersey,
October 31, 2024 – Eagle Pharmaceuticals, Inc. (the “Company” or “Eagle”) (OTCMKTS: EGRX) today announced
that its Board of Directors (the “Board”) has adopted a limited duration stockholder rights agreement (the “Rights Plan”),
effective immediately.
The Company continues to experience
a significant dislocation in the trading price of its common stock. The Rights Plan is intended to enable each of the Company’s
stockholders to have the opportunity to realize the long-term value of their investment. The Rights Plan is intended to reduce the likelihood
that any person or group gains control of the Company through open market accumulation of the Company’s common stock or other means
and thereby potentially disadvantaging the interests of the Company’s stockholders without appropriately compensating all stockholders
or without providing the Board sufficient time to make informed judgments and take actions that are in the best interests of the Company
and its stockholders. The Rights Plan was adopted in response to the significant and ongoing dislocation in the trading price of the Company’s
common stock and recent unsolicited efforts by third parties to capitalize on this dislocation, including through accumulations of the
Company’s common stock. As previously disclosed, the Company is conducting a review process to evaluate a range of potential financing
and other alternatives to strengthen its liquidity position and capital structure.
In addition, the Rights Plan
does not prevent the Board from engaging with parties or accepting an acquisition proposal if the Board believes that it is in the best
interests of the Company and all of its stockholders. The Rights Plan is similar to other plans adopted by publicly held companies in
comparable circumstances, and does not contain any dead-hand, slow-hand, no-hand or similar feature that limits the ability of a future
Board to redeem the Rights (as defined below).
In connection with the adoption
of the Rights Plan, the Board declared a dividend of one preferred share purchase right (a “Right”) for each outstanding
share of the Company’s common stock as of the close of business on November 11, 2024, the record date. The Rights will be exercisable
only if a person or group (an “Acquiring Person”) acquires or launches a tender or exchange offer to acquire beneficial ownership
(which includes certain synthetic equity interests) of 10% or more of the Company’s outstanding common stock (15% in the case
of a passive institutional investor as described in the Rights Plan). Any stockholders that beneficially own shares of the Company’s
outstanding common stock above the applicable threshold as of the time of this announcement are grandfathered at their current ownership
levels but are not permitted to increase their ownership without triggering the Rights Plan. Once the Rights become exercisable,
each Right will entitle its holder (other than any Acquiring Person, whose Rights will become void) to purchase, for $10.00, additional
shares of the Company’s common stock having a market value of twice such exercise price. In addition, the Rights Plan has customary
flip-over and exchange features.
The Rights Plan will automatically
expire on October 30, 2025, without any further action being required to be taken by the Board, unless the rights are earlier redeemed
or exchanged by the Company. Additional information regarding the Rights Plan will be contained in a Form 8-K to be filed by the Company
with the U.S. Securities and Exchange Commission.
About Eagle Pharmaceuticals,
Inc.
Eagle is a fully integrated
pharmaceutical company with research and development, clinical, manufacturing and commercial expertise. Eagle is committed to developing
innovative medicines that result in meaningful improvements in patients’ lives. Eagle’s commercialized products include PEMFEXY®,
RYANODEX®, BENDEKA®, BELRAPZO®, TREAKISYM® (Japan), and BYFAVO® and BARHEMSYS® through its wholly owned subsidiary
Acacia Pharma Inc. Eagle’s oncology and CNS/metabolic critical care pipeline includes product candidates with the potential to address
underserved therapeutic areas across multiple disease states, and the company is focused on developing medicines with the potential to
become part of the personalized medicine paradigm in cancer care. Additional information is available on Eagle’s website at www.eagleus.com.
Forward Looking Statements
This Press Release
contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, as
amended, and other securities law. Forward-looking statements are statements that are not historical facts. Words and phrases such
as “anticipated,” “forward,” “will,” “would,” “could,”
“may,” “intend,” “remain,” “regain,” “maintain,”
“potential,” “prepare,” “expected,” “believe,” “plan,”
“seek,” “continue,” “goal,” “estimate,” and similar expressions are intended to
identify forward-looking statements. These statements include, but are not limited to, statements with respect to: the impact of the
adoption of the Rights Plan, including the ability of the Rights Plan to protect stockholders’ ability to realize the
long-term value of their investment and to effectively provide the Board sufficient time to make informed judgments and take actions
that are in the best interests of the Company and its stockholders, and expectations regarding the Company’s process to
review potential financing and other alternatives, including the types of arrangements or transactions, if any, that the Company may
determine to pursue, the scope and timing of such review process, the potential value of any such arrangements or transactions and
the outcome of such review process. All of such statements are subject to certain risks and uncertainties, many of which are
difficult to predict and generally beyond the Company’s control, which could cause actual results to differ materially from
those expressed in, or implied or projected by, the forward-looking information and statements. Such risks and uncertainties
include, but are not limited to: the completion of the review and preparation of the Company’s financial information and
internal control over financial reporting and disclosure controls and procedures and the timing thereof; the discovery of additional
information; further delays in the Company’s financial reporting, including as a result of unanticipated factors; the
Company’s ability to obtain resolution with respect to the events of default under its Third Amended and Restated Credit
Agreement, as amended; the Company's ability to obtain financing and the timing and potential terms thereof; whether the objectives
of the review of potential financing and other alternatives process will be achieved, the terms, structure, benefits and costs of
any arrangement or transaction resulting therefrom, and whether any transaction will be consummated at all; the extent to which the
Rights under the Rights Plan become exercisable, if at all; the risk that the review of potential financing and other alternatives
and its announcement could have an adverse effect on the ability of the Company to retain customers and retain and hire key
personnel and maintain relationships with customers, suppliers, employees, stockholders and other relationships and on its operating
results and business generally; the risk that the review of potential financing and other alternatives could divert the attention
and time of the Company’s management; the costs resulting from the review of potential financing and other alternatives; the
risk of the Company potentially seeking protection under bankruptcy laws; the possibility that the Company will be unable to re-list
its common stock on the Nasdaq or another exchange and, if re-listed, the possibility that the Company thereafter will be unable to
continue to comply with the listing rules of such exchange; the limitations on trading of the Company’s common stock related
to the Company’s trading on the OTC Expert Market; the impact on the price of the Company’s common stock and the
Company’s reputation; the Company’s ability to remediate material weaknesses in its internal control over financial
reporting; the Company’s ability to recruit and hire a new Chief Executive Officer and new Chief Financial Officer and retain
key personnel; the ability of the Company to realize the anticipated benefits of its plan designed to improve operational
efficiencies and realign its sales and marketing expenditures and the impacts thereof; the Company’s reliance on third parties
to manufacture commercial supplies of its products and clinical supplies of its product candidates; the impacts of geopolitical
factors such as the conflicts between Russia and Ukraine and Hamas, Iran and Israel; delay in or failure to obtain regulatory
approval of the Company’s or its partners’ product candidates and successful compliance with Federal Drug
Administration, European Medicines Agency and other governmental regulations applicable to product approvals; changes in the
regulatory environment; the uncertainties and timing of the regulatory approval process; whether the Company can successfully market
and commercialize its products; the success of the Company's relationships with its partners; the outcome of litigation and other
legal proceedings and the risk of additional litigation and legal proceedings, including with respect to the matters referenced
herein; the strength and enforceability of the Company’s intellectual property rights or the rights of third parties;
competition from other pharmaceutical and biotechnology companies and competition from generic entrants into the market; unexpected
safety or efficacy data observed during clinical trials; clinical trial site activation or enrollment rates that are lower than
expected; the risks inherent in drug development and in conducting clinical trials; risks inherent in estimates or judgments
relating to the Company’s critical accounting policies, or any of the Company’s estimates or projections, which may
prove to be inaccurate; unanticipated factors in addition to the foregoing that may impact the Company’s financial and
business projections and may cause the Company’s actual results and outcomes to materially differ from its estimates and
projections; and those risks and uncertainties identified in the “Risk Factors” sections of the Company’s Annual
Report on Form 10-K for the year ended December 31, 2022, filed with the SEC on March 23, 2023, the Company’s Quarterly
Reports on Form 10-Q for the quarter ended March 31, 2023, filed with the SEC on May 9, 2023, and for the quarter ended June 30,
2023, filed with the SEC on August 8, 2023, and its subsequent filings with the SEC. Readers are cautioned not to place undue
reliance on these forward-looking statements. All forward-looking statements contained in this Press Release speak only as of the
date on which they were made. Except to the extent required by law, the Company undertakes no obligation to update such statements
to reflect events that occur or circumstances that exist after the date on which they were made. There is no deadline or definitive
timetable for the completion of the Company’s review process to evaluate potential financing and other alternatives, there can
be no assurance as to the outcome of such process, and the Company does not intend to disclose or comment on further developments
with respect to such process unless and until it determines that further disclosure is required by law or it otherwise deems
appropriate.
Investor Relations Contact
Timothy McCarthy, CFA
917-679-9282
tim@lifesciadvisors.com
Lisa M. Wilson
212-452-2793
lwilson@insitecony.com
v3.24.3
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Oct. 30, 2024 |
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Oct. 30, 2024
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--12-31
|
| Entity File Number |
001-36306
|
| Entity Registrant Name |
Eagle
Pharmaceuticals, Inc.
|
| Entity Central Index Key |
0000827871
|
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20-8179278
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DE
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50
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NJ
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07677
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-Number 240
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-Name Securities Act
-Number 230
-Section 425
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Eagle Pharmaceuticals (CE) (USOTC:EGRX)
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Eagle Pharmaceuticals (CE) (USOTC:EGRX)
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