AMENDMENT TO STOCKHOLDER RIGHTS AGREEMENT
AMENDMENT
TO STOCKHOLDER RIGHTS AGREEMENT
This Amendment
To Rights Agreement (this “Amendment”),
dated as of January 27, 2010, is made and entered into by and between NuRx
Pharmaceuticals, Inc., a Nevada corporation (the “Company”),
and Continental Stock Transfer & Trust Company, as rights agent (the
“Rights
Agent”). Capitalized terms not otherwise defined in this Amendment
shall have the meaning ascribed to such terms in the Rights Agreement (as
defined below).
Whereas,
the Company and the Rights Agent previously entered into that certain
Stockholder Rights Agreement, dated as of June 1, 2009 (the “Rights
Agreement”).
Whereas,
the Company proposes to enter into an Agreement and Plan of Merger (the “Merger
Agreement”), with QuantRx Biomedical Corporation, a Nevada corporation
(“Parent”)
and NP Acquisition Corporation, a Nevada corporation and wholly-owned subsidiary
of Parent (“Merger
Sub”), pursuant to which: (i) Merger Sub will be merged with and
into the Company (the “Merger”)
and the separate corporate existence of Merger Sub will cease; and (ii) in
connection with the Merger, certain stockholders of the Company will enter into
Voting Agreements with Parent (the “Voting
Agreements”).
Whereas,
the Board of Directors of the Company has determined that, in connection with
the execution of the Merger Agreement, it is necessary and desirable to amend
the Rights Agreement to exempt Parent and Merger Sub from the application of the
Rights Agreement solely in connection with the Merger Agreement, the Voting
Agreements, the approval, execution and delivery thereof and the transactions
contemplated thereby, including, without limitation, the Merger.
Whereas,
subject to certain exceptions, the Rights Agent shall, if the Company so
directs, supplement or amend any provision of the Rights Plan without the
approval of any holders of any holders of Rights Certificates.
NOW,
THEREFORE, in consideration of the premises and the mutual agreements herein set
forth, the parties hereby agree as follows:
1. Amendments to Rights
Agreement.
(a) The
definition of “Exempt Person” in Section 1 of the Rights Agreement is
hereby amended and restated as follows:
“(i) the
Company, any Subsidiary of the Company, any employee benefit plan or employee
stock plan of the Company or of any Subsidiary of the Company, or any person or
entity organized, appointed, established or holding Company Common Stock for or
pursuant to the terms of any such plan;
(ii) any
Person who would otherwise become an Acquiring Person solely by virtue of a
reduction in the number of outstanding shares of Company Common Stock; provided, however, that any such Person
shall not be an Exempt Person if, subsequent to such reduction, such Person
shall become the Beneficial Owner of any additional shares of Company Common
Stock;
(iii) ▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇ and his immediate family members and their Affiliates and
Associates, provided,
however, that any such
Person shall not be an Exempt Person if such Person shall become the Beneficial
Owner of any additional shares of Company Common Stock after the effective time
of this Agreement; or
(iv) Parent
and Merger Sub (each as defined in the Merger Agreement), either individually or
together, solely in connection with the approval, execution and delivery of the
Merger Agreement and the Voting Agreements, and any of the transactions
contemplated thereby, including, but not limited to, the Merger (as defined in
the Merger Agreement).”
(b) Section
1 of the Rights Agreement is hereby amended to add the following new
definition:
““Merger Agreement”
means the Agreement and Plan of Merger to be entered into on or about January
25, 2010, by and among QuantRx Biomedical Corporation, NP Acquisition
Corporation and the Company.”
(c) Section
1 of the Rights Agreement is hereby amended to add the following new
definition:
““Voting Agreement”
means the Stockholder Voting Agreement to be entered into on or about January
25, 2010, by and among QuantRx Biomedical Corporation, the Company and certain
of the Company’s stockholders as indicated therein.”
(d) Section
30 of the Rights Agreement is hereby amended to add the following sentence at
the end thereof:
“Nothing
in this Agreement shall be construed to give any holder of Rights or any Person
any legal or equitable rights, remedies or claims under this Agreement by virtue
of the execution of the Merger Agreement or by virtue of any of the transactions
contemplated by the Merger Agreement.”
(e) Section
35 is hereby added to the Rights Agreement as follows:
“SECTION
35. Exception for
Merger Agreement. Notwithstanding any provision of this Agreement to the
contrary, none of a Distribution Date, Stock Acquisition Date or Triggering
Event shall be deemed to have occurred, none of the transactions, events or
rights under Sections 3, 7, 11 or 13, or any other provision of this Agreement
shall become applicable or be triggered, none of QuantRx Biomedical Corporation
or any of its Affiliates or Associates shall be constituted or deemed to be or
have become an Acquiring Person, and no holder of any Rights shall be entitled
to exercise such Rights under or be entitled to any rights pursuant to this
Agreement, in all such cases by reason or as a consequence of the approval,
execution, delivery, announcement, pendency of, or consummation of any of the
transactions contemplated by, the Merger Agreement.”
(f) Section
36 is hereby added to the Rights Agreement as follows:
“SECTION
36. Exception for
Voting Agreement. Notwithstanding any provision of this
Agreement to the contrary, no person shall be deemed the Beneficial Owner of
Company Common Stock by reason of the approval, execution, delivery,
announcement, pendency or consummation of the Voting Agreement or any action or
transaction contemplated thereby (including without limitation the grant of an
irrevocable proxy in accordance with such agreement), and the Voting Agreement
shall be disregarded for purposes of determining whether a person is the
Beneficial Owner of Company Common Stock.”
(g) Section
37 is hereby added to the Rights Agreement as follows:
“SECTION
37. Effectiveness of
Merger. Immediately prior to the Effective Time (as defined in
the Merger Agreement), all outstanding Rights shall expire and this Agreement
shall be terminated and be without any further force or effect.”
2. Interpretation. The
term “Agreement” as used in the Rights Agreement shall be deemed to refer to the
Rights Agreement as amended hereby.
3. Severability. If any
term, provision, covenant or restriction of this Amendment is held by a court of
competent jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this
Amendment, and of the Rights Agreement, shall remain in full force and effect
and shall in no way be affected, impaired or invalidated.
4. Waiver of
Notice. The Rights Agent and the Company hereby waive any notice
requirement under the Rights Agreement pertaining to the matters covered by this
Amendment.
5. Effectiveness. This
Amendment shall be deemed effective as of the date first written
above. Except as expressly amended herein, all other terms and conditions
of the Rights Agreement shall remain in full force and
effect.
6. Termination.
Notwithstanding anything to the contrary set forth herein, this Amendment shall
terminate and be of no further force or effect in the event of the termination
of the Merger Agreement for any reason.
7. Governing Law. This
Amendment shall be deemed a contract made under the laws of the State of Nevada,
and for all purposes of this Amendment shall be governed by and construed in
accordance with the laws of such State applicable to contracts made and to be
performed entirely within such State.
8. Counterparts. This
Amendment may be executed in any number of counterparts (including by facsimile
transmission), each of which shall be an original and all of which shall
constitute one and the same instrument.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
In
Witness Whereof, the parties have caused this Amendment to be duly
executed as of the day and year first above written.
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By:
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/s/
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Name:
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▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇▇▇
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Title:
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Chief
Executive Officer
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CONTINENTAL STOCK TRANSFER & TRUST COMPANY,
as
Rights Agent
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By:
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/s/
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Name:
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▇▇▇▇
▇▇▇▇▇
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Title:
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Vice
President
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