EGRX Eagle Pharmaceuticals, Inc. - 8-K

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 (1/1000 th ) of a Preferred Share for $10.00, subject to adjustment (the “Exercise Price”).
Each one-thousandth (1/1000 th ) 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
(1/1,000 th ) 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:

·

will not be redeemable;

·

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 (1/1000 th )
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.

Exhibit

Number

Description

3.1

Certificate of Designation of Series A Junior Participating Preferred Stock filed with the Secretary of State of the State of Delaware on October 31, 2024

4.1

Rights Agreement, dated as of October 30, 2024 between Eagle Pharmaceuticals, Inc. and Equiniti Trust Company, LLC., which includes the form of Certificate of Designation as Exhibit A and the form of Right Certificate as Exhibit B

99.1

Press Release of Eagle Pharmaceuticals, Inc., dated October 31, 2024

104

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