exv10w1






Exhibit 10.1




ASSIGNMENT AND ASSUMPTION AGREEMENT




     This Assignment and Assumption Agreement (the “Agreement”) is made as of December 29,
2008, by and between Sucampo Pharma Americas, Inc., formerly known as Sucampo Pharmaceuticals,
Inc., a Delaware corporation (“Assignor”) and Sucampo Pharmaceuticals, Inc., formerly known as
Sucampo Pharma Holdings, Inc., a Delaware corporation (“Assignee”). Capitalized terms used in this
Agreement and not otherwise defined shall have the respective meanings assigned to them in the
Merger Agreement (as defined below).



RECITALS




     Whereas, Assignor has created a new holding company structure pursuant to that
certain Agreement and Plan of Reorganization dated as the date hereof (the “Merger Agreement”), by
and among Assignor, Assignee and Sucampo MS, Inc. (“Merger Sub”);



     Whereas, pursuant to the Merger Agreement, Merger Sub has merged with and into
Assignor, in a transaction in which (i) Assignor was the surviving corporation and thereafter a
direct, wholly owned subsidiary of Assignee, (ii) each outstanding share of capital stock of
Assignor was converted into one share of capital stock of Assignee having the same preferences,
rights, and limitations as the share being converted, (iii) Assignor was renamed “Sucampo Pharma
Americas, Inc.” and (iv) Assignee was renamed “Sucampo Pharmaceuticals, Inc.” (such transactions
collectively, the “Reorganization”);



     Whereas, in connection with the Reorganization and pursuant to the Merger Agreement,
Assignor assigned to Assignee, and Assignee assumed from Assignor, certain stock incentive plans,
option agreements, employment agreements, indemnification agreements and investor rights agreements
specified in Schedule A thereto (collectively, the “Assumed Agreements”); and



     Whereas, the purpose of this Agreement is to confirm and formalize the assignment by
Assignor and assumption by Assignee of the Assumed Agreements.



AGREEMENT




     Now, Therefore, in consideration of the covenants and agreements set forth herein,
the receipt and sufficiency of which is acknowledged by the parties hereto, the parties intending
to be legally bound, agree as follows:



     1. Assignment. Assignor hereby assigns to Assignee all of its rights and obligations under the
Assumed Agreements .



     2. Assumption. Assignee hereby assumes all of the rights and obligations of Assignor under the
Assumed Agreements, and agrees to abide by and perform all terms, covenants and conditions of
Assignor under such Assumed Agreements. In consideration of the assumption by Assignee of all of
the rights and obligations of Assignor under the Assumed Agreements, Assignor agrees to pay (i) all
expenses incurred by Assignee in connection with the assumption of the Assumed Agreements pursuant
to this Agreement and (ii) all expenses incurred by Assignee in connection with the registration on
Form S-8 of shares of common stock of Assignee to the extent required in connection with the Stock
Plans, including, without limitation, registration fees imposed by the Securities and Exchange
Commission.



     3. Further Assurances. Subject to the terms of this Agreement, the parties hereto shall take
all reasonable and lawful action as may be necessary or appropriate to cause the intent of this
Agreement



 









 







to be carried out, including, without limitation, entering into amendments to the Assumed
Agreements and notifying other parties thereto of such assignment and assumption.



     4. Successors and Assigns. This Agreement shall be binding upon Assignor and Assignee, and
their respective successors and assigns. The terms and conditions of this Agreement shall survive
the consummation of the transfers provided for herein.



     5. Governing Law. This Agreement is made under, and shall be construed and enforced in
accordance with, the laws of the State of Delaware applicable to agreements made and to be
performed solely therein, without giving effect to principles of conflicts of law.



     6. Entire Agreement. This Agreement, along with the Merger Agreement and the other documents
delivered thereto, constitutes the entire agreement and supersedes all other agreements and
undertakings, both written and oral, among the parties, or any of them, with respect to the subject
matter hereof.



     7. Amendment. This Agreement may not be amended except by an instrument in writing signed on
behalf of each of the parties hereto.



     8. Third Party Beneficiaries. The parties to the various stock option or similar agreements
entered into pursuant to the Stock Plans and who are granted options thereunder, and the parties to
the other agreements listed in Schedule A to the Merger Agreement, are intended to be third
party beneficiaries to this Agreement.



     9. Counterparts. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be a duplicate original, but all of which, taken together, shall be deemed to
constitute a single instrument.



[Signature Page Follows]





 









 








     In Witness Whereof, this Assignment and Assumption Agreement is signed as of
the date first written above.



	 	 	 	 	 
	 	ASSIGNOR:



Sucampo Pharma Americas, Inc.

 	 
	 	By:  	/s/ Ryuji Ueno
 	 
	 	 	Ryuji Ueno 	 
	 	 	Chief Executive Officer 	 
	 
	 	ASSIGNEE:



Sucampo Pharmaceuticals, , Inc.

 	 
	 	By:  	/s/ Ryuji Ueno
 	 
	 	 	Ryuji Ueno 	 
	 	 	Chief Executive Officer