EXHIBIT 4.4
AMENDMENT NO. 3
TO
RIGHTS AGREEMENT
DATED AS OF MAY 31, 2002
BETWEEN
MEDICIS PHARMACEUTICAL CORPORATION
AND
XXXXX FARGO BANK MINNESOTA, N.A.,
AS SUCCESSOR-IN-INTEREST TO
AMERICAN STOCK TRANSFER & TRUST COMPANY,
AS RIGHTS AGENT
TABLE OF CONTENTS
Section 1. Certain Amendments.............................................. 2
Section 2. Successors...................................................... 2
Section 3. Benefits of this Amendment...................................... 2
Section 4. Severability.................................................... 2
Section 5. Governing Law................................................... 2
Section 6. Counterparts.................................................... 2
Section 8. Descriptive Headings............................................ 2
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AMENDMENT NO. 3 TO RIGHTS AGREEMENT
THIS AMENDMENT NO. 3 TO RIGHTS AGREEMENT, dated as of May 31, 2002 (this
"Amendment"), between Medicis Pharmaceutical Corporation, a Delaware corporation
(the "Company"), and Xxxxx Fargo Bank Minnesota, N.A. ("Xxxxx Fargo"), a
national banking association, as successor-in-interest to American Stock
Transfer & Trust Company, a New York corporation ("American Stock"), as rights
agent (the "Rights Agent").
W I T N E S S E T H:
WHEREAS, on August 17, 1995, the Board of Directors of the Company
authorized and declared a dividend of one preference share purchase right (a
"Right") for each Class A Common Share, such capitalized term and all other
capitalized terms used herein having the meanings set forth or as provided in
Section 1 of the Rights Agreement, dated as of August 17, 1995, between the
Company and the Rights Agent (the "Rights Agreement") and Class B Common Share
of the Company outstanding as of the Close of Business on August 30, 1995(the
"Record Date"), each Right representing the right to purchase one one-hundredth
of a Preference Share, upon the terms and subject to the conditions set forth in
the Rights Agreement, and further authorized and directed the issuance of one
Right with respect to each Class A Common Share and each Class B Common Share
that shall become outstanding between the Record Date and the earliest of the
Distribution Date, the Redemption Date and the Final Expiration Date; and
WHEREAS, on August 17, 1995, the Company and the Rights Agent executed and
delivered the Rights Agreement; and
WHEREAS, on April 15, 1996, the Company and the Rights Agent executed and
delivered Amendment No. 1 to Rights Agreement, which amended certain terms and
provisions of the original Rights Agreement; and
WHEREAS, on March 17, 1997, the Company and the Rights Agent executed and
delivered Amendment No. 2 to Rights Agreement, which changed the rights agent
thereunder from American Stock to Norwest; and
WHEREAS, the Board of Directors of the Company has determined that it is
in the best interests of the Company to change the definition of "Beneficial
Owner" as set forth in the Rights Agreement in the manner set forth below.
NOW THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
SECTION 1. CERTAIN AMENDMENTS. The definition of "Beneficial Owner" as set
forth in Section 1(c)(3) of the Rights Agreement shall be amended to add the
following at the end of the last full paragraph of the definition:
"Notwithstanding anything in this definition of Beneficial Ownership to the
contrary, nothing contained in the foregoing definition shall cause a Person
ordinarily engaged in business as an underwriter or initial purchaser of
securities to be the "Beneficial Owner" of, or to "beneficially own" or to have
"Beneficial Ownership" of, any securities acquired in a bona fide firm
commitment underwriting or otherwise."
SECTION 2. SUCCESSORS. All the covenants and provisions of this Amendment
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 3. BENEFITS OF THIS AMENDMENT. Nothing in this Amendment 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 Class A Common Shares) any legal or equitable right, remedy or claim
under this Amendment; but this Amendment 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 Class A Common Shares).
SECTION 4. 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 shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
SECTION 5. GOVERNING LAW. This Amendment shall be deemed to be a contract
made under the laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of such State applicable
to contracts to be made and performed entirely within such State.
SECTION 6. COUNTERPARTS. This Amendment 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.
SECTION 7. DESCRIPTIVE HEADINGS. Descriptive headings of the several
Sections of this Amendment are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and attested by their respective officers thereunto duly
authorized as of the day and year first above written.
Attest: MEDICIS PHARMACEUTICAL CORPORATION
By: _______________________________ By: __________________________________
Name: Xxxxxxx X. Xxxx Name: Xxxx X. Xxxxxxxx, Xx.
Title: Exec. Asst. to EVP/CFO Title: Exec. Vice Pres./CFO
Attest: XXXXX FARGO BANK MINNESOTA, N.A., as
successor-in-interest to AMERICAN
STOCK TRANSFER & TRUST COMPANY, as
Rights Agent
By: _______________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President By: __________________________________
Name: Xxxxx Xxxxx
Title: Account Manager/Officer
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