Exhibit 4.1
SECOND AMENDMENT TO AMENDED AND RESTATED RIGHTS AGREEMENT
This Second Amendment, dated as of November 3, 2003 (this "Second
Amendment"), to the Amended and Restated Rights Agreement, dated as of June 26,
2001 and as amended by that certain Amendment to Amended and Restated Rights
Agreement (the "First Amendment") dated as of August 5, 2003 (as amended, the
"Rights Agreement"), is between CIMA LABS INC., a Delaware corporation (the
"Company"), and XXXXX FARGO BANK MINNESOTA, N.A., a national banking association
(the "Rights Agent").
RECITALS
1. The Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement.
2. Pursuant to Section 27 of the Rights Agreement, the Company and
the Rights Agent may from time to time supplement or amend the Rights Agreement
in accordance with the provisions of Section 27 thereof.
3. The Company has terminated that certain Agreement and Plan of
Merger among the Company, Scarlet Holding Corporation, a Delaware corporation
("Holding Company"), Scarlet MergerCo, Inc, a Delaware corporation and
wholly-owned subsidiary of Holding Company, and Crimson MergerCo, Inc., a
Delaware corporation and wholly-owned subsidiary of Holding Company ("Crimson"),
pursuant to which Crimson would merge with and into the Company (the
"Transaction"), with the Company continuing after the Transaction as a
wholly-owned subsidiary of Holding Company, which Transaction was entered into
by the Company immediately following the execution of the First Amendment.
4. The Company proposed to enter into a merger transaction (the
"Merger") whereby C MergerCo, Inc., a Delaware corporation ("MergerCo") and
wholly-owned subsidiary of Cephalon Inc., a Delaware corporation ("Cephalon"),
would merge with and into the Company, with the Company continuing after the
Merger as a wholly-owned subsidiary of Cephalon.
5. As a result of the termination of the Transaction and in
anticipation of the Merger, the Company desires to amend the Rights Agreement
such that (i) the Merger will not result in the occurrence of a Distribution
Date, a Shares Acquisition Date, a party thereto becoming an Acquiring Person or
otherwise result in a trigger of the Rights (as such terms are defined in the
Rights Agreement), and (ii) the Transaction and the parties thereto shall be
subject to the provisions of the Rights Agreement to the same extent as they
were immediately prior to the adoption of the First Amendment.
6. All acts and things necessary to make this Second Amendment a
valid agreement according to its terms have been done and performed, and the
execution of delivery of this Second Amendment by the Company and the Rights
Agent have been in all respects authorized by the Company and the Rights Agent.
AGREEMENT
In consideration of the foregoing premises and mutual agreements set
forth in the Rights Agreement and this Second Amendment, the parties hereto
agree as follows:
1. Section 1(a) of the Rights Agreement is hereby modified and
amended by replacing the final sentence thereto with the following:
Notwithstanding the foregoing, Cephalon, Inc., a
Delaware corporation ("Cephalon"), or any Affiliate or
Associate thereof, including C MergerCo, Inc., a
Delaware corporation and wholly-owned subsidiary of
Cephalon ("MergerCo," and collectively with any
Affiliate or Associate of Cephalon, "Parent"), shall not
become an "Acquiring Person" as a result of the
approval, execution or delivery of, or consummation of
the transactions contemplated by, that certain Agreement
and Plan of Merger dated as of November 3, 2003 (the
"Merger Agreement"), by and among the Company, Cephalon
and MergerCo; provided, however, that Parent will become
an "Acquiring Person" in the event that Parent becomes
the Beneficial Owner of an aggregate of 15% or more of
the Common Shares of the Company then outstanding other
than pursuant to the terms of the Merger Agreement.
2. Section 1(m) of the Rights Agreement is hereby modified and
amended to read in its entirety as follows:
(m) "SHARES ACQUISITION DATE" shall mean the first date
of public announcement by the Company or an Acquiring
Person that an Acquiring Person has become such;
PROVIDED, HOWEVER that, if such Person is determined not
to have become an Acquiring Person pursuant to clause
(y) of the penultimate sentence of Section 1(a) hereof,
then no Shares Acquisition Date shall be deemed to have
occurred. Notwithstanding anything in this Agreement to
the contrary, no Shares Acquisition Date shall be deemed
to have occurred solely as a result of (i) the approval,
execution or delivery of the Merger Agreement, (ii)
adoption of the Merger Agreement by the Company's
stockholders, (iii) the exchange of the Company's Common
Shares pursuant to the Merger Agreement, (iv) the
consummation of the Merger (as defined in the Merger
Agreement) or (v) the consummation of all of the events
described in clauses (i) through (iv), or of any and all
other transactions contemplated by the Merger Agreement.
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3. Section 3(a) of the Rights Agreement is hereby modified and
amended by replacing the final sentence thereto with the following:
Notwithstanding anything in this Agreement to the
contrary, no Distribution Date shall be deemed to have
occurred solely as a result of (i) the approval,
execution or delivery of the Merger Agreement, (ii)
adoption of the Merger Agreement by the Company's
stockholders, (iii) the exchange of the Company's Common
Shares pursuant to the Merger Agreement, (iv) the
consummation of the Merger (as defined in the Merger
Agreement) or (v) consummation of all of the events
described in clauses (i) through (iv), or of any and all
other transactions contemplated by the Merger Agreement.
4. Section 13(a) of the Rights Agreement is hereby modified and
amended by replacing the final sentence thereto with the following:
Notwithstanding anything in this Agreement to the
contrary, none of the events described in clauses (x)
through (z) of the first sentence of Section 13(a) shall
be deemed to have occurred solely as a result of (i) the
approval, execution or delivery of the Merger Agreement,
(ii) adoption of the Merger Agreement by the Company's
stockholders, (iii) the exchange of the Company's Common
Shares pursuant to the Merger Agreement, (iv) the
consummation of the Merger (as defined in the Merger
Agreement) or (v) the consummation of all of the events
described in clauses (i) through (iv), or of any and all
other transactions contemplated by the Merger Agreement.
5. This Second Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware.
6. This Second Amendment may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed an
original, and all such counterparts shall together constitute but one and the
same instrument.
7. Except as expressly set forth herein, this Second Amendment shall
not by implication or otherwise alter, modify, amend or in any way affect any of
the terms, conditions, obligations, covenants or agreements contained in the
Rights Agreement, all of which are ratified and affirmed in all respects and
shall continue in full force effect.
8. Capitalized terms used herein but not defined (either directly
herein or by reference to the Merger Agreement) shall have the meanings given to
them in the Rights Agreement.
9. The term "Agreement" as used in the Rights Agreement shall be
deemed to refer for all purposes to the Rights Agreement as amended by the First
Amendment and this Second Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed as of the day and year first above written.
CIMA LABS INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Interim Chief Executive Officer
XXXXX FARGO BANK MINNESOTA, N.A.,
as Rights Agent
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Assistant Vice President
SIGNATURE PAGE TO SECOND AMENDMENT TO RIGHTS AGREEMENT
