Exhibit 4.1
SECOND AMENDMENT TO RIGHTS AGREEMENT
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This SECOND AMENDMENT TO RIGHTS AGREEMENT ("Amendment No. 2") has been
made and entered into as of August 4, 2003, by and between RIBAPHARM INC., a
Delaware corporation (the "Company"), and CONTINENTAL STOCK TRANSFER & TRUST
COMPANY, a New York corporation (the "Rights Agent").
WITNESSETH:
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WHEREAS, the Company and the Rights Agent previously entered into a Rights
Agreement (as amended, the "Agreement"), dated as of June 20, 2003, as amended
by the First Amendment to Rights Agreement ("Amendment No. 1"), dated as of July
2, 2003; and
WHEREAS, it is now the intention of the Company and the Rights Agent to
amend the Agreement as set forth below; and
WHEREAS, the Board of Directors of the Company has duly authorized the
execution and delivery of this Amendment No. 2;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
1. The following sentence shall be added to the end of the definition of
"Acquiring Person" in Section 1(a) of the Agreement:
Notwithstanding the foregoing, neither ICN Pharmaceuticals, Inc., a
Delaware corporation ("ICN"), nor Rx Acquisition Corporation, a Delaware
corporation and wholly owned subsidiary of ICN ("Rx Acquisition"), nor any
of their respective affiliates, shall be deemed to be an Acquiring Person
as a result of the acquisition of Common Shares pursuant to the Offer or
the Merger (as each such term is defined in the Offer to Purchase, filed
by ICN with the Securities and Exchange Commission on June 10, 2003 (as
amended or supplemented from time to time, the "Offer to Purchase"));
provided that the offer price in the Offer shall not be less than $6.25
per Share (as defined in the Offer to Purchase), net to the stockholders
of the Company in cash, without interest, and the percentage of Shares (as
defined in the Offer to Purchase) required to be tendered in the Offer to
satisfy the Minimum Condition (as defined in the Offer to Purchase) shall
not be reduced below the percentage contemplated by Paragraph 4 of the
Agreement, dated as of August 4, 2003, by and among the Company, ICN and
Rx Acquisition.
2. Notwithstanding Amendment No. 1, Section 1(i) of the Agreement is
hereby amended and restated as follows:
(i) "Distribution Date" shall mean the earlier of the Close of
Business on (i) the Shares Acquisition Date or (ii) the 10th Business Day
(or such later date as may be determined by action of the Board of
Directors prior to such time as any Person becomes an Acquiring Person)
after the Tender Offer Commencement Date; provided, however, that no
Distribution Date shall occur as a result of the acquisition of Common
Shares pursuant to the Offer or the Merger (as each such term is defined
in the Offer to Purchase).
3. All capitalized terms used herein and not otherwise defined shall have
the meaning ascribed to them in the Agreement.
4. Except as expressly provided for in this Amendment No. 2, all terms,
conditions and obligations contained in the Agreement shall remain unchanged and
in full force and effect.
5. In the case of any inconsistency between this Amendment No. 2 and the
terms of the Agreement or of Amendment No. 1, the terms of this Amendment No. 2
shall govern.
6. This Amendment No. 2 shall be governed and interpreted in accordance
with the laws of the State of Delaware, without regard to such state's conflict
of laws rules.
7. This Amendment No. 2 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.
IN WITNESS WHEREOF, parties hereto have caused this Amendment No. 2 to be
duly executed, all as of the day and year first written above.
RIBAPHARM INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Chairman of the
Board of Directors
CONTINENTAL STOCK
TRANSFER & TRUST
COMPANY
By: /s/ Xxxxx Xxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxx
Title: Vice President
