FIRST AMENDMENT TO THE RIGHTS AGREEMENT
Exhibit 4.1
FIRST AMENDMENT TO THE RIGHTS AGREEMENT
FIRST AMENDMENT, dated as of November 23, 2008 (this “Amendment”), to the Rights
Agreement, dated as of September 1, 2008 (the “Rights Agreement”), by and between Alpharma
Inc. (the “Company”) and Computershare Trust Company, N.A., as Rights Agent (the
“Rights Agent”). Terms used herein but not defined shall have the meaning assigned to them
in the Rights Agreement.
WHEREAS, the Company and the Rights Agent have heretofore executed and entered into the Rights
Agreement;
WHEREAS, the Company proposes to enter into an Agreement and Plan of Merger (as it may be
amended from time to time, the “Merger Agreement”), among King Pharmaceuticals, Inc., a
Tennessee corporation (“Parent”), Xxxxxx Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of Parent (“Merger Sub”), and the Company, providing for an
amendment to the tender offer by Merger Sub for all issued and outstanding shares of Class A common
stock, par value $0.20 per share (together with the associated Rights) of the Company (the
“Offer”) and the merger (the “Merger”) of the Company with and into Merger Sub,
with the Company continuing as the surviving corporation;
WHEREAS, the Board of Directors of the Company has determined, in connection with the
execution of the Merger Agreement, that it is necessary and desirable to amend the Rights Agreement
to exempt the Merger Agreement, the execution thereof and the transactions contemplated thereby,
including, without limitation, the Offer and the Merger, from the application of the Rights
Agreement, in each case as set forth in this Amendment;
WHEREAS, (i) Section 27 of the Rights Agreement provides that, so long as the Rights are then
redeemable, the Company may, and the Rights Agent shall if so directed by the Company, supplement
or amend any provision of the Rights Agreement without the approval of any holders of the Rights
(subject to limited exceptions that do not apply for purposes hereof); (ii) pursuant to Section 27
of the Rights Agreement, an appropriate officer of the Company has delivered a certificate to the
Rights Agent stating that the proposed supplements and amendments to the Rights Agreement set forth
in this Amendment are in compliance with Section 27 of the Rights Agreement; and (iii) pursuant to
the terms of the Rights Agreement and in accordance with Section 27 thereof, the Company has
directed that the Rights Agreement should be amended and supplemented as set forth in this
Amendment prior to the execution of the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth,
the parties hereby agree as follows:
1. Amendments to Rights Agreement.
(a) The definition of “Acquiring Person” in Section 1(a) of the Rights Agreement is
amended by inserting the following as a new paragraph at the end of such definition:
“Notwithstanding anything in this Section 1(a) to the contrary, none of King
Pharmaceuticals, Inc., a Tennessee corporation (“Parent”), Xxxxxx
Acquisition Corp., a Delaware corporation (“Merger Sub”), or any of their
respective Affiliates or Associates, either individually, collectively or in any
combination, shall be deemed to be an “Acquiring Person” solely by virtue or as a
result of the approval, execution, delivery, adoption or performance of the
Agreement and Plan of Merger, dated as of November 23, 2008, among Parent, Merger
Sub and the Company (as it may be amended or supplemented from time to time, the
“Merger Agreement”) or the consummation of the Offer (as defined in the
Merger Agreement), the Merger (as defined in the Merger Agreement) or any other
transactions contemplated thereby (such actions described in this sentence, the
“Permitted Events”).”
(b) The definition of “Stock Acquisition Date” in Section 1(o) of the Rights Agreement
is amended to add the following sentence at the end thereof:
“Notwithstanding anything in this Rights Agreement to the contrary, a Stock
Acquisition Date shall not be deemed to have occurred solely by virtue or as a
result of the public announcement of any Permitted Event.”
(c) Section 3(a) of the Rights Agreement is amended to add the following sentence at
the end thereof:
“Notwithstanding anything in this Rights Agreement to the contrary, a Distribution
Date shall not be deemed to have occurred solely as the result of any Permitted
Event.”
(d) Section 7(a) of the Rights Agreement is modified, amended and restated as follows:
“Except as otherwise provided herein, the Rights shall become exercisable on the
Distribution Date, and thereafter the registered holder of any Right Certificate
may, subject to Section 11(a)(ii) hereof and except as otherwise provided herein,
exercise the Rights evidenced thereby in whole or in part upon surrender of the
Right Certificate, with the form of election to purchase on the reverse side thereof
duly executed, to the Rights Agent at the office or agency of the Rights Agent
designated for such purpose, together with payment of the Purchase Price for each
one one-thousandth of a share of Series B Preferred Stock (or other securities, cash
or assets, as the case may be) as to which the Rights are exercised, at any time
which is both after the Distribution Date and prior to the time (the “Expiration
Date”) that is the earliest of (i) the time immediately prior to the Effective
Time (as defined in the Merger Agreement) (the “Effective Time”), but only
if the Effective Time shall occur, (ii) the close of business on September 1, 2009
(the “Final Expiration Date”), (iii) the time at which the Rights are
redeemed as provided in Section 23 hereof (the “Redemption Date”) or (iv)
the time at which such Rights are exchanged as provided in Section 24 hereof. The
Company will provide the Rights Agent with notice of the Effective Time,
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provided, however, that failure to notify the Rights Agent of the
Effective Time shall not in any way effect the time at which the Rights cease to be
exercisable pursuant to the foregoing sentence.”
(e) A new Section 36 is added to read in its entirety as follows:
“Section 36. Termination. Notwithstanding anything herein to the contrary,
immediately prior to the Effective Time, but only if the Effective Time shall occur,
(a) this Rights Agreement shall be terminated and be without further force or
effect, (b) none of the parties to this Rights Agreement will have any rights,
obligations or liabilities hereunder, and (c) the holders of the Rights shall not be
entitled to any benefits, rights or other interests under this Rights Agreement,
including, without limitation, the right to purchase or otherwise acquire Series B
Preferred Stock or any other securities of the Company or of any other Person;
provided, however, that notwithstanding the foregoing, Sections 18
and 20 hereof shall survive the termination of this Rights Agreement.”
2. Interpretation. The term “Rights Agreement” as used in the Rights Agreement shall be
deemed to refer to the Rights Agreement as amended hereby.
3. 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, and of the Rights
Agreement, shall remain in full force and effect and shall in no way be affected, impaired or
invalidated.
4. Waiver of Notice. The Rights Agent and the Company hereby waive any notice requirement
under the Rights Agreement pertaining to the matters covered by this Amendment.
5. Effectiveness. This Amendment shall be deemed effective as of the date first written
above. Except as expressly amended herein, all other terms and conditions of the Rights Agreement
shall remain in full force and effect. Without limiting the foregoing, the Rights Agent shall not
be subject to, nor required to interpret or comply with, or determine if any Person has complied
with, the Merger Agreement even though reference thereto may be made in this Amendment and the
Rights Agreement.
6. Governing Law. This Amendment shall be deemed a contract made under the laws of the State
of Delaware, and for all purposes of this Amendment shall be governed by and construed in
accordance with the laws of such State applicable to contracts made and to be performed entirely
within such State.
7. Counterparts. This Amendment may be executed in any number of counterparts, each of which
shall be an original and all of which shall constitute one and the same document.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed as of the day
and year first above written.
| Attest: | ALPHARMA INC. | |||||||||
By:
|
/s/ Xxxxx X. Xxxxxxx | By: | /s/ Xxxxxx X. Xxxxxxxx III | |||||||
| Name: Xxxxx X. Xxxxxxx | Name: Xxxxxx X. Xxxxxxxx III | |||||||||
| Title: Vice President and Associate | Title: Executive Vice President, General | |||||||||
| General Counsel, Corporate | Counsel and Secretary | |||||||||
| Attest: | COMPUTERSHARE TRUST COMPANY, N.A., as Rights Agent |
|||||||||
By:
|
/s/ Xxxxxxx Xxxxxx | By: | /s/ Xxxxxx X. Xxxxxx | |||||||
| Name: Xxxxxxx Xxxxxx | Name: Xxxxxx X. Xxxxxx | |||||||||
| Title: Relationship Manager | Title: Managing Director | |||||||||
[Rights Agreement Amendment Signature Page]
