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EXHIBIT 4.5
AVANIR PHARMACEUTICALS
AMENDMENT NO. 1
TO
RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO RIGHTS AGREEMENT, dated as of November 23, 1999
(this "Amendment"), is executed and delivered in connection with the Rights
Agreement, dated as of March 5, 1999 (the "Rights Agreement"), by and between
AVANIR Pharmaceuticals, a California corporation (the "Company"), and American
Stock Transfer & Trust Company, a New York corporation, as rights agent (the
"Rights Agent"). All capitalized terms in this Amendment which are not otherwise
defined herein shall have the respective meanings ascribed to them in the Rights
Agreement.
WHEREAS, Section 26 of the Rights Agreement provides that, for so long
as the Rights are then redeemable, the Company may in its sole and absolute
discretion, and the Rights Agent shall, if the Company so directs, supplement or
amend any provision of the Rights Agreement in any respect without the approval
of any holders of Rights or Common Shares; and
WHEREAS, Section 6.11 of the Loan Agreement, dated as of November 23,
1999 (the "Loan Agreement"), by and among (i) the Company and (ii) AMRO
International, S.A., a Panama corporation, and The Endeavour Capital Fund, S.A.,
a company formed under the laws of Israel (collectively, the "Excluded
Holders"), provides that the Company will amend Section 1.1 of the Rights
Agreement to exclude each of the Excluded Holders from the definition of
"Acquiring Person" under the Rights Agreement as and to the extent provided
herein.
NOW, THEREFORE, in consideration of the premises, the mutual promises
hereinafter set forth, and for other good and valuable consideration, the
parties hereto hereby agree as follows:
1. Section 1.1 of the Rights Agreement is hereby amended and
restated in its entirety to read as follows:
1.1. "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person, shall
be the Beneficial Owner (as such term is hereinafter defined) of 15% or
more of the Common Shares of the Company then outstanding but shall not
include (i) an Exempt Person (as such term is hereinafter defined), (ii)
if, as of March 5, 1999, any Person is the Beneficial Owner of 15% or
more of the Common Shares outstanding (an "Existing Holder"), such
Existing Holder shall not be or become an "Acquiring Person" unless and
until such time as such Existing Holder shall become the Beneficial
Owner of one or more additional Common Shares of the Company
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(other than pursuant to a dividend or distribution paid or made by the
Company on the outstanding Common Shares in Common Shares or pursuant to
a split or subdivision of the outstanding Common Shares), unless, upon
becoming the Beneficial Owner of such additional Common Shares, such
Existing Holder is not then the Beneficial Owner of 15% or more of the
Common Shares then outstanding or (iii) an Excluded Holder (as defined
below), unless such Excluded Holder as of the date hereof beneficially
owns, or unless and until such time as such Excluded Holder becomes the
Beneficial Owner of, any Common Shares of the Company (other than (x) as
a result of its ownership of Convertible Debentures or Warrants (as such
terms are defined in the Loan Agreement, dated as of November 23, 1999,
by and among the Company and each of the Excluded Holders) or any Common
Shares issued upon the conversion or exercise thereof, and (y) pursuant
to a dividend or distribution paid or made in Common Shares by the
Company on the outstanding Common Shares or pursuant to a split or
subdivision of the outstanding Common Shares). "Excluded Holder" shall
mean each of AMRO International, S.A., a Panama corporation, and The
Endeavour Capital Fund, S.A., a company formed under the laws of Israel.
Notwithstanding the foregoing, no Person shall become an "Acquiring
Person" as the result of an acquisition of Common Shares by the Company
which, by reducing the number of shares outstanding, increases the
proportionate number of shares beneficially owned by such Person to 15%
or more of the Common Shares of the Company then outstanding; provided,
however, that if a Person shall become the Beneficial Owner of 15% or
more of the Common Shares of the Company then outstanding solely by
reason of share purchases by the Company and shall, after such share
purchases by the Company, become the Beneficial Owner of one or more
additional Common Shares of the Company (other than pursuant to a
dividend or distribution paid or made by the Company on the outstanding
Common Shares in Common Shares or pursuant to a split or subdivision of
the outstanding Common Shares), then such Person shall be deemed to be
an "Acquiring Person" unless upon becoming the Beneficial Owner of such
additional shares of Common Stock such Person does not beneficially own
15% or more of the shares of Common Stock then outstanding.
Notwithstanding the foregoing, if the Board of Directors of the Company
determines in good faith that a Person who would otherwise be an
"Acquiring Person," as defined pursuant to the foregoing provisions of
this Section 1.1, has become such inadvertently (including, without
limitation, because (A) such Person was unaware that it beneficially
owned a percentage of Common Stock that would otherwise cause such
Person to be an "Acquiring Person" or (B) such Person was aware of the
extent of its Beneficial Ownership of Common Stock but had no actual
knowledge of the consequences of such Beneficial Ownership under this
Agreement), and without any intention of changing or influencing control
of the Company, and such Person divests as promptly as practicable a
sufficient number of Common Shares so that such Person would no longer
be an Acquiring Person, as defined pursuant to the foregoing provisions
of this Section 1.1, then such Person shall not be deemed to be or have
become an "Acquiring Person" at any time for any purposes of this
Agreement. For all purposes of this Agreement, any calculation of the
number of
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Common Shares outstanding at any particular time, including for purposes
of determining the particular percentage of such outstanding Common
Shares of which any Person is the Beneficial Owner, shall be made in
accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General
Rules and Regulations under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), as in effect on March 5, 1999.
2. Except as set forth in this Amendment, the Rights Agreement
shall remain in full force and effect. By their execution below, the parties
hereto agree to be bound by the terms and conditions of the Rights Agreement as
amended by this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment as of the date first above written.
AVANIR PHARMACEUTICALS
By: /s/ Xxxxxx X. Xxxxxxx, Ph.D.
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Name: Xxxxxx X. Xxxxxxx, Ph.D.
Title: Chief Executive Officer
and President
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO RIGHTS AGREEMENT]
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