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Exhibit 4
AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT, dated as of September 28, 1993, to the Rights
Agreement dated as of May 18, 1989 by and between Allergan, Inc., a Delaware
corporation (the "Company"), and First Chicago Trust Company of New York, a New
York corporation, as rights agent (the "Rights Agent").
WHEREAS, the name of the Rights Agent was changed to "First
Chicago Trust Company of New York"; and
WHEREAS, the Company and the Rights Agent have heretofore
executed and entered into the Rights Agreement, and, pursuant to 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; and
WHEREAS, acts and things necessary to make this Amendment a
valid agreement according to its terms have been done and performed, and the
execution and delivery of this Amendment by the Company and the Rights Agent
have been in all respects duly authorized by the Company and the Rights Agent.
NOW, THEREFORE, in consideration of the foregoing premises and
mutual agreements set forth in the Rights Agreement and this Amendment, the
parties hereby agree as follows:
1. The first paragraph of the Rights Agreement is hereby
amended to read as follows:
"This Agreement, dated as of May 18, 1989, between ALLERGAN,
INC., a Delaware corporation (the "Company"), and FIRST
CHICAGO TRUST COMPANY OF NEW YORK, a New York corporation
(the "Rights Agent")..."
2. Section 7(a) of the Rights Agreement is hereby
amended to read as follows:
First, clause (i) of the first sentence of Section
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7(a) shall read in its entirety as follows:
"The close of business on the Final Expiration Date
(as such term is hereinafter defined)."
Second, the following sentence shall be added
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after the first sentence of Section 7(a):
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"The Final Expiration Date shall mean the date of the
annual meeting of stockholders in 1997 (the "1997
Meeting"), unless a proposal requiring extension of
the Final Expiration Date to the annual meeting of
stockholders in the year 2000 (the "2000 Meeting")
shall have received the affirmative vote of a
majority of the shares voting thereon at the 1997
Meeting, in which case the Final Expiration Date
shall be extended to the 2000 Meeting."
3. Section 24 of the Rights Agreement is hereby amended
to read as follows:
First, the following sentence shall be added after
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the title of Section 24:
"The Rights may be redeemed by action of the Board of
Directors pursuant to subsection (a)(i) or (a)(ii) of
this Section 24 or by Stockholder action pursuant to
subsection (a)(iii) of this Section 24 and shall not
be redeemed in any other manner."
Second, the following subsection (a)(iii) shall be
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added after subsection (a)(ii) of Section 24:
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"(iii) (1) In the event (i) the Company receives an
Offer from any Offeror (as such terms are hereinafter
defined), and (ii) within 60 days after such receipt
(such sixtieth day being referred to herein as the
"Offer Date"), the Board of Directors has not either
(x) redeemed all but not less than all of the then
outstanding Rights or (y) approved an alternative
transaction which the Board of Directors has
determined to be financially superior for the holders
of shares of Common Stock other than the Offeror and
its Affiliates, then the Board of Directors shall
call a special meeting of stockholders (the "Special
Meeting") for the purpose of voting on a precatory
resolution requesting the Board of Directors to
accept such Offer, as such Offer may be amended or
revised by the Offeror from time to time to increase
the price per share to be paid to holders of shares
of Common Stock (the "Resolution"). The Board of
Directors shall select a date for the Special Meeting
and shall use its best efforts to ensure that the
Special Meeting actually be held on such date, which
date shall be not later than the later of (A) the
earliest date after the Offer Date on which it is
reasonably practicable to arrange a Special Meeting
and (B) the date of any meeting of stockholders
already scheduled as of the Offer Date; provided,
however, that if (x) such other meeting shall have
been called for the purpose of voting on a precatory
resolution with respect to another Offer and (y) the
Offer Date shall be not later than 15 days after the
date such other Offer was received by the Company,
then both the Resolution and such other resolution
shall be voted on at such meeting and such meeting
shall be deemed to be the Special Meeting. The Board
of Directors shall set a date for determining the
stockholders of record entitled to notice of and to
vote at the Special Meeting in accordance with the
Company's Certificate of Incorporation and By-Laws
and with applicable law. At the Offeror's request,
the Company shall include in any proxy soliciting
material prepared by it in connection with the
Special Meeting proxy soliciting material submitted
by the Offeror; provided, however, that the Offeror
shall by written agreement with the Company contained
in or delivered such request have indemnified the
Company against any and all liabilities resulting
from any misstatements, misleading statements and
omissions contained in the Offeror's proxy soliciting
material and have agreed to pay the Company's
incremental costs incurred as a result of including
such material in the Company's proxy soliciting
material. Notwithstanding the foregoing, no Special
Meeting shall be held from and after such time as any
Person becomes an Acquiring Person, and any Special
Meeting scheduled prior to such time and not
theretofore held shall be cancelled.
(2) If at the Special Meeting the
Resolution receives the affirmative vote of a
majority of the Voting Power outstanding as of the
record date of the Special Meeting, then all of the
Rights shall be redeemed by such stockholder action
at the Redemption Price, effective immediately prior
to the consummation of any tender or exchange offer
(provided that such offer is consummated prior to 60
days after the date of the Special Meeting) pursuant
to which any Person offers to purchase all of the
shares of Common Stock held by Persons other than
such Person and its Affiliates at a price per share
in cash and/or at an exchange ratio which is
financially superior to the cash price and/or the
exchange ratio contained in the Resolution approved
at the Special Meeting; provided, however, that the
Rights shall not be redeemed at any time from and
after such time as any Person becomes an Acquiring
Person.
(3) Nothing contained in this
subsection (iii) of this Section 24 shall be deemed
to be in derogation of the obligation of the Board of
Directors of the Company to exercise its fiduciary
duty. Without limiting
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the foregoing, nothing contained herein shall be construed to suggest
or imply that the Board of Directors shall not be entitled to reject
any Offer, or to recommend that holders of shares of Common Stock
reject any tender or exchange offer, or to take any other action
(including, without limitation, the commencement, prosecution, defense
or settlement of any litigation and the submission of additional or
alternative Offers or other proposals to the Special Meeting) with
respect to any Offer or any tender or exchange offer that the Board of
Directors believes is necessary or appropriate in the exercise of such
fiduciary duty.
(4) Nothing in this subsection
(iii) of this Section 24 shall be construed as
limiting or prohibiting the Company or any Offeror
from proposing or engaging, at any time, in any
acquisition, disposition or other transfer of any
securities of the Company, any merger or
consolidation involving the Company, any sale or
other transfer of assets of the Company, any
liquidation, dissolution or winding-up of the
Company, or any other business combination or other
transaction, or any other action by the Company or
such Offeror; provided, however, that the holders of
Rights shall have the rights set forth in this
Agreement with respect to any such acquisition,
disposition, transfer, merger, consolidation, sale,
liquidation, dissolution, winding-up, business
combination, transaction or action.
(5) An "Offer" shall mean a written
proposal delivered to the Company by any Person (an
"Offeror"), which proposal:
(A) provides for the acquisition
at the same price of all of the outstanding shares of
Common Stock held by any Person other than the
Offeror and its Affiliates;
(B) in an offer all or partially
for cash consideration, states that the Offeror has
obtained written financing commitments from
recognized financing sources, and/or has on hand cash
or cash equivalents, for the full amount of all
financing necessary to consummate the Offer;
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(C) if an offer all or partially
for consideration other than cash, (i) provides for
any non-cash consideration to consist only of
securities which are listed and trading on the New
York Stock Exchange and (ii) is determined by the
Board of Directors of the Company to be one of a
series of transactions which will provide
tax-deferred treatment for the holders of shares of
Common Stock other than the Offeror and its
Affiliates;
(D) is not subject to any
financing, funding or similar condition, nor any
condition relating to completion of or satisfaction
with any due diligence or similar investigation and
otherwise provides for usual and customary terms and
conditions; and
(E) requests the Company to call a
special meeting of the holders of Common Stock for
the purpose of voting on a precatory resolution
requesting the Board of Directors to accept such
Offer and contains a written agreement of the Offeror
to pay (or share with any other Offeror) at least
one-half of the Company's costs of such special
meeting (exclusive of the Company's costs of
preparing and mailing proxy material for its own
solicitation)."
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Third, the first sentence of Subsection 24(b) shall
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be amended to read in its entirety as follows:
"In the case of a redemption permitted under Section
24(a)(i) or Section 24(a)(iii), immediately upon the
action of the Board of Directors of the Company
ordering the redemption of the Rights pursuant to
Section 24(a)(i), or upon the effectiveness of the
redemption of the Rights pursuant to Section
24(a)(iii), evidence of which shall have been filed
with the Rights Agent, and without any further action
and without any notice, the right to exercise the
Rights will terminate and the only right thereafter
of the holders of Rights shall be to receive the
Redemption Price."
Fourth, the third sentence of Subsection 24(b) shall
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be amended to add the following after the words "Within ten days after the
action of the Board of Directors ordering any such redemption":
"pursuant to Section 24(a)(i) or (ii) or the
effectiveness of the redemption of the Rights
pursuant to Section 24(a)(iii)"
Fifth, the sixth sentence of subsection 24(b) shall
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be amended to add the following after the reference therein to Section 24(a)(i)
or (ii):
"or (iii)"
4. The second sentence of Section 26 is hereby amended
so that the address shall read in its entirety as follows:
"First Chicago Trust Company of New York
P.O.B. 2532, Mail Suite 4690
Jersey City, New Jersey
07303-2532
Attention: Client Administration"
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5. Section 28 of the Rights Agreement is hereby amended
so that the parenthetical clause in the penultimate sentence thereof shall read
in its entirety as follows:
"(including, subject to Section 24(a)(iii), a
determination to redeem or not redeem the Rights or
to amend the Agreement)".
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
ALLERGAN, INC.
By:_____________________________
Name:
Title:
ATTEST:
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Name:
Title:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By:_____________________________
Name:
Title:
ATTEST:
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Name:
Title: