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EXHIBIT 10.3
FIFTH AMENDMENT TO
ALLERGAN, INC.
EMPLOYEE STOCK OWNERSHIP PLAN
(RESTATED 1996)
The ALLERGAN, INC. EMPLOYEE STOCK OWNERSHIP PLAN (the "Plan") is hereby
amended, effective January 1, 2000, to read as follows:
1. Section 10.4(b) of the Plan is hereby amended and restated in its entirety
to read as follows:
"(b) In the event of a Change in Control (as herein defined), all
Participants who were Participants on the date of such Change in Control
shall become 100% vested in any amounts allocated to their ESOP Accounts
on the date of such Change in Control and in any amounts allocated to
their ESOP Accounts subsequent to the date of the Change in Control.
Notwithstanding the foregoing, the Board of Directors may, at its
discretion, amend or delete this Paragraph (b) in its entirety prior to
the occurrence of any such Change in Control. For the purpose of this
Paragraph (b), "Change in Control" shall mean the following and shall be
deemed to occur if any of the following events occur:
(i) Any "person," as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (a "Person"), is or becomes the "beneficial owner,"
as defined in Rule 13d-3 under the Exchange Act (a "Beneficial
Owner"), directly or indirectly, of securities of the Sponsor
representing (i) 20% or more of the combined voting power of the
Sponsor's then outstanding voting securities, which acquisition is
not approved in advance of the acquisition or within 30 days after
the acquisition by a majority of the Incumbent Board (as hereinafter
defined) or (ii) 33% or more of the combined voting power of the
Sponsor's then outstanding voting securities, without regard to
whether such acquisition is approved by the Incumbent Board;
(ii) Individuals who, as of the date hereof, constitute the
Board of Directors (the "Incumbent Board"), cease for any reason to
constitute at least a majority of the Board of Directors, provided
that any person becoming a director subsequent to the date hereof
whose election, or nomination for election by the Sponsor's
stockholders, is approved by a vote of at least a majority of the
directors then comprising the Incumbent Board (other than an
election or nomination of an individual whose initial assumption of
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office is in connection with an actual or threatened election
contest relating to the election of the directors of the Sponsor, as
such terms are used in Rule 14a-11 of Regulation 14A promulgated
under the Exchange Act) shall, for the purposes of this Plan, be
considered as though such person were a member of the Incumbent
Board of the Sponsor;
(iii) The consummation of a merger, consolidation or
reorganization involving the Sponsor, other than one which satisfies
both of the following conditions:
(A) a merger, consolidation or reorganization which
would result in the voting securities of the Sponsor
outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into
voting securities of another entity) at least 55% of the
combined voting power of the voting securities of the Sponsor
or such other entity resulting from the merger, consolidation
or reorganization (the "Surviving Corporation") outstanding
immediately after such merger, consolidation or reorganization
and being held in substantially the same proportion as the
ownership in the Sponsor's voting securities immediately
before such merger, consolidation or reorganization, and
(B) a merger, consolidation or reorganization in which
no Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Sponsor representing 20% or
more of the combined voting power of the Sponsor's then
outstanding voting securities; or
(iv) The stockholders of the Sponsor approve a plan of
complete liquidation of the Company or an agreement for the sale or
other disposition by the Company of all or substantially all of the
Company's assets.
Notwithstanding the preceding provisions of this Paragraph (b), a Change
in Control shall not be deemed to have occurred if the Person described in
the preceding provisions of this Paragraph (b) is (1) an underwriter or
underwriting syndicate that has acquired any of the Sponsor's then
outstanding voting securities solely in connection with a public offering
of the Sponsor's securities, (2) the Sponsor or any subsidiary of the
Sponsor or (3) an employee stock ownership plan or other employee benefit
plan maintained by the Company that is qualified under the provisions of
the Code. In addition, notwithstanding the preceding provisions of this
Paragraph (b), a Change in Control shall not be deemed to have occurred
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if the Person described in the preceding provisions of this Paragraph (b)
becomes a Beneficial Owner of more than the permitted amount of
outstanding securities as a result of the acquisition of voting securities
by the Sponsor which, by reducing the number of voting securities
outstanding, increases the proportional number of shares beneficially
owned by such Person, provided, that if a Change in Control would occur
but for the operation of this sentence and such Person becomes the
Beneficial Owner of any additional voting securities (other than through
the exercise of options granted under any stock option plan of the Sponsor
or through a stock dividend or stock split), then a Change in Control
shall occur."
IN WITNESS WHEREOF, Allergan, Inc. hereby executes this Fifth Amendment
on the 30th day of December, 1999.
ALLERGAN, INC.
BY: /s/ Francis R. Tunney, Jr.
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Francis R. Tunney, Jr.,
Corporate Vice President--Administration,
General Counsel and Secretary