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 ”), Albert
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 ”), Albert
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
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