exv4w4






Exhibit 4.4




AVANIR PHARMACEUTICALS

AMENDMENT NO. 3 TO RIGHTS AGREEMENT




     This Amendment No. 3 (this “Amendment”) to the Rights Agreement dated as of March 5, 1999, as
amended on November 30, 1999 and April 4, 2008 (the “Rights Agreement”), is entered into as of
November 11, 2008, by and between Avanir Pharmaceuticals, a California corporation (the “Company”),
and American Stock Transfer & Trust Company, a New York corporation (the “Rights Agent”).
Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in
the Rights Agreement.



RECITALS




     WHEREAS, pursuant to Section 26 of the Rights Agreement, the Company may, from time to time,
supplement or amend any provision of the Rights Agreement without the approval of any holders of
Rights in order to make any changes or provisions in regard to matters or questions arising under
the Rights Agreement that the Company may deem necessary or desirable;



     WHEREAS, pursuant to Section 1.1 of the Rights Agreement, any Person who, together with all of
its Affiliates and Associates, shall be a Beneficial Owner of 15% or more of the Common Shares of
the Company then outstanding, shall be deemed an Acquiring Person; and



     WHEREAS, the Company desires to amend the Rights Agreement as set forth below to provide for
an increase in a Person’s beneficial ownership to 20% or more of the Common Shares of the Company
then outstanding before such Person shall be deemed an Acquiring Person.



AGREEMENT




     NOW, THEREFORE, in consideration of the promises and the mutual agreements herein set forth,
the parties 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” means any Person (as such term is hereinafter defined) who
or which, together with all Affiliates and Associates (as such terms are hereinafter
defined) of that Person, shall be the Beneficial Owner (as such term is hereinafter
defined) of 20% 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) or (ii)
if, as of November 11, 2008, any Person is the Beneficial Owner of 20% 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 (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 20% or more of the Common Shares then outstanding.
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 20% or more of the Common Shares of the Company
then outstanding; provided, however, that if a



 









 







Person shall become the Beneficial Owner of 20% 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 20% 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 no 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
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 the date of
this Agreement.”


2. Section 1.14 of the Rights Agreement is hereby deleted in its entirety.



3. Section 1.42 of the Rights Agreement is hereby deleted in its entirety.



4. Section 1.43 of the Rights Agreement is hereby deleted in its entirety.



5. The first sentence of Section 3.1 of the Rights Agreement is hereby amended and restated in its
entirety to read as follows:





“Until the earlier of (i) the tenth day after the Shares Acquisition Date or (ii) the tenth
Business Day after the date of the commencement of, or first public announcement of the
intent of any Person (other than an Exempt Person) to commence, a tender or exchange offer
the consummation of which would result in any Person (other than an Exempt Person) becoming
the Beneficial Owner of Common Shares aggregating 20% or more of the then outstanding Common
Shares of the Company (the earlier of (i) and (ii) being herein referred to as the
“Distribution Date”), (x) the Rights (unless earlier expired, redeemed or terminated) will
be evidenced (subject to the provisions of Section 3.2) by the certificates for Common
Shares registered in the names of the holders thereof (which certificates for Common Shares
shall also be deemed to be Right Certificates) and not by separate certificates, and (y) the
Rights (and the right to receive certificates therefor) will be transferable only in
connection with the transfer of the underlying Common Shares.”



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4. By execution of this Agreement, the Company shall not be deemed to have compromised or waived
any of its rights under the Rights Agreement.



5. Except as expressly modified herein, all terms and conditions of the Rights Agreement shall
continue in full force and effect.




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     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of
the day and year first above written. This Amendment may be executed in one or more counterparts,
all of which shall be considered one and the same amendment, and each of which shall be deemed to
be an original.



	 	 	 	 	 
	AVANIR PHARMACEUTICALS	 	 
	 
	 	 	 	 
	By: 

Name:

	 	/s/ Christine G. Ocampo
 

Christine G. Ocampo
	 	 
	Title:

	 	Vice President, Finance	 	 
	 
	 	 	 	 
	AMERICAN STOCK TRANSFER &

TRUST COMPANY, as Rights Agent	 	 
	 
	 	 	 	 
	By: 

Name:

	 	/s/ Herbert J. Lemmer
 

Herbert J. Lemmer
	 	 
	Title:

	 	Vice President	 	 






[Signature Page to Amendment No. 3 to Rights Agreement]