exv4w1






Exhibit 4.1




SECOND AMENDMENT TO RIGHTS AGREEMENT




     THIS SECOND AMENDMENT (“Second Amendment”), dated as of December 10, 2008, is by and between
Santarus, Inc., a Delaware corporation (the “Company”), and American Stock Transfer & Trust
Company, a New York corporation, as Rights Agent (the “Rights Agent”). Capitalized terms used but
not otherwise defined herein shall have the meanings ascribed to them in the Rights Agreement.



     WHEREAS, the Company and the Rights Agent previously entered into that certain Rights
Agreement, dated as of November 12, 2004, as amended by that certain First Amendment to Rights
Agreement, dated as of April 19, 2006 (the “Rights Agreement”);



     WHEREAS, Cosmo Technologies Limited, a corporation incorporated and existing under the laws of
Ireland, and the Company have entered into a series of transactions (the “Cosmo Transactions”),
pursuant to the terms of that certain License Agreement, dated as of December 10, 2008, by and
between the Company and Cosmo and that certain Stock Issuance Agreement, dated as of December 10,
2008, by and between the Company and Cosmo (collectively, the “Cosmo Transaction Documents”);



     WHEREAS, the Board of Directors of the Company has approved the Cosmo Transaction Documents
and the Cosmo Transactions; and



     WHEREAS, pursuant to Section 26 of the Rights Agreement, the Board of Directors of the Company
has determined that an amendment to the Rights Agreement as set forth herein is necessary and
desirable to reflect the foregoing and certain other matters and the Company and the Rights Agent
desire to evidence such amendment in writing.



     NOW, THEREFORE, in consideration of the foregoing premises and mutual agreements set forth in
this Second Amendment, the parties hereby amend the Rights Agreement as follows:



     1. Section 1.1 of the Rights Agreement is hereby modified, amended and restated in its
entirety 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 an Exempt Person (as such term is hereinafter defined).




     Notwithstanding the foregoing:




     (i) Westfield Capital Management Co. LLC, together with all of its Affiliates and
Associates (“Westfield Capital”), shall not be deemed to be an Acquiring Person, but
only so long as (A) Westfield Capital is the Beneficial Owner of less than 20% of the Common Shares of the Company outstanding and (B) Westfield
Capital reports or is required to report such ownership on Schedule 13G or



 









 







Schedule 13D of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (or any
comparable or successor report), which Schedule 13G or Schedule 13D does not state or is
not required to state any present intention to hold such Common Shares with the purpose
or effect of changing or influencing the control of the Company, nor in connection with
or as a participant in any transaction having such purpose or effect;




     (ii) Cosmo Technologies Limited, together with all of its Affiliates and Associates
(“Cosmo”), shall not be deemed to be an Acquiring Person, but only so long as (A) Cosmo
is the Beneficial Owner of less than 10,300,000 Common Shares of the Company, (B) all
Common Shares of the Company of which Cosmo is the Beneficial Owner are acquired
pursuant to or otherwise in accordance with the terms of that certain Stock Issuance
Agreement, dated as of December 10, 2008, by and between the Company and Cosmo
Technologies Limited, as it may be amended or supplemented from time to time, and (C)
Cosmo reports or is required to report such ownership on Schedule 13G or Schedule 13D of
the Exchange Act (or any comparable or successor report), which Schedule 13G or Schedule
13D does not state or is not required to state any present intention to hold such Common
Shares with the purpose or effect of changing or influencing the control of the Company,
nor in connection with or as a participant in any transaction having such purpose or
effect.




     (iii) 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 (or 20% or more in the case of Westfield Capital) of the Common Shares of the
Company then outstanding; provided, however, that if a Person shall become the
Beneficial Owner of 15% or more (or 20% or more in the case of Westfield Capital) 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 (or 20% or more in the case of Westfield Capital) of the shares of Common Stock then outstanding; and




     (iv) 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 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 Exchange Act, as in effect on the date of this
Agreement.”



     2. This Second Amendment shall be effective as of the date hereof and, except as expressly set
forth herein, the Rights Agreement shall remain in full force and effect and be otherwise
unaffected hereby.



     3. This Second Amendment may be executed in any number of counterparts, each of which, when
executed, shall be deemed to be an original and all such counterparts shall together constitute one
and the same document.



     4. If any term, provision, covenant or restriction of this Second Amendment is held by a court
of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Second Amendment shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.



     5. This Second Amendment shall be deemed to be a contract made under the laws of the State of
Delaware and for all purposes shall be governed by and construed in accordance with the laws of
such State applicable to contracts to be made and performed entirely within such State.



[Remainder of Page Left Blank Intentionally]




 









 








     IN WITNESS WHEREOF, the parties have executed this Second Amendment as of the date first
written above.



	 	 	 	 	 
	 	SANTARUS, INC.

 	 
	 	By:  	/s/ Gerald T. Proehl
 	 
	 	 	Name:  	Gerald T. Proehl 	 
	 	 	Title:  	President and Chief Executive Officer 	 
	 
	 	AMERICAN STOCK TRANSFER & TRUST COMPANY

 	 
	 	By:  	/s/ Herbert J. Lemmer
 	 
	 	 	Name:  	Herbert J. Lemmer 	 
	 	 	Title:  	Vice President