Exhibit 2
AMENDMENT NUMBER ONE
TO
AMENDED AND RESTATED PREFERRED SHARES RIGHTS AGREEMENT
Amendment Number One, dated as of March 22, 1999 (the "Amendment"), to
Amended and Restated Preferred Shares Rights Agreement dated as of March 31,
1998 (the "Rights Agreement"), between Oracle Corporation, a Delaware
corporation (the "Company"), and BankBoston, N.A., a national banking
association (the "Rights Agent").
RECITALS
Section 27 of the Rights Agreement permits the Company to amend the Rights
Agreement as contemplated by this Amendment.
AGREEMENT
Accordingly, in consideration of the premises and the mutual agreements
herein set forth, the parties hereto hereby agree as follows:
Section 1. Section 1(a) of the Rights Agreement is amended to read in full
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as follows:
"(a) "Acquiring Person" shall mean any Person who or which, together
----------------
with all Affiliates and Associates of such Person, shall be the Beneficial Owner
of 15% or more of the Common Shares then outstanding, but shall not include the
Company, any Subsidiary of the Company or any employee benefit plan of the
Company or of any Subsidiary of the Company, or any entity holding Common Shares
for or pursuant to the terms of any such plan. Notwithstanding the foregoing,
no Person shall be deemed to be an Acquiring Person either (i) as the result of
the acquisition of Common Shares by the Company which, by reducing the number of
Common Shares outstanding, increases the proportionate number of Common Shares
beneficially owned by such Person to 15% or more of the Common Shares of the
Company then outstanding; provided, however, that if a Person shall become the
Beneficial Owner of 15% or more of the Common Shares of the Company then
outstanding by reason of share purchases by the Company and shall, after such
share purchases by the Company, become the Beneficial Owner of any 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; or (ii) (x) if a majority of
the members of 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 paragraph (a), has become such inadvertently
(including, without limitation, because (A) such Person was unaware that it
beneficially owned a percentage of the Common Shares that would otherwise cause
such Person to be an "Acquiring Person," as defined pursuant to the foregoing
provisions of this paragraph (a), or (B) such Person was aware of the extent of
the Common Shares it
beneficially owned 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 (y) if such Person
divested or 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 paragraph (a), then such
Person shall not be deemed to be or to have become an "Acquiring Person" for
any purposes of this Agreement. Furthermore, notwithstanding the foregoing,
(1) Xxxxxxxx X. Xxxxxxx ("Xxxxxxx"), and his Affiliates and Associates,
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shall not be or become an Acquiring Person on account of the beneficial
ownership of Common Shares of the Company by any of them, so long as Xxxxxxx,
and his Affiliates and Associates (other than the Company, any Subsidiary of the
Company, or any employee benefit plan of the Company or any Subsidiary of the
Company, or any entity holding Common Shares for or pursuant to the terms of any
such plan) do not, after the date hereof, acquire from any third party other
than the Company, in the aggregate, beneficial ownership of more than an
additional 1% of the Company's Common Shares then outstanding; and
(2) No Successor of Xxxxxxx, his Affiliates and Associates, or any
Affiliate, Associate or Successor of such Successor, shall become an Acquiring
Person on account of Common Shares received directly or indirectly from Xxxxxxx,
so long as such Successor, Affiliate or Associate does not thereafter acquire
from any third party other than the Company, in the aggregate, beneficial
ownership of more than an additional 1% of the Company's Common Shares then
outstanding."
Section 2. Section 1(d) of the Rights Agreement is amended to read in full
---------
as follows:
"(d) "Business Day" shall mean any day other than a Saturday, Sunday or a
------------
day on which banking institutions in the Commonwealth of Massachusetts are
authorized or obligated by law or executive order to close."
Section 3. Section 1(g) of the Rights Agreement is amended to read in full
---------
as follows:
"(g) Intentionally Omitted"
---------------------
Section 4. Section 1(h) of the Rights Agreement is amended to read in full
---------
as follows:
"(h) "Distribution Date" shall mean the earlier of (i) the Close of
-----------------
Business on the tenth day (or such later date as may be determined by action of
a majority of the members of the Board of Directors of the Company) after the
Shares Acquisition Date (or, if the tenth day after the Shares Acquisition Date
occurs before the Record Date, the Close of Business on the Record Date) or (ii)
the Close of Business on the tenth day (or such later date as may be determined
by action of a majority of the members of the Board of Directors of the Company)
after the date that a tender or exchange offer by any Person (other than the
Company, any Subsidiary of the Company, any employee benefit plan of the Company
or of any Subsidiary of the Company, or
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any Person or entity organized, appointed or established by the Company for or
pursuant to the terms of any such plan) is first published or sent or given
within the meaning of Rule 14d-2(a) of the General Rules and Regulations under
the Exchange Act, if, assuming the successful consummation thereof, such
Person would be the Beneficial Owner of 15% or more of the shares of Common
Stock then outstanding."
Section 5. Section 1(l) of the Rights Agreement is amended to read in full
---------
as follows:
"(1) "Permitted Offer" shall mean a tender offer for all outstanding
---------------
Common Shares made in the manner prescribed by Section 14(d) of the Exchange Act
and the rules and regulations promulgated thereunder; provided, however, that a
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majority of the Board has determined that the offer is both adequate and
otherwise in the best interests of the Company and its stockholders (taking into
account all factors that the Board deems relevant, including without limitation
prices that could reasonably be achieved if the Company or its assets were sold
on an orderly basis designed to realize maximum value)."
Section 6. Section 3(c) of the Rights Agreement is amended to read in full
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as follows:
"(c) Unless the Board of Directors, by resolution adopted at or
before the time of the issuance (including pursuant to the exercise of rights
under the Company's benefit plans) of any Common Shares, specifies to the
contrary, Rights shall be issued in respect of all Common Shares that are issued
after the date of this Agreement but prior to the earlier of the Distribution
Date or the Expiration Date or, in certain circumstances provided in Section 22
of this Agreement, after the Distribution Date. Certificates representing such
Common Shares shall also be deemed to be certificates for Rights, and shall bear
the following legend:
This certificate also evidences and entitles the holder hereof to certain
rights as set forth in a Rights Agreement between Oracle Corporation and
Xxxxxx Trust Company of California, dated as of December 3, 1990, as such
may subsequently be amended (the "Rights Agreement"), the terms of which
----------------
are hereby incorporated herein by reference and a copy of which is on file
at the principal executive offices of Oracle Corporation. Under certain
circumstances, as set forth in the Rights Agreement, such Rights will be
evidenced by separate certificates and will no longer be evidenced by this
certificate. Oracle Corporation will mail to the holder of this
certificate a copy of the Rights Agreement without charge after receipt of
a written request therefor. As described in Section 11(a)(ii) of the
Rights Agreement, Rights beneficially owned by any Person who becomes an
Acquiring Person (as defined in the Rights Agreement) and certain other
Persons shall become null and void.
With respect to such certificates containing the foregoing legend, until the
earlier of (i) the Distribution Date or (ii) the Expiration Date, the Rights
associated with the Common Shares represented by such certificates shall be
evidenced by such certificates alone, and the surrender for transfer of any such
certificate shall also constitute the transfer of the Rights associated with
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the Common Shares represented thereby. In the event that the Company purchases
or acquires any Common Shares after the Record Date but prior to the
Distribution Date, any Rights associated with such Common Shares shall be
deemed canceled and retired so that the Company shall not be entitled to
exercise any Rights associated with the Common Shares which are no longer
outstanding."
Section 7. Section 23(a) of the Rights Agreement is amended to read in
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full as follows:
"23. Redemption.
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(a) The Company may, at its option and with the approval of the Board
of Directors, at any time prior to the Close of Business on the earlier of (i)
the tenth day following the Shares Acquisition Date or such later date as may be
determined by action of a majority of the members of the Board of Directors of
the Company and publicly announced by the Company or (ii) the Final Expiration
Date, redeem all but not less than all the then outstanding Rights at a
redemption price of $0.000148 per Right, appropriately adjusted to reflect any
stock split, stock dividend or similar transaction occurring after the date of
this Agreement (such redemption price being herein referred to as the
"Redemption Price") and the Company may, at its option, pay the Redemption Price
-----------------
either in Common Shares (based on the current per share market price thereof (as
determined pursuant to Section 11(d) of this Agreement) at the time of
redemption) or cash."
Section 8. Section 26 of the Rights Agreement is amended to read in full as
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follows:
26. Notices. Notices or demands authorized by this Agreement to be given
-------
or made by the Rights Agent or by the holder of any Rights Certificate to or
on the Company shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed in writing
with the Rights Agent) as follows:
Oracle Corporation
000 Xxxxxx Xxxxxxx
Xxxxxxx Xxxx, XX 00000
Attention: General Counsel
Subject to the provisions of Section 21 of this Agreement, any notice or demand
authorized by this Agreement to be given or made by the Company or by the holder
of any Rights Certificate to or on the Rights Agent shall be sufficiently given
or made if sent by first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Company) as follows:
BankBoston, N.A.
c/o EquiServe Limited Partnership
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Client Administration
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Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Rights Certificate shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the registry
books of the Company.
Section 9. Section 27 of the Rights Agreement is amended to read in full
---------
as follows:
"27. Supplements and Amendments. Prior to the Distribution Date,
--------------------------
the Company, following the approval of a majority of the members of the Board of
Directors, may supplement or amend this Agreement in any respect without the
approval of any holders of Rights and the Rights Agent shall, if the Company
so directs, execute such supplement or amendment. From and after the
Distribution Date, the Company and the Rights Agent may from time to time
supplement or amend this Agreement without the approval of any holders of
Rights in order to (i) cure any ambiguity, (ii) correct or supplement any
provision contained herein which may be defective or inconsistent with any
other provisions herein, (iii) shorten or lengthen any time period hereunder
or (iv) to change or supplement the provisions hereunder in any manner that
the Company may deem necessary or desirable and that shall not adversely
affect the interests of the holders of Rights (other than an Acquiring Person
or an Affiliate or Associate of an Acquiring Person); provided, this Agreement
--------
may not be supplemented or amended to lengthen, pursuant to clause (iii) of
this sentence, (A) a time period relating to when the Rights may be redeemed
at such time as the Rights are not then redeemable or (B) any other time
period unless such lengthening is for the purpose of protecting, enhancing or
clarifying the rights of, and/or the benefits to, the holders of Rights. Upon
the delivery of a certificate from an appropriate officer of the Company that
states that the proposed supplement or amendment is in compliance with the
terms of this Section 27, the Rights Agent shall execute such supplement or
amendment. Prior to the Distribution Date, the interests of the holders of
Rights shall be deemed coincident with the interests of the holders of Common
Shares."
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Section 10. Section 29 of the Rights Agreement is amended to read in full
----------
as follows:
"29. Determinations and Actions by the Board of Directors, etc. 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. The
Board of Directors of the Company shall have the exclusive power and authority
to administer this Agreement and to exercise all rights and powers specifically
granted to the Board, or the Company, or as may be necessary or advisable in the
administration of this Agreement, including, without limitation, the right and
power to (i) interpret the provisions of this Agreement and (ii) make all
determinations deemed necessary or advisable for the administration of this
Agreement (including a determination to redeem or not redeem the Rights or to
amend the Agreement). All such actions, calculations, interpretations and
determinations (including, for purposes of clause (y) below, all omissions with
respect to the foregoing) which are done or made by the Board in good faith,
shall (x) be final, conclusive and binding on the Company, the Rights Agent, the
holders of the Rights Certificates and all other parties and (y) not subject the
Board or the members of the Board of Directors of the Company to any liability
to the holders of the Rights."
Section 11. Exhibits A and B to the Rights Agreement are hereby amended to
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read in full as set forth on Exhibits A and B hereto, respectively.
Section 12. All other terms of the Rights Agreement shall remain in
----------
effect, and all references in the Rights Agreement to the Rights Agreement shall
refer to the Rights Agreement, as amended by this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed, all as of the day and year first above written.
Company:
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ORACLE CORPORATION
By /s/ Xxxxxxx X. Xxxxxx
----------------------------
Xxxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
Rights Agent:
------------
BANKBOSTON, N.A.
By /s/ Xxxxxxxx X. Xxxxxxxx
-----------------------------
Xxxxxxxx X. Xxxxxxxx
Title: Administration Manager
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EXHIBIT A
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FORM OF RIGHTS CERTIFICATE
--------------------------
CERTIFICATE NO. R- ______ RIGHTS
NOT EXERCISABLE AFTER MARCH 31, 2008, OR EARLIER IF TERMINATED BY THE
COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE
COMPANY, AT $0.000148 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN
ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS
SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER
OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS
RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR
BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING
PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY,
THIS RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL
AND VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF SUCH RIGHTS
AGREEMENT.]/*/
RIGHTS CERTIFICATE
------------------
This certifies that ________________________, or registered assigns, is the
registered owner of the number of Rights set forth above, each of which entitles
the owner thereof, subject to the terms, provisions and conditions of the
Amended and Restated Preferred Shares Rights Agreement, dated as of March 31,
1998, as amended on March 22, 1999 (the "Rights Agreement"), between Oracle
----------------
Corporation, a Delaware corporation (the "Company"), and BankBoston, N.A. (the
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"Rights Agent"), to purchase from the Company at any time after the Distribution
-------------
Date (as such term is defined in the Rights Agreement) and prior to 5:00 P.M.,
Massachusetts time, on March 31, 2008, at the office of the Rights Agent
designated for such purpose, or at the office of its successor as Rights Agent,
one-six thousand seven hundred fiftieth of a fully paid non-assessable share of
Series A Junior Participating Preferred Stock (the "Preferred Shares") of the
----------------
Company at a purchase price of $125.00 per one-six thousand seven hundred
fiftieth of a Preferred Share (the "Purchase Price"), upon presentation and
--------------
surrender of this Rights Certificate with the Form of Election to Purchase and
related Certificate duly executed. The number of Rights evidenced by this
Rights Certificate (and the number of one-six thousand seven hundred fiftieths
of a Preferred Share which may be purchased upon exercise hereof) set forth
above, are the number and Purchase Price as of March 31, 1998, based on the
Preferred Shares as constituted at such date. As provided in the Rights
Agreement, the Purchase
-------------------
/*/ The portion of the legend in bracket shall be inserted only if applicable
and shall replace the preceding sentence.
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Price and the number and kind of Preferred Shares or other securities which
may be purchased upon the exercise of the Rights evidenced by this Rights
Certificate are subject to modification and adjustment upon the happening of
certain events.
This Rights Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Rights Certificates, which
limitations of rights include the temporary suspension of the exercisability of
such Rights under the specific circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the principal executive offices of
the Company and the above-mentioned office of the Rights Agent.
Subject to the provisions of the Rights Agreement, the Rights evidenced by
this Rights Certificate (i) may be redeemed by the Company, at its option, at a
redemption price of $0.000148 per Right or (ii) may be exchanged by the Company
in whole or in part for Common Shares, substantially equivalent rights or other
consideration as determined by the Company.
This Rights Certificate, with or without other Rights Certificates, upon
surrender at the office of the Rights Agent designated for such purpose, may be
exchanged for another Rights Certificate or Rights Certificates of like tenor
and date evidencing Rights entitling the holder to purchase a like aggregate
amount of securities as the Rights evidenced by the Rights Certificate or Rights
Certificates surrendered shall have entitled such holder to purchase. If this
Rights Certificate shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Rights Certificate or Rights Certificates
for the number of whole Rights not exercised.
At the election of the Company, no fractional portion less than integral
multiples of one-six thousand seven hundred fiftieth of a Preferred Share will
be issued upon the exercise of any Right or Rights evidenced hereby but in lieu
thereof a cash payment will be made, as provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of the Preferred
Shares or of any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Rights
Certificate shall have been exercised as provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by an authorized signatory of the Rights
Agent.
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WITNESS the facsimile signature of the proper officers of the Company and
its corporate seal. Dated as of ________________, 199__.
ATTEST: ORACLE CORPORATION
----------------------------------- By:
Secretary --------------------------
Countersigned:
BANKBOSTON, N.A.
as Rights Agent
By:
--------------------------------
Authorized Signatory
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FORM OF REVERSE SIDE OF RIGHTS CERTIFICATE
FORM OF ASSIGNMENT
(TO BE EXECUTED BY THE REGISTERED HOLDER IF SUCH HOLDER DESIRES TO TRANSFER THE
RIGHTS CERTIFICATE)
FOR VALUE RECEIVED ___________________ HEREBY SELLS, ASSIGNS AND TRANSFERS UNTO
______________________________________________________________________________
(PLEASE PRINT NAME AND ADDRESS OF TRANSFEREE)
______________________________________________________________________________
THIS RIGHTS CERTIFICATE, TOGETHER WITH ALL RIGHT, TITLE AND INTEREST THEREIN,
AND DOES HEREBY IRREVOCABLY CONSTITUTE AND APPOINT ___________________________
ATTORNEY, TO TRANSFER THE RIGHTS CERTIFICATE ON THE BOOKS OF THE WITHIN-NAMED
COMPANY, WITH FULL POWER OF SUBSTITUTION.
DATED:________________, ____
____________________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., a commercial bank or trust company having an office or correspondent in
the United States or any other member of a medallion signature guarantee program
approved by the Securities Transfer Association.
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CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is not being sold, assigned
and transferred by or on behalf of a Person who is or was an Acquiring Person,
or an Affiliate or Associate of any such Person (as such terms are defined in
the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate
from any Person who is, was or subsequently became an Acquiring Person or an
Affiliate or Associate of any such Person.
Dated:_______________________, ____
______________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., a commercial bank or trust company having an office or correspondent in
the United States or any other member of a medallion signature guarantee program
approved by the Securities Transfer Association.
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Form of Reverse Side of Rights Certificate -- continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise the Rights Certificate)
To:_____________________________________
The undersigned hereby irrevocably elects to exercise _____________ Rights
represented by this Rights Certificate to purchase the number of one-six
thousand seven hundred fiftieths of a Preferred Share issuable upon the exercise
of such Rights and requests that certificates for such number of one-six
thousand seven hundred fiftieths of a Preferred Share be issued in the name of:
Please insert social security or other identifying number
________________________________________________________________________________
(Please print name and address)
________________________________________________________________________________
If such number of Rights shall not be all the Rights evidenced by this Rights
Certificate, a new Rights Certificate for the balance shall be registered in the
name of and delivered to:
Please insert social security or other identifying number
________________________________________________________________________________
(Please print name and address)
________________________________________________________________________________
Dated:_________________, ____
________________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., a commercial bank or trust company having an office or correspondent in
the United States or any other member of a medallion signature guarantee program
approved by the Securities Transfer Association.
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CERTIFICATE
-----------
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are
not being exercised by or on behalf of a Person who is or was an Acquiring
Person or an Affiliate or Associate of any such Person (as such terms are
defined in the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate
from any Person who is, was or subsequently became an Acquiring Person or an
Affiliate or Associate of any such Person.
Dated:___________________, ____
______________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., a commercial bank or trust company having an office or correspondent in
the United States or any other member of a medallion signature guarantee program
approved by the Securities Transfer Association.
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Form of Reverse Side of Rights Certificate -- continued
NOTICE
------
The signature in the foregoing Forms of Assignment and Election must
conform to the name as written upon the face of this Rights Certificate in every
particular, without alteration or enlargement or any change whatsoever.
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EXHIBIT B
---------
SUMMARY OF RIGHTS TO
PURCHASE PREFERRED SHARES
On December 3, 1990, the Board of Directors of Oracle Corporation (the
"Company") declared a dividend of one preferred share purchase right (a "Right")
for each outstanding share of common stock, par value $0.01 per share (the
"Common Shares"), of the Company. The dividend was paid to stockholders of
record on December 31, 1990 (the "Record Date"). On each of January 10, 1994,
March 31, 1998 and March 22, 1999, the Company amended the terms of the Rights.
As of the date hereof, if certain events related to an unsolicited takeover
attempt occur, each Right entitles the registered holder to purchase from the
Company one-six thousand seven hundred fiftieth of a share of Series A Junior
Participating Preferred Stock, par value $0.01 per share (the "Preferred
Shares"), of the Company, at a price of $125.00 per one-six thousand seven
hundred fiftieth of a Preferred Share (the "Purchase Price"), subject to
adjustment. The description and terms of the Rights are set forth in an Amended
and Restated Preferred Shares Rights Agreement (the "Rights Agreement") between
the Company and BankBoston, N.A., as Rights Agent, dated as of March 31, 1998,
and amended as of March 22, 1999. The amendment to the Rights Agreement entered
into on March 22, 1999 removed from the Rights Agreement all references, and
requirements relating to, Continuing Directors. All numbers set forth in this
description have been adjusted to reflect a three for two stock split, effected
in the form of a stock dividend, which was effective February 26, 1999. As a
result of such stock split, each Common Share has associated with it two-thirds
of a right.
Until the earlier to occur of (i) 10 days (or such later date as may be
determined by action of a majority of the Company's Directors) following a
public announcement that a person, or group of affiliated or associated persons
(an "Acquiring Person"), has acquired beneficial ownership of 15% or more of the
outstanding Common Shares (the date of such announcement being the "Shares
Acquisition Date") or (ii) 10 days (or such later date as may be determined by
action of a majority of the Company's Directors) following the date that a
tender offer or exchange offer is first published or sent, the consummation of
which would result in the beneficial ownership by a person or group of 15% or
more of such outstanding Common Shares (the earlier of such dates being called
the "Distribution Date"), the Rights will be evidenced by such Common Share
certificates and no separate Rights Certificates will be distributed.
The Rights Agreement provides that, until the Distribution Date, the Rights
will be transferred with and only with the Common Shares. Until the
Distribution Date (or earlier redemption or expiration of the Rights), new
Common Share certificates issued upon transfer or new issuance of Common Shares
will contain a notation incorporating the Rights Agreement by reference. Until
the Distribution Date (or earlier redemption or expiration of the Rights), the
surrender for transfer of any certificates for Common Shares, even without such
notation or a copy of the Summary of Rights being attached thereto, will also
constitute the transfer of the Rights associated with the Common Shares
represented by such certificate. As soon as practicable following the
Distribution Date, separate certificates evidencing the Rights ("Right
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Certificates") will be mailed to holders of record of the Common Shares as of
the close of business on the Distribution Date and such separate Right
Certificates alone will evidence the Rights.
The Rights Agreement provides that Xxxxxxxx X. Xxxxxxx and his affiliates,
associates and successors, certain successors thereto, or any other transferee
approved by the Company's Board of Directors shall not be or become an Acquiring
Person on account of the beneficial ownership of Common Shares of the Company by
any of them, so long as Xxxxxxx and his affiliates, associates and successors,
certain successors thereto, or any other transferee approved by the Company's
Board of Directors, do not acquire from any third party other than the Company,
in the aggregate, beneficial ownership of more than an additional 1% of the
Company's Common Shares.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on March 31, 2008 (the "Final Expiration Date"), unless the Final
Expiration Date is extended or unless the Rights are earlier redeemed or
exchanged by the Company, in each case, as described below.
The Purchase Price payable, and the number of Preferred Shares or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Preferred
Shares, (ii) upon the grant to holders of the Common Shares or Preferred Shares
of certain rights or warrants to subscribe for or purchase Common Shares or
Preferred Shares at a price, or securities convertible into Common Shares or
Preferred Shares with a conversion price, less than the then current market
price of the Common Shares or Preferred Shares or (iii) upon the distribution to
holders of the Common Shares or Preferred Shares of evidences of indebtedness or
assets (excluding regular periodic cash dividends paid out of earnings or
retained earnings or dividends payable in Common Shares) or of subscription
rights or warrants (other than those referred to above).
The number of Rights associated with each Common Share and the rights
associated with each Preferred Share are also subject to adjustment in the event
of a stock dividend on the Common Shares payable in Common Shares or
subdivisions, consolidations or combinations of the Common Shares occurring, in
any such case, prior to the Distribution Date.
Preferred Shares purchasable upon exercise of the Rights will not be
redeemable and are junior to any other series of preferred stock the Company may
issue (unless otherwise provided in the terms of such stock). Each Preferred
Share will be entitled to a quarterly dividend payment of 10,125 times the
dividend declared per Common Share. In the event of liquidation, each Preferred
Share will be entitled to a $10,125.00 preference, and thereafter the holders of
the Preferred Shares will be entitled to an aggregate payment of 10,125 times
the aggregate payment made per Common Share. Each Preferred Share will have
10,125 votes, voting together with the Common Shares. Finally, in the event of
any merger, consolidation or other transaction in which Common Shares are
exchanged, each Preferred Share will be entitled
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to receive 10,125 times the amount received per Common Share. These rights are
protected by customary antidilution provisions.
Because of the nature of the Preferred Shares' dividend, liquidation and
voting rights, the value of the one-six thousand seven hundred fiftieth interest
in a Preferred Share purchasable upon exercise of each Right should approximate
the value of one and one-half Common Shares.
In the event that, after the Shares Acquisition Date, the Company is acquired
in a merger or other business combination transaction or 50% or more of its
consolidated assets or earning power are sold, proper provision will be made so
that each holder of a Right, other than Rights beneficially owned by an
Acquiring Person, will thereafter have the right to receive, upon the exercise
thereof at the then current exercise price of the Right, that number of shares
of common stock of the acquiring company which at the time of such transaction
will have a market value of two times the exercise price of the Right. In the
event that any person becomes an Acquiring Person, proper provision shall be
made so that each holder of a Right, other than Rights beneficially owned by the
Acquiring Person (which will thereafter be void), will thereafter have the right
to receive upon exercise that number of Common Shares having a market value of
two times the exercise price of the Right. If the Company does not have
authorized but unissued Common Shares sufficient to satisfy such obligation to
issue Common Shares, the Company is obligated to deliver upon payment of the
exercise price of a Right an amount of cash or other securities equivalent in
value to the Common Shares issuable upon exercise of a Right.
At any time after any person becomes an Acquiring Person and prior to the
acquisition by such person or group of 50% or more of the outstanding Common
Shares, by a majority vote of the Board of Directors, the Company may exchange
the Rights (other than Rights owned by such person or group which have become
void), in whole or in part, for Common Shares at an exchange ratio of one and
one-half Common Shares per Right (subject to adjustment).
With certain exceptions, no adjustment in the Purchase Price will be required
until cumulative adjustments require an adjustment of at least 1% in such
Purchase Price. At the election of the Company, no fractional Preferred Shares
will be issued (other than fractions which are integral multiples of the one-six
thousand seven hundred fiftieths of a Preferred Share) and in lieu thereof, an
adjustment in cash will be made based on the market price of the Preferred
Shares on the last trading day prior to the date of exercise.
At any time prior to the earlier of (i) the close of business on the tenth day
following the Shares Acquisition Date, or such later date as may be determined
by a majority of the Company's Directors, and (ii) the expiration date of the
Rights, the Board of Directors of the Company may redeem the Rights in whole,
but not in part, at a price of $0.000148 per Right (the "Redemption Price").
The redemption of the Rights may be made effective at such time, on such basis
and with such conditions as the Board of Directors in its sole discretion may
establish.
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Immediately upon any redemption of the Rights, the right to exercise the
Rights will terminate and the only right of the holders of Rights will be to
receive the Redemption Price.
The terms of the Rights may be amended in any respect by the Board of
Directors of the Company without the consent of the holders of the Rights,
except that, from and after the Distribution Date, no such amendments shall be
made without the approval of the holders of the Rights other than amendments
made to (i) cure ambiguities, (ii) correct or supplement provisions that may be
defective or inconsistent with other provisions of the Rights Agreement, (iii)
shorten or lengthen any time period under the Rights Agreement, or (iv) change
or supplement the provisions of the Rights Agreement in any manner the Company
may deem necessary provided that such change or supplement does not adversely
affect the interests of the holders of the Rights (other than an Acquiring
Person). Notwithstanding the foregoing, the terms of the Rights may not be
supplemented or amended from and after the Distribution Date to lengthen a time
period relating to when the Rights may be redeemed at a time when the Rights are
not by their terms redeemable or lengthen any other time period unless such
lengthening is for the purpose of protecting, enhancing or clarifying the rights
of, and/or the benefits to, the holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will have no rights
as a stockholder of the Company, including, without limitation, the right to
vote or to receive dividends.
A copy of the Rights Agreement has been filed with the Securities and Exchange
Commission as an Exhibit to a Form 8-A/A amending a Registration Statement on
Form 8-A. A copy of the Rights Agreement is available free of charge from the
Company. This summary description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the Rights Agreement, which is
hereby incorporated herein by reference.
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