Exhibit 4.2
FIRST AMENDMENT
TO THE
RIGHTS AGREEMENT
BETWEEN
DOCUMENTUM, INC.
AND
EQUISERVE TRUST COMPANY, N.A.
This First Amendment to the Rights Agreement (the "AMENDMENT") is made
and entered into as of October 13, 2003 between Documentum, Inc., a Delaware
corporation (the "COMPANY"), and EquiServe Trust Company, N.A., as Rights Agent
(as successor in interest to BankBoston N.A.) (the "RIGHTS AGENT").
R E C I T A L S
WHEREAS, the Company and the Rights Agent entered into the Rights
Agreement dated as of February 3, 1999 (the "RIGHTS AGREEMENT");
WHEREAS, Section 27 of the Rights Agreement provides that, prior to the
Distribution Date (as defined in the Rights Agreement), the Company may
supplement or amend the Rights Agreement in any respect without the approval of
any holders of Rights;
WHEREAS, the Company, XXX Xxxxxxxxxxx, a Massachusetts corporation (the
"PARENT"), and Elite Merger Corporation, a Delaware corporation and a wholly
owned subsidiary of the Parent (the "TRANSITORY SUBSIDIARY") intend to enter
into an Agreement and Plan of Merger (the "MERGER AGREEMENT") pursuant to which,
among other things, Transitory Subsidiary will merge with and into the Company
(the "MERGER") and the outstanding shares of Common Stock, par value $0.001 per
share, of the Company (the "COMPANY COMMON STOCK") together with each associated
Right (as defined in the Rights Agreement) will be converted into the right to
receive a certain number of shares of Common Stock, par value $0.01 per share,
of the Parent ("PARENT COMMON STOCK"), upon surrender of the certificate
representing such share of Company Common Stock, upon the terms and subject to
the conditions of the Merger Agreement;
WHEREAS, on October 13, 2003, the Board of Directors of the Company
resolved to amend the Rights Agreement to exempt the Merger, the Merger
Agreement and the other transactions specifically contemplated thereby from the
application of the Rights Agreement; and
WHEREAS, the Company intends to modify the terms of the Rights
Agreement in certain respects as set forth herein, and in connection therewith,
is entering into this Amendment and directing the Rights Agent to enter into
this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Capitalized Terms. All capitalized, undefined terms used in this
Amendment shall have the meanings assigned thereto in the Rights Agreement.
2. Amendments.
(a) Section 1(a) of the Rights Agreement is hereby amended by
adding the following new paragraph to the end of Section 1(a):
"Notwithstanding anything in this Agreement that might otherwise be
deemed to the contrary, neither XXX Xxxxxxxxxxx, a Massachusetts corporation
(the "PARENT"), nor Elite Merger Corporation, a Delaware corporation and a
wholly owned subsidiary of the Parent (the "TRANSITORY SUBSIDIARY"), nor any of
such parties' Affiliates or Associates shall be deemed to be an Acquiring Person
solely by reason of: (i) the approval, execution or delivery of that certain
Agreement and Plan of Merger (the "MERGER AGREEMENT") by and among the Company,
the Parent and the Transitory Subsidiary, pursuant to which the Transitory
Subsidiary shall be merged with and into the Company, and the Company shall
continue as the surviving corporation and as a wholly owned subsidiary of Parent
(the "MERGER"), including any amendment or supplement to the Merger Agreement;
(ii) the acquisition of Common Shares (including the conversion of shares of
common stock of the Transitory Subsidiary into Common Shares) pursuant to the
Merger Agreement; or (iii) the consummation of the Merger or the other
transactions contemplated by the Merger Agreement, each upon the terms and
subject to the conditions of the Merger Agreement."
(b) Section 1(g) of the Rights Agreement is hereby amended by
adding the following new paragraph to the end of Section 1(g):
"Notwithstanding anything in this Agreement that might otherwise be
deemed to the contrary, no Distribution Date shall be deemed to have occurred by
reason of: (i) the approval, execution or delivery of the Merger Agreement,
including any amendment or supplement thereto; (ii) the acquisition of Common
Shares (including the conversion of shares of common stock of the Transitory
Subsidiary into Common Shares) pursuant to the Merger Agreement; or (iii) the
consummation of the Merger or the other transactions contemplated by the Merger
Agreement, each upon the terms and subject to the conditions of the Merger
Agreement."
(c) Section 1(h) of the Rights Agreement is hereby amended and
restated in its entirety to read as follows:
" "FINAL EXPIRATION DATE" shall mean the earlier to occur of (i)
immediately prior to the Effective Time (as defined in the Merger Agreement) and
(ii) Close of Business on February 3, 2009."
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(d) Section 1(n) of the Rights Agreement is hereby amended by
adding the following new paragraph to the end of Section 1(n):
"Notwithstanding anything in this Agreement that might otherwise be
deemed to the contrary, no Shares Acquisition Date shall be deemed to have
occurred by reason of: (i) the approval, execution or delivery of the Merger
Agreement, including any amendment or supplement thereto, in connection with the
execution of the Merger Agreement; (ii) the acquisition of Common Shares
(including the conversion of shares of common stock of the Transitory Subsidiary
into Common Shares) pursuant to the Merger Agreement; or (iii) the consummation
of the Merger or the other transactions contemplated by the Merger Agreement,
each upon the terms and subject to the conditions of the Merger Agreement."
(e) Section 7(a) of the Rights Agreement is hereby amended and
restated in its entirety to read as follows:
"(a) The registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein) in whole or in
part at any time after the Distribution Date upon surrender of the Right
Certificate, with the form of election to purchase on the reverse side thereof
duly executed, to the Rights Agent at the office of the Rights Agent designated
for such purpose, together with payment of the Purchase Price for each one
one-hundredth of a Preferred Share (or such other number of shares or other
securities) as to which the Rights are exercised, at or prior to the earliest of
(i) the Final Expiration Date, (ii) the time at which the Rights are redeemed as
provided in Section 23 hereof (the "Redemption Date"), or (iii) the time at
which such Rights are exchanged as provided in Section 24 hereof.
Notwithstanding anything in this Agreement that might otherwise be deemed to the
contrary, none of (i) the approval, execution or delivery of the Merger
Agreement, including any amendment or supplement thereto, in connection with the
execution of the Merger Agreement; (ii) the acquisition of Common Shares
(including the conversion of shares of common stock of the Transitory Subsidiary
into Common Shares) pursuant to the Merger Agreement; or (iii) the consummation
of the Merger or the other transactions contemplated by the Merger Agreement,
each upon the terms and subject to the conditions of the Merger Agreement, shall
be deemed to be events that cause the Rights to become exercisable pursuant to
the provisions of this Section 7 or otherwise."
(f) Section 13 of the Rights Agreement is hereby amended by
adding the following new sentence to the end of Section 13:
Notwithstanding anything in this Agreement that might otherwise be
deemed to the contrary, none of (i) the approval, execution or delivery of the
Merger Agreement, including any amendment or supplement thereto, in connection
with the execution of the Merger Agreement; (ii) the acquisition of Common
Shares (including the conversion of shares of common stock of the Transitory
Subsidiary into Common Shares) pursuant to the Merger Agreement; or (iii) the
consummation of the Merger or the other transactions contemplated by the Merger
Agreement, each upon the terms and subject to the conditions of the Merger
Agreement, shall be deemed to be events of the type described in this Section 13
or to cause the Rights to become exercisable pursuant to the provisions of this
Section 13 or otherwise.
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(g) Section 21 of the Rights Agreement is hereby amended and
restated in its entirety to read as follows:
"Section 21. Change of Rights Agent. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this Agreement
upon 30 days' notice in writing mailed to the Company and to each transfer agent
for the Common Shares or Preferred Shares by registered or certified mail, and
to the holders of the Rights Certificates by first-class mail. In the event the
transfer agency relationship in effect between the Company and the Rights Agent
terminates, the Rights Agent will be deemed to resign automatically on the
effective date of such termination; and any required notice will be sent by the
Company. The Company may remove the Rights Agent or any successor Rights Agent
upon 30 days' notice in writing, mailed to the Rights Agent or successor Rights
Agent, as the case may be, and to each transfer agent for the Common Shares or
Preferred Shares by registered or certified mail, and to the holders of the
Rights Certificates by first-class mail. If the Rights Agent shall resign or be
removed or shall otherwise become incapable of acting, the Company shall appoint
a successor to the Rights Agent. If the Company shall fail to make such
appointment within a period of 30 days after giving notice of such removal or
after it has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Rights Agent or by the holder of a Rights Certificate
(who shall, with such notice, submit his or her Rights Certificate for
inspection by the Company), then the registered holder of any Rights Certificate
may apply to any court of competent jurisdiction for the appointment of a new
Rights Agent. Any successor Rights Agent, whether appointed by the Company or by
such a court, shall be either (a) a corporation, business trust or limited
liability company organized and doing business under the laws of the United
States or of any state of the United States which is authorized under such laws
to exercise corporate trust or stock transfer powers and is subject to
supervision or examination by federal or state authority and which has at the
time of its appointment as Rights Agent a combined capital and surplus of at
least $50 million or (b) a direct or indirect wholly-owned subsidiary of such
and entity or its wholly-owned parent. After appointment, the successor Rights
Agent shall be vested with the same powers, rights, duties and responsibilities
as if it had been originally named as Rights Agent without further act or deed;
but the predecessor Rights Agent shall deliver and transfer to the successor
Rights Agent any property at the time held by it hereunder, and execute and
deliver any further assurance, conveyance, act or deed necessary for the
purpose. Not later than the effective date of any such appointment, the Company
shall file notice thereof in writing with the predecessor Rights Agent and each
transfer agent for the Common Shares or Preferred Shares, and mail a notice
thereof in writing to the registered holders of the Rights Certificates. Failure
to give any notice provided for in this Section 21, however, or any defect
therein, shall not affect the legality or validity of the resignation or removal
of the Rights Agent or the appointment of the successor Rights Agent, as the
case may be."
(h) Section 27 of the Rights Agreement is hereby amended by
adding the following new paragraph to the end of Section 27:
"Notwithstanding anything to the contrary contained herein, Rights
Agent shall not be liable for any delays or failures in performance resulting
from acts beyond its reasonable control including, without limitation, acts of
God, terrorist acts, shortage of supply, breakdowns or malfunctions,
interruptions or malfunction of computer facilities, or loss of data due to
power failures or
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mechanical difficulties with information storage or retrieval systems, labor
difficulties, war or civil unrest."
3. Effective Date. This Amendment shall become effective as of the date
first above written but such effectiveness is contingent upon the execution and
delivery of the Merger Agreement by the Company.
4. Effect of Amendment. Except as expressly provided herein, the Rights
Agreement shall be and remain in full force and effect.
5. Governing Law. This 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.
6. Counterparts. This Amendment may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
7. Certification. The undersigned officer of the Company, being an
appropriate officer of the Company and authorized to do so by resolution of the
Board of Directors of the Company duly adopted and approved at a meeting held
October 13, 2003, hereby certifies to the Rights Agent that this amendment is in
compliance with Section 27 of the Rights Agreement.
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IN WITNESS WHEREOF, the Company and the Rights Agent have caused this
Amendment to be duly executed as of the day first above written.
DOCUMENTUM, INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
EQUISERVE TRUST COMPANY, N.A.
By: /s/ Xxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxx X. Xxxxxxxx
Title: Managing Director
