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EXHIBIT 2.3
AMENDMENT TO
SECOND AMENDED AND RESTATED
SHARES RIGHTS AGREEMENT
This amendment to the Second Amended and Restated Shares Rights
Agreement (the "Amendment"), dated as of April 14, 1999, is entered into by and
between Sun Microsystems, Inc., a Delaware corporation (the "Company"), and
BankBoston, N.A. (the "Rights Agent").
WHEREAS, the Company and the Rights Agent are parties to that certain
Second Amended and Restated Shares Rights Agreement dated as of February 11,
1998 (the "Rights Plan");
WHEREAS, the Rights Plan contains terms restricting the ability of the
Company's Board of Directors to amend the Rights Plan or redeem the Rights
issued thereunder under certain circumstances;
WHEREAS, the Board of Directors of the Company has determined that it is
in the best interests of the Company and its stockholders to amend the Rights
Plan to remove such terms as set forth herein and the Rights Agent has agreed to
the Amendment of Rights Plan as set forth herein; and
WHEREAS, pursuant to Section 27 of the Rights Plan, the Rights Plan may
be amended as set forth herein without approval of the holders of the Rights (as
defined in the Rights Plan).
NOW, THEREFORE, in consideration of the promises and the mutual
agreements herein set forth, the Company and the Rights Agent agree as follows:
1. Amendment of Rights Plan. Effective as of the date hereof,
(a) Each of Section 1(k) (definition of "Interested Person")
and Section 1(y) (definition of "Transaction") is
deleted from the Rights Plan in its entirety.
(b) Each of Section 23(c) (concerning redemption) and the
last sentence of Section 27 (concerning amendment) is
deleted from the Rights Plan in its entirety.
2. Rights Plan in Full Force and Effect. Except as amended hereby,
the Rights Plan shall remain in full force and effect.
3. 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
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contracts to be made and performed entirely within such State.
4. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
"COMPANY" SUN MICROSYSTEMS, INC.
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President, General Counsel
and Secretary
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"RIGHTS AGENT" BANKBOSTON, N.A.
By: /s/ XXXXXX XXXXXXXXXXX
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Name: Xxxxxx Xxxxxxxxxxx
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Title: Senior Account Manager
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