AMENDMENT NO. 3 TO RIGHTS AGREEMENT
AMENDMENT
NO. 3 TO RIGHTS AGREEMENT
This
AMENDMENT NO. 3 to RIGHTS AGREEMENT (this “Amendment”) is being entered into as
of September 22, 2006, between Net Perceptions, Inc., a Delaware corporation
(the “Company”), and Xxxxx Fargo Bank, N.A., as rights agent (the “Rights
Agent”).
The
Company and the Rights Agent are parties to a Rights Agreement, dated as of
June
1, 2001, as amended by Amendments No. 1 and 2 to Rights Agreement dated as
of
December 22, 2003 and April 21, 2004, respectively (as so amended, the “Rights
Agreement”).
The
Company is proposing to enter into an Equity Compensation Agreement (the “Equity
Agreement”) between the Company and Kanders & Company, Inc., a Delaware
Corporation (“Kanders & Company”), whereby, upon the terms and subject to
the conditions set forth therein, the Company will grant to Kanders &
Company without cost, and Kanders & Company will accept from the Company,
8,274,000 fully vested, unregistered shares of common stock of the Company,
par
value $0.0001 per share (the “Equity Compensation Shares”).
Pursuant
to Section 27 of the Rights Agreement, the Company and the Rights Agent may
supplement or amend the Rights Agreement in accordance with the provision of
such Section 27. In connection with the Equity Agreement, the Company now
desires to amend the Rights Agreement as set forth in this Amendment, and deems
such amendments to be necessary and desirable. Capitalized terms used but not
defined herein shall have the meanings ascribed to such terms in the Rights
Agreement.
NOW
THEREFORE, in consideration of the premises and the mutual agreements herein
set
forth, the parties hereby agree as follows:
1. AMENDMENT
OF SECTION 1(a). Section 1(a) of the Rights Agreement is hereby amended to
add
the following new sentence at the end thereof:
“Furthermore,
notwithstanding anything in this Rights Agreement to the contrary, neither
Kanders & Company nor any of its existing or future Affiliates or Associates
shall be deemed to be an Acquiring Person solely by virtue of the Equity
Agreement Transactions.”
2. AMENDMENT
OF SECTION 1(kk). Section 1(kk) of the Rights Agreement is hereby amended to
add
the following new proviso at the end thereof:
“;
provided further, however, that no Triggering Event shall result solely by
virtue of the Equity Agreement Transactions.”
3. AMENDMENT
OF SECTION 1. Section 1 of the Rights Agreement is hereby amended to add the
following new subparagraphs at the end thereof:
(qq)
“Kanders & Company” shall mean Kanders & Company, Inc., a Delaware
Corporation.
(rr)
“Equity Agreement” shall mean the Equity Compensation Agreement between the
Kanders & Company, entered into immediately after the execution and delivery
of Amendment No. 3 to this Rights Agreement.
(ss) “Equity
Agreement Transactions” shall mean the execution and delivery by the Company and
Kanders & Company of the Equity Agreement and the grant by the Company to
Kanders & Company, and the acquisition and ownership by Kanders &
Company, of the Equity Compensation Shares, pursuant to the Equity
Agreement.
4. AMENDMENT
OF SECTION 3(a). Section 3(a) of the Rights Agreement is hereby amended to
add
the following new sentence at the end thereof:
“Furthermore,
notwithstanding anything in this Rights Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred solely by virtue of
the
Equity Agreement Transactions.”
5. AMENDMENT
OF SECTION 7(a). Section 7(a) of the Rights Agreement is hereby amended to
add
the following new sentence at the end thereof:
“Furthermore,
notwithstanding anything in this Rights Agreement to the contrary, the Equity
Agreement Transactions shall not be deemed to be events that cause the Rights
to
become exercisable pursuant to the provisions of this Section 7 or
otherwise.”
6. AMENDMENT
OF SECTION 11. Section 11 of the Rights Agreement is hereby amended to add
the
following new sentence after the second sentence of said Section:
“Furthermore,
notwithstanding anything in this Rights Agreement to the contrary, the Equity
Agreement Transactions shall not be deemed to be events of the type described
in
this Section 11 or to cause the Rights to be adjusted or to become exercisable
in accordance with this Section 11 or otherwise.”
7. AMENDMENT
OF SECTION 13(d). Section 13(d) of the Rights Agreement is hereby amended to
add
the following new sentence at the end thereof:
“Furthermore,
notwithstanding anything in this Rights Agreement to the contrary, the Equity
Agreement Transactions shall not be deemed to be events of the type described
in
this Section 13 or to cause the Rights to be adjusted or to become exercisable
in accordance with this Section 13 or otherwise.”
8. EFFECTIVENESS.
This Amendment shall be deemed effective as of the date first written above,
as
if executed on such date, at the time immediately prior to the execution of
the
Equity Agreement. Except as amended hereby, the Rights Agreement shall remain
in
full force and effect and shall be otherwise unaffected hereby.
9. MISCELLANEOUS.
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. This Amendment may be executed in
counterparts, each of which shall be deemed to be an original, and which
together shall constitute one and the same instrument. If any provision,
covenant or restriction of this Amendment is held by a court of competent
jurisdiction or other authority to be invalid, illegal or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Amendment
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
[Signature
Page Follows]
IN
WITNESS WHEREOF, this Amendment has been duly executed by the Company and the
Rights Agent as of the day and year first written above.
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NET
PERCEPTIONS, INC.
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| By: | Xxxxx X. Xxxxx | |
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Name:
Xxxxx X. Xxxxx
Title:
Chief Administrative Officer and
Secretary
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XXXXX
FARGO BANK, N.A.,
as
Rights Agent
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| By: | Xxxxxx X. Xxxxxxx | |
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Name:
Xxxxxx X. Xxxxxxx
Title: Assistant
Vice President
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