EXHIBIT 4.6
THIRD AMENDMENT
TO
FIRST AMENDED AND RESTATED
COMMON SHARES RIGHTS AGREEMENT
Third Amendment dated as of November 2, 1994 (the "Amendment"), to the
First Amended and Restated Common Shares Rights Agreement dated as of December
14, 1990, as amended to date (the "Agreement"), between Sun Microsystems, Inc.,
a Delaware corporation (the "Company") and The First National Bank of Boston
(the "Rights Agent").
WHEREAS, the Board of Directors of the Company has determined that it is
in the best interest of the Company and its stockholders to amend the Agreement
as set forth herein and the Rights Agent has agreed to such amendment; and
WHEREAS, the Company and the Rights Agent have determined that, pursuant to
Section 27 of the Agreement, the Agreement may be amended as set forth herein
without the approval of the holders of the Rights (as defined in the Agreement).
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the Agreement is hereby amended as follows:
1. Section 1(c)(i) of the Rights Agreement is hereby amended in its
entirety to read as follows:
"(c) A Person shall be deemed the "Beneficial Owner" of and shall be deemed
to "beneficially own" any securities:
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly, for purposes
of Section 13(d) of the Exchange Act and Rule 13d-3 thereunder (or
any comparable or successor law or regulation); provided, however,
if such Person or any of such Person's Affiliates and Associates, as
the case may be, files pursuant to Rule 13d-1 of the Exchange Act a
Schedule 13G and, therefore, is not required to file a Schedule 13D,
reporting beneficial ownership of not greater than twenty percent
(20%) of the Company's outstanding Common Shares, then such Person,
or any of such Person's Affiliates or Associates, as the case may
be, shall not be deemed the "Beneficial Owner" and shall not be
considered to "beneficially own" any securities so held nor be
deemed an "Acquiring Person" for purposes of this Agreement, but
only for so long as such Person, or any such Person's Affiliates or
Associates, as the case may be, (i) does not file, nor in the
determination of the Board of Directors is it required to file, a
report on Schedule 13D pursuant to Section 13(d) or Rule 13d-1 of
the Exchange Act, or (ii) notwithstanding the foregoing proviso,
beneficially owns less than twenty percent (20%) of the Company's
outstanding Common Shares."
2. This Amendment may be executed in any number of counterparts, 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 Agreement to be
duly executed as of the day and year first above written.
SUN MICROSYSTEMS, INC.
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President, General Counsel
and Secretary
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ XXXXXXXXX X. XXXXXXXX
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Name: Xxxxxxxxx X. Xxxxxxxx
Title: Administration Manager
