FIRST AMENDMENT TO RIGHTS AGREEMENT
Exhibit 4
FIRST AMENDMENT TO RIGHTS AGREEMENT
Amendment, dated as of November 2, 2006, between Stellent, Inc., a Minnesota corporation (the
“Company”), and Xxxxx Fargo Bank Minnesota, N.A. as Rights Agent (the “Rights Agent”), to the
Rights Agreement dated as of May 29, 2002 (the “Rights Agreement”).
Recitals
A. This Amendment is entered into in connection with the Agreement and Plan of Merger, dated
as of the date hereof (as it may be amended or supplemented from time to time, the “Merger
Agreement”), among the Company, Oracle Systems Corporation, a Delaware corporation (“Parent”), and
Star Acquisition Corp., a Minnesota corporation and wholly-owned subsidiary of Parent (“Merger
Subsidiary”), with respect to a merger of Merger Subsidiary with and into the Company (the
“Merger”).
B. Pursuant to the Merger Agreement, the Merger would be preceded by a tender offer by Merger
Subsidiary for all outstanding shares of common stock of the Company (the “Offer”).
C. As a condition to the willingness of Parent and Merger Subsidiary to enter into the Merger
Agreement, certain directors and officers of the Company have entered into the Tender and Support
Agreement and the related Escrow Agreement (each, as defined in the Merger Agreement).
D. Pursuant to Section 27 of the Rights Agreement, the Company may from time to time
supplement or amend the Rights Agreement in accordance with the provisions of that section.
E. The Board of Directors of the Company has approved the Merger Agreement, the Merger, the
Offer (and the acquisition of shares of Company common stock pursuant to the Offer), and the other
transactions contemplated by the Merger Agreement.
F. To induce Parent and Merger Subsidiary to enter into the Merger Agreement, the Board of
Directors of the Company has determined that it is in the best interests of the Company and its
shareholders to amend the Rights Agreement to exempt the execution of the Merger Agreement, the
commencement of the Offer, the execution of the Tender and Support Agreement and the Escrow
Agreement, the consummation of the Offer and the Merger, and all other transactions contemplated by
the Merger Agreement and the Tender and Support Agreement from the application of the Rights
Agreement.
Amendment
This Amendment amends the Rights Agreement as follows:
1. Capitalized terms that are not otherwise defined herein shall have the meanings ascribed to
them in the Rights Agreement.
2. The definition of “Acquiring Person” set forth in Section 1(a) of the Rights Agreement is
hereby amended by adding the following sentence to the end of that section:
Notwithstanding anything in this Agreement to the contrary, no Person
shall be deemed to be or become an Acquiring Person by reason of (i) the
execution and delivery of the Agreement and Plan of Merger, dated as of
November 2, 2006, among Oracle Systems Corporation, a Delaware corporation
(“Parent”), Star Acquisition Corp., a Minnesota corporation and wholly-owned
subsidiary of Parent (“Merger Subsidiary”), and the Company (as such
agreement may be amended from time to time, the “Merger Agreement”) or the
execution of any amendment thereto, (ii) the execution and delivery of the
Tender and Support Agreement (as defined in the Merger Agreement) (as such
agreement may be amended from time to time, the “Tender and Support
Agreement”) and the related Escrow Agreement (as defined in the Merger
Agreement) (as such agreement may be amended from time to time, the “Escrow
Agreement”), or the execution of any amendment thereto, (iii) the
acquisition of beneficial ownership of shares of common stock of the Company
by Parent, Merger Subsidiary, or any Affiliate of Parent or Merger
Subsidiary pursuant to the Offer (as defined in the Merger Agreement) (the
“Offer”), the Top-Up Option (as defined in the Merger Agreement) (the
“Top-Up Option”), the Merger (as defined in the Merger Agreement) (the
“Merger”), the Tender and Support Agreement or the Escrow Agreement, or (iv)
the consummation of any other transaction contemplated by the Merger
Agreement, the Tender and Support Agreement or the Escrow Agreement.
3. The definition of “Section 13 Event” set forth in Section 1(m) of the Rights Agreement is
hereby amended by adding the following sentence to the end of that section:
Notwithstanding anything in this Agreement to the contrary, a Section 13 Event
shall be deemed not to have occurred by reason of (i) the execution and delivery or
amendment of the Merger Agreement, the Tender and Support Agreement or the Escrow
Agreement, (ii) the consummation of the Offer, the Top-Up Option or the Merger, or
(iii) the consummation of any other transaction contemplated by the Merger
Agreement, the Tender and Support Agreement or the Escrow Agreement.
4. The definition of “Shares Acquisition Date” set forth in Section 1(n) of the Rights
Agreement is hereby amended by adding the following sentence to the end of that section:
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Notwithstanding anything in this Agreement to the contrary, a Shares
Acquisition Date shall be deemed not to have occurred by reason of (i) the execution
and delivery or amendment of the Merger Agreement, the Tender and Support Agreement
or the Escrow Agreement, (ii) the consummation of the Offer, the Top-up Option or
the Merger, or (iii) the consummation of any other transaction contemplated by the
Merger Agreement, the Tender and Support Agreement or the Escrow Agreement.
5. Section 3(a) of the Rights Agreement is hereby amended by adding the following sentence to
the end of that section:
Notwithstanding anything else set forth in this Agreement, no Distribution Date
shall be deemed to have occurred by reason of (i) the execution and delivery or
amendment of the Merger Agreement, the Tender and Support Agreement or the Escrow
Agreement, (ii) the consummation of the Offer, the Top-Up Option or the Merger, or
(iii) the consummation of any other transaction contemplated by the Merger
Agreement, the Tender and Support Agreement or the Escrow Agreement.
6. Section 7(a) of the Rights Agreement is hereby amended and restated to read in its entirety
as follows:
(a) Subject to Section 11(a)(ii), the registered holder of any Right
Certificate may exercise the Rights evidenced thereby (except as otherwise
provided in this Agreement) 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 completed and
executed, to the Rights Agent at the office or offices of the Rights Agent
designated for such purpose, together with payment of the Purchase Price for
each one-hundredth of a Preferred Share as to which the Rights are
exercised, before the earliest of:
(i) the Close of Business on June 13, 2012;
(ii) the time at which the Rights are redeemed as provided in
Section 23 (the “Redemption Date”);
(iii) the time at which such Rights are exchanged as provided
in Section 24; or
(iv) the time immediately prior to the effective time of the
Merger, as such time is determined pursuant to Section 3.02(b) of
the Merger Agreement (the earlier to occur of the events described
in clauses (i) and (iv) of this section shall be referred to as the
“Final Expiration Date”).
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7. Section 11(a)(ii) of the Rights Agreement is hereby amended by adding the following
sentence to the end of that section:
Notwithstanding anything else set forth in this Agreement, no event requiring
an adjustment under this Section 11(a)(ii) shall be deemed to have occurred by
reason of (i) the execution and delivery or amendment of the Merger Agreement, the
Tender and Support Agreement or the Escrow Agreement, (ii) the consummation of the
Offer, the Top-Up Option or the Merger, or (iii) the consummation of any other
transaction contemplated by the Merger Agreement, the Tender and Support Agreement
or the Escrow Agreement.
8. Sections 13(d) and 13(e) of the Rights Agreement are hereby amended and restated to read in
its entirety as follows:
(d) The Company shall not enter into any transaction of the kind referred to in
this Section 13 (other than the Merger) if at the time of such transaction there are
any rights, warrants, instruments, or securities outstanding or any agreements or
arrangements that, as a result of the consummation of such transaction, would
eliminate or substantially diminish the benefits intended to be afforded by the
Rights.
(e) The provisions of this Section 13 shall similarly apply to successive
mergers, consolidations, statutory share exchanges, sales, or other transfers (in
each case, other than the Merger).
9. Section 15 of the Rights Agreement is hereby amended by adding the following sentence to
the end of that section:
Nothing in this Agreement shall be construed to give any holder of
Rights or any other Person any legal or equitable rights, remedy, or claim
under this Agreement in connection with any transactions contemplated by the
Merger Agreement, the Tender and Support Agreement or the Escrow Agreement.
10. New Section 34 is added to the end of the Rights Agreement to read in its entirety as
follows:
Section 34. Merger Agreement. Notwithstanding any other
provision of this Agreement, (i) the execution and delivery of the Merger
Agreement or the execution of any amendment thereto, (ii) the execution and
delivery of the Tender and Support Agreement and the Escrow Agreement or the
execution of any amendment thereto, (iii) the acquisition of beneficial
ownership of shares of common stock of the Company by Parent, Merger
Subsidiary, or any Affiliate of Parent or Merger Subsidiary pursuant to the
Offer, the Top-Up Option, the Merger, the Tender and Support Agreement or
the Escrow Agreement, or (iv) the consummation of any other transaction
contemplated by the Merger Agreement, the
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Tender and Support Agreement or the Escrow Agreement shall result in a
Section 11(a)(ii) Event or a Section 13 Event or in any way permit any
Rights to be exercised pursuant to Section 11(a)(ii), Section 13, or
otherwise for any capital stock, whether Common Shares, Preferred Shares, or
other preferred stock, nor will such execution, acquisition, or consummation
result in the occurrence of a Shares Acquisition Date, a Distribution Date,
or any other separation of the Rights from the underlying Common Shares or
require or permit the Rights to be evidenced by, or to be transferable
pursuant to, certificates separate from certificates for the Common Shares
of the Company, nor entitle or permit the holders of the Rights to exercise
the Rights or otherwise affect the rights of the holders of the Rights,
including giving the holders of the Rights the right to acquire any capital
stock, cash, or other property of any party to the Merger Agreement or any
Affiliate of Parent or Merger Sub. Notwithstanding any other provision of
this Agreement, this Agreement shall be inapplicable to the events described
in clauses (i) through (iv) above, and all Rights issued and outstanding
under the Rights Agreement shall expire immediately prior to the effective
time of the Merger.
11. This Amendment may be executed in any number of counterparts, each of which shall be
deemed an original, but such counterparts shall together constitute the same instrument.
12. This Amendment shall be deemed to be a contract made under the laws of the State of
Minnesota 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.
[Signature Page Follows]
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In Witness Whereof, this Amendment has been duly executed by the Company and the Rights Agent
as of the date first written above.
| STELLENT, INC. |
||||
| By: | /s/ Xxxxx X. XxXxxxxxx | |||
| Name: | Xxxxx X. XxXxxxxxx | |||
| Title: | Chief Financial Officer, Treasurer and Secretary | |||
| XXXXX FARGO BANK MINNESOTA, N.A. |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Officer | |||
