Exhibit 4.1
AMENDMENT NO. 1
TO
RIGHTS AGREEMENT
This AMENDMENT NO. 1 TO RIGHTS AGREEMENT (the "Amendment") is entered
into as of the 28th day of October, 2002, between Infinium Software, Inc., a
Massachusetts corporation (the "Company"), and Fleet National Bank (formerly,
Bank Boston N.A., formerly First National Bank), a national banking association
(the "Rights Agent"). Capitalized terms not otherwise defined herein shall have
the meanings given them in the Rights Agreement dated as of February 5, 1999, by
and between the parties hereto (the "Rights Agreement").
RECITALS
WHEREAS, the Board of Directors has determined that it is in the best
interests of the Company to amend the Rights Agreement as set forth herein in
connection with the execution of that certain Agreement and Plan of Merger,
dated as of October 28, 2002, as the same may be amended from time to time (the
"Merger Agreement"), by and among SSA Global Technologies, Inc., a Delaware
corporation (the "Parent"), Samurai Merger Subsidiary, Inc., a Massachusetts
corporation and a wholly-owned subsidiary of the Parent ("Merger Sub") and the
Company (pursuant to which Merger Agreement, among other things, the Merger Sub
shall merge with and into the Company and the Company shall become a
wholly-owned subsidiary of the Parent).
WHEREAS, the Rights are still redeemable under the Rights Agreement.
WHEREAS, the Company has executed this Amendment prior to the execution
of the Merger Agreement and has determined that the Rights Agreement should be
amended in accordance with Section 27 of the Rights Agreement, as set forth
herein, and has directed the Rights Agent to amend the Rights Agreement as set
forth herein.
AGREEMENT
NOW, THEREFORE, the parties, intending to be legally bound, hereby
agree as follows:
1. Section 1(a) of the Rights Agreement is hereby amended to read in
its entirety as follows:
"(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be
the Beneficial Owner of 20% or more of the shares of Common Stock then
outstanding, but shall not included (i) the Company, (ii) any
Subsidiary of the Company, (iii) any employee benefit plan of the
Company or of any Subsidiary of the Company or (iv) any Person
organized, appointed or established by the Company for or pursuant to
the terms of any such plan. Notwithstanding anything in this Rights
Agreement to the contrary, neither SSA Global Technologies, Inc., a
Delaware corporation ("Parent"), nor Samurai Merger Subsidiary, Inc., a
Massachusetts corporation and wholly-owned subsidiary of Parent
("Merger Sub"), nor any of Parent's or Merger Sub's Affiliates or
Associates, shall become or be deemed to ever have become an Acquiring
Person as a result of the approval, execution or performance of (x) the
Agreement and Plan of Merger, dated as of October 28, 2002, by and
among Parent, Merger Sub and the Company (as it may be amended or
supplemented from time to time, the "SSA Merger Agreement"), (y) the
Voting Agreement (as defined in the SSA Merger Agreement), as such
Voting Agreement may be amended or supplemented from time to time with
the consent of the Company, or (z) the consummation of the transactions
contemplated thereby, including the Merger (as defined in the Merger
Agreement) (such approval, execution, delivery, performance and
consummation being referred to herein as the "Permitted Events").
Notwithstanding the foregoing, if the Board determines in good faith
that a Person who would otherwise be an "Acquiring Person," as defined
pursuant to the foregoing provisions of this paragraph (a), has become
such inadvertently, and such Person divests as promptly as practicable
a sufficient number of shares of Common Stock so that such Person would
no longer be an "Acquiring Person," as defined pursuant to the
foregoing provisions of this paragraph (a), then such Person shall not
be deemed to be an "Acquiring Person" for any purposes of this
Agreement unless and until such Person shall again become an "Acquiring
Person."
2. Section 1(bb) of the Rights Agreement is hereby amended and
supplemented by adding the following sentence to the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, a Stock Acquisition Date shall not occur or ever be deemed to
have occurred as a result of any Permitted Event."
3. Section 3(a) of the Rights Agreement is hereby amended and
supplemented by adding the following sentence to the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, a Distribution Date shall not occur or ever be deemed to have
occurred as a result of any Permitted Event."
4. Section 7(a) of the Rights Agreement is hereby amended to read in
its entirety as follows:
"(a) Subject to Section 7(e) hereof, the registered holder of
any Rights Certificate may exercise the Rights evidenced thereby
(except as otherwise provided herein including, without limitation, the
restrictions on exercisability set forth in Section 9(c), Section
11(a)(iii) and Section 23 hereof) in whole or in part at any time after
the Distribution Date upon surrender of the Rights Certificate, with
the form of election to purchase and the certificate 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
aggregate Purchase Price with respect to the total number of shares of
one one-thousandths of a share (or other shares, securities, cash or
other assets, as the case may be) as to which such surrendered Rights
are then exercisable, at or prior to the
-2-
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"), (iii) the time at which such Rights are exchanged as provided
in Section 24 hereof, or (iv) immediately prior to the Effective Time
(as defined in the SSA Merger Agreement) (the earliest of (i), (ii),
(iii) and (iv) being herein referred to as the "Expiration Date")."
5. Section 15 of the Rights Agreement is hereby amended and
supplemented by adding the following sentence to the end thereof:
"Nothing in this Agreement shall be construed to give any
holder of Rights or any other Person any legal or equitable right,
remedy or claim under this Agreement in connection with a Permitted
Event."
6. Section 35 of the Rights Agreement is hereby amended to read in its
entirety as follows:
"Section 35. SSA Global Technologies, Inc. Transaction.
Notwithstanding any provision of this Rights Agreement to the contrary,
no Distribution Date, Stock Acquisition Date or Triggering Event shall
be deemed to ever have occurred, none of Parent, Merger Sub or any
Affiliate or Associate of Parent or Merger Sub shall be deemed to ever
have become an Acquiring Person and no holder of Rights shall be
entitled to exercise such Rights under or be entitled to any rights
pursuant to Section 7(a), 11(a)(ii) or 13(a) of this Rights Agreement
by reason of any Permitted Event."
7. Except as amended hereby, the Rights Agreement shall remain
unchanged and shall remain in full force and effect.
8. This Amendment may be executed in any number of counterparts, each
of which shall be an original, but all of which together shall constitute one
instrument. Notwithstanding any other provision, this Amendment shall be
effective immediately upon execution by the Company.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-3-
IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to
Rights Agreement to be executed by their respective duly authorized
representatives as of the date first above written.
INFINIUM SOFTWARE, INC.
By: /s/ Xxxxx X. XxXxxxx
----------------------------------
Name: Xxxxx X. XxXxxxx
Title: President and Chief
Executive Officer
FLEET NATIONAL BANK
By: /s/ Xxxxx Xxxxxx-Eon
----------------------------------
Name: Xxxxx Xxxxxx-Eon
-4-
