AMENDMENT TO SHAREHOLDER RIGHTS AGREEMENT
Exhibit 4.1
This Amendment to Shareholder Rights Agreement (the “Amendment”) is entered into as of May 1,
2008, by and between Moldflow Corporation, a Delaware corporation (the “Company”), and
Computershare Trust Company, N.A. (formerly known as EquiServe Trust Company, N.A.)
(“Computershare”).
WITNESSETH:
WHEREAS, the Company is party to that certain Shareholder Rights Agreement, dated as of
January 29, 2003 (the “Rights Agreement”) with Computershare, as Rights Agent. All capitalized
terms used herein and not otherwise defined shall having the meaning ascribed to them in the Rights
Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement, prior to the occurrence of a Section
11(a)(ii) Event the Company and the Rights Agent shall, if the Board of Directors of the Company so
directs, supplement or amend any provision of the Rights Agreement without the approval of any
holders of certificates representing shares of common stock of the Company; and
WHEREAS, the Company now desires to amend the Rights Agreement as set forth in this Amendment,
and pursuant to Section 27 of the Rights Agreement, the Board of Directors of the Company hereby
directs that the Rights Agreement should be amended as set forth in this Amendment.
NOW THEREFORE, in consideration of the premises and the mutual agreements herein set forth,
the parties hereby agree as follows:
1. Amendments to Section 1.
(a) Section 1 of the Rights Agreement is hereby amended by adding the following definitions:
(kk) “Merger” shall have the meaning set forth in the Merger Agreement.
(ll) “Merger Agreement” shall mean the Agreement and Plan of Merger, dated
as of May 1, 2008, by and among Autodesk, Inc. Switch Acquisition Corporation,
and the Company, as may be amended from time to time.
(mm) “Merger Sub” shall mean, Switch Acquisition Corporation, a Delaware
Corporation and wholly owned subsidiary of Parent.
(nn) “Offer” shall have the meaning set forth in the Merger Agreement.
(oo) “Parent” shall mean Autodesk, Inc., a Delaware corporation.
(pp) “Tender and Voting Agreements” shall mean the Tender and Voting
Agreements, dated as of May 1, 2008 by and among Autodesk, Inc., Switch
Acquisition Corporation and certain holders of one or more shares of Company
common stock.
(b) The definition of “Acquiring Person” in Section 1(a) of the Rights Agreement is hereby
amended by inserting the following sentence at the end thereof:
“Notwithstanding the foregoing or any other provision of this Agreement to
the contrary, none of (i) the execution and delivery of the Merger
Agreement, (ii) the execution and delivery of the Tender and Voting
Agreements, (iii) the consummation of the Offer, (iv) the consummation of
the Merger, and (v) the consummation of the other transactions
contemplated in the Merger Agreement shall be deemed to result in Parent
or Merger Sub becoming an Acquiring Person.”
(c) The definition of “Stock Acquisition Date” in Section 1(gg) of the Rights Agreement is
hereby amended by inserting the following sentence at the end thereof:
“Notwithstanding the foregoing or any other provision of this Agreement to
the contrary, none of (i) the execution and delivery of the Merger
Agreement, (ii) the execution and delivery of the Tender and Voting
Agreements, (iii) the consummation of the Offer, (iv) the consummation of
the Merger, and (v) the consummation of the other transactions
contemplated in the Merger Agreement shall be deemed to result in a Stock
Acquisition Date.”
2. Amendment to Section 3(a). Section 3(a) of the Rights Agreement is hereby amended
to add the following sentence at the end thereof:
“Notwithstanding anything in this Agreement to the contrary, none of (i)
the execution and delivery of the Merger Agreement, (ii) the execution and
delivery of the Tender and Voting Agreements, (iii) the consummation of
the Offer, (iv) the consummation of the Merger, and (v) the consummation
of the other transactions contemplated in the Merger Agreement shall be
deemed to result in a Distribution Date.”
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3. Amendment to Section 7(a). The first sentence of Section 7(a) of the Rights
Agreement is hereby amended and restated in its entirety to read as follows:
“(a) Subject to Section 7(e) hereof, the registered holder of any Right
Certificate may exercise the Rights evidenced thereby (except as otherwise
provided herein) 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 executed, to the Rights Agent at
the office or offices of the Rights Agent designated for such purpose,
together with payment of the aggregate Exercise Price for the total number
of one ten-thousandths of a share of Preferred Stock (or other securities,
cash or other assets, as the case may be) as to which such surrendered
Rights are then exercised, at or prior to the earlier of (i) the Close of
Business on the tenth anniversary of the Record Date (the “Final
Expiration Date”), (ii) the time at which the Rights are redeemed as
provided in Section 23 hereof, (iii) the time at which such Rights are
exchanged as provided in Section 24 hereof, and (iv) the Appointment Time
(as defined in the Merger Agreement) (the earlier of (i), (ii), (iii) or
(iv) being herein referred to as the “Expiration Date”). The Company
shall notify the Rights Agent of the occurrence of the Appointment Time.”
4. Amendment to Section 11. Section 11(a)(ii) of the Rights Agreement is hereby
amended by adding the following sentence at the end thereof:
“Notwithstanding anything in this Agreement to the contrary, (i) the
execution and delivery of the Merger Agreement, (ii) the execution and
delivery of the Tender and Voting Agreements; (iii) the consummation of
the Offer, (iv) the consummation of the Merger, and (v) the consummation
of the other transactions contemplated in the Merger Agreement shall not
be deemed to be a Section 11(a)(ii) Event and shall not cause the Rights
to be adjusted or exercisable in accordance with, or any other action to
be taken or obligation to arise pursuant to, this Section 11(a)(ii).”
5. Amendment to Section 13. Section 13 of the Rights Agreement is hereby amended by
adding the following sentence at the end thereof:
“Notwithstanding anything in this Agreement to the contrary, (i) the
execution and delivery of the Merger Agreement, (ii) the execution and
delivery of the Tender and Voting Agreements, (iii) the consummation of
the Offer, (iv) the consummation of the Merger, and (v) the
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consummation of the other transactions contemplated in the Merger
Agreement shall not be deemed to be a Section 13 Event and shall not cause
the Rights to be adjusted or exercisable in accordance with, or any other
action to be taken or obligation to arise pursuant to, this Section 13.”
6. Effectiveness. This Amendment shall be deemed effective as of the date first above
written, as if executed on such date. Except as expressly set forth herein, this Amendment shall
not by implication or otherwise alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the Rights Agreement, all of which
are ratified and affirmed in all respects and shall continue in full force and effect and shall be
otherwise unaffected.
7. 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 contracts to be made and performed entirely within such state.
8. Counterparts. This Amendment may be executed in any number of counterparts, which shall
for all purposes be deemed an original, and all such counterparts together shall constitute but one
and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed as of the day
and year first above written.
| MOLDFLOW CORPORATION | ||||||||
Attest: |
||||||||
/s/ Xxxx Xxxxxxxxx
|
By: | /s/ A. Xxxxxx Xxxxxx | ||||||
Name: Xxxx Xxxxxxxxx
|
Name: | A. Xxxxxx Xxxxxx | ||||||
Title: General Counsel
|
Title: | President and Chief Executive Officer | ||||||
| COMPUTERSHARE TRUST COMPANY, N.A. | ||||||||
Attest: |
||||||||
/s/ Xxxxx Xxxx
|
By: | /s/ Xxxxxxx XxxXxxx | ||||||
Name: Xxxxx Xxxx
|
Name: | Xxxxxxx XxxXxxx | ||||||
Title: Relationship Manager
|
Title: | Managing Director | ||||||
(Signature Page to Amendment to Rights Agreement)
