Exhibit 4.2
AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT, dated as of May 15, 2003 (this "Amendment"), to the
Rights Agreement, dated as of March 9, 2001 (the "Rights Agreement"), by and
between GEOWORKS CORPORATION, a Delaware corporation (the "Company"), and MELLON
INVESTOR SERVICES, LLC, a New Jersey limited liability company, as rights agent
(the "Rights Agent"). Capitalized terms used but not defined herein shall have
the meanings given to such terms in the Rights Agreement.
WITNESSETH
WHEREAS, Section 1(a) of the Rights Agreement provides that any
Person who or which, together with all Affiliates and Associates of such Person,
is the Beneficial Owner of 15% or more of the Voting Stock of the Company then
outstanding shall be an "Acquiring Person," subject to certain exceptions, for
purposes of the Rights Agreement;
WHEREAS, Section 26 of the Rights Agreement provides that as long as
the Rights issued under the Rights Agreement are redeemable, the Company may in
its sole and absolute discretion supplement or amend any provision of the Rights
Agreement without the approval of any holders of the Rights;
WHEREAS, the purpose of the amendment to the Rights Agreement is to
prevent possible limitations on the Company's use of its Federal net operating
loss carryforwards and certain income tax credits;
WHEREAS, the Board of Directors of the Company has resolved and
determined that the following amendment is necessary and desirable in connection
with the foregoing and the Company desires to evidence such amendment in
writing.
NOW, THEREFORE, the Rights Agreement is hereby amended as follows:
1. Amendment of Section 1(a).
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Section 1(a) of the Rights Agreement is hereby amended by
deleting the reference to "15%" and replacing it with "4.99%".
2. Amendment of Section 1(k).
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Section 1(k) of the Rights Agreement is hereby amended in its
entirety to read as follows:
(k) "Exempt Person" shall mean (i) the Company, (ii) any
Subsidiary of the Company, (iii) any employee benefit plan or
employee stock plan of the Company or any Subsidiary of the
Company, or any trust or other entity organized, appointed,
established or holding Common Stock for or pursuant to the terms
of any such plan, or (iv) any Person who, or which, together with
all Affiliates and Associates of such Person was, and continues
to be, the Beneficial Owner of 4.99% or more of the Voting Stock
of the Company as of the close of business on May 9, 2003.
3. Amendment of Section 3(b).
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Section 3(b) of the Rights Agreement is hereby amended by
deleting the reference to "15%" and replacing it with "4.99%".
4. Amendment of Exhibit A.
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Exhibit A to the Rights Agreement is hereby amended by deleting
all references to "15%" and replacing them with "4.99%".
5. Effectiveness.
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This Amendment to the Rights Agreement shall be effective as of
the date of this Amendment, and all references to the Rights Agreement shall,
from and after such time, be deemed to be references to the Rights Agreement as
amended hereby.
6. Delaware Contract.
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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 and enforced in accordance with the laws of such state applicable to
contracts to be made and performed entirely within such state; provided,
however, that all provisions regarding the rights, duties and obligations of the
Rights Agent shall be governed by and construed in accordance with the laws of
the State of New York applicable to contracts made and to be performed entirely
within such State.
7. Counterparts.
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This Amendment may be executed in any number of counterparts and
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.
8. Severability.
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If any term of this Amendment is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable, the
remainder of the terms of this Amendment shall remain in full force and effect
and shall in no way be affected, impaired or invalidated.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
GEOWORKS CORPORATION
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
MELLON INVESTOR SERVICES, LLC,
as Rights Agent
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
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