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Exhibit (e)(7)
AMENDMENT TO RIGHTS AGREEMENT BETWEEN
VIASOFT, INC.
AND
XXXXXX TRUST AND SAVINGS BANK, AS RIGHTS AGENT
THIS AMENDMENT TO RIGHTS AGREEMENT (this "Amendment") is made as of this
27 day of April, 2000 by and between Viasoft, Inc., a Delaware corporation (the
"Company"), and Xxxxxx Trust and Savings Bank, as rights agent (the "Rights
Agent"), at the direction of the Company. Capitalized terms used but not defined
herein shall have the meanings given to such terms in the Merger Agreement (as
defined below).
WHEREAS, the Company is entering into an Agreement and Plan of Merger (as
the same may be amended from time to time, the "Merger Agreement") among the
Company, Xxxxx Systems Group, Inc., a Delaware corporation ("Parent"), and ASG
Sub, Inc., a Delaware corporation and wholly-owned subsidiary of parent ("Sub"),
providing for transactions (collectively, the "Merger") pursuant to which, among
other things, Sub and the Company will make the Offer and, thereafter, the
Company and Sub will effect the Merger and the Company will become a
wholly-owned subsidiary of Parent, and the former stockholders of the Company
will receive cash, all on the terms and subject to the conditions of the Merger
Agreement.
WHEREAS, the Company and the Rights Agent are parties to a Rights
Agreement dated as of April 20, 1998 (as previously amended on July 14, 1999,
the "Rights Agreement").
WHEREAS, the Company desires to amend the Rights Agreement in connection
with the execution and delivery of the Merger Agreement.
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WHEREAS, the Board of Directors on April 27, 2000 resolved to amend the
Rights Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements herein set forth, the Rights Agreement is amended as follows:
1. The definition of "Acquiring Person" set forth in Section 1 of the
Rights Agreement is hereby amended by deleting in its entirety the last sentence
of that definition (which was added in the July 14, 1999 amendment to the Rights
Agreement), and adding the following two sentences to the end of that
definition:
Notwithstanding the foregoing, no Person shall be or become an
Acquiring Person by reason of the execution and delivery of the Agreement
and Plan of Merger dated as of April 27, 2000 by and among the Company,
Xxxxx Systems Group, Inc., a Delaware corporation ("Parent"), and ASG Sub,
Inc., a Delaware corporation and wholly-owned subsidiary of Parent
("Sub"), (the "Merger Agreement") or the execution and delivery of any
amendment thereto, the execution and delivery of the Shareholder Tender
and Voting Agreement contemplated thereby (the "Tender Agreements") or the
execution and delivery of any amendment thereto, or any purchase of stock
of the Company pursuant to the Offer. As used herein, the terms "Offer"
and "Merger" shall have the meanings given to such terms in the Merger
Agreement.
2. The Rights Agreement, as amended by this Amendment, shall remain in
full force and effect in accordance with its terms, provided, however, that the
effectiveness of the last sentence of the definition of "Acquiring Person", as
added by the July 14, 1999 amendment, as it relates to the transactions,
proposed transactions and documents referred to therein, shall not be affected
by this Amendment and such prior Amendment was, and shall continue to be,
effective for, and shall govern with respect to, any such transactions, proposed
transactions and documents.
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3. 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. 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. If any term, provision, covenant or restriction
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,
provisions, covenants and restrictions of this Amendment shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
IN WITNESS WHEREOF, the parties herein have caused this Amendment to be
duly executed and attested, all as of the date and year first above written.
Attest: VIASOFT, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: General Counsel Title: Chairman, CEO & President
Attest: XXXXXX TRUST AND SAVINGS BANK,
Rights Agent
By: /s/ Xxxx Xxxx Xxxxx By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxx Xxxx Xxxxx Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President Title: Trust Officer
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