AMENDMENT NO. 1 TO RIGHTS AGREEMENT
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EXHIBIT 1
AMENDMENT NO. 1
TO
RIGHTS AGREEMENT
Amendment No. 1, dated as of January 29, 2002 (the "Amendment"), to the Rights Agreement, dated as of September 12, 1994 (the "Rights Agreement"), by and among Zamba Corporation (formerly known as Racotek, Inc.), a Delaware corporation (the "Company") and Xxxxx Fargo Bank Minnesota, N.A. (formerly known as Norwest Bank Minnesota, N.A.), as Rights Agent (the "Rights Agent").
WITNESSETH:
WHEREAS, the Company has changed its name from "Racotek, Inc." to "Zamba Corporation" since the original date of the Rights Agreement and desires to amend the Rights Agreement to reflect this name change; and
WHEREAS, the Rights Agent has changed its name from "Norwest Bank Minnesota, N.A." to "Xxxxx Fargo Bank Minnesota, N.A." since the original date of the Rights Agreement and desires to amend the Rights Agreement to reflect this name change; and
WHEREAS, on January 29, 2002, the Board of Directors of the Company, in accordance with Section 27 of the Rights Agreement, determined it to be desirable and in the best interests of the Company and its stockholders to supplement and amend certain provisions of the Rights Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereby agree as follows:
Section 1. Amendments to Rights Agreement. The following provisions of the Rights Agreement are amended as follows:
(a) The definition of "Acquiring Person" in Section 1(a) of the Rights Agreement is hereby amended to read in its entirety as follows:
"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 Common Shares of the Company then outstanding, but shall not include (i) the Company, (ii) any Subsidiary of the Company, (iii) any employee benefit plan of the Company or any Subsidiary of the Company, (iv) any entity holding Common Shares for or pursuant to the terms of any such plan, (v) any Common Shares beneficially owned by the Company's Chairman, Xxxxxx X. Xxxxxxxx (hereinafter "Xxxxxxxx"), or (vi) following the death of Xxxxxxxx, any Person directly receiving Common Shares from Xxxxxxxx pursuant to the last will and testament of Xxxxxxxx or, if no such will exists at the time of his death, then pursuant to the laws of descent and distribution as may be applicable to his estate upon his death; provided, however, that if Xxxxxxxx (or any Person directly receiving Common Shares from Xxxxxxxx pursuant to clause (vi) above) shall become the Beneficial Owner of 49.99% or more of the Common Shares of the Company then outstanding, then Xxxxxxxx (or any Person directly receiving Common Shares from Xxxxxxxx pursuant to clause (vi) above) shall be deemed to be an Acquiring Person. Notwithstanding the foregoing, no Person shall become an "Acquiring Person" as the result of an acquisition of Common Shares by the Company which, by reducing the number of shares outstanding, increases the proportionate number of shares beneficially owned by such Person and such Person's Affiliates and Associates to 20% or more (or, with respect to Xxxxxxxx, 49.99% or more) of the Common Shares of the Company then outstanding; provided, however, that if a Person, together with such Person's Affiliates and Associates, shall become the
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Beneficial Owner of 20% or more (or, with respect to Xxxxxxxx, 49.99% or more) of the Common Shares of the Company then outstanding by reason of share purchases by the Company and shall, after such share purchases by the Company, such Person, together with its Affiliates and Associates, become the Beneficial Owner of any additional Common Shares of the Company, then such Person shall be deemed to be an "Acquiring Person."
(b) The legend set forth in Section 3(c) of the Rights Agreement is hereby amended to read in its entirety as follows:
"This certificate also evidences and entitles the holder hereof to certain rights (the "Rights") as set forth in a Rights Agreement between Zamba Corporation and Xxxxx Fargo Bank Minnesota, N.A., dated as of September 12, 1994, as amended to date (the "Rights Agreement"), the terms of which are hereby incorporated herein by reference and a copy of which is on file at the principal executive offices of Zamba Corporation. Under certain circumstances, as set forth in the Rights Agreement, such Rights will be evidenced by separate certificates and will no longer be evidenced by this certificate. Zamba Corporation will mail to the holder of this certificate a copy of the Rights Agreement without charge after receipt of a written request therefor. As described in Section 11(a)(ii) of the Rights Agreement, Rights beneficially owned by any Person who becomes an Acquiring Person (as defined in the Rights Agreement) and certain other Persons shall become null and void."
(c) The name and address of the Company set forth in Section 26 of the Rights Agreement is hereby amended to read in its entirety as follows:
"Zamba
Corporation
0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: Corporate Secretary"
(d) The name of the Rights Agent set forth in Section 26 of the Rights Agreement is hereby amended to read in its entirety as follows:
"Xxxxx
Fargo Bank Minnesota, N.A.
000 Xxxxx Xxxxxxx Xxxxxxxx
Xxxxx Xx. Xxxx, XX 00000-0000
Attention: Stock Transfer Department"
Section 2. Amendment to Form of Right Certificate. The first page of the Form of Right Certificate to purchase Preferred Shares set forth in Exhibit B attached to the Rights Agreement is hereby amended to read in its entirety as set forth in the attachment hereto.
Section 3. Amendment to Summary of Rights. The form of Summary of Rights to Purchase Preferred Shares set forth in Exhibit C attached to the Rights Agreement is hereby amended to read in its entirety as set forth in the attachment hereto.
Section 4. Rights Agreement as Amended. The term "Agreement" as used in the Rights Agreement shall be deemed to refer to the Rights Agreement as amended hereby. This Amendment shall be effective as of the date hereof and, except as set forth herein, the Rights Agreement shall remain in full force and effect and be otherwise unaffected hereby.
Section 5. Counterparts. 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.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and their respective corporate seals to be hereunto affixed and attested, all as of the dates set forth below.
| ZAMBA CORPORATION | ||
By: /s/ Xxx Xxxxxxx Name: Xxx Xxxxxxx Title: General Counsel |
||
Dated: 1-29-02 |
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XXXXX FARGO BANK MINNESOTA, N.A. |
||
By: /s/ Xxxxxxxxx X. Xxxxxxx Name: Xxxxxxxxx X. Xxxxxxx Title: Assistant Vice President |
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Dated: January 29, 2002 |
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AMENDMENT NO. 1 TO RIGHTS AGREEMENT
