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Exhibit 4.1
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AMENDMENT NO. 2 TO
SHAREHOLDER RIGHTS AGREEMENT
Amendment, dated as of April 19, 1999 (the "Amendment"), to the
Shareholder Rights Agreement, dated as of November 9, 1995 and amended by that
certain Amendment No. 1 dated as of March 3, 1999 (the "Rights Agreement"),
between Expert Software, Inc., a Delaware corporation (the "Company"), and The
First National Bank of Boston (as predecessor to BankBoston, N.A.), a national
banking association organized under the laws of the United States (the "Rights
Agent").
W I T N E S S E T H
WHEREAS, in accordance with the terms of the Rights Agreement, the
Company deems it desirable to make certain amendments to the Rights Agreement;
and
WHEREAS, Section 27 of the Rights Agreement provides that prior to the
Distribution Date (as defined therein), the Company and the Rights Agent shall,
if the Company so directs, amend or supplement any provision of the Rights
Agreement as the Company may deem necessary or desirable without the approval of
holders of the Company's common stock, par value $.01 per share (the "Common
Stock"); and
WHEREAS, the Company previously entered into that certain Agreement and
Plan of Merger, dated as of March 3, 1999, with Activision, Inc., a Delaware
corporation ("Parent") and its wholly-owned merger subsidiary of Parent (the
"Original Agreement"), pursuant to which, among other things, the Company will
be merged with and into Acquisition Sub and will become a wholly owned
subsidiary of Parent; and
WHEREAS, the parties to the Original Agreement desire to amend and
restate the Original Agreement to change the outside date set forth in Section
2.3 of the Original Agreement by which Activision, Inc. may elect to pay cash
consideration to the holders of shares of Expert common stock, to provide that
Acquisition Sub will be merged with and into the Company and the Company will
become a wholly owned Subsidiary of Parent, and to change certain other
provisions (such Original Agreement as amended and restated, the "Merger
Agreement"); and
WHEREAS, prior to entering into the Merger Agreement, the Company
desires to 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 that the Rights Agreement
is hereby amended as follows:
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1. Section 1(a) of the Rights Agreement is amended by deleting the last
paragraph of Section 1(a) in its entirety and inserting a new paragraph thereto
which provides as follows:
"Notwithstanding anything in this Agreement to the contrary, neither
Activision, Inc., a Delaware corporation ("Parent"), and Expert Acquisition
Corp., a Delaware corporation and wholly-owned subsidiary of Parent
("Acquisition Sub"), nor any of their Affiliates or Associates, shall be deemed
to be an Acquiring Person, and no Stock Acquisition Date or Distribution Date
shall occur, as a result of the negotiation, execution or delivery of that
certain Agreement and Plan of Merger, dated as of March 3, 1999, by and among
the Company, Parent and Acquisition Sub, as such may be amended and or restated
or supplemented from time to time, including without limitation its amendment
and restatement by that certain Amended and Restated Agreement and Plan of
Merger dated as of April 19, 1999 by and among the Company, Parent and
Acquisition Sub."
2. TERMINATION OF AMENDMENT. Immediately upon the termination of the
Merger Agreement in accordance with its terms, this Amendment shall become null
and void and of no further force or effect.
3. TERMINATION OF RIGHTS AGREEMENT. If, but only if, the Effective Time
(as defined in the Merger Agreement) shall occur, then immediately upon the
Effective Time the Rights Agreement shall become null and void and of no further
force or effect.
4. COUNTERPART SIGNATURES. This Amendment may be executed in one or
more counterparts all of which shall be considered one and the same amendment
and each of which shall be deemed to be an original.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2
to Shareholder Rights Agreement to be duly executed as of the day and year first
above written.
EXPERT SOFTWARE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
BANKBOSTON, N.A., (as successor of
The First National Bank of Boston) as
Rights Agent
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Administration Manager
