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EXHIBIT 4.1
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
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AMENDMENT NO. 1, date as of May 26, 1999 (this "AMENDMENT"), to the AMENDED
AND RESTATED RIGHTS AGREEMENT, dated as of September 18, 1999 between MARCAM
SOLUTIONS, INC., a Delaware corporation (the "COMPANY"), and BANKBOSTON, N.A., a
national banking association, as Rights Agent (the "RIGHTS AGREEMENT"). All
terms not otherwise defined herein shall have the meanings given such terms in
the Rights Agreement.
WITNESSETH:
WHEREAS, on June 13, 1997, the Board of Directors of the Company (the
"BOARD") authorized and declared a dividend distribution with respect to each
share of Common Stock of the Company (the "COMMON STOCK") outstanding as of the
close of business on July 21, 1997 constituting the right to purchase
one-thousandth of a share of Series A Junior Participating Preferred Stock of
the Company, as reflected in the Rights Agreement; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company may
cause the Rights Agreement to be amended at any time prior to the Final
Amendment Date (as defined in the Rights Agreement) without the approval of any
holders of certificates representing shares of Common Stock; and
WHEREAS, on May 26, 1999, the Board authorized and approved the amendment
of the Rights Agreement in anticipation of and in connection with approving the
acquisition of the Company pursuant to a cash tender offer and merger (the
"MERGER") pursuant to an Agreement and Plan of Merger (the "MERGER AGREEMENT")
among Company, Invensys, plc (the "PARENT"), M Acquisition Corp., an indirect
wholly-owned subsidiary of Parent (the "PURCHASER"), and M Merger Sub, Inc., a
wholly-owned subsidiary of Purchaser ("MERGER SUB"); and
WHEREAS, on May 26, 1999, in connection with the Merger, the Board
authorized and approved the execution of the Tender and Option Agreement dated
as of May 27, 1999 among Purchaser, Merger Sub, and certain stockholders (the
"Option Stockholders") of the Company listed on SCHEDULE A thereto (the "Option
Agreement"), including for the express purpose of ensuring that General Atlantic
Partners 32, L.P., General Atlantic Partners 21, L.P. and GAP Coinvestment
Partners, L.P., and their Affiliates and Associates (each as defined as "Exempt
Persons" under the Rights Agreement notwithstanding the execution and delivery
of the Merger Agreement and Option Agreement and the consummation of the
transactions contemplated thereby.
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NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Notwithstanding anything to the contrary in the Rights Agreement, the
Rights Agreement shall not apply to, and, without limiting the foregoing, none
of Parent, Purchaser, Merger Sub, nor any Option Stockholder (including, without
limitation, the GAP Parties), nor any Affiliate or Associate of any such
parties, will become an "Acquiring Person" or an "Adverse Person," and no
"Adverse Person Event," "Triggering Event," "Stock Acquisition Date,"
"Distribution Date" or "Final Amendment Date" (as such terms are defined in the
Rights Agreement) will occur, as a result of (i) the approval, execution,
delivery or performance of the Merger Agreement or the consummation of the Offer
or Merger pursuant thereto, (ii) the announcement of the Offer or Merger, (iii)
the approval, execution, delivery or performance of the Option Agreement by any
of the parties thereto, or (iv) the purchase, disposition, voting or beneficial
ownership (as defined in the Rights Agreement) of shares of Common Stock of the
Company by Parent, Purchaser, Merger Sub or any of the Option Stockholders
(including, without limitation, the GAP Parties) pursuant to or otherwise
arising from or relating to any of the foregoing, and no shares of Common Stock
shall be deemed to be Beneficially Owned by any such persons as a result of the
foregoing.
2. Without limiting the provisions of Section 1 above, the Board has
authorized and approved the Offer, the Merger and the other transactions
contemplated by the Merger Agreement and Option Agreement as provided for in the
penultimate proviso of the definition of "Exempt Person" in Section 1 of the
Rights Agreement, such that the GAP Parties shall not be deemed to have become
the Beneficial Owner of an additional 1% or more of shares of Common Stock of
the Company or to have entered into any of the transactions set forth in Section
11(a)(ii)(A) of the Rights Agreement pursuant to clauses (1)(i) and (1)(ii),
respectively, of said "Exempt Persons" for all purposes under the Rights
Agreement, notwithstanding the execution and delivery of the Merger Agreement
and Option Agreement and the consummation of the transactions contemplated
thereby.
3. Parent, Purchaser and Merger Sub are third party beneficiaries of this
Amendment and the terms of this Amendment shall not be withdrawn, amended or
otherwise modified without their written consent.
4. Except as amended hereby, the Rights Agreement shall continue in full
force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
the Rights Agreement to be duly executed and their respective corporate seals to
be hereunto affixed and arrested, all as of the day and year first above
written.
Attest:
MARCAM SOLUTIONS, INC.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxx X. Xxxxxx Name: Xxxxxx Xxxxxxx
Title: Secretary Title: Chief Financial Officer
Attest:
BANKBOSTON, N.A.
By: /s/ Xxxxxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxx Name: Xxxxx X. Xxxxxxxx
Title: Director Title: Vice President
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MARCAM SOLUTIONS, INC.
Officer's Certificate
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The undersigned, Xxxxx X. Xxxxxx, does hereby certify (a) that she is the
duly elected and acting Secretary of Marcam Solutions, Inc., a Delaware
corporation (the "COMPANY"), (b) that she is familiar with the facts herein
certified and is duly authorized to certify the same and to deliver this
Certificate pursuant to Section 27 of that certain Amended and Restated Rights
Agreement dated as of September 18, 1998 between the Company and BankBoston,
N.A., as Rights Agent (the "RIGHTS AGREEMENT"), and (c) as follows:
1. The proposed amendment to the Rights Agreement attached hereto as
EXHIBIT A (the "Amendment") is in compliance with the terms of Section 27 of the
Rights Agreement.
2. As of the date hereof, the Final Amendment Date (as defined in the
Rights Agreement) has not occurred.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this 26th
day of May, 1999.
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Secretary
