Exhibit 4.1
CAMBRIDGE TECHNOLOGY PARTNERS
(MASSACHUSETTS), INC.
and
MELLON INVESTORS SERVICES LLC
as Rights Agent
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AMENDMENT NO. 2 TO RIGHTS AGREEMENT
THIS AMENDMENT NO. 2 (this "Amendment No. 2"), dated as of March 12, 2001,
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is made by and between Cambridge Technology Partners (Massachusetts), Inc., a
Delaware corporation (the "Company"), and Mellon Investor Services LLC (formerly
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ChaseMellon Shareholder Services, LLC), as Rights Agent (the "Rights Agent").
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Reference is made to the Rights Agreement, dated as of June 23, 1997, between
the Company and the Rights Agent, as amended by Amendment No. 1 to Rights
Agreement dated as of September 30, 1998, between the Company and the Rights
Agent (as amended, the "Rights Agreement") the parties. Capitalized terms not
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defined herein shall have the respective meaning ascribed to them in the Rights
Agreement.
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company and
the Rights Agent may from time to time supplement or amend the Rights Agreement
in accordance with the provisions of Section 27 thereof;
WHEREAS, the Company is a party to an Agreement and Plan of Reorganization
(as it may be amended or supplemented from time to time, the "Merger
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Agreement"), dated March 12, 2001, among Novell, Inc., a Delaware corporation
("Novell"), Ceres Neptune Acquisition Corp., a Delaware corporation and wholly-
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owned subsidiary of Novell ("Merger Sub"), and the Company, which provides for,
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among other things, the merger of Merger Sub with and into the Company (the
"Merger") subject to shareholder and regulatory approval and other terms and
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conditions;
WHEREAS, the Merger Agreement contemplates amendments to the Rights
Agreement so that Novell and Merger Sub are each exempt from the definition of
"Acquiring Person" contained in the Rights Agreement with respect to, and no
"Stock Acquisition Date" or "Distribution Date" or "Triggering Event" will occur
as a result of, the execution of the Merger Agreement or the consummation of the
Merger pursuant to the Merger Agreement, and that the Rights Agreement will
expire immediately prior to the Effective Time (as defined in the Merger
Agreement) of the Merger;
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WHEREAS, the Board of Directors previously determined that it is in the
best interests of the Company and its shareholders to amend the Rights Agreement
as contemplated by the Merger Agreement;
NOW, THEREFORE, in accordance with Section 27 of the Rights Agreement, the
Company and the Rights Agent hereby amend the Rights Agreement as follows:
1. The definition of "Acquiring Person" in Section 1(a) of the Rights
Agreement is hereby modified and amended by adding the following
sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, none of
Novell, a Delaware corporation ("Novell"), Merger Sub (as defined in
the Novell Merger Agreement (defined below)), or any of their
Affiliates or Associates, shall be deemed to be an Acquiring Person by
virtue of the execution of the Agreement and Plan of Reorganization,
dated as of March 12, 2001 (as the same may be amended from time to
time, the "Novell Merger Agreement"), by and among Novell, Merger Sub
and the Company, or the consummation of the transactions contemplated
by the Novell Merger Agreement, including, without limitation, the
merger of Merger Sub with and into the Company (the "Novell Merger")
or the announcement of any of the foregoing transactions."
2. The definition of "Stock Acquisition Date" in Section 1(pp) of the
Rights Agreement is hereby modified and amended by adding the
following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a Stock
Acquisition Date shall not be deemed to have occurred as a result of
the execution of the Novell Merger Agreement or the consummation of
the transactions contemplated by the Novell Merger Agreement,
including without limitation, the Novell Merger, or the announcement
of any of the foregoing transactions."
3. Section 3(a) of the Rights Agreement is amended by adding the following
sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a Distribution
Date shall not be deemed to have occurred as a result of the execution of
the Novell Merger Agreement or the consummation of the transactions
contemplated by the Novell Merger Agreement, including without limitation,
the Novell Merger, or the announcement of any of the foregoing
transactions."
4. The definition of "Section 11(a)(ii) Event" in Section 11 of the Rights
Agreement is hereby modified and amended by adding the following sentence at the
end thereof:
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"Notwithstanding anything in this Agreement to the contrary, a Section
11(a)(ii) Event shall not be deemed to have occurred as a result of the
execution of the Novell Merger Agreement or the consummation of the
transactions contemplated by the Novell Merger Agreement, including without
limitation, the Novell Merger, or the announcement of any of the foregoing
transactions."
5. The definition of "Section 13 Event" in Section 1(nn) of the Rights
Agreement is hereby modified and amended by adding the following sentence at the
end thereof:
"Notwithstanding anything in this Agreement to the contrary, a Section 13
Event shall not be deemed to have occurred as the result of the execution
of the Novell Merger Agreement or the consummation of the transactions
contemplated by the Novell Merger Agreement, including without limitation,
the Novell Merger, or the announcement of any of the foregoing
transactions."
6. The definition of "Triggering Event" in Section 1(tt) of the Rights
Agreement is hereby modified and amended by adding the following sentence at the
end thereof:
"Notwithstanding anything in this Agreement to the contrary, a Triggering
Event shall not be deemed to have occurred as the result of the execution
of the Novell Merger Agreement or the consummation of the transactions
contemplated by the Novell Merger Agreement, including without limitation,
the Novell Merger, or the announcement of any of the foregoing
transactions."
7. Section 1(x) of the Rights Agreement is hereby modified and amended to
change the reference to "June 23, 2007" to "June 23, 2007 or, if earlier,
immediately prior to the consummation of the Novell Merger as contemplated by
the Novell Merger Agreement and upon notice thereof to the Rights Agent."
8. Section 20(c) of the Rights Agreement is hereby amended by adding the
following words to the end of such section:
"as finally determined by a court of competent jurisdiction. Anything to
the contrary notwithstanding, in no event shall the Rights Agent be liable
for special, punitive, indirect, consequential or incidental loss or damage
of any kind whatsoever (including but not limited to lost profits), even if
the Rights Agent has been advised of the likelihood of such loss or
damage."
9. Section 30 of the Rights Agreement is amended to add the following
sentence at the end thereof:
"Nothing in this Agreement shall be construed to give any holder of Rights
(and, prior to the Distribution Date, registered holders of the Common
Shares) or any other Person any legal or equitable rights, remedies, or
claims under this
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Agreement by virtue of the execution of the Novell Merger Agreement or the
consummation of the transactions contemplated by the Novell Merger
Agreement, including without limitation, the Novell Merger, or the
announcement of any of the foregoing transactions."
10. This Amendment No. 2 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.
11. This Amendment No. 2 may be executed in any number of counterparts,
each of such counterparts shall for all purposes be deemed to be an original,
and all of such counterparts shall together constitute but one and the same
instrument.
12. In all respects not inconsistent with the terms and provisions of this
Amendment No. 2, the Rights Agreement is hereby ratified, adopted, approved, and
confirmed. In executing and delivering this Amendment No. 2, the Rights Agent
shall be entitled to all of the privileges and immunities afforded to the Rights
Agent under the terms and conditions of the Rights Agreement.
13. If any term, provision, covenant, or restriction of this Agreement No.
2 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 No. 2, and of the Rights Agreement, shall remain
in full force and effect and shall in no way be affected, impaired, or
invalidated.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to
be duly executed, all as of the date and year first above written.
CAMBRIDGE TECHNOLOGY PARTNERS
(MASSACHUSETTS), INC.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: President and Chief Executive Officer
MELLON INVESTOR SERVICES LLC
By: /s/ Xxxxxx XxXxxxxx
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Name: Xxxxxx XxXxxxxx
Title: Vice President
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