AGREEMENT REGARDING
APPOINTMENT OF SUCCESSOR RIGHTS AGENT
AND RELATED AMENDMENTS
APPOINTMENT AND AMENDMENT AGREEMENT, dated as of August 14, 1998, among
BANKONE ARIZONA, NA (the "Original Rights Agent"), XXXXXX TRUST AND SAVINGS BANK
(the "Successor Rights Agent") and ARTISOFT, INC., a Delaware corporation (the
"Company").
The Company and the Original Rights Agent entered into a Rights
Agreement, dated as of December 23, 1994 (the "Rights Agreement").
The Original Rights Agent now desires to resign as rights agent under
the Rights Agreement and the Company is willing to accept such resignation.
The Company now desires to appoint the Successor Rights Agent as
successor rights agent under the Rights Agreement, and the Successor Rights
Agent desires to accept such appointment.
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Resignation of Original Rights Agent. The Original Rights
Agent hereby confirms that it has resigned as Rights Agent under and as defined
in the Rights Agreement, and the Company hereby confirms that it has accepted
such resignation, effective as of the Effective Date (as defined below).
Section 2. Appointment of Successor Rights Agent. The Company hereby
appoints the Successor Rights Agent as successor Rights Agent under the Rights
Agreement, and the Successor Rights Agent accepts such appointment, effective as
of the Effective Date. The Company represents and warrants to the Successor
Rights Agent that the Company's Board of Directors has resolved to approve and
authorize, and has duly approved and authorized, such appointment.
Section 3. Conforming Modifications.
(a) Effective as of the Effective Date, all references in the Rights
Agreement (including all exhibits thereto) to "BankOne Arizona NA" or any
derivation thereof shall be deemed to refer to "Xxxxxx Trust and Savings Bank".
(b) Section 1(d) of the Rights Agreement shall be amended to read as
follows:
"(d) 'Business Day' shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in
Phoenix, Arizona or Chicago, Illinois are authorized or
obligated by law or executive order to close."
(c) Section 1(e) of the Rights Agreement shall be amended to read as
follows:
"(e) 'Close of Business' on any given date shall mean
5:00 P.M., Chicago, Illinois time, on such date; PROVIDED,
however, that if such date is not a Business Day it shall mean
5:00 P.M., Chicago, Illinois time, on the next succeeding
Business Day."
(d) Section 3(a) of the Rights Agreement shall be amended to read as
follows:
"(a) Until the Distribution Date, (i) the Rights will
be evidenced (subject to the provisions of Sections 3(b) and
3(c) hereof) by the certificates for Common Shares registered
in the names of the holders thereof (which certificates shall
also be deemed to be Rights Certificates) and not by separate
Rights Certificates and (ii) the right to receive Rights
Certificates will be transferable only in connection with the
transfer of Common Shares. Until the earlier of the
Distribution Date or the Expiration Date, the surrender for
transfer of such certificates for Common Shares shall also
constitute the surrender for transfer of the Rights associated
with the Common Shares represented thereby. As soon as
practicable after the Distribution Date, the Company will
prepare and execute, the Rights Agent will countersign, and
the Company will send or cause to be sent (and the Rights
Agent will, if requested, send at the expense of the Company)
by first-class, postage-prepaid mail, to each record holder of
Common Shares as of the close of business on the Distribution
Date, at the address of such holder shown on the records of
the Company, a Rights Certificate, in substantially the form
of Exhibit B hereto (a 'Rights Certificate'), evidencing one
Right for each Common Share so held, subject to adjustment as
provided herein. In the event that an adjustment in the number
of Rights per Common Share has been made pursuant to Section
11(a)(i), Section 11(i) or Section 11(p) hereof, then at the
time of distribution of the Rights Certificates, the Company
shall make the necessary and appropriate rounding adjustments
(in accordance with Section 14(a) hereof) so that Rights
Certificates representing only whole numbers of Rights are
distributed and cash is paid in lieu of any fractional Rights.
As of the Distribution Date, the Rights will be evidenced
solely by such Rights Certificates and may be transferred by
the transfer of the Rights Certificates as permitted hereby,
separately and apart from any transfer of one or more Common
Shares, and the holders of such Rights Certificates as are
listed in the records of the Company or any transfer agent or
registrar for the Rights shall be the record holders thereof."
(e) The last sentence of Section 12 of the Rights Agreement shall be
amended to read as follows:
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"The Rights Agent shall be fully protected in relying on any
such certificate and on any adjustment contained therein and
shall not be responsible for calculating any adjustment, nor
shall it be deemed to have knowledge of such adjustment unless
and until it shall have received such certificate."
(f) Section 18(a) of the Rights Agreement shall be amended to read as
follows:
"(a) The Company agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it
hereunder and, from time to time, on demand of the Rights
Agent, its reasonable expenses and counsel fees and other
disbursements incurred in the administration and execution of
this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights
Agent for, and to hold it harmless against, any loss,
liability or expense, incurred without negligence, bad faith
or willful misconduct on the part of the Rights Agent, for
anything done or omitted by the Rights Agent in connection
with the acceptance and administration of this Agreement,
including the costs and expenses of defending against any
claim of liability in the premises. The indemnity provided for
herein shall survive the expiration of the Rights, the
termination of this Agreement, and the resignation or removal
of the Rights Agent. The costs and expenses of enforcing this
right of indemnification shall also be paid by the Company."
(g) Section 18(b) of the Rights Agreement shall be amended to read as
follows:
"(b) The Rights Agent may conclusively rely upon and
shall be protected and shall incur no liability for, or in
respect of any action taken, suffered or omitted by it in
connection with, its administration of this Agreement in
reliance upon any Rights Certificate or certificate for the
Common Shares or for other securities of the Company,
instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent,
certificate, statement or other paper or document believed by
it to be genuine and to be signed, executed and, where
necessary, verified or acknowledged, by the proper Person or
Persons, or otherwise upon the advice of counsel as set forth
in Section 20 hereof."
(h) A new Section 18(c) shall be added to Section 18 of the Rights
Agreement and shall read as follows:
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"(c) Notwithstanding anything in this Agreement to
the contrary, in no event shall the Rights Agent be liable for
special, indirect or consequential 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 and regardless of the form of the action."
(i) The prefatory portion of Section 20 shall be amended to read as
follows:
"Section 20. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions, and no
implied duties or obligations shall be read into this
Agreement against the Rights Agent, by all of which the
Company and the holders of Rights Certificates, by their
acceptance thereof, shall be bound;"
(j) Section 20(a) shall be amended to read as follows:
"(a) Before the Rights Agent acts or refrains from
acting, the Rights Agent may consult with legal counsel (who
may be legal counsel for the Company), and the opinion or
advice of such counsel shall be full and complete
authorization and protection to the Rights Agent as to any
action taken or omitted by it in good faith and in accordance
with such opinion or advice."
(k) A new Section 20(l) shall be added to Section 20 of the Rights
Agreement and shall read as follows:
"(l) The Rights Agent shall not be required to take
notice or be deemed to have notice of any fact, event or
determination (including, without limitation, any dates or
events defined in this Agreement or the designation of any
Person as an Acquiring Person, Affiliate or Associate) under
this Agreement unless and until the Rights Agent shall be
specifically notified in writing by the Company of such fact,
event or determination."
(l) The first sentence of Section 21 shall be amended to read as
follows:
"The Rights Agent or any successor Rights Agent may
resign and be discharged from its duties under this Agreement
upon thirty (30) days' notice in writing mailed to the Company
and to each transfer agent of the Preferred Shares and the
Common Shares by registered or certified mail, and, at the
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expense of the Company, to the holders of the Rights
Certificate by first-class mail."
(m) Section 26 of the Rights Agreement shall be amended to read as
follows:
"Section 26. Notices. Notices or demands authorized
by this Agreement to be given or made by the Rights Agent or
by the holder of any Rights Certificate to or on the Company
shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is
filed in writing with the Rights Agent) as follows:
Artisoft, Inc.
Xxx Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxx 00000
Subject to the provisions of Section 21 hereof, any notice or
demand authorized by this Agreement to be given or made by the
Company or by the holder of any Rights Certificate to or on
the Rights Agent shall be sent by registered or certified mail
and shall be deemed given upon receipt, addressed (until
another address is filed in writing with the Company) as
follows:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Shareholder Services
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any
Rights Certificate shall be sufficiently given or made if sent
by first-class mail, postage prepaid, addressed to such holder
at the address of such holder as shown on the registry books
of the Company."
(n) Section 27 of the Rights Agreement shall be amended by adding the
following sentence at the end of such Section:
"Notwithstanding anything in this Agreement to the contrary, no
supplement or amendment that changes the rights and duties of
the Rights Agent under this Agreement will be effective
against the Rights Agent without the execution of such
supplement or amendment by the Rights Agent."
(o) Section 32 shall be amended to read as follows:
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"Section 32. Governing Law. This Agreement and each
Right and each Rights Certificate issued hereunder 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, except as to the rights and obligations of the Rights
Agent, which shall be governed by and construed in accordance
with the laws of the State of Illinois."
(p) Each Right heretofore or hereafter issued under the Rights
Agreement (as amended and in effect from time to time) shall be deemed to be
amended in accordance with this Amendment.
(q) Except as modified by this Amendment, the Rights Agreement and all
Rights heretofore or hereafter issued shall continue and remain in full force
and effect.
Section 4. Counterparts. This Agreement 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.
Section 5. Effective Date. Upon execution of this Agreement, in one or
more counterparts by each of the parties hereto, this Agreement shall become
effective as of July 1, 1998 (the "Effective Date").
Section 6. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
contracts to be made and performed entirely within such State, except as to the
rights and obligations of the Rights Agent, which shall be governed by and
construed in accordance with the laws of the State of Illinois.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
XXXXXX TRUST AND SAVINGS BANK, as Rights Agent
By Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Officer
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ARTISOFT, INC.
By T. Xxxx Xxxxxx
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Name: T. Xxxx Xxxxxx
------------------------------
Title: President & COO
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Confirmed with respect to Section 1 above as of the day and year first above
written:
BANKONE ARIZONA NA
By
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Name:
-----------------------------
Title:
-----------------------------
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