EXHIBIT 8
AMENDMENT NO. 2 TO RIGHTS AGREEMENT
AMENDMENT, dated as of June 28, 2000, to the Rights Agreement,
dated as of December 20, 1991 (the "Agreement"), between Inprise
Corporation, a Delaware corporation formerly known as Borland
International, Inc. (the "Company"), and ChaseMellon Shareholder Services,
L.L.C., a New Jersey limited liability company as successor to
Manufacturers Hanover Trust Company of California (the "Rights Agent").
WHEREAS, the Company and the Rights Agent entered into the Rights
Agreement specifying the terms of the Rights (as defined therein); and
WHEREAS, the Company and the Rights Agent desire to amend the
Rights Agreement in accordance with Section 26 of the Rights Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth in the Rights Agreement and this Amendment, the
parties hereby agree as follows:
1. Section 1(a) is amended to delete the following from the end
of said Section:
; provided, however, that none of Corel Corporation, a
corporation continued under the laws of Canada ("Corel"),
Carleton Acquisition Co., a Delaware corporation and a
wholly-owned subsidiary of Corel ("Merger Sub"), and their
Affiliates shall be deemed to be an Acquiring Person solely
by virtue of (i) the execution of the Merger Agreement,
dated as of February 6, 2000 (the "Merger Agreement," which
term shall include any amendments thereto) by and among the
Company, Corel and Merger Sub, (ii) the execution of the
Stock Option Agreement, dated as of February 6, 2000 (the
"Stock Option Agreement," which term shall include any
amendments thereto) by and between the Company and Corel,
pursuant to which Stock Option Agreement the Company granted
to Corel an option to purchase 12 million shares of the
Common Stock or (iii) the consummation of any of the
transactions contemplated by either the Merger Agreement or
the Stock Option Agreement, including, without limitation,
the public or other announcement of the merger provided for
by the Merger Agreement (the "Merger"), the consummation of
the Merger and acquisition of shares of Common Stock
pursuant to the Stock Option Agreement.
2. Section 1(e)(i) is amended to delete the following from the
end of said Section:
"; provided, further, that neither Corel, Merger Sub nor any
of their Affiliates shall be deemed the "Beneficial Owner"
or be deemed to "beneficially own" any shares of Common
Stock acquired as a result of the consummation of the Merger
or pursuant to the Stock Option Agreement."
3. Section 1(e)(ii) is amended to delete the following from the end
of said Section:
"; provided, further, that neither Corel, Merger Sub nor any
of their Affiliates shall be deemed the "Beneficial Owner"
or be deemed to "beneficially own" any shares of Common
Stock acquired as a result of the consummation of the Merger
or pursuant to the Stock Option Agreement."
4. Section 1(e)(iii) is amended to delete the following from the
end of said Section:
"; provided, further, that neither Corel, Merger Sub nor any
of their Affiliates shall be deemed the "Beneficial Owner"
or be deemed to "beneficially own" any shares of Common
Stock acquired as a result of the consummation of the Merger
or pursuant to the Stock Option Agreement."
5. Section 1(j) of the Rights Agreement setting forth the
definition of a "Continuing Director," which currently reads as follows:
"(j) "Continuing Director" shall means (i) any member of
the Board of Directors of the Company, while such Person is a
member of the Board, who is not an Acquiring Person, or an
Affiliate or Associate of an Acquiring Person, or a representative
of an Acquiring Person or of any such Affiliate or Associate, and
was a member of the Board prior to the date of this Agreement, or
(ii) any Person who subsequently becomes a member of the Board,
while such Person is a member of the Board, who is not an Acquiring
Person, or an Affiliate or Associate of an Acquiring Person, or a
representative of an Acquiring Person or of any such Affiliate or
Associate, if such Person's nomination for election or election to
the Board is recommended or approved by a majority of the
Continuing Directors."
shall be deleted in its entirety and a new Section 1(j) of the Rights
Agreement shall be amended and restated in its entirety as follows:
"(j) Intentionally deleted in its entirety."
6. Section 1(ii) is amended to delete the following from the end
of said Section:
"; provided, however, that the public announcement of (x)
the Merger, (y) that Corel, Merger Sub or any of their
Affiliates has become the beneficial owner of 15% or more of
the shares of Common Stock as a result of the consummation
of the Merger, or (z) that Corel, Merger Sub or any of their
Affiliates has become the beneficial owner of 15% or more of
the shares of Common Stock pursuant to the Stock Option
Agreement, shall not constitute a Stock Acquisition Date."
7. Section 1(nn) is amended to delete the following from the end
of said Section:
"Notwithstanding anything to the contrary contained in this
Agreement, neither the Merger nor any acquisition of shares
of Common Stock pursuant to the Stock Option Agreement shall
constitute a Triggering Event or an event described in
Section 11(a)(ii) or Section 13."
8. Section 2 of the Rights Agreement setting forth the appointment
of the Rights Agent, which currently reads as follows:
"Section 2. Appointment of Rights Agent. The Company hereby
appoints the Rights Agent to act as agent for the Company and the
holders of the Rights (who, in accordance with Section 3 hereof,
shall prior to the Distribution Date also be the holders of the
Common Stock) in accordance with the terms and conditions hereof;
and the Rights Agent hereby accepts such appointment. The Company
may from time to time appoint such Co-Rights Agents as it may deem
necessary or desirable."
shall be amended and restated in its entirety as follows:
"Section 2. Appointment of Rights Agent. The Company hereby
appoints the Rights Agent to act as agent for the Company in
accordance with the terms and conditions hereof, and the Rights
Agent hereby accepts such appointment. The Company may from time to
time appoint such Co-Rights Agents as it may deem necessary or
desirable,"
9. The phrase in Section 11(a)(ii), which currently reads as
follows:
"unless the event causing the 15% threshold to be crossed is
the Merger, an acquisition of shares of Common Stock
pursuant to the Stock Option Agreement, a transaction set
forth in Section 13(a) hereof, or is an acquisition of
shares of Common Stock pursuant to a tender offer or an
exchange offer for all outstanding shares of Common Stock"
shall be amended and restated in its entirety as follows:
"unless the event causing the 15% threshold to be crossed is
a transaction set forth in Section 13(a) hereof, or is an
acquisition of shares of Common Stock pursuant to a tender
offer or an exchange offer for all outstanding shares of
Common Xxxxx"
00. Section 18(a) of the Rights Agreement entitled "Concerning the
Rights Agent," which currently reads as follows:
"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 disbursements 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."
shall be amended and restated in its entirety as follows:
"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 disbursements and other disbursements
incurred in the administration and execution of this Agreement and
the exercise arid 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
herein shall survive the termination of this Agreement and the
termination and the expiration of the Rights. The costs and
expenses incurred in enforcing this right of indemnification shall
be paid by the Company. 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. Any liability of the Rights Agent under this Rights
Agreement will be limited to the amount of fees paid by the Company
to the Rights Agent."
11. Section 23(a) of the Rights Agreement setting forth the
redemption and termination provisions, which currently reads as follows:
"Section 23. Redemption and Termination.
(a) The Board of Directors of the Company may, at its
option, at any time prior to the earlier of (i) the close of
business on the tenth day following the Stock Acquisition Date (or,
if the Stock Acquisition Date shall have occurred prior to the
Record Date, the close of business on the tenth day following the
Record Date), or (ii) the Final Expiration Date, redeem all but not
less than all the then outstanding Rights at a redemption price of
$.01 per Right,.as such amount may be appropriately adjusted to
reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such redemption price being
hereinafter referred to as the "Redemption Price"); provided,
however, if the Board of Directors of the Company authorizes
redemption of the Rights in either of the circumstances set forth
in clauses (i) and (ii) below, then there must be Continuing
Directors then in office and such authorization shall require the
concurrence of a majority of such Continuing Directors: (i) such
authorization occurs on or after the time a Person becomes an
Acquiring Person, or (ii) such authorization occurs on or after the
date of a change (resulting from a proxy or consent solicitation)
in a majority of the directors in office at the commencement of
such solicitation if any Person who is a participant in such
solicitation has stated (or, if upon the commencement of such
solicitation, a majority of the Board of Directors of the Company
has determined in good faith) that such Person (or any of its
Affiliates or Associates) intends to take, or may consider taking,
any action which would result in such Person becoming an Acquiring
Person or which would cause the occurrence of a Triggering Event
unless, concurrent with such solicitation, such Person (or one or
more of its Affiliates or Associates) is mixing a cash tender offer
pursuant to a Schedule 14D-1 (or any successor form) filed with
the Securities and Exchange Commission for all outstanding shares
of Common Stock not beneficially owned by such Person (or by its
Affiliates or Associates). Notwithstanding anything contained in
this Agreement to the contrary, the Rights shall not be exercisable
after the first occurrence of a Section 11 (a)(ii) Event until such
time as the Company's right of redemption hereunder has expired.
The Company may, at its option, pay the Redemption Price in cash,
shares of Common Stock (based on the "Current Market Price", as
defined in Section 11(d)(i) hereof; of the Common Stock at the time
of redemption) or any other form of consideration deemed
appropriate by the Board of Directors."
shall be amended and restated in its entirety as follows:
"Section 23. Redemption and Termination.
(a) The Board of Directors of the Company may, at its
option, at any time prior to the earlier of(i) the close of
business on the tenth day following the Stock Acquisition Date (or,
if the Stock Acquisition Date shall have occurred prior to the
Record Date, the close of business on the tenth day following the
Record Date), or (ii) the Final Expiration Date, redeem all but not
less than all the then outstanding Rights at a redemption price of
$.01 per Right, as such amount may be appropriately adjusted to
reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such redemption price being
hereinafter referred to as the "Redemption Price"). Notwithstanding
anything contained in this Agreement to the contrary, the Rights
shall not be exercisable after the first occurrence of a Section
11(a)(ii) Event until such time as the Company's right of
redemption hereunder has expired. The Company may, at its option,
pay the Redemption Price in cash, shares of Common Stock (based on
the "Current Market Price", as defined in Section 11(d)(i) hereof,
of the Common Stock at the time of redemption) or any other form of
consideration deemed appropriate by the Board of Directors."
12. Section 26 of the Rights Agreement setting forth the
supplements and amendments provisions, which currently reads as follows:
"Section 26. Supplements and Amendments.
Prior to the Distribution Date and subject to the
penultimate sentence of this Section 26, the Company and the Rights
Agent shall, if the Company so directs, supplement or amend any
provision of this Agreement without the approval of any holders of
certificates representing shares of Common Stock. From and after
the Distribution Date and subject to the penultimate sentence of
this Section 26, the Company and the Rights Agent shall, if the
Company so directs, supplement or amend this Agreement without the
approval of any holders of Rights Certificates in order to (i) to
cure any ambiguity, (ii) to correct or supplement any provision
contained herein which may be defective or inconsistent with any
other provisions herein, (iii) to shorten or lengthen any time
period hereunder (which lengthening or shortening, following the
first occurrence of an event set forth in clauses (i) and (ii) of
the first proviso to Section 23(a) hereof, shall be effective only
if there are Continuing Directors and shall require the concurrence
of a majority of such Continuing Directors), or (iv) to change or
supplement the provisions hereunder in any manner which the Company
may deem necessary or desirable and which shall not adversely
affect the interests of the holders of Rights Certificates (other
than an Acquiring Person or an Affiliate or Associate of an
Acquiring Person); provided, this Agreement may not be supplemented
or amended to lengthen, pursuant to clause (iii) of this sentence,
(A) a time period relating to when the Rights may be redeemed at
such time as the Rights are not then redeemable, or (B) any other
time period unless such lengthening is for the purpose of
protecting, enhancing or clarifying the rights of, and/or the
benefits to, the holders of Rights. Any such supplement or
amendment shall be effective upon the action of the Board of
Directors without any further action and without any notice.
Promptly after the action of the Board of Directors supplementing
or amending the Agreement, the Company shall give notice of such
supplement or amendment to the Rights Agent and the holders of the
then outstanding Rights by mailing such notice to all such holders
at each holder's last address as it appears on the registry books
of the Rights Agent or, prior to the Distribution Date, on the
registry books of the Transfer Agent for the Common Stock. Upon the
delivery of a certificate from an appropriate officer of the
Company which states that the proposed supplement or amendment is
in compliance with the terms of this Section 26, the Rights Agent
shall execute such supplement or amendment. Notwithstanding
anything contained in this Agreement to the contrary, no supplement
or amendment shall be made which changes the Redemption Price, the
Final Expiration Date, the Purchase Price or the number of one
one-thousandths of a share of Preferred Stock for which a Right is
exercisable. Prior to the Distribution Date, the interests of the
holders of Rights shall be deemed coincident with the interests of
the holders of Common Stock."
shall be amended and restated in its entirety as follows:
"Section 26. Supplements and Amendments.
Prior to the Distribution Date and subject to the
penultimate sentence of this Section 26, the Company and the Rights
Agent shall, if the Company so directs, supplement or amend any
provision of this Agreement without the approval of any holders of
certificates representing shares of Common Stock. From and after
the Distribution Date and subject to the penultimate sentence of
this Section 26, the Company and the Rights Agent shall, if the
Company so directs, supplement or amend this Agreement without the
approval of any holders of Rights Certificates in order to (i) to
cure any ambiguity, (ii) to correct or supplement any provision
contained herein which may be defective or inconsistent with any
other provisions herein, (iii) to shorten or lengthen any time
period hereunder, or (iv) to change or supplement the provisions
hereunder in any manner which the Company may deem necessary or
desirable and which shall not adversely affect the interests of the
holders of Rights Certificates (other than an Acquiring Person or
an Affiliate or Associate of an Acquiring Person); provided, this
Agreement may not be supplemented or amended to lengthen, pursuant
to clause (iii) of this sentence, (A) a time period relating to
when the Rights may be redeemed at such time as the Rights are not
then redeemable, or (B) any other time period unless such
lengthening is for the purpose of protecting, enhancing or
clarifying the rights of and/or the benefits to, the holders of
Rights. Any such supplement or amendment shall be effective upon
the action of the Board of Directors without any further action and
without any notice. Promptly after the action of the Board of
Directors supplementing or amending the Agreement, the Company
shall give notice of such supplement or amendment to the
Rights Agent and the holders of the then outstanding Rights by
mailing such notice to all such holders at each holder's last
address as it appears on the registry books of the Rights Agent or,
prior to the Distribution Date, on the registry books of the
Transfer Agent for the Common Stock. Upon the delivery of a
certificate from an appropriate officer of the Company which states
that the proposed supplement or amendment is in compliance with the
terms of this Section 26, the Rights Agent shall execute such
supplement or amendment. Notwithstanding anything contained in this
Agreement to the contrary, no supplement or amendment shall be made
which changes the Redemption Price, the Final Expiration Date, the
Purchase Price or the number of one one-thousandths of a share of
Preferred Stock for which a Right is exercisable. Prior to the
Distribution Date, the interests of the holders of Rights shall be
deemed coincident with the interests of the holders of Common
Stock."
13. Section 28 of the Rights Agreement setting forth the
determinations and actions by the Board of Directors, which currently reads
as follows:
"Section 28. Determinations and Actions by the Board of Directors, etc.
For all purposes of this Agreement, any calculation of the
number of shares of Common Stock outstanding at any particular
time, including for purposes of determining the particular
percentage of such outstanding shares of Common Stock of which any
Person is the Beneficial Owner, shall be made in accordance with
the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and
Regulations under the Exchange Act. The Board of Directors of the
Company (with, where specifically provided for herein, the
concurrence of the Continuing Directors) shall have the exclusive
power and authority to administer this Agreement and to exercise
all rights and powers specifically granted to the Board of
Directors of the Company (with, where specifically provided for
herein, the concurrence of the Continuing Directors) or to the
Company, or as may be necessary or advisable in the administration
of this Agreement, including without limitation, the right and
power to (i) interpret the provisions of this Agreement, and (ii)
make all determinations deemed necessary or advisable for the
administration of this Agreement (including a determination to
redeem or not redeem the Rights or to amend the Agreement). All
such actions, calculations, interpretations and determinations
(including, for purposes of clause (y) below, all omissions with
respect to the foregoing) which are done or made by the Board
(with, where specifically provided for herein, the concurrence of
the Continuing Directors) in good faith, shall (x) be final,
conclusive and binding on the Company, the Rights Agent, the
holders of the Rights and all other parties, and (y) not subject
the Board of Directors of the Company or the Continuing Directors
to any liability to the holders of the Rights."
shall be amended and restated in its entirety as follows:
"Section 28. Determinations and Actions by the Board of Directors, etc.
For all purposes of this Agreement, any calculation of the
number of shares of Common Stock outstanding at any particular
time, including for purposes of determining the particular
percentage of such outstanding shares of Common Stock of which any
Person is the Beneficial Owner, shall be made in accordance with
the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and
Regulations under the Exchange Act. The Board of Directors of the
Company shall have the exclusive power and authority to administer
this Agreement and to exercise all rights and powers specifically
granted to the Board of Directors of the Company or to the Company,
or as may be necessary or advisable in the administration of this
Agreement, including without limitation, the right and power to (i)
interpret the provisions of this Agreement, and (ii) make all
determinations deemed necessary or advisable for the administration
of this Agreement (including a determination to redeem or not
redeem the Rights or to amend the Agreement). All such actions,
calculations, interpretations and determinations (including, for
purposes of clause (y) below, all omissions with respect to the
foregoing) which are done or made by the Board in good faith, shall
(x) be final, conclusive and binding on the Company, the Rights
Agent, the holders of the Rights and all other parties, and (y) not
subject the Board of Directors of the Company to any liability to
the holders of the Rights."
14. Exhibit B is amended to delete the following from Paragraph
Six of the Rights Certificate:
"Under certain circumstances set forth in the Rights Agreement, the
decision to redeem shall require the concurrence of a majority of
the Continuing Directors."
15. The term "Agreement" as used in the Rights Agreement shall be
used to refer to the Rights Agreement as amended hereby.
16. This Amendment shall be effective as of June 28, 2000, and
except as set forth herein, the Rights Agreement shall remain in full force
and effect and shall be otherwise unaffected hereby.
17. This Amendment may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed this 28th day of June 2000.
INPRISE CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
_________________________________________
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President, General Counsel
and Corporate Secretary
CHASEMELLON SHAREHOLDER
SERVICES, L.L.C.
By: /s/ Xxxxxx Xxxxxxxxxxx
________________________________________
Name: Xxxxxx Xxxxxxxxxxx
Title: Assistant Vice President
