AMENDMENT TO RIGHTS AGREEMENT BETWEEN SIEBEL SYSTEMS, INC. AND MELLON INVESTOR SERVICES LLC
Exhibit 4.1
This Amendment To Rights Agreement (the “Amendment”) is made as of the 12th day of
September, 2005, by and between Siebel Systems, Inc., a Delaware corporation (the
“Company”), and Mellon Investor Services LLC, a New Jersey limited liability company (the
“Rights Agent”).
Whereas, the Company is entering into an Agreement and Plan of Merger (as the same
may be amended from time to time, the “Merger Agreement”), dated as of September 12, 2005, among
the Company, Oracle Corporation, a Delaware corporation, (“Parent”), Ozark Holding Inc., a Delaware
corporation and wholly owned subsidiary of Parent (the “Holding Company”), Ozark Merger Sub Inc., a
Delaware corporation and wholly owned subsidiary of Holding Company (“Ozark Merger Sub”), and
Sierra Merger Sub Inc., a Delaware corporation and wholly owned subsidiary of Holding Company
(“Sierra Merger Sub”) pursuant to which Sierra Merger Sub will merge with and into the Company upon
the terms and subject to the conditions set forth in the Merger Agreement;
Whereas, the Company and the Rights Agent are parties to that certain Rights
Agreement, dated as of January 29, 2003 (the “Rights Agreement”);
Whereas, the Company desires to amend the Rights Agreement in connection with the
execution and delivery of the Merger Agreement; and
Whereas, the Board of Directors of the Company has approved this Amendment and
authorized its appropriate officers to execute and deliver the same to the Rights Agent.
Now, Therefore, in accordance with the procedures for amendment of the Rights
Agreement set forth in Section 27 thereof, and in consideration of the foregoing and the mutual
agreements herein set forth, the parties hereby agree as follows:
1. Capitalized terms that are not otherwise defined herein shall have the meanings ascribed to
them in the Rights Agreement.
2. The definition of “Acquiring Person” set forth in Section 1(a) of the Rights Agreement is
amended by adding the following sentence to the end of that section:
Notwithstanding the foregoing, no Person shall be or become an Acquiring Person
by reason of (i) the execution and delivery of the Agreement and Plan of Merger (as
the same may be amended from time to time, the “Merger Agreement”), dated as of
September 12, 2005, among the Company, Oracle Corporation, a Delaware corporation,
(“Parent”), Ozark Holding Inc., a Delaware corporation and wholly owned subsidiary
of Parent (the “Holding Company”), Ozark Merger Sub Inc., a Delaware corporation and
wholly owned subsidiary of Holding Company, and Sierra Merger Sub Inc., a Delaware
corporation and
1.
wholly owned subsidiary of Holding Company (“Sierra Merger Sub”) or the
execution of any amendment thereto, (ii) the execution and delivery of a voting
agreement executed by Parent and persons listed on the signature page of such voting
agreement in connection with the execution and delivery of the Merger Agreement and
dated as of September 12, 2005 (the “Voting Agreement”) or the execution of any
amendment thereto, (iii) the merger of Sierra Merger Sub with and into the Company
pursuant to, and on the terms and subject to the conditions set forth in, the Merger
Agreement, as it may be amended from time to time (the “Merger”), or (v) the
consummation of any other transaction contemplated by the Merger Agreement, as it
may be amended from time to time.
3. The definition of “Shares Acquisition Date” in Section l(o) of the Rights Agreement is
hereby amended by adding the following sentence to the end of that section:
Notwithstanding anything else set forth in this Agreement, a Shares Acquisition
Date shall be deemed not to have occurred by reason of (i) the execution and
delivery or amendment of the Merger Agreement or the Voting Agreement, (ii) the
Merger, or (iii) the consummation of any other transaction contemplated by the
Merger Agreement.
4. Section 3(a) of the Rights Agreement is hereby amended by adding the following sentence to
the end of that section:
Notwithstanding anything else set forth in this Agreement, no Distribution Date
shall be deemed to have occurred by reason of (i) the execution and delivery or
amendment of the Merger Agreement or the Voting Agreement, (ii) the Merger, or (iii)
the consummation of any other transaction contemplated by the Merger Agreement.
5. Section 7(a)(i) of the Rights Agreement is hereby amended to delete the phrase “(the “Final
Expiration Date”)” so that it shall read as follows:
(i) the Close of Business on February 12, 2013,
6. Section 7(a) is further amended by deleting the word “or” at the end of Section 7(a)(ii)
and by adding the following clause at the end of Section 7(a):
, or (iv) the moment in time immediately prior to the effective time of the
Merger, as such time is determined pursuant to Section 2.02 of the Merger Agreement
(the earlier to occur of the events described in clauses (i) and (iv) of this
section shall be referred to as the “Final Expiration Date”).
7. Section 11(a)(ii) of the Rights Agreement is hereby amended by adding the following
sentence to the end of that section:
Notwithstanding anything else set forth in this Agreement, no event requiring
an adjustment under this Section 11(a)(ii) shall be deemed to have occurred by
reason of (i) the execution and delivery or amendment of the Merger
2.
Agreement or the Voting Agreement, (ii) the Merger, or (iii) the consummation
of any other transaction contemplated by the Merger Agreement.
8. Sections 13(a)(x) and (y) of the Rights Agreement are amended to read as follows:
(a) In the event that, following the Shares Acquisition Date, or, if a
Transaction is proposed, the Distribution Date, directly or indirectly (x) the
Company shall consolidate with, or merge with and into, any Interested Stockholder,
or if in such merger or consolidation all holders of Common Shares are not treated
alike, any other Person, (y) any Interested Stockholder, or if in such merger or
consolidation all holders of Common Shares are not treated alike, any other Person,
shall consolidate with the Company, or merge with and into, the Company, and the
Company shall be the continuing or surviving corporation of such merger (other than,
in the case of either transaction described in (x) or (y), (i) a merger or
consolidation which would result in all of the voting power represented by the
securities of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into securities of
the surviving entity) all of the voting power represented by the securities of the
Company or such surviving entity outstanding immediately after such merger or
consolidation and the holders of such securities not having changed as a result of
such merger or consolidation or (ii) the Merger),
The remaining portion of Section 13(a) shall be unchanged and shall remain in full force and
effect.
9. The first phrase of Section 13(c) of the Rights Agreement is hereby amended to read as
follows:
The Company shall not consummate any such consolidation, merger (other than the
Merger), sale or transfer unless the Principal Party shall have a sufficient number
of authorized Common Shares that have not been issued or reserved for issuance to
permit the exercise in full of the Rights in accordance with this Section 13 and
unless prior thereto the Company and each Principal Party and each other Person who
may become a Principal Party as a result of such consolidation, merger, sale or
transfer shall have (i) executed and delivered to the Rights Agent a supplemental
agreement providing for the terms set forth in paragraphs (a) and (b) of this
Section 13 and (ii) prepared, filed and had declared and remain effective a
registration statement under the Act on the appropriate form with respect to Rights
and the securities exercisable upon exercise of the Rights and further providing
that, as soon as practicable after the date of any consolidation, merger, sale or
transfer of assets mentioned in paragraph (a) of this Section 13, the Principal
Party at its own expense will: . . .
The remaining portion of Section 13(c) shall be unchanged and shall remain in full force
and effect.
10. 13(d)(i) of the Rights Agreement is hereby amended to read as follows:
3.
(i) consolidate with (other than the Merger),
11. 13(d)(ii) of the Rights Agreement is hereby amended to read as follows:
(ii) merge with or into (other than by the Merger),
12. The Rights Agreement, as amended by this Amendment, shall remain in full force and effect
in accordance with its terms.
13. All the covenants and provisions of this Amendment by or for the benefit of the Company or
the Rights Agent shall bind and inure to the benefit of their respective successors and assigns
hereunder.
14. Nothing in this Amendment shall be construed to give to any person or corporation other
than the Company, Parent, the Holding Company, Ozark Merger Sub, Sierra Merger Sub, the Rights
Agent and the registered holders of the Right Certificates (and, prior to the Distribution Date,
the Common Shares) any legal or equitable right, remedy or claim under this Amendment; but this
Amendment shall be for the sole and exclusive benefit of the Company, Parent, the Holding Company,
Ozark Merger Sub, Sierra Merger Sub, the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, the Common Shares).
15. If any term, provision, covenant or restriction of this Amendment 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 shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
16. This Amendment 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; provided,
however, that the rights, obligations and duties of the Rights Agent shall for all purposes be
governed by and construed in accordance with the laws of the State of New York 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.
17. This Amendment 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.
18. The Company hereby certifies to the Rights Agent that this Amendment is in compliance with
Section 27 of the Rights Agreement.
4.
In Witness Whereof, the parties herein have caused this Amendment to be duly executed
and attested, all as of the date and year first above written.
| Siebel Systems, Inc. | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| Title: Chief Financial Officer | ||||||
Attest:
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | ||||||
| Title: Secretary | ||||||
| Mellon Investor Services LLC | ||||||
| By: | /s/ ▇▇▇ ▇▇▇▇ | |||||
| Name: ▇▇▇ ▇▇▇▇ | ||||||
| Title: Vice President | ||||||
Attest: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇ ▇▇▇▇▇ | ||||||
| Title: Vice President | ||||||
5.