AMENDMENT NO. 1 TO
SHAREHOLDER RIGHTS AGREEMENT
Amendment, dated as of March 3, 1999 (the "Amendment"), to
the Shareholder Rights Agreement, dated as of November 9, 1995
(the "Rights Agreement"), between Expert Software, Inc., a
Delaware corporation (the "Company"), and The First National Bank
of Boston (as predecessor to BankBoston, N.A.), a national
banking association organized under the laws of the United States
(the "Rights Agent").
W I T N E S S E T H
WHEREAS, in accordance with the terms of the Rights
Agreement, the Company deems it desirable to make certain
amendments to the Rights Agreement; and
WHEREAS, Section 27 of the Rights Agreement provides that
prior to the Distribution Date (as defined therein), the Company
and the Rights Agent shall, if the Company so directs, amend or
supplement any provision of the Rights Agreement as the Company
may deem necessary or desirable without the approval of holders
of the Company's common stock, par value $.01 per share (the
"Common Stock"); and
WHEREAS, the Company intends to enter into a Merger
Agreement (the "Merger Agreement") with Activision, Inc., a
Delaware corporation ("Parent") and Expert Acquisition Corp., a
Delaware corporation and wholly-owned subsidiary of Parent
("Acquisition Sub"), pursuant to which, among other things, the
Company will be merged with and into Acquisition Sub and will
become a wholly owned subsidiary of Parent; and
WHEREAS, prior to entering into the Merger Agreement, the
Company desires to amend certain provisions of the Rights
Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree that
the Rights Agreement is hereby amended as follows:
1. Section 1(a) of the Rights Agreement is amended by
adding at the end of Section 1(a) a new paragraph which provides
as follows:
"Notwithstanding anything in this Agreement to the contrary,
neither Activision, Inc., a Delaware corporation ("Parent"), and
Expert Acquisition Corp., a Delaware corporation and wholly-owned
subsidiary of Parent ("Acquisition Sub"), nor any of their
Affiliates or Associates, shall be deemed to be an Acquiring
Person, and no Stock Acquisition Date or Distribution Date shall
occur, as a result of the negotiation, execution or delivery of
the Merger Agreement, dated as of March 3, 1999, by and among the
Company, Parent and Acquisition Sub."
2. Section 2 of the Rights Agreement is 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
and the holders of the Rights (who, in accordance with Section 3
hereof, shall prior to the Distribution Date (as hereinafter
defined in Section 3(a)) 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 upon 10 days prior written notice to the Rights
Agent. The Rights agent shall have no duty to supervise, and
shall in no event be liable for, the act or omission of any such
Co-Rights Agent. In the event the Company appoints one or more
Co-Rights Agents, the respective duties of the Rights Agent and
any Co-Rights Agents shall be as the Company shall determine."
3. Section 26 of the Rights Agreement is amended and
restated in its entirety as follows:
"Section 26. Notices. Notices or demands authorized by
this Agreement to be given or made by the Rights Agent or by any
Co-Rights Agent or by the holder of any Right 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:
Expert Software, Inc.
802 Douglas Road
North Tower, Suite 600
Coral Gables, FL 33134
Attention: Kenneth P. Currier, Secretary
Subject to the provisions of Section 21, any notice or demand
authorized by this Agreement to be given or made by the Company
or by the holder of any Right Certificate to or on the Rights
Agent shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed
in writing with the Company) as follows:
BankBoston, N.A.
c/o EquiServe Limited Partnership
150 Royall Street
Canton, MA 02021
Attention: Client Administration
Subject to the provisions of Section 21, any notice or demand
authorized by this Agreement to be given or made by the Company
or by the holder of any Right Certificate to or on any Co-Rights
Agent shall be sufficiently given or made if sent by first-class
mail, postage prepaid, to such address as such Co-Rights Agent
shall provide to the Company (until another address is filed in
writing with the Company) at the time such Co-Rights Agent is
appointed by the Company.
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any
Right Certificate (or, prior to the Distribution Date, to the
holder of any certificate representing shares of Common Stock)
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."
4. Termination of Amendment. Immediately upon the
termination of the Merger Agreement in accordance with its terms,
this Amendment shall become null and void and of no further force
or effect.
5. Termination of Rights Agreement. If, but only if, the
Effective Time (as defined in the Merger Agreement) shall occur,
then immediately upon the Effective Time the Rights Agreement
shall become null and void and of no further force or effect.
6. Counterpart Signatures. This Amendment may be executed
in one or more counterparts all of which shall be considered one
and the same amendment and each of which shall be deemed to be an
original.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to Shareholder Rights Agreement to be duly
executed as of the day and year first above written.
EXPERT SOFTWARE, INC.
By: /s/ KENNETH P. CURRIER
Name: Kenneth p. Currier
Title: Chief Executive Officer
BANKBOSTON, N.A., (as successor of
The First National Bank of Boston)
as
Rights Agent
By: /s/ TYLER HAYNES
Name: Tyler Haynes
Title: Administration Manager