1
Exhibit 3
SECOND AMENDMENT TO
SHAREHOLDER RIGHTS AGREEMENT
Amendment, dated as of October 21, 1998, to the Shareholder Rights
Agreement dated as of February 2, 1995, as amended on November 13, 1997 (the
"Rights Agreement"), between Alpha-Beta Technology, Inc. (the "Company") and
BankBoston, N.A. f/k/a The First National Bank of Boston, as the rights agent
(the "Rights Agent").
WITNESSETH
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
any holders of the Company's common stock.
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 (capitalized terms not otherwise defined herein shall have
the respective meanings ascribed to such terms in the Rights Agreement):
1. The first paragraph of Section 1(a) of the Rights Agreement is amended
and restated as follows:
(a) "ACQUIRING PERSON" shall mean any Person who or which, together with
all Affiliates and Associates of such Person, shall be the Beneficial Owner of
15% or more of the shares of Common Stock then outstanding, but shall not
include (i) the Company, (ii) any Subsidiary of the Company, (iii) any employee
benefit plan or compensation arrangement of the Company or any Subsidiary of the
Company, (iv) any Person holding shares of Common Stock organized, appointed or
established by the Company or any Subsidiary of the Company for or pursuant to
the terms of any such employee benefit plan or compensation arrangement, or (v)
Ross Financial Corporation ("Ross Financial") and HFTP Investments LLC ("HFTP")
(the Persons described in clauses (i) through (v) above are referred to herein
as "Exempt Persons").
2. Section 1(b) of the Rights Agreement is amended and restated as follows:
(b) "ADVERSE PERSON" shall mean any Person, other than Ross Financial and
HFTP, declared to be an Adverse Person by the Board of Directors upon a
determination of the Board of Directors that the criteria set forth in Section
11(a)(ii)(B) apply to such Person.
2
3. Section 3(c) of the Rights Agreement is amended and restated as
follows:
(c) Certificates for the Common Stock issued after October 21, 1998,
but prior to the earlier of the Distribution Date or the redemption, expiration
or termination of the Rights, shall be deemed also to be certificates for
Rights, and shall bear a legend, substantially in the form set forth below:
This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in a Shareholder Rights Agreement between
Alpha-Beta Technology, Inc. and BankBoston, N.A. f/k/a The First
National Bank of Boston, as Rights Agent, dated as of February 2,
1995, as amended from time to time (the "Rights Agreement"), the terms
of which are hereby incorporated herein by reference and a copy of
which is on file at the principal offices of Alpha-Beta Technology,
Inc. Under certain circumstances, as set forth in the Rights
Agreement, such Rights will be evidenced by separate certificates and
will no longer be evidenced by this certificate. Alpha-Beta
Technology, Inc. may redeem the Rights at a redemption price of $0.01
per Right, subject to adjustment, under the terms of the Rights
Agreement. Alpha-Beta Technology, Inc. will mail to the holder of this
certificate a copy of the Rights Agreement, as in effect on the date
of mailing, without charge promptly after receipt of a written request
therefor. Under certain circumstances, Rights issued to or held by
Acquiring Persons, Adverse Persons or any Affiliates or Associates
thereof (as defined in the Rights Agreement), and any subsequent
holder of such Rights, may become null and void.
4. Section 27 of the Rights Agreement is amended by adding the following
sentence at the end of such Section:
Notwithstanding any other provision hereof, the consent of a Person
named in Section 1(a)(v) hereof must be obtained regarding any amendment of or
supplement to this Agreement which at any time could result in such person
becoming an Acquiring Person or being declared an Adverse Person pursuant to the
terms hereof.
As amended hereby, the Rights Agreement shall continue in full force and
effect in accordance with its terms.
3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first set forth above. 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.
ALPHA-BETA TECHNOLOGY, INC.
By: /s/ Joseph M. Grimm
--------------------------------
Name: Joseph M. Grimm
Title: Chief Financial Officer
BANKBOSTON, N.A.
By: /s/ Katherine Anderson
--------------------------------
Name: Katherine Anderson
Title: Director, Client Services