EXHIBIT 4.4
AMENDMENT NO. 2
TO THE INFORMIX CORPORATION
FIRST AMENDED AND RESTATED RIGHTS AGREEMENT
April 26, 2002
This AMENDMENT NO. 2 ("Amendment No. 2") is being entered into as of
the date first written above, between Ascential Software Corporation (formerly
known as Informix Corporation), a Delaware corporation (the "Company"), and
EquiServe Trust Company, N.A., a national banking association, as Rights Agent
("EquiServe"). Capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Rights Agreement.
WHEREAS, the Company is a party to, and EquiServe is a successor in
interest to the Rights Agent under, the First Amended and Restated Rights
Agreement, dated as of August 12, 1997, between Informix Corporation and
BankBoston, N.A, as Rights Agent, as amended by an Amendment to the Informix
Corporation First Amended and Restated Rights Agreement ("Amendment No. 1"),
dated as of November 17, 1997 (the "Rights Agreement");
WHEREAS, pursuant to Section 27 of the Rights Agreement, prior to the
Distribution Date the Company may supplement or amend the Rights Agreement
without the approval of any of the holders of Rights; and
WHEREAS, the Company now desires to amend the Rights Agreement and to
update certain information therein, as set forth in this Amendment No. 2, and
deems such amendments and updates to be necessary and desirable.
NOW THEREFORE, in consideration of the premises and mutual agreements
set forth herein, the Parties hereby agree as follows:
1. The title of the Rights Agreement shall be changed to: The Ascential
Software Corporation First Amended and Restated Rights Agreement.
2. All references in the Rights Agreement to "Informix Corporation" shall be
replaced with "Ascential Software Corporation."
3. All references in the Rights Agreement to "BankBoston, N.A." as the shall
be replaced with "EquiServe Trust Company, N.A."
4. The Definition of "Acquiring Person" set forth in Section 1(a) of the
Rights Agreement is hereby amended in its entirety to read as follows:
"Acquiring Person" shall mean any Person who or which, together
with all Affiliates and Associates of such Person, shall be the
Beneficial Owner of 20% or more of the Common Shares then
outstanding, but shall not include (i) the Company, (ii) any
Subsidiary of the Company, or (iii) any employee benefit plan of the
Company or of any Subsidiary of the Company, or any entity holding
Common Shares for or pursuant to the terms of any such plan.
Notwithstanding the foregoing, no Person shall be deemed to be an
"Acquiring Person" as the result of an acquisition of Common Shares
by the Company which, by reducing the number of shares outstanding,
increases the proportionate number of shares beneficially owned by
such Person to 20% or more of the Common Shares of the Company then
outstanding; provided however, that if a Person shall become the
Beneficial Owner of 20% or more of the Common Shares of the Company
then outstanding by reason of share purchases by the Company and
shall, after such share purchases by the Company, become the
Beneficial Owner of any additional Common Shares of the Company,
then such Person shall be deemed to be an "Acquiring Person."
5. Section 11(a)(iv) of the Rights Agreement is hereby amended in its
entirety to read as follows:
In the event that the number of Common Shares which are
authorized by the Company's Certificate of Incorporation but not
outstanding or reserved for issuance for purposes other than upon
exercise of the Rights are not sufficient to permit the exercised in
full of the Rights the Company shall: (A) determine the excess of
(1) the value of the Common Shares issuable upon the exercise of a
Right (the "Current Value") over (2) the Purchase Price (such
excess, the "Spread") and (B) with respect to each such Right, make
adequate provision to substitute for such Common Shares, upon
exercise of the Rights (1) cash, (2) a reduction in the Purchase
Price, (3) other equity securities of the Company (including,
without limitation, shares or units of shares of any series of
preferred stock which the Board of Directors of the Company has
deemed to have the same value as Common Shares (such shares or units
of shares of preferred stock are herein called "common stock
equivalents"), (5) other assets or (6) any combination of the
foregoing, having an aggregate value equal to the Current Value,
where such aggregate value has been determined by the Board of
Directors of the Company based on the advice of a nationally
recognized investment banking firm selected by the Board of
Directors of the Company; provided however, if the Company shall not
have made adequate provision to deliver value pursuant to clause (B)
above within thirty (30) days following the later of (x) the first
occurrence of a Triggering Event and (y) the date on which the
Company's right of redemption pursuant to Section 23(a) expires (the
later of (x) and (y) being referred to herein as the "Section
11(a)(ii) Trigger Date"), then the Company shall be obligated to
deliver, upon the surrender for exercise of a Right and without
requiring payment of the Purchase Price, Common Shares (to the
extent available), and then, if necessary, cash, which shares and/or
cash have an aggregate value equal to the Spread. If the Board of
Directors of the Company shall determine in good faith that it is
likely that sufficient additional Common Shares could be authorized
for issuance upon exercise in full of the Rights, the thirty (30)
day period set forth above may be extended to the extent necessary,
but not more than ninety (90) days after the Section 11(a)(ii)
Trigger Date, in order that the Company may seek stockholder
approval for the authorization of such additional shares (such
thirty (30) day period, as it may be extended, the "Substitution
Period"). To the extent that the Company determines that some action
need be taken pursuant to the first and/or second sentences of this
Section 11(a)(iv), the Company (x) shall provide, subject to Section
7(e) hereof, that such action shall apply uniformly to all
outstanding Rights and (y) may suspend the exercisability of the
Rights until the expiration of the Substitution Period in order to
seek any authorization of additional shares and/or to decide the
appropriate form of distribution to be made pursuant to such first
sentence and to determine the value thereof. In the event of any
such suspension, the Company shall issue a public announcement
stating that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as the
suspension is no longer in effect. For purposes of this Section
11(a)(iv), the value of the Common Shares shall be the current per
share market price (as determined pursuant to Section 11(d) hereof)
of the Common Shares on the Section 11(a)(ii) Trigger Date and the
value of any "common stock equivalent" shall be deemed to have the
same value as the Common Shares on such date.
6. Section 26 of the Rights Agreement is hereby amended in its entirety 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:
Ascential Software Corporation
50 Washington Street
Westboro, Massachusetts 01581
Attention: General Counsel
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 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:
EquiServe Trust Company, N.A.
150 Royall Street
Canton, Massachusetts 02021
Attention: Client Administration
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.
7. The Form of Rights Certificate, as set forth in Exhibit A to the Rights
Agreement, is hereby amended in its entirety to read as set forth in
Exhibit A hereto.
8. This Amendment No. 2 replaces and supercedes the provisions of Amendment
No. 1 in its entirety.
9. The Rights Agreement may be amended and restated to reflect the
provisions of this Amendment No. 2.
10. The term "Agreement" as used in the Rights Agreement shall be deemed to
refer to the Rights Agreement as amended hereby, and all references to
the Rights Agreement shall be deemed to include this Amendment No. 2.
11. This Amendment No. 2 shall be deemed effective as of the date first
written above. Except as amended hereby, the Rights Agreement shall
remain in full force and effect and shall be otherwise unaffected hereby.
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IN WITNESS WHEREOF, the Parties have caused this Amendment to be
executed as of the date first written above.
ASCENTIAL SOFTWARE CORPORATION
By: /s/ Scott Semel
------------------------------
Name: Scott Semel
Title: Vice President, Legal,
General Counsel and
Secretary
EQUISERVE TRUST COMPANY, N.A.
By: /s/ Margaret M. Prentice
-------------------------------
Name: Margaret M. Prentice
Title: Managing Director
Exhibit A
---------
Form of Rights Certificate
Certificate No. R- ____ Rights
NOT EXERCISABLE AFTER JULY 25, 2005 OR EARLIER IF TERMINATED BY THE
COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE
COMPANY, AT $.0l PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY
AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING
PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) AND ANY
SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE
RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR WERE
BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON
OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS
ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS
CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND
VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF SUCH RIGHTS
AGREEMENT.]*
_____________
* The portion of the legend in brackets shall be inserted only if
applicable and shall replace the sentence immediately preceding it.
Rights Certificate
-------------------------
This certifies that _____________, or registered assigns, is the
registered owner of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms, provisions and conditions of
the First Amended and Restated Rights Agreement, as amended (the "Rights
Agreement") to purchase from Ascential Software Corporation (the "Company") at
any time after the Distribution Date (as such term is defined in the Rights
Agreement) and prior to 5:00 p.m., Boston time, on July 25, 2005, at the
office of EquiServe Trust Company, N.A. (the "Rights Agent") designated for
such purpose, or at the office of its successor as Rights Agent, one fully
paid and nonassessable share of Common Stock, par value $.0l per share, (the
"Common Shares"), of the Company, at a purchase price of $60.00 per Common
Share (the "Purchase Price"), upon presentation and surrender of this Rights
Certificate with the Form of Election to Purchase and related Certificate duly
executed. The number of Rights evidenced by this Rights Certificate (and the
number of Common Shares which may be purchased upon exercise hereof) set forth
above are the number and Purchase Price as of August 12, 1997, based on the
Common Shares as constituted at such date. As provided in the Rights
Agreement, the Purchase Price and the number and kind of Common Shares or
other securities which may be purchased upon the exercise of the Rights
evidenced by this Rights Certificate are subject to modification and
adjustment upon the happening of certain events.
This Rights Certificate is subject to all of the terms, provisions
and conditions of the Rights Agreement, which terms, provisions and conditions
are hereby incorporated by reference and made a part hereof. Reference is made
to the Rights Agreement for a full description of the rights, limitations of
rights, obligations, duties and immunities hereunder of the Rights Agent, the
Company and the holders of the Rights Certificates, which limitations of
rights include the temporary suspension of the exercisability of such Rights
under the specific circumstances set forth in the Rights Agreement. Copies of
the Rights Agreement are on file at the principal executive offices of the
Company and the above-mentioned office of the Rights Agent.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Rights Certificate (i) may be redeemed by the Company, at
its option, at a redemption price of $.01 per Right or (ii) may be exchanged
by the Company in whole or in part for Common Shares, substantially equivalent
rights or other consideration as determined by the Company.
This Rights Certificate, with or without other Rights Certificates,
upon surrender at the office of the Rights Agent designated for such purpose,
may be exchanged for another Rights Certificate or Rights Certificates of like
tenor and date evidencing Rights entitling the holder to purchase a like
aggregate amount of securities as the Rights evidenced by the Rights
Certificate or Rights Certificates surrendered shall have entitled such holder
to purchase. If this Rights Certificate shall be exercised in part, the holder
shall be entitled to receive upon surrender hereof another Rights Certificate
or Rights Certificates for the number of whole Rights not exercised.
No fractional portion of a Common Share will be issued upon the
exercise of any Right or Rights evidenced hereby but in lieu thereof a cash
payment will be made, as provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of the
Common Shares or of any other securities of the Company which may at any time
be issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such,
any of the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Rights
Certificate shall have been exercised as provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal. Dated as of ___________, __________.
ATTEST: ASCENTIAL SOFTWARE CORPORATION
_____________________________ By: ____________________________
Secretary President
Countersigned:
EQUISERVE TRUST COMPANY, N.A.
By: _________________________
Authorized Signatory