EXHIBIT 4
AMENDMENT TO RIGHTS AGREEMENT
This AMENDMENT, dated as of February 3, 1998, is between
Digital Equipment Corporation, a Massachusetts corporation (the
"Company"), and First Chicago Trust Company of New York, as rights
agent (the "Rights Agent").
RECITALS
A. The Company and the Rights Agent are parties to a Rights
Agreement dated as of December 11, 1989 (the "Rights Agreement").
B. Compaq Computer Corporation, a Delaware corporation
("Parent") and the Company have entered into an Agreement and Plan of
Merger dated as of January 25, 1998, as it may be amended from time to
time (the "Merger Agreement"), pursuant to which a newly formed and
wholly-owned subsidiary of Parent will merge with and into the Company
(the "Merger"). The Board of Directors of the Company has approved the
Merger Agreement and the Merger.
C. Pursuant to Section 26 of the Rights Agreement, the
Board of Directors of the Company has determined that an amendment to
the Rights Agreement as set forth herein is necessary and desirable in
connection with the Merger and the Company and the Rights Agent desire
to evidence such amendment in writing.
Accordingly, the parties agree as follows:
1. AMENDMENT OF SECTION 1(u). Section 1(u) of the Rights
Agreement is hereby amended to add the following sentence at the end
thereof:
"Parent (as defined herein), Merger Subsidiary (as defined
herein), and each of their respective existing or future
Affiliates or Associates shall each be deemed to be an Exempt
Person solely by virtue of and in connection with (i) the
execution of the Merger Agreement (as defined herein), (ii)
the acquisition of Common Stock or other capital stock of the
Company pursuant to the Merger Agreement or the consummation
of the Merger (as defined herein) or (iii) the consummation
of the other transactions contemplated by the Merger
Agreement."
2. AMENDMENT OF SECTION 1(uu). Section 1(uu) of the Rights
Agreement is hereby amended to add the following proviso at the end
thereof:
"; provided, however, that no Triggering Event shall result
solely by virtue of (i) the execution of the Merger
Agreement, (ii) the acquisition of Common Stock or other
capital stock of the Company pursuant to the Merger Agreement
or the consummation of the Merger or (iii) the consummation
of the other transactions contemplated by the Merger
Agreement."
3. AMENDMENT OF SECTION 1. Section 1 of the Rights
Agreement is hereby further amended to add the following subparagraphs
at the end thereof:
(vv) "Merger" shall have the meaning set forth in the
Merger Agreement.
(ww) "Merger Agreement" shall have the meaning set
forth in Section 34 hereof.
(xx) "Merger Subsidiary" shall have the meaning set
forth in Section 34 hereof.
(yy) "Parent" shall have the meaning set forth in
Section 34 hereof.
4. AMENDMENT OF SECTION 3(a). Section 3(a) of the Rights
Agreement is hereby amended to add the following sentence at the end
thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, a Distribution Date shall not be deemed to have
occurred solely by virtue of (i) the execution of the Merger
Agreement, (ii) the acquisition of Common Stock or other
capital stock of the Company pursuant to the Merger Agreement
or the consummation of the Merger or (iii) the consummation
of the other transactions contemplated by the Merger
Agreement."
5. AMENDMENT OF SECTION 7(a). Section 7(a) of the Rights
Agreement is amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, none of (i) the execution of the Merger Agreement,
(ii) the acquisition of Common Stock or other capital stock
of the Company pursuant to the Merger Agreement or the
consummation of the Merger or (iii) the consummation of the
other transactions contemplated by the Merger Agreement shall
be deemed to be events that cause the Rights to become
exercisable pursuant to the provisions of this Section 7 or
otherwise."
6. AMENDMENT OF SECTION 11. Section 11 of the Rights
Agreement is amended to add the following sentence after the first
sentence of said Section:
"Notwithstanding anything in this Rights Agreement to the
contrary, none of (i) the execution of the Merger Agreement,
(ii) the acquisition of Common Stock or other capital stock
of the Company pursuant to the Merger Agreement or the
consummation of the Merger or (iii) the consummation of the
other transactions contemplated in the Merger Agreement shall
be deemed to be events of the type described in this Section
11 or to cause the Rights to be adjusted or to become
exercisable in accordance with this Section 11."
7. AMENDMENT OF SECTION 13. Section 13 of the Rights
Agreement is amended to add a new paragraph (e) at the end thereof:
"(e) Notwithstanding anything in this Rights Agreement to
the contrary, none of (i) the execution of the Merger
Agreement, (ii) the acquisition of Common Stock or other
capital stock of the Company pursuant to the Merger Agreement
or the consummation of the Merger or (iii) the consummation
of the other transactions contemplated in the Merger
Agreement shall be deemed to be events of the type described
in this Section 13 or to cause the Rights to be adjusted or
to become exercisable in accordance with this Section 13."
8. ADDITION OF SECTION 34. The Rights Agreement is hereby
modified, supplemented and amended to add the following new Section 34:
"Section 34. Merger With Merger Subsidiary.
The Company and Compaq Computer Corporation, a Delaware
corporation ("Parent"), have entered into an Agreement and
Plan of Merger, dated as of January 25, 1998 as it may be
amended from time to time (the "Merger Agreement"), pursuant
to which a newly formed and wholly-owned subsidiary of Parent
("Merger Subsidiary"), shall merge with and into the
Company. Notwithstanding anything in this Rights Agreement
to the contrary, if the Merger Agreement shall be terminated
for any reason, then (a) the last sentence of Section 1(u)
hereof shall be deemed repealed and deleted without any
further action on the part of the Company or the Rights Agent
and (b) the proviso at the end of Section 1(uu) hereof shall
be deemed repealed and deleted without any further action on
the part of the Company or the Rights Agent."
9. EFFECTIVENESS. This Amendment shall be deemed effective
as of the date first written above, as if executed on such date.
Except as amended hereby, the Rights Agreement shall remain in full
force and effect and shall be otherwise unaffected hereby.
10. MISCELLANEOUS. This Amendment shall be deemed to be a
contract made under the laws of the Commonwealth of Massachusetts and
for all purposes shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts applicable to contracts
to be made and performed entirely within the Commonwealth of
Massachusetts without giving effect to the principles of conflict of
laws thereof. This Amendment may be executed in any number of
counterparts, 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. If any provision, covenant
or restriction of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, illegal 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.
EXECUTED under seal as of the date first set forth above.
Attest: DIGITAL EQUIPMENT CORPORATION
/s/ Gail Mann By: /s/ Thomas C. Siekman
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Name: Gail Mann Name: Thomas C. Siekman
Title: Vice President, Assistant Title: Senior Vice President
General Counsel, Secretary & General Counsel
and Clerk
Attest: RIGHTS AGENT: FIRST CHICAGO
TRUST COMPANY OF NEW YORK
/s/ G. Carlo Clampaglia By: /s/ Charles D. Keryc
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Name: G. Carlo Clampaglia Name: Charles D. Keryc
Title: Asst. Vice President Title: Vice President