AMENDMENT TO RIGHTS AGREEMENT
This AMENDMENT (this "Amendment") is being entered into as of
August 3, 1998 between Stratus Computer, Inc., a Massachusetts corporation
(the "Company"), and BankBoston, N.A., as rights agent (the "Rights
Agent").
The Company and The First National Bank of Boston are parties to
a Rights Agreement dated as of December 4, 1990 (the "Rights Agreement").
Pursuant to Section 27 of the Rights Agreement, the Company and the Rights
Agent may, prior to the Distribution Date (as defined therein), amend any
provision of the Rights Agreement (other than certain specifically
enumerated provisions) without the approval of any holders of certificates
representing the common stock of the Company. The Company now desires to
amend the Rights Agreement as set forth in this Amendment.
NOW THEREFORE, in consideration of the premises and the mutual
agreement herein set forth, the parties hereby agree as follows:
1. AMENDMENT OF SECTION 1(a). Section 1(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, neither Ascend nor any of its existing or future
Affiliates or Associates shall be deemed to be an Acquiring
Person 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."
2. AMENDMENT OF SECTION 1(v). Section 1(v) 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:
(w) "Ascend" shall mean Ascend Communications, Inc., a
Delaware corporation.
(x) "Merger" shall have the meaning set forth in the Merger
Agreement.
(y) "Merger Agreement" shall have the meaning set forth in
Section 35 hereof.
(z) "Merger Subsidiary" shall have the meaning set forth in
Section 35 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(d). Section 13(d) 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 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 35. The Rights Agreement is hereby
modified, supplemented and amended to add the following new Section 35:
"Section 35. Merger With Wildcard Merger Corporation
The Company, Ascend and Wildcard Merger Corporation, a
Delaware corporation and a wholly owned subsidiary of Ascend
("Merger Subsidiary"), have entered into an Agreement and Plan of
Merger, dated as of August 3, 1998 as it may be amended from time
to time (the "Merger Agreement"), pursuant to which 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(a) 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(v) 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: STRATUS COMPUTER, INC.
/s/ Eileen Casal By: /s/ Maurice L. Castonguay
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Attest: RIGHTS AGENT: BANKBOSTON, N.A.
/s/ Paul Lyons By: /s/ Tyler Haynes
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