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EXHIBIT 4.1
FIRST AMENDMENT TO RIGHTS AGREEMENT
This First Amendment to Rights Agreement (this "Amendment") is entered into
as of October 18, 1999 by and between Clarify, Inc., a Delaware corporation (the
"Company") and Xxxxxx Trust Company of California (the "Rights Agent") and
amends the Rights Agreement dated as of June 13, 1997 by and between the Company
and the Rights Agent (the "Agreement"). All capitalized terms used herein and
not otherwise defined shall have the meanings ascribed to such terms in the
Agreement.
Pursuant to Section 27 of the Agreement, the parties to this Amendment
hereby amend the Agreement as follows:
1. The definition of "Acquiring Person" in Section 1 of the
Agreement shall be amended by inserting the following at the end of
such definition:
"Notwithstanding the foregoing or any provision to the contrary in
this Agreement, none of Nortel Networks Corporation, a corporation
organized under the laws of Canada ("Nortel"), Northern Crown
Subsidiary, Inc., a corporation organized under the laws of Delaware
and a wholly owned subsidiary of Nortel ("Sub"), or any of their
respective subsidiaries, Affiliates or Associates is an Acquiring
Person pursuant to this Agreement solely by virtue of the approval,
execution or delivery of the Agreement and Plan of Merger of even date
herewith among Nortel, Sub and the Company (the "Merger Agreement") or
the consummation of the transactions contemplated by the Merger
Agreement, including the Merger (as defined in the Merger Agreement),
the approval, execution or delivery of the ancillary agreements
relating to the Merger, including the Option Agreement, the
Stockholders' Agreement and the Restrictive Covenant Agreements (as
such are defined in the Merger Agreement)(collectively, the "Related
Agreements"), the consummation of the transactions contemplated by the
Related Agreements or the exercise of by the parties thereto of their
respective rights under the Related Agreements, or any public
announcement of the foregoing."
2. The definition of "Shares Acquisition Date" in Section 1 of the
Agreement shall be amended by inserting the following at the end of
such definition:
"Notwithstanding the foregoing or any provision to the contrary in
this Agreement, a Shares Acquisition Date shall not occur solely by
virtue of the approval, execution or delivery of the Merger Agreement
or the consummation of the transactions contemplated by the Merger
Agreement, including the Merger (as defined in the Merger Agreement),
the approval, execution or delivery of the Related Agreements, the
consummation of the transactions contemplated by the Related
Agreements or the exercise by the parties thereto of their respective
rights under the Related Agreements, or any public announcement of the
foregoing."
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3. Section 3(a) shall be amended by inserting the following at the end of
Section 3(a):
"Notwithstanding the foregoing or any provision to the contrary in
this Agreement, a Distribution Date shall not occur solely by virtue
of the approval, execution or delivery of the Merger Agreement or the
consummation of the transactions contemplated by the Merger Agreement,
including the Merger (as defined in the Merger Agreement), the
approval, execution or delivery of the Related Agreements, the
consummation of the transactions contemplated by the Related
Agreements or the exercise by the parties thereto of their respective
rights under the Related Agreements, or any public announcement of the
foregoing."
4. Section 11(a) shall be amended by inserting the following at the end
of the last sentence of Section 11(a):
"; provided, further, that the provisions of this Section 11(a) shall
be inapplicable to, and shall not be triggered by, the approval,
execution or delivery of the Merger Agreement or the consummation of
the transactions contemplated by the Merger Agreement, including the
Merger (as defined in the Merger Agreement), the approval, execution
or delivery of the Related Agreements, the consummation of the
transactions contemplated by the Related Agreements or the exercise by
the parties thereto of their respective rights under the Related
Agreements, or any public announcement of the foregoing."
5. Section 13 shall be amended by inserting the following at the end of
Section 13:
"Notwithstanding the foregoing or any provision to the contrary in
this Agreement, this Section 13 shall not be triggered by virtue of
the approval, execution or delivery of the Merger Agreement or the
consummation of the transactions contemplated by the Merger Agreement,
including the Merger (as defined in the Merger Agreement), the
approval, execution or delivery of the Related Agreements, the
consummation of the transactions contemplated by the Related
Agreements or the exercise by the parties thereto of their respective
rights under the Related Agreements, or any public announcement of the
foregoing."
6. The following shall be added to the Agreement as Section 35:
"Termination. Notwithstanding any provision in this Agreement to the
contrary, this Agreement shall terminate and be of no further force
and effect immediately upon the Effective Time (as defined in the
Merger Agreement) and the Rights shall thereupon be canceled without
the payment of any consideration to the holders of the Rights,
including, without limitation, the Redemption Price."
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7. This Amendment shall be deemed to be entered into under the laws of
the State of Delaware and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to
contracts to be made and performed entirely within such State.
8. This Amendment may be executed in any number of counterparts and 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.
9. Except as amended hereby, all of the terms and conditions of the
Agreement are hereby ratified and confirmed.
[Signature Page Follows]
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The parties have duly executed this First Amendment to Rights Agreement as
of the day and year first written above.
THE "COMPANY"
CLARIFY, INC.
By: /s/ XXX X. XXXXXXXX
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Title: Vice President
Attest: Xxxxxxx Xxxxxxx
THE "RIGHTS AGENT"
THE XXXXXX TRUST COMPANY OF CALIFORNIA
By: /s/ XXXX X. XXXXX
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Signature of Authorized Signatory
Title: Assistant Vice President
