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EXHIBIT 4.4
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").
W I T N E S S E T H
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) ▇▇▇▇ Financial Corporation ("▇▇▇▇ 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 ▇▇▇▇
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.
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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.
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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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
BANKBOSTON, N.A.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director, Client Services
