Exhibit 4.1
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AMENDMENT NO. 1 TO
SHAREHOLDER PROTECTION RIGHTS AGREEMENT
This Amendment No. 1, dated as of April 16, 1998 (this "Amendment"), to the
Shareholder Protection Rights Agreement, dated as of November 21, 1997 (the
"Agreement"), between XcelleNet, Inc., a Georgia corporation ("Company"), and
SunTrust Bank, Atlanta, as Rights Agent (the "Rights Agent").
W I T N E S S E T H:
WHEREAS, Company proposes to enter into an Agreement and Plan of Merger, dated
as of April 16, 1998 (the "Merger Agreement"), among Sterling Commerce, Inc., a
Delaware corporation ("Parent"), Sterling Commerce (Southern), Inc., a Delaware
corporation ("Merger Sub") and Company, pursuant to which Company will represent
and warrant, among other things, that the Agreement has been amended as provided
herein, the effect of which is to provide that the execution and delivery of,
and the consummation of the transactions contemplated by, the Merger Agreement
and the ancillary agreements thereto, including, without limitation, the
Shareholder Agreement (as hereinafter defined), will not (i) result in Parent or
Merger Sub or any of their respective Affiliates or Associates being an
Acquiring Person, (ii) result in the occurrence of a Flip-In Date, a Stock
Acquisition Date, a Separation Time, a Flip-Over Transaction or Event, or (iii)
in any other way effect any change or modification of the terms of the Rights or
the rights of the holders thereof, including, without limitation, the Rights
becoming exercisable; and
WHEREAS, the Board of Directors of Company has determined that it is necessary
and desirable to amend, pursuant to Section 5.4 of the Agreement, the Agreement
to comply with the terms of the Merger Agreement; and
WHEREAS, as of the date of this Amendment all of the members of the Board of
Directors of Company are Continuing Directors (as defined in the Agreement) and
a majority of the Continuing Directors, at a meeting of such Board duly called
and held on April 16, 1998, voted in favor of the adoption of this Amendment.
NOW, THEREFORE, in consideration of the foregoing, the mutual agreements
herein set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Section 1.1 of the Agreement is hereby amended by adding the following
sentence at the end of the definition of "Acquiring Person" contained in such
Section:
"Notwithstanding the foregoing, no Person shall become an 'Acquiring
Person' as the result of the execution and delivery of or the consummation
of the transactions contemplated by the Agreement and Plan of Merger dated
as of April 16, 1998 among Sterling Commerce, Inc., a Delaware
corporation, and its wholly-owned subsidiary, Sterling Commerce
(Southern), Inc., a Delaware corporation, and the Company (the "Merger
Agreement"), and the ancillary agreements thereto, including, without
limitation, the Shareholder Agreement, dated as of the date of the Merger
Agreement, by and between certain shareholders of the Company, on the one
hand, and Parent, on the other hand (the "Shareholder Agreement")."
2. Section 1.1 of the Agreement is hereby amended by adding the following
sentence at the end of the definition of "Beneficial Owner" contained in such
Section:
"Notwithstanding the foregoing, no Person shall be deemed the 'Beneficial
Owner' of, to have 'Beneficial Ownership' of or to 'Beneficially Own', any
securities on account of the execution and delivery of the Merger
Agreement and the ancillary agreements thereto, including, without
limitation, the Shareholder Agreement, or the consummation of the
transactions contemplated thereby."
3. Section 1.1 of the Agreement is hereby amended by adding the following
sentence at the end of the of the definition of "Flip-In Date" contained in such
Section:
"Notwithstanding the foregoing, no Flip-In Date shall occur, and no
resolution shall be adopted by the Board of Directors to fix such date, as
a result of the execution and delivery of, or the consummation of the
transactions contemplated by, the Merger Agreement and the ancillary
agreements thereto, including, without limitation, the Shareholder
Agreement."
4. Section 1.1 of the Agreement is hereby amended by adding the following
sentence at the end of the definition of "Flip-Over Entity" contained in such
Section:
"Notwithstanding the foregoing, no Person shall become a Flip-Over Entity
as a result of the execution and delivery of, or the consummation of the
transactions contemplated by, the Merger Agreement and the ancillary
agreements thereto, including the Shareholder Agreement."
5. Section 1.1 of the Agreement is hereby amended by adding the following
sentence at the end of the definition of "Flip-Over Transaction or Event"
contained in such Section:
"Notwithstanding the foregoing, no Flip-Over Transaction shall occur as a
result of the execution and delivery of, or the consummation of the
transactions contemplated by, the Merger Agreement and the ancillary
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agreements thereto, including, without limitation, the Shareholder
Agreement."
6. Section 1.1 of the Agreement is hereby amended by adding the following
sentence at the end of the definition of "Separation Time" contained in such
Section:
"Notwithstanding the foregoing, neither the announcement of the execution
and delivery of the Merger Agreement or of the calling of a shareholders
meeting to approve and adopt the Merger Agreement nor the filing of the
Proxy Statement (as defined in the Merger Agreement) or any amendment
thereto nor any distribution of the prospectus contained therein nor any
other action taken to facilitate the consummation of the transactions
contemplated by the Merger Agreement and the ancillary agreements thereto
shall be deemed the commencement of a tender or exchange offer for the
purposes of this Agreement."
7. Section 1.1 of the Agreement is hereby amended by deleting the definition
of "Expiration Time" in its entirety and by substituting the following in lieu
thereof:
"'Expiration Time' shall mean the earliest of (i) the Exchange Time, (ii)
the Redemption Time, (iii) November 21, 2007, and (iv) the Effective Time
(as defined in the Merger Agreement)."
8. Section 1.1 of the Agreement is hereby amended by adding the following
sentence at the end of the definition of "Stock Acquisition Date" contained in
such Section:
"Notwithstanding the foregoing, no Stock Acquisition Date shall occur as a
result of the execution and delivery of, or the consummation of the
transactions contemplated by, the Merger Agreement and the ancillary
agreements thereto, including, without limitation, the Shareholder
Agreement."
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9. Section 5.14 of the Agreement is hereby amended by adding the following
sentence at the end thereof:
"The execution and delivery of, and the consummation of the transactions
contemplated by, the Merger Agreement and Amendment No. 1 to this
Agreement have been approved as of April 16, 1998 by all members of the
Board of Directors of the Company for all purposes under this Section
5.14."
10. Terms used herein without definition, but defined in the Agreement, shall
have the meanings assigned to them in the Agreement. Other than as amended
hereby, all other provisions of the Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and attested as of the day and year first above written.
XCELLENET, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Chairman of the Board of Directors
SUNTRUST BANK, ATLANTA
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Group Vice President
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