Exhibit 10.2
AMENDMENT NO. 2 TO RIGHTS AGREEMENT
THIS AMENDMENT NO. 2 TO RIGHTS AGREEMENT (this "AMENDMENT NO. 2"), dated as
of June 5, 2006, is made by and between Onyx Software, a Washington corporation
(the "COMPANY"), and Mellon Investor Services LLC, a New Jersey limited
liability company, as Rights Agent (the "RIGHTS AGENT"). Reference is made to
the Rights Agreement dated as of October 25, 1999 (the "RIGHTS AGREEMENT")
between the parties, as amended by Amendment No. 1 to Rights Agreement, dated as
of March 5, 2003, between the parties. Capitalized terms used but not defined
herein shall have the respective meanings ascribed to them in the Rights
Agreement.
WHEREAS, pursuant to Section 26 of the Rights Agreement, the Company and
the Rights Agent may from time to time supplement or amend the Rights Agreement
in accordance with the provisions of Section 26 thereof; and
WHEREAS, the Company is a party to an Agreement and Plan of Merger (as it
may be amended or supplemented from time to time, the "M2M MERGER AGREEMENT"),
dated June 5, 2006, among M2M Holdings, Inc., a Delaware corporation ("M2M"),
Orion Acquisition Corporation, a Delaware corporation and wholly owned direct
subsidiary of M2M ("MERGER SUB"), and the Company, which provides for, among
other things, the merger of Merger Sub with and into the Company, with the
Company as the surviving corporation (the "M2M MERGER"), subject to shareholder
approval and other terms and conditions; and
WHEREAS, concurrently with the execution and delivery of the M2M Merger
Agreement, M2M and certain shareholders of the Company (the "SHAREHOLDERS")
entered into Support Agreements, dated as of June 5, 2006 (the "SUPPORT
AGREEMENTS"), which, among other things, obligate the Shareholders to vote in
support of the M2M Merger, restrict the ability of the Shareholders to transfer
shares of the Company's Common Stock, and grant M2M an irrevocable proxy to vote
the Shareholders' shares of the Company's Common Stock; and
WHEREAS, the M2M Merger Agreement contemplates amendments to the Rights
Agreement so that the Rights Agreement will not be applicable to the M2M Merger
Agreement, the M2M Merger, the Support Agreements, and the transactions
contemplated by the Merger Agreement and the Support Agreements; and
WHEREAS, the Company's Board of Directors previously determined that it is
in the best interests of the Company and its shareholders to amend the Rights
Agreement as contemplated by the M2M Merger Agreement;
NOW, THEREFORE, in accordance with Section 26 of the Rights Agreement, the
Company and the Rights Agent hereby amend the Rights Agreement as follows:
1. The definition of "ACQUIRING PERSON" in Section 1 of the Rights
Agreement is hereby modified and amended by adding the following sentence at the
end thereof:
"Notwithstanding anything in this Rights Agreement to the contrary,
none of M2M Holdings, Inc., a Delaware corporation ("M2M"), Orion
Acquisition Corporation, a Delaware corporation
("MERGER SUB"), nor any of their Affiliates or Associates, shall be
deemed to be an Acquiring Person by virtue of the execution of the
Agreement and Plan of Merger, dated as of June 5, 2006 (as the same
may be amended from time to time, the "M2M MERGER AGREEMENT"), by and
among M2M, Merger Sub and the Company, the Support Agreements, dated
as of June 5, 2006, between M2M and each of the directors and
executive officers of the Company (the "SUPPORT AGREEMENTS") or the
consummation of the transactions contemplated by the M2M Merger
Agreement, including, without limitation, the merger of Merger Sub
with and into the Company (the "M2M MERGER"), or the acquisition of
beneficial ownership of Common Shares pursuant to the Support
Agreements or the announcement of any of the foregoing transactions."
2. Section 3(b) of the Rights Agreement is hereby modified and amended by
adding 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 as a result of
the execution of the M2M Merger Agreement or the Support Agreements or
the consummation of the transactions contemplated by the M2M Merger
Agreement, including, without limitation, the M2M Merger, the
acquisition of beneficial ownership of Common Shares pursuant to the
Support Agreements, or the announcement of any of the foregoing
transactions."
3. Section 7(a) of the Rights Agreement shall be deleted in its entirety
and replaced with the following paragraph:
"Subject to Section 7(e) and except as otherwise provided in this
Rights Agreement (including Section 11), each Right shall entitle the
registered holder thereof, upon exercise thereof as provided in this
Rights Agreement, to purchase for the Purchase Price, at any time
after the Distribution Date and at or prior to the earlier of (i) the
Close of Business on the 10th anniversary of the date of this Rights
Agreement (the Close of Business on such date, or if earlier, the time
immediately prior to the consummation of the M2M Merger as
contemplated by the M2M Merger Agreement, being the "Expiration Date")
and (ii) the Redemption Date, one one -hundredth (1/100) of a
Preferred Share, subject to adjustment from time to time as provided
in Sections 11 and 12."
4. Section 11 of the Rights Agreement is hereby modified and amended by
adding the following subsection (d) after the conclusion of subsection (c)(iii):
2
"(d) Notwithstanding anything in this Rights Agreement to the
contrary, the provisions of this Section 11 shall not apply to the
execution of the M2M Merger Agreement or the Support Agreements or the
consummation of the transactions contemplated by the M2M Merger
Agreement, including, without limitation, the M2M Merger, the
acquisition of beneficial ownership of Common Shares pursuant to the
Support Agreements, or the announcement of any of the foregoing
transactions."
5. The definition of "SHARES ACQUISITION DATE" in Section 1 of the Rights
Agreement is hereby modified and amended by adding the following sentence at the
end thereof:
"Notwithstanding anything in this Rights Agreement to the contrary, a
Shares Acquisition Date shall not be deemed to have occurred as a
result of the execution of the M2M Merger Agreement or the Support
Agreements or the consummation of the transactions contemplated by the
M2M Merger Agreement, including, without limitation, the M2M Merger,
the acquisition of beneficial ownership of Common Shares pursuant to
the Support Agreements, or the announcement of any of the foregoing
transactions."
6. Section 28(a) of the Rights Agreement is hereby modified and amended by
adding the following sentence at the end thereof:
"Nothing in this Rights Agreement shall be construed to give any
holder of Rights (and, prior to the Distribution Date, the Common
Shares) or any other Person any legal or equitable rights, remedies,
or claims under this Rights Agreement by virtue of the execution of
the M2M Merger Agreement or the Support Agreements or the consummation
of the transactions contemplated by the M2M Merger Agreement,
including, without limitation, the M2M Merger, the acquisition of
beneficial ownership or the transfer of Common Shares pursuant to the
Support Agreements, or the announcement of any of the foregoing
transactions."
7. This Amendment No. 2 shall be deemed to be a contract made under the
laws of the state of Washington 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; provided, however, that all
provisions regarding the rights, duties and obligations of the Rights Agent
shall be governed by and construed in accordance with the laws of the state of
New York applicable to contracts to be performed entirely within such state.
8. This Amendment No. 2 may be executed in any number of counterparts, each
of which counterparts shall for all purposes be deemed to be an original, and
all of such counterparts shall together constitute but one and the same
instrument.
3
9. In all respects not inconsistent with the terms and provisions of this
Amendment No. 2, the Rights Agreement is hereby ratified, adopted, approved and
confirmed. In executing and delivering this Amendment No. 2, the Rights Agent
shall be entitled to all of the privileges and immunities afforded to the Rights
Agent under the terms and conditions of the Rights Agreement.
10. If any term, provision, covenant or restriction of this Amendment No. 2
is held by a court of competent jurisdiction or other authority to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants, and
restrictions of this Amendment No. 2, and of the Rights Agreement, shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated.
[Signature page follows]
4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to
be duly executed, all as of the date and year first above written.
ONYX SOFTWARE CORPORATION
By: /S/ XXXXXX X. XXXXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President and Chief Executive
Officer
MELLON INVESTOR SERVICES LLC,
as Rights Agent
By: /S/ XXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Client Relationship Executive
