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Exhibit 4.3
AMENDMENT NO. 3 TO RIGHTS AGREEMENT
This Amendment No. 3 to Rights Agreement (this "Amendment"), dated as of
June 15, 1998, amends the Rights Agreement dated as of December 1, 1995 between
FTP Software, Inc., a Massachusetts corporation (the "Company"), and State
Street Bank and Trust Company, a national banking association (the "Rights
Agent"), as amended by Amendment to Rights Agreement dated as of November 7,
1996 between the Company and the Rights Agent and by Amendment No. 2 to Rights
Agreement dated as of February 27, 1998 between the Company and the Rights Agent
(the "Rights Agreement").
WHEREAS, the Board of Directors of the Company has approved an amendment
to the Rights Agreement pursuant to Section 27 thereof;
NOW THEREFORE, in consideration of these premises, the mutual agreements
herein set forth, and other good and valuable consideration, the sufficiency of
which is hereby acknowledged by each party, the parties hereto hereby agree as
follows:
1. Amendment. The definition of "Acquiring Person" set forth in Section
1(a) of the Rights Agreement is hereby amended to read as follows:
"(a) "Acquiring Person" shall mean any Person who or which, together
with all Affiliates 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 of the Company or of any Subsidiary of the Company,
(iv) any Person organized, appointed, or established by the Company or a
Subsidiary of the Company pursuant to the terms of any plan described in
clause (iii) above or (v) any Person who has reported or is required to
report its or their beneficial ownership (but less than 20%) on Schedule
13G under the Exchange Act (or any comparable or successor report) or on
Schedule 13D under the Exchange Act (or any comparable or successor
report) which Schedule 13D does not state any intention to or reserve the
right to control or influence the management or policies of the Company or
engage in any of the actions specified in Item 4 of such Schedule (other
than the disposition of the Common Stock) and, within 10 Business Days of
being requested by the Company to advise it regarding the same, certifies
to the Company that such Person acquired shares of Common Stock in excess
of 14.9% inadvertently or without knowledge of the terms of the Rights and
who, together with all of such Person's Affiliates, thereafter does not
acquire additional shares of Common Stock while the Beneficial Owner of
15% or more of the shares of Common Stock then outstanding; provided,
however, that if the Person requested to so certify fails to do so within
10 Business Days, then such Person shall become an Acquiring Person on the
day immediately following the last day of such 10 Business Day Period.
As used above, the term "Acquiring Person" shall not include (i)
Xxxx Investment Advisors, Inc. ("KIA"), Xxxx Holding Company ("KHC") or
XxXxx X.
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Xxxx ("Xxxx") (but no purchaser or assignee of any such Person or direct
or indirect purchaser or transferee of any shares of Common Stock of the
Company from any such Person) so long as (A) the number of shares of
Common Stock of the Company beneficially owned by all such Persons does
not exceed 6,722,400 shares in the aggregate (such number to be adjusted
in the event of any stock dividend, stock split or combination of shares,
recapitalization, repurchase of shares by the Company or any other change
in the Company's capital stock which in the determination of the Board in
its sole discretion requires an adjustment to such number to maintain it
at less that 20% of the Company's outstanding shares), (B) none of such
Persons has filed a Schedule 13D or Schedule 13G that expresses any
intention or reservation of the right (1) to control or influence the
management or policies of the Company or (2) to engage in any of the
actions specified in Item 4 of such Schedule 13D (other than (a) the
disposition of Common Stock and (b) the acquisition of Common Stock up to
the maximum number set forth above, provided that the condition in the
preceding clause (B)(1) is met), (C) neither KHC nor Xxxx owns directly 5%
or more of the shares of Common Stock then outstanding, or (ii) NetManage,
Inc. ("NMI") as a result of the execution, delivery or performance by the
parties thereto of the Agreement and Plan of Reorganization dated as of
June 15, 1998 among NMI, a Delaware corporation, Xxxxxx Acquisition Corp.,
a Massachusetts corporation and the Company, as the same may be amended
from time to time, or the consummation of the transactions contemplated
thereby pursuant to the terms thereof."
2. Effect of Amendment. Except as expressly amended hereby, the Rights
Agreement shall remain in full force and effect.
3. Governing Law. 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 said state
applicable to contracts made and to be performed entirely within said state.
4. Counterparts. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day first above written.
ATTEST: FTP SOFTWARE, INC.
By _______________________________
Name:
Title:
ATTEST: STATE STREET BANK AND TRUST
COMPANY
By _______________________________
Name:
Title:
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