FIRST AMENDMENT TO RIGHTS PLAN
THIS FIRST AMENDMENT TO THE RIGHTS PLAN (this "Amendment") is made as
of March ____, 2001 by and between Ariel Corporation, a Delaware corporation
(the "Company"), and Continental Stock Transfer and Trust, as Rights Agent (the
"Rights Agent"). Reference is made to the Rights Plan, dated as of October 9,
1998, between the Company and the Rights Agent (the "Rights Plan"). Unless
otherwise provided herein, capitalized terms used but not defined herein shall
have the meanings given to such terms in the Rights Plan.
WHEREAS, pursuant to Section 26 of the Rights Plan, the Company and the
Rights Agent may from time to time supplement or amend the Rights Plan in
accordance with Section 26 thereof;
WHEREAS, the Company is entering into an Agreement and Plan of Merger
(as the same may be amended or supplemented from time to time, the "Merger
Agreement"), between the Company and Mayan Networks Corporation, a California
corporation ("Mayan"), providing for transactions (collectively, the "Merger")
pursuant to which, among other things, shares of Mayan will be converted into
shares of the Company based on an exchange ratio and, thereafter, stockholders
in Mayan will be stockholders in the Company, all on the terms and subject to
the conditions of the Merger Agreement.
WHEREAS, the Merger Agreement contemplates amendments to the Rights
Plan so that Mayan shareholders, individually and as a group, will not be
included in the definition of "Acquiring Person" contained in the Rights Plan
and that no "Distribution Date" will occur as a result of the execution of the
Merger Agreement or the consummation of the Merger.
WHEREAS, the Board has determined that it in the best interests of the
Company and its shareholders to amend the Rights Plan as contemplated by the
Merger Agreement and on March ___, 2001 resolved to amend the Rights Plan as set
forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements herein set forth, the Rights Plan is amended as follows:
1. Amendment to the Rights Plan. Effective as of the effectiveness of
this Amendment (as set forth in Section 3 hereof), the Rights Plan shall be and
hereby is amended as set forth in this Section 1.
(a) Section 1. Section 1 of the Rights Plan shall be and hereby is
amended by inserting the following sentence at the end of the definition of
"Acquiring Person":
"Notwithstanding anything in the Plan to the
contrary, neither Mayan Networks Corporation, a
California corporation ("Mayan") nor any affiliate or
associate thereof, nor any other Person, or group of
Persons, shall be or become an Acquiring Person by
reason of acquiring, or exercising any right to
acquire, Common Shares or any beneficial ownership in
Common Shares, or for any other reason, as a result
of (a) the execution or assumption and/or delivery of
(1) the Agreement and Plan of Merger dated as of
March 28, 2001 by and between the Company and Mayan
(as the same may be amended or supplemented from time
to time, the "Merger Agreement"); (2) any voting
agreement, affiliate agreement, employment agreement
or market standoff agreement, option plan, option
agreement, warrant, warrant agreement, indenture,
indenture agreement or any other agreement executed,
assumed or entered into and/or delivered by the
Company or any other person in connection with the
Merger Agreement (all such agreements, as they may be
amended or supplemented from time to time, the
"Ancillary Agreements"), or (b) the consummation of
the transactions contemplated by the Merger Agreement
or any of the Ancillary Agreements."
(b) Section 3(b). Section 3(b) of the Rights Plan shall be and
hereby is amended by inserting the following sentence at the end thereof:
"Notwithstanding anything in the Plan to the
contrary, no Distribution Date shall be deemed to
have occurred by reason of (a) the execution or
assumption and/or delivery of the Merger Agreement or
any of the Ancillary Agreements, (b) the consummation
of the transactions contemplated by the Merger
Agreement or any of the Ancillary Agreements, or (c)
any person acquiring, or exercising any right to
acquire, Common Shares or any beneficial ownership in
Common Shares as the result of the execution or
assumption and/or delivery of the Merger Agreement or
any of the Ancillary Agreements."
2. No Other Amendments. Except as expressly amended in this Amendment,
the Rights Plan shall continue in full force and effect in accordance with the
provisions thereof prior to the effectiveness of this Amendment.
3. Effectiveness of Amendment. The Amendment shall become effective as
of the date first written above.
4. Governing Law. This Amendment shall be governed by, and construed
and interpreted in accordance with, the law of the State of Delaware, without
reference to the conflicts or choice of law principles thereof.
5. Counterparts. This Amendment may be executed by one or more of the
parties to this Amendment on any number of separate counterparts (including by
facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
6. Severability. If any term, provision, covenant or restriction of
this Amendment 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 shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
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IN WITNESS WHEREOF, the parties herein have caused this Amendment to be
duly executed and attested, all as of the date and year first above written.
ARIEL CORPORATION
By: _____________________
Name:
Title:
CONTINENTAL STOCK TRANSFER AND
TRUST, AS RIGHTS AGENT
By: _____________________
Name:
Title:
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