AMENDMENT NO. 1 TO THE RIGHTS AGREEMENT
Pursuant to Section 26 of the Rights Agreement (the "Rights Agreement")
dated as of November 4, 1988, between FileNet Corporation, a Delaware
corporation (the "Company"), and BankBoston, N.A., a national banking
association formerly known as The First National Bank of Boston (the "Rights
Agent"), the Company and the Rights Agent hereby amend the Rights Agreement as
of July 31, 1998, as provided below.
1. Name Change of Rights Agent. All references in the Rights Agreement,
and each of the Exhibits thereto, to the "The First National Bank of
Boston" shall be deleted and replaced with "BankBoston, N.A." and all
references to the "Rights Agent" shall mean BankBoston, N.A.
2. Certain Definitions. Section 1 of the Rights Agreement shall be
amended as follows:
(a) The definition of the term "Business Day" set forth in Section
1(d) of the Rights Agreement shall be amended in its entirety to
read in full as follows:
"Business Day" shall mean any day other than a Saturday, Sunday,
or a day on which banking institutions in the Commonwealth of
Massachusetts are authorized or obligated by law or executive
order to close.
(b) The definition of the term "close of business" set forth in
Section 1(e) of the Rights Agreement shall be amended in its
entirety to read in full as follows:
"close of business" on any given date shall mean 5:00 p.m.,
Eastern time, on such date; provided, however, that if such date
is not a Business Day, it shall mean 5:00 p.m., Eastern time, on
the next succeeding Business Day.
3. Appointment of Rights Agent. Section 2 of the Rights Agreement shall
be amended as follows:
(a) The second sentence in Section 2 of the Rights Agreement shall be
amended in its entirety to read in full as follows:
"The Company may from time to time appoint such Co-Rights Agents
as it may deem necessary or desirable, upon ten (10) days' prior
written notice to the Rights Agent."
(b) The following sentence shall be added after the second sentence
in Section 2 of the Rights Agreement:
"The Rights Agent shall have no duty to supervise, and shall in
no event be liable for, the acts or omissions of any such
Co-Rights Agent."
4. Exercise of Rights; Purchase Price; Expiration Date of Rights.
Sections 7(a) and 7(b) of the Rights Agreement are hereby amended in
their entirety to read in full as follows:
"Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights.
(a) Subject to the final sentence of Section 23(a) hereof, the
registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein) in
whole or in part at any time after the Distribution Date upon
surrender of the Right Certificate, with the form of election to
purchase and certification on the reverse side thereof duly
executed, to the Rights Agent at the office o f the Rights Agent
designated for such purpose, together with payment of the
Purchase Price for each Common Share as to which the Rights are
exercised, at or prior to the earliest of (i) the close of
business on November 17, 2008 (the "Final Expiration Date"), (ii)
the time at which the Rights are redeemed as provided in Section
23 hereof (the "Redemption Date"), or (iii) the closing of any
merger or other acquisition transaction involving the Company
pursuant to an agreement of the type described in Section
1(c)(ii)(A)(2) hereof.
(b) The Purchase Price for each Common Share pursuant to the exercise
of a Right shall initially be $175, shall be subject to
adjustment from time to time as provided in Sections 11, 13 and
26 hereof and shall be payable in lawful money of the United
States of America in accordance with paragraph (c) below."
5. Concerning the Rights Agent. Section 18 of the Rights Agreement shall
be amended by replacing the phrase "without negligence" with the
phrase "without gross negligence."
6. Duties of Rights Agent. Section 20(c) of the Rights Agreement shall be
amended by replacing the term "negligence" with the phrase "gross
negligence."
7. Notices. The address to which notices or demands shall be given or
made by the Company or the holder of a Right Certificate to or on the
Rights Agent set forth in Section 25 of the Agreement shall be amended
in its entirety to read in full as follows:
BankBoston, N.A.
c/o Boston Equiserve Limited Partnership
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Client Administration
8. Form of Right Certificate. Exhibit A to the Rights Agreement, the Form
of Right Certificate ("Exhibit A"), shall be amended as follows:
(a) The legend on the first page of Exhibit A shall be amended in its
entirety to read as follows:
"NOT EXERCISABLE AFTER NOVEMBER 17, 2008 OR EARLIER IF NOTICE OF
REDEMPTION IS GIVEN OR IF THE COMPANY IS MERGER OR ACQUIRED
PURSUANT TO AN AGREEMENT OF THE TYPE DESCRIBED IN SECTION
1(c)(ii)(A)(2) OF THE RIGHTS AGREEMENT. THE RIGHTS ARE SUBJECT TO
REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.01 PER RIGHT ON
THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES (SPECIFIED IN SECTION 11(a)(ii) OF THE RIGHTS
AGREEMENT), RIGHTS BENEFICIALLY OWNED BY ACQUIRING PERSONS OR ANY
SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE
RIGHTS REPRESENTED BY THIS CERTIFICATE WERE ISSUED TO A PERSON
WHO WAS AN ACQUIRING PERSON OR AN ASSOCIATE OR AFFILIATE OF AN
ACQUIRING PERSON OR A NOMINEE THEREOF. THIS RIGHT CERTIFICATE AND
THE RIGHTS REPRESENTED HEREBY HAVE BECOME NULL AND VOID AS
SPECIFIED IN SECTION 11(a)(ii) OF THE RIGHTS AGREEMENT].1"
(b) The first paragraph of Exhibit A shall be amended in its entirety
to read in full as follows:
"This certifies that _____________________, or registered
assigns, is the registered owner of the number of Rights set
forth above, each of which entitles the owner thereof, subject to
the terms, provisions and conditions of the Rights Agreement
dated as of November 4, 1988 (the "Rights Agreement") between
FileNet Corporation, a Delaware corporation (the "Company"), and
the First National Bank of Boston, a national banking
association, as Rights Agent (the "Rights Agent"), to purchase
from the Company at any time after the Distribution Date and
prior to 5:00 p.m. (local time) on November 17, 2008, at the
offices of the Rights Agent, or its successors as rights Agent,
designated for such purpose, one fully paid, nonassessable common
share (the "Common Shares") of the Company, at a purchase price
of $175 per share (the "Purchase Price"), upon presentation and
surrender of this Right Certificate with the Form of Election to
Purchase and certification duly executed. The number of Rights
evidenced by this Right Certificate (and the number of shares
which may be purchased upon exercise thereof) set forth above,
and the Purchase Price set forth above, are the number and
Purchase Price as of November 17, 1988, based on the Common
Shares constituted at such date. Capitalized terms used in this
Right Certificate without definition shall have the meanings
ascribed to them in the Rights Agreement."
9. Summary of Rights to Purchase Common Shares. Exhibit B to the Rights
Agreement, the Summary of Rights to Purchase Shares ("Exhibit B"),
shall be amended as follows:
(a) The last two sentences of the first paragraph of Exhibit B shall
be amended in their entirety to read in full as follows:
"Each Right entitles the registered holder to purchase from the
Company one Common Share at a price of $175 per share (the
"Purchase Price"), subject to adjustment. The description and
terms of the Rights are set forth in a Rights Agreement (the
"Rights Agreement") between the Company and The First National
Bank of Boston, as Rights Agent (the "Rights Agent"), as
amended."
(b) The first full paragraph on page B-2 of Exhibit B shall be
amended in its entirety to read in full as follows:
"The Rights are not exercisable until the Distribution Date. The
Rights will expire on November 17, 2008 (the "Final Expiration
Date"), unless earlier redeemed by the Company as described
below."
10. Successors and Assigns. This Amendment No. 1 to the Rights Agreement
shall remain in full force and effect and shall be binding upon each
of the undersigned and any successors or assigns thereof. Except as
modified herein, the Rights Agreement shall remain in full force and
effect without change.
FILENET CORPORATION
By: ______________________________
Name: ______________________________
Title: ______________________________
Acknowledged and Agreed:
BANKBOSTON, N.A., as Rights Agent
By: _______________________________
Name: _______________________________
Title: _______________________________
AMENDMENT NO. 2 TO THE RIGHTS AGREEMENT
Pursuant to Section 26 of the Rights Agreement (the "Rights Agreement")
dated as of November 4, 1988, between FileNet Corporation, a Delaware
corporation (the "Company"), and BankBoston, N.A., a national banking
association formerly known as The First National Bank of Boston (the "Rights
Agent"), as amended, the Company and the Rights Agent hereby amend the Rights
Agreement as of November 9, 1998, as provided below.
1. Certain Definitions. Section 1 of the Rights Agreement shall be
amended as follows:
(a) The definition of Acquiring Person set forth in Section 1(a)
shall be amended in its entirety to read in full as follows:
"Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates
and Associates (as such terms are hereinafter defined) of such
Person, shall be the Beneficial Owner (as such term is
hereinafter defined) of 15% or more of the Common Shares of the
Company then outstanding but shall not include the Company, any
Subsidiary of the Company or any employee benefit plan of the
Company or of any Subsidiary of the Company or any entity holding
shares of capital stock of the Company for or pursuant to the
terms of any such plan, in its capacity as an agent or trustee
for any such plan.
(b) The definition of Continuing Director set forth in Section 1(g)
shall be deleted in its entirety and replaced with the phrase
"Intentionally Omitted."
2. Issue of Rights Certificates. The first two sentences in Section 3(a)
of the Rights Agreement shall be amended in their entirety to read in
full as follows:
(a) "Subject to the second sentence of this Section 3(a), until the
earlier of (i) the tenth day after the Shares Acquisition Date or
(ii) the tenth day after the date of the commencement of, or
first public announcement of the intent of any Person (other than
the Company, any Subsidiary of the Company, any employee benefit
plan of the Company or of any Subsidiary of the Company or any
entity holding shares of capital stock of the Company for or
pursuant to the terms of any such plan, in its capacity as an
agent or trustee for any such plan) to commence, a tender or
exchange offer the consummation of which would result in any
Person becoming the Beneficial Owner of Common Shares aggregating
more than 15% of the then outstanding Common Shares of the
Company (including any such date which is after the date of this
Rights Agreement; the earlier of (i) and (ii) being herein
referred to as the "Distribution Date") (x) the Rights (unless
earlier terminated, redeemed or expired) will be evidenced
(subject to the provisions of paragraph (b) of this Section 3) by
the certificates for Common Shares registered in the names of the
holders thereof (which certificates for Common Shares shall also
be deemed to be Rights Certificates (as such term is hereinafter
defined)) and not by separate certificates, and (y) the Rights (
and the right to receive certificates therefor) will be
transferable only in connection with the transfer of the
underlying Common Shares. The preceding sentence,
notwithstanding, prior to the Distribution Date specified therein
(or such later Distribution Date as the Board of Directors of the
Company may select pursuant to this sentence), the Board of
Directors of the Company may postpone the Distribution Date
beyond the earlier of the dates set forth in the preceding
sentence."
3. Form of Rights Certificates. Section 4(b)(iii)(B) of the Rights
Agreement shall be amended by replacing the phrase "a majority of the
Continuing" with the phrase "the Board of."
4. Redemption. Section 23 of the Rights Agreement shall be amended as
follows:
(a) The proviso in the first sentence of subsection (a), which reads
"provided, however, if the Board of Directors of the Company
authorizes redemption of the Rights after the time a person
becomes an Acquiring Person, then there must be Continuing
Directors then in office and such authorization shall require the
concurrence of a majority of such Continuing Directors," shall be
deleted in its entirety.
(b) The proviso in the second sentence of subsection (a), which reads
"provided, however, there must be Continuing Directors then in
office and any such extension shall require the concurrence of a
majority of such Continuing Directors," shall be deleted in its
entirety.
5. Supplements and Amendments. Subsection (ii) in the first sentence of
Section 26 of the Rights Agreement shall be amended by deleting the
phrase "(which shortening or lengthening, following the Shares
Acquisition Date, shall be effective only if there are Continuing
Directors and shall require the concurrence of a majority of such
Continuing Directors)" in its entirety.
6. Form of Right Certificate. Exhibit A to the Rights Agreement, the Form
of Right Certificate ("Exhibit A"), shall be amended as follows:
(a) The last paragraph on Page A-3 (which continues onto page A-4) of
Exhibit A shall be amended in its entirety to read in full as
follows:
"Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Right Certificate may be redeemed by the
Company at its option at a redemption price of $.01 per Right at
any time prior to (10) days after the Shares Acquisition Date.
The period during which redemption of the Rights is permitted may
be extended by the Board of Directors of the Company. "
(b) The last paragraph on Page A-4 (which continues onto page A-5) of
Exhibit A shall be amended in its entirety to read in full as
follows:
"The Company and the Rights Agent may from time to time
supplement or amend the Rights Agreement without the approval of
any holders of Right Certificates, to cure any ambiguity, to
correct or supplement any provision contained therein which may
be defective or inconsistent with any other provisions therein,
to shorten or lengthen any time period thereunder, or, so long as
the interests of the holders of Right Certificates (other than an
Acquiring Person or an Affiliate or Associate of an Acquiring
Person) are not adversely affected thereby, to make any other
provisions in regard to matters or questions arising thereunder
which the Company and the Rights Agent may deem necessary or
desirable, including but not limited to extending the Final
Expiration Date."
7. Summary of Rights to Purchase Common Shares. Exhibit B to the Rights
Agreement, the Summary of Rights to Purchase Common Shares ("Exhibit
B") shall be amended as follows:
(a) The first two sentences of the second paragraph of Exhibit B
shall be amended in their entirety to read in full as follows:
"Until the earlier to occur of (i) ten (10) days following a
public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") acquired, or obtained
the right to acquire, beneficial ownership of 15% or more of the
Common Shares or (ii) ten (10) days following the commencement or
announcement of an intention to make a tender offer or exchange
offer the consummation of which would result in the beneficial
ownership by a person or group of 15% or more of the Common
Shares (the earlier of (i) and (ii) being called the
"Distribution Date"), the Rights will be evidenced, with respect
to any of the Common Share certificates outstanding as of the
Record Date, by such Common Share certificate with a copy of this
Summary of Rights attached thereto. The Rights Agreement provides
that the Board of Directors may postpone the Distribution Date
and that, until the Distribution Date, the Rights will be
transferred with and only with the Common Shares."
(b) The first sentence of the third full paragraph on page B-2 of
Exhibit B shall be amended in its entirety to read in full as
follows:
"In the event that a person were to acquire 15% or more of the
Common Shares or if the Company were the surviving corporation in
a merger and its Common Shares were not changed or exchanged,
each holder of a Right, other than the Rights that are or were
acquired or beneficially owned by the 15% stockholder (which
Rights will thereafter be void), will thereafter have the right
to receive upon exercise that number of Common Shares having a
market value of two times the exercise price of the Right."
(c) The first full paragraph on page B-3 of Exhibit B shall be
amended in its entirety to read in full as follows:
"The Rights may be redeemed, in whole, but not in part, at a
price of $.01 per Right (the "Redemption Price") by the Board of
Directors at any time until ten (10) days following the public
announcement that a person has become an Acquiring Person. The
Board of Directors may extend the period during which the Rights
are redeemable beyond the ten (10) days following the public
announcement that a person has become an Acquiring Person.
Immediately upon the action of the Board of Directors of the
Company electing to redeem the Rights, the Company shall make an
announcement thereof, and upon such election, the right to
exercise the Rights will terminate and the only right of the
holders of Rights will be to receive the Redemption Price."
(d) The second full paragraph on page B-3 of Exhibit B shall be
deleted in its entirety.
(e) The last paragraph on page B-3 of Exhibit B shall be amended in
its entirety to read in full as follows:
"The Company and the Rights Agent may amend or supplement the
Rights Agreement without the approval of any holders of Right
Certificates to cure any ambiguity, to correct or supplement any
provision contained therein which may be defective or
inconsistent with any other provisions therein, to shorten or
lengthen any time period under the Rights Agreement or, so long
as the interests of the holders of Right Certificates (other than
an Acquiring Person or an Affiliate or Associate of an Acquiring
Person) are not adversely affected thereby, to make any other
provisions in regard to matters or questions arising thereunder
which the Company and the Rights Agent may deem necessary or
desirable, including but not limited to extending the Final
Expiration Date."
8. Successors and Assigns. This Amendment No. 2 to the Rights Agreement
shall remain in full force and effect and shall be binding upon each
of the undersigned and any successors or assigns thereof. Except as
modified herein, the Rights Agreement shall remain in full force and
effect without change.
FILENET CORPORATION
By: _____________________________
Name: __________________________
Title: __________________________
Acknowledged and Agreed:
BANKBOSTON, N.A., as Rights Agent
By: ______________________________
Name: ______________________________
Title:______________________________
