EXECUTION COPY
FIRST AMENDMENT TO RIGHTS AGREEMENT
-----------------------------------
First Amendment dated as of February 18, 1998 (this
"Amendment") to Rights Agreement dated as of March 15, 1996 (the "Rights
Agreement") between MASTERING, INC., a Delaware corporation f/k/a Eagle River
Interactive, Inc. (the "Company"), and XXXXXX TRUST AND SAVINGS BANK, an
Illinois banking corporation (the "Rights Agent").
W I T N E S S E T H :
--------------------
WHEREAS, the Board of Directors of the Company has approved an
Agreement and Plan of Merger dated as of February 18, 1998 (the "Merger
Agreement") by and among the Company, PLATINUM technology, inc., a Delaware
corporation ("Parent"), and PT Acquisition Corporation I, a Delaware corporation
and a wholly-owned subsidiary of Parent ("Acquisition Sub"), providing for the
merger (the "Merger") of Acquisition Sub with and into the Company and pursuant
to which the Company will become a wholly-owned subsidiary of Parent;
WHEREAS, the Board of Directors of the Company has determined
that the Merger is advisable, consistent with, in
- 1 -
furtherance of and otherwise in the best interests of the Company and its
stockholders;
WHEREAS, the willingness of Parent and Acquisition Sub to
enter into the Merger Agreement is conditioned on, among other things, the
amendment of the Rights Agreement on the terms set forth herein;
WHEREAS, at the date of this Amendment, the Distribution Date
has not occurred and there is no Acquiring Person;
WHEREAS, Section 27 of the Rights Agreement provides that the
Company may from time to time supplement or amend the Rights Agreement without
the approval of any holders of Rights Certificates to, among other things, make
any provisions with respect to the Rights which the Company may deem necessary
or desirable, any such supplement or amendment to be evidenced by a writing
signed by the Company and the Rights Agent; provided, however, that from and
after such time as any Person becomes an Acquiring Person, the Rights Agreement
may not be amended in any manner which would adversely affect the interests of
the holders of Rights; and
- 2 -
WHEREAS, in compliance with Section 27 of the Rights
Agreement, the Company and the Rights Agent desire to amend the Rights Agreement
as hereinafter set forth and have executed and delivered this Amendment
immediately prior to the execution and delivery of the Merger Agreement.
NOW, THEREFORE, in consideration of the Rights Agreement and
the premises and mutual agreements herein set forth, the parties hereby agree as
follows:
1. The Rights Agreement is hereby amended by replacing all
references therein (including the exhibits thereto) to "Eagle River Interactive,
Inc." with "Mastering, Inc."
2. Section 1 of the Rights Agreement is hereby amended by
adding the following definitions thereto:
"Acquisition Sub" shall mean PT Acquisition Corporation I, a
Delaware corporation and a wholly-owned subsidiary of Parent.
"Merger" shall mean the merger of Acquisition Sub with and
into the Company as contemplated by the Merger Agreement.
- 3 -
"Merger Agreement" shall mean the Agreement and Plan of
Merger, dated as of February 18, 1998, among Parent, Acquisition Sub
and the Company, as the same may be amended in accordance with the
terms thereof.
"Parent" shall mean PLATINUM technology, inc., a Delaware
corporation.
3. The definition of Acquiring Person contained in Section 1
of the Rights Agreement is hereby amended by adding to the end thereof the
following:
"Notwithstanding anything to the contrary contained herein,
neither Parent nor Acquisition Sub, nor any of their respective
Affiliates or Associates shall be or become an "Acquiring Person" as a
result of the approval, execution, delivery or announcement of the
Merger Agreement (or any amendment to the Merger Agreement in
accordance with the terms thereof) or the consummation of the
transactions contemplated thereby (including, without limitation, the
Merger)."
- 4 -
4. The definition of Shares Acquisition Date contained in
Section 1 of the Rights Agreement is hereby amended by adding to the end thereof
the following:
"Notwithstanding anything to the contrary contained herein, no
Shares Acquisition Date shall occur as a result of the approval,
execution, delivery or announcement of the Merger Agreement (or any
amendment to the Merger Agreement in accordance with the terms thereof)
or the consummation of the transactions contemplated thereby
(including, without limitation, the Merger)."
5. Section 3(a) of the Rights Agreement is hereby amended by
adding to the end thereof the following:
"Notwithstanding anything to the contrary contained herein, no
Distribution Date shall occur as a result of the approval, execution,
delivery or announcement of the Merger Agreement (or any amendment to
the Merger Agreement in accordance with the terms thereof) or the
consummation of the transactions contemplated thereby (including,
without limitation, the Merger), and no Distribution Date will, in any
event, occur prior to the effective time of the Merger or the earlier
termination of the Merger Agreement."
- 5 -
6. Section 7(a) of the Rights Agreement is hereby amended by
replacing the words "(the earlier of (i) and (ii) being herein referred to as
the "Expiration Date") and (iii)" with the following:
"and (iii) immediately prior to the effective time of the
Merger (the earliest of (i), (ii) and (iii) being herein referred to as
the "Expiration Date") and (iv)"
7. Section 11 of the Rights Agreement is hereby amended by
adding to the end thereof the following:
"(q) Notwithstanding anything to the contrary contained
herein, the provisions of this Section 11 will not apply to or be
triggered by the approval, execution, delivery or announcement of the
Merger Agreement (or any amendment to the Merger Agreement in
accordance with the terms thereof) or the consummation of the
transactions contemplated thereby (including, without limitation, the
Merger)."
8. Section 13 of the Rights Agreement is hereby amended by
adding to the end thereof the following:
- 6 -
"(d) Notwithstanding anything to the contrary contained
herein, the provisions of this Section 13 will not apply to or be
triggered by the approval, execution, delivery or announcement of the
Merger Agreement (or any amendment to the Merger Agreement in
accordance with the terms thereof) or the consummation of the
transactions contemplated thereby (including, without limitation, the
Merger)."
9. Section 26 of the Rights Agreement is hereby amended by
replacing the name and address of the Company stated therein with:
Mastering, Inc.
0000 Xxxx Xxxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Corporate Secretary
10. The Form of Right Certificate attached to the Rights
Agreement as Exhibit B is hereby amended by replacing the words "dated as of
________ ___ 1996" with "dated as of March 15, 1996, as may be amended from time
to time".
11. The term "Agreement" as used in the Rights Agreement shall
be deemed to refer to the Rights Agreement as amended by this Amendment.
12. This Amendment shall be deemed to be a contract made under
the laws of the State of Delaware and for all purposes shall be governed by and
construed with in accordance with the laws of such State applicable to contracts
to be made and performed entirely within such State.
13. This Amendment may be executed in any number of
counterparts, and each of such counterparts shall for all
- 7 -
purposes be deemed to be an original, and all such counterparts shall together
constitute one and the same instrument.
14. Any capitalized term used herein but not defined herein
shall have the respective meanings ascribed to them in the Rights Agreement.
15. Except as otherwise expressly set forth herein, this
Amendment shall not by implication or otherwise alter, modify, amend or in any
other manner affect any of the terms, conditions, obligations, covenants or
agreements contained in the Rights Agreement, all of which are hereby ratified
and confirmed in all respects and shall continue in full force and effect.
- 8 -
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and attested, all as of the day and year first
above written.
MASTERING, INC.
By: /s/ Xxxx Xxxxx
----------------------------
Name: Xxxx Xxxxx
Title: EVP & CFO
Attest:
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxx Xxxxxx
----------------------------
Name: Xxx Xxxxxx
Title: Vice President
Attest:
By: /s/ Xxxxx Xxxxx
----------------------------
Name: Xxxxx Xxxxx
Title: Trust Officer
- 9 -
