AMENDMENT TO RIGHTS AGREEMENT
BETWEEN SIEBEL SYSTEMS, INC. AND
MELLON INVESTOR SERVICES LLC
This Amendment To Rights
Agreement (the “Amendment”) is made as of
the 12th day of September, 2005, by and between Siebel Systems, Inc., a
Delaware corporation (the “Company”), and
Mellon Investor Services
LLC , a New Jersey limited liability company (the
“Rights Agent”).
Whereas, the Company is
entering into an Agreement and Plan of Merger (as the same may be
amended from time to time, the “Merger Agreement”),
dated as of September 12, 2005, among the Company, Oracle
Corporation, a Delaware corporation, (“Parent”), Ozark
Holding Inc., a Delaware corporation and wholly owned subsidiary of
Parent (the “Holding Company”), Ozark Merger Sub Inc.,
a Delaware corporation and wholly owned subsidiary of Holding
Company (“Ozark Merger Sub”), and Sierra Merger Sub
Inc., a Delaware corporation and wholly owned subsidiary of Holding
Company (“Sierra Merger Sub”) pursuant to which Sierra
Merger Sub will merge with and into the Company upon the terms and
subject to the conditions set forth in the Merger
Agreement;
Whereas, the Company and the
Rights Agent are parties to that certain Rights Agreement, dated as
of January 29, 2003 (the “Rights
Agreement”);
Whereas, the Company desires
to amend the Rights Agreement in connection with the execution and
delivery of the Merger Agreement; and
Whereas, the Board of
Directors of the Company has approved this Amendment and authorized
its appropriate officers to execute and deliver the same to the
Rights Agent.
Now, Therefore, in accordance
with the procedures for amendment of the Rights Agreement set forth
in Section 27 thereof, and in consideration of the foregoing
and the mutual agreements herein set forth, the parties hereby
agree as follows:
1.
Capitalized terms that are not otherwise defined herein shall have
the meanings ascribed to them in the Rights Agreement.
2.
The definition of “Acquiring Person” set forth in
Section 1(a) of the Rights Agreement is amended by adding the
following sentence to the end of that section:
Notwithstanding
the foregoing, no Person shall be or become an Acquiring Person by
reason of (i) the execution and delivery of the Agreement and
Plan of Merger (as the same may be amended from time to time, the
“Merger Agreement”), dated as of September 12,
2005, among the Company, Oracle Corporation, a Delaware
corporation, (“Parent”), Ozark Holding Inc., a Delaware
corporation and wholly owned subsidiary of Parent (the
“Holding Company”), Ozark Merger Sub Inc., a Delaware
corporation and wholly owned subsidiary of Holding Company, and
Sierra Merger Sub Inc., a Delaware corporation and
1.
wholly owned
subsidiary of Holding Company (“Sierra Merger Sub”) or
the execution of any amendment thereto, (ii) the execution and
delivery of a voting agreement executed by Parent and persons
listed on the signature page of such voting agreement in connection
with the execution and delivery of the Merger Agreement and dated
as of September 12, 2005 (the “Voting Agreement”)
or the execution of any amendment thereto, (iii) the merger of
Sierra Merger Sub with and into the Company pursuant to, and on the
terms and subject to the conditions set forth in, the Merger
Agreement, as it may be amended from time to time (the
“Merger”), or (v) the consummation of any other
transaction contemplated by the Merger Agreement, as it may be
amended from time to time.
3.
The definition of “Shares Acquisition Date” in Section
l(o) of the Rights Agreement is hereby amended by adding the
following sentence to the end of that section:
Notwithstanding
anything else set forth in this Agreement, a Shares Acquisition
Date shall be deemed not to have occurred by reason of (i) the
execution and delivery or amendment of the Merger Agreement or the
Voting Agreement, (ii) the Merger, or (iii) the
consummation of any other transaction contemplated by the Merger
Agreement.
4.
Section 3(a) of the Rights Agreement is hereby amended by
adding the following sentence to the end of that
section:
Notwithstanding
anything else set forth in this Agreement, no Distribution Date
shall be deemed to have occurred by reason of (i) the
execution and delivery or amendment of the Merger Agreement or the
Voting Agreement, (ii) the Merger, or (iii) the consummation
of any other transaction contemplated by the Merger
Agreement.
5.
Section 7(a)(i) of the Rights Agreement is hereby
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