EXHIBIT 4.3
SECOND AMENDMENT TO RIGHTS AGREEMENT
THIS AMENDMENT (this "Amendment"), dated as of October 5, 2000, to the
Rights Agreement, dated as of January 1, 1996 (the "Rights Agreement"), is made
by and between Engineering Animation, Inc., a Delaware corporation (the
"Company"), and First Chicago Trust Company of New York, as Rights Agent (the
"Rights Agent").
RECITALS
A. The Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement.
B. Pursuant to Section 27 of the Rights Agreement, the Company
may from time to time supplement or amend the Rights Agreement in accordance
with the provisions of Section 27 thereof.
C. The Company has entered into an Agreement and Plan of Merger, dated
as of September 5, 2000 (as it may be further amended or supplemented from time
to time, the "Merger Agreement") among Unigraphics Solutions Inc. ("Parent"),
UGS Acquisition Corporation, a Delaware corporation and a wholly owned
subsidiary of Parent ("Purchaser"), and the Company, with respect to a business
combination of the Company and Parent (the "Merger"), a Stockholders Agreement
dated as of September 5, 2000 (as may be further amended or supplemented from
time to time, the "Stockholders Agreement") among Parent, Purchaser, and the
stockholders named therein, and a Stock Option Agreement dated September 5, 2000
(as it may be further amended or supplemented from time to time, the "Stock
Option Agreement") among Parent and the Company.
D. As contemplated in the Merger Agreement the Company amended the
Rights Agreement as of September 5, 2000 (the "First Amendment") to the extent
necessary to provide that the approval, execution and delivery of the Merger
Agreement, the Stockholders Agreement and the Stock Option Agreement and the
consummation of the transactions contemplated thereby, including without
limitation, the exercise of the stock option, will not (i) cause Parent or any
of its subsidiaries to become an Acquiring Person or (ii) cause the occurrence
of a Shares Acquisition Date or Distribution Date or otherwise cause such Rights
to separate from the underlying Common Stock or give such holders the right to
acquire securities of any party thereto.
E. Following the filing of the Schedule TO by Parent and Purchaser with
the Securities and Exchange Commission (the "Commission"), the staff of the
Commission has taken the position that Electronic Data Systems Corporation
("EDS"), which is the majority shareholder of Parent, should be deemed for
purposes of Commission tender offer regulations to be a bidder in the tender
offer commenced pursuant to the Merger Agreement. As a result, Parent and
Purchaser have filed an amended Schedule TO adding EDS as a co-filer.
F. The Board of Directors has determined that, since it was the Board's
intention in approving the First Amendment to exempt the Merger and the Merger
Agreement, and all of the transactions contemplated thereby, from the
application of the Rights Agreement, it is in the best interest of the Company
and its shareholders to avoid any doubt or ambiguity by approving this Second
Amendment to the Rights Agreement.
AGREEMENT
NOW, THEREFORE, the Rights Agreement is hereby amended as follows:
1. Section 1(a) of the Rights Agreement is hereby modified and amended
by replacing the proviso added at the end of the first sentence thereof by the
First Amendment and adding in its place the following proviso:
"; provided that none of Unigraphics Solutions Inc., a Delaware
corporation ("UG"), Electronic Data Systems Corporation, a Delaware
corporation, or any of their Subsidiaries, Affiliates or Associates
shall be deemed to be an Acquiring Person by virtue of the approval,
execution or delivery of the Agreement and Plan of Merger dated as of
September 5, 2000, as may be amended from time to time, among UG, UGS
Acquisition Corporation, a Delaware corporation and a wholly owned
subsidiary of UG, and the Company (the "UG Merger Agreement"), the
Stockholders Agreement and the Stock Option Agreement or the
consummation of the transactions contemplated thereby, including,
without limitation, the exercise of the stock option."
2. 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
in accordance with the laws of such State applicable to contracts to be made and
performed entirely within such State.
3. This Amendment may be executed in any number of counterparts, each
of which shall be an original, but such counterparts shall together constitute
one and the same instrument.
4. Terms not defined herein shall, unless the context otherwise
requires, have the meanings assigned to such terms in the Rights Agreement.
5. In all respects not inconsistent with the terms and provisions of
this Amendment, the Rights Agreement and the First Amendment are hereby
ratified, adopted, approved and confirmed. In executing and delivering this
Amendment, the Rights Agent shall be entitled to all the privileges and
immunities afforded to the Rights Agent under the terms and conditions of the
Rights Agreement and the First Amendment.
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IN WITNESS WHEREOF, this Amendment has been duly executed by the
Company and the Rights Agent as of the day and year first written above.
ATTEST: ENGINEERING ANIMATION, INC.
By: /s/ Jamie A. Wade By: /s/ Matthew M. Rizai
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Name: Jamie A. Wade Name: Matthew M. Rizai
Title: Secretary Title: Chairman & CEO
FIRST CHICAGO TRUST COMPANY
OF NEW YORK
By: /s/John Gagnon
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Name: John Gagnon
Title: Vice President
