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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Mastering, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 84-1320277
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(State of incorporation or organization) (I.R.S. Employer
Identification No.)
9201 E. Mountain View Rd., Ste. #200, Scottsdale, AZ 85258-5132
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(Address of principal executive offices) (Zip Code)
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), please check the following box. / /
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box. / /
Securities to be registered pursuant to Section 12(b) of the Act:
None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, $.001 par value(1)
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(Title of class)
(1) Including associated rights to purchase 1/100 of a share of Series B
Participating Preferred Stock, par value $.001 per share, of the
Company
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be
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Registered.
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The authorized capital stock of Mastering, Inc., a Delaware
corporation (the "Company") consists of 30,000,000 shares of Common Stock, $.001
par value ("Common Stock"), and 2,000,000 shares of Preferred Stock, $.001 par
value ("Preferred Stock").
Common Stock
Subject to preferences that may be applicable to any
outstanding Preferred Stock, holders of Common Stock are entitled to receive
ratably such dividends as may be declared by the Board of Directors of the
Company (the "Board of Directors") out of funds legally available therefor.
Although the Company does not anticipate paying any cash dividends in the
foreseeable future, any future payment of dividends will depend upon the
Company's results of operations, financial condition, cash requirements,
contractual restrictions, terms of any outstanding preferred stock, requirements
of applicable law and other factors deemed relevant by the Board of Directors.
Holders of Common Stock are entitled to one vote per share in all matters to be
voted upon by stockholders and do not have cumulative voting rights. In the
event of a liquidation, dissolution or winding-up, or upon any distribution of
assets of, of the Company, holders of Common Stock are entitled to share ratably
in all assets remaining after payment of the Company's liabilities and the
liquidation preferences of any outstanding Preferred Stock. Holders of Common
stock have no preemptive rights or other subscription rights and no right to
convert their Common Stock into any other securities, and there are no
redemption provisions with respect to such shares. All of the outstanding shares
of Common Stock are subject to, and may be adversely affected by, the rights of
the holders of shares of any series of Preferred Stock which the Company may
issue in the future. All outstanding shares of Common Stock are fully paid and
nonassessable.
Preferred Stock
Pursuant to the Company's Restated Certificate of
Incorporation, the Board of Directors has authority, without any further vote or
action by the stockholders: (i) to provide for the issuance of shares of
Preferred Stock in one or more classes
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or series, (ii) to determine the voting rights, if any, of any such class or
series; (iii) to establish the number of shares to constitute the class or
series; (iv) to fix the designations, preferences and relative, participating,
optional or other special rights and the qualifications, limitations or
restrictions of the class or series; (v) to determine redemption and conversion
rights, if any; (vi) to establish the dividend rate, if any, for such class or
series; and (vii) to determine the preferences, if any, entitled to be received
upon an event of liquidation, dissolution or winding-up of, or upon any
distribution of assets of, the Company. The issuance of Preferred Stock, among
other things, could adversely affect the rights of holders of Common Stock. For
example, the issuance of Preferred Stock could decrease the amount of earnings
and assets available for distribution to holders of Common Stock. In addition,
any such issuance could have the effect of delaying or preventing a change in
control of the Company and could make the removal of the present management of
the Company more difficult.
In connection with the adoption of the Rights Agreement (as
hereinafter defined), the Board of Directors created one series of Preferred
Stock, consisting of 300,000 shares of Series B Participating Preferred Stock,
$.001 par value (the "Series B Preferred Stock"). No shares of Series B
Preferred Stock have been issued as of the date hereof. Each share of Series B
Preferred Stock, when and if issued, would entitle the holder thereof to receive
quarterly dividends equal to the greater of $1.00 per share or 100 times the
dividends per share declared with respect to the Common Stock. Dividends on the
Series B Preferred Stock are cumulative. Holders of the Series B Preferred Stock
would be entitled to exercise 100 votes per share on all matters submitted to a
vote of stockholders and, except as otherwise required by law, would vote
together with the holders of Common Stock as a single class. In the event of
liquidation, such holders would receive a preference of $1.00 per share over the
Common Stock. In general, each share of the Series B Preferred is intended to
have a value and voting rights equal to 100 shares of Common Stock, and
appropriate anti-dilutive adjustments will be made in accordance with the terms
of the Series B Preferred Stock in the event of certain changes in the Common
Stock. Except as contemplated in connection with the Rights Agreement, the
Company has no present plans to issue shares of Preferred Stock.
Rights Agreement
The Board of Directors declared a dividend of one preferred
share purchase right (a "Right") for each outstanding share of Common Stock
which was payable to stockholders of record
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on January 26, 1996. Rights have been and will be issued in connection with all
shares of Common Stock issued thereafter and prior to the Distribution Date (as
defined below). Except as described below, each Right, when exercisable,
entitles the registered holder to purchase from the Company one one-hundredth of
a share of Series B Preferred Stock at a price $65 (the "Purchase Price"),
subject to adjustment. The description and terms of the Rights are set forth in
the Rights Agreement dated as of March 15, 1996 between the Company and Harris
Trust and Savings Bank, as Rights Agent (the "Rights Agent"), as amended by the
First Amendment to Rights Agreement dated as of February 18, 1998 between the
Company and the Rights Agent (the "Rights Agreement"). A copy of the Rights
Agreement is available to stockholders free of charge from the Company upon
request directed to the Company's corporate secretary.
Initially, the Rights will be attached to all certificates
representing shares of Common Stock then outstanding, and no separate Right
certificates will be distributed. The Rights will separate from the Common Stock
upon the earlier to occur of: (i) 10 days following a public announcement that a
person or group of affiliated or associated persons (an "Acquiring Person") has
acquired, or obtained the right to acquire, beneficial ownership of 15% or more
of the outstanding shares of Common Stock (the "Shares Acquisition Date"); or
(ii) 15 business days (or such later date as may be determined by action of the
Board of Directors prior to the time that any person becomes an Acquiring
Person) following the commencement of (or a public announcement of an intention
to make) a tender or exchange offer if, upon consummation thereof, such person
or group would be the beneficial owner of 15% or more of such outstanding shares
of Common Stock (the earlier of such dates being called the "Distribution
Date"). An Acquiring Person, under the terms of the Rights Agreement, does not
include the Company, any subsidiary of the Company, any employee benefit plan of
the Company or any subsidiary, or any Grandfathered Person (as defined in the
Rights Agreement). Moreover, neither Platinum technology, inc. nor PT Acquistion
Corporation I will be or become an Acquiring Person and no Shares Acquisition
Date or Distribution Date will occur as a result of the approval, execution,
delivery or announcement of the Agreement and Plan of Merger dated as of
February 18, 1998 (the "Merger Agreement") among Platinum technology, inc., a
Delaware corporation ("Parent"), PT Acquisition Corporation I, a Delaware
corporation and a wholly-owned subsidiary of Parent ("Acquisition Sub") and the
Company (or any amendment to the Merger Agreement in accordance with the terms
thereof) or the consummation of the transactions contemplated thereby
(including, without limitation,
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the merger (the "Merger") of Acquisition Sub with and into the Company). Also,
no person will become an Acquiring Person solely as a result of the Company
acquiring shares of Common Stock or through the acquisition by a person of
newly-issued shares of Common Stock directly from the Company. Until the
Distribution Date, the Rights will be evidenced by the Common Stock certificates
together with a copy of a summary of Rights (the "Rights Summary"), and not by
separate certificates.
The Rights Agreement also provides that, until the
Distribution Date, the Rights will be transferred with and only with the Common
Stock. Until the Distribution Date (or earlier redemption, expiration or
termination of the Rights), the transfer of any certificates for Common Stock,
with or with a copy of the Rights Summary, will also constitute the transfer of
the Rights associated with the Common Stock represented by such certificates. As
soon as practicable following the Distribution Date, separate certificates
evidencing the Rights (the "Right Certificates") will be mailed to holders of
record of the Common Stock as of the close of business on the Distribution Date
and, thereafter, such separate Right Certificates alone will evidence the
Rights.
The Rights are not exercisable until the Distribution Date and
will expire at the earliest of (i) January 26, 2006, (ii) the redemption of the
Rights by the Company as described below, (iii) the effective time of the Merger
and (iv) the exchange of all Rights for Common Stock as described below.
In the event that any person becomes an Acquiring Person, each
holder of a Right will thereafter have the right to receive, upon exercise at
the then current Purchase Price, Common Stock (or, in certain circumstances,
cash, property or other securities of the Company) having a value equal to two
times the Purchase Price. The Rights Agreement contains an exemption for any
issuance of Common Stock by the Company directly to any person (for example, in
a private placement or an acquisition by the Company in which Common Stock is
used as consideration), even if that person would become the beneficial owner of
15% or more of the Common Stock, provided that such person does not acquire any
additional shares of Common Stock. The provisions of the Rights Agreement
described in the first sentence of this paragraph will not apply to or be
triggered by the execution 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).
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In the event that, at any time following the Shares
Acquisition Date, the Company is acquired in a merger or other business
combination transaction or 50% or more of the Company's assets or earning power
are sold, proper provision will be made so that each holder of a Right will
thereafter have the right to receive, upon exercise at the then current Purchase
Price, common stock of the acquiring or surviving company having a value equal
to two times the exercise price of the Right. The provisions of the Rights
Agreement described in the preceding sentence will not apply to or be triggered
by the execution 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).
Notwithstanding the foregoing, following the occurrence of any
of the events set forth in the preceding two paragraphs (the "Triggering
Events") any Rights that are, or (under certain circumstances specified in the
Rights Agreement) were, beneficially owned by any Acquiring Person will
immediately become null and void.
The Purchase Price payable, and the number of shares of Series
B Preferred Stock or other securities or property issuable, upon exercise of the
Rights, are subject to adjustment from time to time to prevent dilution, among
other circumstances, in the event of a subdivision, split (other than a stock
dividend on the Common Stock payable in shares of Common Stock), combination,
consolidation or reclassification of, the Series B Preferred Stock or the Common
Stock, or a reverse split of the outstanding shares of Series B Preferred Stock
or Common Stock.
At any time after the acquisition by a person or group of
affiliated or associated persons (other than the Company, its subsidiaries, any
employee benefit plan of the Company or any subsidiary, Terence M. Graunke or
Frontenac VI Limited Partnership) of beneficial ownership of 15% or more of the
outstanding Common Stock and prior to the acquisition by such person or group of
50% or more of the outstanding Common Stock, the Board of Directors may exchange
the Rights (other than Rights owned by such person or group which shall become
void) in whole or in part, at an exchange ratio of one share of Common Stock per
Right (subject to adjustment).
With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments require an adjustment of at least
1% in the Purchase Price. The Company will not be required to issue fractional
shares of Series B Preferred Stock or Common Stock (other than fractions in
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multiplies of one one-hundredths of a share or Series B Preferred Stock) and, in
lieu thereof, an adjustment in cash may be made based on the market price of the
Series B Preferred Stock or Common Stock on the last trading date prior to the
date of exercise.
At any time after the date of the Rights Agreement until the
time that a person becomes an Acquiring Person, the Board of Directors may
redeem the Rights in whole, but not in part, at a price of $.01 per Right (the
"Redemption Price"), which may (at the option of the Company) be paid in cash,
shares of Common Stock or other consideration deemed appropriate by the Board of
Directors. Upon the effectiveness of any action of the Board of Directors
ordering redemption of the Rights, the Rights will terminate and the only right
of the holders of Rights will be to receive the Redemption Price. Until a Right
is exercised, the holder thereof, as such, will have no rights as a stockholder
of the Company, including, without limitation, the right to vote or to receive
dividends.
The provisions of the Rights Agreement may be amended by the
Company, except that any amendment adopted after the time that a person becomes
an Acquiring Person may not adversely effect the interests of holders of Rights.
The Rights have certain anti-takeover effects. The Rights will
cause substantial dilution to a person or group that attempts to acquire the
Company without conditioning the offer on the Rights being redeemed or a
substantial number of Rights being acquired, and under certain circumstances the
Rights beneficially owned by such a person or group may become void. The Rights
should not interfere with any merger of other business combination approved by
the Board of Directors because, if the Rights would become exercisable as a
result of such merger or business combination, the Board of Directors may, at
its option, at any time prior to the time that any person becomes an Acquiring
Person, redeem all (but not less than all) of the then outstanding Rights at the
Redemption Price.
Delaware Law and Certain Corporate Provisions
The Company is subject to the provisions of Section 203 of the
General Corporation Law of the State of Delaware (the "Delaware General
Corporation Law"). In general, this statute prohibits a publicly held Delaware
corporation from engaging, under certain circumstances and subject to certain
exceptions, in a "business combination" with an "interested stockholder" for a
period of three years after the date of the transaction in which the person
becomes an interested stockholder, unless either (i)
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prior to the date at which the person becomes an interested stockholder the
Board of Directors approves the transaction or business combination which
results in the stockholder becoming an interested stockholder, (ii) upon
consummation of the transaction which results in the stockholder becoming an
interested stockholder, the stockholder acquires more than 85% of the
outstanding voting stock of the corporation (excluding shares held by directors
who are officers or held in certain employee stock plans) or (iii) the business
combination is approved by the Board of Directors and by holders of two-thirds
of the outstanding voting stock of the corporation (excluding shares held by the
interested stockholder) at a meeting of stockholders (and not by written
consent). An "interested stockholder" is a person (other than the Company or any
majority-owned subsidiary of the Company) who, together with affiliates and
associates, owns (or at any time within the prior three years did own) 15% or
more of the corporation's voting stock, subject to certain exceptions. Section
203 defines a "business combination" to include, without limitation, mergers,
consolidations, stock sales and asset-based transactions and other transactions
resulting in a financial benefit to the interested stockholder.
The Company's Restated Certificate of Incorporation and Bylaws
contain a number of provisions relating to corporate governance and to the
rights of stockholders. Certain of these provisions may be deemed to have a
potential anti-takeover effect in that such provisions may delay or prevent a
change of control of the Company. These provisions include: (a) the
classification of the Board of Directors into three classes, each class serving
for staggered three year terms; (b) the requirement that stockholders may remove
directors only for cause and only by the affirmative vote of at least 80% of the
voting power of the Company's capital stock; (c) the authority of the Board to
issue series of Preferred Stock with such voting rights and other provisions as
the Board of Directors may determine; (d) a requirement that a vote of greater
than 80% of the voting power of shares entitled to vote generally for the
election of directors is required to amend provisions of the Restated
Certificate of Incorporation and Bylaws relating to the classification of the
Board and removal of directors unless 75% of the members of the Board of
Directors approve such action; (e) the requirement that stockholder action can
be taken only at an annual or special meeting of stockholders and prohibiting
stockholder action by written consent in lieu of a meeting; (f) an advance
notice procedure for stockholders to make nominations of candidates for election
as directors; and (g) the requirement that a special stockholders meeting may
only be called by the Chairman of the Board, the President or at the direction
of the majority of the Board of Directors and not by stockholders.
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These provisions have certain antitakeover effects and may
discourage proposals that could be viewed as favorable to stockholders. The
description set forth above is intended as a summary only and is qualified in
its entirety by reference to the Rights Agreement and the Company's Restated
Certificate of Incorporation and Bylaws, copies of which have been filed by the
Company with the Securities and Exchange Commission.
Registration Rights
In the event the Company proposes to register any of its
securities under the Securities Act of 1933, as amended (the "Securities Act"),
for its own account or otherwise, at any time, certain holders of Common Stock,
including certain directors of the Company, or certain of their permitted
transferees, are entitled to notice of such registration and to include shares
of such Common Stock therein, subject to certain conditions and limitations. In
addition, a majority of such stockholders may, on up to two occasions, at any
time, subject to certain other conditions and limitations, require the Company,
whether or not the Company proposes to register its Common Stock for sale, to
register all or part of their registrable shares for sale to the public under
the Securities Act. The Company is obligated to pay all the expenses (other than
underwriting discounts and commissions) for any such registration. Such
stockholders may also demand an unlimited number of additional registrations
provided they agree to pay, on a pro rata basis, all the expenses for any such
registration. In addition, such holders may require the Company to register all
or part of their shares on Form S-3, or any similar form, if the Company then
qualifies for use of such form, subject to certain conditions and limitations.
The Company is obligated to pay all the expenses (other than underwriting
discounts) for such Form S-3 registrations. The Company has agreed to indemnify
such stockholders and certain related parties against all losses, claims,
damages, liabilities and expenses (including attorneys' fees) caused by any
untrue statement of a material fact required to be stated therein or necessary
to make the statements therein not misleading, except to the extent they are
caused by or contained in information furnished by the stockholder expressly for
use therein. In addition, the Company has agreed to refrain from any public sale
or distribution of equity securities (except pursuant to a registration on Form
S-8) for a period of 90 days after any such registration, and to cause certain
other stockholders from making a public sale of equity securities of the Company
during such 90 day period. The Company has also agreed to refrain from granting
registration rights without the consent of such stockholders.
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Transfer Agent and Registrar
The transfer agent and registrar for the Common Stock is
Harris Trust and Savings Bank, Chicago, Illinois.
Item 2. Exhibits.
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Exhibit 1. Specimen Certificate for Common Stock (1)
Exhibit 2. Registrant's Restated Certificate of Incorporation (2)
Exhibit 3. Registrant's Bylaws (3)
Exhibit 4. Rights Agreement between the Registrant and Harris Trust and
Savings Bank, as Rights Agent (4)
Exhibit 5. First Amendment to Rights Agreement between the Registrant
and Harris Trust and Savings Bank, as Rights Agent
Exhibit 6. Registration Rights Agreement between the holders of the
Registrant's Series A Preferred Stock, as amended (5)
Exhibit 7. Registration Agreement between the Registrant, Philip
Meurer, Joseph Parker, Lee J. Jacobson and E. Michael Loftus
(6)
Exhibit 8. Registration Rights Agreement between the Registrant and
Thomas R. Graunke (7)
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(1) Incorporated by reference to Exhibit 4.1 to the Registrant's
Registration Statement on Form S-1, as amended (File No. 333-702)
(2) Incorporated by reference to Exhibit 3.1 to the Registrant's
Registration Statement on Form S-1, as amended (File No. 333-702)
(3) Incorporated by reference to Exhibit 3.2 to the Registrant's
Registration Statement on Form S-1, as amended (File No. 333-702)
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(4) Incorporated by reference to Exhibit 4.9 to the Registrant's
Registration Statement on Form S-8, as amended (File No. 333-42949)
(5) Incorporated by reference to Exhibit 10.15 to the Registrant's
Registration Statement on Form S-1, as amended (File No. 333-702)
(6) Incorporated by reference to the exhibits to the Company's Current
Report on Form 8-K dated June 21, 1996
(7) Incorporated by reference to the exhibits to the Company's Current
Report on Form 8-K dated June 31, 1996
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, as amended, the Registrant has duly caused this
registration statement to be signed on its behalf by the undersigned, thereto
duly authorized.
Mastering, Inc.
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(Registrant)
Date: February 24, 1998 By: /s/ Terence M. Graunke
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Name: Terence M. Graunke
Title: Chairman and Chief
Executive Officer
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EXHIBIT INDEX
Exhibit
Number Description of Document
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Exhibit 1. Specimen Certificate for Common Stock (1)
Exhibit 2. Registrant's Restated Certificate of Incorporation (2)
Exhibit 3. Registrant's Bylaws (3)
Exhibit 4. Rights Agreement between the Registrant and Harris Trust and
Savings Bank, as Rights Agent (4)
Exhibit 5. First Amendment to Rights Agreement between the Registrant
and Harris Trust and Savings Bank, as Rights Agent
Exhibit 6. Registration Rights Agreement between the holders of the
Registrant's Series A Preferred Stock, as amended (5)
Exhibit 7. Registration Agreement between the Registrant, Philip
Meurer, Joseph Parker, Lee J. Jacobson and E. Michael Loftus
(6)
Exhibit 8. Registration Rights Agreement between the Registrant and
Thomas R. Graunke (7)
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(1) Incorporated by reference to Exhibit 4.1 to the Registrant's
Registration Statement on Form S-1, as amended (File No. 333-702)
(2) Incorporated by reference to Exhibit 3.1 to the Registrant's
Registration Statement on Form S-1, as amended (File No. 333-702)
(3) Incorporated by reference to Exhibit 3.2 to the Registrant's
Registration Statement on Form S-1, as amended (File No. 333-702)
(4) Incorporated by reference to Exhibit 4.9 to the Registrant's
Registration Statement on Form S-8, as amended (File No. 333-42949)
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(5) Incorporated by reference to Exhibit 10.15 to the Registrant's
Registration Statement on Form S-1, as amended (File No. 333-702)
(6) Incorporated by reference to the exhibits to the Company's Current
Report on Form 8-K dated June 21, 1996
(7) Incorporated by reference to the exhibits to the Company's Current
Report on Form 8-K dated June 31, 1996
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EXECUTION COPY
FIRST AMENDMENT TO RIGHTS AGREEMENT
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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 HARRIS TRUST AND SAVINGS BANK, an
Illinois banking corporation (the "Rights Agent").
W I T N E S S E T H :
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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
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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
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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.
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"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)."
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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."
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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:
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"(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.
9201 East Mountain View Road
Suite 200
Scottsdale, Arizona 85258-5132
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
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<PAGE>
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.
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<PAGE>
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/ Marc Pinto
----------------------------
Name: Marc Pinto
Title: EVP & CFO
Attest:
By: /s/ Thomas R. Graunke
----------------------------
Name: Thomas R. Graunke
Title: President
HARRIS TRUST AND SAVINGS BANK
By: /s/ Tod Shafer
----------------------------
Name: Tod Shafer
Title: Vice President
Attest:
By: /s/ Susan Hogan
----------------------------
Name: Susan Hogan
Title: Trust Officer
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