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Total Number of Pages __
Index to Exhibits at Page __
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12 (b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
XYLAN CORPORATION
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(Exact name of registrant as specified in its charter)
California 95-443911
(State of incorporation (IRS Employer
or organization) Identification No.)
22707 W. Agoura Road, Calabasas, CA 91302
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
None None
Securities to be registered pursuant to Section 12(g) of the Act:
Preferred Share Purchase Rights
-------------------------------------
<PAGE> 2
(Title of Class)
Item 1. Description of Securities to be Registered.
On April 17, 1997, the Board of Directors of Xylan Corporation (the
"Company") declared a dividend of one preferred share purchase right (a
"Right") for each outstanding share of Common Stock, $0.001 par value (the
"Common Shares"), of the Company. The dividend is payable on May 9, 1997 (the
"Record Date") to shareholders of record as of the close of business on that
date. Each Right entitles the registered holder to purchase from the Company
one one-thousandth of a share of Series A Participating Preferred Stock,
$0.001 par value, of the Company (the "Preferred Shares"), subject to
adjustment, at a price of $75.00 per share, subject to adjustment (the
"Purchase Price"). The description and terms of the Rights are set forth in a
Preferred Shares Rights Agreement (the "Rights Agreement") dated as of April
17, 1997 between the Company and BankBoston, N.A. (f/k/a The First National
Bank of Boston), as the Rights Agent (the "Rights Agent").
The following is a general description only and is subject to the detailed
terms and conditions of the Rights Agreement and Amendment No. 1 to Rights
Agreement (the "Amendment"). A copy of the Rights Agreement, including the
Certificate of Determination, the form of Rights Certificate and the Summary of
Rights to be provided to shareholders of the Company, is attached as Exhibit 1
to this Registration Statement and is incorporated herein by reference. A copy
of Amendment No. 1 to Rights Agreement is attached as Exhibit 2 to this
Registration Statement and is incorporated herein by reference.
Rights Evidenced by Common Share Certificates
The Rights will not be exercisable until the Distribution Date (defined
below). Accordingly, Common Shares certificates outstanding on the Record Date
will evidence the Rights related thereto, and Common Share certificates issued
after the Record Date will contain a notation incorporating the Rights
Agreement by reference. Until the Distribution Date (or earlier redemption,
exchange or expiration of the Rights), the surrender or transfer of any
certificates for Common Shares, even without notation or a copy of the Summary
of Rights being attached thereto, will also constitute the transfer of the
Rights associated with the Common Shares represented by such certificate.
Distribution Date
The Rights will separate from the Common Shares, certificates for the
Rights ("Rights Certificates") will be issued and the Rights will become
exercisable upon the earlier of: (i) the close of business on the tenth day (or
such later date as may be determined by a majority of the Board of Directors,
excluding directors affiliated with the Acquiring Person, as defined below (the
"Continuing Directors")) following a public announcement that a person or group
of affiliated or associated persons has acquired, or obtained the right to
acquire, beneficial ownership of 15% or more of the outstanding Common Shares
(an "Acquiring Person") (in the case of Steve Y. Kim, Yuri Pikover, John L.
Walecka, or Brentwood Associates VI, L.P., this threshold only applies if such
shares of Common Stock are acquired after April 17, 1997 and if such
acquisition was not approved by the Company's Board of Directors or a committee
thereof) or (ii) the close of business on the tenth day (or such later date as
may be determined by a majority of the Continuing Directors) following the
commencement of 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 outstanding Common Shares. The earlier of such dates is referred to as the
"Distribution Date". A Distribution Date shall not be deemed to occur by reason
of (i) the execution of the Merger Agreement, the Shareholder Agreements or the
Stock Option Agreement, (ii) the commencement or consummation of the Offer,
(iii) the acquisition of Common Shares by Alcatel, a corporation organized and
existing under the laws of France, Zeus Acquisition Corp., a California
corporation and an indirect wholly-owned subsidiary of Alcatel, or any of their
respective Affiliates or Associates pursuant to the Offer, the Shareholder
Agreements or the exercise of the Top-Up Option, (iv) the consummation of the
Merger, or the other transactions contemplated in the Merger Agreement, each of
the Shareholder Agreements and the Stock Option Agreement and (v) the
announcement of the Offer, the Merger or the other transactions contemplated by
the Merger Agreement, the Shareholder Agreement, and the Stock Option
Agreement, as such terms are defined in the Amendment.
Issuance of Rights Certificates, Expiration of Rights
As soon as practicable following the Distribution Date, separate Rights
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Certificates will be mailed to holders of record of the Common Shares as of the
close of business on the Distribution Date and such separate Rights Certificates
alone will evidence the Rights from and after the Distribution Date. Unless
otherwise determined by the Board of Directors, all Common Shares issued prior
to the Distribution Date will be issued with Rights. Common Shares issued after
the Distribution Date may be issued with Rights if such shares are issued (i)
upon the exercise, conversion or exchange of securities issued after adoption of
the Rights Agreement or (ii) pursuant to the exercise of stock options or under
any employee benefit plan or arrangement. Except as otherwise determined by the
Board of Directors, no other Common Shares issued after the Distribution Date
will be issued with Rights. In addition, no Common Shares issued after the
Distribution Date will be issued with Rights if such issuance would result in or
create a significant risk of (i) material adverse tax consequences to the
Company or the person to whom such Rights Certificate would be issued or (ii)
such options or plans not qualifying for otherwise available special tax
treatment. The Rights will expire on the earlier of April 16, 2007 (the "Final
Expiration Date") or immediately prior to the consummation of the Offer (as such
term is defined in the Amendment), unless the Final Expiration Date is extended
or unless the Rights are earlier redeemed or exchanged by the Company or expire
upon consummation of certain mergers, consolidations or sales of assets, as
described below.
Initial Exercise of the Rights
Following the Distribution Date, and until the occurrence of one of the
subsequent events described below, holders of the Rights will be entitled to
receive, upon exercise and the payment of $75.00 (the "Purchase Price") per
Right, one one-thousandth of a Preferred Share.
Exchange Provision
At any time after an Acquiring Person has become such and prior to the
Acquiring Person beneficially owning 50% or more of the outstanding Common
Shares, the Board of Directors of the Company may exchange the Rights (other
than Rights owned by the Acquiring Person or its affiliates), in whole or in
part, at an exchange ratio of one Common Share per Right (subject to
adjustment).
Right to Buy Common Shares at Half Price
Unless the Rights are earlier redeemed or exchanged, in the event that an
Acquiring Person becomes such, other than pursuant to a Permitted Offer (as
defined below), then proper provision will be made so that each holder of a
Right which has not theretofore been exercised (other than Rights beneficially
owned by the Acquiring Person, which will thereafter be void) will thereafter
have the right to receive, upon exercise of a Right, a number of Common Shares
having a then current value equal to two times the Purchase Price. In the event
that the Company does not have a sufficient number of Common Shares available,
or the Board decides that such action is necessary or appropriate and not
contrary to the interests of Rights holders, the Company may, among other
things, instead substitute cash, assets or other securities for the Common
Shares into which the Rights would have otherwise been exercisable.
A "Permitted Offer" means a tender offer for all outstanding Common Shares,
or for 49.99% of the Common Shares, in either case, followed by a merger, such
tender offer to be made in a manner prescribed by Section 14(d) of the
Securities and Exchange Act of 1934, as amended, and the rules and regulations
thereunder; provided, however, that the tender offer occurs at a time when
Continuing Directors are in office and a majority of the Continuing Directors
then in office has determined that the offer is both adequate and otherwise in
the best interests of the Company and its shareholders (taking into account all
factors that such Continuing Directors deem relevant, including without
limitation, prices that could reasonably be achieved if the Company or its
assets were sold on an orderly basis designed to realize maximum value).
Right to Buy Acquiring Company Stock at Half Price
Similarly, unless the Rights are earlier redeemed or exchanged, in the
<PAGE> 4
event that, after the Shares Acquisition Date (as defined below), (i) the
Company consolidates with or merges into another entity, (ii) another entity
consolidates with or merges into the Company or (iii) the Company sells or
otherwise transfers 50% or more of its consolidated assets or earning power,
proper provision must be made so that each holder of a Right which has not
theretofore been exercised (other than Rights beneficially owned by the
Acquiring Person, which will thereafter be void) will thereafter have the right
to receive, upon exercise, a number of shares of common stock of the acquiring
company having a then current value equal to two times the Purchase Price
(unless the transaction satisfies certain conditions and is consummated with a
person who acquired shares pursuant to a Permitted Offer, in which case the
Rights will expire).
Pursuant to the Amendment, a Shares Acquisition Date (as defined below),
shall not occur by virtue of (i) the execution of the Merger Agreement, the
Shareholder Agreements or the Stock Option Agreement, (ii) the consummation of
the Offer, (iii) the acquisition of Common Shares by Zeus Acquisition Corp.,
Alcatel or any of their respective affiliates pursuant to the Offer, the
Shareholder Agreements or the exercise of the Top-Up Option, (iv) the
consummation of the Merger, or the transactions contemplated in the Merger
Agreement, each of the Shareholder Agreements and the Stock Option Agreement and
(v) the announcement of the Offer, the Merger or the other transactions
contemplated by the Merger Agreement, the Shareholder Agreement and the Stock
Option Agreement (as such terms are defined in the Amendment).
Adjustments to Prevent Dilution
The Purchase Price payable, the number of Rights and the number of
Preferred Shares, Common Shares or other securities or property issuable upon
exercise of the Rights are subject to adjustment from time to time to prevent
dilution as set forth in the Rights Agreement. With certain exceptions, no
adjustment in the Purchase Price will be required until cumulative adjustments
require an adjustment of at least 1% in such Purchase Price.
Rights and Preferences of the Preferred Shares
Preferred Shares purchasable upon exercise of the Rights will not be
redeemable. Each Preferred Share will be entitled to an aggregate dividend of
1,000 times the dividend declared per Common Share. In the event of liquidation,
the holders of the Preferred Shares will be entitled to a preferential
liquidation payment equal to accrued but unpaid dividends plus the greater of
$1,000 per share and 1,000 times the aggregate per share amount to be
distributed to the holders of Common Shares. Each Preferred Share will have
1,000 votes, voting together with the holders of Common Shares, except as
required by law or the Certificate of Determination of Rights, Preferences and
Privileges of Series A Participating Preferred Stock. In the event of any
merger, consolidation or other transaction in which Common Shares are changed or
exchanged, each Preferred Share will be entitled to receive 1,000 times the
amount received per Common Share. These rights are protected by customary
anti-dilution provisions. Because of the nature of the dividend, liquidation and
voting rights of the Preferred Shares, the value of the one one-thousandth
interest in a Preferred Share purchasable upon exercise of each Right should
approximate the value of one Common Share.
Redemption
At any time prior to the close of business on the earlier of (i) the tenth
day following the date (the "Shares Acquisition Date") of public announcement
that an Acquiring Person has become such or such later date as may be determined
by a majority of the Continuing Directors and publicly announced by the Company
or (ii) the Final Expiration Date of the Rights, the Company may redeem the
Rights in whole, but not in part, at a price of $0.01 per Right ("Redemption
Price").
No Shareholders' Rights Prior to Exercise
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Company (other than any rights resulting from
such holder's ownership of Common Shares), including, without limitation, the
right to vote or to receive dividends.
Amendment of Rights Agreement
<PAGE> 5
The provisions of the Rights Agreement may be supplemented or amended by
the Board of Directors in any manner prior to the Distribution Date without the
approval of Rights holders. After the Distribution Date, the provisions of the
Rights Agreement may be supplemented or amended by the Board in order to (i)
cure any ambiguity, defect or inconsistency, (ii) to make changes which are
deemed necessary or advisable and do not adversely affect the interests of
holders of Rights (excluding the interests of any Acquiring Person), or (iii)
to shorten or lengthen any time period under the Rights Agreement; provided,
however, that no amendment to lengthen (A) the time period governing redemption
shall be made at such time as the Rights are not redeemable, or (B) any other
period unless for the purpose of protecting, enhancing or clarifying the rights
of, and/or benefits to, the holders of Rights.
Certain Anti-takeover Effects
The Rights approved by the Board are designed to protect and maximize the
value of the outstanding equity interests in the Company in the event of an
unsolicited attempt by an acquiror to take over the Company, in a manner or on
terms not approved by the Board of Directors. Takeover attempts frequently
include coercive tactics to deprive a corporation's Board of Directors and its
shareholders of any real opportunity to determine the destiny of the
corporation. The Rights have been declared by the Board in order to deter such
tactics, including a gradual accumulation of shares in the open market of a 15%
or greater position to be followed by a merger or a partial or two-tier tender
offer that does not treat all shareholders equally. These tactics unfairly
pressure shareholders, squeeze them out of their investment without giving them
any real choice and deprive them of the full value of their shares.
The Rights are not intended to prevent a takeover of the Company and will
not do so. The Rights are not exercisable in the event of a Permitted Offer, as
described above. The Rights may be redeemed by the Company at $0.01 per Right
within ten days (or such later date as may be determined by a majority of the
Continuing Directors) after the accumulation of 15% or more of the Company's
outstanding Common Shares by a single acquiror or group. Accordingly, the
Rights should not preclude any merger or business combination approved by the
Board of Directors. Issuance of the Rights does not in any way weaken the
financial strength of the Company or interfere with its business plans. The
issuance of the Rights has no immediate dilutive effect, will not affect
reported earnings per share, should not be taxable to the Company or to its
shareholders and will not change the way in which the Company's shares are
presently traded. The Company's Board of Directors believes that the Rights
represent a sound and reasonable means of addressing the complex issues of
corporate policy created by the current takeover environment. However, the
Rights may have the effect of rendering more difficult or discouraging an
acquisition of the Company deemed undesirable by the Board of Directors. The
Rights may cause substantial dilution to a person or group that attempts to
acquire the Company on terms or in a manner not approved by the Company's Board
of Directors, except pursuant to an offer conditioned upon the negation,
purchase or redemption of the Rights.
Item 2. Exhibits.
1. Preferred Shares Rights Agreement, dated as of April 17, 1997,
between Xylan Corporation and BankBoston, N.A. (f/k/a The First
National Bank of Boston), including the Certificate of
Determination of Rights, Preferences and Privileges of Series A
Participating Preferred Stock, the form of Rights Certificate and
the Summary of Rights attached thereto as Exhibits A, B and C,
respectively.(A)
2. Amendment No. 1 to Rights Agreement, dated as of March 1, 1999
between Xylan Corporation and BankBoston, N.A. (f/k/a The First
National Bank of Boston)
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(A) Previously filed with Registrant's registration statement on
Form 8-A dated April 24, 1997.
<PAGE> 6
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be signed
on its behalf of the undersigned, thereto duly authorized.
XYLAN CORPORATION
Date: March 8, 1999 By /s/ Steven Y. Kim
-------------------------------------
President and Chief Executive Officer
<PAGE> 7
XYLAN CORPORATION
REGISTRATION STATEMENT ON FORM 8-A/A
EXHIBIT INDEX
Page Number Under
Exhibit Sequential Numbering
No. Exhibit System
- ------- ------- --------------------
1 Preferred Shares Rights Agreement, dated
as of April 17, 1997, between Xylan
Corporation and BankBoston, N.A. (f/k/a
The First National Bank of Boston), including
the Certificate of Determination of Rights,
Preferences and Privileges of Series A
Participating Preferred Stock, the form of
Rights Certificate and the Summary of Rights
attached thereto as Exhibits A, B and C,
respectively.(A)
2 Amendment No. 1 to Rights Agreement, dated
as of March 1, 1999 between Xylan
Corporation and BankBoston, N.A. (f/k/a The
First National Bank of Boston)
- ------------
(A) Previously filed with Registrant's registration statement on
Form 8-A dated April 24, 1997.
<PAGE> 1
EXHIBIT 2
---------
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This Amendment dated March 1, 1999 ("Amendment") to the Preferred Shares
Rights Agreement ("Rights Agreement"), dated as of April 17, 1997, is between
Xylan Corporation, a California corporation (the "Company"), and BankBoston,
N.A., a national banking association (f/k/a The First National Bank of Boston)
(the "Rights Agent").
WHEREAS, the Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement.
WHEREAS, the Company, Alcatel, a corporation organized under the laws of
France ("Alcatel"), and Zeus Acquisition Corp., a California corporation
("Sub"), a contemplate entering into an Agreement and Plan of Merger (the
"Merger Agreement") pursuant to which, among other things, Sub will commence a
cash tender offer (the "Offer") to purchase all the outstanding shares of the
Company and, following the commencement of the Offer, Sub would merge with and
into the Company (the "Merger").
WHEREAS, Alcatel, Sub and each of Steve Y. Kim (and trust controlled by
him) and Yuri Pikover (and trusts controlled by him) (each of Steve Y. Kim and
his trusts and Yuri Pikover and his trusts are referred to as a "Founding
Shareholder"), also contemplate entering into Shareholder Agreements (each, a
"Shareholder Agreement"), pursuant to which, among other things, the Founding
Shareholder would agree (i) to tender his shares of Common Stock, par value
$.001 per share of the Company (the "Common Share") into the Offer, (ii) grant
to Alcatel an irrevocable proxy to vote his Common Shares in favor of the
Merger, the Merger Agreement and the transactions contemplated thereby and (iii)
grant Sub an option to purchase all the shares of Common Shares owned by each
Founding Shareholder under certain circumstances.
WHEREAS, Alcatel, Sub and the Company also contemplate entering into a
Stock Option Agreement (the "Stock Option Agreement") pursuant to which the
Company would agree to issue Common Shares in connection with the Offer in order
to achieve at least 90% of the outstanding Common Shares tendered in the Offer.
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company and
the Rights Agent may from time to time supplement and amend the Rights Agreement
in order to make any change which the Company may deem necessary or desirable
and which shall be consistent with, and for the purposes of fulfilling, the
objectives of the Board of Directors of the Company in adopting the Rights
Agreement.
WHEREAS, the Board of Directors of the Company has determined that an
amendment to the Rights Agreement as set forth herein is necessary and desirable
and is consistent with the objectives of the Board of Directors of the Company
in adopting the Rights Agreement, and the Company and the Rights Agent desire to
evidence such amendment in writing.
<PAGE> 2
WHEREAS, all acts and things necessary to make this Amendment a valid
agreement, enforceable according to its terms, have been done and performed, and
the execution and delivery of this Amendment by the Company and the Rights Agent
have been in all respects duly authorized by the Company and the Rights Agent.
NOW, THEREFORE, the parties hereto agree as follows:
1. Amendment to Section 1. Section 1 of the Rights Agreement is
supplemented to add the following definitions in the appropriate locations:
"'Kim Shareholder Agreement' shall mean the Shareholder Agreement dated as
of March 1, 1999 by and among Alcatel, Zeus Acquisition Corp., Yuri Pikover,
Pikover 1995 Irrevocable Trust, Pikover Trust and Pikover Irrevocable
Children's Trust."
"'Merger' shall have the meaning set forth in the Merger Agreement."
"'Merger Agreement' shall mean the Agreement and Plan of Merger, dated as
of March 1, 1999, by and among Alcatel, Zeus Acquisition Corp. and Xylan
Corporation, as it may be amended from time to time."
"'Offer' shall have the meaning set forth in the Merger Agreement."
"'Pikover Shareholder Agreement' shall mean the Shareholder Agreement
dated as of March 1, 1999 by and among Alcatel, Zeus Acquisition Corp. and
Steven Y. Kim, Steve Y. Kim Living Trust and Kim Irrevocable Children's Trust."
"'Shareholder Agreements' shall mean collectively, the Kim Shareholder
Agreement, the Pikover Shareholder Agreement and the Walecka Shareholder
Agreement."
"'Stock Option Agreement' shall mean the Stock Option Agreement dated as
of March 1, 1999 by and among Alcatel, Zeus Acquisition Corp. and Xylan
Corporation."
"'Top-Up Option' shall have the meaning set forth in the Stock Option
Agreement."
"'Walecka Shareholder Agreement' shall mean the Shareholder Agreement
dated as of March 1, 1999 by and among Alcatel, Zeus Acquisition Corp. and John
Walecka."
2. Amendment of the definition of "Acquiring Person." The definition of
"Acquiring Person" in Section 1(a) of the Rights Agreement shall be amended by
adding the following at the end of Section 1(a):
"Notwithstanding the foregoing or any provision to the contrary in this
Agreement none of Alcatel, Zeus Acquisition Corp., or any of
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their respective Affiliates or Associates shall, individually or
collectively, be deemed to be an Acquiring Person pursuant to this
Agreement by virtue of (i) the execution of the Merger Agreement, the
Shareholder Agreements or the Stock Option Agreement, (ii) the
commencement or the consummation of the Offer, (iii) the acquisition
of Common Shares by Zeus Acquisition Corp., Alcatel or any of their
respective Affiliates or Associates pursuant to the Offer, the
Shareholder Agreements or the exercise of the Top-Up Option and (iv)
the consummation of the Merger or the other transactions contemplated
in the Merger Agreement, each of the Shareholders Agreements and the
Stock Option Agreement."
3. Amendment of the definition of "Business Day." The definition of
"Business Day" in Section 1(d) of the Rights Agreement is amended and restated
to read in its entirety 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."
4. Amendment of the definition of "Close of Business." The
definition of "Close of Business" in Section 1(e) of the Rights Agreement is
amended and restated to read in its entirety as follows:
"'Close of Business' on any given date shall mean 5:00 P.M.,
Massachusetts time, on such date; provided, however, that if such date
is not a Business Day it shall mean 5:00 P.M., Massachusetts time, on
the next succeeding Business Day."
5. Amendment of the definition of "Distribution Date." The
definition of "Distribution Date" in Section 1(h) of the Rights Agreement is
amended by adding the following sentence at the end thereof:
"Notwithstanding the foregoing or any provision to the contrary in
this Agreement, a Distribution Date shall not be deemed to occur by
reason of (i) the execution of the Merger Agreement, the Shareholder
Agreements or the Stock Option Agreement, (ii) the commencement or
consummation of the Offer, (iii) the acquisition of Common Shares by
Zeus Acquisition Corp., Alcatel or any of their respective Affiliates
or Associates pursuant to the Offer, the Shareholder Agreements or the
exercise of the Top-Up Option, (iv) the consummation of the Merger, or
the other transactions contemplated in the Merger Agreement, each of
the Shareholder
3
<PAGE> 4
Agreements and the Stock Option Agreement and (v) the announcement of
the Offer, the Merger or the other transactions contemplated by the Merger
Agreement, the Shareholder Agreements and the Stock Option Agreement."
6. Amendment of the definition of "Expiration Date". Section 1(j) of
the Rights Agreement is amended and restated to read in its entirety as follows:
"Expiration Date" shall mean the earliest of (i) immediately prior to
the consummation of the Offer, (ii) the Redemption Date, (iii) the time at which
the Board of Directors orders the exchange of the Rights as provided in Section
24 hereof and (iv) the Close of Business on the Final Expiration Date."
7. Amendment of the definition of "Permitted Offer." Section 1(l) of
the Rights Agreement is amended and restated to read in its entirety as follows:
"'Permitted Offer' shall mean a tender offer for all outstanding
Common Shares, or for 49.99% of the Common Shares, in either case, followed by a
merger, such tender offer to be made in a manner prescribed by Section 14(d) of
the Exchange Act and the rules and regulations thereunder; provided, however,
that the tender offer occurs at a time when Continuing Directors are in office
and a majority of the Continuing Directors then in office has determined that
the offer is both adequate and otherwise in the best interests of the Company
and its shareholders (taking into account all factors that such Continuing
Directors deem relevant, including without limitation, prices that could
reasonably be achieved if the Company or its assets were sold on an orderly
basis designed to realize maximum value)."
8. Amendment of the definition of "Shares Acquisition Date." Section
l(u) of the Rights Agreement by adding the following sentence at the end
thereof:
"Notwithstanding the foregoing or any provision to the contrary in
this Agreement, a Shares Acquisition Date shall not be deemed to occur by virtue
of (i) the execution of the Merger Agreement, the Shareholder Agreements or the
Stock Option Agreement, (ii) the consummation of the Offer, (iii) the
acquisition of Common Shares by Zeus Acquisition Corp., Alcatel or any of their
respective Affiliates or Associates pursuant to the Offer, the Shareholder
Agreements or the exercise of the Top-Up-Option, (iv) the consummation of the
Merger, or the other transactions contemplated in the Merger Agreement, each of
the Shareholder
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<PAGE> 5
Agreements and the Stock Option Agreement and (v) the announcement of the
Offer, the Merger or the other transactions contemplated by the Merger
Agreement, the Shareholder Agreements and the Stock Option Agreement."
9. Amendment to Section 30. Section 30 of the Rights Agreement is
amended to add the following sentence at the end thereof:
"Nothing in this Agreement shall be construed to give any holder of Rights
or any other Person any legal or equitable rights, remedies or claims under
this Agreement by virtue of the execution of the Merger Agreement, the
Shareholder Agreements or the Stock Option Agreement or by virtue of any of
the transactions contemplated by the Merger Agreement, the Shareholder
Agreements or the Stock Option Agreement."
10. Section 26 of the Rights Agreement is amended to replace the address
of the Rights Agent with the following:
Bank Boston, N.A.
c/o Equiserve Limited Partnership
150 Royall Street
Canton, MA 02021
Attention: Client Administration
11. This Amendment shall be deemed to be entered into under the laws of
the State of California 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.
12. This Amendment may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an original, and
all such counterparts shall together constitute but one and the same instrument.
13. As amended hereby, the Agreement shall remain in full force and
effect.
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<PAGE> 6
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the
date first written above.
XYLAN CORPORATION
By: /s/ Dale J. Bartos
_________________________________
Name: Dale J. Bartos
Title: Vice President and
Chief Financial Officer
Attest: /s/ Mary L. Phillips
_____________________________
BANKBOSTON, N.A.,
as Rights Agent
(f/k/a The First National Bank of Boston)
By: /s/ Carol A. Mulvey-Eori
_________________________________
Signature of Authorized Signatory
Carol A. Mulvey-Eori
Administration Manager
6
