exv4w6



 


EXHIBIT 4.6


AMENDMENT NO. 1 TO RIGHTS AGREEMENT OF

ROGUE WAVE SOFTWARE, INC.


     Amendment No. 1 (the “Amendment”) dated as of November 3, 2003, to the
Rights Agreement dated as of January 6, 2003 by and between Rogue Wave
Software, Inc. and Mellon Investor Services LLC (the “Rights Agreement”), is
being executed at the direction of Rogue Wave Software, Inc, a Delaware
corporation (the “Company”).


     WHEREAS, the Company, Quovadx, Inc., a Delaware corporation (“Parent”),
and a wholly owned subsidiary of Parent (“Merger Sub”) intend to enter into an
Agreement and Plan of Merger (the “Merger Agreement”) pursuant to which, among
other things, Merger Sub will commence an exchange offer of shares of Parent
common stock and cash for shares of common stock of the Company (the “Offer”)
and thereafter Merger Sub will merge with the Company (the “Merger”) and each
remaining share of common stock of the Company will be converted into the right
to receive shares of Parent common stock and cash, upon the terms and subject
to the conditions of the Merger Agreement;


     WHEREAS, on November 3, 2003, the Board of Directors of the Company
resolved to amend the Rights Agreement to render the Rights inapplicable to the
Offer, the Merger and the other transactions contemplated by the Merger
Agreement; and


     WHEREAS, Section 27 of the Rights Agreement permits the Company from time
to time to supplement and amend the Rights Agreement.


     NOW THEREFORE, in consideration of the foregoing and the agreements,
provisions, and covenants contained herein, the parties agree as follows:


	1.	 	Section 1 of the Rights Agreement is hereby amended by adding the
following new paragraph at the end of Section 1:



“Notwithstanding anything in this Agreement that might
otherwise be deemed to the contrary, neither Quovadx, Inc.
(“Parent”) nor any of its Affiliates or Associates shall be
deemed an Acquiring Person and none of the Distribution Date, a
Section 11(a)(ii) Event or a Section 13 Event shall have
occurred or be deemed to occur, in each such case, by the
approval, execution, delivery or performance of the Agreement
and Plan of Merger dated as of November 3, 2003, including any
amendment or supplement thereto, among Parent, a wholly owned
subsidiary of Parent and the Company (the “Merger Agreement”),
the announcement, commencement, or consummation of the Offer or
the Merger (as such terms are defined in the Merger Agreement)
or the consummation of the other transactions contemplated by
the Merger Agreement, including without limitation the
approval, execution, delivery and performance of the Company
Voting Agreements (as defined in the Merger Agreement) between
Parent and


 







 


certain stockholders of the Company. No such events shall
entitle or permit the holders of the Rights to exercise the
Rights or otherwise affect the rights of the holders of Rights,
including without limitation giving the holders of the Rights
the right to acquire securities of any party to the Merger
Agreement or enable or require the Rights to separate from the
Common Shares to which they are attached.”


	2.	 	The Rights Agreement shall not otherwise be supplemented or amended by
virtue of this Amendment, but shall remain in full force and effect. This
Amendment may be executed in one or more counterparts, all of which shall
be considered one and the same amendment and each of which shall be deemed
an original.



IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the day and year first written above.




	 	 	 
	ROGUE WAVE SOFTWARE, INC.	 	
MELLON INVESTOR SERVICES LLC
	 	 	 
	By:   /s/ Kathleen E. Brush   	 	
By:   /s/ Lisa Porter      
	Name: Kathleen E. Brush	 	
Name: Lisa Porter
	Title: Chief Executive Officer	 	
Title: Client Service Manager