Overture Services, Inc., Exhibit 4.2



 




EXHIBIT 4.2




AMENDMENT NO. 1 TO RIGHTS AGREEMENT



     AMENDMENT No. 1 (this “Amendment”), dated as of July 14, 2003, to the
Rights Agreement (the “Rights Agreement”), dated as of March 20, 2002, between
Overture Services, Inc., a Delaware corporation (the “Company”) and Mellon
Investor Services LLC, as Rights Agent (the “Rights Agent”).



     WHEREAS, the Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement; and



     WHEREAS, 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; and



     WHEREAS, the Company intends to enter into an Agreement and Plan of Merger
(as it may be amended or supplemented from time to time, the “Merger
Agreement”), dated as of July 14, 2003, by and among Yahoo! Inc., a Delaware
corporation (“Parent”), the Company and July 2003 Merger Corp., a Delaware
corporation and a wholly-owned subsidiary of Parent (“Merger Sub”) (all
capitalized terms used in this Amendment and not otherwise defined herein shall
have the meaning ascribed thereto in the Rights Agreement); and



     WHEREAS, on July 13, 2003, the Board of Directors of the Company has
approved and deemed desirable the amendment of the Rights Agreement to the
effect that (i) Parent shall not be an “Acquiring Person” under the Rights
Agreement solely by virtue of the entering into of the Merger Agreement and the
performance of the transactions contemplated thereby, including the Merger (as
defined in the Merger Agreement), and (ii) the entering into the Merger
Agreement and the Merger and the performance of the transactions contemplated
thereby shall not result in the grant of rights to any Person under the Rights
Agreement or enable or require the Company Rights (as defined in the Merger
Agreement) to be exercised, distributed or triggered, and has authorized the
entering into of this Amendment.



     NOW, THEREFORE, the Company hereby amends the Rights Agreement as follows:



     1.     Section 1(a) of the Rights Agreement is hereby modified, amended and
restated in its entirety as follows:





		
	 	     “Acquiring Person” shall mean any Person who or which, together with
all Affiliates and Associates of such Person, shall be the Beneficial
Owner of 15% or more of the Common Shares of the Company then outstanding,
but shall not include the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or any Subsidiary of the Company, or
any Person holding Common Shares for or pursuant to the terms of any such
plan. Notwithstanding the foregoing, no Person shall become an “Acquiring
Person” as the result of an acquisition of Common Shares by the Company
which, by reducing the











 





		
	 	number of Common Shares of the Company outstanding, increases the
proportionate number of Common Shares of the Company beneficially owned by
such Person to 15% or more of the Common Shares of the Company then
outstanding; provided, however, that, if a Person shall become the
Beneficial Owner of 15% or more of the Common Shares of the Company then
outstanding by reason of share purchases by the Company and shall, after
such share purchases by the Company, become the Beneficial Owner of any
additional Common Shares of the Company, then such Person shall be deemed
to be an “Acquiring Person.” Notwithstanding the foregoing, (i) if the
Board of Directors of the Company determines in good faith that a Person
who would otherwise be an “Acquiring Person,” as defined pursuant to the
foregoing provisions of this paragraph (a), has become such inadvertently,
and such Person divests as promptly as practicable a sufficient number of
Common Shares so that such Person would no longer be an “Acquiring
Person,” as defined pursuant to the foregoing provisions of this paragraph
(a), then such Person shall not be deemed to be an “Acquiring Person” for
any purposes of this Agreement and (ii) neither Yahoo! Inc., a Delaware
corporation (“Parent”) nor any of its subsidiaries shall be deemed to be
an Acquiring Person by virtue of: (A) the execution and delivery of the
Agreement and Plan of Merger (as it may be amended or supplemented from
time to time, the “Merger Agreement”) entered into as of
July 14, 2003, by
and among Parent, the Company and July 2003 Merger Corp., (B) the
conversion of Common Shares into the right to receive the Merger
Consideration (as defined in the Merger Agreement) in accordance with
Section 1.6(a) of the Merger Agreement, or (C) the consummation of the
Merger (as defined in the Merger Agreement) or any of the transactions
contemplated by the Merger Agreement (each of the events set forth in the
foregoing clauses (A) to (C), an “Exempt Event”).



     2.     Section 1(w) of the Rights Agreement is hereby modified and amended by
adding the following sentence at the end thereof:



     “No Exempt Event shall cause a Shares Acquisition Date.”



     3.     Section 3(a) of the Rights Agreement is hereby modified and amended by
adding the following sentence at the end thereof:



     “Notwithstanding the foregoing, no Exempt Event shall cause a Distribution
Date.”



     4.     Section 7(a) of the Rights Agreement is hereby modified, amended and
restated in its entirety as follows:





		
	 	     The registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein), in whole
or in part, at any time after the Distribution Date, upon surrender of the
Right Certificate, with the form of election to purchase on the reverse
side thereof properly completed and duly executed, to the Rights Agent at
the office of the Rights Agent designated for such purpose, together with
payment of the Purchase Price for each one one-hundredth of a Preferred
Share as to which the Rights are exercised, at or prior to the earliest of
(i) the time immediately prior to the consummation of the Merger (as
defined in the Merger Agreement), (ii) the Close of Business on March 29,
2012 (the “Final Expiration Date”), (iii) the time at which the Rights are
redeemed as



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	 	provided in Section 23 hereof (the “Redemption Date”), or (iv) the
time at which such Rights are exchanged as provided in Section 24 hereof.



     5.     A new Second 20(m) of the Rights Agreement is hereby added as follows:





		
	 	     The Rights Agent shall not be subject to, nor be required to comply
with, or determine if any Person has complied with, the Merger Agreement
or any agreements and documents related to or referred to in the Merger
Agreement or any other agreement between or among the parties hereto, even
though reference thereto may be made in this Agreement, or to comply with
any notice, instruction, direction, request or other communication, paper
or document other than as expressly set forth in this Agreement.



     6.     The undersigned officer of the Company, being an appropriate officer of
the Company and authorized to do so by resolution of the Board of Directors of
the Company duly adopted and approved at a meeting held July 13, 2003, hereby
certifies to the Rights Agent that this Amendment is in compliance with Section
27 of the Rights Agreement.



     7.     This Amendment may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument.




* * *




[SIGNATURE PAGE FOLLOWS]





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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:	 	OVERTURE SERVICES, INC.
	 	 	 	 	 	 	 
	By:	 	
/s/ Leonard R. Stein
	 	By:
	 	/s/ Ted Meisel
	 	 	


	 	 	 	

	Name:	 	
Leonard R. Stein
	 	Name:
	 	Ted Meisel
	Title:	 	
Chief Legal Officer and
Corporate Secretary
	 	Title:
	 	President and Chief Executive Officer
	 	 	 	 	 	 	 
	 	 	 	 	MELLON INVESTOR SERVICES LLC
	 	 	 	 	(As Rights Agent)
	 	 	 	 	 	 	 
	 	 	 	 	By:
	 	/s/ Michael E. Dzieciolowski
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	Michael E. Dzieciolowski
	 	 	 	 	Title:
	 	Assistant Vice President