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EXHIBIT 4.3
AMENDED AND RESTATED
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
Xxxxxx Instrument Corporation (the "Company") and the undersigned
Rights Agent hereby amend the Rights Agreement dated as of December 6, 1996 (the
"Rights Agreement") by and between the Company and American Stock Transfer and
Trust Company, as Rights Agent, in accordance with Section 27 of the Rights
Agreement.
1. Section 1(a) of the Rights Agreement is hereby amended and restated
to read as follows (inserted language is bolded):
(a) "Acquiring Person" shall mean any Person (other than any Exempt
Person), who or which, together with all Affiliates and Associates
(as such terms are hereinafter defined) of such Person, is the
Beneficial Owner (as such term is hereinafter defined) of 15% or more
of the Common Shares then outstanding; provided, however, that the
term "Acquiring Person" shall not include (i) a Person who is the
Beneficial Owner of 15% or more of the Common Shares then outstanding
solely as a result of a reduction in the number of Common Shares
outstanding, unless subsequent to such reduction such Person or any
Affiliate or Associate of such Person shall become the Beneficial
Owner of any additional Common Shares other than as a result of a
result of a stock dividend, stock split or similar transaction
effected by the Corporation in which all stockholders are treated
equally, or (ii) a Person who is the Beneficial Owner of 15% or more
of the Common Shares then outstanding but who acquired Beneficial
Ownership of Common Shares without any plan or intention to seek
control of the Corporation, if such Person promptly enters into a
firm commitment to divest, and thereafter promptly divests (without
exercising or retaining any power, including voting, with respect to
such Shares), sufficient Common Shares (or securities convertible
into or exercisable for Common Shares) so that such Person ceases to
be the Beneficial Owner of 15% or more of the then outstanding Common
Shares, or (iii) Xx. Xxxxxx X. Xxxxx or any other Person who becomes
a Beneficial Owner of the Common Shares owned by Xx. Xxxxx by will or
by the laws of descent and distribution, or (iv) any other Person who
acquires such a Beneficial Interest in a similar fashion but any
Person acquiring such a Beneficial Interest in any other fashion
shall be deemed an Acquiring Person if such Beneficial Interest
equals or exceeds 15% of the Common Shares then outstanding.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NEITHER
ELECTRONIC DESIGNS, INC. ("EDI") NOR ANY STOCKHOLDER OF EDI OR ANY
AFFILIATE OR ASSOCIATE OF EDI OR ANY SUCH STOCKHOLDER OF EDI SHALL BE
DEEMED TO BE AN "ACQUIRING PERSON" BY VIRTUE OF THE APPROVAL,
EXECUTION OR DELIVERY OF THE AGREEMENT AND PLAN OF MERGER BY AND
AMONG THE CORPORATION, BRAVO ACQUISITION SUBSIDIARY AND EDI, DATED
MAY 3, 1998, AS IT MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME
(THE "MERGER AGREEMENT"), OR THE EXECUTION, DELIVERY AND PERFORMANCE
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OF AGREEMENTS OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED
THEREBY, INCLUDING, WITHOUT LIMITATION, THE VOTING AGREEMENT BY AND
BETWEEN EDI AND THE STOCKHOLDER OF THE COMPANY SIGNATORY THERETO, AS
IT MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME (THE "VOTING
AGREEMENT"); PROVIDED, HOWEVER, THAT ANY STOCKHOLDER OF EDI OR ANY
AFFILIATE OR ASSOCIATE THEREOF WHO, AS OF THE EFFECTIVE TIME (AS
DEFINED IN THE MERGER AGREEMENT), IS THE BENEFICIAL OWNER OF 15% OR
MORE OF THE THEN OUTSTANDING COMMON SHARES (WHICH SHALL ACCOUNT FOR
AND INCLUDE ALL COMMON SHARES TO BE ISSUED TO STOCKHOLDERS OF EDI
PURSUANT TO THE MERGER AGREEMENT) (THE PERCENTAGE OF BENEFICIAL
OWNERSHIP OF SUCH STOCKHOLDER BEING REFERRED TO HEREIN AS THE
"GRANDFATHERED PERCENTAGE") SHALL NOT BE DEEMED AN ACQUIRING PERSON
FROM AND AFTER THE EFFECTIVE TIME UNLESS SUCH STOCKHOLDER BECOMES THE
BENEFICIAL OWNER OF ANY ADDITIONAL COMMON SHARES; AND PROVIDED
FURTHER, HOWEVER, THAT IN THE EVENT SUCH STOCKHOLDER SHALL SELL,
TRANSFER, OR OTHERWISE DISPOSE OF ANY OUTSTANDING COMMON SHARES AT
ANY TIME AFTER THE EFFECTIVE TIME, THE GRANDFATHERED PERCENTAGE
APPLICABLE TO SUCH STOCKHOLDER SHALL, SUBSEQUENT TO SUCH SALE,
TRANSFER OR DISPOSITION, MEAN THE LESSER OF (i) THE GRANDFATHERED
PERCENTAGE APPLICABLE TO SUCH STOCKHOLDER AS IN EFFECT IMMEDIATELY
PRIOR TO SUCH SALE, TRANSFER OR DISPOSITION OR (II) THE PERCENTAGE OF
OUTSTANDING COMMON SHARES THAT SUCH STOCKHOLDER BENEFICIALLY OWNS
IMMEDIATELY FOLLOWING SUCH SALE, TRANSFER OR DISPOSITION.
NOTWITHSTANDING THE FOREGOING, THE GRANDFATHERED PERCENTAGE
APPLICABLE TO ANY SUCH STOCKHOLDER SHALL BE 15% IN THE EVENT THAT AT
ANY TIME AFTER THE EFFECTIVE TIME SUCH STOCKHOLDER BECOMES THE
BENEFICIAL OWNER OF LESS THAN 15% OF THE COMMON SHARES OUTSTANDING AT
SUCH TIME.
2. Section 1(g) of the Rights Agreement be amended and restated to read
as follows (inserted language is bolded):
(g) "Distribution Date" shall mean the earlier of (i) the Close of
Business on the tenth calendar day after a Share Acquisition Date or
(ii) the Close of Business on the tenth Business Day (or such later
date as may be determined by action of the Board of Directors prior
to such time as any Person becomes an Acquiring Person) after the
date of the commencement by any Person (other than any Exempt Person)
or of the first public announcement of the intention of any Person
(other than any Exempt Person) to commence a tender or exchange
offer, the consummation of which would result in any Person becoming
the Beneficial Owner of Common Shares aggregating 15% or more of the
then outstanding Common Shares (including any such date which is
after the date of this Agreement and prior to the issuance of the
Rights). NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY
HEREIN, A "DISTRIBUTION DATE" SHALL NOT BE DEEMED TO OCCUR BY VIRTUE
OF THE APPROVAL, EXECUTION OR DELIVERY OF THE MERGER AGREEMENT, THE
VOTING AGREEMENT OR THE EXECUTION, DELIVERY AND PERFORMANCE OF THE
AGREEMENTS OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED
THEREBY.
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3. Except as otherwise expressly provided herein, or unless the context
otherwise requires, all terms used herein have the meanings assigned to them in
the Rights Agreement. The Rights Agent and the Company hereby waive any notice
requirement under the Rights Agreement pertaining to the matters covered by this
Amended and Restated Amendment No. 1. This Amended and Restated Amendment No. 1
may be executed in any number of counterparts, each of which shall be deemed an
original, but all of which counterparts shall together constitute one document.
4. This Amended and Restated Amendment No. 1 is effective August 24,
1998.
RIGHTS AGENT
AMERICAN STOCK TRANSFER AND TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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Agreed to by:
XXXXXX INSTRUMENT CORPORATION
By: /s/ Xxxxx Xxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxx
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Title: President & CEO
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