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EXHIBIT 2.1A
AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This Amendment (the "Amendment") to Agreement and Plan of Merger
dated as of May 3, 1998 (the "Agreement") is made and entered into as of June 9,
1998 by and among Xxxxxx Instrument Corporation ("Xxxxxx"), Bravo Acquisition
Subsidiary, Inc. ("Acquisition Subsidiary") and Electronic Designs, Inc.
("EDI"). All capitalized terms used herein and not defined shall have the
respective meanings assigned to them in the Agreement.
RECITALS
A. Pursuant to the Agreement, Xxxxxx, Acquisition Subsidiary and EDI
have made certain representations, warranties and agreements in connection with
the Merger.
B. The respective Boards of Directors of Xxxxxx, Acquisition
Subsidiary and EDI have determined that is in the best interests of their
respective corporations and shareholders to modify certain representations,
warranties and agreements in the Agreement and, accordingly, have approved this
Amendment.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
1. Section 1.4 of the Agreement is hereby deleted in its entirety and
replaced with the following:
1.4 STOCKHOLDERS' RIGHTS UPON MERGER. Upon consummation of the
Merger, the certificates which theretofore represented EDI Shares
(other than Dissenting Shares) (the "Certificates") shall cease to
represent any rights with respect thereto and, subject to applicable
law and this Agreement, shall only represent the right to receive the
Merger Consideration payable in lieu of fractional shares of Xxxxxx
Stock into which the EDI Shares have been converted pursuant to this
Agreement.
2. Section 1.11(a)(iii) of the Agreement is hereby deleted in its
entirety and replaced with the following: "(iii) holding the meeting of Xxxxxx'x
shareholders to approve the amendment of Xxxxxx'x Articles of Incorporation to
increase the number of authorized shares of Xxxxxx Stock and to change Xxxxxx'x
name, and to approve the issuance of the Xxxxxx Stock and other securities in
the Merger and the other transactions contemplated hereby and thereby (the
"Xxxxxx Proposals"),".
3. Section 1.11(e) of the Agreement is hereby amended by adding the
following as the third sentence of such Section:
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In the event the parties agree that the Merger shall be accorded
pooling of interests accounting treatment in accordance with
Accounting Principles Board Opinion No. 16, prior to the filing of
the Prospectus/Proxy Statement, it shall be a condition to such
filing that Xxxxxx shall have received the written opinion of the
independent certified public accountants of Xxxxxx that such
accountants concur with management's conclusion that, as of the date
of the letter, no conditions exist that would preclude accounting for
the Merger as pooling of interests in accordance with Accounting
Principles Board Opinion No. 16.
4. Section 1.14 of the Agreement is hereby deleted in its entirety and
replaced with the following:
1.14 AUTHORIZED SHARES. On or prior to the Effective Time, the
Articles of Incorporation of Xxxxxx shall be amended to increase the
number of shares of Xxxxxx Stock that Xxxxxx shall be authorized to
issue to 60,000,000.
5. A new Section 1.19 is hereby added to Article I of the Agreement as
follows:
1.19 DISSENTING SHARES.
(a) Notwithstanding any provision of this Agreement to the
contrary, any shares of EDI Common Stock held by a holder who has
demanded and perfected his demand for appraisal of his shares of EDI
Common Stock in accordance with Section 262 of the Delaware Code and
as of the Effective Time has neither effectively withdrawn nor lost
his right to such appraisal (the "Dissenting Shares"), shall not be
converted into or represent a right to receive the Merger
Consideration pursuant to Section 1.3 hereof, but the holder thereof
shall be entitled to only such rights as are granted by the Delaware
Code.
(b) Notwithstanding the provisions of subsection (a) of this
Section 1.19, if any holder of shares of EDI Common Stock who demands
appraisal of such shares under the Delaware Code shall effectively
withdraw or lose (through failure to perfect or otherwise) his right
to appraisal, then as of the Effective Time or the occurrence of such
event, whichever later occurs, such holder's shares of EDI Common
Stock shall automatically be converted into and represent only the
right to receive the Merger Consideration pursuant to Section 1.3
hereof, without any interest thereon, upon surrender of the
certificate or certificates representing such shares of EDI Common
Stock.
(c) EDI shall give Xxxxxx (i) prompt notice of any written
demands for appraisal or payment of the fair value of any shares of
EDI Common Stock, withdrawals of such demands, and any other
instruments served pursuant to the Delaware Code received by EDI and
(ii) the opportunity to direct all negotiations and proceedings with
respect to demands for appraisal under the Delaware Code.
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EDI shall not voluntarily make any payment with respect to any
demands for appraisal and shall not, except with the prior written
consent of Xxxxxx, settle or offer to settle any such demands.
6. The following sentence is hereby deleted from Section 2.2 of the
Agreement: "The holders of shares of EDI Stock are not entitled to appraisal
rights under applicable Law (as hereinafter defined) or the Certificate of
Incorporation of EDI."
Xxxxxx hereby waives its right to assert breach of the Agreement by
EDI based upon the inaccuracy of this representation prior to the execution of
this Amendment.
7. A new Section 1.20 is hereby added to Article I of the Agreement as
follows:
1.20 XXXXXX CHANGE OF NAME. On or prior to the Effective Time, the
Xxxxxx Articles shall be amended to change the corporate name of
Xxxxxx to such other name as may be mutually agreed upon by EDI and
Xxxxxx prior to the mailing to stockholders of EDI and Xxxxxx of the
Prospectus/Proxy Statement.
8. A new Section 4.13 is hereby added to Article IV of the Agreement as
follows
4.13 POOLING OF INTERESTS. EDI shall not take, and shall use
reasonable best efforts to ensure that none of the EDI Subsidiaries
and their respective stockholders, directors, officers or employees
takes, any action that would result in the Merger not qualifying for
pooling of interests accounting treatment in accordance with
Accounting Principles Board Opinion No. 16. In the event that the
Merger otherwise qualifies for pooling-of-interests accounting
treatment in accordance with Accounting Principles Board Opinion No.
16, EDI shall use reasonable efforts to ensure that each person who
is or may be an "affiliate" of EDI within the meaning of Rule 145
promulgated under the Securities Act shall enter into an agreement in
substance as provided in the form attached hereto as Schedule 4.13.
9. A new Section 5.14 is hereby added to Article V of the Agreement as
follows:
5.14 POOLING OF INTERESTS. Xxxxxx shall not take, and shall use
reasonable best efforts to ensure that none of the Xxxxxx
Subsidiaries and their respective stockholders, directors, officers
or employees takes, any action that would result in the Merger not
qualifying for pooling of interests accounting treatment in
accordance with Accounting Principles Board Opinion No. 16.
10. A new Section 5.15 is hereby added to Article V of the Agreement as
follows:
5.15 AFFILIATE AGREEMENTS. In the event that the Merger otherwise
qualifies for pooling of interests accounting treatment in accordance
with Accounting Principles Board Opinion No. 16, Xxxxxx shall use
reasonable efforts to ensure
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that each person who is or may be an "affiliate" of Xxxxxx within the
meaning of Rule 145 promulgated under the Securities Act shall enter
into an agreement in substance as provided in the form attached
hereto as Schedule 5.15.
11. Section 6.3.5 of the Agreement is hereby deleted in its entirety and
replaced with the following:
6.3.5. AFFILIATE AGREEMENTS. Each person who is or may be an
"affiliate" of EDI within the meaning of Rule 145 of the rules and
regulations of the SEC promulgated under the Securities Act shall
have entered into an agreement in substance as provided in the form
attached hereto as Schedule 4.11; provided, however, that the failure
to obtain such an agreement from New York Life Insurance Company
shall not be a condition to the obligations of Xxxxxx to effect the
Merger.
12. A new Schedule 4.13 and a new Schedule 5.15, as each is attached to
this Amendment, are hereby made a part of the Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Amendment to
the Agreement as of the date first above written.
XXXXXX INSTRUMENT CORPORATION
By: /s/ XXXXX XXXXXXXXXX
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Name: Xxxxx Xxxxxxxxxx
Title: Chief Executive Officer
BRAVO ACQUISITION SUBSIDIARY, INC.
By: /s/ XXXXX XXXXXXXXXX
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Name: Xxxxx Xxxxxxxxxx
Title: President
ELECTRONIC DESIGNS, INC.
By: /s/ XXXXXX X. XxXXXXXXXX
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Name: Xxxxxx X. XxXxxxxxxx
Title: President
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SCHEDULE 4.13
FORM OF EDI AFFILIATE AGREEMENT
THIS AFFILIATE AGREEMENT (this "Agreement") is made and entered into as of
___________, 1998, by and between XXXXXX INSTRUMENT CORPORATION, an Indiana
corporation ("Parent"), and the stockholder of ELECTRONIC DESIGNS, INC., a
Delaware corporation (the "Company"), identified on the signature page hereto
(the "Stockholder").
RECITALS:
A. Parent and the Company are parties to that certain Agreement and Plan
of Merger, dated as of May 3, 1998 and as amended (the "Merger Agreement"),
which provides for the acquisition of the Company by Parent by means of a merger
(the "Merger") of a wholly owned subsidiary of Parent ("Merger Sub") with and
into the Company (unless otherwise defined herein as the context otherwise
requires, capitalized terms shall have the respective meanings set forth in the
Merger Agreement);
B. Stockholder is the record holder and beneficial owner (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of and has the
right to vote and dispose of the number of shares of the outstanding capital
stock of Parent indicated on the signature page of this Agreement (the "Parent
Shares");
C. Stockholder has been informed and understands that because the Merger
will be accounted for using the "pooling of interests" method, and Stockholder
may be deemed to be an affiliate of Parent as the term "affiliate" (i) is
defined for purposes of paragraphs (c) and (d) of Rule 145 of the rules and
regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Act"), or (ii) is used in and for purposes of Accounting Series, Releases 130
and 135, as amended, of the Commission, the Company Shares or Parent Shares, if
any, owned by Stockholder may only be disposed of in conformity with the
limitations described herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties agree as follows:
1. Agreement to Retain Shares.
1.1 Transfer and Encumbrance. Stockholder has not and will not (and
has no plan or intention to), without the prior written consent of Parent, offer
to sell, sell, hedge or otherwise dispose of (or otherwise reduce Stockholder's
interest in or Stockholder's risk relating to) any Parent Shares (or any options
or other rights or securities to acquire or convertible into shares of any such
common stock) during the period required by Accounting Principles Board Opinion
No. 16, which generally includes any time prior to such time as financial
statements covering at least thirty (30) days of the combined operations of
Parent and the Company after the
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Effective Time of the Merger have been published. The restrictions in this
paragraph apply to any transfer of any form or nature whatsoever, including
transfers pursuant to any securities law exemption. Stockholder has been advised
and understands that such restrictions are required for compliance with the
rules of the Securities and Exchange Commission relating to pooling of interests
accounting treatment. Notwithstanding the foregoing, the Stockholder will not be
prohibited by the foregoing from (i) selling or disposing of shares so long as
such sale or disposition is in accordance with the "de minimis" test set forth
in SEC Staff Accounting Bulletin No. 76, or (ii) providing for the transfer of
such shares to the Stockholder's estate or by will upon the Stockholder's death.
1.2 New Shares. Stockholder agrees that any shares of capital stock
of the Company or Parent that Stockholder purchases or with respect to which
Stockholder otherwise acquires beneficial ownership after the date of this
Agreement and prior to the Expiration Date ("New Shares") shall be subject to
the terms and conditions of this Agreement to the same extent as if they
constituted Parent Shares.
2. Reliance Upon Representations, Warranties and Covenants. Stockholder
understands that the representations, warranties and covenants of Stockholder
set forth herein will be relied upon by Parent, the Company and their respective
counsel and accounting firms.
3. Representations, Warranties and Covenants of Stockholder.
Stockholder represents, warrants and covenants as follows:
(a) Stockholder has full power and authority to execute this
Agreement, to make the representations, warranties and covenants herein
contained and to perform Stockholder's obligations hereunder.
(b) Set forth with the signatures below is the number of Company
Shares and Parent Shares, if any, owned by Stockholder, including all Company
Shares as to which Stockholder has sole or shared voting or investment power and
all rights, options and warrants to acquire the shares of capital stock of the
Company or owned or held by Stockholder.
4. Stop Transfer Instructions. Stockholder understands and agrees that
stop transfer instructions shall be given by Parent with respect to
Stockholder's Parent Shares for the purpose of facilitating enforcement of the
agreements herein, and that in Parent's discretion there may be placed on
Stockholder's certificates for such shares a legend reflecting such
restrictions.
5. Counterparts. This Agreement shall be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one instrument.
6. Binding Agreement. This Agreement will inure to the benefit of and be
including upon and enforceable against the parties and their successors and
assigns, including administrators, executors, representatives, heirs, legatees
and devisees of Stockholder and pledgees holding Parent Shares as collateral.
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7. Termination. This Agreement shall be terminated and shall be of no
further force and effect upon the termination of the Merger Agreement in
accordance with the terms thereof.
8. Waiver. No waiver by any party hereto of any condition or of any
breach of any provision of this Agreement shall be effective unless in writing
and signed by each party hereof.
9. Governing Law. This Agreement shall be governed by and
construed, interpreted and enforced in accordance with the laws
of the State of Delaware.
10. Attorneys' Fees. In the event of any legal actions or proceeding to
enforce or interpret the provisions hereof, the prevailing party shall be
entitled to reasonable attorney's fees, whether or not the proceeding results in
a final judgment.
11. Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction or interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed, on the day and year first above written.
XXXXXX INSTRUMENT CORPORATION
By:
---------------------------
Name:
Title:
------------------------------
Stockholder's Name:
Address for Notice:
Company Shares beneficially owned:
Shares of Common Stock:
Shares subject to:
Options:
Warrants:
Other Rights:
Parent Shares beneficially owned:
Shares of Common Stock:
Shares subject to:
Options:
Warrants:
Other Rights:
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SCHEDULE 5.15
FORM OF XXXXXX AFFILIATE AGREEMENT
THIS AFFILIATE AGREEMENT (this "Agreement") is made and entered into as of
___________, 1998, by and between XXXXXX INSTRUMENT CORPORATION, an Indiana
corporation ("Parent"), and the stockholder of Parent identified on the
signature page hereto (the "Stockholder").
RECITALS:
A. Parent and Electronic Designs, Inc., a Delaware corporation (the
"Company") are parties to that certain Agreement and Plan of Merger, dated as of
May 3, 1998 and as amended (the "Merger Agreement"), which provides for the
acquisition of the Company by Parent by means of a merger (the "Merger") of a
wholly owned subsidiary of Parent ("Merger Sub") with and into the Company
(unless otherwise defined herein as the context otherwise requires, capitalized
terms shall have the respective meanings set forth in the Merger Agreement);
B. Stockholder is the record holder and beneficial owner (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of and has the
right to vote and dispose of the number of shares of the outstanding capital
stock of Parent indicated on the signature page of this Agreement (the "Parent
Shares");
C. Stockholder has been informed and understands that because the Merger
will be accounted for using the "pooling of interests" method, and Stockholder
may be deemed to be an affiliate of Parent as the term "affiliate" (i) is
defined for purposes of paragraphs (c) and (d) of Rule 145 of the rules and
regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Act"), or (ii) is used in and for purposes of Accounting Series, Releases 130
and 135, as amended, of the Commission, the Parent Shares owned by Stockholder
may only be disposed of in conformity with the limitations described herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties agree as follows:
1. Agreement to Retain Shares.
1.1 Transfer and Encumbrance. Stockholder has not and will not (and
has no plan or intention to), without the prior written consent of Parent, offer
to sell, sell, hedge or otherwise dispose of (or otherwise reduce Stockholder's
interest in or Stockholder's risk relating to) any Parent Shares (or any options
or other rights or securities to acquire or convertible into shares of any such
common stock) during the period required by Accounting Principles Board Opinion
No. 16, which generally
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includes any time prior to such time as financial statements covering at least
thirty (30) days of the combined operations of Parent and the Company after the
Effective Time of the Merger have been published. The restrictions in this
paragraph apply to any transfer of any form or nature whatsoever, including
transfers pursuant to any securities law exemption. Stockholder has been advised
and understands that such restrictions are required for compliance with the
rules of the Securities and Exchange Commission relating to pooling of interests
accounting treatment. Notwithstanding the foregoing, the Stockholder will not be
prohibited by the foregoing from (i) selling or disposing of shares so long as
such sale or disposition is in accordance with the "de minimis" test set forth
in SEC Staff Accounting Bulletin No. 76, or (ii) providing for the transfer of
such shares to the Stockholder's estate or by will upon the Stockholder's death.
1.2 New Shares. Stockholder agrees that any shares of capital stock
of Parent that Stockholder purchases or with respect to which Stockholder
otherwise acquires beneficial ownership after the date of this Agreement and
prior to the Expiration Date ("New Shares") shall be subject to the terms and
conditions of this Agreement to the same extent as if they constituted Parent
Shares.
2. Reliance Upon Representations, Warranties and Covenants. Stockholder
understands that the representations, warranties and covenants of Stockholder
set forth herein will be relied upon by Parent, the Company and their respective
counsel and accounting firms.
3. Representations, Warranties and Covenants of Stockholder.
Stockholder represents, warrants and covenants as follows:
(a) Stockholder has full power and authority to execute this
Agreement, to make the representations, warranties and covenants herein
contained and to perform Stockholder's obligations hereunder.
(b) Set forth with the signatures below is the number of Parent
Shares owned by Stockholder, including all Parent Shares as to which Stockholder
has sole or shared voting or investment power and all rights, options and
warrants to acquire the shares of capital stock of Parent owned or held by
Stockholder.
4. Stop Transfer Instructions. Stockholder understands and agrees that
stop transfer instructions shall be given by Parent with respect to
Stockholder's Parent Shares for the purpose of facilitating enforcement of the
agreements herein, and that in Parent's discretion there may be placed on
Stockholder's certificates for such shares a legend reflecting such
restrictions.
5. Counterparts. This Agreement shall be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one instrument.
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6. Binding Agreement. This Agreement will inure to the benefit of and be
including upon and enforceable against the parties and their successors and
assigns, including administrators, executors, representatives, heirs, legatees
and devisees of Stockholder and pledgees holding Parent Shares as collateral.
7. Termination. This Agreement shall be terminated and shall be of no
further force and effect upon the termination of the Merger Agreement in
accordance with the terms thereof.
8. Waiver. No waiver by any party hereto of any condition or of any
breach of any provision of this Agreement shall be effective unless in writing
and signed by each party hereof.
9. Governing Law. This Agreement shall be governed by and construed,
interpreted and enforced in accordance with the laws of the State of Indiana.
10. Attorneys' Fees. In the event of any legal actions or proceeding to
enforce or interpret the provisions hereof, the prevailing party shall be
entitled to reasonable attorney's fees, whether or not the proceeding results in
a final judgment.
11. Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction or interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed, on the day and year first above written.
XXXXXX INSTRUMENT
CORPORATION
By:
---------------------------
Name:
Title:
------------------------------
Stockholder's Name:
Address for Notice:
Company Shares beneficially owned:
Shares of Common Stock:
Shares subject to:
Options:
Warrants:
Other Rights:
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