1
EXHIBIT 4.3
SECOND AMENDMENT TO RIGHTS AGREEMENT
This Second Amendment (the "Amendment"), dated as of this 30th day of
June, 1997, amends the Rights Agreement (the "Rights Agreement"), dated as of
September 8, 1994, as amended as of April 19, 1995, between Fusion Systems
Corporation, a Delaware corporation (the "Company"), and BankBoston, N.A.
(formerly The First National Bank of Boston), as Rights Agent (the "Rights
Agent"). All terms not otherwise defined herein shall have the meaning given
such terms in the Rights Agreement.
WHEREAS, the Board of Directors of the Company has approved and adopted
an Agreement and Plan of Merger (the "Merger Agreement"), dated as of June 30,
1997, by and among Xxxxx Corporation, an Ohio corporation ("Eaton"), ETN
Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of
Eaton, and the Company;
WHEREAS, the Merger Agreement contemplates certain amendments to the
Rights Agreement; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
may, subject to certain limitations, amend the Rights Agreement without the
approval of any holders of Right Certificates.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein, the Company and the Rights Agent hereby agree as
follows:
1. Amendment.
---------
(a) Section 1(a) of the Rights Agreement is hereby amended by
adding the following at the end of the first sentence thereof:
", or Xxxxx Corporation, an Ohio corporation ("Eaton"), or any
Affiliate of Eaton, PROVIDED, HOWEVER, that for purposes of
this Agreement, Associates of Eaton or its Affiliates shall
not be deemed to beneficially own any shares of Common Stock
which are beneficially owned by Eaton or its Affiliates"
(b) Section 1(uu) of the Rights Agreement is hereby amended by
adding the following at the end thereof:
"provided that no Triggering Event shall be deemed to occur by
reason of the approval, execution or delivery of the Agreement
and Plan of Merger, dated as of June 30, 1997, including any
amendment or supplement thereto (the "Merger Agreement"), by
and among Eaton, ETN Acquisition Corp., a Delaware
corporation, and the Company, the announcement of consummation
of the Offer
2
-2-
or the Merger (as such terms are defined in the Merger
Agreement) or the consummation of the other transactions
contemplated by the Merger Agreement."
(c) Clause (ii) of Section 3(a) of the Rights Agreement is
hereby amended by adding the following to the end of the second parenthetical
clause therein:
", or Eaton or any Affiliate of Eaton"
(d) Section 11(a)(ii)(B) of the Rights Agreement is hereby
amended by adding the following to the end of the first parenthetical clause
therein:
", or Eaton or any Affiliate of Eaton"
2. Miscellaneous.
-------------
(a) CHOICE OF LAW. This Amendment shall be deemed to be a
contract made under the laws of the State of Delaware and for all purposes shall
be governed and construed in accordance with the laws of such State applicable
to contracts to be made and performed entirely within such State.
(b) COUNTERPARTS. This Amendment may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
(c) SEVERABILITY. If any term or provision of this Amendment
is held by a court of competent jurisdiction or other authority to be invalid,
void or unenforceable, the remainder of the terms and provisions of this
Amendment shall in no way be affected, impaired or invalidated.
(d) EXISTING TERMS. The existing terms and conditions of the
Rights Agreement shall remain in full force and effect except as such terms and
conditions are specifically amended or conflict with the terms of this
Amendment.
(e) EFFECTIVE DATE. This Second Amendment to Rights Agreement
shall be effective on the date hereof, provided, however, that if the Merger
Agreement is terminated in accordance with its terms prior to the purchase by
Eaton or an Affiliate of Eaton of a number of shares of Common Stock sufficient
to satisfy the Minimum Condition (as such term is defined in the Merger
Agreement), then this Second Amendment to Rights Agreement shall immediately and
without any further action by the Company, the Rights Agent or any other Person,
be rescinded in full and the Rights Agreement shall immediately, and without any
further action by the Company, the Rights Agent or any other Person, be
reinstated to its terms and conditions as in effect prior to the execution
hereof by the Company and the Rights Agent.
3
- 3 -
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be executed and delivered by its duly authorized officer on the day
and year first above written.
The Company: Rights Agent:
FUSION SYSTEMS CORPORATION BANKBOSTON, N.A.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
-------------------- ----------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Pres. and CEO Title: Administration Manager
