FIRST AMENDMENT TO RIGHTS AGREEMENT
This First Amendment (the "Amendment"), dated as of
this 7th day of August, 1997, amends the Rights Agreement (the
"Rights Agreement"), dated as of June 9, 1997, between Xxxxxx
Scientific International Inc., a Delaware corporation (the
"Company"), and ChaseMellon Shareholder Services, L.L.C., 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 August 7, 1997, by and between
FSI Merger Corp., a Delaware corporation, and the Company;
WHEREAS, the Merger Agreement contemplates certain
amendments to the Rights Agreement; and
WHEREAS, pursuant to Section 27 of the Rights Agree-
ment, 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 sen-
tence thereof:
", or FSI Merger Corp. a Delaware corporation
("FSI"), or any Affiliate of FSI, provided,
however, that for purposes of this Agreement,
Associates of FSI or its Affiliates shall not
be deemed to beneficially own any shares of
Common Stock which are beneficially owned by
FSI or its Affiliates".
(b) Clause (ii) of Section 3(a) of the
Rights Agreement is hereby amended by adding the fol-
lowing to the end of each of the second and third par-
enthetical clauses therein:
", or FSI or any Affiliate or Associate of
FSI".
(c) Clause (i) of Section 7(a) of the Rights Agree-
ment is hereby amended to read in its entirety as follows:
"(i) the earlier of the Close of Business on June 8,
2007 and immediately prior to the Effective Time (as
defined in the Agreement and Plan of Merger, dated as
of August 7, 1997, by and between FSI and the Company
(the "Merger Agreement")) (the "Final Expiration
Date"),".
(d) Clause (iv) of Section 25(a) of the Rights
Agreement is hereby amended by adding the following at the end
thereof:
"other than pursuant to the Merger Agreement,".
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 ac-
cordance 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 condi-
tions 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 Amendment shall be effec-
tive on the date hereof, provided, however, that if the Merger
Agreement is terminated in accordance with its terms, then this
Amendment 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.
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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.
XXXXXX SCIENTIFIC
Attest: INTERNATIONAL INC.
By /s/ Xxxx XxXxxxx By /s/ Xxxx X. Xxxxxxx
Name: Xxxx XxXxxxx Name: Xxxx X. Xxxxxxx
Title: Secretary Title: Senior Vice
President and Chief
Financial Officer
Attest: CHASEMELLON SHAREHOLDER
SERVICES, L.L.C.
By /s/ Xxxxxxx X. Xxxxxxxxx By /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx X. Xxxxxxxxx Name: Xxxxxxx Xxxxxx
Title: Assistant Vice Title: Vice President
President
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