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EXHIBIT 4.3
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 ECHO NOR ANY STOCKHOLDER OF ECHO OR
ANY AFFILIATE OR ASSOCIATE OF ECHO OR ANY SUCH STOCKHOLDER OF
ECHO 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, ACQUISITION SUBSIDIARY
AND ECHO DATED MAY 3, 1998 (THE "MERGER AGREEMENT") OR THE
EXECUTION, DELIVERY AND PERFORMANCE OF AGREEMENTS OR THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED THEREBY,
INCLUDING, WITHOUT LIMITATION, THE VOTING AGREEMENT BY AND
BETWEEN ECHO AND THE STOCKHOLDER OF THE COMPANY SIGNATORY
THERETO
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(THE "VOTING AGREEMENT"); PROVIDED, HOWEVER, THAT ANY
STOCKHOLDER OF ECHO 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 ECHO 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.
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 Amendment No. 1. This Amendment No. 1 may be
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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 Amendment No. 1 is effective May 3, 1998.
RIGHTS AGENT
AMERICAN STOCK TRANSFER AND TRUST
COMPANY
By: /s/ Xxxxxxx X. X'Xxxxx
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Name: Xxxxxxx X. X'Xxxxx
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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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