Exhibit 35
FIRST AMENDMENT TO RIGHTS AGREEMENT
This First Amendment (the "Amendment"), dated as of this 31st day of
January, 1998, amends the Rights Agreement (the "Rights Agreement"), dated as of
December 21, 1997 by and between Pacific Scientific, a California 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
January 31, 1998, by and among DH Holdings Corp., a Delaware corporation
("Parent"), ACC Acquisition Corp. a California corporation and a wholly-owned
subsidiary of Parent 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 DH Holdings Corp., a Delaware corporation ("Parent"), or any
Affiliate of Parent, provided, however, that for purposes of this
Agreement, Associates of Parent or its Affiliates shall not be
deemed to beneficially own any shares of Common Stock which are
beneficially owned by Parent or its Affiliates".
(b) Clause (ii) of Section 3(a) of the Rights Agreement is hereby
amended by adding the following to the end of each of the second and third
parenthetical clauses therein:
", or Parent or any Affiliate or Associate of Parent".
(c) Clause (i) of Section 7(a) of the Rights Agreement is hereby
amended to read in its entirety as follows:
"(i) the earlier of the Close of Business on December 19, 2007 and
immediately prior to the Effective Time (as defined in the Agreement
and Plan of Merger, dated as of January 31, 1998, by and among
Parent, ACC Acquisition Corp., a California corporation
and a wholly-owned subsidiary of Parent, 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 New York 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 Amendment shall be effective 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.
Attest: PACIFIC SCIENTIFIC COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxx
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxx Xxxx
Title: Senior Vice President and Title: Chairman and Chief Executive
Chief Financial Officer Officer
Attest: CHASEMELLON SHAREHOLDER
SERVICES, L.L.C.
By: /s/ Xxxx Xxx XxXxxxx By: /s/ Xxxxxxx Xxxxxxxxxxxxx
Name: Xxxx Xxx XxXxxxx Name: Xxxxxxx Xxxxxxxxxxxxx
Title: Relationship Manager Title: Assistant Vice President
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