Exhibit 4.3
AMENDMENT NO. 1
TO RIGHTS AGREEMENT
AMENDMENT NO. 1 (the "Amendment"), dated as of October 3. 1995, to
the Rights Agreement, dated as of May 18, 1989 (the "Rights Agreement"), between
Micropolis Corporation, a Delaware corporation (the "Company"), and First
Interstate Bank of California, as rights agent (the "Rights Agent").
WHEREAS, at a meeting of the Board of Directors of the Company (the
"Board") held on October 3, 1995, the Board considered the operation of the
Rights Agreement should the Company enter into a proposed transaction in which
the Company would issue $20 million aggregate principal amount of a newly
created series of Convertible Secured Notes (the "Convertible Notes") to an
investor pursuant to a proposed note agreement (the "Note Agreement");
WHEREAS, the investor has indicated that as a precondition to
purchasing the Convertible Notes, the investor would require that the Company
take all action necessary to ensure that no holder of such Convertible Notes or
the shares of the Company's Common Shares (as such term is defined in the Rights
Agreement) to be issued upon the conversion of any Convertible Notes will be
deemed an "Acquiring Person" under the Rights Agreement by virtue of entering
into the Note Agreement or holding or acquiring any Convertible Notes (or Common
Shares issued on conversion of such Convertible Notes) issued thereunder;
WHEREAS, the Board has determined that amendment of the Rights
Agreement to ensure that no such holder will be deemed an Acquiring Person is in
the best interests of the Company and its stockholders and has authorized such
an amendment;
WHEREAS, the Company and the Rights Agent desire to amend the
Rights Agreement, as authorized by Section 26 of the Rights Agreement, by
altering, adding and deleting the provisions set forth herein in the manner set
forth below; and
WHEREAS, the parties have complied with or satisfied all conditions
necessary to the amendment of the Rights Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions.
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All terms used herein as defined terms which are not defined in
this Amendment shall have the meanings ascribed to them in the Rights Agreement.
SECTION 2. Amendment to Rights Plan.
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(a) Section 1(a) of the Rights Agreement shall be deleted in its
entirety and replaced by a new Section 1(a), which shall read as follows:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person, shall be
the Beneficial Owner (as such term is hereinafter defined) of 20% or more
of the Common Shares of the Company then outstanding but shall not include
the Company, any Subsidiary of the Company or any employee benefit plan of
the Company or of any Subsidiary of the Company or any entity holding
shares of capital stock of the Company for or pursuant to the terms of any
such plan, in its capacity as an agent or trustee for any such plan.
Notwithstanding anything to the contrary in the foregoing, for purposes of
this Agreement and the definition of Acquiring Person, no Person shall be
deemed to be the Beneficial Owner of, or to beneficially own, securities
which such Person or any of such Person's Affiliates or Associates may
acquire, does or do acquire or may be deemed to have the right to acquire,
pursuant to (a) any Note Agreement or (b) any Convertible Notes or (c) any
Common Shares issued or issuable on conversion of any Convertible Notes.
"Note Agreement" shall mean any agreement approved by resolution of the
Board entered into after the date of Amendment No. 1 to this Agreement
between the Company and Xxxxxxx Dividend Fund, A Series of Xxxxxxx
Investments, a Massachusetts business trust, relating to the issuance of a
newly created series of Convertible Notes. "Convertible Notes" shall mean
any debt securities convertible into
Common Shares which are issued by the Company after the date of Amendment
No. 1 to this Agreement pursuant to any Note Agreement.
SECTION 3. Miscellaneous. This Amendment may be executed in
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one or more counterparts, each of which shall be deemed to be an original, but
all of which taken together shall constitute one and the same agreements. This
Amendment shall be governed by any interpreted in accordance with the laws of
the State of Delaware.
IN WITNESS WHEREOF, the Company and the Rights Agent have caused
this Amendment to be executed as of the date and year first above written.
COMPANY
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MICROPOLIS CORPORATION
Attest:
By: /s/ Xxxxxx Xxxxxx By: /s/ B. V. Xxxxxxx
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Name: Xxxxxx Xxxxxx Name: B. V. Xxxxxxx
Its: Manager, Banking & Finance Its: Assistant Secretary
RIGHTS AGENT
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FIRST INTERSTATE BANK OF
CALIFORNIA
Attest:
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx Lug
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Name: Xxxxxx Xxxxxxx Name: Xxxxxx Lug
Its: Vice President Its: Vice President
