VIVID TECHNOLOGIES, INC.
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This Amendment No. 1 (this "Agreement"), dated as of October
4, 1999, to the Rights Agreement dated as of October 13, 1998
(the "Rights Agreement"), between Vivid Technologies, Inc., a
Delaware corporation (the "Company"), and American Stock Transfer
& Trust Company, a New York trust company.
RECITALS
WHEREAS, the board of directors of the Company has approved
a certain agreement and plan of merger (the "Merger Agreement")
by and among the Company, EG&G, Inc., a Massachusetts corporation
("EG&G"), and Vivid Acquisition Corp., a Delaware corporation and
a direct, wholly owned subsidiary of EG&G (the "Merger Sub")
(EG&G and the Merger Sub are collectively referred to herein as
the "Prospective Buyer") at a meeting of the board of directors
of the Company held on October 4, 1999 (the "October Meeting"),
pursuant to which the Company and the Prospective Buyer intend
that either the Merger Sub will merge with and into the Company
or the Company will merge with and into EG&G (the "Merger"), and
the stockholders of the Company will become stockholders of EG&G.
WHEREAS, upon the effectiveness of the Merger, either EG&G,
Merger Sub, or the Prospective Buyer will acquire more than 15%
of the outstanding shares of the Company's Common Stock, $.01 par
value per share (the "Company's Common Stock").
WHEREAS, the acquisition of more than 15% of the outstanding
shares of the Company's Common Stock would result in the
acquiring entity or entities being deemed to be an "Acquiring
Person" under the Rights Agreement, which would trigger certain
events pursuant to the terms of the Rights Agreement.
WHEREAS, at the October Meeting the board of directors of
the Company determined that it is in the best interest of the
Company to amend the Rights Agreement prior to the Company
entering into the Merger Agreement so that EG&G, the Merger Sub,
and the Prospective Buyer will not become Acquiring Persons under
the Rights Agreement.
WHEREAS, capitalized terms used but not otherwise defined in
this Amendment No. 1 shall have the meanings given them in the
Rights Agreement.
NOW, THEREFORE, in consideration of the promises and
agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Amendment of first subparagraph of Section 1. The
first subparagraph of Section 1, definition of "Acquiring
Person," is hereby amended and restated so that such subparagraph
reads in its entirety as follows:
"Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such
Person, shall be the Beneficial Owner of 15% or more of
the Common Shares of the Company then outstanding, but
shall not include (i) the Company, (ii) any Subsidiary
of the Company, (iii) any employee benefit plan of the
Company or any Subsidiary of the Company,(iv) any
entity holding Common Shares for or pursuant to the
terms of any such employee benefit plan, or (v) S.
Xxxxx Xxxxxxxxxx or Xxx X. Xxxxx, or any members of
their immediate family or any of their Affiliates or
Associates, or (vi) EG&G, Inc., a Massachusetts
corporation ("EG&G"), and Venice Merger Corp., Inc., a
Delaware corporation and a direct, wholly owned
subsidiary of EG&G (the "Merger Sub"), taken as a whole
(EG&G and the Merger Sub are collectively referred to
herein as the "Prospective Buyer"), if and only if the
Prospective Buyer shall become the Beneficial Owner of
15% or more of the Common Shares of the Company then
outstanding as a result of the execution of the
Agreement and Plan of Merger authorized and approved by
the Board of Directors of the Company at the meeting of
the Board of Directors held on October 4, 1999, as it
may be amended from time to time (the "Merger
Agreement"), or the consummation of the transactions
contemplated thereby, and/or any options to purchase or
proxies to vote Common Shares of the Company granted by
the Company or any stockholder of the Company to the
Prospective Buyer in connection with the Merger
Agreement or any agreements or arrangements entered
into by the Company and the Prospective Buyer in
connection therewith. Notwithstanding the foregoing,
(1) no Person shall become an "Acquiring Person" as the
result of an acquisition of Common Shares by the
Company which, by reducing the number of shares
outstanding, increases the proportionate number of
shares beneficially owned by such Person to 15% or more
of the Common Shares of the Company then outstanding;
provided, however, that if a Person shall so become the
Beneficial Owner of 15% or more of the Common Shares of
the Company then outstanding by reason of an
acquisition of Common Shares by the Company and shall,
after such share purchases by the Company, become the
Beneficial Owner of an additional 1% of the outstanding
Common Shares of the Company, then such Person shall be
deemed to be an "Acquiring Person"; (2) if the Board of
Directors of the Company determines in good faith that
a Person who would otherwise be an "Acquiring Person,"
as defined pursuant to the foregoing provisions of this
paragraph, has become such inadvertently, and such
Person divests as promptly as practicable a sufficient
number of Common Shares so that such Person would no
longer be an "Acquiring Person," as defined pursuant to
the foregoing provisions of this paragraph, then such
Person shall not be deemed to have become an "Acquiring
Person" for any purposes of this Agreement; and (3) an
underwriter or underwriters which become the Beneficial
Owner of 15% or more of the Common Shares of the
Corporation then outstanding in connection with an
underwritten offering with a view to the distribution
of such Common Shares shall not become an "Acquiring
Person" hereunder."
2. Amendment of twelfth subparagraph of Section 1. The
twelfth subparagraph of Section 1, definition of "Final
Expiration Date," is hereby amended and restated so that such
subparagraph reads in its entirety as follows:
"Final Expiration Date" shall mean the earlier of (i)
the point in time immediately prior to the Effective
Time (as defined in the Merger Agreement) and (ii)
October 13, 2008.
3. Reaffirmation of Rights Agreement. Except as
specifically amended by this Amendment No. 1, the Rights
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to be duly executed as of the date first above
written.
VIVID TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, Treasurer and Chief
Financial Officer
AMERICAN STOCK TRANSFER AND
TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
