EXHIBIT 99.(e)(22)
FIRST AMENDMENT TO RIGHTS AGREEMENT
This Amendment is made and entered into as of the 24/th/ day of May, 2000,
by and between Protocol Systems, Inc. (the "Company") and ChaseMellon
Shareholder Services, L.L.C. (as successor to First Interstate Bank of Oregon,
N.A.) (the "Right Agent"), under the Rights Agreement, dated as of March 20,
1992, by and between the Company and the Rights Agent (the "Agreement").
WHEREAS, the Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company may
from time to time prior to any person becoming an Acquiring Person (as defined
in the Rights Agreement) supplement or amend the Rights Agreement in accordance
with the provisions of Section 27 thereof;
WHEREAS, it is proposed that the Company enter into an Agreement and Plan
of Merger (the "Merger Agreement"), among the Company, Xxxxx Xxxxx, Inc.
("Parent") and Xxxxx Xxxxx Acquisition Corporation, a wholly-owned subsidiary of
Parent ("Merger Sub");
WHEREAS, the Board of Directors of the Company has determined that the
transactions contemplated by the Merger Agreement are fair to and in the best
interests of the Company and its shareholders; and
WHEREAS, the Board of Directors has determined that it is in the best
interests of the Company and its shareholders to amend the Agreement to exempt
the Merger Agreement and the transactions contemplated thereby from the
application of the Rights Agreement.
NOW, THEREFORE, the Company and the Rights Agent hereby amend the Rights
Agreement as follows:
1. Section 1(a) of the Agreement is hereby amended by adding the following
sentence at the end of such Section:
"Notwithstanding anything in this Agreement to the contrary, neither Xxxxx
Xxxxx, Inc., a New York corporation ("Parent"), Xxxxx Xxxxx Acquisition
Corporation, an Oregon corporation and wholly-owned subsidiary of Parent
("Merger Sub"), or any of their Affiliates or Associates shall be deemed to
be an Acquiring Person by virtue of the approval, execution or delivery of
the Agreement and Plan of Merger dated May 24, 2000 by and among the
Company, Parent and Merger Sub (the "Merger Agreement") or any purchase of
Common Shares pursuant to the terms of the Merger Agreement."
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2. Section 1(g) of the Rights Agreement is amended by adding the following
sentence at the end of such Section:
"Notwithstanding anything in this Agreement to the contrary, a Distribution
Date shall not be deemed to have occurred as the result of the approval,
execution or delivery of the Merger Agreement, the announcement or
commencement of a tender offer for Common Shares pursuant to the terms of
the Merger Agreement or any purchase of Common Shares pursuant to the terms
of the Merger Agreement."
3. Section 20(c) of the Rights Agreement is amended to add the following
sentence at the end of such Section:
"Anything to the contrary notwithstanding, in no event shall the Rights
Agent be liable for special, punitive, indirect, consequential or
incidental loss or damage of any kind whatsoever (including but not limited
to lost profits), even if the Rights Agent has been advised of the
likelihood of such loss or damage."
4. Section 29 of the Rights Agreement is amended to add the following
sentence at the end of such
Section:
"Nothing in this Agreement shall be construed to give any holder of Rights
or any other Person any legal or equitable rights, remedies or claims under
this Agreement by virtue of the execution of the Merger Agreement, or by
virtue of any of the transactions contemplated by such agreement."
5. This Amendment shall become effective as of the date of the Merger
Agreement. If the Merger Agreement is terminated, this Amendment shall be null
and void and the Company shall promptly notify the Rights Agent in writing of
such an occurrence.
6. This Amendment shall be deemed to be a contract made under the laws of
the State of Oregon and for all purposes shall be governed by and construed in
accordance with the laws of such state applicable to contracts to be made and
performed entirely within such state.
7. This Amendment may be executed in any number of counterparts, each of
such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
8. In all respects not inconsistent with the terms and provisions of this
Amendment, the Rights Agreement is hereby ratified, adopted, approved and
confirmed. In executing and delivering this Amendment, the Rights Agent shall be
entitled to all of the privileges and immunities afforded to the Rights Agent
under the terms and conditions of the Rights Agreement.
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9. If any term, provision, covenant, or restriction of this Agreement is
held by a court of competent jurisdiction or other authority to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Amendment, and of the Rights Agreement, shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
IN WITNESS WHEREOF, the parties hereto having caused this Amendment to be
duly executed as of the date and year first above written.
PROTOCOL SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
President and Chief Executive Officer
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
Vice President
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