EXHIBIT 10.24
FIRST AMENDMENT TO RIGHTS AGREEMENT
FIRST AMENDMENT, dated as of December __, 1998 ("First Amendment"),
to Rights Agreement dated as of July 16, 1997 (the "Rights Agreement"), between
In Focus Systems, Inc., an Oregon corporation (the "Company"), and ChaseMellon
Shareholder Services, L.L.C., a New Jersey limited liability company, (the
"Rights Agent"). Capitalized terms used but not otherwise defined herein shall
have the meanings ascribed to them in the Rights Agreement.
WHEREAS, the Company and the Rights Agent previously entered into the
Rights Agreement; and
WHEREAS, pursuant to Section 26 of the Rights Agreement, the Company
and the Rights Agent may from time to time supplement or amend any provision of
the Rights Agreement in accordance with the terms of such Section 26.
NOW, THEREFORE, in consideration of the foregoing premises and mutual
agreements set forth in this Amendment, the parties hereby amend the Rights
Agreement as follows:
1. Section 1.3(ii)(A)(z) of the Rights Agreement is hereby amended
in its entirety to the following:
"(z) securities which such Person or any of such Person's Affiliates
or Associates may acquire, does or do acquire or may be deemed to
acquire or may be deemed to have the right to acquire, pursuant to any
merger or other acquisition agreement between the Company and such
Person (or one or more of such Person's Affiliates or Associates) if
prior to such Person becoming an Acquiring Person the Board of
Directors of the Company has approved such agreement and determined
that such Person shall not be or be deemed to be the beneficial owner
of such securities within the meaning of this Section 1.3; or."
2. Section 1.3(ii)(A)(y) and Section 14.1 of the Rights Agreement
are hereby amended by deleting the words "Section 11.15" and replacing them with
the words "Section 11.14."
3. Section 1.7 of the Rights Agreement is hereby deleted in its
entirety.
4. Section 1.9 of the Rights Agreement is hereby amended to delete
the word "unallocated" and replace with the word "unincorporated."
5. The second proviso of Section 11.1.2 of the Rights Agreement is
hereby deleted in its entirety.
6. The first and fifth sentences of Section 11.1.3 of the Rights
Agreement are hereby amended by deleting the words "first occurrence of one of
the events listed in Section 11.1.2 above" and replacing them with the words
"occurrence of a Trigger Event."
7. The last sentence of Section 11.4.1 of the Rights Agreement is
hereby amended by deleting the words ", by a majority of the Continuing
Directors then in office, or if there are no Continuing Directors."
8. The following new Section 11.14 is hereby added to the Rights
Agreement in its proper place to read in its entirety as follows:
"11.14 ADJUSTMENT OF RIGHTS ASSOCIATED WITH COMMON SHARES.
Notwithstanding anything contained in this Agreement to the contrary,
in the event that the Company shall at any time after the date hereof
and prior to the Distribution Date (i) declare or pay any dividend on
the outstanding Common Shares payable in Common Shares, (ii) effect a
subdivision or consolidation of the outstanding Common Shares (by
reclassification or otherwise than by the payment of dividends payable
in Common Shares), or (iii) combine the outstanding Common Shares into
a greater or lesser number of Common Shares, then in any such case,
the number of Rights associated with each Common Share then
outstanding, or issued or delivered thereafter but prior to the
Distribution Date or in accordance with Section 22 shall be
proportionately adjusted so that the number of Rights thereafter
associated with each Common Share following any such event shall equal
the result obtained by multiplying the number of Rights associated
with each Common Share immediately prior to such event by a fraction,
the numerator of which shall be the total number of Common Shares
outstanding immediately prior to the occurrence of the event and the
denominator of which shall be the total number of Common Shares
outstanding immediately following the occurrence of such event. The
adjustments provided for in this Section 11.14 shall be made
successively whenever such a dividend is declared or paid or such a
subdivision, combination or consolidation is effected."
9. Section 13.3 of the Rights Agreement is hereby amended to
read in its entirety as follows:
"13.3 APPROVED ACQUISITIONS. Notwithstanding anything
contained herein to the contrary, upon the consummation of any merger
or other acquisition transaction of the type described in clause (A),
(B) or (C) of Section 13.1 involving the Company pursuant to a merger
or other acquisition agreement between the Company and any Person (or
one or more of such Person's Affiliates or Associates) which agreement
has been approved by the Board of Directors of the Company prior to
any Person becoming an Acquiring Person, this Agreement
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and the rights of holders of Rights hereunder shall be terminated in
accordance with Section 7.1."
10. The second sentence of Section 22 of the Rights Agreement is
hereby amended to read in its entirety as follows:
"In addition, in connection with the issuance or sale of Common Shares
following the Distribution Date and prior to the Expiration Date, the
Company shall, with respect to Common Shares so issued or sold
pursuant to the exercise of stock options or under any employee plan
or arrangement, granted or awarded, or upon exercise, conversion or
exchange of securities hereinafter issued by the Company, in each case
existing prior to the Distribution Date, issue Right Certificates
representing the appropriate number of Rights in connection with such
issuance or sale; PROVIDED, HOWEVER, that (i) no such Right
Certificate shall be issued if, and to the extent that, the Company
shall be advised by counsel that such issuance would create a
significant risk of material adverse tax consequences to the Company
or the Person to whom such Right Certificate would be issued and
(ii) no such Right Certificate shall be issued if, and to the extent
that, appropriate adjustment shall otherwise have been made in lieu of
the issuance thereof."
11. Section 23.1 of the Rights Agreement is hereby amended and
restated in its entirety as follows:
"23.1 RIGHT TO REDEEM. The Board of Directors of the Company
may, at its option, at any time prior to a Trigger Event, redeem all
but not less than all of the then outstanding Rights at a redemption
price of $.01 per Right, appropriately adjusted to reflect any stock
split, stock dividend, recapitalization or similar transaction
occurring after the date hereof (such redemption price being
hereinafter referred to as the "REDEMPTION PRICE"), and the Company
may, at its option, pay the Redemption Price in Common Shares (based
on the "current per share market price," determined pursuant to
Section 11.4, of the Common Shares at the time of redemption), cash or
any other form of consideration deemed appropriate by the Board of
Directors. The redemption of the Rights by the Board of Directors may
be made effective at such time, on such basis and subject to such
conditions as the Board of Directors in its sole discretion may
establish."
12. Section 26 of the Rights Agreement is hereby amended by (a)
deleting clause (ii) of the second sentence thereof in its entirety, renumbering
clause (iii) of the second sentence to (ii), adding the word "or" immediately
prior to the new clause (ii) and deleting the words "or the Redemption Date" and
substituting therefor the words "pursuant to the second sentence of Section 3.1"
in the second proviso and (b) deleting the last sentence thereof.
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13. The fourth paragraph of Exhibit A to the Rights Agreement ("Form
of Right Certificate) is hereby amended and restated in its entirety as follows:
"Subject to the provisions of the Agreement, the Board of
Directors may, at its option, (i) redeem the Rights evidenced by this
Right Certificate at a redemption price of $.01 per Right or (ii)
exchange Common Shares for the Rights evidenced by this Certificate,
in whole or in part."
14. The ninth paragraph of Exhibit B to the Rights Agreement (SUMMARY
OF RIGHTS TO COMMON SHARES), is hereby amended to (a) delete the words "close of
business on the tenth business day following the first date of public
announcement that a Person has become an Acquiring Person" and replace them with
the words "time that an Acquiring Person has become such" and (b) delete the
second and third sentences in their entirety.
15. The eleventh paragraph of Exhibit B to the Rights Agreement is
hereby amended to add after the word "Rights" and before the period the words
"(other than an Acquiring Person or an affiliate or associate of an Acquiring
Person)."
16. This First Amendment shall be effective as of the date hereof
and, except as expressly set forth herein, the Rights Agreement shall remain in
full force and effect and be otherwise unaffected hereby.
17. This First Amendment may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all such counterparts shall together constitute one and the same document.
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IN WITNESS WHEREOF, the parties have executed this First Amendment as
of the date first written above.
IN FOCUS SYSTEMS, INC.
By:
----------------------------
Name:
Title:
CHASEMELLON SHAREHOLDER
SERVICES, L.L.C.
By:
----------------------------
Name:
Title:
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