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EXHIBIT 3
-9-
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AMENDMENT TO RIGHTS AGREEMENT
This Amendment to Rights Agreement (the "Amendment") is entered into by
CRSS Inc., a Delaware corporation ("CRSS"), and First Chicago Trust Company of
New York (formerly known as Morgan Shareholder Services Trust Company) (the
"Rights Agent"), effective as of January 27, 1994 (provided that this Amendment
is effective as of January 1, 1994 with respect to the amendment in paragraph 6
herein ("Amendment No. 6")), and amends that certain Rights Agreement between
CRSS and the Rights Agent, dated as of November 29, 1988 (the "Rights
Agreement").
BACKGROUND
CRSS and the Rights Agent entered into the Rights Agreement to provide
for the issuance and distribution of one Right (as defined in the Rights
Agreement) for each share of Common Stock of CRSS. CRSS and the Rights Agent
agree that certain changes should be made to the Rights Agreement to clarify
certain ambiguities, correct certain inconsistencies, reflect a change of name
of the Rights Agent and make certain other desired minor modifications. This
Amendment provides for those changes. This Amendment is entered into pursuant
to Section 26 of the Rights Agreement, which authorizes CRSS and the Rights
Agent, if CRSS so directs, to supplement or amend any provision of the Rights
Agreement without the approval of any holders of CRSS's Common Stock.
AMENDMENTS
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth the parties hereto agree as follows:
1. Section 1(a) is hereby amended and restated in its entirety to read
as follows:
"(a) "Acquiring Person" shall mean any Person (as 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 hereinafter defined) of 20% or more of the
shares of Common Stock then outstanding, but shall not include (i)
the Company, (ii) any Subsidiary (as hereinafter defined) of the
Company, (iii) any employee benefit plan of the Company or of any
Subsidiary of the Company, (iv) any Person or entity organized,
appointed or established by the Company for or pursuant to the terms
of any such plan, (v) any Person who notifies the Board of Directors
in writing within five days after the acquisition making such Person
the Beneficial Owner of 20% or more of the shares of Common Stock
then outstanding that such acquisition was inadvertent, and who
within two days after such notification divests a sufficient number
of shares of Common Stock so that such Person is no longer the
Beneficial Owner of 20% or more of the shares of Common Stock then
outstanding ("Inadvertent Acquisition"), or (vi) an underwriter that
acquires such percentage of the shares
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of Common Stock pursuant to a customary agreement in a public
offering of such Common Stock. If any of these exceptions to the
definition of an Acquiring Person apply, then the Person to whom the
exception pertains shall not be an Acquiring Person for any purpose
under this Agreement, including without limitation with respect to
the definition of Stock Acquisition Date."
2. Section 7(e) is hereby amended and restated in its entirety to read
as follows:
"(e) Notwithstanding anything in this Agreement to the
contrary, from and after the first occurrence of a Triggering Event,
any Rights beneficially owned by (i) an Acquiring Person or an
Associate or Affiliate of an Acquiring Person, which a majority of
the Continuing Directors, in their sole discretion, determine is or
was involved in or caused or facilitated, directly or indirectly
(including through any change in the Board), such Section 11(a)(ii)
Event, (ii) a transferee of any such Acquiring Person (or of any
such Associate or Affiliate) who becomes a transferee after such
Acquiring Person becomes such, or (iii) a transferee of any such
Acquiring Person (or of any such Associate or Affiliate) who becomes
a transferee prior to or concurrently with such Acquiring Person
becoming such and receives such Rights pursuant to either (A) a
transfer (whether or not for consideration) from the Acquiring
Person (or any such Associate or Affiliate) to holders of equity
interests in such Acquiring Person (or any such Associate or
Affiliate) or to any Person with whom such Acquiring Person (or any
such Associate or Affiliate) has any continuing agreement,
arrangement or understanding regarding the transferred Rights,
shares of Common Stock or the Company, or (B) a transfer which a
majority of the Continuing Directors have determined, in their sole
discretion, is part of a plan, arrangement or understanding which
has as a primary purpose or effect the avoidance of this Section
7(e), shall become null and void without any further action, and no
holder of such Rights shall have any rights whatsoever with respect
to such Rights, whether under any provision of this Agreement or
otherwise. The Company shall use all reasonable efforts to ensure
that the provisions of this Section 7(e) and Section 4(b) hereof are
complied with, but shall have no liability to any holder of Rights
Certificates or other Person as a result of its failure to make any
determinations with respect to an Acquiring Person or any of its
Affiliates, Associates or transferees hereunder."
3. Sections 13(a)(v) is hereby amended and restated in its entirety to
read as follows:
"(v) the provisions of Section 11(a)(ii) hereof shall be of no
effect following the first occurrence of any Section 13 Event
described in subparagraphs (x) and (y), but not subparagraph (z), of
this Section 13(a)."
Section 13(a) also is hereby amended by the addition of the
following to the end of such Section:
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"Notwithstanding any of the foregoing, upon the occurrence of a
Section 13 Event described in subparagraph (z) of this Section
13(a), while subparagraphs (i) through (v) above shall apply as
indicated to require the Principal Party to assume the Company's
obligations and duties under this Agreement, the provisions of the
Rights Agreement, including without limitation Section 11, also
shall continue to apply in full to the Company, and the Company
shall continue to have the same liabilities, duties and obligations
under this Agreement as it would have if such Section 13 Event had
not occurred."
4. Section 13(e) is hereby amended and restated in its entirety to read
as follows:
"(e) Notwithstanding anything in this Agreement to the
contrary, Section 13 shall not be applicable to a transaction
described in subparagraphs (x) and (y) of Section 13(a) if (i) such
transaction is consummated with a Person or Persons who acquired
shares of Common Stock pursuant to a cash tender offer for all
outstanding shares of Common Stock which complies with the
provisions of Section 11(a)(ii)(B) hereof (or a wholly owned
Subsidiary of any such Person or Persons), (ii) the price per share
of Common Stock offered in such transaction is not less than the
price per share of Common Stock paid to all holders of shares of
Common Stock whose shares were purchased pursuant to such cash
tender offer; and (iii) the form of consideration being offered to
the remaining holders of shares of Common Stock pursuant to such
transaction is the same as the form of consideration paid pursuant
to such cash tender offer. Upon consummation of any transaction
contemplated by the preceding sentence of this Section 13(e), all
Rights hereunder shall expire. Furthermore, notwithstanding
anything in this Agreement to the contrary, Section 13 shall not be
applicable to a transaction described in subparagraph (z) of Section
13(a) if such transaction is determined by a majority of the
Continuing Directors to be (a) at a price which is fair to
stockholders and (b) otherwise in the best interests of the Company
and its stockholders. The Rights hereunder shall not expire upon
consummation of any transaction contemplated by the immediately
preceding sentence of this Section 13(e)."
5. Section 28 is hereby amended by adding the following language to the
end of such Section:
"The Board (with the concurrence of a majority of the
Continuing Directors) shall be authorized to appoint a Committee and
delegate to it the authority to exercise the power and authority of
the Board and of the Continuing Directors under this Agreement."
6. The Rights Agreement and each exhibit thereto are hereby amended by
replacing "Morgan Shareholder Services Trust Company" with "First
Chicago Trust Company of New York" in each place such term appears.
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Except as specifically provided herein, the Rights Agreement shall
continue in full force and effect in accordance with its terms without
amendment or modification.
IN WITNESS WHEREOF, the undersigned parties hereby execute and agree to
be bound by this Amendment, effective as of January 27, 1994 (provided that
Amendment No. 6 is effective as of January 1, 1994).
ATTEST: CRSS INC.
Signature: ______________________ By: __________________________
Printed Name: ___________________ Name: ________________________
Title: _______________________
Countersigned:
FIRST CHICAGO TRUST COMPANY OF
NEW YORK, formerly known as Morgan
Shareholder Services Trust Company
By: ____________________________
Name: __________________________
Title: _________________________