Exhibit 5
FIRST AMENDMENT TO
AMENDED AND RESTATED PREFERRED SHARES RIGHTS AGREEMENT
This Amendment to Amended and Restated Preferred Shares Rights
Agreement (this "Amendment") is made as of July 8, 1999 by and between
Perclose, Inc., a Delaware corporation (the "Company"), and Norwest Bank
Minnesota, N.A., a national banking association (the "Rights Agent").
Pursuant to Section 27 of the Amended and Restated Preferred Shares
Rights Agreement (the "Agreement"), dated as of July 2, 1999, by and between
the Company and the Rights Agent, this Amendment is being executed by the
Company and the Rights Agent for the purpose of amending the Agreement as set
forth below:
The Agreement is hereby amended as follows:
1. Section 1(a) shall be amended by inserting the following at
the end of Section 1(a):
"Notwithstanding the foregoing or any provision to the
contrary in this Agreement, none of Xxxxxx Laboratories
("Abbott"), its subsidiaries, Affiliates or Associates or
permitted assignees or transferees under that certain
Stockholder Agreement dated July 8, 1999 between Abbott and
certain stockholders of the Company (the "Stockholder
Agreement") is an Acquiring Person pursuant to this Agreement
solely by virtue of the execution of the Agreement and Plan
of Merger dated July 8, 1999 among Abbott, AL Acquisition
Corp. and the Company (the "Merger Agreement"), the Option
Agreement dated July 8, 1999 among Abbott and the Company
(the "Option Agreement") and the Stockholder Agreement or the
consummation of the Merger (as defined in the Merger
Agreement) or the other transactions contemplated by the
Option Agreement and the Stockholder Agreement."
2. Section 1(l) shall be amended by inserting the following at the
end of Section 1(l):
"Notwithstanding the foregoing or any provision to the
contrary in this Agreement, a Distribution Date shall not
occur solely by reason of the execution of the Merger
Agreement, the Option Agreement and the Stockholder
Agreement, the consummation of the Merger, or the
consummation of the other transactions contemplated by the
Option Agreement or the Stockholder Agreement."
3. Section 1(hh) shall be amended by inserting the following at
the end of Section 1(hh):
"Notwithstanding the foregoing or any provision to the
contrary in this Agreement, a Shares Acquisition Date shall
not occur solely by reason of the execution of the Merger
Agreement, the Option Agreement and the Stockholder
Agreement, the
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consummation of the Merger, or the consummation of the other
transactions contemplated by the Option Agreement and the
Stockholder Agreement."
4. Section 1(oo) shall be amended by inserting the following at
the end of Section 1(oo):
"Notwithstanding the foregoing or any provision to the
contrary in this Agreement, a Triggering Event shall not
occur solely by reason of the execution of the Merger
Agreement, the Option Agreement and the Stockholder
Agreement, the consummation of the Merger, or the
consummation of the other transactions contemplated by the
Option Agreement and the Stockholder Agreement."
5. Section 1(r) shall be amended and restated in its entirety to
read as follows:
"(r) 'FINAL EXPIRATION DATE' shall mean the earlier of (i)
immediately prior to the Effective Time (as defined in the
Merger Agreement) of the Merger or (ii) November 26, 2006."
6. (a) This Amendment may not be further amended without the
prior consent of Abbott in its sole discretion.
(b) This Amendment shall be deemed to be entered into
under the laws of the State of Delaware 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.
(c) This Amendment may be executed in any number of
counterparts and 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.
7. As amended hereby, the Agreement shall remain in full force
and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the day and year first above written.
PERCLOSE, INC. NORWEST BANK MINNESOTA, N.A.
By: /s/ XXXXX X. PLAIN, JR. By: /s/ XXXXXXX XXXXXXXX
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Name: XXXXX X. PLAIN, JR. Name: XXXXXXX XXXXXXXX
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Title: President and CEO Title: Officer
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