EXHIBIT 4.1
AMENDMENT NO. 4
TO THE
REDEEMABLE CLASS A
WARRANT AGREEMENT
This Amendment No. 4 to the Warrant Agreement is dated as of September
11, 2002 by and between Hypertension Diagnostics, Inc., a Minnesota corporation
(the "Company"), and Mellon Investor Services LLC (the "Warrant Agent").
A. The Company and U.S. Bank, N.A. (formerly known as Firstar Bank,
N.A., formerly known as Firstar Trust Company) have entered into that certain
Warrant Agreement dated as of July 23, 1998 (as from time to time heretofore or
hereafter amended, the "Class A Warrant Agreement") which governs the rights and
obligations of the Company and the Warrant Agent with respect to up to 2,587,500
Redeemable Class A Warrants (each, a "Class A Warrant").
B. The Class A Warrant Agreement was amended by: (a) an Amendment No. 1
to Class A Warrant Agreement dated as of January 23, 2001 pursuant to which
Section 2.1 of the Class A Warrant Agreement was amended to reduce the exercise
price of the Warrants from $5.50 per share of Common Stock issuable upon
exercise of the Warrant to $5.15 per share of Common Stock issuable upon
exercise of the Warrant; (b) an Amendment No. 2 to Class A Warrant Agreement
dated as of June 6, 2002 pursuant to which Section 2.1 of the Class A Warrant
Agreement was amended to reduce the exercise price of the Warrants from $5.15
per share of Common Stock issuable upon exercise of the Warrant to $1.80 per
share of Common Stock issuable upon exercise of the Warrant and to extend the
expiration date of the Class A Warrant to August 7, 2002; and (c) an Amendment
No. 3 to the Class A Warrant Agreement pursuant to which the exercise price of
the Warrants was reduced from $1.80 per share of Common Stock issuable upon
exercise of the Warrant to $1.25 per share of Common Stock issuable upon
exercise of the Warrant and the expiration date of the Class A Warrant was
extended to September 17, 2002.
C. The Company desires to extend the expiration date of the Class A
Warrant set forth in Section 2.1 of the Class A Warrant Agreement from September
17, 2002 to October 22, 2002.
D. The parties desire to set forth their mutual understanding in this
Amendment No. 4 to the Class A Warrant Agreement.
NOW, THEREFORE, in connection with and in consideration of the premises
and the mutual agreements and covenants hereinafter set forth, the Company and
the Warrant Agent hereby agree as follows:
1. Capitalized terms used but not otherwise defined herein shall have
the same meanings as in the Class A Warrant Agreement.
2. The parties acknowledge that U.S. Bank, N.A. (formerly known as
Firstar Bank, N.A., formerly known as Firstar Trust Company), which heretofore
served as Warrant Agent, has resigned as Warrant Agent. The Company hereby
appoints Mellon Investor Services LLC as Warrant Agent, and Mellon Investor
Services LLC hereby accepts such appointment.
3. Section 2.1 of the Class A Warrant Agreement is hereby amended to
read in its entirety as follows:
Section 2.1 Exercise. Any or all of the Warrants represented
by each Warrant Certificate may be exercised by the holder thereof on
or before 5:00 p.m., Central Time, on October 22, 2002, unless extended
by the Company, by surrender of the Warrant Certificate with the
Purchase Form, which is printed on the reverse thereof (or a reasonable
facsimile thereof) duly executed by such holder, to the Warrant Agent
at its principal office accompanied by payment, in cash or by certified
or official bank check payable to the order of the Company, in an
amount equal to the product of the number of shares of Common Stock
issuable upon exercise of the Warrant represented by such Warrant
Certificate, as adjusted pursuant to the provisions of Article III
hereof, multiplied by the exercise price of $1.25, as adjusted pursuant
to the provisions of Article III hereof (such price as so adjusted from
time to time being herein called the "Exercise Price"), and such holder
shall be entitled to receive such number of fully paid and
nonassessable shares of Common Stock, as so adjusted, at the time of
such exercise.
4. The amendment to Section 2.1 as described in Paragraph 3 of this
Amendment No. 4 to the Class A Warrant Agreement shall take effect as of the
date hereof and continue until the expiration of the Warrant on October 22,
2002, unless this expiration date shall be extended by the Company. The Company
shall not extend such expiration date without the Warrant Agent's prior written
consent, in its sole discretion. Any purported extension without such consent of
the Warrant Agent shall be null and void.
5. Except as expressly set forth in this Amendment No. 4, all terms of
the Class A Warrant Agreement shall remain in full force and effect until such
time as they may be amended in writing by the parties.
6. Notwithstanding anything in the Class A Warrant Agreement or this
Amendment No. 4 to the contrary:
(a) the Company shall indemnify the Warrant Agent for, and
hold it harmless against, any loss, liability, claim or expense ("Loss") arising
out of or in connection with its duties under the Class A Warrant Agreement or
this Amendment No. 4 or its appointment as Warrant Agent, including the costs
and expenses of defending itself against any Loss or enforcing the Class A
Warrant Agreement or this Amendment, except to the extent that such Loss shall
have been determined by a court of competent jurisdiction to be a result of the
Warrant Agent's gross negligence or intentional misconduct.
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(b) in the absence of gross negligence or intentional
misconduct on its part, the Warrant Agent shall not be liable for any action
taken, suffered or omitted by it or for any error of judgment made by it in the
performance of its duties under the Class A Warrant Agreement or this Amendment
No. 4. In no event will the Warrant Agent by liable for special, indirect,
incidental, consequential or punitive loss or damages of any kind whatsoever
(including but not limited to lost profits), even if the Warrant Agent has been
advised of the possibility of such damages. Any liability of the Warrant Agent
will be limited in the aggregate to an amount equal to the annual fee to be paid
by the Company to the Warrant Agent in connection with its appointment as
Warrant Agent.
7. This Amendment No. 4 to the Class A Warrant Agreement shall be
construed and enforced in accordance with and governed by the laws of the State
of Minnesota, provided that the rights and obligations of the Warrant Agent
shall be enforced in accordance with and governed by the laws of the State of
New York.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
4 to the Class A Warrant Agreement as of the day and year first above written.
HYPERTENSION DIAGNOSTICS, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
Its: President
MELLON INVESTOR SERVICES LLC
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
Its: Vice President
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