AMENDMENT NO. 1 TO AMENDED AND RESTATED RIGHTS AGREEMENT
Exhibit 4.1
AMENDMENT NO. 1 TO AMENDED AND RESTATED RIGHTS AGREEMENT
This Amendment No. 1 to Amended and Restated Rights Agreement (“Amendment No. 1”),
dated as of February 11, 2008, is by and between Possis Medical, Inc., a Minnesota corporation (the
“Company”), and Xxxxx Fargo Bank, National Association. (the “Rights Agent”).
WHEREAS, on December 12, 1996 the Company and the Rights Agent entered into a Rights
Agreement;
WHEREAS, on December 23, 2006, the Company and the Rights Agent entered into an Amended and
Restated Rights Agreement (the “Agreement”, the terms of which are incorporated herein by
reference and made a part hereof); and
WHEREAS, the Company, with the unanimous approval of the Board of Directors of the Company,
has duly authorized the execution and delivery of this Amendment No. 1 and this Amendment No. 1 is
executed by the Company and the Rights Agent pursuant to Section 27 of the Agreement.
NOW, THEREFORE, in consideration of the premises and mutual agreements herein set forth, and
intending to be legally bound hereby, the parties hereto agree that the Agreement shall be and
hereby is amended as follows:
1. Defined Terms. Terms defined in the Agreement and used and not otherwise defined
herein shall have the meanings given to them in the Agreement.
2. Amendment of Section 1. Section 1 of the Agreement is amended to add the following
at the end of the paragraph entitled “Acquiring Person”:
“Notwithstanding anything to the contrary contained in this Agreement, neither
MEDRAD, Inc., a Delaware corporation (“MEDRAD”), nor Phoenix Acquisition
Corp., a Minnesota corporation and a wholly owned subsidiary of MEDRAD (“Phoenix
Acquisition”), shall at any time come within the definition of an Acquiring
Person as a result of the transactions contemplated by the Agreement and Plan of
Merger, dated as of February 11, 2008, among MEDRAD, Phoenix Acquisition and the
Company (as such agreement may be amended from time to time, the “Merger
Agreement”).”
3. Amendment of Section 3(a). Section 3(a) of the Agreement is hereby amended to add
the following paragraph at the end thereof:
“Notwithstanding anything to the contrary contained in this Agreement, the
occurrence of (A) the adoption, approval, execution, delivery and consummation of
the transactions contemplated by the Merger Agreement and the Company Support
Agreements (as defined in the Merger Agreement), (B) the consummation of the
transactions contemplated by the Merger Agreement or (C) the announcement of any of
the foregoing events will not, individually or
collectively, cause (i) the Rights to become exercisable or (ii) the occurrence of a
Distribution Date, a Triggering Event or a Shares Acquisition Date.”
4. Rights Agreement as Amended. The term “Agreement” as used in the Agreement shall
be deemed to refer to the Agreement as amended hereby and this Amendment No. 1 shall be effective
as of February 11, 2008. It is expressly understood and agreed that except as provided above, all
terms, conditions and provisions contained in the Agreement shall remain in full force and effect
without any further change or modification whatsoever.
5. Miscellaneous. This Amendment No. 1 shall for all purposes be governed by and
construed in accordance with the laws of the State of Minnesota applicable to contracts to be made
and performed entirely with the State of Minnesota.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to Amended and Restated
Rights Agreement to be duly executed as of the day and year first above written.
| POSSIS MEDICAL, INC. |
||||
| /s/ Xxxxxx X. Xxxxxxx | ||||
| Xxxxxx X. Xxxxxxx, | ||||
| Chairman, President and Chief Executive Officer | ||||
| XXXXX FARGO BANK, NATIONAL ASSOCIATION |
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| By: | /s/ Xxxxx Xxxx | |||
| Xxxxx Xxxx | ||||
| Its: Officer | ||||
