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Exhibit 4.4
SECOND AMENDMENT TO PREFERRED SHARES RIGHTS AGREEMENT
THIS SECOND AMENDMENT, dated as of January 20, 1997 (this "Second
Amendment"), is to the Preferred Shares Rights Agreement, dated as of September
21, 1994, between Target Therapeutics, Inc., a Delaware Corporation (the
"Company"), and The First National Bank of Boston, as Rights Agent (the "Rights
Agent"), as amended by the First Amendment thereto, dated as of May 7, 1996,
between the Company and the Rights Agent (as so amended, the "Rights
Agreement").
Pursuant to Section 27 of the Rights Agreement, the Company and the
Rights Agent may, prior to the Distribution Date (as defined in the Rights
Agreement), amend any provision of the Rights Agreement without the approval of
any holders of certificates representing the common stock of the Company. The
Company now desires to amend the Rights Agreement as set forth in this Second
Amendment. Pursuant to Section 27 of the Rights Agreement, the Company hereby
directs that the Rights Agreement should be amended as set forth in this Second
Amendment.
NOW THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
1. Amendment of Section 1(a). Section 1(a) of the Rights Agreement is
hereby amended by adding the following sentence immediately following the words
"pursuant to the terms of any such plan.":
"Notwithstanding the foregoing, Boston Scientific Corporation, a
Delaware corporation, together with its Subsidiaries (as hereinafter
defined) and Affiliates (as hereinafter defined) ("Boston
Scientific"), shall not be deemed to be an Acquiring Person by
reason of (1) the approval, execution or delivery of the Agreement
and Plan of Merger, dated as of January 20, 1997, among Boston
Scientific, Patriot Acquisition Corp., and the Company (the "Merger
Agreement"), or (2) the consummation of the transactions pursuant to
the Merger Agreement."
2. Amendment of Section 1(h). Section 1(h) of the Rights Agreement is
hereby amended by adding the following sentence immediately following the words
"shares of Common Stock then outstanding.":
"Notwithstanding the foregoing, no Distribution Date shall be deemed
to have occurred by reason of (1) the approval, execution or
delivery of the Merger Agreement, or (2) the consummation of the
transactions pursuant to the Merger Agreement."
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3. Amendment of Section 1(t). Section 1(t) of the Rights Agreement is
hereby amended by adding the following sentence immediately following the words
"Section 13(a) hereof.":
"Notwithstanding the foregoing, no Section 13 Event shall be deemed
to have occurred by reason of (1) the approval, execution or
delivery of the Merger Agreement, or (2) the consummation of the
transactions pursuant to the Merger Agreement."
4. Amendment of Section 1(u). Section 1(u) of the Rights Agreement is
hereby amended by adding the following sentence immediately following the words
"shall be deemed to have occurred.":
"Notwithstanding the foregoing, no Shares Acquisition Date shall be
deemed to have occurred by reason of (1) the approval, execution or
delivery of the Merger Agreement, or (2) the consummation of the
transactions pursuant to the Merger Agreement."
5. Amendment of Section 1(y). Section 1(y) of the Rights Agreement is
hereby amended by adding the following sentence immediately following the words
"becoming an Acquiring Person.":
"Notwithstanding the foregoing, no Triggering Event shall be deemed
to have occurred by reason of (1) the approval, execution or
delivery of the Merger Agreement, or (2) the consummation of the
transactions pursuant to the Merger Agreement."
6. Amendment of Section 1(k). Section 1(k) of the Rights Agreement is
hereby amended to read in its entirety as following:
"'FINAL EXPIRATION DATE' shall mean the earlier of (1) September 21,
2004, and (2) the Effective Date (as defined in the Merger
Agreement)."
7. Effectiveness. This Second Amendment shall be deemed effective as of
January 20, 1997, as if executed by both parties on such date. Except as amended
hereby, the Rights Agreement shall remain in full force and effect and shall be
otherwise unaffected hereby.
8. Miscellaneous. This Second Amendment shall be deemed to be a
contract made 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.
This Second Amendment may be executed in any number of counterparts, each of
which counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument. If
any term, provision, covenant or restriction of this Second Amendment is held by
a court of competent jurisdiction or other authority to be invalid, illegal or
unenforceable, then the remainder of the terms, provisions, covenants and
restrictions of this Second Amendment shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed as of the date set forth above.
TARGET THERAPEUTICS, INC.
/s/ Xxxxxx X. XxXxxxxx
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Name: Xxxxxx X. XxXxxxxx
Title: Chief Financial Officer
THE FIRST NATIONAL BANK OF BOSTON
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Name:
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