THIRD AMENDMENT TO RIGHTS AGREEMENT
This Third Amendment to Rights Agreement (this "Amendment") is between
AVECOR Cardiovascular Inc., a Minnesota corporation (the "Company") and Norwest
Bank Minnesota, N.A., a national banking association (the "Rights Agent"),
effective as of August 21, 1998.
A. The Company and the Rights Agent have entered into a Rights
Agreement, dated June 26, 1996 and amended July 22, 1997 and July 12, 1998 (the
Rights Agreement"). Capitalized terms used and not otherwise defined herein will
have the meaning given in the Rights Agreement.
B. Section 27 of the Rights Agreement provides that, prior to a
Distribution Date, the Company may amend the Rights Agreement upon the approval
of at least a majority of the Continuing Directors, and that, upon any such
amendment, the Rights Agent shall amend the Rights Agreement as the Company
directs.
C. The Company desires, and hereby directs the Rights Agent, to amend
the Rights Agreement and the Rights Agent agrees to such amendment, on the
terms and conditions hereof.
Accordingly, the Company and the Rights Agent agree as follows:
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Rights Agent that:
(a) to the best knowledge of the Company, a
Distribution Date has not occurred prior to the
effective date hereof; and
(b) this Amendment is authorized pursuant to the
requirements of Section 27 of the Rights Agreement,
having been approved by a majority of the Company's
Continuing Directors.
2. ADVERSE PERSON DETERMINATION. Section 11(a)(ii)(B) of the Rights
Agreement is amended by adding the following language to such section,
as indicated on the attached page from the Rights Agreement:
; provided, however that Medtronic, Inc. shall not be deemed
to be an Adverse Person as a result of its Beneficial
Ownership of Common Shares pursuant to the Stock Option
Agreement and Agreements to Facilitate Merger entered into
pursuant to the terms of the Agreement and Plan of Merger
dated July 12, 1998, by and among Medtronic, Inc., AC Merger
Corp. and the Company,
3. NO OTHER CHANGES. Except as specifically amended by this Amendment, all
other provisions of the Rights Agreement remain in full force and
effect. This Amendment
shall not constitute or operate as a waiver of, or estoppel with
respect to, any provisions of the Rights Agreement by any party
hereto.
4. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement.
The Company and the Rights Agent have caused this Amendment to be duly
executed on their behalf by their respective duly authorized representatives
as of the date first written above.
AVECOR CARDIOVASCULAR, INC. NORWEST BANK MINNESOTA, N.A.
By: /s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx Xxxx Xxxxxxxx
Its: Chief Executive Officer Its: Corporate Officer
