EXHIBIT 4.7
FORM OF AMENDMENT NO. 1
TO
RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO THE RIGHTS AGREEMENT (the "Amendment") is
made as of the 26th day of March, 1997, by and between Heartport, Inc., a
Delaware corporation (the "Company"), and Boston Equiserve Limited
Partnership, formerly The First National Bank of Boston (the "Rights Agent")
with respect to that certain Rights Agreement, dated April 25, 1996, between
the Company and the Rights Agent.
RECITALS
WHEREAS, the Board of Directors has deemed it to be in the best
interests of the Company to issue unsecured debentures convertible into
Common Stock of the Company (the "Notes");
WHEREAS, the Rights Agreement does not provide for the issuance of
Rights Certificates to holders of the Notes upon conversion of the Notes into
the Common Stock of the Company; and
WHEREAS, in connection with the offering and sale of the Notes, the
Company intends to, among other things, amend the Rights Agreement as follows:
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS. Unless otherwise indicated, capitalized words and
terms which are defined in the Rights Agreement shall have the same meaning
where used herein.
2. AMENDMENTS. The following provisions of the Rights Agreement
shall be amended as follows; unless otherwise specified, textual
cross-references to specific sections of the Rights Agreement shall not be
modified:
a. The heading to Section 11, paragraph (a) of the Rights Agreement
is hereby amended and renumbered as Xxxxxxx 00, xxxxxxxxx (x), subsection (i);
b. The heading to Xxxxxxx 00, xxxxxxxxx (x), subsection (i) of the
Rights Agreement is hereby amended and renumbered as Xxxxxxx 00, xxxxxxxxx
(x), subsection (ii) and shall read in its entirety as follows:
"(ii) Subject to the following paragraph of this subparagraph (ii) and
to Section 24 of this Agreement, in the event any Person shall become an
Acquiring Person, each holder of a Right shall thereafter have a right
to receive, upon exercise thereof at a price equal to the then current
Purchase Price multiplied by the number of one one-thousandths of a
Preferred Share for which a Right is then exercisable, in accordance
with terms of this Agreement and in lieu of Preferred Shares, such
number of Common Shares of the Company as shall equal the result
obtained by (x) multiplying the then current Purchase Price by the
number of one one-thousandths of a Preferred Share for which a Right is
then exercisable and dividing that product by (y) 50% of the then
current per share market price of the Company's Common Shares
(determined pursuant to Section 11(d) hereof) on the date such Person
became an Acquiring Person. In the event that any Person shall become an
Acquiring Person and the Rights shall then be outstanding, the Company
shall not take any action that would eliminate or diminish the benefits
intended to be afforded by the Rights.
"From and after the occurrence of such an event, any Rights that are or
were acquired or beneficially owned by such Acquiring Person (or any
Associate or Affiliate of such Acquiring Person) on or after the earlier
of (x) the date of such event and (y) the Distribution Date shall be
void and any holder of such Rights shall thereafter have no right to
exercise such Rights under any provision of this Agreement. No Right
Certificate shall be issued pursuant to Section 3 and 22 that represents
Rights beneficially owned by an Acquiring Person whose Rights would be
void pursuant to the preceding sentence or any Associate or Affiliate
thereof; no Right Certificate shall be issued at any time upon the
transfer of any Rights to an Acquiring Person whose Rights would be void
pursuant to the preceding sentence or any Associate or Affiliate thereof
or to any nominee of such Acquiring Person, Associate or Affiliate; and
any Right Certificate delivered to the Rights Agent for transfer to an
Acquiring Person whose Rights would be void pursuant to the preceding
sentence or any Associate or Affiliate thereof shall be canceled."
c. The heading to Xxxxxxx 00, xxxxxxxxx (x), subsection (ii) is
hereby amended and renumbered as Xxxxxxx 00, xxxxxxxxx (x), subsection
(iii);
d. The heading to Xxxxxxx 00, xxxxxxxxx (x) is hereby amended
and renumbered as Section 11, paragraph (d), subsection (i);
e. The heading to Section 11, paragraph (d), subsection (i) is
hereby amended and renumbered as Xxxxxxx 00, xxxxxxxxx (x), xxxxxxxxxx
(xx);
f. Section 22 of the Agreement is hereby amended to read in
its entirety as follows:
"Notwithstanding any of the provisions of this Agreement or of the
Rights to the contrary, the Company may, at its option, issue new Right
Certificates evidencing Rights in such form as may be approved by its
Board of Directors to reflect any adjustment or change in the Purchase
Price and the number or kind or class of shares or other securities or
property purchasable under the Right Certificates made in accordance
with the provisions of this Agreement. In addition, in connection
with the issuance or sale of Common Shares following the Distribution
Date and prior to the redemption or expiration of the Rights, the
Company (a) shall, with respect to Common Shares so issued or sold
pursuant to the exercise of stock options or under any employee plan or
arrangement or upon the exercise, conversion or exchange of other
securities of the Company outstanding at the date hereof or upon the
exercise, conversion or exchange of securities hereinafter issued by the
Company and (b) may, in any other case, if deemed necessary or
appropriate by the Board of Directors of the Company, issue Rights
Certificates representing the appropriate number of Rights in connection
with such issuance or sale; PROVIDED, HOWEVER, that (i) no such Rights
Certificate shall be issued and this sentence shall be null and void AB
INITIO if, and to the extent that, such issuance or this sentence would
create a significant risk of or result in material adverse tax
consequences to the Company or the Person to whom such Rights
Certificate would be issued or would create a significant risk of or
result in such options' or employee plans' or arrangements' failing to
qualify for otherwise available special tax treatment and (ii) no such
Rights Certificate shall be issued if, and to the extent that,
appropriate adjustment shall otherwise have been made in lieu of the
issuance thereof.
3. EFFECTIVE DATE. This Amendment shall be deemed to be effective
as of the date of the Rights Agreement.
4. CONTINUED VALIDITY OF AGREEMENT. Except as amended hereby, the
Agreement shall continue in full force and effect as originally constituted
and is ratified and affirmed by the parties hereto.
5. 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 instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to the Rights Agreement to be duly executed as of the date first above
written.
HEARTPORT, INC.
By:
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Name:
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Title:
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BOSTON EQUISERVE
LIMITED PARTNERSHIP
By:
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Name:
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Title:
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