FIRST AMENDMENT
Exhibit 4.1
FIRST AMENDMENT
FIRST AMENDMENT, dated as of August 16, 2010 (this “Amendment”), to the Rights Agreement,
dated as of January 22, 2010 (the “Rights Agreement”), by and between Osteotech, Inc., a Delaware
corporation (the “Company”) and Registrar And Transfer Company (the “Rights Agent”). All
capitalized terms used in this Amendment and not otherwise defined herein shall have the meanings
ascribed to them in the Rights Agreement.
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company may from time to time
supplement or amend the Rights Agreement in accordance with the provisions of Section 27 thereof;
WHEREAS, the Company intends to enter into an Agreement and Plan of Merger, dated as of August
16, 2010, (the “Merger Agreement”), among the Company, Medtronic, Inc., a Minnesota corporation
(“Parent”), Medtronic Sofamor Xxxxx, Inc., an Indiana corporation and wholly owned subsidiary of
Parent (“MSD”), and England Merger Corporation, a Delaware corporation and wholly owned subsidiary
of MSD; and
WHEREAS, on August 16, 2010, the Board of Directors of the Company authorized an amendment of
the Rights Agreement to render the Rights Agreement inapplicable with respect to the transactions
contemplated by the Merger Agreement and authorized and directed the officers of the Company to
execute and deliver to the Rights Agent (i) such an amendment and (ii) an officer’s certificate
stating that this Amendment has been so authorized and that the Company is in compliance with the
terms of Section 27 of the Rights Agreement.
NOW, THEREFORE, in consideration of the premises and mutual agreements hereinafter set forth,
the Company and the Rights Agent agree to amend the Rights Agreement as follows:
1. Amendment of Section 1.
(a) Section 1 of the Rights Agreement is supplemented to add the following definitions:
“Merger” shall have the meaning given to such term in the Merger Agreement.
“Merger Agreement” means the Agreement and Plan of Merger, dated as of August 16, 2010,
among the Company, Medtronic, Inc., a Minnesota corporation (“Parent”), Medtronic Sofamor
Xxxxx, Inc., an Indiana corporation and wholly owned subsidiary of Parent (“MSD”), and
England Merger Corporation, a Delaware corporation and wholly owned subsidiary of MSD
(“Merger Sub”).
(b) The definition of “Acquiring Person” in Section 1 of the Rights Agreement is hereby
amended by adding as the final sentence thereto the following:
“Notwithstanding anything in this Agreement to the contrary, none of Parent, MSD, Merger
Sub, or any of their respective Affiliates or Associates shall be deemed to be an
Acquiring Person solely as a result of the approval, execution or delivery of, or
consummation of the transactions contemplated under, the Merger Agreement., in the manner
provided for therein, including, without limitation, the Merger.”
(c) The definition of “Distribution Date” in Section 1 of the Rights Agreement is hereby
amended by adding as the final sentence thereto the following:
“Notwithstanding anything in this Agreement to the contrary, no Distribution Date shall be
deemed to have occurred solely as a result of the approval, execution or delivery of, or
consummation of the transactions contemplated under, the Merger Agreement, in the manner
provided for therein, including without limitation, the Merger.”
2. Amendment of Section 13(a). Section 13(a) of the Rights Agreement is hereby amended by
adding the following at the end of Section 13(a):
“Notwithstanding anything in this Agreement to the contrary, this Section 13 shall not be
triggered solely as a result of the approval, execution or delivery of, or consummation of
the transactions contemplated under, the Merger Agreement, in the manner provided for
therein, including without limitation, the Merger.”
3. Amendment of Section 23. Section 23 of the Rights Agreement is hereby amended by adding
the following as paragraph (d) thereof:
“(d) Notwithstanding anything in this Agreement to the contrary, this Agreement shall
terminate and be of no further force and effect immediately upon the Effective Time (as
defined in the Merger Agreement) and the Rights shall thereupon be canceled without the
payment of any consideration to the holders of the Rights, including, without limitation,
the Redemption Price.”
4. Effectiveness. This Amendment shall be deemed effective immediately prior to the
execution and delivery of the Merger Agreement. Except as amended hereby, the Rights Agreement
shall remain in full force and effect and shall be otherwise unaffected hereby.
5. Governing Law. This Amendment shall be governed by and construed in accordance with the
laws of the State of Delaware.
6. Counterparts. This Amendment may be executed in any number of counterparts, and each of
such counterparts shall be deemed to be an original, and all such counterparts shall together
constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to the Rights Agreement to
be duly executed, all as of the date and year first above written.
| OSTEOTECH, INC. |
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| /s/ Xxxx X. Xxxxxxxxx | ||||
| Xxxx X. Xxxxxxxxx | ||||
| Executive Vice President | ||||
| REGISTRAR AND TRANSFER COMPANY, as Rights Agent |
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| /s/ Xxxxxxx X. Tatler | ||||
| Name: | Xxxxxxx X. Tatler | |||
| Title: | Vice President | |||
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