Exhibit 4.1
SECOND AMENDMENT TO RIGHTS AGREEMENT
Second Amendment (the "Amendment"), effective as of January 25, 2006
between Guidant Corporation, an Indiana corporation (the "Company") and
Computershare Trust Company, N.A. (formerly known as EquiServe Trust Company,
N.A.) as rights agent (the "Rights Agent"), to the Rights Agreement (the
"Rights Agreement"), dated as of December 15, 2004 and amended effective as of
November 14, 2005, between the Company and the Rights Agent.
W I T N E S S E T H
WHEREAS, the Company and the Rights Agent previously entered into the
Rights Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
may from time to time prior to the Distribution Date (as defined in the Rights
Agreement) supplement or amend any provision of the Rights Agreement in
accordance with the provisions of Section 27 thereof; and
WHEREAS, the Board of Directors of the Company has deemed it desirable
and in the best interests of the Company and its shareholders to amend the
Rights Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Amendment of Rights Agreement.
(a) The last sentence of paragraph (d) of Section 1 of the Rights
Agreement shall be amended by deleting the sentence in its entirety and
substituting a new sentence as follows:
Notwithstanding the foregoing, for purposes of this Agreement, neither
Boston Scientific, a Delaware corporation, nor any of its Affiliates
or Associates (collectively, "Acquiror") shall be deemed to be the
"Beneficial Owner" of, or "beneficially own," any of the shares of
Common Stock solely as a result of the execution of that certain
Agreement and Plan of Merger, dated as of January 25, 2006, by and
among Acquiror, Galaxy Merger Sub, Inc. ("Sub"), an Indiana
corporation and a wholly owned subsidiary of Acquiror and the Company
(as may be further amended from time to time) or the consummation of
the transactions contemplated thereby in accordance with the terms
thereof.
(b) Section 7(a) shall be amended in its entirety to read as
follows:
Subject to Section 7(e) hereof, at any time after the Distribution
Date the registered holder of any Rights Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein
including, without limitation, the restrictions on exercisability set
forth in Section 9(c), Section 11(a)(iii) and Section 23(a) hereof) in
whole or in part upon surrender of the Rights Certificate, with the
form of election to purchase and the certificate on the reverse side
thereof duly executed, to the Rights Agent at the principal office or
offices of the Rights Agent designated for such purpose, together with
payment of the aggregate Purchase Price with respect to the total
number of one one-thousandths of a share (or other securities, cash or
other assets, as the case may be) as to which such surrendered Rights
are then exercisable, at or prior to the earliest of (i) 5:00 P.M.,
New York City time, on December 15, 2014, or such later date as may be
established by the Board of Directors prior to the expiration of the
Rights (such date, as it may be extended by the Board, the "Final
Expiration Date"), or (ii) the time at which the Rights are redeemed
as provided in Section 23 hereof, or (iii) the time at which the
Rights may be exchanged as provided in Section 24 hereof, or (iv) the
time at which all of the Rights expire pursuant to Section 13(d)
hereof, or (v) the Effective Time of that certain Agreement and Plan
of Merger, dated as of January 25, 2006, by and among Acquiror, Sub
and the Company (as may be further amended from time to time) (the
earliest of (i), (ii), (iii), (iv) and (v) being herein referred to as
the "Expiration Date").
Section 2. Continued Effectiveness. The parties hereto hereby
acknowledge and agree that, except as specifically supplemented and amended,
changed or modified in Section 1 above, the Rights Agreement, as previously
amended to the date hereof, shall be unaffected by this Amendment and remain in
full force and effect in accordance with its terms.
Section 3. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts shall together
constitute one and the same instrument.
Section 4. Defined Terms. Except as otherwise expressly provided
herein, or unless the context otherwise requires, all terms used but not
defined herein have the meanings assigned to them in the Rights Agreement.
Section 5. Governing Law. This Amendment shall be deemed to be a
contract made under the laws of the State of Indiana 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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and effective as of the day and year above written.
GUIDANT CORPORATION
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President and General Counsel
COMPUTERSHARE TRUST COMPANY, N.A.
(FORMERLY KNOWN AS EQUISERVE
TRUST COMPANY, N.A.)
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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By: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
