SECOND AMENDMENT TO RIGHTS AGREEMENT
This Second 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 July 12, 1998.
A. The Company and the Rights Agent have entered into a Rights Agreement,
dated as of June 26, 1996 and as first amended July 22, 1997 (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. DEFINITION OF PERMITTED OFFER. Section 1(y) of the Rights Agreement is
amended to insert the words "or a merger or other acquisition transaction
involving the Company" into the definition of "Permitted Offer" immediately
following the words "Common Shares" in the second line thereof.
3. SECTION 13(e). Section 13 of the Rights Agreement is amended by adding the
following as Section 13(e):
(e) Notwithstanding anything contained in this Agreement to
the contrary, upon the consummation of any merger or other
acquisition transaction involving the Company, pursuant to a
merger or other acquisition agreement between the Company and any
Person (or one or more of such Person's Affiliates or
Associates), which agreement has been
approved by at least a majority of the Continuing Directors prior to
any Person becoming an Acquiring Person, all Rights hereunder shall
expire.
4. SECTION 7(a)(ii). Section 7(a)(ii) of the Rights Agreement is amended to
add "or Section 13(e)" to the end of such Section.
5. 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.
6. 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
