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EXHIBIT 4.1
AMENDMENT TO AMENDED AND RESTATED RIGHTS AGREEMENT
This Amendment, dated as of July 23, 1997, to the Rights Agreement,
dated originally as of September 1, 1992 and as amended and restated as of March
8, 1996 (this "Agreement") between Nellcor Puritan Xxxxxxx Incorporated, a
Delaware corporation (the "Company"), and The First National Bank of Boston, a
national banking association (the "Rights Agent"). Unless otherwise defined
herein, capitalized terms used herein shall have the same meaning as those set
forth in Agreement.
WHEREAS, the Company, on the one hand, and Mallinckrodt Inc., a New
York corporation ("Purchaser") and NPB Acquisition Corporation, a Delaware
corporation and wholly-owed subsidiary of Purchaser ("Merger Sub"), on the other
hand, are concurrently herewith entering into an Agreement and Plan of Merger,
dated as of July 23, 1997 ("Merger Agreement"), whereby Purchaser would acquire
the Company pursuant to a two-step transaction consisting of (i) a tender offer
("Offer") to purchase all of the outstanding Common Shares of the Company at a
price of $28.50 per common Share in cash net to the seller, subject to the terms
and conditions set forth in Annex A to the Merger Agreement (the "Offer
Conditions), followed by (ii) a Merger of Merger Sub into the Company (the
"Merger"); and
WHEREAS, the Merger Agreement requires that, upon acceptance of, and
payment for, by Purchaser, of such number of Common Shares satisfying the
Minimum Condition pursuant to the Offer, all outstanding Rights under the
Agreement will expire, and neither the Company, Merger Sub nor Purchaser shall
have any obligations under the Agreement to any holder (or former holder) of
Rights following such consummation of the Offer; and
WHEREAS, the Board of Directors of the Company, consisting solely of
Incumbent Directors, having unanimously approved the Merger Agreement and the
Merger and the Offer;
NOW, THEREFOR, in consideration of the premises, the parties hereby
agree as follows:
1. Section 7(a) of the Agreement is hereby amended to read in its
entirety as follows:
"(a) The registered holder of any Right Certificate
may exercise the Rights evidenced thereby (except as otherwise
provided herein) in whole or in part at any time after the
Distribution Date until the Expiration Date upon surrender of
the Right Certificate, with the form of election to purchase
on the reverse side thereof duly executed, to the Rights Agent
at the office of the Rights Agent designated for such purpose,
together with payment of the Purchase Price for each
one-hundredth of a Preferred Share (or such other number of
shares or other securities) as to which the Rights are
exercised, at or prior to the earliest of (i) the close of
business on March 8, 2006 (the "Final Expiration Date"), (ii)
the time at which the Rights are redeemed as provided in
Section 23 hereof (the "Redemption
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Date") and (iii) the time at which such Rights are exchanged
as provided in Section 24 hereof. In addition, all outstanding
Rights under this Agreement (whether or not tendered and
purchased pursuant to the Offer (as defined below) shall
expire upon and as of the acceptance (so long as Mallinckrodt
Inc., a New York corporation or a wholly-owned subsidiary
thereof ("Purchaser") thereafter purchases Common Shares
pursuant to the Offer) for payment pursuant to the Offer of
Common Shares which, together with any Common Shares owned by
Purchaser or NPB Acquisition Corp., constitutes more than 50%
of the voting power (determined on a fully-diluted basis) of
all the securities of the Company entitled to vote generally
in the election of directors or in connection with a merger,
upon consummation of the Offer (the "Date of Acceptance"). The
earliest date to occur referred to in clauses (i), (ii) and
(iii) in the first sentence hereof or the Date of Acceptance
is herein referred to as the "Expiration Date." For the
purpose of the preceding sentence, the term "Offer" shall mean
the tender offer provided for by, and consummated in
accordance with the terms of, the Agreement and Plan of
Merger, dated as of July 23, 1997, as amended from time to
time, by and among the Company, Purchaser and Merger Sub."
2. The Agreement is hereby amended by adding thereto the
following new Section 35:
"Section 35. Mallinckrodt Merger Agreement. Notwithstanding
any provision of this Agreement to the contrary, none of
Purchaser, Merger Sub (as defined in Section 7(a)) or any
other wholly owned direct or indirect subsidiary of Purchaser
shall be or be deemed to become an Acquiring Person, and no
Distribution Date, Shares Acquisition Date or Triggering Event
shall occur or be deemed to occur, in either case solely by
reason of the execution of the Agreement and Plan of Merger,
dated as of July 23, 1997, as the same may be amended from
time to time, by and among the Company, Purchaser and Merger
Sub, or the announcement, commencement or consummation of the
transactions contemplated thereby."
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IN WITNESS WHEREOF, the undersigned have executed this Agreement to be
duly executed and their seals attested, all as of the day and year first above
written.
NELLCOR PURITAN XXXXXXX
Attest: INCORPORATED
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxxx XxXxxxx
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Title: Title:
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Attest: THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Matt Arba By: /s/ Xxxxxxxx X. Xxxxxxxx
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Title: Account Manager Title: Director
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