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EXHIBIT 10.1
AMENDMENT NO. 1 TO
PREFERRED SHARES RIGHTS AGREEMENT
This Amendment No. 1 to Preferred Shares Rights Agreement (this
"Amendment") is between VidaMed, Inc., a Delaware corporation (the "Company"),
and American Securities Transfer & Trust, Inc. (the "Rights Agent"), effective
as of January 3, 2000.
A. The Company and the Rights Agent have entered into a Preferred Shares
Rights Agreement, dated as of January 27, 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 the
Distribution Date, the Company may amend the Rights Agreement, including the
definition of an Acquiring Person as set forth in Section 1(a) thereof, 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
definition of an Acquiring Person, and the Rights Agent agrees to such
amendment, on the terms and conditions hereof.
NOW, THEREFORE, the Company and the Rights Agent agree as follows:
1. Representations and Warranties. The Company represents and warrants to the
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Rights Agent that:
(a) to the best knowledge of the Company, the 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.
2. Amendment of Section 1(a). Section 1(a) of the Rights Agreement is hereby
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amended by deleting Section 1(a) in its entirety and substituting the
following therefor:
(a) "Acquiring Person" shall mean any Person who or which, together
with all Affiliates and Associates of such Person, shall be the Beneficial
Owner of 20% or more of the Common Shares then outstanding (the "Acquiring
Person Triggering Amount"), but shall not include the Company, any
Subsidiary of the Company or any employee benefit plan of the Company or of
any Subsidiary of the Company, or any entity holding Common Shares for or
pursuant to the terms of any such plan.
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Notwithstanding the foregoing, no Person shall be deemed to be an Acquiring
Person as the result of an acquisition of Common Shares by the Company
which, by reducing the number of shares outstanding, increases the
proportionate number of shares beneficially owned by such Person to the
Acquiring Person Triggering Amount; provided, however, that if a Person
shall become the Beneficial Owner of the Acquiring Person Triggering Amount
by reason of share purchases by the Company and shall, after such share
purchases by the Company, become the Beneficial Owner of any additional
Common Shares of the Company (other than pursuant to a dividend or
distribution paid or made by the Company on the outstanding Common Shares
in Common Shares or pursuant to a split or subdivision of the outstanding
Common Shares), then such Person shall be deemed to be an Acquiring Person
unless upon becoming the Beneficial Owner of such additional Common Shares
of the Company such Person does not beneficially own the Acquiring Person
Triggering Amount. Notwithstanding the foregoing, (i) if a majority of the
Continuing Directors then in office determines in good faith that a Person
who would otherwise be an "Acquiring Person," as defined pursuant to the
provisions of this paragraph (a), has become such inadvertently (including,
without limitation, because (A) such Person was unaware that it
beneficially owned a percentage of the Common Shares that would otherwise
cause such Person to be an "Acquiring Person," as defined pursuant to the
provisions of this paragraph (a), or (B) such Person was aware of the
extent of the Common Shares it beneficially owned but had no actual
knowledge of the consequences of such beneficial ownership under this
Agreement) and without any intention of changing or influencing control of
the Company, and if such Person divested or divests as promptly as
practicable a sufficient number of Common Shares so that such Person would
no longer be an "Acquiring Person," as defined pursuant to the provisions
of this paragraph (a), then such Person shall not be deemed to be or to
have become an "Acquiring Person" for any purposes of this Agreement; and
(ii) if, as of the date hereof, any Person is the Beneficial Owner of 20%
or more of the Common Shares outstanding, such Person shall not be or
become an "Acquiring Person," as defined pursuant to the provisions of this
paragraph (a), unless and until such time as such Person shall become the
Beneficial Owner of additional Common Shares (other than pursuant to a
dividend or distribution paid or made by the Company on the outstanding
Common Shares in Common Shares or pursuant to a split or subdivision of the
outstanding Common Shares), unless, upon becoming the Beneficial Owner of
such additional Common Shares, such Person is not then the Beneficial Owner
of the Acquiring Person Trigger Amount. For purposes of this definition of
"Acquiring Person", the Acquiring Person Trigger Amount for Medtronic Asset
Management, Inc. or any of its Affiliates or Associates (collectively, the
"Medtronic Group") shall be 25.0% or more of the Common Shares then
outstanding (the "Medtronic Trigger Amount") which shall be applicable if
any member of the Medtronic Group has, or, together with any Affiliates and
Associates of Medtronic, shall be the Beneficial Owner of, such Medtronic
Trigger Amount.
3. No Other Changes. Except as specifically amended by this Amendment, all
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other provisions of the Rights Agreement shall 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.
4. Counterparts. This Amendment may be executed in one or more counterparts,
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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.
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VIDAMED, INC. AMERICAN SECURITIES TRANSFER &
TRUST, INC.
By: /s/ Randy D. Lindholm By: /s/ Laura Sasneros
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Its: President, Chief Executive Officer Its: Vice President, Trust Officer
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AMERICAN SECURITIES TRANSFER &
TRUST, INC.
By: Kellie Guinn
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