Exhibit 4.1
AMENDMENT NO. 2 TO
RIGHTS AGREEMENT
This AMENDMENT, dated as of
June 8, 2009 (the “Amendment”), amends the Rights
Agreement, dated as of June 7, 1999 (as amended, the
“Rights Agreement”), between NMT Medical, Inc.
(formerly Nitinol Medical Technologies, Inc.), a Delaware
corporation (the “Company”), and American Stock
Transfer & Trust Company, a New York company, as Rights
Agent (the “Rights Agent”), as amended on
December 14, 2006.
WHEREAS, under Section 27 of
the Rights Agreement, the Company may from time to time supplement
or amend the Rights Agreement without the approval of any holders
of the Rights in order to, among other thing, make any provisions
with respect to the Rights that the Company may deem necessary or
desirable, any such supplement or amendment to be evidenced by a
writing signed by the Company and the Rights Agent; and
WHEREAS, the Company has determined,
and has so directed the Rights Agent, to amend the Rights Agreement
as set forth herein pursuant to Section 27 of the Rights
Agreement.
NOW, THEREFORE, in consideration of
the foregoing and the mutual agreements set forth herein, and
intending to be legally bound, the parties hereto agree as
follows:
1. Section 1(o) of the Rights
Agreement is hereby deleted in its entirety and replaced with the
following language:
“‘Final Expiration
Date’ shall mean the close of business on June 9,
2019.”
2. This Amendment shall be deemed to
be a contract made under the laws of the State of Delaware and for
all purposes shall be governed by and construed in accordance with
the laws of the State of Delaware applicable to contracts to be
made and performed entirely within the State of
Delaware.
3. All acts and things necessary to
make this
