Exhibit 4.8


 


AMENDMENT NO. 2 TO AMENDED
AND 

RESTATED STOCK PURCHASE AGREEMENT

AND RELEASE


 


THIS AMENDMENT NO. 2 TO AMENDED AND RESTATED
STOCK PURCHASE AGREEMENT AND RELEASE, dated as of June 20, 2008 (this “Amendment
and Release”), is by and among AGA MEDICAL CORPORATION, a Minnesota
corporation (the “Company”), WELSH, CARSON, ANDERSON & STOWE
IX, L.P., a Delaware limited partnership (“WCAS IX”), the co-investors
of WCAS IX listed on the signature pages hereto (together with WCAS IX,
the “WCAS Investors”) and FRANCK L. GOUGEON (“Gougeon”), further
amending that certain Amended and Restated Stock Purchase Agreement, dated as
of July 28, 2005, between WCAS IX, certain co-investors of WCAS IX listed
on the signature pages thereto, the Company, and Gougeon (as amended by
that certain Omnibus Amendment Agreement, dated as of April 28, 2006, by
and among AGA Medical Holdings, Inc., the Company, WCAS IX and Gougeon,
the “Purchase Agreement”) and releasing certain claims against Gougeon
thereunder.  Capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth
in the Purchase Agreement.


 


RECITALS:


 


WHEREAS, Gougeon has voluntarily resigned his
position as the Chief Executive Officer of the Company;


 


WHEREAS, the Company desires to retain
Gougeon to provide certain services for the Company, and Gougeon desires to
perform such services pursuant to that certain Consulting Agreement, dated as
of June 20, 2008, between the Company and Gougeon;


 


WHEREAS, the Company, the WCAS Investors and
Gougeon wish to enter into this Amendment to, among other things, amend certain
provisions of the Purchase Agreement as set forth herein and release certain
claims against Gougeon thereunder; and


 


WHEREAS, the Purchase Agreement may be
amended, pursuant to Section 11.4 thereof, by a written instrument signed
by the Company, WCAS IX and Gougeon;


 


NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties, the parties agree as follows:


 


ARTICLE
I

AMENDMENTS TO PURCHASE AGREEMENT


 


 1.01                        Amendments.  The parties hereto agree to amend the
Purchase Agreement, ab initio, as
follows:


 


(a)                                  Section 1.1
of the Purchase Agreement is hereby amended to amend and restate the definition
of “Indemnifying Party” as follows:


 

















 


“Indemnifying Party” means, with
respect to any Indemnity Claim, the Company.”


 


(b)                                 Section 10.2.1
of the Purchase Agreement is hereby amended such that the following words are
deleted therefrom:


 


“and Gougeon will, on a joint and several
basis,”


 


(c)                                  Section 10.2.2(b) of
the Purchase Agreement is hereby amended and restated in its entirety as
follows:


 


“(b)                           [Intentionally Omitted.]”


 


(d)                                 Section 10.2.2(c) of
the Purchase Agreement is hereby amended and restated in its entirety as
follows:


 


“(c)                            All payments to be made by
the Company pursuant to this Section 10 will be made in cash.”


 


(e)                                  Section 10.2.2(d) of
the Purchase Agreement is hereby amended such that the following words are
deleted therefrom:


 


“or Gougeon”


 


(f)                                    Section 10.2.2(e) of
the Purchase Agreement is hereby amended and restated in its entirety as
follows:


 


“(e)                            [Intentionally Omitted.]”


 


(g)                                 Section 10.2.2(g) of
the Purchase Agreement is hereby amended and restated in its entirety as
follows:


 


“(g)                           [Intentionally Omitted.]”


 


1.02                           Continuing Effect of the Purchase Agreement.  This Amendment and Release shall not
constitute an amendment or waiver of any other provision of the Purchase
Agreement not expressly referred to in this Amendment and Release or otherwise
waived and/or released hereby.  Except as
expressly amended, waived or released hereby, the provisions of the Purchase
Agreement shall remain in full force and effect.


 


ARTICLE
II

RELEASE OF CLAIMS


 


2.01                           Release.  Effective as
of the date hereof, the Company and each of the WCAS Investors, on their own
behalf and on behalf of their (as applicable) past, present or future
directors, officers, managers, employees, affiliates, members, partners,
shareholders, agents, attorneys, trusts, administrators, heirs, executors,
spouses, trustees, beneficiaries, representatives, successors and assigns
(each, a “Releasing Party” and, collectively, the “Releasing Parties”),



 


2

















 


hereby absolutely,
unconditionally and irrevocably RELEASES and FOREVER DISCHARGES Gougeon and his
affiliates (excluding the Company), partners, agents, attorneys, trusts,
administrators, heirs, executors, spouses, trustees, beneficiaries,
representatives, successors and assigns (each, a “Released Party” and,
collectively, the “Released Parties”) from all claims, actions, causes
of action, suits, debts, liabilities, obligations, covenants, contracts,
controversies, agreements, promises, damages, judgments, executions and demands
(collectively, the “Released Claims”) arising out of the Purchase
Agreement (as amended by this Amendment and Release) and the purchase and sale
of the Shares thereunder, whether known or unknown, suspected or unsuspected,
absolute or contingent, direct or indirect or nominally or beneficially
possessed or claimed by a Releasing Party, whether the same be in
administrative proceedings, in arbitration or admiralty, at law, in equity or
mixed, which such Releasing Party ever had, now has or hereafter can, shall or
may have against any of the Released Parties. 
Notwithstanding anything to the contrary herein, all rights of any of
the Releasing Parties concerning representations, warranties, agreements,
promises or covenants set forth in any and all other agreements, instruments or
documents are preserved and not released.


 


 2.02                        No Suits or
Actions.  Each of the
Releasing Parties hereby irrevocably covenants to refrain from asserting any
claim or demand, or commencing, instituting or causing to be commenced, any
proceeding of any kind against any Released Party based upon any Released
Claim.


 


 2.03                        No
Assignment of Released Claims. 
Each of the Releasing Parties represents and warrants to Gougeon that
there has been no assignment or other transfer of any interest in any Released
Claim.


 


ARTICLE
III

MISCELLANEOUS


 


 3.01                        Severability.  In the event that any one or more of the
provisions contained in this Amendment and Release or in any other instrument
referred to herein shall, for any reason, be held to be invalid, illegal or
unenforceable, such illegality, invalidity or unenforceability shall not affect
any other provisions of this Amendment and Release.


 


 3.02                        Counterparts.  This Amendment and Release may be
executed in any number of counterparts, and each such counterpart hereof shall
be deemed to be an original instrument, but all such counterparts together
shall constitute but one agreement.


 


 3.03                        Governing
Law.  This Amendment and
Release, the rights of the parties and all actions, claims or suits arising in
whole or in part under or in connection herewith, will be governed by and
construed in accordance with the domestic substantive laws of the State of New
York, without giving effect to any choice or conflict of law provision or rule that
would cause the application of the laws of any other jurisdiction.


 


 3.04                        Jurisdiction.  Each party to this Amendment and Release, by
its execution hereof, (a) hereby irrevocably submits to the exclusive
jurisdiction of the state courts of the State of New York or the U.S. District
Court located in New York County in the State of New York for the purpose of
any action, claims or suit between the parties arising in whole or in part
under 


 


3

















 


or in connection with
this Amendment and Release, (b) hereby waives to the extent not prohibited
by applicable law, and agrees not to assert, by way of motion, as a defense or
otherwise, in any such action, claim or suit, any claim that it is not subject
personally to the jurisdiction of the above-named courts, that its property is
exempt or immune from attachment or execution, that any such action, claim or
suit brought in one of the above-named courts should be dismissed on grounds of
forum non conveniens, should be transferred or
removed to any court other than one of the above-named courts, or should be
stayed by reason of the pendency of some other proceeding in any other court
other than one of the above-named courts, or that this Amendment and Release or
the subject matter hereof may not be enforced in or by such court and (c) hereby
agrees not to commence any such action, claim or suit other than before one of
the above-named courts.  Notwithstanding
the previous sentence a party may commence any action, claim or suit in a court
other than the above-named courts solely for the purpose of enforcing an order
or judgment issued by one of the above-named courts.


 


3.05                           Venue.  Each party
agrees that for any action, claim or suit between the parties arising in whole
or in part under or in connection with this Amendment and Release, such party
bring actions, claims and suits only in courts located in New York County in
the State of New York.  Each party
further waives any claim and will not assert that venue should properly lie in
any other location within the selected jurisdiction.


 


3.06                           Service of Process. 
Each party hereby (a) consents to service of process in any action,
claim or suit between the parties arising in whole or in part under or in
connection with this Amendment and Release in any manner permitted by New York
law, (b) agrees that service of process made in accordance with clause (a) or
made by registered or certified mail, return receipt requested, at its address
specified pursuant to the Stockholders Agreement (as the same may be amended,
restated, supplemented or otherwise modified from time to time), will
constitute good and valid service of process in any such action, claim or suit
and (c) waives and agrees not to assert (by way of motion, as a defense,
or otherwise) in any such action, claim or suit any claim that service of
process made in accordance with clauses (a) or (b) does not
constitute good and valid service of process.


 


3.07                           WAIVER OF JURY TRIAL. 
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED,
EACH PARTY HEREBY WAIVES, AND COVENANTS THAT SUCH PERSON WILL NOT ASSERT
(WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN
ANY ACTION ARISING IN WHOLE OR IN PART UNDER OR IN CONNECTION WITH THIS
AMENDMENT AND RELEASE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE. 
THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY OF THIS
PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND
BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE ITS RIGHT TO
TRIAL BY JURY IN ANY PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS
AMENDMENT AND RELEASE WILL INSTEAD BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.


 


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IN WITNESS WHEREOF, each of the undersigned
has executed this Amendment and Release as of the date first above written.


 


 


	
   

  	
  AGA MEDICAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ronald E. Lund

  
	
   

  	
   

  	
  Name: Ronald E. Lund

  
	
   

  	
   

  	
  Title: Gen. Counsel and Secretary

  



 


5

















 


	
   

  	
  WELSH, CARSON, ANDERSON & STOWE IX, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  WCAS IX Associates LLC,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jonathan Rather

  
	
   

  	
   

  	
  Name: Jonathan Rather

  
	
   

  	
   

  	
  Title: Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
  WCAS MANAGEMENT CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jonathan Rather

  
	
   

  	
   

  	
  Name: Jonathan Rather

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  Russell L. Carson

  Thomas E. McInerney

  Robert A. Minicucci

  Anthony J. de Nicola

  Paul B. Queally

  Jonathan M. Rather - IRA

  Sanjay Swani

  D. Scott Mackesy

  John D. Clark

  James R. Matthews

  John Almedia, Jr.

  Sean M. Traynor

  WCAS Profit Sharing Plan

  Michael E. Donovan

  Eric J. Lee

  Brian T. Regan

  Lucas Garman

  David Mintz

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jonathan Rather

  
	
   

  	
   

  	
  Name: Jonathan M. Rather

  
	
   

  	
   

  	
  Title: Attorney-in-Fact

  
	
   

  	
   

  	
   

  



 


6

















 


	
   

  	
  THE BRUCE K. ANDERSON 2004 IRREVOCABLE

  TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mary Anderson

  
	
   

  	
   

  	
  Name: Mary Anderson

  
	
   

  	
   

  	
  Title: Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  THE PATRICK WELSH 2004 IRREVOCABLE

  TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carol Welsh

  
	
   

  	
   

  	
  Name: Carol Welsh

  
	
   

  	
   

  	
  Title: Trustee

  



 


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  /s/ Franck L. Gougeon

  
	
   

  	
  Franck L. Gougeon

  



 


8