Exhibit 4.7


 


OMNIBUS AMENDMENT AGREEMENT


 


This OMNIBUS AMENDMENT
AGREEMENT, dated as of April 28, 2006, by and among AGA MEDICAL HOLDINGS,
INC., a Delaware corporation (the “Company”), AGA MEDICAL CORPORATION, a
Minnesota corporation (“AGA”), WELSH, CARSON, ANDERSON & STOWE
IX, L.P., a Delaware limited partnership (“WCAS”), and FRANCK L. GOUGEON
(“Gougeon”), constitutes Amendment No. 1 to that certain Amended
and Restated Stock Purchase Agreement, dated as of July 28, 2005 (the “Purchase
Agreement”), by and among AGA, WCAS, Gougeon and the other parties thereto,
and Amendment No. 1 to that certain Stockholders Agreement, dated as of July 28,
2005 (the “Stockholders Agreement”), by and among the Company, WCAS,
Gougeon and the other stockholders referred to therein.


 


RECITALS:


 


WHEREAS, on July 28, 2005,
the Company, AGA, WCAS, Gougeon and the other respective parties to such
agreements consummated the transactions contemplated by the Purchase Agreement,
including execution and delivery of the Stockholders Agreement; and


 


WHEREAS, the Company, AGA, WCAS
and Gougeon now desire to amend certain provisions of the Purchase Agreement
and the Stockholders Agreement;


 


NOW, THEREFORE, in
consideration of the premises and of the mutual covenants and agreements herein
contained, the parties hereto hereby agree as follows:


 


ARTICLE I



AMENDMENTS TO PURCHASE AGREEMENT


 


SECTION 1.01.  Amendments.  In accordance with Section 11.4 of the
Purchase Agreement, the Purchase Agreement is hereby amended as follows:


 


(a)                                  Section 1.1 of
the Purchase Agreement is hereby amended such that the definition of “Expiration
Date” set forth in such section is hereby deleted and replaced in its entirety
with the following:


 


“ ‘Expiration Date’
means April 28, 2006.”


 


(b)                                 Section 1.1 of
the Purchase Agreement is hereby amended to add the following definitions
immediately following the definition of “Facilities” in such section:


 


“ ‘FCPA Contribution’
means any cash investment made by any Investor Indemnified Person in the
Company or any subsidiary or parent thereof, which investment is, in any way
related to, in connection with or arising out of the payment by the Company or
any subsidiary or parent thereof of


 

















 


any fine, penalty or other cash
payment required to be paid by such person pursuant to an FCPA Settlement or
Order.


 


‘FCPA Settlement or Order’
means (a) a definitive written agreement with the U.S. Department of
Justice, the U.S. Department of Labor and any other relevant domestic or
foreign governmental authority with respect to non-compliance with Foreign
Corrupt Practices Act and the regulations promulgated thereunder, as amended
from time to time, and any other related and applicable statute, including
without limitation, the matters set forth in the F&B Report or (b) an
order of the U.S. Department of Justice, the U.S. Department of Labor and/or
any other relevant domestic or foreign governmental authority that the Company
or any subsidiary thereof pay a fine, penalty or other cash payment as a result
of such non-compliance.


 


‘F&B Report’ means
the Frederickson & Byron P.A. Report of Investigation for AGA Medical
Corporation, dated July 13, 2005.”


 


(c)                                  Section 10.1 of
the Purchase Agreement is hereby amended such that the proviso in such section
(including clauses (a) and (b) thereof) is hereby deleted and
replaced in its entirety with:


 


“ provided, that the
representations and warranties set forth in Sections 3.15 (Tax Matters) and
3.17 (Environmental Regulation) shall survive until the thirtieth day after the
expiration of the applicable statute of limitations (taking into account any
tolling periods and other extensions).”


 


(d)                                 Section 10.2.2(a) of
the Purchase Agreement is hereby amended such that the following sentence is
added as the last sentence of such section:


 


“The Company and Gougeon will
have no obligation to indemnify the Investor Indemnified Persons pursuant to Section 10.2.1(a) solely
in respect of Losses arising out of or relating to any FCPA Settlement or Order
(including, but not limited to, the proceeds of any FCPA Contribution) unless
the aggregate amount of all such Losses incurred or suffered by the Investor
Indemnified Persons exceeds $10,000,000 (at which point the Investor
Indemnified Persons will be indemnified for all such Losses in excess of
$10,000,000) and the Company’s and Gougeon’s aggregate liability for such
Losses shall not exceed $20,000,000.”


 


(e)                                  Section 10.2.2(b) of
the Purchase Agreement is hereby amended such that the following words and
characters are added at the very beginning of such section: “In addition to the
limitations set forth in the last sentence of Section 10.2.2(a),”.


 


SECTION 1.02.  Continuing
Effect of the Purchase Agreement. 
This Agreement shall not constitute an amendment or waiver of any other
provision of the Purchase Agreement 


 


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not expressly referred to herein.  Except as expressly amended hereby, the
provisions of the Purchase Agreement shall remain in full force and effect.


 


ARTICLE II



AMENDMENTS TO STOCKHOLDERS AGREEMENT


 


SECTION 2.01.  Amendments.  In accordance with Section 11.05 of the
Stockholders Agreement, the Stockholders Agreement is hereby amended as
follows:


 


(a)                                  Section 1.01 of
the Stockholders Agreement is hereby amended such that the definitions of “FCPA”,
“FCPA Claim” and “FCPA Settlement or Order” are hereby deleted in their
entirety from such section.


 


(b)                                 Section 2.02 of
the Stockholders Agreement is hereby amended such that the following words and
characters are hereby deleted from the first sentence of such section: “; provided,
further, that Gougeon shall not make any Transfer of shares of Company
Capital Stock which are held in escrow by the Company pursuant to Section 7.03”.


 


(c)                                  Article VII of
the Stockholders Agreement is hereby deleted and replaced in its entirety with
the following:


 


“ARTICLE VII.


 


[Intentionally
Omitted].”


 


(d)                                 Section 8.01(a) of
the Stockholders Agreement is hereby amended such that the following words and
characters are hereby deleted from the penultimate sentence of such section: “(including,
without limitation, any such shares Transferred in accordance with Section 7.03
of this Agreement)”.


 


SECTION 2.02.  Return
of Escrowed Shares.  Upon execution
and delivery of this Agreement, the Company shall return to Gougeon the
certificates representing Class A Common Stock, par value $0.01 per share,
of the Company currently held in escrow by the Company pursuant to the custody
agreement set forth in Section 7.03 of the Stockholders Agreement.


 


SECTION 2.03.  Continuing
Effect of the Stockholders Agreement. 
This Agreement shall not constitute an amendment or waiver of any other
provision of the Stockholders Agreement not expressly referred to herein.  Except as expressly amended hereby, the
provisions of the Stockholders Agreement shall remain in full force and effect.


 


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ARTICLE III



MISCELLANEOUS


 


SECTION 3.01.  Severability.  In the event that any one or more of the
provisions contained in this Agreement 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 Agreement.


 


SECTION 3.02.  Counterparts.  This Agreement maybe 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.


 


SECTION 3.03.  Governing
Law.  This Agreement, 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.


 


SECTION 3.04.  Jurisdiction.  Each party to this Agreement, by its
execution hereof, (a) hereby irrevocably submits to the exclusive
jurisdiction of the state courts of the State of New York or the United States
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 or in connection with this Agreement, (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 Agreement 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.


 


SECTION 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 Agreement, 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.


 


SECTION 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 Agreement 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, 


 


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return receipt requested, at its address
specified pursuant to the Stockholders Agreement, 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 clause (a) or (b) does not constitute good and valid service of
process.


 


SECTION 3.07.  Waiver
of Jury Trial.  TO THE EXTENT NOT
PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, THE PARTIES HEREBY WAIVE,
AND COVENANT THAT THEY 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 AGREEMENT, 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 AGREEMENT 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 Omnibus Amendment Agreement as an agreement as of
the date first above written.


 


	
   

  	
  AGA MEDICAL HOLDINGS, INC>

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Franck
  Gougeon

  
	
   

  	
   

  	
  Name: Franck
  Gougeon

  
	
   

  	
   

  	
  Title:
  President & CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AGA MEDICAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Franck
  Gougeon

  
	
   

  	
   

  	
  Name: Franck
  Gougeon

  
	
   

  	
   

  	
  Title:
  President & CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELSH, CARSON, ANDERSON

  
	
   

  	
  & STOWE
  IX, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  WCAS IX
  Associates, L.L.C.,

  its general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul
  Queally

  
	
   

  	
   

  	
  Name: Paul
  Queally

  
	
   

  	
   

  	
  Title:
  General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Franck
  Gougeon

  
	
   

  	
  Franck Gougeon

  
				



 


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