NINTH AMENDMENT TO RIGHTS AGREEMENT
Exhibit 4.1
This Ninth Amendment to Rights Agreement (the “Amendment”) is entered into as of November
11, 2010, by and between Pennichuck Corporation (the “Company”), and American Stock Transfer &
Trust Company, LLC (the “Rights Agent”).
WITNESSETH:
WHEREAS, the Company and Rights Agent are parties to that certain Rights Agreement, dated
as of April 20, 2000, as amended (the “Rights Agreement”)
WHEREAS, all capitalized terms used herein and not otherwise defined shall have the
meaning ascribed to them in the Rights Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company may prior to the
Distribution Date supplement or amend the Rights Agreement without the approval of any holders of
Rights Certificates; and
WHEREAS, the Company now desires to amend the Rights Agreement as set forth in this
Amendment, and pursuant to Section 27 of the Rights Agreement, the Company hereby directs that the
Rights Agreement should be amended as set forth in this Amendment.
NOW THEREFORE, in consideration of the premises and the mutual agreements herein set
forth, the parties hereby agree as follows:
1. Amendments to Section 1.
(a) Section 1 of the Rights Agreement is hereby amended by adding the following
definitions:
“Merger” shall have the meaning set forth in the Merger Agreement.
“Merger Agreement” shall mean the Agreement and Plan of Merger, dated as of November 11, 2010,
by and between the Company and the City, as may be amended from time to time.
“City” shall mean the City of Nashua, New Hampshire, or any Affiliate thereof.
(b) The definition of “Acquiring Person” in Section 1 of the Rights Agreement is
hereby amended by inserting the following sentence at the end thereof:
“Notwithstanding the foregoing or any other provision of this Agreement to the contrary,
none of (i) the execution and delivery of the Merger Agreement, (ii) the consummation of the
Merger and (iii) the consummation of any other transaction contemplated in the Merger
Agreement shall be deemed to result in the City becoming an Acquiring Person.”
(c) The definition of “Shares Acquisition Date” in Section 1 of the Rights Agreement
is hereby amended by inserting the following sentence at the end thereof:
“Notwithstanding the foregoing or any other provision of this Agreement to the contrary,
none of (i) the execution and delivery of the Merger Agreement, (ii) the consummation
of the Merger and (iii) the consummation of any other transaction contemplated in the Merger
Agreement shall be deemed to result in a Shares Acquisition Date.”
2. Amendment to Section 3(a). Section 3(a) of the Rights Agreement is hereby
amended to add the following sentence at the end thereof:
“Notwithstanding anything in this Agreement to the contrary, none of (i) the execution and
delivery of the Merger Agreement, (ii) the consummation of the Merger and (iii) the
consummation of any other transaction contemplated in the Merger Agreement shall be deemed
to result in a Distribution Date.”
3. Amendment to Section 7(a). Section 7(a) of the Rights Agreement is hereby
amended and restated to read in its entirety as follows:
“(a) The registered holder of any Right Certificate (other than a holder whose Rights have
become void pursuant to Section 11(a)(ii)hereof or have been exchanged pursuant to Section
24 hereof) may exercise the Rights evidenced thereby in whole or in part at any time after
the Distribution 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 its principal
office, together with payment of the Purchase Price for each one one-hundredth of a
Preferred Share as to which the Rights are exercised, prior to the earliest of (i) the Close
of Business on the Final Expiration Date, (ii) the time at which the right to exercise the
Rights terminates pursuant to Section 23 hereof, or (iii) the time at which the right to
exercise the Rights terminates pursuant to Section 24 hereof and (iv) immediately prior to
the Effective Time (as defined in the Merger Agreement) (the earlier of (i), (ii), or (iii)
being herein referred to as the “Expiration Date”). Notwithstanding anything to the
contrary in this Agreement, none of (i) the execution and delivery of the Merger Agreement,
(ii) the consummation of the Merger and (iii) the consummation of any other transaction
contemplated in the Merger Agreement shall be deemed to be an event that causes the Rights
to become exercisable under the provisions of this Section 7 or otherwise.”
4. Amendment to Section 11. Section 11(a)(ii) of the Rights Agreement is
hereby amended by adding the following sentence at the end thereof:
“Notwithstanding anything in this Agreement to the contrary, (i) the execution and delivery
of the Merger Agreement, (ii) the consummation of the Merger and (iii) the consummation of
any other transaction contemplated in the Merger Agreement shall not be deemed to be such an
event set forth in this Section 11(a)(ii) and shall not cause the Rights to be adjusted or
exercisable in accordance with, or any other action to be taken or obligation to arise
pursuant to, this Section 11(a)(ii).”
5. Amendment to Section 13. Section 13 of the Rights Agreement is hereby
amended by adding the following sentence at the end thereof:
“Notwithstanding anything in this Agreement to the contrary, (i) the execution and delivery
of the Merger Agreement, (ii) the consummation of the Merger and (iii) the consummation of
any other transaction contemplated in the Merger Agreement shall not be deemed to be such an
event set forth in this Section 13 and shall not cause the Rights to be adjusted or
exercisable in accordance with, or any other action to be taken or
obligation to arise pursuant to, this Section 13 or otherwise subject to any restrictions
contained in this Section 13.”
6. Amendment to Section 29. Section 29 of the Rights Agreement is hereby
amended by adding the following sentence at the end thereof:
“Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall
be construed to give any registered holder of the Rights Certificates (and prior to any
Distribution Date, registered holders of the Common Stock) any legal or equitable rights,
remedy or claim under this Agreement in connection with (i) the execution and delivery of
the Merger Agreement, (ii) the consummation of the Merger or (iii) the consummation of any
other transaction contemplated in the Merger Agreement.”
7. New Section 35. The Rights Agreement is hereby amended to add the
following as a new Section 35:
“Section 35. Termination. Notwithstanding anything herein to the contrary,
immediately prior to the Effective Time (as defined in the Merger Agreement), but only if
the Effective Time shall occur, (a) this Agreement shall be terminated and be without
further force and effect, (b) none of the parties to this Agreement will have any rights,
obligations or liabilities hereunder and (c) the holders of the Rights shall not be entitled
to any benefits, rights or other interests under this Agreement; provided, however, that
notwithstanding the foregoing, Sections 18 and 20 hereof shall survive the termination of
this Agreement. The Company shall inform the Rights Agent of the occurrence of the Effective
Time promptly thereafter.”
8. Effectiveness. This Amendment shall be deemed effective as of, and
immediately prior to, the execution and delivery of the Merger Agreement, except that if the Merger
Agreement is not executed and delivered by each of the parties thereto, this Amendment shall
terminate and be void ab initio. The Company shall inform the Rights Agent of the occurrence of
the execution and delivery of the Merger Agreement promptly thereafter. Except as expressly set
forth herein, this Amendment shall not by implication or otherwise alter, modify, amend or in any
way affect any of the terms, conditions, obligations, covenants or agreements contained in the
Rights Agreement, all of which are ratified and affirmed in all respects and shall continue in full
force and effect and shall be otherwise unaffected.
9. Governing Law. This Amendment shall be deemed to be a contract made under
the laws of the State of New Hampshire and for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to contracts to be made and performed entirely
within such State.
10. Counterparts; Electronic Delivery. This Amendment may be executed in any
number of counterparts, each of which shall for all purposes be deemed an original, and all of
which together shall constitute but one and the same instrument. Signatures delivered
electronically, including by facsimile or by electronic data file, shall have the same authority,
effect and enforceability as original signatures.
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IN WITNESS WHEREOF, the parties have caused this Ninth Amendment to be duly executed as
of the day and year first above written.
PENNICHUCK CORPORATION
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AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC, as Rights Agent |
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By:
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/s/ Xxxxxx X. Xxxxxxx
Title: Sr. Vice President, Chief Financial Officer & Treasurer |
By: | /s/ Xxxxxxx X. Xxxxxx
Title: Corporation Counsel |
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