Exhibit 4.1
AMENDMENT NO. 1 TO THE
RIGHTS AGREEMENT
OF NOBEL LEARNING COMMUNITIES, INC.
This Amendment No. 1, dated as of August 4 2002, amends the Rights
Agreement dated as of May 16, 2000 (the "Rights Agreement"), between Nobel
Learning Communities, Inc., a Delaware corporation (the "Company"), and
Stocktrans, Inc., as Rights Agent (the "Rights Agent"). Terms defined in the
Rights Agreement and not otherwise defined herein are used herein as so defined.
W I T N E S S E T H:
WHEREAS, on May 16, 2000, the Board of Directors of the Company
authorized the issuance of Rights to purchase, on the terms and subject to the
provisions of the Rights Agreement, shares of the Company's Preferred Stock;
WHEREAS, on May 16, 2000, the Board of Directors of the Company
authorized and declared a dividend distribution of one Right for every share of
Common Stock of the Company outstanding on the Record Date and authorized the
issuance of one Right (subject to certain adjustments) for each share of Common
Stock of the Company issued between the Record Date and the Distribution Date;
WHEREAS, the Distribution Date has not occurred; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Board of
Directors of the Company has approved an amendment of certain provisions of the
Rights Agreement as set forth below;
NOW, THEREFORE, the Rights Agreement is hereby amended as follows:
1. Amendment to definition of "Acquiring Person." Section 1(a)
(ii) is amended by inserting the following paragraph at the end of such
Section 1(a) (ii):
"Prior to a Termination Event, none of (a) X. X. Xxxxx, Xxxx
Xxxxx, Xxxxxx Xxxxx, Xxxxx Xxxxx and their respective spouses,
subsidiaries, Associates and Affiliates (each an "Insider"),
(b) Socrates Acquisition Corporation, Xxxxxxx Investment
Partners, Inc., Gryphon Partners II, L.P. and their
respective, subsidiaries, Associates and Affiliates (each a
"Sponsor") or (c) any lenders which participate with any of
the Sponsors (the "Other Lenders" and collectively with the
Insiders and the Sponsors, the "Exempted Persons"), either
individually, collectively or in any combination shall be
or be deemed to be an Acquiring Person as a result of the
formation of a group consisting of Exempted Persons in
connection with the discussions and negotiations between the
Exempted Persons and the special committee of the Board of
Directors of the Company regarding a consensual merger
transaction (the "Transaction Discussion"). A "Termination
Event" shall be deemed to have occurred on the second business
day after receipt of written
notice from the Company to the Sponsors that discussions
between the Company and the Sponsors regarding a contemplated
merger between one or more of such Sponsors and the Company
are terminated without the Sponsors and the Company having
executed a definitive agreement."
2. Amendment to definition of "Beneficial Owner." Section 1(d)
of the Rights Agreement is hereby amended by inserting the following paragraph
at the end of such Section 1(d):
"Notwithstanding anything in this Section 1(d) to the
contrary, prior to a Termination Event none of the Exempted
Persons, either individually, collectively or in any
combination, shall be deemed to be a beneficial owner of or to
beneficially own any securities beneficially owned, directly
or indirectly, by any other Exempted Person regardless of any
agreements, arrangements or understandings among any Exempted
Persons in connection with the Transaction Discussion."
3. Amendment to Section 27. Section 27 of the Rights Agreement
is hereby amended by inserting the following sentence at the end of such
Section 27:
"Notwithstanding anything in this Section 27 to the contrary,
prior to a Termination Event the Company shall not supplement
or amend any of the provisions or amendments contained in
Amendment No. 1 to the Rights Agreement without the prior
written consent of the Sponsors, unless the Company and one or
more of the Sponsors do not enter into a definitive agreement
with respect to a merger between the Company and one or more
Sponsors on or before August 15, 2002."
4. Effectiveness. This Amendment shall be deemed effective as of
the date first written above, as if executed on such date. Except as amended
hereby, the Rights Agreement shall remain in full force and effect and shall be
otherwise unaffected hereby.
5. Miscellaneous. This Amendment shall be deemed to be a contract
made under the laws of Delaware 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 without giving effect to the
principles of conflict of laws thereof. This Amendment may be executed in any
number of counterparts, each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument. If any provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, illegal or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Amendment shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to the Rights Agreement to be duly executed as of the day and year first above
written.
NOBEL LEARNING COMMUNITIES, INC.
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Title: Director
Attest:
By:/s/ Xxxx Xxxxx
---------------------------------
STOCKTRANS, INC.
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------
Title: President
Attest:
By:/s/ Xxxxxxxxx Xxxxxx
---------------------------------
Title: Executive Vice President
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