AMENDMENT NO. 1 TO RIGHTS AGREEMENT
AMENDMENT
NO. 1 TO RIGHTS AGREEMENT
Amendment
No. 1, dated as of July 1, 2007 (the “Amendment”), between North
Pittsburgh Systems, Inc., a Pennsylvania corporation (the “Company”), and
Xxxxx Fargo Bank Minnesota, N.A., a National Association, as Rights Agent (the
“Rights Agent”).
WHEREAS,
the Company and the Rights Agent entered into a Rights Agreement, dated as
of
September 25, 2003 (the “Rights Agreement”);
WHEREAS,
the Company intends to enter into an Agreement and Plan of Merger with
Consolidated Communications Holdings, Inc., a Delaware corporation
(“Parent”), and Fort Pitt Acquisition Sub Inc., a Pennsylvania
corporation and a wholly-owed subsidiary of Parent (“Merger Sub”);
and
WHEREAS,
the Company desires to amend the Rights Agreement as set forth herein and to
direct the Rights Agent to execute this Amendment in accordance with Section
28
of the Rights Agreement;
NOW,
THEREFORE, in consideration of the premises and mutual agreements set forth
in
the Rights Agreement and this Amendment, the parties hereby agree as
follows:
1. Amendment
toDefinition ofAcquiring Person. Section 1(a) of the
Rights Agreement is hereby amended to add the following sentence at the end
thereof:
Notwithstanding
anything to the contrary in this Agreement, neither Parent, Merger Sub nor
any
of their respective Affiliates or Associates shall be, or shall be deemed to
be,
an Acquiring Person solely by virtue of (w) the execution and delivery of the
Merger Agreement or any agreements, arrangements or understandings entered
into
by Parent or Merger Sub contemplated by the Merger Agreement if such agreements,
arrangements or understandings are in accordance with the terms and conditions
of the Merger Agreement, (x) the announcement of the Merger Agreement or the
Merger, (y) the consummation of the Merger or (z) the consummation of the other
transactions contemplated by the Merger Agreement upon the terms and conditions
of the Merger Agreement (each of the events set forth in the foregoing clauses
(w), (x), (y) and (z), an “Exempt Event”).
2. New
Definitions. Section 1 of the Rights Agreement is hereby amended
to add the following defined terms at the end thereof:
(dd) “Exempt
Event” shall have the meaning set forth in Section 1(a) hereof.
(ee) “Merger
Agreement” shall mean the Agreement and Plan of Merger, dated as of July 1,
2007, by and among the Company, Consolidated Communications Holdings, Inc.,
a
Delaware corporation (“Parent”), and Fort Pitt Acquisition Sub Inc., a
Pennsylvania corporation and a wholly-owned subsidiary
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2
of
Parent
(“Merger Sub”) (as it may be amended or supplemented from time to
time).
(ff) “Merger
Sub” shall have the meaning set forth in Section 1(ee) hereof.
(gg) “Parent”
shall have the meaning set forth in Section 1(ee) hereof.
2. Amendment
to Definitionof Final Expiration Date. Section 7(a) of
the Rights Agreement is hereby amended by replacing clause (i) thereof with
the
following (and Exhibit B to the Rights Agreement shall be deemed amended
accordingly):
(i)
(x)
the Close of Business on October 6, 2013 or (y) if earlier, the time immediately
prior to the Effective Time (as defined in the Merger Agreement), if the
Effective Time shall occur (the earlier to occur of (x) and (y), the “Final
Expiration Date”)
3. Amendment
to Section 13(a). Section 13(a) of the Rights Agreement is
hereby amended by adding the following sentence at the end thereof:
Notwithstanding
anything to the contrary in this Agreement, the provisions of this Section
13
and Section 14 hereof shall not apply to any Exempt Event.
4. Amendment
to Section 31. Section 31 of the Rights Agreement is hereby
amended by adding the following sentence at the end thereof:
Notwithstanding
the foregoing, nothing in this Agreement shall be construed to give any holder
of Rights or any other Person any legal or equitable rights, remedy or claim
under this Agreement in connection with any Exempt Event.
5. Directions
to Rights Agent; Officer’s Certificate. The Company hereby
directs the Rights Agent, in accordance with the terms of Section 28 of the
Rights Agreement, to execute this Amendment in its capacity as Rights
Agent. The undersigned officer of the Company, being duly authorized
on behalf of the Company, hereby certifies on behalf of the Company that (a)
he
holds the office set forth under his name on the signature page hereto and
(b)
this Amendment is in compliance with Section 28 of the Rights
Agreement.
6. Miscellaneous. The
term “Agreement” as used in the Rights Agreement shall be deemed to refer to the
Rights Agreement as amended hereby. In accordance with the
resolutions adopted by the Company’s Board of Directors, this Amendment is
effective as of the time at which such resolutions were so
adopted. Except as set forth in this Amendment, the Rights Agreement
shall remain in full force and effect and shall be otherwise unaffected
hereby. This Amendment may be executed in any number of counterparts,
and each of such counterparts shall for all purposes be deemed an original,
but
all such counterparts shall together constitute but one and the same instrument,
it being understood that counterparts may be delivered by facsimile or
.pdf. Headings of the several Sections of the Amendment are inserted
for convenience only and shall not control or affect the meaning or construction
of any of the provisions hereof.
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the day and year first above written.
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NORTH
PITTSBURGH SYSTEMS, INC.
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By:
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/s/
Xxxxx X. Xxxxx
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Name:
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Xxxxx
X. Xxxxx
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Title:
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President
and Chief Executive Officer
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XXXXX
FARGO BANK MINNESOTA, N.A., as Rights Agent
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By:
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/s/
Xxxxxxx X. Xxxxx
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Name:
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Xxxxxxx
X. Xxxxx
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Title:
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Vice
President
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