Exhibit 4.1
AMENDMENT NO. 2
TO RIGHTS AGREEMENT
AMENDMENT NO. 2, dated as of March 3, 2006 ("Amendment No. 2"), to the
Rights Agreement (the "Rights Agreement"), dated as of October 1, 1996, between
Education Management Corporation, a Pennsylvania corporation (the "Company"),
and Mellon Investor Services, LLC, a New Jersey limited liability company, as
successor to Mellon Bank, N.A., as Rights Agent (the "Rights Agent"), as amended
by Amendment No. 1 to Rights Agreement, dated as of November 9, 1999, between
the Company and the Rights Agent.
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company may
from time to time supplement or amend any provision of the Rights Agreement in
accordance with the terms of such Section 27;
WHEREAS, the Board of Directors of the Company (the "Board of Directors"),
on March 3, 2006, resolved that the Agreement and Plan of Merger, dated as of
March 3, 2006, between EM Acquisition Corporation and the Company (the "Merger
Agreement"), and the Merger (as defined in the Merger Agreement), are fair to
and in the best interests of the Company and its shareholders; and
WHEREAS, the Company has determined that it is desirable to amend the
Rights Agreement as provided herein.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein, and intending to be legally bound, the Company and the Rights
Agent hereby agree as follows:
1. Amendments. The Rights Agreement is amended as follows:
A. The definition of "Acquiring Person" in Section 1(a) is amended by
inserting the following as a new paragraph at the end of such definition:
"Notwithstanding anything in this Section 1(a) to the contrary,
none of EM Acquisition Corporation, a Pennsylvania corporation ("Merger Co"), or
any of its Affiliates, Associates, or shareholders, or the general partners,
limited partners, or members of such shareholders (the "Exempted Persons"),
either individually, collectively, or in any combination, shall be deemed to be
an "Acquiring Person" solely by virtue of or as a result of (A) the approval,
adoption, execution, delivery, or performance of the Merger Agreement by any of
the Exempted Persons in connection with the Merger or (B) the acquisition of any
Shares pursuant to the Merger Agreement or the consummation of the Merger
pursuant to the Merger Agreement (the transactions described in clauses (A) or
(B), the "Exempted Transactions")."
B. Section 1 is amended by inserting the following subsections at the
end of Section 1.
"(ff) "Effective Time" shall have the meaning set forth in the
Merger Agreement."
"(gg) "Merger" shall have the meaning set forth in the Merger
Agreement."
"(hh) "Merger Agreement" shall mean the Agreement and Plan of
Merger, dated as of March 3, 2006, between Merger Co and the Company, as it may
be amended or supplemented from time to time."
"(ii) "Shares" shall have the meaning set forth in the Merger
Agreement."
C. The definition of "Beneficial Owner" in Section 1(d) is amended by
inserting the following sentence at the end of such definition:
"Notwithstanding anything in this Section 1(d) to the contrary,
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 Persons solely by virtue of or as a result of any Exempted
Transaction."
D. The definition of "Shares Acquisition Date" in Section 1(bb) is
amended by inserting the following at the end of such definition:
"Notwithstanding anything in this Section 1(bb) to the contrary,
a Shares Acquisition Date shall not be deemed to have occurred solely by virtue
of or as a result of the public announcement of any Exempted Transaction."
E. Section 2 is amended by deleting the words "and the holders of the
Rights (who in accordance with Section 3 hereof, shall prior to the Distribution
Date also be the holders of the Common Shares)."
F. Section 3(a) is amended by inserting the following sentence at the
end of Section 3(a):
"Notwithstanding anything in the Agreement to the contrary, a
"Distribution Date" shall not be deemed to have occurred solely by virtue of or
as a result of any "Exempted Transaction."
G. Section 7(a) is hereby amended in its entirety to read as follows:
"(a) The registered holder of any Right Certificate may exercise
the Rights evidenced thereby (except as otherwise provided herein), 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 the principal office of the Rights Agent,
together with payment of the Purchase Price for each one one-hundredth of a
Preferred Share as to which the Rights are exercised, at or prior to the
earliest of (i) the Close of Business on the tenth anniversary of the date of
the consummation of the offering (the "Final Expiration Date"), (ii) the time at
which the Rights are redeemed as provided in Section 23 hereof (the "Redemption
Date"), (iii) the time at which such Rights are exchanged as provided in Section
24 hereof, or (iv) immediately prior to the Effective Time, but only if the
Effective Time shall occur."
-2-
H. Section 25(a) is amended by inserting the following sentence at the
end of such Section 25(a):
"Notwithstanding anything in this Agreement to the contrary, the
Company shall not be required to give any such notice in connection with any
Exempted Transaction provided that they will endeavor to provide the Rights
Agent with notice of the Effective Time."
I. A new Section 35 is added to read in its entirety as follows:
"Section 35. Termination. Immediately prior to the Effective
Time, but only if the Effective Time shall occur, (a) this Agreement shall be
terminated and be without any further force or 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, including without limitation, the right
to purchase or otherwise acquire Preferred Shares or any other securities of the
Company or of any other Person. Notwithstanding the foregoing, Section 18 hereof
shall survive the termination of this Agreement."
2. Counterparts. This Amendment No. 2 may be executed in any number of
counterparts and 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. Delivery of an executed counterpart of a signature page to
this Amendment No. 2 by facsimile shall be as effective as delivery of a
manually executed counterpart of this Amendment No. 2.
3. Governing Law. This Amendment No. 2 shall be deemed to be a contract
made under the laws of the Commonwealth of Pennsylvania and for all purposes
shall be governed by and construed in accordance with the laws of such
Commonwealth applicable to contracts to be made and performed entirely within
such Commonwealth.
4. Effectiveness. This Amendment No. 2 shall be deemed effective
immediately prior to the execution and delivery of the Merger Agreement on and
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.
[SIGNATURE PAGE FOLLOWS]
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-3-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to
be duly executed and attested, all as of the day and year first written above.
Attest: EDUCATION MANAGEMENT CORPORATION
By: /s/ Robert B. Knutson By: /s/ John R. McKernan, Jr.
--------------------------------- ------------------------------------
Name: Robert B. Knutson Name: John R. McKernan, Jr.
Title: Chairman Title: Chief Executive Officer
Attest: MELLON INVESTOR SERVICES, LLC
By: /s/ Rita A. Swartz By: /s/ Cynthia Pacolay
--------------------------------- ------------------------------------
Name: Rita A. Swartz Name: Cynthia Pacolay
Title: Client Relationship Executive Title: Client Relationship Executive