EXHIBIT 4.1
AMENDMENT NO. 1 TO THE RIGHTS AGREEMENT
AMENDMENT NO. 1 (this "Amendment"), dated as of May 8, 2005, to the
Rights Agreement (the "Agreement"), dated as of December 17, 1998, between Duke
Energy Corporation, a North Carolina corporation (the "Company"), and the Bank
of New York, a New York banking corporation, as Rights Agent (the "Rights
Agent").
WHEREAS, the Company and the Rights Agent have previously entered into
the Agreement; and
WHEREAS, Section 27 of the Agreement provides that the board of
directors of the Company (the "Board") may, prior to the Distribution Date (as
defined in the Agreement) supplement or amend any provision of the Agreement
without the approval of any holders of Rights Certificates; and
WHEREAS, the Company, Deer Holding Corp., a Delaware corporation,
("Acquiror"), [Cougar] Corp., a Delaware corporation ("[Cougar]"), Deer
Acquisition Corp., a North Carolina corporation and wholly-owned subsidiary of
Acquiror ("Merger Sub A"), and Cougar Acquisition Corp., a Delaware corporation
and wholly-owned subsidiary of Acquiror ("Merger Sub B"), have entered into an
Agreement and Plan of Merger, dated as of May 8, 2005, as amended or
supplemented from time to time (the "Merger Agreement"), pursuant to which
Merger Sub A will merge with and into the Company with the Company as the
surviving corporation and pursuant to which the Company will become a
wholly-owned subsidiary of Acquiror; and
WHEREAS, the Board of directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its stockholders
and consistent with the objectives of the Board in adopting the Agreement to
amend the Agreement to except the Merger Agreement and the transactions
contemplated thereby from the Agreement; and
WHEREAS, the Company shall deliver to the Rights Agent a certificate,
dated as of the date hereof, of an appropriate officer of the Company
certifying that this Amendment is in compliance with the terms of Section 27 of
the Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which the parties hereby
acknowledge, the parties agree as follows:
ARTICLE 1
AMENDMENT
Section 1.1. Section 1(a) of the Agreement shall be amended by
inserting the following provisions at the end of Section 1(a):
"Notwithstanding the foregoing or any provision to the
contrary in this Agreement, none of Deer Holding Corp., a
Delaware corporation, ("Acquiror") or Deer Acquisition Corp.,
a North Carolina corporation and wholly-owned subsidiary of
Acquiror ("Merger Sub A"), or [Cougar], a Delaware
corporation ("[Cougar]"), nor any of its affiliates or
associates, or Cougar Acquisition Corp., a Delaware
corporation and a wholly-owned subsidiary of Acquiror
("Merger Sub B") is, nor shall any of them be deemed to be,
an Acquiring Person by virtue of (i) their acquisition, or
their right to acquire, beneficial ownership of Common Stock
of the Company as a result of their approval, execution,
delivery or performance of the Agreement and Plan of Merger
(the "Merger Agreement"), dated as of May 8, 2005 by and
among Acquiror, [Cougar], Merger Sub A, and Merger Sub B,
(ii) the consummation of the Mergers (as defined in the
Merger Agreement) or the taking of any action in furtherance
thereof, or (iii) the consummation of any other transaction
contemplated by the Merger Agreement or the taking of any
action in furtherance thereof, it being the purpose of the
Company in adopting this amendment to the Agreement that
neither the execution of the Merger Agreement by any of the
parties nor the consummation of the transactions contemplated
thereby shall in any respect give rise to any provision of
the Agreement becoming effective. In addition to the
immediately preceding sentence and notwithstanding any
provision to the contrary in this Agreement, as of the
Effective Time (as defined in the Merger Agreement) and
thereafter, no Person shall be deemed an Acquiring Person by
virtue of their acquisition, or their right to acquire,
beneficial ownership of Common Stock of the Company."
Section 1.2. Section 1(k) of the Agreement shall be amended by
inserting the following at the end of Section 1(k):
"Notwithstanding the foregoing or any provision to the
contrary in this Agreement, a Stock Acquisition Date shall
not occur by reason of the approval, execution, delivery or
performance of the Merger Agreement, the consummation of the
Mergers or of any other transaction contemplated by the
Merger Agreement or the taking of any action in furtherance
thereof. In addition to the immediately preceding sentence
and notwithstanding any provision to the contrary in this
Agreement, as of the Effective Time (as defined in the Merger
Agreement) and thereafter, a Stock Acquisition Date shall not
occur by reason of any Person's acquisition, or their right
to acquire, beneficial ownership of Common Stock or other
equity interests of the Company."
Section 1.3. Section 1(n) of the Agreement shall be amended by
inserting the following at the end of Section 1(n):
"Notwithstanding the foregoing or any provision to the
contrary in this Agreement, a Triggering Event shall not
occur by reason of the approval, execution, delivery or
performance of the Merger Agreement, the consummation of the
Mergers or of any other transaction contemplated by the
Merger Agreement or the taking of any actions in furtherance
thereof. In addition to the immediately preceding sentence
and notwithstanding any provision to the contrary in this
Agreement, as of the Effective Time (as defined in the Merger
Agreement) and thereafter, a Triggering Event shall not occur
by reason of any Person's acquisition, or their right to
acquire, beneficial ownership of Common Stock or other equity
interests of the Company."
Section 1.4. Section 3(a) of the Agreement shall be amended by
inserting the following at the end of Section 3(a):
"Notwithstanding the foregoing or any provision to the
contrary in this Agreement, a Distribution Date shall not
occur by reason of the approval, execution, delivery or
performance of the Merger Agreement, the consummation of the
Mergers or of any other transaction contemplated by the
Merger Agreement or the taking of any action in furtherance
thereof. In addition to the immediately preceding sentence
and notwithstanding any provision to the contrary in this
Agreement, as of the Effective Time (as defined in the Merger
Agreement) and thereafter, a Distribution Date shall not
occur by reason of any Person's acquisition, or their right
to acquire, beneficial ownership of Common Stock or other
equity interests of the Company."
ARTICLE II
MISCELLANEOUS
Section 2.1. Termination of Merger Agreement. If for any reason the
Merger Agreement is terminated and the Merger is abandoned, then this Amendment
shall thereafter be of no further force and effect and the Agreement shall
remain exactly the same as it existed immediately prior to execution of this
Amendment.
Section 2.2. Definitions. Terms not otherwise defined in this
Amendment shall have the meaning ascribed to such terms as in the Agreement.
The term "Agreement" as used in the Agreement shall be deemed to refer to the
Agreement as amended hereby, and all references to the Agreement shall be
deemed to include this Amendment.
Section 2.3. Governing Law. This Amendment shall be deemed to be a
contract made under the laws of the State of North Carolina and for all
purposes shall be governed by and construed in accordance with the laws of such
State applicable to contracts made and to be performed entirely within such
State; provided, however, that the rights and obligations of the Rights Agent
shall be governed by and construed in accordance with the laws of the State of
New York.
Section 2.4. Counterparts. This Amendment 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.
Section 2.5. Effectiveness. This Amendment shall be effective as of
the date first written above, and except as expressly set forth herein, the
Agreement shall remain in full force and effect and otherwise shall be
unaffected hereby.
Section 2.6. Severability. If any term or other provision of this
Amendment is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Amendment shall
nevertheless remain in full force and effect. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Amendment so as to
effect the original intent of the parties as closely as possible to the fullest
extent permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
Section 2.7. Identity of Cougar. As used herein, ["Cougar"] shall
refer to a legal entity, the identity of which will be provided in a
supplemental letter from the Company to the Rights Agent within one business
day of the execution of this Amendment.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, a duly authorized representative of each party has
executed this Amendment, as of the date first written above.
DUKE ENERGY CORPORATION
By: /s/ Edward M. Marsh, Jr.
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Name: Edward M. Marsh, Jr.
Title: Deputy General Counsel and
Assistant Secretary
THE BANK OF NEW YORK,
As Rights Agent
By: /s/ John I. Sivertsen
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Name: John I. Sivertsen
Title: Vice President
May 9, 2005
The Bank of New York
101 Barclay Street 12 West
New York, New York 10286
ATTN: Stock Transfer Administration
RE: Amendment No. 1 to the Rights Agreement of
Duke Energy Corporation
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To Whom It May Concern:
Pursuant to Section 2.7 of Amendment Number One to the Rights
Agreement, dated as of December 17, 1998 (the "Amendment"), the identity of the
party "[Cougar]" identified in the Amendment is Cinergy Corp. This supplemental
letter, executed as of the date hereof, shall serve as the sole document
satisfying the requirements of Section 2.7 of the Amendment.
Sincerely,
By: /s/ Edward M. Marsh, Jr.
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Name: Edward M. Marsh, Jr.
Title: Deputy General Counsel
and Assistant Secretary