Exhibit 4.5
EXECUTION COPY
AMENDMENT NO. 4 TO RIGHTS AGREEMENT
This Amendment No. 4 to Rights Agreement (this "Amendment"), dated as of
June 17, 2003, amends the Rights Agreement dated as of May 16, 2000 as amended
on August 4, 2002, August 5, 2002 and March 12, 2003 (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, on August 4, 2002, the Company and the Rights Agent entered into
Amendment No. 1 to the Rights Agreement;
WHEREAS, on August 5, 2002, the Company and the Rights Agent entered into
Amendment No. 2 to the Rights Agreement;
WHEREAS, on March 12, 2003, the Company and the Rights Agent entered into
Amendment No. 3 to the Rights Agreement;
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 the second WHEREAS clause. The second WHEREAS clause is
amended by restating it as follows:
"WHEREAS, all references to the Common Stock herein shall also
reference the Series A Preferred Stock, par value $.001 per share,
Series C Preferred Stock, par value $.001 per share, Series D
Preferred Stock, par value $.001 per share, and Series E Preferred
Stock, par value $.001 per share ("Series E Preferred Stock")(the
"Designated Preferred"), of the Company on an as-converted basis."
2. 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):
"Furthermore, Camden shall not be considered an Acquiring Person as a
result of (A) the approval, execution and delivery of the Series E
Stock Purchase Agreement including without limitation (i) the issuance
of the Series E Preferred Stock, (ii) the conversion of the Series E
Preferred Stock, (iii) the exercise of pre-emptive rights described in
Section 4.6 of the Series E Preferred Stock Purchase Agreement, (iv)
the issuance of and conversion of any additional shares of Series E
Preferred Stock received as a dividend pursuant to the Certificate of
Designation of the Series E Preferred; (B) being the Beneficial Owner
of shares of Common Stock held by Camden on the date hereof; and (C)
the issuance of options to purchase Common Stock or the exercise of
such options issued to the board representative of the Series E
Preferred Stock.
3. Additional Definitions. Section 1 is hereby amended to include the
following definitions:
(kk) "Certificate of Designation of the Series E Preferred" shall mean the
Certificate of Designation, Preferences, and Rights of Series E Convertible
Preferred Stock of Nobel Learning Communities, Inc. as filed with the
Secretary of the State of the State of Delaware on the date hereof.
(ll) "Series E Stock Purchase Agreement" shall mean the Series E Convertible
Preferred Stock Purchase Agreement dated as the date hereof by and among
the Company and the Investors, as defined therein.
(mm) Camden shall mean Camden Partners Strategic Fund II-A, L.P., Camden
Partners Strategic Fund II-B, L.P. Camden Partners Holdings, LLC, Camden
Partners, Inc., Camden Partners Equity Managers I, LLC, Camden Partners
Strategic II, LLC, Camden Partners Hedge Fund I, LLC and any of their
Affiliates, Associates, successors and assigns to all or a substantial part
of their respective businesses of each of the foregoing and each of their
respective partners, stockholders, members, officers and directors.
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
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restrictions of this Amendment shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 4 to
the Rights Agreement to be duly executed as of the day and year first above
written.
NOBEL LEARNING COMMUNITIES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice Chairman
Attest:
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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STOCKTRANS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Attest:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Corporate Secretary
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