First Amendment to Rights Agreement
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Exhibit
4.1
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First
Amendment to Rights Agreement
This First Amendment to Rights
Agreement is made and entered into this 12th day of September, 2008 (the
“Amendment”), by and between Chesapeake Utilities Corporation, a Delaware
corporation (the “Company”), and Computershare Trust Company, N.A., a federally
chartered trust company, as successor rights agent to BankBoston, N.A. (the
“Rights Agent”).
Recitals:
WHEREAS, the Company and the Rights
Agent executed that certain Rights Agreement dated as of August 20, 1999 (the
“Original Agreement”) pursuant to which the Company’s stockholders were granted
certain rights to acquire shares of the Company’s
Series A Participating
Cumulative Preferred Stock, par value $.01 per share
(collectively, the "Preferred Stock") under the circumstances and in accordance
with the terms and conditions set forth in the Original Agreement;
and
WHEREAS, the Company and the Rights
Agent desire to amend certain terms and conditions of the Original Agreement as
set forth herein.
NOW THEREFORE, in accordance with the
terms of the Original Agreement, the parties hereby agree as
follows:
1. Amendments to Original
Agreement.
(a) Section
2 of the Original Agreement is hereby amended by deleting the following language
in its entirety: “and the holders of the Rights (who in accordance with Section
3 hereof, shall prior to the Distribution Date also be the holders of Common
Shares)”.
(b) Section
7(a) of the Original Agreement is hereby amended by changing the Final
Expiration Date, as defined therein, to August 20, 2019.
(c) Section
7(b) of the Original Agreement is hereby amended by changing the price therein
from $54.56 to $105.
(d) Section
21 of the Original Agreement is hereby amended by deleting the following
language in its entirety:
“Any
successor Rights Agent, whether appointed by the Corporation or by such a
court, shall be a corporation organized and doing business under the
laws of the United States or of the State of New York (or of any other state of
the United States so long as such corporation is authorized to do business as a
banking institution in the State of New York), in good standing, having an
office in the State of New York which is authorized under such laws to exercise
corporate trust or stock transfer powers and is subject to supervision or
examination by federal or state authority and which has at the time of
its appointment as Rights Agent a combined capital and surplus of at
least $100,000,000.”
and
replacing it with the following:
“Any
successor Rights Agent, whether appointed by the Corporation or by such a
court, shall be a corporation or trust company organized and doing
business under the laws of the United States or of the State of New York (or of
any other state of the United States so long as such corporation is authorized
to do business as a banking institution in the State of New York), in good
standing, having an office in the State of New York, which is authorized under
such laws to exercise corporate trust or stock transfer powers and is subject to
supervision or examination by federal or state authority and which has at the
time of its appointment as Rights Agent, either individually or combined with an
Affiliate, a combined capital and surplus of at least
$100,000,000.”
(e) Section
26 of the Original Agreement is hereby amended by deleting the Rights Agent
address information in its entirety and replacing it with the
following:
“Computershare Trust Company,
N.A.
000 Xxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attention: Client
Services”
(f) The
Original Agreement is hereby amended by inserting the following new Section
35:
“Section
35. Force
Majeure. Notwithstanding anything to the contrary contained
herein, the Rights Agent shall not be liable for any delays or failures in
performance resulting from acts beyond its reasonable control including, without
limitation, acts of God, terrorist acts, shortage of supply, breakdowns or
malfunctions, interruptions or malfunction of computer facilities, or loss of
data due to power failures or mechanical difficulties with information storage
or retrieval systems, labor difficulties, war, or civil unrest.”
2. Counterparts. This
Amendment may be executed by the parties hereto in several counterparts, each of
which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
3. Governing
Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER THE LAWS OF THE STATE OF DELAWARE AND FOR ALL PURPOSES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE OF DELAWARE
APPLICABLE TO CONTRACTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH
STATE.
4. Successors and
Assigns. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns.
5. No Other
Modification. Except to the extent specifically provided to
the contrary in this Amendment, all terms and conditions of the Original
Agreement shall remain in full force and effect, without modification or
limitation. In the event of any conflict or inconsistency between the
Original Agreement and this Amendment, this Amendment will control and supersede
to the extent of such conflict or inconsistency.
IN WITNESS WHEREOF, the parties
hereto have caused this Amendment to be duly executed as of the day and year
first above written.
CHESAPEAKE UTILITIES
CORPORATION
By: /s/ Xxxx X.
Xxxxxx
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Xxxx X. Xxxxxx
Vice President, Corporate Secretary
and Treasurer
COMPUTERSHARE TRUST COMPANY,
N.A,
as Rights Agent
By: /s/ Xxxxxxxxx
Xxxxxxxx
——————————————
Xxxxxxxxx Xxxxxxxx
Managing
Director