AMENDMENT NO. 1 TO THE RIGHTS AGREEMENT
Exhibit 4.1
AMENDMENT NO. 1 TO THE RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO THE RIGHTS AGREEMENT, dated as of July 2, 2009 (“Amendment No. 1”), is
made between Quest Resource Corporation, a Nevada corporation (the “Company”), and Computershare
Trust Company, N.A., as successor rights agent to UMB Bank, N.A. (the “Rights Agent”).
WITNESSETH
WHEREAS, on May 31, 2006, the Company and the Rights Agent entered into a Rights Agreement
(the “Rights Agreement”) to provide certain Rights (as defined in the Rights Agreement) to holders
of Common Stock (as defined in the Rights Agreement);
WHEREAS, the Company intends to enter into an Agreement and Plan of Merger (the “Merger
Agreement”) with New Quest Holdings Corp., a Delaware corporation (“Holdco”), Quest Midstream
Partners, L.P., a Delaware limited partnership (“QMLP”), Quest Energy Partners, L.P., a Delaware
limited partnership (“QELP”), Quest Midstream GP, LLC, a Delaware limited liability company
(“QMGP”), Quest Energy GP, LLC, a Delaware limited liability company (“QEGP”), Quest Resource
Acquisition Corp., a Delaware corporation that is a wholly owned direct subsidiary of Holdco (“QRC
Merger Sub”), Quest Energy Acquisition, LLC, a Delaware limited liability company that is a
wholly-owned direct subsidiary of Holdco (“QELP Merger Sub”), Quest Midstream Holdings Corp., a
Delaware corporation that is a wholly owned direct subsidiary of Holdco (“QMHC”), and Quest
Midstream Acquisition, LLC, a Delaware limited liability company that is a wholly-owned direct
subsidiary of QMHC (“QMLP Merger Sub”), which provides for, among other things, the merger of QRC
Merger Sub with and into the Company (the “QRC Merger”), subject to stockholder approval and other
terms and conditions. QMHC, QRC Merger Sub, QELP Merger Sub and QMLP Merger Sub are sometimes
referred to herein collectively as the “Merger Subs” and each a “Merger Sub.”
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company and the Rights Agent may
from time to time supplement or amend the Rights Agreement in accordance with the provisions of
Section 27 thereof; and
WHEREAS, the Board of Directors of the Company has determined that it is in the best interests
of the Company and its stockholders and consistent with the objectives of the Board of Directors in
adopting the Rights Agreement to amend the Rights Agreement to except the Merger Agreement and the
actions and transactions contemplated thereby and effected in connection therewith from the Rights
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth,
the parties hereby agree as follows:
1. Subsection (a) of Section 1 is hereby amended by adding the following at the end of subsection
(a) of Section 1:
Notwithstanding the foregoing or any provision to the contrary in this Agreement, none of
New Quest Holdings Corp., a Delaware corporation (“Holdco”), Quest Midstream Partners, L.P.,
a Delaware limited partnership (“QMLP”), Quest Energy Partners, L.P., a Delaware limited
partnership (“QELP”), Quest Midstream GP, LLC, a Delaware limited liability company
(“QMGP”), Quest Energy GP, LLC, a Delaware limited liability company (“QEGP”), Quest
Resource Acquisition Corp., a Delaware corporation that is a wholly owned direct subsidiary
of Holdco (“QRC Merger Sub”), Quest Energy Acquisition, LLC, a Delaware limited liability
company that is a wholly-owned direct subsidiary of Holdco (“QELP Merger Sub”), Quest
Midstream Holdings Corp., a Delaware corporation that is a wholly owned direct subsidiary of
Holdco (“QMHC”), and Quest Midstream Acquisition, LLC, a Delaware limited liability company
that is a wholly-owned direct subsidiary of QMHC (“QMLP Merger Sub;” QMHC, QRC Merger Sub,
QELP Merger Sub and QMLP Merger Sub are sometimes referred to herein collectively as the
“Merger Subs” and each a “Merger Sub), or any of their respective Subsidiaries, Affiliates,
Associates, stockholders or unitholders shall be deemed to be an Acquiring Person by virtue
of the approval, execution, delivery or performance of the Agreement and Plan of Merger, to
be entered into as of July 2, 2009 (as the same may be amended from time to time, the
“Merger Agreement”), by and among the Company, Holdco, QMLP, QELP, QMGP, QEGP and the Merger
Subs or any other Transaction Document (as defined in the Merger Agreement), or the
consummation of any of the transactions contemplated thereby, including, without limitation,
the merger of QRC Merger Sub with and into the Company or the announcement of any of the
foregoing (each of the foregoing, an “Exempt Event”).
2. The definition of “Section 11(a)(ii) Event” in Section 1(ll) of the Rights Agreement is hereby
amended by adding the following sentence at the end thereof:
Notwithstanding anything in this Agreement to the contrary, a Section 11(a)(ii) Event shall
not be deemed to have occurred as a result of any Exempt Event.
3. The definition of “Section 13 Event” in Section 1(nn) of the Rights Agreement is hereby amended
by adding the following sentence at the end thereof:
Notwithstanding anything in this Agreement to the contrary, a Section 13 Event shall not be
deemed to have occurred as the result of any Exempt Event.
4. The definition of “Stock Acquisition Date” in Section 1(pp) of the Rights Agreement is hereby
amended by adding the following sentence at the end thereof:
Notwithstanding anything in this Agreement to the contrary, a Stock Acquisition Date
shall not be deemed to have occurred as a result of any Exempt Event.
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5. The definition of “Triggering Event” in Section 1(vv) of the Rights Agreement is hereby amended
by adding the following sentence at the end thereof:
Notwithstanding anything in this Agreement to the contrary, a Triggering Event shall
not be deemed to have occurred as the result of any Exempt Event.
6. Section 2 of the Rights Agreement is hereby amended by adding the following language to the end
of the second sentence thereof: “, upon ten (10) days’ prior written notice to the Rights Agent.”
7. Section 3(a) of the Rights Agreement is hereby amended by adding the following sentence at the
end thereof:
Notwithstanding anything in this Agreement to the contrary, a Distribution Date
shall not be deemed to have occurred as a result of any Exempt Event.
8. Clause (i) of the first sentence in Section 7(a) of the Rights Agreement is hereby restated in
its entirety as follows:
(i) the earlier of the time immediately prior to the Effective Time (as defined in the
Merger Agreement) and the Close of business on May 31, 2016 (the “Final Expiration Date”),
9. Section 18 of the Rights Agreement is hereby amended by deleting the following language from the
second sentence thereof: “(each as determined by a final, non-appealable order, judgment, decree or
ruling of a court of competent jurisdiction).”
10. Section 20(c) of the Rights Agreement is hereby amended by deleting the following language from
the first sentence thereof: “(each as determined by a final, non-appealable order, judgment, decree
or ruling of a court of competent jurisdiction).”
11. Section 20(i) of the Rights Agreement is hereby amended by deleting the following language:
“(each as determined by a final, non-appealable order, judgment, decree or ruling of a court of
competent jurisdiction).”
12. Section 21 of the Rights Agreement is hereby amended by adding the following sentence after the
existing first sentence thereof:
In the event the transfer agency relationship in effect between the Company and the Rights
Agent terminates, the Rights Agent will be deemed to have resigned automatically and be
discharged from its duties under this Agreement as of the effective date of such
termination, and the Company shall be responsible for sending any required notice.
13. Section 26 of the Rights Agreement is hereby amended to delete the Rights Agent notice
information in its entirety and replace it with the following:
Computershare Trust Company, N.A.
000 Xxxxxx Xxxxxx
000 Xxxxxx Xxxxxx
0
Xxxxxx, XX 00000
Attention: Client Services
Attention: Client Services
14. Section 30 of the Rights Agreement is hereby amended to add the following sentence at the end
thereof:
Nothing in this Agreement shall be construed to give any holder of Rights (and, prior to the
Distribution Date, registered holders of the Common Stock) or any other Person any legal or
equitable right, remedy or claim under this Agreement by virtue of or in connection with any
Exempt Event.
15. A new Section 35 of the Rights Agreement is hereby added, reading in its entirety as follows:
The Company shall notify the Rights Agent of the termination of this Agreement as soon as
possible following the occurrence of the Effective Time.
16. A new Section 36 of the Rights Agreement is hereby added, reading in its entirety as follows:
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.
17. Except as set forth in this Amendment No. 1, the Rights Agreement shall not otherwise be
amended and shall continue in full force and effect in accordance with its terms.
18. This Amendment No. 1 may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Amendment No. 1 shall become effective when each party hereto shall have received
a counterpart hereof signed by all of the other parties hereto. Until and unless each party has
received a counterpart hereof signed by the other party hereto, this Amendment No. 1 shall have no
effect and no party shall have any right or obligation hereunder (whether by virtue of any other
oral or written agreement or other communication). A signature to this Amendment No. 1 transmitted
electronically shall have the same authority, effect, and enforceability as an original signature.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to the Rights
Agreement to be duly executed as of the day and year first above written.
| QUEST RESOURCE CORPORATION |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Chief Executive Officer and President | |||
| COMPUTERSHARE TRUST COMPANY, N.A. |
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| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Manager, Contract Administration | |||
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