FIRST AMENDMENT TO RIGHTS AGREEMENT
Exhibit
4.1
FIRST
AMENDMENT TO RIGHTS AGREEMENT
This
FIRST AMENDMENT
(this “Amendment”)
dated
November 21, 2005 to the RIGHTS AGREEMENT dated November 27, 2001 (the
“Rights
Agreement”),
between Boots & Xxxxx International Well Control, Inc., a Delaware
corporation (the “Company”),
and
American Stock Transfer & Trust Company, as Rights Agent (the “Rights
Agent”).
W
I T N E
S S E T H
WHEREAS,
Section 27 of the Rights Agreement provides that the Company may and the Rights
Agent shall, if the Company so directs, supplement or amend any provision of
the
Rights Agreement in any respect without the approval of any holders of any
Rights Certificates (as defined in the Rights Agreement); and
WHEREAS,
the Company, HWC Acquisition, LLC, a Delaware limited liability company, HWC
Merger Corporation, a Delaware corporation, HWC Energy Services, Inc., a
Delaware corporation (“Seller”),
and
Hydraulic Well Control, LLC, a Delaware limited liability company, have entered
into that certain Transaction Agreement dated November 21, 2005 (the
“Transaction
Agreement”),
pursuant to which the Company will acquire certain subsidiaries of Seller;
and
WHEREAS,
pursuant to the terms of the Transaction Agreement and subject to the approval
of the Company’s stockholders, the Company shall issue to the Seller a total of
26,462,137 shares of common stock, par value $0.0001 per share, of the Company,
representing approximately 46% of the outstanding shares of common stock of
the
Company; 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 Transaction
Agreement to amend the Rights Agreement to, among other things, except the
Transaction Agreement and the transactions contemplated therein from the Rights
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:
SECTION
1.
Defined Terms; References.
Unless
otherwise specifically defined herein, each term used herein that is defined
in
the Rights Agreement has the meaning assigned to such term in the Rights
Agreement. Each reference to “hereof”, “hereunder”, “herein” and “hereby” and
each other similar reference and each reference to “this Agreement” and each
other similar reference contained in the Rights Agreement shall, after this
Amendment becomes effective, refer to the Rights Agreement as amended hereby.
SECTION
2. Amendments
to the Rights Agreement.
(a)
Section
1(b) of the Rights Agreement is hereby amended by inserting the following
provision at the end of Section 1(b):
“Notwithstanding
the foregoing or any provision to the contrary in this Agreement, (i) no Oil
States Person is, nor shall any Oil States Person be deemed to be, an Acquiring
Person by virtue of (A) the acquisition, or the right to acquire, Beneficial
Ownership of Common Stock as a result of such Oil States Person’s approval,
execution, delivery or performance of the Transaction Agreement (the
“Transaction
Agreement”),
dated
as of November 21, 2005 by and among the Company, HWC
Acquisition, LLC, a Delaware limited liability company, HWC Merger Corporation,
a Delaware corporation, HWC Energy Services, Inc., a Delaware corporation,
and
Hydraulic Well Control, LLC, a Delaware limited liability company, (B)
the
consummation of the HWC LLC Merger or the Upstream Merger (each as defined
in
the Transaction Agreement) or the taking of any action in furtherance thereof,
(C) the consummation of any other transaction contemplated in the Transaction
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 Transaction Agreement by any of the parties nor the
consummation of the transactions contemplated therein shall in any respect
give
rise to any provision of the Agreement becoming effective; (D) the Beneficial
Ownership of Common Stock by (1) directors, officers or employees of Oil States
International, Inc. or its subsidiaries or (2) any of the representatives of
HWC
Energy Services, Inc. or its Affiliates who serve as directors of the Company;
(E) the acquisition of Beneficial Ownership by all Oil States Persons in the
aggregate of up to 1% of the then outstanding Common Stock not otherwise
excluded under clauses (A), (B), (C), (D), (F) or (G); (F) the receipt or other
acquisition of Beneficial Ownership of Common Stock or other capital stock
of
the Company issued on or after the date hereof in respect of, in exchange for,
or upon conversion of any of the shares of Common Stock referred to in clauses
(A) through (E) above pursuant to a merger, stock split, dividend, distribution,
recapitalization or otherwise or (G) any increase in Beneficial Ownership as
a
result of any action by the Company which reduces the number of shares of Common
Stock outstanding; and (ii) no Oil States Transferee shall be deemed to be
an
Acquiring Person by virtue of (A) the acquisition of Beneficial Ownership of
25%
or less of the then outstanding Common Stock directly from an Oil States Person,
(B) the receipt or other acquisition of Beneficial Ownership of Common Stock
or
other capital stock of the Company issued on or after the date hereof in respect
of, in exchange for, or upon conversion of any of the shares of Common Stock
acquired by such Oil States Transferee from any Oil States Person, pursuant
to a
merger, stock split, dividend, distribution, recapitalization or otherwise
or
(C) any increase in Beneficial Ownership as a result of any action by the
Company which reduces the number of shares of Common Stock
outstanding.”
(b)
Section
1(j) of the Rights Agreement is hereby amended by inserting the following
provision at the end of Section 1(j):
“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 Transaction Agreement, the consummation of the HWC LLC Merger
or the Upstream Merger or of any other transaction contemplated in the Merger
Agreement or the taking of any action in furtherance thereof.”
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(c)
Section
1(t) of the Rights Agreement is hereby amended by inserting the following
provision at the end of Section 1(t):
“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 Transaction Agreement, the consummation of the HWC LLC
Merger or the Upstream Merger or of any other transaction contemplated in the
Transaction Agreement or the taking of any action in furtherance
thereof.”
(d)
Section
1(w) of the Rights Agreement is hereby amended by inserting the following
provision at the end of Section 1(w):
“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 Transaction Agreement, the consummation of the HWC LLC Merger
or the Upstream Merger or of any other transaction contemplated in the
Transaction Agreement or the taking of any actions in furtherance
thereof.”
(e)
The
following additional definitions are hereby added to Section 1 of the Rights
Agreement:
“(x)
“Oil
States Person” shall mean (i) Oil States International, Inc., a Delaware
corporation, (ii) HWC Energy Services, Inc., a Delaware corporation, (iii)
any
of the Affiliates or Associates of the foregoing Persons, (iv) any director,
officer or employee of Oil States International, Inc. or its subsidiaries or
(v)
any of the representatives of HWC Energy Services, Inc. or its Affiliates who
serve as directors of the Company.”
“(y)
“Oil
States Transferee” shall mean any Person who or which, together with all
Affiliates and Associates of such Person:
(i)
acquires
directly from an Oil States Person in any one transaction Common Stock such
that, after giving effect to such acquisition, such Person is the Beneficial
Owner of 15% or more of the outstanding Common Stock; and
(ii) immediately
prior to such acquisition beneficially owned less than 1% of all then
outstanding Common Stock. Any Oil States Transferee who subsequent to the date
of this amendment becomes the Beneficial Owner of less than 15% of the
outstanding Common Stock shall cease to be an Oil States
Transferee.”
SECTION
3. Entire
Agreement; Restatement. Other
than as expressly amended by Section 2 of this Amendment, the Rights Agreement
shall remain in full force and effect unaffected hereby. The Rights Agreement,
as amended by this Amendment, is hereinafter referred to as the “Rights
Agreement,” and the parties hereto hereby agree that the Rights Agreement may be
restated to reflect the amendments provided for in this Amendment.
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SECTION
4. Termination
of Merger Agreement.
If for
any reason the Transaction Agreement is terminated and the transactions
contemplated therein are abandoned, then this Amendment shall immediately
thereafter be of no further force and effect and the Rights Agreement shall
remain exactly as it existed immediately prior to execution of this
Amendment.
SECTION
5. Governing
Law. This
Amendment shall be governed by and construed in accordance with the laws of
the
State of Delaware without regard to any applicable conflicts of law rules,
except 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
6. Counterparts.
This
Amendment 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.
SECTION
7. Effectiveness.
This
Amendment shall become effective upon execution by each of the parties hereto
of
a counterpart hereof.
SECTION
8. 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.
[signature
page to follow]
4
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the date first above written.
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BOOTS
& XXXXX INTERNATIONAL
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WELL
CONTROL, INC.
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By:
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/s/
Xxxxx Xxxxxxxxxx
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Xxxxx
Xxxxxxxxxx
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Chief
Executive Officer
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AMERICAN
STOCK TRANSFER
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&
TRUST COMPANY
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By:
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/s/
Xxxxxxx X. Xxxxxx
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Xxxxxxx
X. Xxxxxx
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Vice
President
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