AMENDMENT NO. 2 TO AMENDED AND RESTATED PREFERRED STOCK RIGHTS AGREEMENT
Exhibit 4.4
AMENDMENT NO. 2 TO
AMENDED AND RESTATED PREFERRED STOCK RIGHTS AGREEMENT
This
AMENDMENT NO. 2, dated as of May 8, 2007 (this “Amendment”) amends that certain Amended
and Restated Preferred Stock Rights Agreement, dated as of November 22, 2004, as amended by
Amendment No. 1, dated December 14, 2006 (the “Rights Agreement”), between Catalytica Energy
Systems, Inc., a Delaware corporation (the “Company”), and Mellon Investor Services LLC, a New
Jersey limited liability company, as Rights Agent (the “Rights Agent”). Capitalized terms used but
not defined herein have the meanings ascribed to them in the Rights Agreement.
RECITALS
A. The Company and the Rights Agent have previously executed and entered into the Rights
Agreement;
B. Section 27 of the Rights Agreement provides in pertinent part that prior to the occurrence
of a Distribution Date, the Company may amend the Rights Agreement in any respect without the
approval of any holders of Rights and that upon the delivery of a certificate from an appropriate
officer of the Company that states that the proposed amendment is in compliance with the terms of
such Section 27, and provided such amendment does not change or increase the Rights Agent’s rights,
duties or obligations, the Rights Agent shall execute such amendment;
C. The Company intends to enter into a Contribution and Merger Agreement (as it may be amended
or supplemented from time to time, the “Contribution and Merger Agreement”) by and among the
Company, Renegy Holdings, Inc., a Delaware corporation and wholly-owned subsidiary of the Company
(“Holdings”), Snowflake Acquisition Corporation, a Delaware corporation and wholly-owned subsidiary
of Holdings (“Merger Sub”), Renegy, LLC, an Arizona limited liability company (“Renegy”), Renegy
Trucking, LLC, an Arizona limited liability company (“Renegy Trucking”), Snowflake White Mountain
Power, LLC, an Arizona limited liability company (“Snowflake” and, together with Renegy and Renegy
Trucking, the “Renegy Companies”), Xxxxxx X. Xxxxxxx (“X. Xxxxxxx”), Xxxxxxx X. Xxxxxxx (“X.
Xxxxxxx”) and the Xxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx Revocable Trust (the “Worsley Trust”
and, together with X. Xxxxxxx and X. Xxxxxxx, “Xxxxxxx”); and
D. On May 2, 2007, the Board of Directors of the Company approved and deemed desirable an
amendment to the Rights Agreement to provide that: (i) neither the execution and delivery of the
Contribution and Merger Agreement nor the performance of the parties’ respective obligations
thereunder will result in Worsley, the Renegy Companies or any of their Affiliates becoming an
“Acquiring Person” or the occurrence of a “Distribution Date” pursuant to the terms of the Rights
Agreement; and (ii) the Final Expiration Date will occur immediately prior to the Effective Time
(as defined in the Contribution and Merger Agreement).
NOW, THEREFORE, in consideration of the promises and the mutual agreements herein set forth,
the parties hereby agree as follows:
1. Section 1(a) of the Rights Agreement is hereby amended and restated in its entirety to read
as follows:
“(a) “Acquiring Person” shall mean any Person, who or which, together with all
Affiliates and Associates of such Person, shall be the Beneficial Owner of 20% or more of
the
Common Shares then outstanding, but shall not include the Company, any Subsidiary of
the Company or any employee benefit plan of the Company or of any Subsidiary of the Company,
or any entity holding Common Shares for or pursuant to the terms of any such plan; provided,
however, that Xxxxxx Xxxxxxx Capital Partners III, L.P. (“MSCP”) shall not be deemed an
“Acquiring Person” until such time as MSCP shall be the Beneficial Owner of 21.5% or more of
the Company’s Common Shares then outstanding (not including any Common Shares held by any
MSCP affiliate for market-making purposes or in the ordinary course of such MSCP affiliate’s
asset management operations) or announces a tender offer to acquire 21.5% or more of the
Company’s Common Shares then outstanding (collectively, the “Limitations”). Notwithstanding
the foregoing, no Person shall be deemed to be an Acquiring Person as the result of an
acquisition of Common Shares by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of shares beneficially owned by such Person
to 20% or more of the Common Shares of the Company then outstanding (or with respect to
MSCP, increases such number of shares to 21.5% or more of the Common Shares of the Company
then outstanding; provided, however, that if a Person shall become the Beneficial Owner of
20% or more of the Common Shares of the Company then outstanding (or with respect to MSCP,
shall become the Beneficial Owner of 21.5% or more of the Common Shares of the Company then
outstanding) by reason of share purchases by the Company and shall, after such share
purchases by the Company, become the Beneficial Owner of any additional Common Shares of the
Company (other than pursuant to a dividend or distribution paid or made by the Company on
the outstanding Common Shares in Common Shares or pursuant to a split or subdivision of the
outstanding Common Shares), then such Person shall be deemed to be an Acquiring Person
unless upon becoming the Beneficial Owner of such additional Common Shares of the Company
such Person does not beneficially own 20% or more of the Common Shares of the Company then
outstanding (or with respect to MSCP, does not beneficially own 21.5% or more of the Common
Shares of the Company then outstanding). Notwithstanding the foregoing, (i) if the
Company’s Board of Directors determines in good faith that a Person who would otherwise be
an “Acquiring Person,” as defined pursuant to the foregoing provisions of this paragraph
(a), has become such inadvertently (including, without limitation, because (A) such Person
was unaware that it beneficially owned a percentage of the Common Shares that would
otherwise cause such Person to be an “Acquiring Person,” as defined pursuant to the
foregoing provisions of this paragraph (a), or (B) such Person was aware of the extent of
the Common Shares it beneficially owned but had no actual knowledge of the consequences of
such beneficial ownership under this Agreement) and without any intention of changing or
influencing control of the Company, and if such Person divested or divests with reasonable
promptness (as determined in the discretion of the Board of Directors of the Company) a
sufficient number of Common Shares so that such Person would no longer be an “Acquiring
Person,” as defined pursuant to the foregoing provisions of this paragraph (a), then such
Person shall not be deemed to be or to have become an “Acquiring Person” for any purposes of
this Agreement; and (ii) if, as of the date hereof, any Person is the Beneficial Owner of
20% or more of the Common Shares outstanding (or with respect to MSCP, is the Beneficial
Owner of 21.5% or more of the Common Shares outstanding), such Person shall not be or become
an “Acquiring Person,” as defined pursuant to the foregoing provisions of this paragraph
(a), unless and until such time as such Person shall become the Beneficial Owner of
additional Common Shares (other than pursuant to a dividend or distribution paid or made by
the Company on the outstanding Common Shares in Common Shares or pursuant to a split or
subdivision of the outstanding Common Shares), unless, upon becoming the Beneficial Owner of
such additional Common Shares, such Person is not then the Beneficial Owner of 20% or more
of the Common Shares then outstanding (or with respect to MSCP, is not then the Beneficial
Owner of 21.5% or more of the Common Shares then outstanding). In its determination of
whether a Person has divested or shall divest with reasonable promptness in accordance with
this paragraph (a), the Board of Directors of the Company may take into account such factors
as it deems relevant, which may in the discretion of the Board of Directors include the
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potential impact of the divestiture by such Person on the Company’s stock price, any
liability of such Person which may result from such divestment arising in connection with
Section 16 of the Exchange Act and any undertakings by such Person, which the Board of
Directors of the Company deems reasonably necessary to ensure compliance with this paragraph
(a). Notwithstanding the foregoing, none of Renegy, LLC, an Arizona limited liability
company (“Renegy”), Renegy Trucking, LLC, an Arizona limited liability company (“Renegy
Trucking”), Snowflake White Mountain Power, LLC, an Arizona limited liability company
(“Snowflake” and, together with Renegy and Renegy Trucking, the “Renegy Companies”), Xxxxxx
X. Xxxxxxx (“X. Xxxxxxx”), Xxxxxxx X. Xxxxxxx (“X. Xxxxxxx”) and the Xxxxxx X. Xxxxxxx and
Xxxxxxx X. Xxxxxxx Revocable Trust (the “Worsley Trust” and, together with X. Xxxxxxx and X.
Xxxxxxx, “Xxxxxxx”), or any of their respective Affiliates, Associates or Subsidiaries,
shall be deemed to be an “Acquiring Person,” as defined pursuant to the foregoing provisions
of this paragraph (a) by virtue of: (A) the approval, execution, delivery, announcement or
performance of the Contribution and Merger Agreement by and among the Company, Renegy
Holdings, Inc., a Delaware corporation and wholly-owned subsidiary of the Company
(“Holdings”), Snowflake Acquisition Corporation, a Delaware corporation and wholly-owned
subsidiary of Holdings (“Merger Sub”), the Renegy Companies and Worsley (as it may be
amended or supplemented from time to time, the “Contribution and Merger Agreement”), (B) the
acquisition of Beneficial Ownership of the Contribution Shares, the Warrants or the Warrant
Shares (as each term is defined in the Contribution and Merger Agreement) by the Worsley
Trust pursuant to the Contribution and Merger Agreement, or (C) the consummation of the
Merger or the Contribution (as each term is defined in the Contribution and Merger
Agreement) or the transactions expressly contemplated by the Contribution and Merger
Agreement (each of the events set forth in the foregoing clauses (A) to (C), an “Exempt
Event”; provided, however, that if the Contribution and Merger Agreement has terminated
prior to the consummation of the Closing (as defined in the Contribution and Merger
Agreement), then the events set forth in the foregoing clauses (A) to (C) shall cease to be
an Exempt Event).”
2. Section 1(k) of the Rights Agreement is hereby amended by adding the following sentence to
the end thereof:
“Notwithstanding the foregoing, a Distribution Date shall not be deemed to have occurred as
a result of any Exempt Event.”
3. Section 1(p) of the Rights Agreement is hereby amended and restated in its entirety to read
as follows:
“(p) “Expiration Date” shall mean the earliest to occur of: (i) the Close of Business
on the Final Expiration Date, (ii) the Redemption Date, (iii) the time at which the Board of
Directors orders the exchange of the Rights as provided in Section 24 hereof, and (iv) the
time that is immediately prior to the Effective Time (as defined in the Contribution and
Merger Agreement).”
4. Section 1(gg) of the Rights Agreement is hereby amended by adding the following sentence to
the end thereof:
“Notwithstanding the foregoing, a Shares Acquisition Date shall not be deemed to have
occurred as a result of any Exempt Event.”
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5. The second paragraph of Section 26 is hereby amended to read as follows:
“Subject to the provisions of Section 21 hereof, any notice or demand authorized by
this Agreement to be given or made by the Company or by the holder of any Rights Certificate
to or on the Rights Agent shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed (until another address is filed in writing with the Company) or
by facsimile transmission as follows:
Mellon Investor Services LLC
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Client Relationship Executive
Facsimile No.: (000) 000-0000
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Client Relationship Executive
Facsimile No.: (000) 000-0000
with a copy to:
Mellon Investor Services LLC
000 Xxxxxxxxxx Xxxx.
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000”
000 Xxxxxxxxxx Xxxx.
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000”
6. A new Section 35 is hereby added to the Rights Agreement, to read as follows:
“Section 35. Termination. Notwithstanding anything to the contrary in this
Agreement, this Agreement shall expire and terminate immediately prior to the Effective Time
(as defined in the Contribution and Merger Agreement) (the “Termination Date”).
The Company shall provide the Rights Agent with prior written notice of the Effective Time
and the Termination Date. The Rights Agent shall not be deemed to have any knowledge of the
Effective Time or the Termination Date unless and until such notice is received.”
7. 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 applicable to contracts to be made and performed entirely within such State;
provided, however, that all provisions regarding the rights, duties and obligations of the Rights
Agent shall be governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed entirely within such State.
8. No Other Changes. Except as expressly amended, modified or superseded by this
Amendment, the terms of the Rights Agreement shall remain in full force and effect.
9. Counterparts. This Amendment may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute one and the same instrument.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, this Amendment has been duly executed by the Company and the Rights Agent
as of the day and year first written above.
| COMPANY | CATALYTICA ENERGY SYSTEMS, INC. | |||
| a Delaware Corporation | ||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | Chief Executive Officer and Chief Financial Officer | |||
| RIGHTS AGENT | MELLON INVESTOR SERVICES LLC | |||
| a New Jersey limited liability company | ||||
| By: | /s/ Xxx Xxxx | |||
| Name: | Xxx Xxxx | |||
| Title: | Client Relationship Executive | |||
