AMENDMENT TO RIGHTS AGREEMENT
Exhibit
4.1
AMENDMENT
TO RIGHTS
AGREEMENT
This
AMENDMENT TO RIGHTS AGREEMENT (this “Amendment”) is made
and entered into as of January 29, 2008, by and between NuCO2 Inc., a Florida
corporation (the “Company”), and
Continental Stock Transfer And Trust Company (the “Rights
Agent”). Except as otherwise provided herein, all capitalized
terms used herein shall have the meanings ascribed thereto in the Rights
Agreement (as defined below).
RECITALS
WHEREAS,
the Company and the Rights Agent are parties to a Rights Agreement, dated as
of
March 27, 2003 (the “Rights
Agreement”);
WHEREAS,
pursuant to Section 27(a) of the Rights Agreement, prior to the Distribution
Date, the Board of Directors of the Company (the “Board”) may amend
any
provision of the Rights Agreement without approval of any holders of Rights,
and
may direct the Rights Agent to so amend the Rights Agreement; and
WHEREAS,
the Distribution Date has not yet occurred and, subject to and in accordance
with the terms of this Amendment, the Company and the Rights Agent desire to
amend the Rights Agreement in certain respects, as more particularly set forth
below, and the Board has approved such amendments.
AGREEMENT
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the undersigned hereby agree to modify the Rights
Agreement as set forth below.
1. Amendments.
(a) Section
1 of the Rights Agreement, with respect to the definition of “Acquiring Person,”
shall be amended to delete the word “and” which appears between subclauses (iv)
and (v) of such definition. Section 1(a) shall be further amended by
adding the following language after the end of subclause (v) in the definition
of “Acquiring Person”:
“and
(vi)
NuCO2 Acquisition Corp., NuCO2 Merger Co., Aurora Management Partners LLC,
Aurora Equity Partners III L.P., Aurora Overseas Equity Partners III, L.P.,
and any of their respective Affiliates, if any such parties become the
Beneficial Owner of Common Shares as a result of the transactions contemplated
by the Agreement and Plan of Merger (the “Merger Agreement”), dated as of
January 29, 2008, by and among the Company, NuCO2 Acquisition Corp. and NuCO2
Merger Co., as the same may be amended with the approval of the
Company.”
(b) Section
3(a) of the Rights Agreement shall be amended by adding the following language
at the end of the first sentence of Section 3(a):
“;
provided,
however,
that for avoidance
of any doubt, no Distribution Date shall be deemed to have occurred as a result
of the transactions contemplated by the Merger Agreement, as the same may be
amended with the approval of the Company.”
(c) Section
11(a)(ii) of the Rights Agreement shall be amended by adding the following
language at the end of the first sentence of Section 11(a)(ii):
“;
provided,
however,
that for avoidance
of any doubt, no Section 11(a)(ii) Event shall be deemed to have occurred as
a
result of the transactions contemplated by the Merger Agreement, as the same
may
be amended with the approval of the Company.”
(d) Section
13(d) of the Rights Agreement shall be amended by adding the following sentence
at the end of Section 13(d):
“In
addition, notwithstanding anything in this Agreement to the contrary, no Section
13 Event shall be deemed to have occurred as a result of the transactions
contemplated by the Merger Agreement, as the same may be amended with the
approval of the Company.”
2. Confirmation
of the Rights
Agreement. Except as amended or modified hereby, all terms,
covenants and conditions of the Rights Agreement as heretofore in effect shall
remain in full force and effect and are hereby ratified and confirmed in all
respects.
3. Governing
Law. This Amendment shall be governed by and constituted in
accordance with the laws of the State of Florida applicable to contracts to
be
made and performed entirely within such State.
4. Counterparts. This
Amendment may be executed in any number of counterparts, each of which when
executed and delivered shall be deemed to be an original and all such
counterparts together, shall constitute one and the same
instrument.
2
IN
WITNESS WHEREOF, the parties hereto
have executed this Amendment as of the date first set forth above.
|
NUCO2
INC
|
|
|
By:
|
/s/ Xxxxxxx X. XxXxxxxxxx |
|
Name:
|
Xxxxxxx X. XxXxxxxxxx |
|
Title:
|
Chairman and Chief Executive Officer |
|
CONTINENTAL
STOCK TRANSFER AND TRUST COMPANY, as Rights Agent
|
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxx |
|
Name:
|
Xxxxxxx X. Xxxxxxxx |
|
Title:
|
Vice President |
