AMENDMENT NO. 2 TO AMENDED RIGHTS AGREEMENT
Exhibit
4.1
AMENDMENT
NO. 2 TO AMENDED RIGHTS AGREEMENT
THIS AMENDMENT NO. 2 (this “Amendment”)
to the amended Rights Agreement (the “Rights Agreement”), effective as of
January 18, 2005, by and between Rentech, Inc., a Colorado corporation (the
“Company”), and Computershare Trust Company, N.A., successor in interest to
Computershare Trust Company, Inc., as Rights Agent (the “Rights Agent”) is
effective as of March 12, 2008.
RECITALS
WHEREAS, the Board of
Directors has amended the Rights Agreement as set forth herein to increase the
Beneficial Ownership threshold for a Person to become an Acquiring Person from
15% of the Company’s Common Shares to 17.5% of the Company’s Common Shares and
to increase the threshold for a tender of exchange offer to trigger the issuance
of Rights Certificates from 15% to 17.5%; and
WHEREAS, in accordance with
Section 27 of the Rights Agreement, this Amendment is entered into by the
Company and the Rights Agent.
AGREEMENT
NOW, THEREFORE, in
consideration of the foregoing recitals and the mutual covenants herein set
forth and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and intending to be legally bound, the parties
hereto hereby agree as follows:
1. Definitions. Unless
otherwise defined herein, all terms defined in the Rights Agreement have the
same meaning when used herein.
2. Amendment to Rights
Agreement.
(a) Amendment
to Section 1. The definition of “Acquiring Person” set forth
in Section 1(a) of the Rights Agreement is herby amended and restated in its
entirety as follows:
“Acquiring Person” shall mean
any Person (as such term is hereinafter defined) who or which, together with all
Affiliates and Associates (as such terms are hereinafter defined) of such
Person, shall be the Beneficial Owner (as such term is hereinafter defined) of
17.5% or more of the Common Shares of the Company then outstanding, but shall
not include the Company, any Subsidiary (as such term is hereinafter defined) of
the Company, any employee benefit plan of the Company or any Subsidiary of the
Company, or any trust or other entity holding Common Shares for or pursuant to
the terms of any such plan. Notwithstanding the foregoing, no Person
shall become an “Acquiring Person” for any purpose of this Agreement: (i) 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 17.5% or more of the Common Shares of the
Company then outstanding; provided, however, that if a Person shall become the
Beneficial Owner of 17.5% 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, then such Person shall be deemed to be an
“Acquiring Person”; (ii) as the result of one or more acquisitions of Beneficial
Ownership of Common Shares of the Company from the Company or any Subsidiary of
the Company, which, together with Common Shares of the Company then Beneficially
Owned by the Person, aggregate 17.5% or more of the Common Shares of the Company
then outstanding, unless and until thereafter the Person acquires Beneficial
Ownership of any additional Common Shares from anyone other than the Company or
any Subsidiary of the Company and the Person’s aggregate Beneficial Ownership is
17.5% or more of the Common Shares of the Company then outstanding, in which
event the Person shall become an “Acquiring Person”; (iii) if the Board of
Directors of the Company 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, and such Person
divests as promptly as practicable 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).
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(b) Amendment
to Section
2. Section 2 of the Rights Agreement is hereby amended by
adding the following at the end of the last sentence thereof:
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“upon
ten (10) days’ prior written notice to the Rights Agent. The
Rights Agent shall have no duty to supervise, and shall in no event be
liable for, the acts or omissions of any such Co-Rights
Agent.”
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(c) Amendment
to Section 3. Section 3(a) of the Rights Agreement is hereby
amended
and restated in its entirety as follows:
Until the
earlier of (i) the tenth day after the Share Acquisition Date or (ii) the tenth
business day (or such later date as may be determined by action of the Board of
Directors of the Company prior to such time as any Person becomes an Acquiring
Person) after the date of the commencement by any Person (other than the
Company, any Subsidiary of the Company, any employee benefit plan of the Company
or of any Subsidiary of the Company or any trust or other entity holding Common
Shares for or pursuant to the terms of any such plan) of, or of the first public
announcement of the intention of any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or of any
Subsidiary of the Company or any trust or other entity holding Common Shares for
or pursuant to the terms of any such plan) to commence, a tender or exchange
offer the consummation of which would Result in any Person becoming the
Beneficial Owner of Common Shares aggregating 17.5% or more of the then
outstanding Common Shares, irrespective of whether any shares are actually
purchased pursuant to any such offer (including any such date which is after the
date of this Agreement and prior to the issuance of the Rights; the earlier of
such dates being herein referred to as the “Distribution Date”), (x) the
Rights will be evidenced (subject to the provisions of Section 3(b) hereof) by
the certificates for Common Shares registered in the names of the holders
thereof (which certificates shall also be deemed to be Right Certificates) and
not by separate Right Certificates, and (y) the right to receive Right
Certificates will be transferable only in connection with the transfer of Common
Shares. As soon as practicable after the Distribution Date, the
Company will prepare and execute, the Rights Agent will countersign, and the
Company will send or cause to be sent (and the Rights Agent will, if requested,
send) by first-class, postage-prepaid mail, to each record holder of Common
Shares as of the close of business on the Distribution Date, at the address of
such holder shown on the records of the Company, a Right Certificate (a “Right Certificate”),
evidencing one Right for each Common Share so held. As of and after
the Distribution Date, the Rights will be evidenced solely by such Right
Certificates.
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(d) Amendment
to Section 21. Section 21 of the Rights Agreement is amended
to insert the following new sentence after the existing first
sentence:
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“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.”
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(e) Amendment
to Section 21. Section 21 of the Rights Agreement is further
amended
to insert the term “, along with its Affiliates,” prior to the term, “a combined
capital and surplus of at least $20 million.”
(f) Amendment
to Section 26. Section 26 of the Rights Agreement is amended
to delete the Rights Agent notice information in its entirety and replace it
with the following:
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“Computershare
Trust Company, N.A.
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▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Attn: Client
Services”
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(g) Amendment
to Rights Agreement. The Rights Agreement is amended to insert
the following new Section 35:
“Force
Majeure”. Notwithstanding anything to the contrary contained
herein, neither the Company nor the Rights Agent shall 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 (each, a “Force Majeure Condition”); provided, that such delayed or
non-performing party shall use reasonable commercial efforts to resume
performance as soon as practicable. If any Force Majeure Condition occurs that
effects a party to this Agreement, the party delayed or unable to perform shall
give notice to the other party as soon as practicable, stating the nature of the
Force Majeure Condition and any action being taken to avoid or minimize its
effect.”
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3. Full Force And
Effect. Except to the extent expressly provided in this
Amendment, the terms and conditions of the Rights Agreement remain in full force
and effect.
4. Counterparts. This
Amendment may be executed in any number of counterparts, each of which when so
delivered shall be deemed an original, but all such counterparts taken together
shall constitute but one and the same instrument.
5. Severability. Any
provision of this Amendment which is prohibited or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof in that jurisdiction or affecting
the validity or enforceability of such provision in any other
jurisdiction.
6. Governing Law. This
Amendment shall be governed by the laws of the State of Colorado.
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IN WITNESS WHEREOF, the parties hereto
have caused this Amendment No. 2 to be executed as of the date first above
written.
RENTECH,
INC.
By: /s/ ▇▇▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Vice President and General Counsel
COMPUTERSHARE
TRUST COMPANY, N.A.
By: /s/ ▇▇▇
▇▇▇▇▇
Name:
▇▇▇ ▇▇▇▇▇
Title:
Branch President