ex41to8k01124_01292008.htm


     

    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/
              Michael E. DeDomenico
	
              Name:

            	 Michael
              E. DeDomenico
	
              Title:

            	 Chairman
              and Chief Executive Officer
	 
	 
	
              CONTINENTAL
                STOCK TRANSFER AND TRUST COMPANY, as Rights Agent

            
	 
	
              By:

            	 /s/
              Michael G. Mullings
	
              Name:

            	 Michael
              G. Mullings
	
              Title:

            	 Vice
              President