Unassociated Document


    
      

    


    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 & Coots 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.”

     

    
      
         

      

      
        2

        
          

        

      

      
         

      

    

     

    (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. 

     

    
      
         

      

      
        3

        
          

        

      

      
         

      

    

     

    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. 

     

     

    
      	 	
              BOOTS
                & COOTS INTERNATIONAL

            
	 	
              WELL
                CONTROL, INC.

            
	 	 	 
	 	 	 
	 	
              By:

            	
              /s/
                Jerry Winchester

            
	 	 	
              Jerry
                Winchester

            
	 	 	
              Chief
                Executive Officer

            
	 	 	 
	 	 	 
	 	
              AMERICAN
                STOCK TRANSFER 

            
	 	
              &
                TRUST COMPANY

            
	 	 	 
	 	 	 
	 	
              By:

            	
              /s/
                Herbert J. Lemmer

            
	 	 	
              Herbert
                J. Lemmer

            
	
               

            	 	
              Vice
                President

            


    

     

    5