EXHIBIT 4.1
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
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This Amendment No. 1 to Rights Agreement (the "Amendment"), dated as
of January 9, 2006, is made and entered into between Hughes Supply, Inc., a
Florida corporation (the "Company"), and American Stock Transfer & Trust
Company, a New York banking corporation (the "Rights Agent"), to the Rights
Agreement between the Company and the Rights Agent dated as of May 20, 1998 (the
"Rights Agreement").
WHEREAS, pursuant to Section 26 of the Rights Agreement, under
circumstances set forth therein, (i) the Company may supplement or amend any
provision of the Rights Agreement without the approval of any holders of
certificates representing Common Shares of the Company, and (ii) upon the
delivery of a certificate from an appropriate officer of the Company which
states that the proposed supplement or amendment is in compliance with the terms
of Section 26 of the Rights Agreement, the Rights Agent shall execute such
supplement or amendment; and
WHEREAS, the Company desires to amend the Rights Agreement as set
forth herein and to direct the Rights Agent to execute this Amendment.
NOW, THEREFORE, in consideration of the promises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Direction to Rights Agent. The Company hereby directs the
Rights Agent, in its capacity as Rights Agent and in accordance with the terms
of Section 26 of the Rights Agreement, to execute this Amendment.
Section 2. Certification of Appropriate Officer. The undersigned
officer of the Company, being duly authorized on behalf of the Company, hereby
certifies on behalf of the Company to the Rights Agent that (a) he is an
"officer" of the Company as such term is used in Section 26 of the Rights
Agreement, and (b) this Amendment is in compliance with Section 26 of the Rights
Agreement.
Section 3. Amendment of Rights Agreement. The Rights Agreement is
hereby amended as follows:
(a) Section 1 of the Rights Agreement is hereby amended by inserting
the following subsections at the end of such Section 1:
"(cc) "Merger" shall have the meaning set forth in the Merger
Agreement.
(dd) "Merger Agreement" shall mean the Agreement and Plan of
Merger dated as of January 9, 2006, between the Company and The Home
Depot, Inc. ("Parent"), a Delaware corporation, as it may be amended
from time to time."
(b) Section 1(a) of the Rights Agreement is hereby amended by
inserting the following sentences at the end of such Section 1(a):
"Notwithstanding anything in this Section 1(a) to the contrary,
neither the Parent nor any of its Subsidiaries, Affiliates or
Associates, including Merger Sub (as defined in the Merger Agreement)
(collectively, the "Parent Group") shall be, or shall be deemed to be,
an Acquiring Person by virtue of or as a result of (A) the execution
of the Merger Agreement or any agreements, arrangements or
understandings entered into by Parent or Merger Sub contemplated by
the Merger Agreement if such agreements, arrangements or
understandings are in accordance with the terms and conditions of the
Merger Agreement; (B) the announcement of the Merger Agreement or the
Merger; (C) the consummation of the Merger; or (D) the consummation of
the other transactions contemplated by the Merger Agreement upon the
terms and conditions of the Merger Agreement. Each event described in
subclauses (A), (B), (C) and (D) is referred to herein as an "Exempted
Transaction"."
(c) Section 1(c) of the Rights Agreement is hereby amended by
inserting the following sentence at the end of such Section 1(c):
"Notwithstanding anything in this Section 1(c) to the contrary,
the Parent Group shall not be deemed to be a Beneficial Owner of, or
to beneficially own, any securities solely by virtue of or as a result
of any Exempted Transaction."
(d) Section 1(h) of the Rights Agreement is hereby amended by
inserting the following sentence at the end of such Section 1(h):
"Notwithstanding anything in this Section 1(h) to the contrary, a
Distribution Date shall not be deemed to have occurred by virtue of or
as a result of any Exempted Transaction."
(e) Section 1(k) of the Rights Agreement is hereby amended to read in
its entirety as follows:
"(k) "Final Expiration Date" shall mean the earliest of (i) the
tenth anniversary of the Record Date or (ii) immediately prior to the
effective time of the Merger as provided in the Merger Agreement (the
"Effective Time"), but only if such Effective Time shall occur."
(f) Section 1(x) of the Rights Agreement is hereby amended by
inserting the following sentence at the end of such Section 1(x):
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"Notwithstanding anything in this Section 1(x) to the contrary, a
Share Acquisition Date shall not be deemed to have occurred by virtue
of or as a result of the public announcement of any Exempted
Transaction."
(g) Section 1(bb) of the Rights Agreement is hereby amended by
inserting the following sentence at the end of such Section 1(bb):
"Notwithstanding anything in this Section 1(bb) to the contrary,
a Triggering Event shall not be deemed to have occurred by virtue of
or as a result of any Exempted Transaction."
(h) The Rights Agreement is hereby amended by adding a new Section 35
to the end of the Rights Agreement, which new Section 35 shall read in its
entirety as follows:
"Section 35. TERMINATION. At the Final Expiration Date, (a) the
Rights Agreement shall be terminated and be without any further force
or effect, (b) none of the parties to the Rights Agreement will have
any rights, obligations or liabilities thereunder and (c) the holders
of the Rights shall not be entitled to any benefits, rights or other
interests under the Rights Agreement, including, without limitation,
the right to purchase or otherwise acquire Preferred Shares or any
other securities of the Company. Notwithstanding the foregoing,
Section 18 hereof shall survive the termination of the Rights
Agreement. The Company will notify in writing the Rights Agent of the
Effective Time. The Rights Agent will not be deemed to have knowledge
of the Effective Time unless and until it has received such written
notice."
Section 4. Effectiveness and Continued Effectiveness. In accordance
with the resolutions adopted by the Company's Board of Directors, the amendments
to the Rights Agreement set forth in Section 3 above are effective as of the
time at which such resolutions were adopted. The parties hereto hereby
acknowledge and agree that, except as specifically supplemented and amended,
changed or modified in Section 3 above, the Rights Agreement, as previously
amended to the date hereof, shall be unaffected by this Amendment and remain in
full force and effect in accordance with its terms.
Section 5. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts shall together
constitute one and the same instrument.
Section 6. Defined Terms. Except as otherwise expressly provided
herein, or unless the context otherwise requires, all terms used but not defined
herein shall have the meanings assigned to them in the Rights Agreement.
Section 7. Governing Law. This Amendment shall be deemed to be a
contract made under the internal substantive laws of the State of Florida and
for all purposes shall be governed by and construed in accordance with the
internal substantive laws of such State applicable to contracts to be made and
performed entirely within such State.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date set forth above.
HUGHES SUPPLY, INC.
By:
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Name: John Z. Pare
Title: Senior Vice President, General Counsel and
Secretary
AMERICAN STOCK TRANSFER & TRUST COMPANY
By:
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Name:
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Title:
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