EXHIBIT 4.1
AMENDMENT
TO NOMINEE AGREEMENT
This AMENDMENT TO NOMINEE AGREEMENT, executed and delivered as of
November 17, 2003 (this "Amendment"), by and between CENTEX CORPORATION, a
Nevada corporation ("Centex"), 3333 HOLDING CORPORATION, a Nevada corporation
("Holding"), CENTEX DEVELOPMENT COMPANY, L.P., a Delaware limited partnership
("CDC"), of which 3333 Development Corporation, a Nevada corporation that is a
wholly-owned subsidiary of Holding is the sole general partner, and MELLON
INVESTOR SERVICES LLC, a New Jersey limited liability company as successor
Nominee and Transfer Agent, f/k/a ChaseMellon Shareholder Services L.L.C.
("Mellon" or the "Nominee");
W I T N E S S E T H:
WHEREAS, Centex, Holding, CDC and First RepublicBank Dallas, National
Association ("First RepublicBank") entered into a Nominee Agreement as of
November 30, 1987 (as amended, the "Nominee Agreement"), pursuant to which
Centex effected a distribution to First RepublicBank, for the benefit of those
persons who are from time to time holders of the common stock of Centex, of
certain securities, as more fully described therein; and
WHEREAS, in accordance with the provisions of the Nominee Agreement and
a Supplement to the Nominee Agreement dated as of June 2003 (the "Supplement"),
Centex appointed Mellon as successor Nominee for all purposes under the Nominee
Agreement; and
WHEREAS, Centex, Holding, and CDC have entered into merger agreements
pursuant to which the Deposited Securities (as defined in the Nominee Agreement)
will be converted into the right to receive certain cash payments without
effectuation of the Detachment (as defined in the Nominee Agreement); and
WHEREAS, Section 8.2 of the Nominee Agreement provides for amendments
to the Nominee Agreement if in writing and executed by the parties to the
Nominee Agreement; and
WHEREAS, the parties hereto are executing this Amendment for the
purposes of facilitating the transactions contemplated by the above-described
merger agreements;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Centex, Holding, CDC
and Mellon do hereby agree as follows:
1. Definitions. Except as expressly defined otherwise in this
Amendment, capitalized terms used and otherwise defined herein shall have the
respective meanings assigned to them in the Nominee Agreement, as amended by the
Supplement.
2. Amendment to the Nominee Agreement. The Nominee Agreement is
hereby amended as follows:
(a) Section 8.3 of the Nominee Agreement is hereby
amended by adding the following text at the end thereof:
(e) Notwithstanding the foregoing, upon the
agreement of Centex, Holding and CDC, and subject to the vote
of the holders of a majority of the Stock present or
represented by proxy and entitled to vote at a meeting of the
Stockholders at which a quorum is present or represented,
provided notice of the proposed action is contained in the
notice of such meeting, this Agreement may be terminated in
all respects without a Detachment or distribution of the
Deposited Securities.
Except as otherwise expressly contemplated or amended by this
Amendment, the terms and provisions of the Nominee Agreement shall continue in
full force and effect.
[signatures on following page]
-2-
IN WITNESS WHEREOF, Centex, Holding, CDC and Mellon have duly executed this
Amendment as of the day and year first set forth above.
CENTEX CORPORATION
By: /s/ XXXXXXX X. XXXXXX
------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
3333 HOLDING CORPORATION
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
CENTEX DEVELOPMENT COMPANY, L.P.
By: 3333 DEVELOPMENT CORPORATION,
General Partner
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
MELLON INVESTOR SERVICES LLC
By: /s/ XXXXX X. XXXX
------------------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
-3-
