FIRST AMENDMENT TO SECTION 382 RIGHTS AGREEMENT
Exhibit 4.1
EXECUTION COPY
FIRST AMENDMENT TO SECTION 382 RIGHTS AGREEMENT
This First Amendment, dated as of April 7, 2009 (this “Amendment”), to the Section 382
Rights Agreement, dated as of March 5, 2009 (the “Section 382 Rights Agreement”), is made
between Pulte Homes, Inc., a Michigan corporation (the “Company”), and Computershare Trust
Company, N.A., a federally chartered trust company (the “Rights Agent”). Capitalized terms
not otherwise defined herein have the meanings given to such terms in the Section 382 Rights
Agreement.
WHEREAS, the Company, Pi Nevada Building Company, a Nevada corporation and a wholly-owned
subsidiary of the Company (“Merger Sub”), and Centex Corporation, a Nevada corporation
(“Centex”), have proposed to enter into an Agreement and Plan of Merger (the “Merger
Agreement”) pursuant to which, among other things, Merger Sub will be merged with and into
Centex, with Centex being the surviving corporation (the “Merger”), and each share of
common stock, par value $0.25 per share, of Centex (“Centex Common Stock”) outstanding
immediately prior to the Effective Time (as defined therein) and the associated Company Right (as
defined therein) (other than Cancelled Shares (as defined therein)) will be converted into 0.975
Common Shares and the associated Rights;
WHEREAS, the Board of Directors of the Company has approved the Merger Agreement, determined
that it is advisable and in the best interest of the Company and its shareholders, and, in
connection with the execution of the Merger Agreement, that it is in the best interests of the
Company and its shareholders to amend the Section 382 Rights Agreement;
WHEREAS, certain directors and officers of the Company (in their capacities as shareholders of
the Company) and Centex have proposed to enter into Voting Agreements (the “Voting
Agreements”), providing, among other things and subject to the terms and conditions set forth
therein, for such directors and officers to vote the Common Shares owned by them in favor of the
Charter Amendment (as defined in the Merger Agreement) and the Stock Issuance (as defined in the
Merger Agreement); and
WHEREAS, pursuant to its authority under Section 27 of the Section 382 Rights Agreement, the
Board of Directors of the Company has authorized and approved this First Amendment to the Section
382 Rights Agreement as of the date hereof, and an appropriate officer of the Company has delivered
a certificate to the Rights Agent in accordance with Section 27 of the Section 382 Rights
Agreement.
NOW THEREFORE, in consideration of the premises and the mutual agreements herein set forth in
this Amendment, the parties hereby agree as follows:
1. The Company hereby directs the Rights Agent, in its capacity as Rights Agent and in
accordance with Section 27 of the Section 382 Rights Agreement, to execute this Amendment.
2. Section 1 of the Section 382 Rights Agreement is hereby amended by adding the following
definitions thereto:
(x) “Centex” shall mean Centex Corporation, a Nevada corporation.
(y) “Merger” shall mean the merger of Merger Sub with and into Centex as contemplated by the
Merger Agreement.
(z) “Merger Agreement” shall mean the Agreement and Plan of Merger dated as of April 7, 2009
among the Company, Merger Sub and Centex, as the same may be amended in accordance with the terms
thereof.
(aa) “Merger Sub” shall mean Pi Nevada Building Company, a Nevada corporation and a
wholly-owned subsidiary of the Company.
(bb) “Voting Agreements” shall mean the Voting Agreements dated as of April 7, 2009 between
Centex and each of Xxxxxxx Xxxxxxxxx, Xxxxxx Xxxx, Xxxxx Xxxxxxxxx, Xxxxxxxx Poses, Xxxxx Xxxxx,
Xxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxx Xxxxxxx, Xxxxxxx Xxxxx and Xxxxxxxxx Xxxxx (in their capacities
as shareholders of the Company), as the same may be amended in accordance with the terms thereof.
3. The definition of “Acquiring Person” in Section 1(a) of the Section 382 Rights Agreement is
amended by inserting the following as a new paragraph at the end of such definition:
Notwithstanding anything in this Agreement to the contrary, none of Centex or any of its
Affiliates, Associates or stockholders, or the general partners, limited partners or members of
such stockholders (the “Centex Holders”), either individually, collectively, or in any
combination, shall be deemed to be an “Acquiring Person” or an “Affiliate” or an “Associate” of an
Acquiring Person solely by virtue of or as a result of (i) the approval, adoption, execution,
delivery or performance of the Merger Agreement or the Voting Agreements by any of the Centex
Holders in connection with the Merger, (ii) the acquisition of any Common Shares pursuant to the
Merger Agreement or the announcement or consummation of the Merger, (iii) the voting of Common
Shares pursuant to the terms of the Voting Agreements or (iv) the consummation of any other
transactions specifically contemplated by the Merger Agreement or the Voting Agreements, unless and
until such time with respect to any Centex Holder that such Centex Holder (together with all
Affiliates and Associates of such Centex Holder) acquires the Beneficial Ownership of any
additional Corporation Securities.
4. The Section 382 Rights Agreement is hereby amended by adding a new Section 36 which shall
read in its entirety as follows:
Section 36. Certain Exceptions. Notwithstanding anything to the contrary contained
herein, (i) no Section 11(a)(ii) Event shall occur or be deemed to occur, in each case, as a result
of the approval, execution or delivery of the Merger Agreement or the Voting Agreements, the voting
of Common Shares pursuant to the terms of the Voting Agreements, or
the consummation of the Merger or the other transactions contemplated by the Merger Agreement,
and (ii) no Share Acquisition Date shall occur or be deemed to occur, in each case, as a result of
the approval, execution or delivery of the Merger Agreement or the Voting Agreements, the voting of
Common Shares pursuant to the terms of the Voting Agreements, or the consummation of the Merger (as
defined in the Merger Agreement) or the other transactions contemplated by the Merger Agreement.
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5. This Amendment shall be deemed to be a contract made under the laws of the State of
Michigan and for all purposes shall be governed by and construed in accordance with the laws of
such State applicable to contracts made and to be performed entirely within such State,
provided, however, that all provisions regarding the rights, duties and obligations
of the Rights Agent shall be governed by and construed in accordance with the laws of the State of
New York applicable to contracts made and to be performed entirely within such State.
6. This Amendment shall be deemed effective immediately prior to earlier of (i) the execution
and delivery of the Merger Agreement and (ii) the execution and delivery of any of the Voting
Agreements. The Company shall notify the Rights Agent promptly after the occurrence of an event
pursuant which this Amendment is deemed effective. Except as otherwise amended hereby, the Section
382 Rights Agreement shall remain in full force and effect and shall be otherwise unaffected
hereby.
7. This Amendment may be executed in counterparts and each of such counterparts shall for all
purposes be deemed to be an original, and both such counterparts shall together constitute but one
and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Section 382 Rights
Agreement to be duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
| Attest: | PULTE HOMES, INC. | |||||||||||||
| By: | /s/ Xxxx X. Xxxxxx | By: | /s/ Xxxxxx X. Xxxx | |||||||||||
| Name: | Xxxx X. Xxxxxx | Name: | Xxxxxx X. Xxxx | |||||||||||
| Title: | Assistant Secretary | Title: | Senior Vice President, General Counsel and Secretary | |||||||||||
| Attest: | COMPUTERSHARE TRUST COMPANY, N.A. | |||||||||||||
| By: | /s/ Xxxxxxx Xxxx | By: | /s/ Xxxxx Xxxxxx | |||||||||||
| Name: | Xxxxxxx Xxxx | Name: | Xxxxx Xxxxxx | |||||||||||
| Title: | Senior Account Manager | Title: | Managing Director | |||||||||||
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