EXHIBIT 4.1
AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT, dated as of October 17, 1997 (the "Amendment"), to the Rights
Agreement dated as of August 28, 1996 (the "Rights Agreement") between HI-LO
AUTOMOTIVE, INC., a Delaware corporation (the "Company"), and CHASEMELLON
SHAREHOLDER SERVICES, L.L.C. (the "Rights Agent").
WHEREAS, DISCOUNT AUTO PARTS, INC. a Florida corporation ("Discount"), HLA
ACQUISITION, INC., a Delaware corporation and a wholly owned subsidiary of
Discount ("Sub"), and the Company intend to enter into an Agreement and Plan of
Merger pursuant to which Sub will merge with and into the Company; and
WHEREAS, pursuant to and in compliance with Section 29 of the Rights
Agreement, the Company and the Rights Agent desire to amend the Rights Agreement
as set forth in this Agreement to reflect the foregoing;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth herein and in the Rights Agreement, the parties hereto hereby agree as
follows:
1. Section 1 of the Rights Agreement is hereby amended to add the
following at the end of the existing definition of "Acquiring Person" thereof:
"Anything in this Agreement to the contrary notwithstanding,
"Acquiring Person" shall not include Discount Auto Parts, Inc., a
Florida corporation ("Discount"), HLA Acquisition, Inc., a Delaware
corporation and a wholly owned subsidiary of Discount ("Sub"), or
any Affiliates or Associates of Discount or Sub, by virtue of (x)
the announcement, approval, execution or delivery of the Agreement
and Plan of Merger among Discount, Sub and the Company, dated as of
October 17, 1997 and any amendments thereto in accordance with its
terms (the "Merger Agreement"), pursuant to which, among other
things, Sub shall merge with and into the Company (the "Merger") or
(y) the consummation of the Merger and the transactions contemplated
by the Merger Agreement."
2. Section 3(d) of the Rights Agreement is hereby amended by inserting
after "August 28, 1996" in line 3 of the legend set forth therein the phrase "as
amended as of October17, 1997."
3. Section 14 of the Rights Agreement is hereby amended to add the
following paragraph at the end thereof:
"Notwithstanding any other provision of this Agreement, neither of
the following events shall constitute an occurrence of the events
referred to in Section 14(a)(i), (ii) or (iii) hereof: (A) the
announcement, approval,
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execution or delivery of the Merger Agreement or (B) the
consummation of the Merger."
4. The Rights Agreement is hereby amended to add a new Section 36 which
shall read in its entirety as follows:
"Anything in this Agreement to the contrary notwithstanding, the
announcement, approval, execution or delivery of the Merger
Agreement, the acquisition of beneficial ownership of the Common
Stock of the Company pursuant to the Merger and the consummation of
the transactions contemplated by the Merger Agreement shall not
cause Discount, Sub or any Affiliates or Associates of Discount or
Sub to be deemed an Acquiring Person or to give rise to a
Distribution Date, any event referred to in Section 12 hereof, any
of the events referred to in Section 14 (a)(i), (ii) or (iii) hereof
or a Shares Acquisition Date."
5. The Form of Right Certificate attached to the Rights Agreement as
Exhibit B is hereby amended by inserting after "August 28, 1996" in lines 3 and
4 thereof the phrase "as amended as of October 17, 1997."
6. This Amendment shall be governed by and construed in accordance with
the laws of the State of Delaware without regard to principles of conflicts of
laws.
7. 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 but one and the same instrument.
8. Except as expressly set forth herein, this Amendment shall not by
implication or otherwise alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements contained in the Rights
Agreement, all of which are ratified and affirmed in all respects and shall
continue in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered and to become effective, all as of the day and year
first above written.
ATTEST: HI-LO AUTOMOTIVE, INC.
By: /s/ K. XXXXX XXXXXXXX By: /s/ T. XXXXXXX XXXXX
Name: K. Xxxxx Xxxxxxxx Name: T. Xxxxxxx Xxxxx
Title: Secretary Title: Chairman of the Board,
President and Chief
Executive Officer
ATTEST: CHASEMELLON SHAREHOLDER SERVICES, LLC
As Rights Agent
By: /s/ R. XXXX XXXXX By: /s/ XXXXXXX X. XXXXXXX
Name: R. Xxxx Xxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Vice President Title: Vice President
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