ex4-1



 


Exhibit 4.1



FIRST AMENDMENT TO RIGHTS AGREEMENT



First Amendment to Rights Agreement (the “Amendment”), dated as of January 7,
2002, to the Rights Agreement, dated as of November 7, 2001 (the “Rights
Agreement”), between Arguss Communications, Inc., a Delaware corporation (the
“Company”), and Continental Stock Transfer & Trust Company, a New York
corporation (the “Rights Agent”).


A.     The Company and the Rights Agent have heretofore executed and entered into
the Rights Agreement.


B.     Dycom Industries, Inc., a Florida corporation (“Parent”), Troy Acquisition
Corp., a Delaware corporation and wholly-owned subsidiary of Parent (“Sub”),
and the Company have proposed to enter into an Agreement and Plan of Merger
(the “Merger Agreement”) pursuant to which Sub will be merged with and into the
Company, with the Company as the surviving corporation (the “Merger”), all on
terms and subject to the conditions set forth in the Merger Agreement.


C.     The board of directors of the Company (the “Board”) has determined that it
is in the best interest of the Company and its stockholders to amend the Rights
Agreement to exempt the Merger and the Merger Agreement, and all of the
transactions contemplated thereby, in accordance with the terms thereof, from
application of the Rights Agreement.


 






 


D.     Pursuant to Section 27 of the Rights Agreement, therefore, the Board hereby
resolves that an amendment to the Rights Agreement as set forth herein is
necessary and desirable to reflect the foregoing, and the Company and the
Rights Agent desire to evidence such amendment in writing.


E.     All acts and things necessary to make the Amendment a valid agreement,
enforceable according to its terms have been done and performed, and the
execution and delivery of this Amendment by the Company and the Rights Agent
have been in all respects duly authorized by the Company and the Rights Agent.


In consideration of the foregoing and the mutual agreements set forth herein,
the Company and the Rights Agent hereby amend the Rights Agreement as follows:


1.     Section 1(a) of the Rights Agreement is modified and amended to read in its
entirety as follows:



		
	 	(a) “Acquiring Person” shall mean any Person (as hereinafter
defined) who or which, together with all Affiliates and Associates
(as such terms are hereinafter defined) of such Person, shall be
the Beneficial Owner (as hereinafter defined) of 20% or more of
the Common Shares then outstanding, but shall not include (i) the
Company, (ii) any Subsidiary (as hereinafter defined) of the
Company, (iii) any employee benefit plan of the Company or any
Subsidiary of the Company, (iv) any Person holding Common Shares
for or pursuant to the terms of any such plan, or (v) Dycom
Industries, Inc., a Florida corporation (“DI”) or any Affiliate or
Associate of DI solely to the extent that each may, without being
deemed an Acquiring Person, execute and deliver the Agreement and
Plan of Merger, dated as of January 7, 2002, by and among DI, Sub
and the Company, as it may be amended and supplemented from time
to time (the “Merger Agreement”), commence or consummate the Offer
(as defined in the Merger Agreement) or consummate any of the
other transactions contemplated by the Merger Agreement.
Notwithstanding the foregoing, no Person shall become an
“Acquiring Person” as the result of an acquisition of Common
Shares by the Company which, by reducing the number of Common
Shares outstanding, increases the proportionate number of Common
Shares Beneficially Owned by such Person to 20% or more of the
Common Shares then outstanding; provided,



3






 





		
	 	however, that if a Person shall become the Beneficial Owner of 20%
or more of the Common Shares then outstanding by reason of
acquisition of Common Shares by the Company and shall, after such
acquisition by the Company, become the Beneficial Owner of any
additional Common Shares, then such Person shall be deemed to be
an “Acquiring Person”. Notwithstanding the foregoing, if the Board
of Directors of the Company determines in good faith that a Person
who would otherwise be an “Acquiring Person”, as defined pursuant
to the foregoing provisions of this paragraph (a), has become such
inadvertently, and such Person divests as promptly as practicable
a sufficient number of Common Shares so that such Person would no
longer be an “Acquiring Person,” as defined pursuant to the
foregoing provisions of this paragraph (a), then such Person shall
not be deemed to be or have ever been an “Acquiring Person” for
any purposes of this Agreement.



2.     The first paragraph of Section 3 of the Rights Agreement is amended by
inserting the following sentence after the first sentence thereof:



		
	 	Notwithstanding the foregoing, no Distribution Date shall occur as
a result of the execution and delivery of the Merger Agreement,
the commencement or consummation of the Offer or the consummation
of any other transactions contemplated by the Merger Agreement.



3.     Section 7(a) of the Rights Agreement is hereby modified and amended by
deleting the word “or” between clauses (ii) and (iii) of the first sentence of
Section 7(a) and inserting the following as a new clause (iv):



		
	 	, or (iv) immediately prior to the Acceptance Date (as such term
is defined in the Merger Agreement).



4.     The Rights Agreement is hereby modified and amended by adding a new Section
35 to the end thereof to read in its entirety as follows:



		
	 	Section 35. Merger Agreement. Notwithstanding any other
provision of this Rights Agreement, neither the approval,
execution or delivery of the Merger Agreement, nor the performance
thereof, the commencement or consummation of the Offer or the
consummation of the other transactions contemplated by the Merger
Agreement, is or shall be deemed to be an event described in
Section 11(a)(ii) or Section 13, nor will such performance or
consummation result in the occurrence of a Shares Acquisition
Date, a Distribution Date or any other separation of the Rights
from the underlying Common Shares, nor entitle or



4






 





		
	 	permit the holders of the Rights to exercise the Rights or
otherwise affect the rights of the holders of Rights, including
giving the holders of the Rights the right to acquire securities
of any party to the Merger Agreement.



5.     This Amendment shall become effective as of the date of the Merger
Agreement. If the Merger Agreement is terminated without the consummation of
the Offer having occurred, this Amendment shall be null and void.


6.     This Amendment to the Rights Agreement shall be governed by and construed in
accordance with the laws of the State of New York and for all purposes shall be
governed by and construed in accordance with the laws of such state applicable
to contracts to be made and performed entirely within such state.


7.     This Amendment to the Rights Agreement may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute one and the same instrument. Terms not defined herein
shall, unless the context otherwise requires, have the meanings assigned to
such terms in the Rights Agreement.


8.     In all respects not inconsistent with the terms and provisions of this
Amendment to the Rights Agreement, the Rights Agreement is hereby ratified,
adopted, approved and confirmed. In executing and delivering this Amendment,
the Rights Agent shall be entitled to all the privileges and immunities
afforded to the Rights Agent under the terms and conditions of the Rights
Agreement.


9. If any term, provision, covenant or restrictions of this Amendment to the
Rights Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this


5






 




Amendment to the Rights Agreement and of the Rights Agreement, shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.


6






 


     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested, all as of the day and year first above written.



	 	 	 
	Attest:	 	
ARGUSS COMMUNICATIONS, INC.
	 
	By:  /s/ Haywood Miller


Title:  Executive Vice President	 	
By  /s/ Rainer Bosselmann


Name:   Rainer Bosselmann

Title:  Chief Executive Officer
	 
	Attest:	 	
CONTINENTAL STOCK TRANSFER

& TRUST COMPANY,
	 
	 	 	
as Rights Agent
	 
	By  /s/ Thomas Jennings


Title: Asst. Secretary	 	
By  /s/ William F. Seegraber


Name:               William F. Seegraber

Title:              Vice President




7