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EXHIBIT 2
FIRST AMENDMENT TO RIGHTS AGREEMENT
First Amendment (this "Amendment") dated as of January 17, 2000 to the
Rights Agreement dated as of August 19, 1997, between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Building
Products, Inc., a Georgia corporation (the "Company") and SunTrust Bank,
Atlanta, as Rights Agent (as amended, the "Rights Agreement").
WHEREAS, the Company has entered into that certain Agreement and Plan
of Merger dated as of the date hereof (as amended from time to time, the "Merger
Agreement") among CBP Holdings, Inc., a Georgia corporation ("CBP Holdings"),
CBP Acquisition Corp., a Georgia corporation and a wholly owned subsidiary of
CBP Holdings ("CBP Acquisition Corp."), and the Company;
WHEREAS, the Board of Directors of the Company believes that it is in
the best interests of the Company and its shareholders that the transactions
contemplated by the Merger Agreement be consummated on the terms set forth in
the Merger Agreement;
WHEREAS, the Board of Directors of the Company desires to amend the
Rights Agreement such that the execution of the Merger Agreement and the
consummation of the transactions contemplated thereby will not cause (i) CBP
Holdings, CBP Acquisition Corp. or their respective Affiliates or Associates to
become an Acquiring Person or (ii) a Distribution Date or a Stock Acquisition
Date to occur, irrespective of the number of securities owned by them
collectively or acquired pursuant to the Merger Agreement; and
WHEREAS, Section 27 of the Rights Agreement authorizes the Board of
Directors of the Company and the Rights Agent to adopt this Amendment without
the approval of the Company's shareholders.
NOW, THEREFORE, in consideration of the recitals (which are deemed to
be a part of this Amendment) and agreements contained herein, the parties hereto
agree to amend the Rights Agreement as follows:
SECTION 1. AMENDMENT TO RIGHTS AGREEMENT. The Rights Agreement is
hereby amended as follows:
(a) The definition of "Acquiring Person" set forth in Section 1(a) is
hereby modified by and amended by adding the following sentence at the end
thereof:
Notwithstanding any provision of this Agreement to the contrary,
neither the (i) execution and delivery of the Agreement and Plan of
Merger dated as of January 17, 2000 among CBP Holdings, Inc. ("CBP
Holdings"), CBP Acquisition Corp. ("CBP Acquisition Corp.") and the
Company (the "Merger Agreement"), (ii) any agreement of CBP Holdings,
CBP Acquisition Corp. and their Affiliates and Associates to act
together in connection therewith nor (iii) the consummation of the
transactions contemplated thereby shall be deemed to cause CBP
Holdings,
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CBP Acquisition Corp. or their Affiliates or Associates to be
an Acquiring Person.
(b) The definition of "Exempt Person" set forth in Section 1(t) of the
Rights Agreement is hereby amended and restated to read in its entirety as
follows:
(t) "Exempt Person" shall mean any of the following: (i) CGW
Southeast Partners I, L.P., a Georgia limited partnership ("CGW"); or
(ii) CBP Holdings, Inc., a Georgia corporation ("CBP Holdings"); CBP
Acquisition Corp., a Georgia corporation and a wholly owned subsidiary
of CBP Holdings ("CBP Acquisition Corp."); or any Affiliate or
Associate of CBP Holdings or CBP Acquisition Corp.
(c) The definition of "Stock Acquisition Date" set forth in Section
1(mm) of the Rights Agreement is hereby modified and amended by adding the
following sentence at the end thereof:
Notwithstanding any provision of this Agreement to the contrary,
neither (i) the execution and delivery of the Merger Agreement, (ii)
the agreement of CBP Holdings and its Affiliates and Associates to act
together in connection therewith, nor (iii) the consummation of the
transactions contemplated thereby shall be deemed to cause a Stock
Acquisition Date.
(d) Section 3(a) of the Rights Agreement is hereby modified and amended
by adding the following sentence at the end thereof:
Notwithstanding any provision of this Agreement to the contrary,
neither the execution and delivery of the Merger Agreement, the
agreement of CBP Holdings and its Affiliates and Associates to act
together in connection therewith nor the consummation of the
transactions contemplated thereby shall be deemed to cause a
Distribution Date.
(e) Section 7(a) of the Rights Agreement is hereby amended and restated
to read in its entirety as follows:
(a) EXERCISE. Subject to Section 7(e) (Exercise of Rights; Purchase
Price; Expiration Date of Rights - Termination of Acquiring Person's
Rights), the registered holder of any Rights Certificate may exercise
the Rights evidenced thereby (except as otherwise provided herein,
including, without limitation, the restrictions on exercisability set
forth in Section 9(c) (Reservation and Availability of Capital Stock -
Registration under the Act), Section 11(a)(iii) (Adjustment of Purchase
Price; Number and Kind of Shares or Number of Rights - Certain
Adjustments), Section 23(a) (Redemption and Termination - Redemption),
and Section 24(b) (Exchange - Effect of Exchange; Procedure)) in whole
or in part at any time after the Distribution Date upon surrender of
the Rights Certificate, with the form of election to purchase and the
certificate on the reverse side thereof duly executed, to the Rights
Agent at the principal office or offices
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of the Rights Agent designated for such purpose, together with payment
of the aggregate Purchase Price with respect to the total number of one
ten-thousandths of a share of Preferred Stock (or other securities,
cash or other assets, as the case may be) as to which such surrendered
Rights are then exercisable and an amount equal to any applicable
transfer tax, at or prior to the earliest of (i) the Final Expiration
Date, (ii) the Redemption Date, (iii) the expiration of the Rights
pursuant to Section 13(d) (Consolidation, Merger or Sale or Transfer of
Assets or Earning Power - Exceptions) or (iv) the time immediately
prior to the effective time of the merger of CBP Acquisition Corp. into
the Company pursuant to the Merger Agreement (the earliest of (i),
(ii), (iii) and (iv) being herein referred to as the "Expiration
Date"). The payment of the Purchase Price and the applicable transfer
tax, if any (as such amount may be reduced pursuant to Section
11(a)(iii) (Adjustment of Purchase Price; Number and Kind of Shares or
Number of Rights - Certain Adjustments)), may be made (x) in cash, (y)
by certified check, cashier's check or money order payable to the order
of the Company, or (z) by delivery of a certificate or certificates
(with appropriate stock powers executed in blank attached thereto)
evidencing a number of shares of Common Stock equal to the then
Purchase Price divided by the closing price (as determined pursuant to
Section 11(d) (Adjustment of Purchase Price; Number and Kind of Shares
or Number of Rights - Current Market Price) per share of Common Stock
on the Trading Day immediately preceding the date of such exercise. In
the event that the Company is obligated to issue other securities
(including Common Stock) of the Company, pay cash and/or distribute
other property pursuant to Section 11(a) the Company will make all
arrangements necessary so that such other securities, cash and/or other
property are available for distribution by the Rights Agent, if and
when appropriate. The Company reserves the right to require prior to
the occurrence of a Triggering Event that upon any exercise of Rights,
a number of Rights be exercised so that only whole shares of Preferred
Stock would be issued.
(f) Section 30 of the Rights Agreement is hereby modified and amended
to add the following sentence at the end thereof:
Nothing in this Agreement shall be construed to give any holder of
Rights or any other Person any legal or equitable rights, remedy or
claim under this Agreement in connection with any transactions
contemplated by the Merger Agreement.
SECTION 2. MISCELLANEOUS.
(a) Capitalized terms used and not otherwise defined herein shall have
the meaning assigned to such terms in the Rights Agreement.
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(b) The term "Agreement" as used in the Rights Agreement shall be
deemed to refer to the Rights Agreement as amended hereby.
(c) This Amendment shall be effective as of the time immediately prior
to the execution and delivery of the Merger Agreement, and, except as set forth
herein, the Rights Agreement shall remain in full force and effect and shall be
otherwise unaffected hereby.
(d) If any term, provision, covenant or restriction of this Amendment
is held by a court of competent jurisdiction or other authority to be invalid,
void or unenforceable, the other terms, provisions, covenants and restrictions
of this Amendment, and of the Rights Agreement, shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
(e) In all respects not inconsistent with this Amendment, the Rights
Agreement is hereby ratified, approved and confirmed. In executing and
delivering this Amendment, the Rights Agent shall be entitled to all of the
privileges and immunities afforded to the Rights Agent under the Rights
Agreement.
(f) This Amendment may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
(g) This Amendment shall be deemed to be a contract made under the laws
of the State of Georgia and for all purposes shall be governed by and construed
in accordance with the laws of the State of Georgia applicable to contracts to
be made and performed entirely within the State of Georgia.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ BUILDING
PRODUCTS, INC.
Attest:
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President - General Title: Chairman
Counsel and Secretary and Chief Executive Officer
SUNTRUST BANK, ATLANTA,
as Rights Agent:
Attest:
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By /s/ ▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President Title: Assistant Vice President
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