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Exhibit 2.2
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
DATED AS OF MARCH 20, 2000
BY AND AMONG
XXXXXXX XXXXXX BUILDING PRODUCTS, INC.,
CBP HOLDINGS, INC.
AND
CBP ACQUISITION CORP.
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AMENDMENT NO. 1
TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this
"Amendment"), dated as of March 20, 2000, is entered into by and among Xxxxxxx
Xxxxxx Building Products, Inc., a Georgia corporation (the "Company"), CBP
Holdings, Inc., a Georgia corporation ("Purchaser"), and CBP Acquisition Corp.,
a Georgia corporation and a wholly owned subsidiary of Purchaser ("Acquisition
Sub"). Capitalized terms used but not defined herein shall have the meanings set
forth in the Agreement and Plan of Merger dated as of January 17, 2000 and
entered into among the Company, the Purchaser and the Acquisition Sub (the
"Agreement").
WHEREAS, Purchaser, Acquisition Sub and the Company desire to amend the
Agreement on the terms set forth herein;
NOW, THEREFORE, in consideration of the premises, covenants and
agreements herein contained, and intending to be legally bound hereby,
Purchaser, Acquisition Sub and the Company hereby agree as follows:
SECTION 1
AMENDMENT OF THE AGREEMENT
Section 1.1 Revisions to Section 1.8(a) of the Agreement. Section
1.8(a) of the Agreement is hereby amended in its entirety to read as follows:
(a) Each issued and outstanding share of Common Stock, no par
value, of the Company ("Share") immediately prior to the Effective
Time, together with the associated preferred stock purchase rights
(the "Rights") issued pursuant to that certain Rights Agreement, dated
as of August 19, 1997, as amended (the "Rights Agreement"), by and
between the Company and SunTrust Bank, Atlanta, Georgia, as Rights
Agent (other than (i) any Shares to be canceled pursuant to Sections
1.8(b) and 1.8(c) and (ii) any Dissenting Shares (as defined in
Section 2.1 hereof)), shall be canceled and extinguished and be
converted into the right to receive $18.25 in cash (the "Merger
Consideration"), payable to the holder thereof, without interest
thereon, upon the surrender of the certificate formerly representing
such Share in the manner provided in Section 2.2 hereof and less any
required withholding of Taxes (as hereinafter defined). From and after
the Effective Time, all such Shares shall no longer be outstanding and
shall be deemed to be canceled and retired and shall cease to exist,
and each holder of a certificate representing any such Shares shall
cease to have any rights with respect thereto, except the right to
receive the Merger Consideration therefor, without interest thereon,
upon the surrender of such certificate in accordance with Section 2.2
hereof, or the right, if any, to receive payment from the Surviving
Corporation
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of the "fair value" of such Shares as determined in accordance with
Article 13 of the GBCC.
Section 1.2 Revisions to Section 7.1(b) of the Agreement. Section
7.1(b) of the Agreement is hereby amended in its entirety to read as follows:
(b) by Purchaser or the Company if (i) any court or Governmental
Entity of competent jurisdiction shall have issued an order, decree or
ruling or taken any other action restraining, enjoining or otherwise
prohibiting the Merger (including the denial of any consent of a
Governmental Entity required for consummation of the Merger) and such
order, decree, ruling or other action is or shall have become final
and nonappealable or (ii) the Effective Time is not occurring
concurrently therewith on or before July 31, 2000 (the "Drop Dead
Date"); provided, however, that the right to terminate this Agreement
under this Section 7.1(b) shall not be available to any party whose
failure to fulfill any obligation under this Agreement has been the
cause of, or resulted in, the failure of the Effective Time to occur
on or before such date; or
SECTION 2
MISCELLANEOUS
Section 2.1 Entire Agreement; Assignment. The Agreement, as amended by
this Amendment, (a) constitutes the entire agreement among the parties hereto
with respect to the subject matter hereof and supersedes all other prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter thereof (including, without limitation, that
certain Confidentiality Agreement, as amended, between the Company and an
affiliate of Purchaser) and (b) shall not be assigned by operation of law or
otherwise.
Section 2.2 Validity. If any provision of this Amendment, or the
application thereof to any Person or circumstance, is held invalid or
unenforceable, the remainder of this Amendment, and the application of such
provision to other Persons or circumstances, shall not be affected thereby, and
to such end, the provisions of this Amendment are agreed to be severable.
Section 2.3 Governing Law. The Agreement, as amended by this Amendment,
shall be governed by and construed in all respects in accordance with the laws
of the State of Georgia as contracts wholly negotiated, executed and to be
performed in the State of Georgia, without regard to the principles of conflicts
of law thereof. With respect to the Agreement, as amended by this Amendment, the
parties hereto hereby agree and consent to be subject to the exclusive
jurisdiction of the United States District Court for the Northern District of
Georgia or the state courts of Xxxxxx County, Georgia in any suit, action or
proceeding seeking to enforce any provision of, or based on any matter arising
out of or in connection with, this Amendment. Each party hereto hereby
irrevocably waives, to the fullest extent permitted by law, (a) any objection
that it may now or hereafter have to laying venue of any suit, action or
proceeding brought in such court and (b) any claim that any suit, action or
proceeding brought in such court has been
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brought in an inconvenient forum. Section 8.5 of the Agreement is hereby amended
in its entirety to reflect these revisions.
Section 2.4 Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Amendment.
Section 2.5 Signatures. This Amendment may be executed in two (2) or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement. Copies of signatures
transmitted via facsimile shall constitute original signatures for all purposes
of this Amendment.
Section 2.6 References to the Agreement. From and after the execution
of this Amendment, all references in the Agreement to "this Agreement,"
"hereof," "herein" and similar terms shall mean or refer to the Agreement, as
amended by this Amendment, and all references in other documents to the
Agreement shall mean the Agreement, as amended by this Amendment.
Section 2.7 Amendment. This Amendment shall not be modified,
supplemented or terminated in any manner whatsoever, except by an instrument in
writing signed on behalf of the parties hereto.
Section 2.8 Ratification and Confirmation. The Agreement is hereby
ratified and confirmed and, except as herein amended, remains in full force and
effect.
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IN WITNESS WHEREOF, each of the parties has caused this Amendment to be
duly executed on its behalf as of the day and year first above written.
XXXXXXX XXXXXX BUILDING PRODUCTS, INC.
By: /s/ XXXXXX X. XXXX
-----------------------------------
Name: Xxxxxx X. Xxxx
---------------------------------
Title: Chairman and CEO
---------------------------------
CBP HOLDINGS, INC.
By: /s/ XXXX X. XxXXXX
-----------------------------------
Name: Xxxx X. Xxxxxx
---------------------------------
Title: President
--------------------------------
CBP ACQUISITION CORP.
By:
By: /s/ XXXX X. XxXXXX
-----------------------------------
Name: Xxxx X. Xxxxxx
---------------------------------
Title: President
--------------------------------
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