AMENDMENT TO INVESTMENT AGREEMENT BY AND BETWEEN NCI BUILDING SYSTEMS, INC. AND CLAYTON, DUBILIER & RICE FUND VIII, L.P. Dated as of August 28, 2009
Exhibit 6
AMENDMENT
TO
INVESTMENT AGREEMENT
BY AND BETWEEN
NCI BUILDING SYSTEMS, INC.
AND
XXXXXXX, DUBILIER & RICE FUND VIII, L.P.
INVESTMENT AGREEMENT
BY AND BETWEEN
NCI BUILDING SYSTEMS, INC.
AND
XXXXXXX, DUBILIER & RICE FUND VIII, L.P.
Dated as of August 28, 2009
This AMENDMENT (this “Amendment”), dated as of
August 28, 2009, to the Investment Agreement, dated as of
August 14, 2009 (the “Investment
Agreement”), by and between NCI BUILDING SYSTEMS, INC.,
a Delaware corporation, and XXXXXXX, DUBILIER & RICE
FUND VIII, L.P., a Cayman exempted limited partnership (the
“Investor”).
WHEREAS, Section 13 of the Investment Agreement provides
for the amendment of the Investment Agreement in accordance with
the terms set forth therein;
WHEREAS, the parties desire to amend the Investment Agreement to
provide (A) that the commencement of the Offer and of the
solicitation for acceptances of the Prepackaged Plan be on or
prior to 11:59 p.m., Eastern Time, on September 9,
2009, rather than prior to the open of business on the date that
is the tenth Business Day after the date of the Investment
Agreement and (B) for certain other matters set forth
herein; and
WHEREAS, capitalized terms not otherwise defined herein shall
have the meanings ascribed to them in the Investment Agreement.
NOW THEREFORE, in consideration of the premises and of the
respective representations, warranties, covenants and conditions
contained herein, the parties hereto agree as follows:
Section 1. Definitions;
References. Unless otherwise specifically
defined herein, each term used herein shall have the meaning
assigned to such term in the Investment Agreement. Each
reference in the Investment Agreement to “hereof,”
“herein,” “hereunder,” “hereby,”
“hereto” and “this Agreement” shall, from
and after the date hereof, refer to the Investment Agreement as
amended by this Amendment, and each reference in the Transaction
Documents (other than the Investment Agreement) and in the
Disclosure Letter to “the Investment Agreement” shall
refer to the Investment Agreement as amended by this Amendment.
Section 2. Amendment
to Section 6(d)(i). The first sentence
of Section 6(d)(i) of the Investment Agreement is hereby
amended and restated in its entirety to read as follows:
Provided that this Agreement shall not have been terminated in
accordance with Section 8, the Company shall commence
(within the meaning of
Rule 13e-4(a)(4)
promulgated under the Exchange Act) the Offer to purchase all of
the Convertible Notes and solicit acceptances of the Prepackaged
Plan with the Solicitation Materials on or prior to
11:59 p.m., Eastern Time, on September 9, 2009.
Section 3. Amendment
to Section 6(k)(ii)(B). Each reference
in Section 6(k)(ii)(B) of the Investment Agreement to
“September 30, 2009” is amended to refer to
“12:00 midnight, New York City time, on the
20th business
day (as defined in
Rule 14d-1
under the Exchange Act) following the commencement of the
Offer.”
Section 4. Amendment
to
Section 6(k)(vi)(A). Section 6(k)(vi)(A)
of the Investment Agreement is hereby amended and restated in
its entirety to read as follows:
“Company Transaction Proposal” means any inquiry,
proposal or offer from any person or group of persons other than
the Investor or its Affiliates relating to any (1) direct
or indirect acquisition or purchase of a business that
constitutes 20% or more of the net revenues, net income or
assets of the Company and the Company’s Subsidiaries, taken
as a whole, or 20% or more of any class or series of equity
securities (or any indebtedness or other obligation that is
exchangeable for or convertible into any such security, or any
other right to acquire any such security, contingent or
otherwise) of the Company, or (2) any tender offer or
exchange offer, merger, reorganization, restructuring,
consolidation, share exchange, business combination,
recapitalization, liquidation, dissolution, equity infusion or
similar transaction involving the Company (or any Subsidiary or
Subsidiaries of the Company whose business constitutes 20% or
more of the net revenues, net income or assets of the Company
and its Subsidiaries, taken as a whole) that if consummated
would result in any person or group of persons beneficially
owning 20% or more of the voting rights of any class or series
of capital stock of the Company;
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Section 5. Amendment
to Section 8(b). Section 8(b) of
the Investment Agreement is hereby amended and restated in its
entirety to read as follows:
In the event that (i) this Agreement is terminated
(x) by the Company pursuant to Section 8(a)(v) or
(y) by the Investor pursuant to Section 8(a)(iv)(A) or
(ii) (A) this Agreement (1) is terminated pursuant to
Section 8(a)(iv) (other than pursuant to Section
8(a)(iv)(A)) or pursuant to Section 8(a)(iii) and at the
time of such termination the Investor was not in material breach
of any of its material covenants and agreements contained in
this Agreement or its representations and warranties contained
in this Agreement or (2) is terminated pursuant to Section
8(a)(i) and at the time of such termination the conditions set
forth in Section 3(a)(i) and Section 3(a)(ii) shall have
been satisfied and the Investor was not in material breach of
any of its material covenants and agreements contained in this
Agreement or its representations and warranties contained in
this Agreement and (B) the Company enters into a definitive
agreement with respect to, or consummates, a transaction
contemplated by any Qualifying Transaction within twelve months
of the date this Agreement is terminated, then the Company shall
pay the Termination Fee and the Company shall reimburse the
Investor for all of the Transaction Expenses (net of any amounts
previously paid or reimbursed pursuant to Section 8(c) and
net of the Pre-Signing Expenses that have been previously paid
or reimbursed by the Company), to the accounts specified on
Schedule 8(b) hereto, with such Termination Fee being paid
(I) at or prior to the time of termination in the case of a
termination pursuant to Section 8(a)(v) or (II) on the
earlier of entering into a definitive agreement with respect to
or consummating a transaction contemplated by a Qualifying
Transaction in the case of a termination for any of the reasons
specified in clause (ii) of this paragraph and, in each
case, such Transaction Expenses paid not later than two
(2) Business Days after submission of reasonable supporting
documentation thereof. Anything to the contrary notwithstanding,
in no event shall the Company be required to pay the Termination
Fee on more than one occasion.
Section 6. Amendment
to Section 8(d). The final sentence of
Section 8(d) of the Investment Agreement is hereby amended
and restated in its entirety to read as follows:
Following payment of the Termination Fee
and/or
Transaction Expenses, if, as and when provided for in
Section 8(b) or Section 8(c), the Company shall have
no further liability to Investor of any nature or for any reason
under this Agreement other than pursuant to
Section 7(a)(iii) and other than liability arising out of
or related to the willful breach of this Agreement on the part
of the Company.
Section 7. No
Further Amendment. Except as expressly
amended hereby, the Investment Agreement is in all respects
ratified and confirmed and all the terms, conditions, and
provisions thereof shall remain in full force and effect. This
Amendment is limited precisely as written and shall not be
deemed to be an amendment to any other term or condition of the
Investment Agreement or any of the documents referred to therein.
Section 8. Effect
of Amendment. This Amendment shall form a
part of the Investment Agreement for all purposes, and each
party thereto and hereto shall be bound hereby. From and after
the execution of this Amendment by the parties hereto, any
reference to the Investment Agreement shall be deemed a
reference to the Investment Agreement as amended hereby. This
Amendment shall be deemed to be in full force and effect from
and after the execution of this Amendment by the parties hereto.
Section 9. Miscellaneous.
Section 12 (Successors and Assign); Section 13
(Amendments; Waiver); Section 14 (Headings);
Section 15 (Severability); Section 16 (Liability
Limitations); Section 17 (Integration); Section 18
(Governing Law); Section 19 (Counterparts); Section 23
(Specific Performance; Jurisdiction); Section 24 (Waiver of
Jury Trial); Section 25 (Interpretation); Section 26
(No Third Party Beneficiaries); and Section 27 (Certain
Considerations Relating to Bankruptcy) of the Investment
Agreement shall apply to this Amendment, mutatis mutandis.
[Signature Page Follows]
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Please confirm that the foregoing correctly sets forth the
agreement between us by signing in the space provided below for
that purpose.
XXXXXXX, DUBILIER & RICE FUND VIII, L.P.
By: CD&R Associates VIII, Ltd., its general partner
| By: |
/s/ Xxxxxxx
X. Xxxx
|
Name: Xxxxxxx X. Xxxx
| Title: | Vice President, Treasurer and |
Assistant Secretary
[Signature Page to the Amendment to the Investment Agreement]
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NCI BUILDING SYSTEMS, INC.
| By: |
/s/ Xxxx
X. Xxxxx
|
Name: Xxxx
X. Xxxxx
| Title: | Executive Vice President, General |
Counsel and Secretary
[Signature Page to the Amendment to the Investment Agreement]
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