1
Exhibit 7(h)
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.
Page 16 of 20
2
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 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:
Page 17 of 20
3
(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 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.
Page 18 of 20
4
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.
Page 19 of 20
5
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:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
CBP HOLDINGS, INC.
By: /s/ Xxxx X. XxXxxx
--------------------------------------
Name: /s/ Xxxx X. XxXxxx
Title: President
CBP ACQUISITION CORP.
By: /s/ Xxxx X. XxXxxx
--------------------------------------
Name: /s/ Xxxx X. XxXxxx
Title: President
Page 20 of 20
