AMENDMENT No. 2 TO INVESTMENT AGREEMENT BY AND BETWEEN NCI BUILDING SYSTEMS, INC. AND CLAYTON, DUBILIER & RICE FUND VIII, L.P.
Exhibit 7
AMENDMENT
No. 2
TO
INVESTMENT AGREEMENT
BY AND BETWEEN
NCI BUILDING SYSTEMS, INC.
AND
▇▇▇▇▇▇▇, DUBILIER & RICE FUND VIII, L.P.
TO
INVESTMENT AGREEMENT
BY AND BETWEEN
NCI BUILDING SYSTEMS, INC.
AND
▇▇▇▇▇▇▇, DUBILIER & RICE FUND VIII, L.P.
Dated as of August 31, 2009
This AMENDMENT No. 2 (this “Amendment
No. 2”), dated as of August 31, 2009, to the
Investment Agreement, dated as of August 14, 2009, by and
between NCI BUILDING SYSTEMS, INC., a Delaware corporation, and
▇▇▇▇▇▇▇, DUBILIER & RICE FUND VIII, L.P., a
Cayman exempted limited partnership (the
“Investor”), as amended by that Amendment,
dated August 28, 2009, by and between the Company and the
Investor (as so amended, the “Investment
Agreement”).
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 that the Offer (as defined in the Investment Agreement)
be commenced and conducted on the terms and subject to the
conditions set forth on an amended Annex A attached
hereto; 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 No. 2, 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
No. 2.
Section 2. Amendment
to Section 3(c)(xii). The first sentence of
Section 3(c)(xii) of the Investment Agreement is hereby
amended and restated in its entirety to read as follows:
To the extent that the Company has authorized and unissued
shares of Common Stock sufficient to permit the conversion of
all or a portion of the shares of Series B Preferred Stock
to be issued at the Closing, (A) such shares of Common
Stock issuable upon conversion of the Series B Preferred
Stock shall have been duly authorized for listing, subject to
official notice of issuance, on the New York Stock Exchange or
such other exchange on which the Common Stock is then listed or
quoted and (B) the number of such shares of Common Stock
issuable upon conversion of the Series B Preferred Stock
that are so duly authorized for listing shall be no less than
7,800,000.
Section 3. Amendment
to Section 4. The beginning paragraph of
Section 4 of the Investment Agreement is hereby amended by
inserting the following language immediately prior to the
proviso:
, and as contemplated by that
Lock-Up and
Voting Agreement, dated August 31, 2009, by and among the
Company and the other signatories thereto,
Section 4. Amendment
to Section 4(i). The last sentence of
Section 4(i) of the Investment Agreement is hereby amended
and restated in its entirety to read as follows:
As of the Closing Date, 7,800,000 shares of Common Stock
issuable upon the conversion of the Series B Preferred
Stock will have been duly authorized by all necessary corporate
action and when so issued will be validly issued, fully paid and
nonassessable, will not subject the holders thereof to personal
liability, will not be subject to preemptive rights of any
stockholder of the Company and will be free of restrictions on
transfer other than restrictions on transfer under the
Transaction Documents and under applicable state and federal
securities laws.
Section 5. Amendment
to Section 6(b)(i). The first sentence of
Section 6(b)(i) of the Investment Agreement is hereby
amended by inserting the following language between “Except
as otherwise expressly permitted or
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required by the Transaction Documents or otherwise consented to
by Investor,” and “permitted by Section 6(k),
contemplated by Section 6(p) or as set forth on
Section 6(b) of the Disclosure Letter and subject to the
terms and upon the conditions therein,”
contemplated by that
Lock-Up and
Voting Agreement, dated August 31, 2009, by and among the
Company and the other signatories thereto,
Section 6. Amendment
to Section 9(85). The definition of
“Initial Expiration Date” in Section 9(85) of the
Investment Agreement is hereby amended and restated in its
entirety to read as follows:
“Initial Expiration Date” means 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;
provided, that if the Offer Condition set forth in
clause (3) under the caption “— Conditions
to the Offer” set forth in Annex A hereto has not been
satisfied by 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,
the Company shall, subject to the provisions of
Section 8(a), extend the Offer until the Offer Condition
set forth in clause (3) under the caption
“— Conditions to the Offer” set forth in
Annex A hereto has been satisfied and the “Initial
Expiration Date” shall mean the first scheduled expiration
date following the date on which such Offer Condition shall have
been satisfied.
Section 7. Amendment
to Exhibit B. Exhibit B to the
Investment Agreement is hereby amended and restated in its
entirety to read as Exhibit B attached hereto.
Section 8. Amendment
to Exhibit I. The row with the heading
“Claims Under Convertible Notes” in Exhibit I to
the Investment Agreement is hereby amended and restated in its
entirety to read as follows:
| Claims Under Convertible Notes: | Impaired; entitled to vote. Holders of Convertible Notes shall receive, on the Effective Date, in consideration of their claims (including accrued interest), cash and common stock in amounts calculated as follows: for each $1,000 of principal amount of Convertible Notes held by them a) cash in an amount equal to $500 and b) 390 shares of common stock of the reorganized Company. |
Section 9. Amendment
to Annex A. Annex A to the Investment
Agreement is hereby amended and restated in its entirety to read
as Annex A attached hereto.
Section 10. 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 11. Effect
of Amendment. This Amendment No. 2 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 No. 2 by the parties
hereto, any reference to the Investment Agreement shall be
deemed a reference to the Investment Agreement as amended
hereby. This Amendment No. 2 shall be deemed to be in full
force and effect from and after the execution of this Amendment
No. 2 by the parties hereto.
Section 12. 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 No. 2, 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.
▇▇▇▇▇▇▇, DUBILIER & RICE FUND VIII, L.P.
By: CD&R Associates VIII, Ltd., its general partner
| By: |
/s/ ▇▇▇▇▇▇▇
▇. ▇▇▇▇
|
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
| Title: | Vice President, Treasurer and |
Assistant Secretary
[Signature Page to the Amendment No. 2 to the Investment
Agreement]
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NCI BUILDING SYSTEMS, INC.
| By: |
/s/ ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
|
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
| Title: | Chief Executive Officer |
[Signature Page to the Amendment No. 2 to the Investment
Agreement]
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Annex A
Terms and
Conditions of the Offer
Section 1. Terms
of the Offer.
|
Transaction:
|
Exchange offer to any and all holders of the Convertible Notes. | |
|
Type of Offer:
|
Registered with the Commission on Form S-4 and filed with the Commission on Schedule TO. | |
|
Pricing:
|
Tendering holders shall receive, for each $1,000 of principal amount Convertible Notes surrendered for exchange, a combination of (A) $500.00, in cash, and (B) 390 shares of Common Stock of the Company. | |
|
Launch Date:
|
On or prior to 11:59 p.m., Eastern Time, on September 9, 2009. | |
|
Expiration Date:
|
The Initial Expiration Date, extended as provided in Section 6(d)(i) of the Agreement. | |
|
Withdrawal Rights:
|
Tendering holders may withdraw tendered Convertible Notes at any time prior to the Expiration Date. | |
|
Settlement:
|
The Closing Date. | |
|
Exchange Offer Materials:
|
Schedule TO, the Form S-4, the Offer Documents and the Required Company Filings, subject to Section 6(d)(iii) of the Agreement. |
Section 2. Conditions
to the Offer.
The Company’s obligation to accept for exchange Convertible
Notes in the Offer shall be conditioned upon satisfaction of
each of the following conditions at the expiration of the Offer
(collectively, the “Offer Conditions”):
(1) At least 95% of the aggregate principal amount
outstanding of the Convertible Notes must have been validly
tendered and not withdrawn prior to the expiration of the Offer
(the “Minimum Condition”).
(2) The Company shall have received the proceeds from the
Investment.
(3) The
Form S-4
shall have become effective and no stop order suspending the
effectiveness of the
Form S-4
shall have been instituted by the SEC.
(4) No provision of any applicable Law and no Order
prohibit consummation of the Offer.
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