Exhibit 4.4
FORM OF
SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
This SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
("Agreement"), dated as of April ___, 2005, among JLL Building Products, LLC, a
Delaware limited liability company that was formerly know as Stonegate Resources
Holdings, LLC, Builders FirstSource, Inc., a Delaware corporation and majority
owned subsidiary of JLL Building Products (the "Company"), ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ("▇▇▇▇"), ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇ ("▇'▇▇▇▇▇"), and ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇"), shall be effective upon consummation of the
Company's Initial Public Offering (as defined herein).
W I T N E S S E T H
WHEREAS, JLL Building Products (as defined herein) owns a majority
of the issued and outstanding shares of common stock, par value $.01 per share,
of the Company ("Common Stock"); and
WHEREAS, on September 5, 2001, each of the parties entered into that
certain Stockholders Agreement ("Original Agreement") to memorialize certain
agreements of the parties with respect to the shares of Common Stock owned by
JLL Building Products and the Other Stockholders (as defined herein), all in
accordance with the terms and conditions set forth therein; and
WHEREAS, on February 25, 2004, each of the parties entered into that
certain Amended and Restated Stockholders Agreement ("Amended Agreement") to
amend certain provisions of the Original Agreement; and
WHEREAS, in connection with the Company's proposed Initial Public
Offering, each of the parties desires to amend and restate the Amended Agreement
conditioned upon, subject to and effective upon consummation of the Company's
Initial Public Offering, in order to memorialize certain agreements of the
parties with respect to the registration under the Securities Act (as defined
herein) of shares of Common Stock owned by JLL Building Products and the Other
Stockholders and to revise certain provisions of the Amended Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable consideration, the receipt
of which is hereby acknowledged, the parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
For purposes of this Agreement, the following terms shall have the
following meanings:
(a) The term "Board" shall mean the Board of Directors of the
Company.
(b) The term "Commission" shall mean the United States
Securities and Exchange Commission or any successor agency.
(c) The term "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder.
(d) The term "Fair Market Value" shall mean the fair market
value per share of the Common Stock as of a particular date determined as: (i)
the average closing sales price per share of the Common Stock on the national
securities exchange on which the Common Stock is principally traded, for the
last five preceding dates on which there was a sale of such Common Stock on such
exchange; or (ii) if the shares of Common Stock are then traded in an
over-the-counter market, the average of the closing bid and asked prices for the
shares of Common Stock in such over-the-counter market for the last preceding
five dates on which there was a sale of such Common Stock in such market; or
(iii) if the shares of Common Stock are not then listed on a national securities
exchange or traded in an over-the-counter market, such value as the Board, in
its good faith judgment, shall determine.
(e) The term "Initial Public Offering" shall mean the first
Public Offering of shares of Common Stock.
(f) The term "JLL Building Products" shall mean JLL Building
Products, LLC and any Permitted Transferees thereof to whom any of the Shares
are Transferred in accordance with Article III hereof.
(g) The term "Other Stockholders" shall mean Sherman, Horn,
▇'▇▇▇▇▇, and ▇▇▇▇▇▇▇▇▇ and any Permitted Transferees thereof to whom any of the
Shares are Transferred in accordance with Article III hereof.
(h) The term "Permitted Transferee" shall mean, with respect
to each Stockholder bound by the terms of this Agreement, (i) any lineal
descendant of such Stockholder or any Permitted Transferee of such lineal
descendent; (ii) the Company; (iii) in the event of the dissolution,
liquidation, or winding up of any such Stockholder that is a partnership or a
corporation, the partners of a partnership that is such Stockholder, the
stockholders of a corporation that is such Stockholder, or a successor
partnership all of the partners of which or a successor corporation all of the
stockholders of which are the Persons who were the partners of such partnership,
or the
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stockholders of such corporation immediately prior to the dissolution,
liquidation, or winding up of such Stockholder; (iv) a transferee by
testamentary or intestate disposition; (v) a transferee by inter vivos transfer
to the transferring Person's spouse, children, and/or other lineal descendants;
(vi) a trust transferee or family limited partnership by inter vivos transfer,
the beneficiaries or partners of which are the transferring Person, spouse,
children, and/or other lineal descendants; (vii) a successor nominee or trustee
for the beneficial owner of the Shares for which such Person acts as nominee or
trustee, as the case may be; or (viii) Permitted Transferees of any Permitted
Transferee.
(i) The term "Person" shall mean any individual, firm,
corporation, partnership, limited liability company, trust, or other entity and
shall include any successor (by merger or otherwise) of such entity.
(j) The term "Public Offering" shall mean a public offering of
equity securities of the Company pursuant to an effective registration statement
under the Securities Act (other than (i) a registration statement filed under
Regulation A or on form S-4 or any successor form or (ii) a registration
statement filed on Form S-8 or any successor form).
(k) The term "Registrable Securities" shall mean the Shares,
provided, however, that as to any particular Registrable Securities, such
securities shall cease to be Registrable Securities when (i) a registration
statement registering such securities under the Securities Act has been declared
effective and such securities have been sold or otherwise transferred by the
holder thereof pursuant to such effective registration statement; or (ii) such
securities are sold in accordance with Rule 144 (or any successor provision)
promulgated under the Securities Act; or (iii) such securities are transferred
under circumstances in which any legend borne by the certificates for such
securities relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed by the Company.
(l) The term "Registration Period" shall mean the period
commencing on the Registration Period Commencement Date and ending on the
seventh anniversary of the consummation of the Initial Public Offering.
(m) The term "Registration Period Commencement Date" shall
mean the date that is six months following the closing date of the Initial
Public Offering (or, if later, the date upon which the Stockholder's lock-up
agreement entered into with the underwriters in connection with the Initial
Public Offering expires).
(n) The term "Requisite Amount" shall mean such number of
shares of Registrable Securities having an aggregate Fair Market Value of
$125,000.
(o) The term "Securities Act" shall mean the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder.
(p) The term "Shares" shall mean (i) all shares of Common
Stock owned by the Stockholders as of the date hereof; (ii) additional shares of
Common Stock acquired by the Stockholders in any manner after the date hereof;
and (iii) any
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shares of Common Stock issuable upon exercise of vested options granted to any
Stockholder (including any options vesting as a result of any Transfer).
(q) The term "Stockholders" shall mean JLL Building Products,
Sherman, Horn, ▇'▇▇▇▇▇, and ▇▇▇▇▇▇▇▇▇ and any Permitted Transferees thereof to
whom any of the Shares are Transferred in accordance with Article III hereof.
(r) The term "Transfer" shall mean any voluntary or
involuntary attempt to, directly or indirectly through the transfer of interests
in controlled Affiliates or otherwise, offer, sell, assign, transfer, grant a
participation in, pledge, or otherwise dispose of any Shares, or the
consummation of any such transactions, or the soliciting of any offers to
purchase or otherwise acquire, or taking a pledge of, any of the Shares;
provided, however, that the transfer of an interest in any of the Stockholders
shall not be deemed to be a transfer.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.01 REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS.
Each Stockholder individually represents and warrants to the Company the
following:
(a) Such Stockholder has the requisite power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby in accordance with the terms hereof. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary action on the part of such
Stockholder; and
(b) This Agreement has been duly and validly executed and
delivered by such Stockholder and is, assuming due execution and delivery hereof
by the Company and that the Company has full legal power and right to enter into
this Agreement, a valid and binding obligation of such Stockholder, enforceable
against such Stockholder in accordance with its terms, except as enforcement
thereof may be limited by the effect of bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, or similar laws affecting the enforcement of
creditors' rights generally, and subject to principles of equity and public
policy; and
(c) Such Stockholder agrees to the imprinting, so long as
required by law, of legends on certificates representing all of the Shares to
the following effect:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS
OF ANY STATE. THE SECURITIES MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES
LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF SUCH ACT AND SUCH LAWS.
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THE SALE, ASSIGNMENT, HYPOTHECATION, PLEDGE, ENCUMBRANCE, OR OTHER
DISPOSITION (EACH A "TRANSFER") OF ANY OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE RESTRICTED BY THE TERMS OF THE SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT, DATED AS OF [ ------------------ ], 2005, AMONG JLL
BUILDING PRODUCTS, LLC, BUILDERS FIRSTSOURCE, INC., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇, ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, AND ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇. THE COMPANY WILL NOT REGISTER
THE TRANSFER OF SUCH SECURITIES ON THE BOOKS OF THE COMPANY UNLESS AND UNTIL THE
TRANSFER HAS BEEN MADE IN COMPLIANCE WITH THE TERMS OF THE STOCKHOLDERS
AGREEMENT.
SECTION 2.02 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to each of the Stockholders the following:
(a) The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware and has the
requisite corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby in accordance with the
terms hereof. The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of the Company; and
(b) This Agreement has been duly and validly executed and
delivered by the Company and is, assuming due execution and delivery hereof by
each of the Stockholders and that each of the Stockholders has full legal power
and right to enter into this Agreement, a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by the effect of bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, or similar laws affecting the
enforcement of creditors' rights generally, and subject to principles of equity
and public policy.
ARTICLE III
TRANSFER OF SHARES
SECTION 3.01 GENERAL RESTRICTIONS. Prior to the Registration Period
Commencement Date, without the prior written consent of JLL Building Products,
none of the Other Stockholders nor any of their Permitted Transferees may
Transfer any Shares except for (i) Transfers to any of their Permitted
Transferees; provided, however, that, prior to any such Transfer of Shares, such
Permitted Transferee shall agree in writing to take such Shares subject to, and
to comply with, all of the provisions of this Agreement, a copy of which
Agreement shall be executed by such Permitted Transferee and filed with the
Secretary of the Company and shall include the address of such Permitted
Transferee to which notices hereunder shall be sent or (ii) Transfers pursuant
to the provisions of Sections 3.04 and 3.05 hereof.
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SECTION 3.02 COMPLIANCE WITH SECURITIES LAWS. Each Stockholder
agrees that every Transfer of his Shares shall comply with all federal, state,
and local securities laws applicable to such Transfer.
SECTION 3.03 TRANSFERS NOT IN COMPLIANCE. In the event of any
purported or attempted Transfer of Shares by a Stockholder that does not comply
with this Agreement, the purported transferee or successor by operation of law
shall not be deemed to be a stockholder of the Company for any purpose and shall
not be entitled to any of the rights of a stockholder, including, without
limitation, the right to vote the Shares or to receive a certificate for the
Shares or any dividends or other distributions on or with respect to the Shares.
SECTION 3.04 TAG-ALONG RIGHTS. Except as provided below, if, at any
time prior to the Registration Period Commencement Date, JLL Building Products
proposes to Transfer directly or indirectly (through the transfer of interests
in JLL Building Products, its controlling stockholders, or otherwise) in one or
more transactions an amount equal to more than fifty percent (50%) of the number
of shares of Common Stock it holds immediately after the Initial Public Offering
to any Person, JLL Building Products shall provide each Other Stockholder (each
a "Notice Recipient") and the Company with not less than twenty (20) days' prior
written notice (the "Sale Notice") of such proposed Transfer, which notice shall
include all of the terms and conditions of such proposed Transfer and which
notice shall identify such purchaser; and the Notice Recipient shall have the
option, exercisable by written notice to JLL Building Products within ten (10)
days of receipt of the Sale Notice, to require JLL Building Products to arrange
for such purchaser or purchasers to purchase the same percentage (the
"Percentage") of the Shares then owned by such Notice Recipient as the ratio of
the total number of shares of Common Stock that are to be Transferred by JLL
Building Products pursuant to the proposed Transfer (including any previously
Transferred shares of Common Stock if pursuant to multiple Transfers) to the
total number of shares of Common Stock owned by JLL Building Products
immediately prior to such Transfer, or any lesser amount of Shares as such
Notice Recipient shall desire, together with JLL Building Products' shares of
Common Stock at the same time as, and upon the same terms and conditions at
which, JLL Building Products sells its shares of Common Stock. If a Notice
Recipient shall so elect, JLL Building Products agrees that it shall either (a)
arrange for the proposed purchaser or purchasers to purchase all or a portion
(as such Notice Recipient shall specify) of the same Percentage of the Shares
then owned by such Notice Recipient at the same time as and upon the same terms
and conditions at which JLL Building Products sells its shares of Common Stock,
and, provided that, if such purchaser or purchasers shall elect to purchase only
such aggregate number of shares of Common Stock as originally agreed with JLL
Building Products, then the number of shares of Common Stock to be sold by JLL
Building Products and the number of Shares to be sold by all Notice Recipients
electing to participate in the proposed Transfer shall be reduced PRO RATA to
such aggregate number; or (b) not effect the proposed Transfer to such purchaser
or purchasers. In the event that a Notice Recipient does not exercise its right
to participate in such Transfer or declines so to participate, JLL Building
Products shall have 120 days from the date of such Sale Notice to consummate the
transaction on
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the terms set forth therein without being required to provide an additional Sale
Notice to the remaining Other Stockholders and comply with the terms of this
Section 3.04.
SECTION 3.05 DRAG-ALONG RIGHTS. If at any time prior to the
Registration Period Commencement Date, JLL Building Products proposes to
Transfer all or substantially all of its shares of Common Stock (other than to a
Permitted Transferee), JLL Building Products shall have the right, upon not less
than twenty (20) days' prior written notice of such proposed sale (the "Purchase
Notice"), which notice shall include all of the terms and conditions of such
proposed sale and which notice shall identify the proposed purchaser or
purchasers of such shares of Common Stock ("Drag Along Purchaser(s)"), to
require each of the Other Stockholders to sell to the Drag Along Purchaser(s)
that number of Shares ("Call Shares") equal to the product, rounded down to the
nearest whole number, of (a) a fraction, the numerator of which is the total
number of shares of Common Stock proposed to be sold by JLL Building Products,
together with its Permitted Transferees, and the denominator of which is the
total number of shares of Common Stock then owned by JLL Building Products
multiplied by (b) the number of Shares then owned by such Other Stockholder. If
JLL Building Products shall so elect, JLL Building Products shall arrange for
such Drag Along Purchaser(s) to purchase the Call Shares at the same time as and
upon the same terms and conditions at which JLL Building Products sells its
shares of Common Stock. Upon receipt of the Purchase Notice, each of the Other
Stockholders shall cooperate with JLL Building Products and otherwise take, or
cause to be taken, all actions and do, or cause to be done, all things necessary
or appropriate to enter into, consummate, and make effective the sale and
purchase of the Call Shares, together with JLL Building Products' shares of
Common Stock being so Transferred.
SECTION 3.06 EFFECT OF NOTICES. Notwithstanding any provision hereof
to the contrary, the giving to any Stockholder of any Sale Notice or any
Purchase Notice shall not obligate JLL Building Products to consummate or effect
any transaction referred to therein, and JLL Building Products shall be free to
abandon any such transaction prior to the effectiveness thereof. If any such
transaction is so abandoned, the Other Stockholders and JLL Building Products
shall continue to be subject to the terms of this Article III with respect to
the Shares included in such Sale Notice or Purchase Notice.
ARTICLE IV
REGISTRATION RIGHTS
SECTION 4.01 DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. At any time after the
Registration Period Commencement Date, subject to the conditions set forth
herein, JLL Building Products (or, in the event that JLL Building Products has
distributed its Registrable Securities to its members or the partners of its
members, the holders of a majority of Registrable Securities then owned by all
of such members and partners, which for purposes of this Article IV shall have
all of the rights and obligations of JLL
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Builing Products) shall be entitled to make a written request of the Company (a
"Demand") for registration under the Securities Act of all or part of its
Registrable Securities (a "Demand Registration"). Such Demand shall specify: (i)
the aggregate number of Registrable Securities requested to be registered;
provided that such Registrable Securities must have an aggregate Fair Market
Value of at least $10,000,000; and (ii) the intended method of distribution in
connection with such Demand Registration to the extent then known. Within ten
(10) business days of receipt of a Demand, the Company shall give written notice
of such Demand to each Other Stockholder and shall include in such registration
all Registrable Securities with respect to which the Company has received a
written request for inclusion therein within ten (10) business days of the
receipt by such Stockholder of the Company's notice as required by Section 4.02
of this Agreement.
(b) NUMBER OF DEMANDS. JLL Building Products shall be entitled
to four (4) Demand Registrations.
(c) SATISFACTION OF OBLIGATIONS. Subject to the provisions of
Section 4.03, a registration shall not be treated as a permitted Demand for a
Demand Registration until (i) the applicable registration statement under the
Securities Act has been filed with the Commission with respect to such Demand
Registration (which shall include any registration statement that is not
withdrawn by holders of Registrable Securities in the circumstances contemplated
by Section 4.03); and (ii) such registration statement shall have been
maintained continuously effective for a period of at least one hundred twenty
(120) days or such shorter period during which all Registrable Securities
included therein have been disposed of thereunder in accordance with the method
of distribution set forth in such registration statement.
(d) AVAILABILITY OF SHORT FORM REGISTRATIONS. The Company
shall use its commercially reasonable efforts to comply with the requirements
for use of short form registration for the sale of Registrable Securities under
the Securities Act.
(e) RESTRICTIONS ON DEMAND REGISTRATIONS. The Company shall
not be obligated (i) in the case of a Demand Registration, to maintain the
effectiveness of a registration statement under the Securities Act for a period
longer than 120 days; or (ii) to effect any Demand Registration within one
hundred eighty (180) days of the effective date of (A) a registration in which
JLL Building Products and the Other Stockholders were given "piggyback" rights
pursuant to Section 4.02 hereof (provided that, with respect to such a
registration in which such piggyback rights were exercised, JLL Building
Products and the Other Stockholders were permitted to include in such
registration twenty-five percent (25%) of the Registrable Securities that such
Stockholder sought to include therein) or (B) any other Demand Registration. In
addition, the Company shall be entitled to postpone (upon written notice to JLL
Building Products) for up to ninety (90) days the filing or the effectiveness of
a registration statement in respect of a Demand (but no more than once in any
period of twelve (12) consecutive months) if the Board determines in good faith
and in its reasonable judgment that effecting the Demand Registration in respect
of such Demand would have a material adverse effect on any proposal or plan by
the Company to engage in any debt or equity offering, material
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acquisition, or disposition of assets (other than in the ordinary course of
business) or any merger, consolidation, tender offer, or other similar
transaction or otherwise would be materially detrimental to the Company. In the
event of a postponement by the Company of the filing or effectiveness of a
registration statement in respect of a Demand, JLL Building Products shall have
the right to withdraw such Demand in accordance with Section 4.03 hereof.
(f) PARTICIPATION IN DEMAND REGISTRATIONS. Except with the
prior written consent of JLL Partners, the Company may not include any
securities to be sold for the Company's account in a Demand Registration. If, in
connection with a Demand Registration, any managing underwriter advises the
Company and JLL Building Products that, in its opinion, the inclusion of all the
Registrable Securities and, if authorized pursuant to this Article IV, other
securities of the Company, in each case, sought to be registered in connection
with such Demand Registration would adversely affect the marketability of the
Registrable Securities sought to be sold pursuant thereto, then the Company
shall include in the registration statement applicable to such Demand
Registration only such securities as the Company and JLL Building Products are
advised by such underwriter can be sold without such an effect (the "Maximum
Demand Number"), as follows and in the following order of priority:
(i) first, the number of Registrable Securities sought
to be registered by JLL Building Products and the Other
Stockholders, PRO RATA in proportion to the number of Registrable
Securities sought to be registered by each such Stockholder; and
(ii) second, if the number of Registrable Securities to
be included under clause (i) above is less than the Maximum Demand
Number, the number of securities sought to be included by each other
seller, PRO RATA in proportion to the number of securities sought to
be sold by all such other sellers, which in the aggregate, when
added to the number of securities to be included pursuant to clause
(i) above, equals the Maximum Demand Number.
(g) SELECTION OF UNDERWRITERS. If JLL Building Products
requests that such Demand Registration be an underwritten offering, then JLL
Building Products shall select a nationally recognized underwriter or
underwriters to manage and administer such offering, such underwriter or
underwriters, as the case may be, to be subject to the approval of the Company,
which approval shall not be unreasonably withheld or delayed.
(h) OTHER REGISTRATIONS. If the Company has received a Demand
and if the applicable registration statement in respect of such Demand has not
been withdrawn or abandoned, the Company shall not file or cause to be effected
any other registration of any of its equity securities or securities convertible
or exchangeable into or exercisable for its equity securities under the
Securities Act (other than a registration relating to the Company's employee
benefit plans, exchange offers by the Company, or a merger or acquisition of a
business or assets by the Company, including,
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without limitation, a registration on Form S-4 or S-8 or any successor form),
whether on its own behalf or at the request of any holder or holders of such
securities, until a period of at least ninety (90) days has elapsed from the
effective date of any Demand Registration, unless a shorter period of time is
approved by JLL Building Products. Notwithstanding the foregoing, the Company
shall be entitled to postpone any such Demand Registration and may file or cause
to be effected such other registration in accordance with the terms of Section
4.01(e) hereof.
SECTION 4.02 PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. During the Registration Period,
whenever the Company proposes to register any shares of its Common Stock or
Common Stock held by any stockholders of the Company under the Securities Act
(other than a registration under Regulation A or relating to the Company's
employee benefit plans, exchange offers by the Company, or a merger or
acquisition of a business or assets by the Company, including, without
limitation, a registration on Form S-4 or Form S-8 or any successor form) (a
"Piggyback Registration"), the Company shall give each of the Stockholders
prompt written notice thereof (but not less than ten (10) business days prior to
the filing by the Company with the Commission of any registration statement with
respect thereto). Such notice (a "Piggyback Notice") shall specify the number of
securities proposed to be registered, the proposed date of filing of such
registration statement with the Commission, the proposed means of distribution,
the proposed managing underwriter or underwriters (if any and if known), and a
good faith estimate by the Company of the proposed minimum offering price of
such securities. Upon the written request of a Stockholder given to the
Secretary of the Company within ten (10) business days of the receipt by such
Stockholder of the Piggyback Notice requesting that the Company include in such
registration Registrable Securities owned by such Stockholder in an amount equal
to or greater than the Requisite Amount (which written request shall specify the
number of Registrable Securities intended to be disposed of by such Stockholder
and the intended method of distribution thereof), the Company shall include in
such registration all Registrable Securities with respect to which the Company
has received such written requests for inclusion, in accordance with the terms
hereof.
(b) PRIORITY ON PIGGYBACK REGISTRATIONS. If, in connection
with a Piggyback Registration, any managing underwriter (or, if such Piggyback
Registration is not an underwritten offering, a nationally recognized
independent underwriter selected by the Company) advises the Company and the
holders of the Registrable Securities to be included in such Piggyback
Registration, that, in its opinion, the inclusion of all the securities sought
to be included in such Piggyback Registration by the Company, by any Persons
other than the Stockholders who have sought to have shares registered thereunder
pursuant to rights to demand (other than pursuant to so-called "piggyback" or
other incidental or participation registration rights) such registration (such
demand rights, being "Other Demand Rights" and such other Persons, being "Other
Demanding Sellers"), by any holders of securities (including the Stockholders)
seeking to sell such securities in such Piggyback Registration ("Piggyback
Sellers"), in each case, if any would materially adversely affect the
marketability of the securities sought to be sold pursuant thereto, then the
Company shall include in the registration statement applicable to such Piggyback
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Registration only such securities as the Company, the Other Demanding Sellers,
and the Piggyback Sellers are so advised by such underwriter can be sold without
such an effect (the "Maximum Piggyback Number"), as follows and in the following
order of priority:
(i) if the Piggyback Registration is an offering on
behalf of the Company and not any Person exercising Other Demand
Rights (whether or not other Persons seek to include securities
therein pursuant to so-called "piggyback" or other incidental or
participatory registration rights) (a "Primary Offering"), then (A)
first, such number of securities to be sold by the Company as the
Company, in its reasonable judgment and acting in good faith and in
accordance with sound financial practice, shall have determined, (B)
second, if the number of securities to be included under clause (A)
above is less than the Maximum Piggyback Number, PRO RATA in
proportion to the securities sought to be registered by all the
Piggyback Sellers which in the aggregate, when added to the number
of securities to be registered under clause (A) above, equals the
Maximum Piggyback Number;
(ii) if the Piggyback Registration is an offering other
than pursuant to a Primary Offering, then (A) first, such number of
securities sought to be registered by each Other Demanding Seller,
PRO RATA in proportion to the number of securities sought to be
registered by all such Other Demanding Sellers, (B) second, if the
number of securities to be included under clause (A) above is less
than the Maximum Piggyback Number, the number of securities sought
to be registered by each Piggyback Seller, PRO RATA in proportion to
the securities sought to be registered by all the Piggyback Sellers,
which in the aggregate, when added to the number of securities to be
registered under clause (A) above, equals the Maximum Piggyback
Number.
(c) WITHDRAWAL BY THE COMPANY. If, at any time after giving
written notice of its intention to register any of its securities as set forth
in this Section 4.02 and prior to the time the registration statement filed in
connection with such registration is declared effective, the Company shall
determine not to go forward with a Primary Offering, the Company may, at its
election, give written notice of such determination to each Stockholder and
thereupon shall be relieved of its obligation to register any Registrable
Securities in connection with such particular withdrawn or abandoned
registration (but not from its obligation to pay the Registration Expenses in
connection therewith as provided herein).
SECTION 4.03 WITHDRAWAL RIGHTS. Any Stockholder having notified or
directed the Company to include any or all of its Registrable Securities in a
registration statement under the Securities Act shall have the right to withdraw
any such notice or direction with respect to any or all of the Registrable
Securities designated for registration thereby by giving written notice to such
effect to the Company prior to the effective date of such registration
statement. In the event of any such withdrawal, the Company shall not include
such Registrable Securities in the applicable registration and
11
such Registrable Securities shall continue to be Registrable Securities
hereunder. No such withdrawal shall affect the obligations of the Company with
respect to the Registrable Securities not so withdrawn; provided that in the
case of a Demand Registration, if such withdrawal shall reduce the number of
Registrable Securities sought to be included in such registration below $10
million of aggregate Fair Market Value as of such date, then the Company shall
as promptly as practicable give each holder of Registrable Securities sought to
be registered notice to such effect, referring to this Agreement and summarizing
this Section 4.03, and within five (5) business days of the effectiveness of
such notice either the Company or the holders of a majority of the Registrable
Securities sought to be registered may, by written notices made to each holder
of Registrable Securities sought to be registered and the Company, elect that
such registration statement not be filed or, if theretofore filed, be withdrawn.
During such period of five (5) business days, the Company shall not file such
registration statement if not theretofore filed, or, if such registration
statement has been theretofore filed, the Company shall not seek, and shall use
its best efforts to prevent, the effectiveness thereof. Any Demand Registration
withdrawn in accordance with an election by JLL Building Products subsequent to
the effectiveness of the applicable Demand Registration Statement shall be
counted as a Demand Registration unless JLL Building Products reimburses the
Company for its reasonable out-of-pocket expenses related to the preparation and
filing of such registration statement (in which event such registration
statement shall not be counted as a Demand Registration hereunder).
SECTION 4.04 HOLDBACK AGREEMENTS. Each Stockholder agrees not to
effect any public sale or distribution (including sales pursuant to Rule 144) of
equity securities of the Company, or any securities convertible into or
exchangeable or exercisable for such securities, during the ten (10) day period
prior to the date on which the Company intends to commence a Public Offering
(provided the Stockholders are notified in writing of such commencement date)
through the ninety (90) day period immediately following the effective date of
any such Public Offering (except as part of such registration), or, if later,
the 90 day period immediately following the execution date of any underwriting
agreement with respect thereto.
SECTION 4.05 REGISTRATION PROCEDURES.
(a) Whenever the Stockholders have requested that any
Registrable Securities be registered pursuant to this Agreement, the Company
(subject to its right to withdraw such registration as contemplated by Section
4.02(c)) shall use commercially reasonable efforts to effect the registration
and the sale of such Registrable Securities in accordance with the intended
method of disposition thereof and, in connection therewith, the Company shall:
(i) use commercially reasonable efforts to (A) register
the Registrable Securities on Form S-3 or another available short
form registration statement, to the extent permitted under the
Securities Act, (B) cause the registration statement to remain
effective for a continuous period of not less than 180 days (or, if
earlier, until all of the Registrable Securities included in such
registration statement have been sold
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thereunder), subject to Section 4.05(c), and (C) obtain the
withdrawal of any order suspending the registration or qualification
(or the effectiveness thereof) or suspending or preventing the use
of any related prospectus in any jurisdiction with respect thereto;
(ii) promptly notify each seller of Registrable
Securities of each of (A) the filing and effectiveness of the
registration statement and prospectus and any amendment or
supplements thereto, (B) the receipt of any comments from the
Commission or any state securities law authorities or any other
governmental authorities with respect to any such registration
statement or prospectus or any amendments or supplements thereto,
and (C) any oral or written stop order with respect to such
registration, any suspension of the registration or qualification of
the sale of such Registrable Securities in any jurisdiction, or any
initiation or threatening of any proceedings with respect to any of
the foregoing;
(iii) furnish to each seller of Registrable Securities,
the underwriters, and the sales or placement agent, if any, and
counsel for each of the foregoing, a conformed copy of such
registration statement and each amendment and supplement thereto (in
each case, including all exhibits thereto and documents incorporated
by reference therein) and such additional number of copies of such
registration statement, each amendment, and supplement thereto (in
such case without such exhibits and documents), the prospectus
(including each preliminary prospectus) included in such
registration statement, and prospectus supplements and all exhibits
thereto and documents incorporated by reference therein, and such
other documents as such seller, underwriter, agent, or counsel may
reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such seller;
(iv) use commercially reasonable efforts to register or
qualify such Registrable Securities under such securities or "blue
sky" laws of such jurisdictions as the holders of Registrable
Securities reasonably request and do any and all other acts and
things that may be reasonably necessary or advisable to enable the
holders of Registrable Securities to consummate the disposition in
such jurisdictions of the Registrable Securities owned by such
holders and keep such registration or qualification in effect for so
long as the registration statement remains effective under the
Securities Act (provided that the Company shall not be required to
(x) qualify generally to do business in any jurisdiction in which it
would not otherwise be required to qualify but for this paragraph,
(y) subject itself to taxation in any such jurisdiction in which it
would not otherwise be subject to taxation but for this paragraph or
(z) consent to the general service of process in any jurisdiction in
which it would not otherwise be subject to general service of
process but for this paragraph);
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(v) notify each seller of such Registrable Securities,
at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, upon the discovery that, or of
the happening of any event as a result of which, the registration
statement covering such Registrable Securities, as then in effect,
contains an untrue statement of a material fact or omits to state
any material fact required to be stated therein or any fact
necessary to make the statements therein not misleading, and
promptly prepare and furnish to each such seller a supplement or
amendment to the prospectus contained in such registration statement
so that such Registration Statement shall not, and such prospectus
as thereafter delivered to the purchasers of such Registrable
Securities shall not, contain an untrue statement of a material fact
or omit to state any material fact required to be stated therein or
any fact necessary to make the statements therein not misleading;
(vi) use commercially reasonable efforts to cause all
such Registrable Securities to be listed on any securities exchange
or established over-the-counter market on which or through which
similar securities of the Company are listed or traded and, if not
so listed or traded, to be listed on the NASD automated quotation
system ("Nasdaq") and, if listed on Nasdaq, use commercially
reasonable efforts to secure designation of all such Registrable
Securities covered by such registration statement as a Nasdaq
"national market system security" within the meaning of Rule 11Aa2-1
under the Exchange Act; or, failing that, to secure Nasdaq
authorization for such Registrable Securities;
(vii) make available for inspection by any seller of
Registrable Securities and any attorney, accountant, or other agent
retained by any such seller or underwriter all financial and other
records, pertinent corporate documents, and properties of the
Company, and cause the Company's officers, directors, employees,
attorneys, and independent accountants to supply all information
reasonably requested by any such sellers, attorneys, accountants, or
agents in connection with such registration statement. Information
that the Company determines, in good faith, to be confidential shall
not be disclosed by such persons unless (x) the disclosure of such
information is necessary to avoid or correct a misstatement or
omission in such registration statement, or (y) the release of such
information is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction. Each seller of Registrable
Securities agrees, on its own behalf and on behalf of all its
accountants, attorneys. and agents, that the information obtained by
it as a result of such inspections shall be deemed confidential and
shall not be used by it as the basis for any market transactions in
the securities of the Company unless and until such is made
generally available to the public. Each seller of Registrable
Securities further agrees, on its own behalf and on behalf of all
its accountants, attorneys, and agents, that it will, upon learning
that disclosure of such information is sought in a court of
competent
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jurisdiction, give notice to the Company and allow the Company, at
the Company's expense, to undertake appropriate action to prevent
disclosure of the information deemed confidential;
(viii) use commercially reasonable efforts to comply
with all applicable laws related to such registration statement and
offering and sale of securities and all applicable rules and
regulations of governmental authorities in connection therewith
(including, without limitation, the Securities Act and the Exchange
Act) and make generally available to its security holders as soon as
practicable (but in any event not later than fifteen (15) months
after the effectiveness of such registration statement) an earnings
statement of the Company and its subsidiaries complying with Section
11(a) of the Securities Act;
(ix) permit any Stockholder, which Stockholder, in its
sole and exclusive judgment, might be deemed to be an underwriter or
controlling person of the Company, to participate in the preparation
of such registration statement and to require the insertion therein
of material, furnished to the Company in writing, that in the
reasonable judgment of such holder and such holder's counsel should
be included; and
(x) use commercially reasonable efforts to furnish to
each seller of Registrable Securities a signed counterpart of (x) an
opinion of counsel for the Company and (y) a "comfort" letter signed
by the independent public accountants who have certified the
Company's financial statements included or incorporated by reference
in such registration statement, covering such matters with respect
to such registration statement and, in the case of the accountants'
comfort letter, with respect to events subsequent to the date of
such financial statements, as are customarily covered in opinions of
issuer's counsel and in accountants' comfort letters delivered to
the underwriters in underwritten public offerings of securities for
the account of, or on behalf of, an issuer of common stock, such
opinion and comfort letters to be dated the date of such opinions
and comfort letters are customarily dated in such transactions, and
covering in the case of such legal opinion, such other legal matters
and, in the case of such comfort letter, such other financial
matters, as the holders of a majority of the Registrable Securities
being sold may reasonably request.
(b) UNDERWRITING. Without limiting any of the foregoing, in
the event that the offering of Registrable Securities is to be made by or
through an underwriter, the Company shall enter into an underwriting agreement
with a managing underwriter or underwriters containing representations,
warranties, indemnities, and agreements customarily included (but not
inconsistent with the agreements contained herein) by an issuer of common stock
in underwriting agreements with respect to offerings of common stock for the
account of, or on behalf of, such issuers. In connection with the sale of
Registrable Securities hereunder, any seller of such
15
Registrable Securities may, at its option, require that any and all
representations and warranties by, and indemnities and agreements of, the
Company to or for the benefit of such underwriter or underwriters (or which
would be made to or for the benefit of such an underwriter or underwriter if
such sale of Registrable Securities were pursuant to a customary underwritten
offering) be made to and for the benefit of such seller and that any or all of
the conditions precedent to the obligations of such underwriter or underwriters
(or which would be so for the benefit of such underwriter or underwriters under
a customary underwriting agreement) be conditions precedent to the obligations
of such seller in connection with the disposition of its securities pursuant to
the terms hereof. In connection with any offering of Registrable Securities
registered pursuant to this Agreement, the Company shall (x) furnish to the
underwriter, if any (or, if no underwriter, the sellers of such Registrable
Securities), unlegended certificates representing ownership of the Registrable
Securities being sold, in such denominations as requested and (y) instruct any
transfer agent and registrar of the Registrable Securities to release any stop
transfer order with respect thereto.
(c) RETURN OF PROSPECTUSES. Each seller of Registrable
Securities hereunder agrees that upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 4.05(a)(v), such
seller shall forthwith discontinue such seller's disposition of Registrable
Securities pursuant to the applicable registration statement and prospectus
relating thereto until such seller's receipt of the copies of the supplemented
or amended prospectus contemplated by Section 4.05(a)(v) and, if so directed by
the Company, deliver to the Company all copies, other than permanent file
copies, then in such seller's possession of the prospectus current at the time
of receipt of such notice relating to such Registrable Securities. In the event
the Company shall give such notice, the one hundred and eighty (180) day period
during which such registration statement must remain effective pursuant to
Section 4.05(a)(i) of this Agreement (or such shorter period as permitted by
Section 4.05(a)(i)) shall be extended by the number of days during the period
from the date of giving of a notice regarding the happening of an event of the
kind described in Section 4.05(a)(v) to the date when all such sellers shall
receive such a supplemented or amended prospectus and such prospectus shall have
been filed with the Commission.
SECTION 4.06 REGISTRATION EXPENSES. All expenses incident to the
Company's performance of, or compliance with, its obligations under this
Agreement including, without limitation, all registration and filing fees, all
fees and expenses of compliance with securities and "blue sky" laws (including,
without limitation, the fees and expenses of counsel for underwriters or
placement or sales agents in connection therewith), all printing and copying
expenses, all messenger and delivery expenses, all fees and expenses of
underwriters and sales and placement agents in connection therewith (excluding
discounts and commissions of such underwriters or placement agents), all fees
and expenses of the Company's independent certified public accountants and
counsel (including, without limitation, with respect to "comfort" letters and
opinions) (collectively, the "Registration Expenses") shall be borne by the
Company; notwithstanding the foregoing, all underwriting discounts and
commissions allocable to each Stockholder selling Registrable Securities shall
be borne by such Stockholder. The Company shall not be responsible for the fees
and expenses of any additional counsel, or
16
any of the accountants, agents, or experts retained by the Stockholders in
connection with the sale of Registrable Securities. The Company will pay its
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties, the expense of
any annual audit, and the expense of any liability insurance) and the expenses
and fees for listing the securities to be registered on each securities exchange
and included in each established over-the-counter market on which similar
securities issued by the Company are then listed or traded or for listing on
Nasdaq.
SECTION 4.07 INDEMNIFICATION.
(a) BY THE COMPANY. The Company agrees to indemnify, to the
fullest extent permitted by law, each holder of Registrable Securities being
sold, its directors, and each Person who controls (within the meaning of the
Securities Act) such holder against all losses, claims, damages, liabilities,
and expenses (including legal fees and expenses and all costs incident to
investigation or preparation with respect to such losses, claims, damages,
liabilities, and expenses and to reimburse such indemnified Person for such
costs as incurred) (collectively, the "Losses") caused by, resulting from, or
relating to any untrue or alleged untrue statement of material fact contained in
any registration statement, prospectus, or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or a fact necessary to make the
statements therein not misleading, except insofar as the same are caused by or
contained in any information furnished to the Company by or on behalf of such
holder in writing expressly for use therein or by such holder's failure to
deliver a copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such holder with a
sufficient number of copies of the same and notified such holder of such
obligation. In connection with an underwritten offering and without limiting any
of the Company's other obligations under this Agreement, the Company shall
indemnify such underwriters, their officers, directors, employees, and agents
and each Person who controls (within the meaning of the Securities Act) such
underwriters or such an other indemnified Person to the same extent as provided
above with respect to the indemnification of the holders of Registrable
Securities being sold.
(b) BY THE STOCKHOLDERS. In connection with any registration
statement in which a holder of Registrable Securities is participating, each
such holder will, if requested, furnish to the Company in writing information
regarding such holder's ownership of Registrable Securities and, to the extent
permitted by law, shall indemnify the Company, its directors, and each Person
who controls (within the meaning of the Securities Act) the Company against all
Losses caused by, resulting from, or relating to any untrue or alleged untrue
statement of material fact contained in the registration statement, prospectus,
or preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the extent
that such untrue statement or omission is caused by and contained in such
information so furnished to the Company in writing by or on behalf of such
holder; provided, however, that each holder's obligation to indemnify the
Company hereunder
17
shall be apportioned between each holder based upon the net amount received by
each holder from the sale of Registrable Securities, as compared to the total
net amount received by all of the holders of Registrable Securities sold
pursuant to such registration statement, no such holder being liable to the
Company in excess of such apportionment.
(c) NOTICE. Any Person entitled to indemnification hereunder
shall give prompt written notice to the indemnifying party of any claim with
respect to which its seeks indemnification; provided, however, the failure to
give such notice shall not release the indemnifying party from its obligation,
except to the extent that the indemnifying party has been materially prejudiced
by such failure to provide such notice.
(d) DEFENSE OF ACTIONS. In any case in which any such action
is brought against any indemnified party, and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein, and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof the indemnifying party will not (so long as it shall
continue to have the right to defend, contest, litigate, and settle the matter
in question in accordance with this paragraph) be liable to such indemnified
party hereunder for any legal or other expense subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation, supervision and monitoring (unless such indemnified
party reasonably objects to such assumption on the grounds that there may be
defenses available to it that are different from or in addition to the defenses
available to such indemnifying party, in which event the indemnified party shall
be reimbursed by the indemnifying party for the expenses incurred in connection
with retaining separate legal counsel). An indemnifying party shall not be
liable for any settlement of an action or claim effected without its consent.
The indemnifying party shall lose its right to defend, contest, litigate, and
settle a matter if it shall fail diligently to contest such matter (except to
the extent settled in accordance with the next following sentence). No matter
shall be settled by an indemnifying party without the consent of the indemnified
party (which consent shall not be unreasonably withheld).
(e) SURVIVAL. The indemnification provided for under this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified Person and will survive the transfer of
the Registrable Securities and the termination of this Agreement.
(f) CONTRIBUTION. If recovery is not available under the
foregoing indemnification provisions for any reason or reasons other than as
specified therein, any Person who would otherwise be entitled to indemnification
by the terms thereof shall nevertheless be entitled to contribution with respect
to any Losses with respect to which such Person would be entitled to such
indemnification but for such reason or reasons. In determining the amount of
contribution to which the respective Persons are entitled, there shall be
considered the Persons' relative knowledge and access to information concerning
the matter with respect to which the claim was asserted, the
18
opportunity to correct and prevent any statement or omission, and other
equitable considerations appropriate under the circumstances. It is hereby
agreed that it would not necessarily be equitable if the amount of such
contribution were determined by PRO RATA or per capita allocation. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not found guilty of such fraudulent misrepresentation. Notwithstanding the
foregoing, no Stockholder shall be required to make a contribution in excess of
the net amount received by such holder from the sale of Registrable Securities.
ARTICLE V
MISCELLANEOUS
SECTION 5.01 INCONSISTENT AGREEMENTS. Without the prior written
consent of JLL Building Products, the Company shall not enter into any
registration rights agreement that conflicts, or is inconsistent, with the
provisions of Article IV hereof.
SECTION 5.02 SPECIFIC PERFORMANCE. Each of the Stockholders
acknowledges and agrees that, in the event of any breach of this Agreement, the
non-breaching party or parties would be irreparably harmed and could not be made
whole by monetary damages. The Stockholders hereby agree that, in addition to
any other remedy to which any party may be entitled at law or in equity, they
shall be entitled to compel specific performance of this Agreement in any action
instituted in any court of the United States or any state thereof having subject
matter jurisdiction for such action.
SECTION 5.03 HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not control or affect the meaning or
construction of any provisions hereof.
SECTION 5.04 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding of the parties hereto in respect of the subject
matter contained herein, and there are no restrictions, promises,
representations, warranties, covenants, conditions, or undertakings with respect
to the subject matter hereof, other than those expressly set forth or referred
to herein. This Agreement supersedes all prior agreements and understandings
between the parties hereto with respect to the subject matter hereof.
SECTION 5.05 NOTICES. All notices and other communications hereunder
shall be in writing and shall be delivered personally or by next-day courier or
telecopied with confirmation of receipt to the parties at the addresses
specified below (or at such other address for a party as shall be specified by
like notice; provided that notices of change of address shall be effective only
upon receipt thereof). Any such notice shall be effective upon receipt, if
personally delivered or telecopied, or one day after delivery to a courier for
next-day delivery.
If to the Company, to:
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Builders FirstSource, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to JLL Building Products, to:
JLL Partners, Inc.
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to any Stockholder, to:
Builders FirstSource, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: [Stockholder]
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 5.06 APPLICABLE LAW. The substantive laws of the State of
Delaware shall govern the interpretation, validity, and performance of the terms
of this Agreement, regardless of the law that might be applied under applicable
principles of conflicts of laws.
SECTION 5.07 SEVERABILITY. The invalidity, illegality, or
unenforceability of one or more of the provisions of this Agreement in any
jurisdiction
20
shall not affect the validity, legality, or enforceability of the remainder of
this Agreement in such jurisdiction or the validity, legality, or enforceability
of this Agreement, including any such provision, in any other jurisdiction, it
being intended that all rights and obligations of the parties hereunder shall be
enforceable to the fullest extent permitted by law.
SECTION 5.08 SUCCESSORS; ASSIGNS. The provisions of this Agreement
shall be binding upon the parties hereto and their respective heirs, successors,
and permitted assigns. Neither this Agreement nor the rights or obligations of
any Stockholder hereunder may be assigned, except in connection with the
transfer by a Stockholder of shares of Common Stock to a Permitted Transferee or
as otherwise provided in this Agreement. Any such attempted assignment in
contravention of this Agreement shall be void and of no effect.
SECTION 5.09 AMENDMENTS. This Agreement may not be amended,
modified, or supplemented unless such modification is in writing and signed by
(a) the Company, (b) JLL Building Products and (c) Other Stockholders owning at
least 66?% of the outstanding shares of Common Stock held by the Other
Stockholders subject to this Agreement as of the date of such amendment.
SECTION 5.10 WAIVER. Any waiver (express or implied) of any default
or breach of this Agreement shall not constitute a waiver of any other or
subsequent default or breach.
SECTION 5.11 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same Agreement.
SECTION 5.12 TERM. This Agreement shall be subject to, and shall be
effective as of, the consummation of the Initial Public Offering. As of the time
that this Agreement becomes effective, the Amended Agreement shall immediately
terminate and all rights and obligations thereunder shall be of no further force
and effect. In the event that the Initial Public Offering is not consummated by
September 30, 2005, this Agreement shall not become effective, and the Amended
Agreement shall continue in full force and effect. Unless earlier terminated,
this Agreement shall terminate upon the seventh anniversary of the consummation
of the Initial Public Offering; provided, however, that to the extent that any
Demand Registration or Piggyback Registration has commenced at such time, this
Agreement shall remain in effect until the termination or expiration of such
Demand Registration or Piggyback Registration, as the case may be, and the
Stockholders' obligations pursuant to Section 4.04 hereof shall continue until
90 days following the effectiveness of the Registration Statement related
thereto. Notwithstanding the foregoing, at any time following the Registration
Period Commencement Date, any Stockholder may provide written notice to the
Company of its irrevocable election to withdraw from all of its rights and
obligations under this Agreement. In such event, from and after the date of such
notice, such Stockholder shall no longer be bound by any obligations, or be
entitled to any benefits, under this Agreement (other than those that have
accrued prior to such date) and from and after such
21
time, securities held by such Stockholder shall no longer be deemed to be
Registrable Securities hereunder.
[SIGNATURE PAGE FOLLOWS]
22
IN WITNESS WHEREOF, the undersigned hereby agree to be bound by the
terms and provisions of this Second Amended and Restated Stockholders Agreement
as of the date first above written.
BUILDERS FIRSTSOURCE, INC.
By:_________________________________________
Name:
Title:
JLL BUILDING PRODUCTS, LLC
By:_________________________________________
Name:
Title:
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