EXHIBIT 99(c)2
FIFTH AMENDMENT
to
RIGHTS AGREEMENT DATED AS OF NOVEMBER 25, 1986
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FIFTH AMENDMENT (the "Amendment") dated as of April 5,
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1996 to the Rights Agreement dated as of November 25, 1986, as
amended (the "Rights Agreement"), between Bird Corporation (the
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"Company") and American Stock Transfer & Trust Company (the
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"Rights Agent").
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WITNESSETH:
WHEREAS, the Company intends to enter into an Amended
and Restated Agreement and Plan of Merger dated as of April 8,
1996 (the "Merger Agreement") with CertainTeed Corporation, a
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Delaware corporation ("CertainTeed"), and BI Expansion
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Corporation, a Massachusetts corporation ("Acquisition Sub")
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and a wholly owned subsidiary of CertainTeed, pursuant to which
(i) Acquisition Sub will make an offer to purchase all
outstanding shares of common stock and preference stock of the
Company on the terms set forth therein (the "Offer"), (ii)
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Acquisition Sub will merge (the "Merger") with and into the
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Company, which will thereby become a wholly owned subsidiary of
CertainTeed, and (iii) the Company's shareholders (other than
shareholders who perfect appraisal rights) will be entitled to
receive the consideration provided in the Merger Agreement upon
consummation of the Merger;
WHEREAS, the Company has determined that this
Amendment shall not adversely affect the interests of the
holders of the Rights Certificates;
WHEREAS, the Company and the Rights Agent desire to
amend the Rights Agreement in accordance with Section 26
thereof and this Amendment;
WHEREAS, it is contemplated that this Amendment be
executed by the Company and the Rights Agent before the Company
enters into the Merger Agreement;
NOW, THEREFORE, in consideration of the premises and
mutual agreements set forth in the Rights Agreement and this
Amendment, the parties hereto agree as follows:
1. The Rights Agreement is hereby amended by adding
the following new Section 34 after Section 33 thereof:
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"Section 34. CertainTeed Offer and Merger.
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Notwithstanding anything to the contrary herein, neither
CertainTeed Corporation, a Delaware corporation
("CertainTeed"), nor BI Expansion Corp., a Massachusetts
corporation ("Acquisition Sub"), or any affiliate thereof
shall be considered an Acquiring Person under this
Agreement and no Stock Acquisition Date, Triggering Event
or Distribution Date has occurred or will occur, in any
such case as a result of the approval, execution or
delivery of, or commencement or consummation of the
transactions contemplated by, the Amended and Restated
Agreement and Plan of Merger dated as of April 8, 1996 by
and among the Company, CertainTeed and Acquisition Sub,
including, without limitation the Offer (as defined in
such Merger Agreement); provided, however, that in the
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event that CertainTeed or Acquisition Sub or any affiliate
of CertainTeed becomes the Beneficial Owner of any shares
of Common Stock otherwise than pursuant to such Offer or
Merger Agreement the provisions of this sentence (other
than this proviso) shall not be applicable to such shares
of Common Stock which CertainTeed or Acquisition Sub or
any affiliate of CertainTeed so otherwise became the
Beneficial Owner."
; provided, however, that immediately upon (but not prior to)
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execution and delivery of the Merger Agreement the above
Section 34 shall be renumbered Section 33 and Section 33 added
pursuant to the Fourth Amendment to the Rights Agreement dated
March 14, 1996 shall be deleted in its entirety.
2. Exhibit B to the Rights Agreement is hereby
amended by adding the following paragraph before the last
paragraph thereof:
"Notwithstanding anything to the contrary in the
Rights Agreement, neither CertainTeed Corporation, a
Delaware corporation ("CertainTeed"), nor BI Expansion
Corp., a Massachusetts corporation ("Acquisition Sub"), or
any affiliate thereof will be considered an Acquiring
Person under the Rights Agreement and no Stock Acquisition
Date, Triggering Event or Distribution Date has occurred
or will occur, in any such case as a result of the
approval, execution or delivery of, or commencement or
consummation of the transactions contemplated by, the
Amended and Restated Agreement and Plan of Merger dated as
of April 8, 1996 by and among the Company, CertainTeed and
Acquisition Sub, including, without limitation the Offer
(as defined in
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such Merger Agreement); provided, however, that in the
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event that CertainTeed or Acquisition Sub or any
affiliate of CertainTeed becomes the Beneficial Owner
of any shares of Common Stock otherwise than pursuant to
such Offer or Merger Agreement the provisions of this
sentence (other than this proviso) shall not be applicable
to such shares of Common Stock which CertainTeed or
Acquisition Sub or any affiliate of CertainTeed so
otherwise became the Beneficial Owner."
; provided, however, that immediately upon (but not prior to)
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the execution and delivery of the Merger Agreement the
paragraph added to Exhibit B to the Rights Agreement by the
Fourth Amendment to the Rights Agreement dated March 14, 1996
shall be deleted in its entirety.
3. The term "Agreement" as used in the Rights
Agreement shall be deemed to refer to the Rights Agreement as
amended to the date hereof.
4. This Amendment shall be deemed to be a contract
made under the laws of the Commonwealth of Massachusetts and
for all purposes shall be governed by and construed in
accordance with the laws of such Commonwealth applicable to
contracts to be made and performed entirely with such
Commonwealth.
5. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be executed by their duly authorized officers
as of the date first written above.
BIRD CORPORATION
By: /s/ Frank Anthony
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Name: Frank Anthony
Title: Vice President
AMERICAN STOCK TRANSFER & TRUST
COMPANY
By: /s/ Robert Shiner
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Name: Robert Shiner
Title: Vice President