EXHIBIT 5
FIRST AMENDMENT
This FIRST AMENDMENT, dated as of April 8, 1997 (this "Amendment"), to
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the Amended and Restated Agreement of Limited Partnership, dated as of December
15, 1988 (the "Partnership Agreement"), of Borden Chemicals and Plastics Limited
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Partnership, a Delaware limited partnership (the "Partnership"), is entered into
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by and among BCP Management, Inc., a Delaware corporation, as general partner of
the Partnership, and those Persons listed in the books and records of the
Partnership as limited partners of the Partnership.
W I T N E S S E T H:
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WHEREAS, the Partnership is a limited partnership formed pursuant to
the provisions of the Delaware Revised Uniform Limited Partnership Act, 6 Del.
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C. (S) 17-101, et seq., as amended (the "Act"), and the Partnership Agreement;
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WHEREAS, pursuant to Section 4.4 of the Partnership Agreement, the
General Partner is authorized to cause the Partnership to issue any type of
equity security the Partnership may lawfully issue for any Partnership purpose,
at any time or from time to time, to the Partners or to other Persons for such
consideration and on such terms and conditions as shall be established by the
General Partner in its sole discretion, all without the approval of any Limited
Partners;
WHEREAS, pursuant to Sections 4.4(b) and 15.1 of the Partnership
Agreement, the General Partner may, without the approval of the Limited
Partners, amend the Partnership Agreement in any manner which it deems
appropriate or necessary to provide for each such issuance;
WHEREAS, the Board of Directors of the General Partner has determined
that it is fair and reasonable and in the best interests of the Partnership and
the holders of its Units that the Partnership enter into a Rights Agreement,
substantially in the form of Exhibit A to this Amendment (the "Rights
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Agreement"), providing for, inter alia, the issuance of rights to purchase Units
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of the Partnership;
WHEREAS, the Rights Agreement and the issuance of rights to purchase
Units thereunder have received the Special Approval of the Board of Directors of
the general partner; and
WHEREAS, the parties hereto wish to amend the Partnership Agreement to
provide for the creation and issuance of rights to purchase Units and to reflect
the provisions of the Rights Agreement.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements contained herein, and other good, sufficient and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, the parties hereto hereby amend the
Partnership Agreement as follows:
1. Defined Terms. Capitalized terms used but not defined herein
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shall have the meanings given to them in the Partnership Agreement
2. Amendments to the Partnership Agreement. The Partnership
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Agreement is hereby amended by inserting after Article XVII thereof a new
Article XVIII to read in its entirety as follows:
"Article XVIII
Special Matters Concerning Rights to Purchase Units
SECTION 18.1 Designation of Rights. At the direction of the General
Partner, the Partnership shall issue a series of securities designated the
"Rights to Purchase Units" (the "Rights"), each of which shall initially
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represent the right to purchase one Common Unit of the Partnership upon the
terms and subject to the conditions set forth in such Rights and in the
Rights Agreement, dated as of April 8, 1997, between the Partnership and
the Rights Agent named therein (the "Rights Agreement"), which is attached
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hereto as Exhibit A. The precise number of Rights so designated shall be
determined pursuant to the terms of the Rights Agreement.
SECTION 18.2 Issuance of Rights; Terms and Conditions of Rights;
Rights Agreement. The Rights shall be issued by the Partnership in
accordance with the Rights Agreement, and the terms and conditions of the
Rights, including, without limitation, those relating to (i) the
distribution of the Rights, (ii) the exercise of the Rights and the prices
(and any adjustments thereto) at which the Rights may be exercised, (iii)
the number of Units or other securities or property (and any adjustments
thereto) to be received upon exercise of the Rights, (iv) the transfer,
redemption or exchange of the Rights, (v) the certification of the Rights,
(vi) the termination of the Rights, and (vii) the rights and obligations of
a holder of Rights, in each case shall be as set forth in the Rights
Agreement, which is hereby incorporated by reference in its entirety into
this Agreement.
SECTION 18.3 Issuance of Units and Other Securities or Property. The
Partnership shall at all times reserve and keep available out of its
authorized but unissued Units, solely for the purpose of permitting the
exercise of all of the outstanding Rights from time to time, the full
number of Common Units which would then be issuable upon exercise of all of
the outstanding Rights, and the Partnership shall issue or cause to be
issued to the holders of the Rights such Common Units and other securities
and/or property to be received by such holders upon the exercise of the
Rights pursuant to the terms of the Rights Agreement."
3. No Other Amendments; Confirmation. Except as expressly amended,
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modified and supplemented hereby, the provisions of the Partnership Agreement
are and shall remain in full force and effect.
4. Governing Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
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THE PARTIES TO THE PARTNERSHIP AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
5. Binding Effect. The covenants and agreements contained herein
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shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors, legal representatives
and permitted assigns.
IN WITNESS WHEREOF, the General Partner has caused this Amendment to
be duly executed and delivered by one of its proper and duly authorized officers
as of the day and year first above written.
BCP MANAGEMENT, INC.
By: /s/ James O. Stevning
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Name: James O. Stevning
Title: Chief Financial Officer
LIMITED PARTNERS:
All Limited Partners now and hereafter
admitted as limited partners of the
Partnership, pursuant to Powers of
Attorney and authorizations now and
hereafter executed in favor of, and
granted and delivered to, the General
Partner:
By: BCP Management, Inc.
By: /s/ James O. Stevning
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Name: James O. Stevning
Title: Chief Financial Officer