EX-4.1:



 




Exhibit 4.1




SECOND AMENDED AND RESTATED

STOCKHOLDERS AGREEMENT




          This SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (“Agreement”), dated as of June 2,
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”), Floyd F. Sherman (“Sherman”),
Charles L. Horn (“Horn”), Kevin P. O’Meara (“O’Meara”), and Donald F. McAleenan (“McAleenan”),
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:




 









 




Exhibit 4.1






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, O’Meara, and McAleenan 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



2









 




Exhibit 4.1



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



3









 




Exhibit 4.1



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, O’Meara, and
McAleenan 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.



4









 




Exhibit 4.1



     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., FLOYD F. SHERMAN, CHARLES L. HORN, KEVIN P. O’MEARA, AND
DONALD F. MCALEENAN. 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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Exhibit 4.1





          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




6









 





Exhibit 4.1




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



7









 




Exhibit 4.1



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



8









 




Exhibit 4.1



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,



9









 




Exhibit 4.1



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



10









 




Exhibit 4.1



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









 




Exhibit 4.1





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



12









 




Exhibit 4.1




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);



13









 




Exhibit 4.1




          (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



14









 




Exhibit 4.1




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









 




Exhibit 4.1



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









 




Exhibit 4.1





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









 




Exhibit 4.1



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









 




Exhibit 4.1



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:





19









 




Exhibit 4.1





Builders FirstSource, Inc.

2001 Bryan Street, Suite 1600

Dallas, TX 75201

Attention: Donald F. McAleenan, Esq.

Fax: (214) 880-3599


with a copy to:


Skadden, Arps, Slate, Meagher & Flom LLP

One Rodney Square

Wilmington, DE 19801

Attention: Robert B. Pincus, Esq.

Fax: (302) 651-3001



          If to JLL Building Products, to:



JLL Partners, Inc.

450 Lexington Avenue

Suite 3350

New York, NY 10017

Attention: Ramsey Frank

Fax: (212)286-8626



with a copy to:



Skadden, Arps, Slate, Meagher & Flom LLP

One Rodney Square

Wilmington, DE 19801

Attention: Robert B. Pincus, Esq.

Fax: (302) 651-3001



          If to any Stockholder, to:



Builders FirstSource, Inc.

2001 Bryan Street, Suite 1600

Dallas, TX 75201

Attention: [Stockholder]

Fax: (214) 880-3599



          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









 




Exhibit 4.1





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 2/3% 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









 





Exhibit 4.1




time, securities held by such Stockholder shall no longer be deemed to be Registrable Securities
hereunder.




[SIGNATURE PAGE FOLLOWS]




22









 





Exhibit 4.1





     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:  	 	 
	 



	 	 	 
	 

	 	 
	 

	 	Floyd F. Sherman
	 

	 	 
	 

	 	 
	 

	 	Charles L. Horn
	 

	 	 
	 

	 	 
	 

	 	Kevin P. O’Meara
	 

	 	 
	 

	 	 
	 

	 	Donald F. McAleenan







23