AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 22, 2000
REGISTRATION NO. 333-________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under The Securities Act of 1933
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BUILDING MATERIALS HOLDING CORPORATION
(Exact name of Registrant as Specified in its Charter)
DELAWARE 91-1834269
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
ONE MARKET PLAZA
STEUART TOWER, SUITE 2650
SAN FRANCISCO, CA 94105
(415) 227-1650
(Address and telephone number of Principal Executive Offices)
BUILDING MATERIALS HOLDING CORPORATION 2000 STOCK INCENTIVE PLAN
(Full title of the Plan)
-----------------------
ROBERT E. MELLOR
CHIEF EXECUTIVE OFFICER
ONE MARKET PLAZA
STEUART TOWER, SUITE 2650
SAN FRANCISCO, CA 94105
(Name and Address of Agent for Service)
(415) 227-1650
(Telephone number, including area code, of agent for service)
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Copies to:
LAWRENCE CALOF
GIBSON, DUNN & CRUTCHER LLP
1530 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304
(650) 849-5300
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CALCULATION OF REGISTRATION FEE
================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED (1) PER SHARE (2) OFFERING PRICE FEE
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Common Stock,
par value $.001
per share......... 1,100,000 $9.56 $10,516,000 $2,776.22
shares
================================================================================
(1) This Registration Statement also covers any additional shares of common
stock which become issuable under the Building Materials Holding Corporation
2000 Stock Incentive Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the receipt
of consideration which results in an increase in the number of the
outstanding shares of common stock of Building Materials Holding
Corporation.
(2) Calculated solely for purposes of this offering under Rule 457(h) and 457(c)
of the Securities Act of 1933, as amended, based on the average of the high
and low prices per share of common stock of Building Materials Holding
Corporation as reported on the Nasdaq National Market on August 17, 2000,
which was $9.56.
================================================================================
<PAGE>
Item 1. PLAN INFORMATION.
----------------
Not filed as part of this Registration Statement pursuant to Note to
Part I of Form S-8.
Item 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
-------------------------------------------------------------
Not filed as part of this Registration Statement pursuant to Note to
Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
---------------------------------------
The following documents of Building Materials Holding Corporation
("BMHC" or the "Registrant") previously filed with the Securities and Exchange
Commission (the "SEC") are hereby incorporated in this Registration Statement by
reference:
(1) the Registrant's annual report on Form 10-K filed with the SEC on March 30,
2000 for the fiscal year ended December 31, 1999;
(2) the Registrant's quarterly report on Form 10-Q filed with the SEC on May
12, 2000 for the fiscal quarter ended March 31, 2000;
(3) the Registrant's quarterly report on Form 10-Q filed with the SEC on August
14, 2000 for the fiscal quarter ended June 30, 2000;
(4) the Registrant's Proxy Statement pursuant to Rule 14(a) of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), filed with the SEC on
April 5, 2000; and
(5) the description of the Registrant's common stock contained in the
Registrant's current report on Form 8-K filed with the SEC on September 24,
1997.
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a) and (c), 14 and 15(d) of the 1934 Act, prior to the
filing of a post-effective amendment which indicates that all securities offered
hereunder have been sold or which deregisters all such securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such reports and
documents.
Any document, and any statement contained in a document, incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained herein, or in any other subsequently filed document that
also is incorporated or deemed to be incorporated by reference herein, modifies
or supersedes such document or statement. Any such document or statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement. Subject to the foregoing,
all information appearing in this Registration Statement is qualified in its
entirety by the information appearing in the documents incorporated by
reference.
Item 4. DESCRIPTION OF SECURITIES.
-------------------------
Not applicable.
<PAGE>
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
--------------------------------------
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
-----------------------------------------
BMHC's Bylaws provide that BMHC will indemnify its directors and
executive officers and may indemnify its other officers, employees, and other
agents to the fullest extent not prohibited by law. BMHC believes that
indemnification under its Bylaws covers at least negligence and gross negligence
by indemnified parties, and requires BMHC to advance litigation expenses in the
case of certain shareholder derivative actions or other actions. BMHC is also
empowered under its Bylaws to enter into indemnification contracts with its
directors and executive officers and to purchase insurance on behalf of any
person that BMHC is required or permitted to indemnify. In accordance with such
provision, BMHC has entered into indemnity agreements with each of its directors
and executive officers. BMHC also has in effect directors and executive officers
liability insurance coverage.
BMHC's Certificate of Incorporation provides that, under Delaware law,
its directors will not be liable for monetary damages for breach of the
directors' fiduciary duty of care to BMHC and its shareholders. This provision
in the Certificate of Incorporation does not eliminate the duty of care, and in
appropriate circumstances equitable remedies such as injunctive or other forms
of nonmonetary relief will remain available under Delaware law. In addition,
each director will continue to be subject to liability for breach of the
director's duty of loyalty to BMHC, for acts or omissions not in good faith or
involving intentional misconduct, for knowing violations of law, for actions
leading to improper personal benefit to the director, and for payment of
dividends or approval of stock repurchases or redemptions that are unlawful
under Delaware law. The provision also does not affect a director's
responsibilities under any other laws, such as the federal securities laws or
state or federal environmental laws.
Currently, there is no pending litigation or proceeding involving a
director, executive officer, employee, or other BMHC agent where indemnification
is sought. BMHC is not aware of any threatened litigation that may result in
indemnification claims by any director, executive officer, employee, or other
agent.
Any future transactions between BMHC and its executive officers,
directors and affiliates will be on terms no less favorable to BMHC than can be
obtained from unaffiliated third parties, and any material transactions with
such persons will be approved by a majority of BMHC's disinterested directors.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended ("1933 Act"), may be permitted to directors, officers or
persons controlling the Registrant pursuant to the foregoing provisions, the
Registrant has been informed that in the opinion of the Commission such
indemnification is against public policy as expressed in the 1933 Act and is
therefore unenforceable.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
-----------------------------------
Not applicable.
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<PAGE>
Item 8. EXHIBITS.
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4.0 Building Materials Holding Corporation 2000 Stock Incentive Plan
5.0 Opinion of Gibson, Dunn & Crutcher LLP
23.1 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5.0)
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of Arthur Andersen LLP
24.0 Power of Attorney (included on the signature page hereof)
Item 9. UNDERTAKINGS.
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A. The Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement (i) to
include any prospectus required by Section 10(a)(3) of the 1933 Act, (ii) to
reflect in the prospectus any facts or events arising after the effective date
of this Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement, and (iii) to
include any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change to
such information in this Registration Statement; provided, however, that clauses
(1)(i) and (1)(ii) shall not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act
that are incorporated by reference into this Registration Statement;
(2) that for the purpose of determining any liability under
the 1933 Act each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the Registrant's 2000 Stock Incentive Plan.
B. The Registrant hereby undertakes that, for purposes of determining
any liability under the 1933 Act, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is incorporated
by reference into this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the 1933
Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the indemnification provisions summarized in Item 6 of
this Registration Statement or otherwise, the Registrant has been advised that,
in the opinion of the SEC, such indemnification is against public policy as
expressed in the 1933 Act, and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the 1933 Act
and will be governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8, and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in San Francisco, California, on this 14th day of August, 2000
BUILDING MATERIALS HOLDING CORPORATION
By: /S/ ROBERT E. MELLOR
____________________________________________
Robert E. Mellor
President, Chief Executive Officer and Director
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<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS
Each person whose signature appears below constitutes and appoints
Robert E. Mellor, Ellis C. Goebel and Robert L. Becci, and each of them, as his
or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or his or her
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
This power of attorney may be signed in several counterparts.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/S/ ROBERT E. MELLOR August 14, 2000
------------------------------------ President, Chief Executive Officer and
Robert E. Mellor Director (Principal Executive Officer)
/S/ ELLIS C. GOEBEL August 14, 2000
----------------------------------- Senior Vice President - Finance and
Ellis C. Goebel Treasurer (Principal Financial Officer)
/S/ ROBERT L. BECCI August 14, 2000
----------------------------------- Vice President and Controller
Robert L. Becci (Principal Accounting Officer)
/S/ GEORGE E. MCCOWN August 14, 2000
----------------------------------- Chairman of the Board
George E. McCown
/S/ ALEC F. BECK August 14, 2000
----------------------------------- Director
Alec F. Beck
/S/ H. JAMES BROWN August 14, 2000
----------------------------------- Director
H. James Brown
/S/ WILBUR J. FIX August 14, 2000
----------------------------------- Director
Wilbur J. Fix
/S/ ROBERT V. HANSBERGER August 14, 2000
----------------------------------- Director
Robert V. Hansberger
/S/ DONALD S. HENDRICKSON August 14, 2000
----------------------------------- Director
Donald S. Hendrickson
/S/ GUY O. MABRY August 14, 2000
----------------------------------- Director
Guy O. Mabry
/S/ PETER S. O'NEILL August 14, 2000
----------------------------------- Director
Peter S. O'Neill
</TABLE>
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<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION
4.0 Building Materials Holding Corporation 2000 Stock Incentive Plan
5.0 Opinion of Gibson, Dunn & Crutcher LLP
23.1 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5.0)
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of Arthur Andersen LLP
24.0 Power of Attorney (included on the signature page hereof)
6
