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As filed with the Securities and Exchange Commission on September 27, 1996
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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NCI BUILDING SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 76-0127701
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7301 FAIRVIEW
HOUSTON, TEXAS 77041
(713) 466-7788
(Address of registrant's principal executive offices)
NCI NONQUALIFIED STOCK OPTION PLAN
(Full Title of Plan)
---------------------------
Johnie Schulte Copy to: John K. Sterling, Esq.
President and Chief Executive Officer Gardere & Wynne, L.L.P.
NCI Building Systems, Inc. 1601 Elm Street
7301 Fairview Suite 3000
Houston, Texas 77041 Dallas, Texas 75201
(713) 466-7788 (214) 999-4925
(Name and address, including zip code, and telephone number,
including area code, of registrant's agent for service)
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS PROPOSED MAXIMUM PROPOSED MAXIMUM
OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED (1) SHARE (2) PRICE (1)(2) REGISTRATION FEE (2)
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<S> <C> <C> <C> <C> <C>
Common Stock, $.01 par value 500,000 shs. $31.50 $14,841,164.00 $5,118.00
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</TABLE>
(1) There are also registered hereby such indeterminate number of
shares of Common Stock as may become issuable by reason of
operation of the anti-dilution provisions of the Plan described
herein.
(2) Calculated pursuant to Rule 457(g), based on the price at which
the options may be exercised as to 77,306 shares, for which the
exercise price is known to be $25.50, as to 100,000 shares, for
which the exercise price is known to be $28.50, as to 20,000
shares, for which the exercise price is known to be $24.25, and as
to 302,694 shares, for which the exercise price is not known, at
$31.50 per share (the average of the high and low prices for the
Common Stock on September 25, 1996, as quoted in the NASDAQ Stock
Market).
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PART I
INFORMATION REQUIRED IN THE SECTION 10 PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
*Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the registration statement in accordance with
Rule 428 under the Securities Act of 1933, as amended, and the Note to
Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and
Exchange Commission are incorporated by reference in this registration
statement.
(1) The Registrant's Annual Report on Form 10-K for the fiscal
year ended October 31, 1995.
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended January 31, 1996.
(3) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended April 30, 1996.
(4) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended July 31, 1996.
(5) The Registrant's Current Report on Form 8-K dated November 13,
1995 and filed with the Commission on November 28, 1995 with respect to
the acquisition of the business of Doors & Building Components, Inc.
(6) The Registrant's Current Report on Form 8-K dated April 1,
1996 and filed with the Commission on April 9, 1996 with respect to the
acquisition of the business of Mesco Metal Buildings, a division of
Anderson Industries, Inc., amended by Form 8-K/A dated May 31, 1996 and
filed with the Commission on May 31, 1996.
(7) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A, as filed with the
Securities and Exchange Commission on February 22, 1992, which
incorporated by reference the section titled "Description of Capital
Stock" contained in the Prospectus filed with the Securities and Exchange
Commission on April 7, 1992 as part of the Registrant's registration
statement on Form S-1 (Registration No. 33-45612).
In addition, all documents subsequently filed by the Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all 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
documents. The consolidated financial statements of the Registrant appearing
in its latest Annual Report on Form 10-K filed with the Securities and Exchange
Commission on January 29, 1996, for the fiscal year ended October 31, 1995,
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report thereon included therein and incorporated herein by reference.
Such financial statements are, and audited financial statements to be included
in subsequently filed documents will be, incorporated herein in reliance upon
the reports of Ernst & Young LLP, pertaining to such financial statements (to
the extent covered by consents filed with the Securities and Exchange
Commission) given upon the authority of such firm as experts in accounting and
auditing.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Gardere & Wynne, L.L.P., 1601 Elm Street, Suite 2600, Dallas, Texas
75201, counsel for the Registrant, has rendered an opinion as to the legality
of the securities being registered hereby. John K. Sterling, a partner in
Gardere & Wynne, L.L.P., owns 7,000 shares of Common Stock of the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
provides that a Delaware corporation may, under certain circumstances,
indemnify its directors and officers against expenses, judgments, fines and
settlements actually and reasonably incurred by them in connection with certain
civil suits or actions. In addition, Section 145 permits a Delaware
corporation to grant its directors and officers additional rights of
indemnification through bylaw provisions and otherwise and to purchase
indemnity insurance on behalf of its directors and officers.
Article VI of the Registrant's By-laws requires the Registrant to indemnify
its officers and directors and certain other employees and agents against
expenses incurred by them in defending or settling any actions or proceedings
in which they are made parties because they are or were the Registrant's
directors, officers, employees or agents. The Registrant's Restated
Certificate of Incorporation also provides that no director shall be personally
liable to the Registrant or its stockholders for any act or omission in such
director's capacity as a director.
ITEM 8. EXHIBITS.
4.1 Nonqualified Stock Option Plan, as amended and restated
February 5, 1992. (1)
4.2 Amendment No. 1 to the Nonqualified Stock Option Plan,
effective March 5, 1992. (2)
4.3 Amendment No. 2 to the Nonqualified Stock Option Plan,
effective March 3, 1993. (3)
4.4 Form of Option Agreement for employees. (1)
4.5 Form of Option Agreement for directors. (2)
* 4.6 Amendment No. 3 to the Nonqualified Stock Option Plan,
effective March 6, 1996.
* 5.1 Opinion of Gardere & Wynne, L.L.P.
* 23.1 Consent of Ernst & Young LLP.
23.2 Consent of Gardere & Wynne, L.L.P. (included as part of
Exhibit 5.1).
24 Power of Attorney (set forth on the signature pages of the
registration statement).
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(1) Previously filed as an exhibit to the Registrant's Registration Statement
on Form S-1 (Registration No. 33-45612) and incorporated herein by
reference.
(2) Previously filed as an exhibit to the Registrant's Amendment No. 2 to
Registration Statement on Form S-1 (Registration No. 33-45612) and
incorporated herein by reference.
(3) Previously filed as an exhibit to the Registrant's Registration Statement
on Form S-8 (Registration No. 33-71106) and incorporated herein by
reference.
* filed herewith
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ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, a post-effective amendment
to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
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;
(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 the undertakings set forth in paragraphs (1)(i)
and (1)(ii) above do 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 Securities Exchange Act of 1934 that are incorporated by reference in
this registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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.
(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 offering.
The undersigned Registrant hereby further undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered by them, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
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 Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 the City of Houston, State of Texas, on the 27th day of
September, 1996.
NCI BUILDING SYSTEMS, INC.
(Registrant)
By: /s/ JOHNIE SCHULTE
------------------------------------
Johnie Schulte, President and Chief
Executive Officer
Each person whose signature appears below hereby constitutes and appoints
Johnie Schulte and Robert J. Medlock and each of them (with full power in each
of them to act alone), his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign and to file with the Securities
and Exchange Commission and the securities regulatory authorities of the
several states registration statements, any amendment or post-effective
amendments or any and all other documents in connection therewith, in
connection with the registration under the Securities Act of 1933, as amended,
or the registration or qualification under any applicable state securities laws
or regulations, of interests in the Plan and shares of Common Stock issuable
pursuant to such Plan, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as he or she might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or either of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated below in the City of Houston, State of Texas on the
27th day of September, 1996.
Name Title
- ---- -----
/s/ JOHNIE SCHULTE President, Chief Executive Officer and
- --------------------------------- Director
Johnie Schulte (a principal executive officer)
/s/ ROBERT J. MEDLOCK Vice President and Chief Financial Officer
- --------------------------------- (principal financial officer)
Robert J. Medlock
/s/ T. C. ARNETT Director
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T. C. Arnett
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Name Title
- ---- -----
/s/ WILLIAM D. BREEDLOVE Director
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William D. Breedlove
/s/ GARY L. FORBES Director
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Gary L. Forbes
/s/ LEONARD F. GEORGE Director
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Leonard F. George
/s/ ROBERT N. McDONALD Director
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Robert N. McDonald
/s/ C. A. RUNDELL, JR. Director
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C. A. Rundell, Jr.
/s/ DANIEL D. ZABCIK Director
- ---------------------------------
Daniel D. Zabcik
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Exhibit Page
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4.1 Nonqualified Stock Option Plan, as
amended and restated February 5, 1992 (1)
4.2 Amendment No. 1 to the Nonqualified Stock
Option Plan, effective March 5, 1992 (2)
4.3 Amendment No. 2 to the Nonqualified Stock
Option Plan, effective March 3, 1993 (3)
4.4 Form of Option Agreement for employees (1)
4.5 Form of Option Agreement for directors (2)
* 4.6 Amendment No. 3 to the Nonqualified Stock Option Plan,
effective March 6, 1996
* 5.1 Opinion of Gardere & Wynne, L.L.P.
* 23.1 Consent of Ernst & Young LLP
23.2 Consent of Gardere & Wynne, L.L.P.
(included as part of
Exhibit 5.1)
24 Power of Attorney (set forth on
the signature pages of the
registration statement)
</TABLE>
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(1) Previously filed as an exhibit to the Registrant's Registration
Statement on Form S-1 (Registration No. 33-45612) and incorporated
herein by reference.
(2) Previously filed as an exhibit to the Registrant's Amendment No. 2 to
Registration Statement on Form S-1 (Registration No. 33-45612) and
incorporated herein by reference.
(3) Previously filed as an exhibit to the Registrant's Registration
Statement on Form S-8 (Registration No. 33-71106) and incorporated
herein by reference.
* filed herewith
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<PAGE> 1
NCI BUILDING SYSTEMS, INC.
AMENDMENT NO. 3
TO
NONQUALIFIED STOCK OPTION PLAN
March 6, 1996
On December 16, 1995, the Board of Directors of NCI Building Systems,
Inc., a Delaware corporation (the "Company"), adopted the following Amendment
to its Nonqualified Stock Option Plan (the "Plan") and, on March 6, 1996, the
stockholders of the Company approved the amendment:
1. The first sentence of Section 4 of the Plan is amended to read in
its entirety as follows:
"The Committee may not grant options under the Plan for more
than 1,550,000 shares of Common Stock of the Company, but this number
may be adjusted to reflect, if deemed appropriate by the Board, any
stock dividend, stock split, share combination, recapitalization or
the like, of or by the Company."
2. Any reference to the "Plan" in the Company's Nonqualified
Stock Option Plan, as amended and restated as of February 5, 1992, shall be
deemed to be a reference to the Plan, as amended by Amendment No. 1, Amendment
No. 2, and this Amendment No. 3.
<PAGE> 1
(214) 999-3000
September 27, 1996
NCI Building Systems, Inc.
7301 Fairview
Houston, Texas 77041
Gentlemen:
We have served as counsel for NCI Building Systems, Inc., a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 (the "Registration Statement"), filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, with respect to
500,000 shares of Common Stock of the Company (the "Shares") to be issued and
sold by the Company pursuant to the Company's Nonqualified Stock Option Plan
(the "Option Plan").
With respect to the foregoing, we have examined such documents and
questions of law as we have deemed necessary to render the opinion expressed
herein. Based upon the foregoing, we are of the opinion that the Shares
reserved for issuance pursuant to the Option Plan, when issued in accordance
with the Option Plan and the corresponding option agreements entered into by
the Company, will be duly authorized and validly issued, and fully paid and
nonassessable.
We consent to the use of this opinion as Exhibit 5.1 to the
Registration Statement and to the use of our name in the Registration Statement
under the heading "Interests of Named Experts and Counsel."
Very truly yours,
GARDERE & WYNNE, L.L.P.
By: /s/ David G. McLane
------------------------------------
David G. McLane, Partner
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under Item 3 in the Registration
Statement (Form S-8) pertaining to the NCI Nonqualified Stock Option Plan and
to the incorporation by reference therein of our report dated December 1, 1995,
with respect to the consolidated financial statements of NCI Building Systems,
Inc. incorporated by reference in its Annual Report (Form 10-K) for the year
ended October 31, 1995 and the related financial statement schedule included
therein, filed with the Securities and Exchange Commission.
/s/ERNST & YOUNG LLP
Houston, Texas
September 25, 1996
