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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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NCI BUILDING SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 76-0127701
(State or other (I.R.S. Employer
jurisdiction of Identification No.)
incorporation)
7301 FAIRVIEW
HOUSTON, TEXAS 77041
(Address of principal executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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Common Stock, $0.01 Par Value New York Stock Exchange
If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), check the following box. [ X ]
If this form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d), check the following box. [ ]
Securities Act registration statement file number to which this form
relates: ___________ (if applicable)
Securities to be registered pursuant to Section 12(g) of the Act:
Title of Class
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None
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Item 1. Description of Registrant's Securities to be Registered.
The Company's authorized capital stock consists of 25,000,000 shares
of Common Stock and 1,000,000 shares of preferred stock, $1.00 par value per
share ("Preferred Stock"), of which 600,000 shares have been designated as
Series A Junior Participating Preferred Stock and the remaining 400,000 shares
my be designated by the Board of Directors with such rights and preferences as
they determine. As of July 8, 1998, there were 18,024,482 shares of Common
Stock outstanding and no shares of preferred stock outstanding, in each case
adjusted to give effect to a 2 for 1 split of the Company's Common Stock
payable on or about July 22, 1998 to holders of the Common Stock of record as
of the close of business on July 8, 1998.
The following summary of certain provisions of the Common Stock and
Preferred Stock does not purport to be complete and is subject to, and
qualified in its entirety by, the Restated Certificate of Incorporation of the
Company and Amended and Restated By-Laws of the Company.
COMMON STOCK
Holders of Common Stock are entitled to one vote per share on any
matter submitted to the vote of stockholders. Notwithstanding the foregoing,
certain of the Company's agreements with lenders require the consents of such
parties to certain transactions such as a merger or consolidation of the
Company, sale of substantially all of its assets, or amendments to its articles
of incorporation or bylaws. Cumulative voting is prohibited in the election of
directors. Subject to preferences that may be applicable to any outstanding
Preferred Stock, the holders of Common Stock are entitled to receive ratably
such dividends, if any, as may be declared from time to time by the Board of
Directors out of funds legally available therefor. The Common Stock is not
redeemable, does not have any conversion rights and is not subject to call.
Holders of shares of Common Stock have no preemptive rights to maintain their
respective percentage of ownership in future offerings or sales of stock by the
Company. The shares of Common Stock presently outstanding and the Common Stock
offered hereby will be when issued fully paid and nonassessable.
PREFERRED STOCK
The Company may issue Preferred Stock in one or more series and the
Board of Directors may designate the dividend rate, voting rights and other
rights, preferences and restrictions of each series. It is not possible to
state the actual effect of the issuance of any shares of Preferred Stock upon
the rights of holders of the Common Stock until the Board of Directors of the
Company determines the specific rights of the holders of such Preferred Stock.
Such effects, however, might include, among other things, restricting dividends
on the Common Stock, diluting the voting power of the Common Stock, impairing
the liquidation rights of the Common Stock and delaying or preventing a change
in control of the Company without further action by the stockholders.
TRANSFER AGENT
The transfer agent and registrar for the Common Stock is Harris Trust
and Savings Bank.
REGISTRATION RIGHTS
A registration rights agreement between the Company and Equus II
Incorporated ("Equus") grants Equus certain rights with respect to the
registration under the Securities Act of its shares of Common Stock. Under
this agreement Equus can require the Company, subject to certain limitations,
to file one registration statement covering all or any part of its Common
Stock. In addition, whenever the Company proposes to register any of its
securities under the Securities Act, Equus may require the Company, subject to
certain limitations, to include its shares of Common Stock in such
registration. The Company generally is required to bear all costs incurred in
connection with any such registration.
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A stock retention and registration agreement among the Company, David
B. Curtis Industries, Inc. ("Curtis Industries") and David B. Curtis grants
Curtis Industries and Mr. Curtis certain rights with respect to the
registration under the Securities Act of their shares of Common Stock. Under
this agreement, whenever the Company proposes to register any of its securities
under the Securities Act on of before November 13, 1998, Curtis Industries and
Mr. Curtis may require the Company, subject to certain limitations, to include
their shares of Common Stock in such registration. Curtis Industries and Mr.
Curtis generally are required to bear all costs incurred in connection with the
inclusion of their shares in any such registration.
ANTI-TAKEOVER PROVISIONS OF THE CERTIFICATE OF INCORPORATION AND BY-LAWS
The provisions of the Company's Restated Certificate of Incorporation
and Amended and Restated By-Laws summarized in the succeeding paragraphs may be
deemed to have an anti-takeover effect and may delay, defer or prevent a tender
offer or takeover attempt that a stockholder might consider in such
stockholder's best interest, including attempts that might result in a premium
over the market price for the shares held by stockholders.
The Company's Restated Certificate of Incorporation provides that (i)
the Board of Directors be divided into three classes that are elected for
staggered three-year terms; (ii) stockholders may only remove a director for
cause, and only by the affirmative vote of holders of not less than 80% of the
outstanding voting stock of the Company; (iii) unless otherwise directed by the
Board of Directors, only the Board of Directors may fill vacancies so created;
(iv) stockholders may act only at an annual or special meeting of stockholders
and may not act by written consent; and (v) meetings of stockholders can be
called only by the Chief Executive Officer or a majority of the Board of
Directors. To be amended, these provisions require the affirmative vote of the
holders of not less than 80% of the outstanding voting stock of the Company.
Pursuant to the Company's Restated Certificate of Incorporation, the
Company's Board of Directors by resolution may establish one or more series of
preferred stock having such number of shares, designations, relative voting
rights, dividend rates, liquidation and other rights, preferences and
limitations as may be fixed by the Board of Directors without any further
stockholder approval. Such rights, preferences, powers and limitations as may
be established could have the effect of impeding or discouraging the
acquisition of control of the Company.
The Company's Restated Certificate of Incorporation contains a "fair
price" provision that requires the approval of holders of not less than 80% of
the outstanding shares of voting stock of the Company as a condition for
mergers, consolidations and certain other business combinations, including
management buyouts, involving the Company and any Interested Stockholder or
affiliate of an Interested Stockholder. "Interested Stockholders" include
holders of 10% or more of the Company's outstanding voting stock. The 80%
voting requirement is not applicable to a business combination between the
Company and an Interested Stockholder if the proposed transaction is approved
by a majority of directors unaffiliated with the Interested Stockholder or the
following conditions are met: (i) the price per share to be paid to holders of
any class of stock is at least as high as the higher of the following: (a) the
highest price per share paid by the Interested Stockholder for any shares of
such class of stock within the two-year period immediately prior to the first
public announcement of the terms of a proposed business combination; or (b) the
price paid for any share of such class of stock in the transaction in which the
Interested Stockholder became an Interested Stockholder; or (c) the higher of
the fair market value per share of such class of stock on the date the
Interested Stockholder became an Interested Stockholder or the date of the
first public announcement of the terms of a proposed business combination; (ii)
the consideration to be paid in the transaction for each class of stock is cash
or the same form of consideration paid by the Interested Stockholder to acquire
a majority of its holdings of such class of stock; (iii) between the date of
the acquisition by such Interested Stockholder and the transaction there has
been no failure to declare and pay preferred stock dividends and no reduction
in Common Stock dividends (except as approved by a majority of the unaffiliated
directors), no further acquisition of voting stock by such holder and no
benefit, direct or indirect, received by such holder through loans or other
financial assistance from the Company or tax credits or other tax advantages
provided by the Company; and (iv) a proxy statement shall have been mailed to
stockholders of record at least 30 days prior to the
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consummation of the transaction for the purpose of soliciting stockholder
approval of such transaction. To be amended, these provisions require the
affirmative vote of the holders of not less than 80% of the outstanding voting
stock of the Company.
The Company's Restated Certificate of Incorporation contains a
provision that allows the Board of Directors to evaluate factors other than the
price offered when considering a proposed acquisition of the Company. The
Restated Certificate of Incorporation permits the Board of Directors to
consider the social, legal and economic effects upon the Company's employees,
suppliers, customers and the communities in which the Company operates. The
Board of Directors can also consider any other factors it deems relevant,
including not only the consideration offered in the proposed transaction
relative to market price, but also the value of the Company in a freely
negotiated transaction and in relation to the estimate by the Board of
Directors of the future value of the Company as an independent entity. To be
amended, this provision requires the affirmative vote of the holders of not
less than two-thirds of the outstanding voting stock of the Company.
The Company's Amended and Restated By-Laws establish advance notice
procedures with regard to the nomination, other than by or at the direction of
the Board of Directors or a committee thereof, of candidates for election as
directors and with regard to certain matters to be brought before an annual
meeting of stockholders of the Company. These procedures provide that the
notice of proposed stockholder nominations for the election of directors must
be timely given in writing to the Secretary of the Company prior to the meeting
at which directors are to be elected. To be timely, notice must be received at
the principal executive offices of the Company not less than 75 days nor more
than 85 days prior to the meeting (or if fewer than 75 days' notice or prior
public disclosure of the meeting date is given or made by the Company, not
later than the 10th day following the day on which the notice was mailed or
such public disclosure was made). The procedures also provide that at an
annual meeting, and subject to any other applicable requirements, only such
business may be conducted as has been brought before the meeting by, or at the
direction of, the Board of Directors or by a stockholder who has given timely
prior written notice to the Secretary of the Company of such stockholder's
intention to bring such business before the meeting. For such stockholder's
notice to be timely, notice must be delivered to or mailed and received at the
principal executive offices of the Company not later than the date that
corresponds to 120 days prior to the date the Company's proxy statement was
released to stockholders in connection with the previous year's annual meeting
of stockholders. Such notice must contain certain information specified in the
Amended and Restated By-Laws. The Amended and Restated By-Laws of the Company
can be amended by the stockholders of the Company only upon the affirmative
vote of the holders of not less than two-thirds of the outstanding voting stock
of the Company.
The Company is a Delaware corporation and is subject to Section 203 of
the DGCL. In general, Section 203 prevents an "interested stockholder"
(defined generally as a person owning 15% or more of a corporation's
outstanding voting stock) from engaging in a "business combination" (as
defined) with a Delaware corporation for three years following the date such
person became an interested stockholder, unless (i) before such person became
an interested stockholder, the board of directors of the corporation approved
the transaction in which the interested stockholder became an interested
stockholder or approved the business combination; (ii) upon consummation of the
transaction that resulted in the interested stockholder's becoming an
interested stockholder, the interested stockholder owns at least 85% of the
voting stock of the corporation outstanding at the time the transaction
commenced (excluding stock held by directors who are also officers of the
corporation and by employee stock plans that do not provide employees with the
rights to determine confidentially whether shares held subject to the plan will
be tendered in a tender or exchange offer); or (iii) on or subsequent to the
date of the transaction in which such person became an interested stockholder,
the business combination is approved by the board of directors of the
corporation and authorized at a meeting of stockholders by the affirmative vote
of the holders of two-thirds of the outstanding voting stock of the corporation
not owned by the interested stockholder. Under Section 203, the restrictions
described above also do not apply to certain business combinations proposed by
an interested stockholder following the announcement or notification of one of
certain extraordinary transactions involving the corporation and a person who
had not been an interested stockholder during the previous three years or who
became an interested stockholder with the approval of a majority of the
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corporation's directors, if such extraordinary transaction is approved or not
opposed by a majority of the directors who were directors prior to any person
becoming an interested stockholder during the previous three years or were
recommended for election or elected to succeed such directors by a majority of
such directors.
Item 2. Exhibits.
* 1 Form of certificate representing shares of the Registrant's
common stock
2.1 Restated Certificate of Incorporation of the Registrant (filed
as Exhibit 3.1 to the Registrant's registration statement
number 33-45612 and incorporated herein by reference)
2.2 Certificate of Amendment to Restated Certificate of
Incorporation of the Registrant (files as Exhibit 3.1.1 to the
Registrant's registration statement number 33-45612 and
incorporated herein by reference)
2.3 Certificate of Amendment to Restated Certificate of
Incorporation of the Registrant (filed as Exhibit 3.3 to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended October 31, 1994 and incorporated herein by reference)
** 2.4 Certificate of Amendment to Restated Certificate of
Incorporation of the Registrant
2.5 Amended and Restated By-Laws of the Registrant, as amended
through February 5, 1992 (filed as Exhibit 3.2 to the
Registrant's registration statement number 33-45612 and
incorporated herein by reference)
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* To be filed by amendment
** Filed herewith
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
NCI BUILDING SYSTEMS, INC.
By: /s/ Robert J. Medlock
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Robert J. Medlock
Vice President, Chief Financial
Officer and Treasurer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
* 1 Form of certificate representing shares of the Registrant's
common stock
2.1 Restated Certificate of Incorporation of the Registrant (filed
as Exhibit 3.1 to the Registrant's registration statement
number 33-45612 and incorporated herein by reference)
2.2 Certificate of Amendment to Restated Certificate of
Incorporation of the Registrant (files as Exhibit 3.1.1 to the
Registrant's registration statement number 33-45612 and
incorporated herein by reference)
2.3 Certificate of Amendment to Restated Certificate of
Incorporation of the Registrant (filed as Exhibit 3.3 to the
Registrant's Annual report on Form 10-K for the fiscal year
ended October 31, 1994 and incorporated herein by reference)
** 2.4 Certificate of Amendment to Restated Certificate of
Incorporation of the Registrant
2.5 Amended and Restated By-Laws of the Registrant, as amended
through February 5, 1992 (filed as Exhibit 3.2 to the
Registrant's registration statement number 33-45612 and
incorporated herein by reference)
</TABLE>
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* To be filed by amendment
** Filed herewith
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EXHIBIT 2.4
CERTIFICATE OF AMENDMENT
TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
NCI BUILDING SYSTEMS, INC.
Pursuant to the provisions of Section 242 of the General Corporation
Law of the State of Delaware, NCI Building Systems, Inc., a corporation
organized and existing under and by virtue of the General Corporation Law of
the State of Delaware (the "Corporation"), does hereby certify:
FIRST: That the Board of Directors of the Corporation, at a meeting
duly called pursuant to Section 141(f) of the General Corporation Law of the
State of Delaware, adopted the following resolutions setting forth and
declaring advisable the following proposed amendment to the Restated
Certificate of Incorporation of the Corporation:
A. Article Fourth, Section 1 of the Restated Certificate of
Incorporation of the Company is hereby amended by deleting in
its entirety the first sentence of Article Fourth, Section 1
of the Restated Certificate of Incorporation and adding the
following revised text:
"FOURTH.
SECTION 1. Capitalization. The Corporation is
authorized to issue Twenty-Two Million (26,000,000)
shares of capital stock. Twenty-Five Million
(25,000,000) of the authorized shares shall be common
stock, one cent ($0.01) par value each ("Common
Stock"), and One Million (1,000,000) of the
authorized shares shall be preferred stock, one
dollar ($1.00) par value each ("Preferred Stock")."
SECOND: That at a special meeting of stockholders held on March 5,
1997 and duly called pursuant to Section 222 of the General Corporation Law of
the State of Delaware, a majority of the stockholders approved the foregoing
amendment in accordance with the provisions of Section 242 of the General
Corporation Law of the State of Delaware.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That the capital of said corporation shall not be reduced
under or by reason of said amendment.
FIFTH: In accordance with Section 103(d) of the General Corporation
Law of the State of Delaware, this amendment shall become effective as of the
filing hereof.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to its Restated Certificate of Incorporation to be executed this 5th
day of March, 1997.
NCI BUILDING SYSTEMS, INC.
By: /s/ Johnie Schulte
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Johnie Schulte, President and
Chief Executive Officer
ATTEST:
/s/ Donnie R. Humphries
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Donnie R. Humphries, Secretary
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