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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K/A
AMENDMENT NO. 1
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
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JUNE 25, 1999
(Date of Report)
NCI BUILDING SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 1-14315 76-0127701
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification No.)
incorporation)
7301 FAIRVIEW
HOUSTON, TEXAS 77041
(Address of principal executive offices)
(713) 466-7788
(Registrant's telephone number,
including area code)
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The Registrant hereby files this Form 8-K/A, Amendment No. 1, to give
effect to the First Amendment to Rights Agreement, which Rights Agreement
governs its preferred stock purchase rights. The First Amendment to Rights
Agreement deletes all of the references in the Rights Agreement to "continuing
directors."
ITEM 5: OTHER EVENTS
On June 24, 1998, the Board of Directors (the "Board") of NCI
Building Systems, Inc. (the "Company") declared a dividend of one preferred
stock purchase right ("Right") for each outstanding share of common stock, $0.01
par value ("Common Stock"), of the Company. The dividend was paid on July 22,
1998 to stockholders of record at the close of business on July 8, 1998 (the
"Record Date"). Each Right entitles the registered holder to purchase from the
Company one one-hundredth (1/100th) of a share of the Company's Series A Junior
Participating Preferred Stock ("Series A Preferred Stock") at a purchase price
of $125.00, in each case after giving effect to and taking into account a
concurrent 2 for 1 split of the Common Stock of the Company. The terms and
conditions of the Rights are set forth in that certain Rights Agreement, dated
June 24, 1998 by and between the Company and Harris Trust and Savings Bank
("Harris Trust"), as amended by that certain First Amendment to Rights
Agreement, dated June 14, 1999, by and between the Company and Harris Trust.
Initially the Rights will not be exercisable, certificates for
the Rights will not be issued and the Rights will automatically trade with the
Common Stock. Until the Distribution Date (as hereinafter defined) or the
earlier redemption, exchange or expiration of the Rights, the Rights will be
represented by the Common Stock certificates and will be transferred with, and
only with, the Common Stock. Until the Distribution Date (or the earlier
redemption, exchange or expiration of the Rights), all new Common Stock
certificates issued by the Company will contain a legend incorporating the
Rights Agreement by reference and the surrender for transfer of any of the
Company's Common Stock certificates, with or without the aforesaid legend, will
also constitute the simultaneous transfer of the Rights associated with the
Common Stock represented by such certificate. As soon as practicable following
the Distribution Date, separate Right Certificates ("Rights Certificates") will
be mailed to holders of record of Common Stock at the close of business on the
Distribution Date, and, thereafter, the Right Certificates alone will evidence
the Rights, and the Rights will be transferable separate and apart from the
Common Stock.
The Distribution Date will occur on the (i) fifteenth day
following a public announcement that a person or group of affiliated or
associated persons, other than the Company, any subsidiary of the Company or any
employee benefit plan or employee stock plan of the Company (each, an "Exempt
Person"), has acquired, or has obtained the right to acquire, beneficial
ownership of 20% or more of the outstanding Common Stock other than by reason of
an original issuance from the Company or as a result of repurchases of shares by
the Company (each, an "Acquiring Person") (the "Stock Acquisition Date") or (ii)
fifteenth business day following the commencement of or public announcement of
the intent by any Person other than an Exempt Person to commence a tender or
exchange offer which, if consummated, would result in the ownership by such
Person of 20% or more of the outstanding Common Stock, irrespective of whether
any shares of Common Stock are acquired pursuant to such offer (such dates
referenced in clauses (i) or (ii) above being called the "Distribution Date").
The Rights Agreement provides that the Distribution Date may be extended by the
Board prior to the expiration of the time periods referenced in the preceding
sentence.
The Rights are not exercisable until the Distribution Date.
The Rights will expire at the close of business on June 24, 2008, unless
redeemed or exchanged earlier as described below.
The Series A Preferred Stock will be nonredeemable and, unless
otherwise provided in connection with the creation of a subsequent series of
preferred stock, will be subordinate to all other
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series of the Company's preferred stock. The Series A Preferred Stock will not
be issued except upon exercise of Rights. Each share of Series A Preferred Stock
will be entitled to receive, when, as and if declared, a quarterly dividend in
an amount equal to 100 times the quarterly cash dividend declared on the
Company's Common Stock. In addition, the Series A Preferred Stock is entitled to
100 times any noncash dividends declared on the Common Stock, in like kind. In
the event of dissolution, liquidation or winding-up of the Company, the holders
of Series A Preferred Stock will be entitled to receive a liquidation payment in
an amount equal to $100 per share, plus 100 times the liquidation payment made
per share of Common Stock. Each share of Series A Preferred Stock will have 100
votes, voting together with the Common Stock. In the event of any merger,
consolidation or other transaction in which common shares are exchanged, each
share of Series A Preferred Stock will be entitled to receive 100 times the
amount received per share of Common Stock. The rights of the Series A Preferred
Stock as to dividends, liquidation payments and voting rights are protected by
antidilution provisions.
The Purchase Price payable and the number of shares of Series
A Preferred Stock or other securities or property issuable upon exercise of the
Rights are subject to adjustment from time to time to prevent dilution (i) in
the event of a stock dividend on, or a subdivision, combination or
reclassification of, the Series A Preferred Stock, (ii) upon the grant to
holders of the Series A Preferred Stock of certain rights or warrants to
subscribe for the purchase of Series A Preferred Stock or convertible securities
at less than the current market price of the Series A Preferred Stock or (iii)
upon the distribution to holders of the Series A Preferred Stock of evidences of
indebtedness or assets (excluding regular cash dividends and dividends payable
in Series A Preferred Stock) or of subscription rights or warrants.
If any person (other than an Exempt Person) becomes an
Acquiring Person, each holder of a Right, other than the Acquiring Person, will
have the right to receive, upon payment of the Purchase Price, in lieu of Series
A Preferred Stock, a number of shares of Common Stock having a market value
equal to twice the Purchase Price. In lieu of issuing shares of Common Stock
upon exercise of Rights, the Company may, and to the extent that insufficient
shares of Common Stock are available for the exercise in full of the Rights, the
Company shall, issue cash, property or other securities of the Company, or any
combination thereof (which may be accompanied by a reduction in the Purchase
Price) in proportion determined by the Company, so that the aggregate value
received is equal to twice the Purchase Price. Although the Rights Agreement
contains an exemption from the definition of an Acquiring Person for any person
to whom or which the Company directly issues shares of Common Stock (for
example, in a private placement or an acquisition by the Company in which Common
Stock is used as consideration), even if that person thereby would become the
beneficial owner of 20% or more of the Common Stock, such person may nonetheless
become an Acquiring Person thereafter if such person acquires any additional
shares of Common Stock. Notwithstanding the foregoing, after the acquisition of
shares of Common Stock as described in this paragraph, Rights that are (or,
under certain circumstances, Rights that were) beneficially owned by an
Acquiring Person will be null and void.
The Board may, at its option, at any time after a person
becomes an Acquiring Person, exchange all or part of the then outstanding and
exercisable Rights for shares of Common Stock at an exchange ratio of one share
of Common Stock per Right; provided, however, the Board may not effect such
exchange after the time that any Person becomes the beneficial owner of 50% or
more of the Common Stock then outstanding.
If, after the Stock Acquisition Date, the Company is acquired
in a merger or other business combination (in which any shares of the Common
Stock are changed into or exchanged for other securities or assets) or more than
50% of the assets or earnings power of the Company and its subsidiaries
2
<PAGE> 4
(taken as a whole) are sold or transferred in one or a series of related
transactions, the Rights Agreement provides that proper provision shall be made
so that each holder of record of a Right (unless the Rights have been earlier
redeemed) will from and after that time have the right to receive, upon payment
of the Purchase Price, that number of shares of common stock of the acquiring
company which has a market value at the time of such transaction equal to twice
the Purchase Price.
At any time after the date of the Rights Agreement until the
time that a person becomes an Acquiring Person, the Board may redeem the Rights
in whole, but not in part, at a price of $0.01 per Right (the "Redemption
Price"), which may (at the option of the Company) be paid in cash, shares of
Common Stock or other consideration deemed appropriate by the Board. Upon the
effectiveness of any action of the Board ordering redemption of the Rights, the
Rights will terminate and the only right of the holders of Rights will be to
receive the Redemption Price.
The provisions of the Rights Agreement may be amended by the
Company, except that any amendment adopted after the time that a person becomes
an Acquiring Person may not adversely affect the interests of holders of Rights.
The Rights have certain anti-takeover effects. The Rights will
cause substantial dilution to a person or group that attempts to acquire the
Company without conditioning the offer on the Rights being redeemed or a
substantial number of Rights being acquired, and under certain circumstances the
Rights beneficially owned by such a person or group may become void. The Rights
should not interfere with any merger or other business combination approved by
the Board because, if the Rights would become exercisable as a result of such
merger or business combination, the Board at its option may at any time prior to
the time that any Person becomes an Acquiring Person redeem all (but not less
than all) of the then outstanding Rights at the Redemption Price.
ITEM 7: FINANCIAL STATEMENTS AND EXHIBITS
(a) Exhibits. The following exhibits are filed herewith:
* 10.1 Rights Agreement, dated June 24, 1998, by and
between the Company and Harris Trust and Savings
Bank
** 10.2 First Amendment to Rights Agreement, dated June 25,
1999, by and between the Company and Harris Trust
and Savings Bank
* 99 Press Release issued by the Company
- ----------
* Previously filed.
** Filed herewith.
3
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
NCI BUILDING SYSTEMS, INC.
(Registrant)
By: /s/ Robert J. Medlock
-------------------------------------
Robert J. Medlock, Executive Vice President,
Chief Financial Officer and Treasurer
Dated: June 25, 1999
4
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<S> <C>
10.2 First Amendment to Rights Agreement, dated June 25,
1999, by and between the Company and Harris Trust and
Savings Bank
</TABLE>
<PAGE> 1
EXHIBIT 10.2
FIRST AMENDMENT TO RIGHTS AGREEMENT
This First Amendment to Rights Agreement (this "First Amendment") is
entered into by and between NCI Building Systems, Inc., a Delaware corporation
(the "Company"), and Harris Trust and Savings Bank ("Rights Agent"), on this
25th day of June 1999, at the direction of the Company.
WHEREAS, the Company and Rights Agent have entered into that certain
Rights Agreement, dated June 24, 1998 (the "Rights Agreement"); and
WHEREAS, on May 27, 1999, the Board of Directors determined to amend
the Rights Agreement and directed the Rights Agent to enter into this First
Amendment;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
1. Amendments to Rights Agreement. The Rights Agreement is hereby
amended as follows:
(a) Section 1(g) of the Rights Agreement is hereby amended to read
in its entirety as follows:
"(g) [intentionally omitted]"
(b) Section 3(a) of the Rights Agreement is hereby amended to read
in its entirety as follows:
"(a) Until the earlier of (i) the close of business
on the fifteenth day (subject to extension by the
Board of Directors as provided below) after the Stock
Acquisition Date, or (ii) the close of business on
the fifteenth day (subject to extension by the Board
of Directors as provided below) after the
commencement of, or first public announcement of the
intent to commence, a tender or exchange offer by any
Person (other than the Company, any Subsidiary, any
employee benefit plan of the Company or of any
Subsidiary, or any Person organized, appointed, or
established by the Company or any Subsidiary for or
pursuant to the terms of any such plan), if upon
consummation thereof, such Person would be the
Beneficial Owner of 20% or more of the shares of
Common Stock then outstanding (the earlier of such
dates, after any extensions, being herein referred to
as the "Distribution Date"), (A) the Rights will be
evidenced (subject to the provisions of paragraph (b)
of this Section 3) by the certificates for the Common
Stock registered in the names of the holders of the
Common Stock (which certificates for Common Stock
shall be deemed also to be certificates for
<PAGE> 2
Rights)and not by separate certificates, and (B) the
Rights will be transferable only in connection with
the transfer of the underlying shares of Common Stock
(including a transfer to the Company). The
fifteen-day periods referred to in clauses (i) and
(ii) of the preceding sentence may be extended by the
Board of Directors. As soon as practicable after the
Distribution Date, the Rights Agent will send, at the
expense of the Company, by first-class,
postage-prepaid mail, to each record holder of the
Common Stock as of the close of business on the
Distribution Date, at the address of such holder
shown on the records of the Company, one or more
Right Certificates evidencing one Right for each
share of Common Stock so held, subject to adjustment
as provided herein. As of and after the Distribution
Date, the Rights will be evidenced solely by such
Right Certificates."
(c) The first two sentences of Section 23(a) of the Rights
Agreement are hereby amended to read in their entirety as follows:
"(a) The Board of Directors of the Company may, at
its option, at any time before 5:00 p.m., Dallas,
Texas, time, on the earlier of (i) the close of
business on the fifteenth day (subject to extension
by the Board of Directors as provided below)
following the Stock Acquisition Date, or (ii) the
Final Expiration Date, redeem all but not less than
all the then outstanding Rights at a redemption price
of $0.01 per Right, as such amount may be
appropriately adjusted to reflect any stock split,
stock dividend or similar transaction occurring after
the date hereof (such redemption price being
hereinafter referred to as the "Redemption Price").
The fifteen-day period referred to in the preceding
sentence may be extended by the Board of Directors."
2. Except as amended by this First Amendment, the Rights Agreement
shall continue in full force and effect as originally executed and delivered.
3. Any reference in the Rights Agreement to the "Agreement" shall refer
to the Rights Agreement as amended by this First Amendment.
4. All capitalized terms used herein and not otherwise defined shall
have the meanings assigned to those terms in the Rights Agreement.
5. This First Amendment shall be governed and construed in accordance
with the laws of the State of Delaware.
[THE NEXT FOLLOWING PAGE IS THE SIGNATURE PAGE.]
2
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IN WITNESS WHEREOF, the parties have executed this First Amendment as
of the date written above.
NCI BUILDING SYSTEMS, INC.
By:/s/ Robert J. Medlock
-----------------------------------------
Robert J. Medlock, Executive Vice
President and Chief Financial Officer
HARRIS TRUST AND SAVINGS BANK,
as Rights Agent
By:/s/ Ray G. Rosenbaum
-----------------------------------------
Ray G. Rosenbaum
Vice President
