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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
AMENDMENT NO. 1
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:
<TABLE>
<CAPTION>
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
<S> <C>
Preferred Stock Purchase Rights New York Stock Exchange
</TABLE>
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
--------------
None
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The Registrant hereby files this Form 8-A, Amendment No. 1, to give
effect to the First Amendment to Rights Agreements, 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 1. Description of Registrant's Securities to be Registered.
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 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
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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 (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.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or receive dividends.
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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.
As of July 8, 1998, there were 18,024,482 shares of Common Stock
outstanding and 4,379,890 shares of Common Stock reserved for issuance, 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. Each outstanding share of Common Stock on
July 8, 1998 will receive one Right. Six hundred thousand (600,000) shares of
Series A Preferred Stock are reserved for issuance in the event of exercise of
the 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.
The foregoing description of the Rights is qualified in its entirety by
reference to the Rights Agreement.
Item 2. Exhibits.
* 1 Certificate of Designation of Series A Junior Participating
Preferred Stock, dated June 26, 1998
* 2 Rights Agreement, dated June 24, 1998, by and between the
Registrant and Harris Trust and Savings Bank
** 3 First Amendment to Rights Agreement, dated June 25, 1999, by
and between the Registrant and Harris Trust and Savings Bank
- --------------------
* Previously filed.
** 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
------------------------------------------
Robert J. Medlock
Executive Vice President, Chief Financial
Officer and Treasurer
Date: July 25, 1999
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
3 First Amendment to Rights Agreement, dated June 25, 1999, by and
between the Registrant and Harris Trust and Savings Bank
</TABLE>
<PAGE> 1
EXHIBIT 3
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.]
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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
3
