-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NcBxPkNKdNqGsr7QklaTqJx/kvCmq6eMp6aGfQmBwD3NIgJ9lX6wA5LkSN9xwDqA IY6y+fQJoPmwbE8mMf6nUA== 0000950134-99-005702.txt : 19990628 0000950134-99-005702.hdr.sgml : 19990628 ACCESSION NUMBER: 0000950134-99-005702 CONFORMED SUBMISSION TYPE: 8-K/A PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 19990625 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19990625 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NCI BUILDING SYSTEMS INC CENTRAL INDEX KEY: 0000883902 STANDARD INDUSTRIAL CLASSIFICATION: PREFABRICATED METAL BUILDINGS & COMPONENTS [3448] IRS NUMBER: 760127701 STATE OF INCORPORATION: DE FISCAL YEAR END: 1031 FILING VALUES: FORM TYPE: 8-K/A SEC ACT: SEC FILE NUMBER: 001-14315 FILM NUMBER: 99652220 BUSINESS ADDRESS: STREET 1: 7301 FAIRVIEW CITY: HOUSTON TEXAS STATE: TX ZIP: 77041 BUSINESS PHONE: 7134667788 MAIL ADDRESS: STREET 1: 7301 FAIRVIEW STREET 2: P O BOX 40220 CITY: HOUSTON STATE: TX ZIP: 77041 FORMER COMPANY: FORMER CONFORMED NAME: NATIONAL COMPONENTS INCORPORATED DATE OF NAME CHANGE: 19600201 8-K/A 1 AMENDMENT NO. 1 TO FORM 8-K 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------- FORM 8-K/A AMENDMENT NO. 1 CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 ---------- 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) 2 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 3 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 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 5 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 6 INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION - ------ ----------- 10.2 First Amendment to Rights Agreement, dated June 25, 1999, by and between the Company and Harris Trust and Savings Bank
EX-10.2 2 1ST AMENDMENT TO RIGHTS AGREEMENT DATED 6/25/99 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 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 3 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 -----END PRIVACY-ENHANCED MESSAGE-----