UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): October 16, 2009

NCI BUILDING SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
 
 
Delaware   1-14315   76-0127701  
(State or other jurisdiction of
incorporation)   		(Commission File Number)   (I.R.S. Employer
Identification Number)

10943 North Sam Houston Parkway West
Houston, Texas
(Address of principal executive offices)   		                                     77064
(Zip Code)  

Registrant’s telephone number, including area code: (281) 897-7788

           Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

x    Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))


Item 1.01.      Entry into a Material Definitive Agreement.

Amendment to Investment Agreement

           On October 16, 2009, NCI Building Systems, Inc. (the “Company”) entered a fourth amendment (“Amendment No. 4”) to the Investment Agreement, dated as of August 14, 2009 (the “Original Investment Agreement”), by and between the Company and Clayton, Dubilier & Rice Fund VIII, L.P. (the “CD&R Fund”) as previously amended by that amendment (“Amendment No. 1”), dated as of August 28, 2009, by and between the Company and the CD&R Fund, by that second amendment (“Amendment No. 2”), dated as of August 31, 2009, by and between the Company and the CD&R Fund and by that third amendment (“Amendment No. 3”), dated as of August 31, 2009, by and between the Company and the CD&R Fund (the Original Investment Agreement, as amended by Amendment No. 1, Amendment No. 2, Amendment No. 3 and Amendment No. 4, the “Investment Agreement”).

           In the Investment Agreement, and subject to the terms and conditions set forth therein, the Company agreed to issue and sell to the CD&R Fund, and the CD&R Fund agreed to purchase from the Company, for an aggregate purchase price of $250 million, 250,000 shares of a newly created class of preferred stock, par value $1.00 per share, of the Company to be designated the Series B Cumulative Convertible Participating Preferred Stock (the “Preferred Stock”). The purchase and sale of the shares of Preferred Stock pursuant to the terms of the Investment Agreement is referred to herein as the “Equity Investment.” The closing of the Equity Investment is subject to the satisfaction or waiver of a number of closing conditions set forth in the Investment Agreement, including, among others:

  • the consummation of an exchange offer (the “Exchange Offer”) by the Company to acquire all of the Company’s existing 2.125% convertible notes due 2024 in exchange for a combination of cash and shares of common stock, par value $0.01 per share, of the Company (the “Common Stock”), which exchange offer is subject to a number of conditions, including the tender of at least 95% of the aggregate principal amount of such convertible notes;
  • the refinancing of the Company’s existing credit agreement, including the partial prepayment of approximately $143 million in principal amount of the existing $293 million in principal amount of outstanding term loans thereunder and a modification of the terms and an amendment and extension of the maturity (the “restatement”) of the remaining $150 million outstanding balance of the term loans; and
  • entry into a new $125 million asset-based revolving credit facility.

           Amendment No. 4 amends the form of the credit agreement that would be executed in connection with the refinancing of the Company’s existing credit agreement such that the maturity date of the term loans under the new credit agreement, which previously was the fifth anniversary of the closing of the Equity Investment, would be four years and six months from the closing date.

*     *     *

           The foregoing description of Amendment No. 4 is a summary and is qualified in its entirety by reference to the full text of such document. The Original Investment Agreement was attached as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed on August 19, 2009, Amendment No. 1 was attached as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed on August 28, 2009, Amendment No. 2 was attached as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed on September 1, 2009 and Amendment No. 3 was attached as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed on October 8, 2009. Amendment No. 4 is attached hereto as Exhibit 2.1.


Item 9.01.   Financial Statements and Exhibits.  
 
(d)   Exhibits.  
 

Exhibit  
Number   		Description  
 
2.1   Amendment No. 4, dated as of October 16, 2009, to the Investment Agreement, dated
as of August 14, 2009 (as amended), by and between NCI Building Systems, Inc. and
Clayton, Dubilier & Rice Fund VIII, L.P.  


SIGNATURE

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 hereunto duly authorized.

 

NCI BUILDING SYSTEMS, INC.                                
 
 
By:      /s/ Todd R. Moore                                
            Todd R. Moore  
            Executive Vice President, General  
            Counsel and Secretary  

 

Date: October 19, 2009


EXHIBIT INDEX

Exhibit  
Number   		Description  
 
2.1 Amendment No. 4, dated as of October 16, 2009, to the Investment Agreement, dated
as of August 14, 2009 (as amended), by and between NCI Building Systems, Inc. and
Clayton, Dubilier & Rice Fund VIII, L.P.


 

Exhibit 2.1

 

 

 

AMENDMENT No. 4

TO

INVESTMENT AGREEMENT

BY AND BETWEEN

NCI BUILDING SYSTEMS, INC.

AND

CLAYTON, DUBILIER & RICE FUND VIII, L.P

 

Dated as of October 16, 2009

 

 

 

 


AMENDMENT No. 4
TO
INVESTMENT AGREEMENT

           This AMENDMENT No. 4 (this “ Amendment No. 4 ”), dated as of October 16, 2009, to the Investment Agreement, dated as of August 14, 2009, by and between NCI BUILDING SYSTEMS, INC., a Delaware corporation, and CLAYTON, DUBILIER & RICE FUND VIII, L.P., a Cayman exempted limited partnership (the “ Investor ”), as amended by that Amendment, dated as of August 28, 2009, by and between the Company and the Investor, by that Amendment No. 2, dated as of August 31, 2009, by and between the Company and the Investor and by that Amendment No. 3, dated as of October 8, 2009, by and between the Company and the Investor (as so amended, the “ Investment Agreement ”).

           WHEREAS, Section 13 of the Investment Agreement provides for the amendment of the Investment Agreement in accordance with the terms set forth therein; and

           WHEREAS, capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Investment Agreement.

           NOW THEREFORE, in consideration of the premises and of the respective representations, warranties, covenants and conditions contained herein, the parties hereto agree as follows:

           Section 1.      Definitions; References . Unless otherwise specifically defined herein, each term used herein shall have the meaning assigned to such term in the Investment Agreement. Each reference in the Investment Agreement to “hereof,” “herein,” “hereunder,” “hereby”, “hereto” and “this Agreement” shall, from and after the date hereof, refer to the Investment Agreement as amended by this Amendment No. 4, and each reference in the Transaction Documents (other than the Investment Agreement) and in the Disclosure Letter to “the Investment Agreement” shall refer to the Investment Agreement as amended by this Amendment No. 4.

           Section 2.       Amendment to Exhibit J .  A new Item 12 is hereby added to Exhibit J to the Investment Agreement to read as follows:

12.     If the Restructuring is effectuated other than (i) through the Prepackaged Plan in the Prepackaged Plan Proceeding or (ii) through any other Proceeding, the definition of the term “Termination Date” in the Form of Amended Credit Agreement will be modified to delete the words “the fifth anniversary of” and insert in lieu thereof the words “the date that is four years and six months from”.

           Section 3.      No Further Amendment . Except as expressly amended hereby, the Investment Agreement is in all respects ratified and confirmed and all the terms, conditions, and provisions thereof shall remain in full force and effect. This Amendment No. 4 is limited precisely as written and shall not be deemed to be an amendment to any other term or condition of the Investment Agreement or any of the documents referred to therein.


           Section 4.      Effect of Amendment . This Amendment No. 4 shall form a part of the Investment Agreement for all purposes, and each party thereto and hereto shall be bound hereby. From and after the execution of this Amendment No. 4 by the parties hereto, any reference to the Investment Agreement shall be deemed a reference to the Investment Agreement as amended hereby. This Amendment No. 4 shall be deemed to be in full force and effect from and after the execution of this Amendment No. 4 by the parties hereto.

           Section 5.       Miscellaneous . Section 12 (Successors and Assign); Section 13 (Amendments; Waiver); Section 14 (Headings); Section 15 (Severability); Section 16 (Liability Limitations); Section 17 (Integration); Section 18 (Governing Law); Section 19 (Counterparts); Section 23 (Specific Performance; Jurisdiction); Section 24 (Waiver of Jury Trial); Section 25 (Interpretation); Section 26 (No Third Party Beneficiaries); and Section 27 (Certain Considerations Relating to Bankruptcy) of the Investment Agreement shall apply to this Amendment No. 4, mutatis mutandis .

 

[ Signature Page Follows ]

 

-2-


           Please confirm that the foregoing correctly sets forth the agreement between us by signing in the space provided below for that purpose.

CLAYTON, DUBILIER & RICE FUND                     
VIII, L.P.  
By: CD&R Associates VIII, Ltd., its  
general partner  
 
By:     /s/ Theresa A. Gore                                
       Name: Theresa A. Gore  
       Title: Vice President, Treasurer and  
                Assistant Secretary  

 


 

[Signature Page to Amendment No. 4 to the Investment Agreement]

NCI BUILDING SYSTEMS, INC.                    
 
 
 
By:   /s/ Todd R. Moore                                       
       Name: Todd R. Moore
       Title: Executive Vice President, General Counsel
               and Secretary

 

 

[Signature Page to Amendment No. 4 to the Investment Agreement]