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): February 14,
2006
Builders FirstSource, Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
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0-51357
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52-2084569
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(Commission File Number)
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(IRS Employer Identification No.)
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2001 Bryan Street, Suite 1600, Dallas, Texas 75201
(Address of Principal Executive Offices, Including Zip Code)
(214) 880-3500
(Registrant’s Telephone Number, Including Area Code)
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:
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Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
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ITEM 1.01.
Entry Into a Material Definitive Agreement.
Executive Officer Bonuses
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On February 14, 2006, the Board of Directors (the “Board”) of
Builders FirstSource, Inc. (the “Corporation”) approved the 2005 bonuses for the Corporation’s
executive officers under the Corporation’s Management Incentive Plan. The Board also set the
performance criteria for 2006 bonuses for the Corporation’s executive officers under the Management
Incentive Plan.
The Board of Directors believes that cash incentive bonuses facilitate the communication of
objectives that are of primary importance during the coming year and are intended to motivate
executive officers to attain those objectives. To this end, the Corporation has adopted a
Management Incentive Plan that provides for the potential payment of annual bonuses, pursuant to
cash incentive bonus plans, to our executive officers. The plan is administered by the Board of
Directors.
In approving the budget for the Corporation each year, the Board of Directors determines the
performance goals applicable to each cash incentive bonus under the plan, which may be based on one
or more criteria. The plan provides for the development of performance goals based on, for example,
pre- or after-tax income, cash flow, return on assets, equity or investment, stock price or total
stockholder return, earnings before or after interest, taxes, depreciation, amortization or
extraordinary or special items, net tangible assets or return on net tangible assets, or other
criteria determined by the Board of Directors to be appropriate. For 2005, the selected
performance criteria were return on tangible net assets, operating cash flow and percentage
increase in operating income. Those same performance criteria will be utilized for 2006.
Performance goals may be expressed in terms of attaining a specified level of the particular
criteria or the attainment of a percentage increase or decrease in the particular criterion and may
be applied to one or more of the Corporation or one of our affiliates, or a division or business
group of the Corporation, all as determined by the Board of Directors. Performance goals may
include threshold, target and maximum levels of performance. The achievement of performance goals
are subject to certification by the Board of Directors.
In the discretion of the Board of Directors, equitable adjustments may be made to performance goals
in recognition of unusual or non-recurring events affecting the Corporation or one of our
affiliates, in response to changes in applicable laws or regulations, or to account for items of
extraordinary gain, loss or expense, to account for dispositions or changes in accounting
principles. In addition, a percentage of each cash incentive bonus is discretionary and based upon
a performance and development review.
Awards under the plan may be expressed as a dollar amount or as a percentage of the participant’s
annual base salary. Mr. Sherman’s employment agreement provides that Mr. Sherman (see title below)
will be eligible for an annual cash incentive bonus of up to 133% of his base salary, as determined
by the Board of Directors. The Board of Directors may increase the amount of Mr. Sherman’s bonus if
it deems such an increase appropriate. For
Messrs. O’Meara, Horn and McAleenan (see titles below),
each of their employment agreements with the Corporation provides that the executive officer is
eligible for an annual cash incentive bonus with a target bonus percentage of 100% of the
executive’s base salary. Pursuant to these employment agreements, this target bonus percentage
will not be less than 100% of the executive’s base salary. Mr. Schenkel’s target bonus percentage
is 90% of his base salary. Depending upon the attainment of pre-established performance
standards, the payout to each executive under his respective annual cash incentive bonus plan could
exceed the target percentage of the executive officer’s base salary or could be as little as zero.
Although as a technical matter no payment to any executive officer may exceed $5.0 million in any
performance period (which may be no longer than 12 months), the Board of Directors does not
anticipate that any annual payment made to an executive officer under the Management Incentive Plan
would exceed an amount equal to 250% of the annual base salary of such executive officer.
Therefore, on February 14, 2006, the Board of Directors awarded the following bonuses under the
Management Incentive Plan to each of the Named Executive Officers for 2005: Floyd Sherman
(President and CEO) $1,099,500, Kevin O’Meara (Senior Vice President and Chief Operating Officer)
$656,865, Charles Horn (Senior Vice President and Chief Financial Officer) $603,900, Don McAleenan
(Senior Vice President and General Counsel) $583,400, and Fred Schenkel (Vice President of
Manufacturing) $383,670.
Forms
of Award Agreements
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Attached as exhibits hereto are the forms of restricted stock
grant agreement (Exhibit 99.1) and non-qualified stock option agreement (Exhibit 99.2) approved by
the Corporation’s Board of Directors for use pursuant to the Corporation’s 2005 Equity Incentive
Plan for executive officers in 2006.
ITEM 9.01.
Financial Statements and Exhibits.
(c) Exhibits.
See Exhibit Index.
TABLE OF CONTENTS
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 hereunto duly authorized.
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BUILDERS FIRSTSOURCE, INC.
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By:
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/s/ Donald F. McAleenan
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Name:
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Donald F. McAleenan
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Title:
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Senior Vice President,
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General Counsel and Secretary
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Dated: February 17, 2006
EXHIBIT INDEX
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Exhibit No.
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Description
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99.1
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2006 Form of Builders FirstSource, Inc. 2005 Equity Incentive Plan Nonqualified Stock
Option Agreement
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99.2
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2006 Form of Builders FirstSource, Inc. 2005 Equity Incentive Plan Restricted Stock Award
Agreement
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Exhibit 99.1
BUILDERS FIRSTSOURCE, INC.
2005 EQUITY INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (the “Agreement”), dated as of February 14, 2006, is
made by and between Builders FirstSource, Inc., a Delaware corporation (the “Company”), and
(the “Optionee”).
WHEREAS, the Company has adopted the Builders FirstSource Inc., 2005 Equity Incentive Plan (as
amended from time to time, the “Plan”), pursuant to which options may be granted to purchase Stock;
WHEREAS, the Company desires to grant to the Optionee a non-qualified stock option (or “NQSO”)
to purchase the number of shares of Stock provided for herein;
NOW, THEREFORE, in consideration of the recitals and the mutual agreements herein contained,
the parties hereto agree as follows:
Section 1.
Grant of Option
(a)
Grant of Option
. The Company hereby grants to the Optionee an Option to purchase
shares of Stock on the terms and conditions set forth in this Agreement and as otherwise provided
in the Plan. The Option is
not
intended to be treated, and shall not be construed, as an ISO.
(b)
Incorporation of Plan.
The provisions of the Plan are hereby incorporated herein by
reference. Except as otherwise expressly set forth herein, this Agreement shall be construed in
accordance with the provisions of the Plan and any capitalized terms not otherwise defined in this
Agreement shall have the definitions set forth in the Plan. The Board shall have final authority
to interpret and construe the Plan and this Agreement and to make any and all determinations under
them, and its decision shall be binding and conclusive upon the Optionee and his/her legal
representative in respect of any questions arising under the Plan or this Agreement.
Section 2.
Terms and Conditions of Option
(a)
Exercise Price
. The price at which the Optionee shall be entitled to purchase shares of
Stock upon the exercise of all or any portion of the Option shall be per share.
(b)
Expiration Date.
The Option shall expire at the close of business on the tenth
anniversary of the date of this Agreement.
(c)
Exercisability of Option.
Subject to the other terms of this Agreement regarding the
exercisability of the Option, the Option shall become exercisable as of the dates set forth below
for the cumulative percentages of shares of Stock set forth below,
provided the Optionee is employed by the Company or an Affiliate as of each such date:
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Date
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Percentage of Shares
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February 14, 2007
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33.33%
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February 14, 2008
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33.33%
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February 14, 2009
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33.34%
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The Board may, but shall not be required to, provide at any time for the acceleration of the
schedule set forth above.
(d)
Method of Exercise.
The Option may be exercised only by written notice in such form as
the Company may adopt from time to time, delivered in person or by mail in accordance with Section
3(a) and accompanied by payment therefor or pursuant to such other procedure as the Company may
adopt from time to time The purchase price of the shares of Stock shall be paid to the Company (i)
in cash or its equivalent, (ii) if outside of a period in which Company policy prohibits the
Optionee from trading in the Company’s securities (a “Blackout Period”), by tendering to the
Company shares of Stock already owned by the Optionee that have been held by the Optionee for no
less than six months following the date of their purchase, and have a total Fair Market Value less
than or equal to the aggregate exercise price, (iii) if outside a Blackout Period, to the extent
permitted by law, by a “broker cashless exercise” procedure approved by the Board, or (iv) by a
combination of the foregoing methods. If requested by the Board, the Optionee shall deliver this
Agreement evidencing the Option to the Secretary of the Company who shall endorse thereon a
notation of such exercise and return such Agreement to the Optionee. A minimum of 100 shares of
Stock must be purchased upon the exercise of the Option unless a lesser number of shares of Stock
so purchased constitutes the total number of shares of Stock then purchasable under the Option.
(e)
Exercise Following Termination of Employment.
Subject to Section 2(g), in the event that
the Optionee ceases to be employed by the Company or an Affiliate, that portion of the Option that
is not then exercisable shall immediately terminate and that portion of the Option that is
exercisable at the time of the Optionee’s termination of employment shall terminate as follows:
(i) If the Optionee’s termination of employment is due to his/her death or disability,
as determined by the Board, the Option (to the extent exercisable at the time of the
Optionee’s termination of employment) shall be exercisable for a period of six months
following such termination of employment, and shall thereafter terminate;
(ii) If the Optionee’s termination of employment is by the Company or an Affiliate for
Cause (as defined below), the Option shall terminate on the date of the Optionee’s
termination of employment;
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(iii) If the Optionee voluntarily terminates his/her employment (other than by
retirement), the Option (to the extent exercisable at the time of the Optionee’s
termination) shall be exercisable for a period of 60 days following such termination of
employment, and shall thereafter terminate; and
(iv) If the Optionee’s termination of employment is for any other reason, the Option
(to the extent exercisable at the time of the Optionee’s termination of employment) shall
be exercisable for a period of 60 days following such termination of employment, and shall
thereafter terminate.
For purposes of this Agreement, “Cause” means (i) any act of fraud, gross negligence, or dishonesty
in the performance of the Optionee’s duties or the willful failure by the Optionee to perform
Optionee’s duties; (ii) engaging in any action with the intention of causing harm or damage to any
of the Company’s operations; (iii) conviction of a felony; or (iv) obtaining personal gain from a
transaction in which the Optionee has a conflict of interest with the Company.
Notwithstanding the foregoing, no provision in this Section 2(e) shall extend the exercise period
of an Option beyond its original term set forth in Section 2(b).
(f)
Nontransferability.
The Option shall not be transferable by the Optionee other than by
will or the laws of descent and distribution.
(g)
Rights as a Stockholder.
The Optionee shall not be deemed for any purpose to be the owner
of any shares of Stock subject to the Option unless, until and to the extent that (i) the Option
shall have been exercised pursuant to its terms, (ii) the Company shall have issued and delivered
to the Optionee the shares of Stock for which the Option shall have been exercised, and (iii) the
Optionee’s name shall have been entered as a stockholder of record with respect to such shares of
Stock on the books of the Company.
(i)
Income Taxes.
The Company may, in its discretion, require that the Optionee pay to the Company
at or after (as determined by the Board) the time of exercise of any portion of the Option any such
additional amount as the Company deems necessary to satisfy its liability to withhold federal,
state or local income tax or any other taxes incurred by reason of the exercise or the transfer of
shares of Stock thereupon. Such taxes may be paid to the Company (i) in cash or its equivalent,
(ii) if outside of a Blackout Period, by tendering to the Company shares of Stock already owned by
the Optionee having a Fair Market Value less than or equal to the amount of such taxes, (iii) if
outside a Blackout Period, by electing to have the Company withhold a portion of the shares of
Stock to be received upon exercise of such Option having a Fair Market Value less than or equal to
the amount of such taxes, (iv) if outside a Blackout Period, to the extent permitted by law, by a
“broker cashless exercise” procedure approved by the Board, or (v) by a combination of the
foregoing methods.
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Section 3.
Miscellaneous
(a)
Notices.
Any notice by the Optionee to the Company hereunder shall be in writing and
shall be deemed duly given only upon receipt thereof by the General Counsel of the Company at its
principal offices. Any notice by the Company to the Optionee shall be in writing and shall deemed
duly given if mailed or sent by overnight service to the Optionee at the address last specified to
the Company by the Optionee, Optionee’s residence or Optionee’s address appearing on the books of
the Company.
(b)
No Right to Continued Employment.
Nothing in the Plan or in this Agreement shall confer
upon the Optionee any right to continue in the employ of the Company or any Affiliate or shall
interfere with or restrict in any way the right of the Company and its Affiliates, which are hereby
expressly reserved, to remove, terminate or discharge the Optionee at any time for any reason
whatsoever, with or without Cause.
(c)
Bound by Plan and Company Policy.
By signing this Agreement, the Optionee (i)
acknowledges that Optionee has received a copy of the Plan and has had an opportunity to review the
Plan, (ii) agrees to be bound by all the terms and provisions of the Plan and (iii) agrees not to
sell any Stock received upon exercise of an Option at a time when any law, rule, regulation or
Company policy prohibits a sale.
(d)
Successors.
The terms of this Agreement shall be binding upon and inure to the benefit of
the Company, its successors and assigns, and of the Optionee and the beneficiaries, executors,
administrators, heirs and successors of the Optionee.
(e)
Validity/Invalidity.
The invalidity or unenforceability of any particular provision
hereof shall not affect the other provisions hereof, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provision had been omitted.
(f)
Modifications.
No change, modification or waiver of any provision of this Agreement shall
be valid unless the same be in writing and signed by the parties hereto.
(g)
Entire Agreement.
This Agreement and the Plan contain the entire agreement and
understanding of the parties hereto with respect to the subject matter contained herein and therein
and supersede all prior communications, representations and negotiations in respect thereto.
(h)
Governing Law.
This Agreement and the rights of the Optionee hereunder shall be construed
and determined in accordance with the laws of the State of Delaware other than the conflicts of law
provisions thereof.
(i)
Headings.
The headings of the Sections hereof are provided for convenience only and are
not to serve as a basis for interpretation or construction, and shall not constitute a part, of
this Agreement.
(j)
Counterparts.
This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
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same instrument.
(k)
Confidentiality
. By signing this Agreement, Optionee agrees to keep confidential and not
to disclose to any person or entity information concerning the Company’s option program, the number
of Options covered by this Agreement or any transactions between the Optionee and the Company
pursuant to this Agreement, except as required by applicable law.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto on
the
day of
, 2006.
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BUILDERS FIRSTSOURCE, INC.
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By:
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Its
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Signature:
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Printed Name:
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Address:
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Exhibit 99.2
BUILDERS FIRSTSOURCE, INC.
2005 EQUITY INCENTIVE PLAN
RESTRICTED STOCK AWARD AGREEMENT
THIS RESTRICTED STOCK AWARD AGREEMENT, (the “Agreement”), dated as of February 14, 2006 (the
“Grant Date”), is made by and between Builders FirstSource, Inc., a Delaware corporation (the
“Company”), and ____________ (the “Grantee”).
WHEREAS, the Company has adopted the Builders FirstSource, Inc. 2005 Equity Incentive Plan (as
amended from time to time, the “Plan”), pursuant to which the Company may grant shares of Stock
which are restricted as to transfer (shares so restricted hereinafter referred to as “Restricted
Stock”);
WHEREAS, the Company desires to grant to the Grantee the number of shares of Restricted Stock
provided for herein;
NOW, THEREFORE, in consideration of the recitals and the mutual agreements herein contained,
the parties hereto agree as follows:
Section 1.
Grant of Restricted Stock Award
(a)
Grant of Restricted Stock
. The Company hereby grants to the
Grantee _________ shares of
Restricted Stock on the terms and conditions set forth in this Agreement and as otherwise provided
in the Plan.
(b)
Incorporation of Plan
. The provisions of the Plan are hereby incorporated herein by
reference. Except as otherwise expressly set forth herein, this Agreement shall be construed in
accordance with the provisions of the Plan and any capitalized terms not otherwise defined in this
Agreement shall have the definitions set forth in the Plan. The Board shall have final authority to
interpret and construe the Plan and this Agreement and to make any and all determinations
thereunder, and its decision shall be binding and conclusive upon the Grantee and his/her legal
representative in respect of any questions arising under the Plan or this Agreement.
Section 2.
Terms and Conditions of Award
The grant of Restricted Stock provided in Section 1(a) shall be subject to the following
terms, conditions and restrictions:
(a)
Ownership of Shares
. Subject to the restrictions set forth in the Plan and this Agreement,
the Grantee shall possess all incidents of ownership of the Restricted Stock granted hereunder,
including the right to receive dividends with respect to such Stock and the right to vote such
Stock.
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(b)
Restrictions
. Restricted Stock and any interest therein, may not be sold, assigned,
transferred, pledged, hypothecated or otherwise disposed of prior to the lapse of restrictions set
forth in this Agreement applicable thereto as set forth in Section 2(d). The Board may in its
discretion, cancel all or any portion of any outstanding restrictions prior to the expiration of
the periods provided under Section 2(d).
(c)
Certificate; Restrictive Legend
. The Grantee agrees that any certificate issued for
Restricted Stock prior to the lapse of any outstanding restrictions relating thereto shall be
inscribed with the following legend:
This certificate and the shares of stock represented hereby are subject to the terms
and conditions, including forfeiture provisions and restrictions against transfer
(the “Restrictions”), contained in the Builders FirstSource, Inc. 2005 Equity
Incentive Plan and an agreement entered into between the registered owner and
Builders FirstSource, Inc. Any attempt to dispose of these shares in contravention
of the Restrictions, including by way of sale, assignment, transfer, pledge,
hypothecation or otherwise, shall be null and void and without effect.
(d)
Lapse of Restrictions
. Except as may otherwise be provided herein, the restrictions on
transfer set forth in Section 2(b) shall lapse with respect to one third of the shares (rounded to
the nearest whole share) of Restricted Stock granted hereunder on each of the first, second and
third anniversaries of the Grant Date, so long as the Grantee continues to serve as an employee of
the Company as of the relevant date.
Upon each lapse of restrictions relating to Restricted Stock, the Company shall issue to the
Grantee or the Grantee’s personal representative a stock certificate representing a number of
shares of Stock, free of the restrictive legend described in Section 2(c), equal to the number of
shares subject to this Restricted Stock award with respect to which such restrictions have lapsed.
If certificates representing such Restricted Stock shall have theretofore been delivered to the
Grantee, such certificates shall be returned to the Company, complete with any necessary signatures
or instruments of transfer prior to the issuance by the Company of such unlegended shares of Stock.
(e)
Cessation of Service
. In the event that the Grantee’s service to the Company, as an
employee of the Company, ceases prior to the lapsing of restrictions with respect to any portion of
the Restricted Stock granted hereunder, such unvested portion of the Restricted Stock held by the
Grantee shall be immediately forfeited as of the date of such cessation of service.
Restricted Stock forfeited pursuant to this Section 2(e) shall be transferred to, and
reacquired by, the Company without payment of any consideration by the Company, and neither the
Grantee nor any of the Grantee’s successors, heirs, assigns, personal representatives or Permitted
Transferees shall thereafter have any further rights or interests in such shares or certificates.
If certificates containing restrictive legends shall have theretofore been delivered to the Grantee
(or his/her legatees, personal representative or Permitted Transferee), such
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certificates shall be returned to the Company, complete with any necessary signatures or
instruments of transfer.
(g)
Income Taxes
. The Grantee shall pay to the Company promptly upon request, and in any event
at the time the Grantee recognizes taxable income in respect of the Restricted Stock (or, if the
Grantee makes an election under Section 83(b) of the Code, in connection with such grant), an
amount equal to the taxes the Company determines it is required to withhold under applicable tax
laws with respect to the Restricted Stock. Such payment shall be made in the form of cash, shares
of Stock already owned by the Grantee , shares of Restricted Stock upon the lapse of restrictions,
or in a combination of such methods. The Grantee shall promptly notify the Company of any election
made pursuant to Section 83(b) of the Code.
Section 3.
Miscellaneous
(a)
Notices
. Any notice by the Grantee to the Company hereunder shall be in writing and shall
be deemed duly given only upon receipt thereof by the General Counsel of the Company at its
principal offices. Any notice by the Company to the Grantee shall be in writing and shall deemed
duly given if mailed or sent by overnight service to the Grantee at the address last specified to
the Company by the Grantee, Grantee’s residence or Grantee’s address appearing on the books of the
Company.
(b)
No Right to Continued Service
. Nothing in the Plan or in this Agreement shall confer upon
the Grantee any right to continue to serve as an employee of the Company.
(c)
Bound by Plan and Company Policy
. By signing this Agreement, the Grantee (i) acknowledges
that Grantee has received a copy of the Plan and has had an opportunity to review the Plan, (ii)
agrees to be bound by all the terms and provisions of the Plan and (iii) agrees not to sell any
Restricted Stock at a time when any law, rule, regulation or Company Policy prohibits a sale.
(d)
Successors
. The terms of this Agreement shall be binding upon and inure to the benefit of
the Company, its successors and assigns, and of the Grantee and the beneficiaries, executors,
administrators, heirs and successors of the Grantee.
(e)
Invalid Provision
. The invalidity or unenforceability of any particular provision thereof
shall not affect the other provisions hereof, and this Agreement shall be construed in all respects
as if such invalid or unenforceable provision had been omitted.
(f)
Modifications
. No change, modification or waiver of any provision of this Agreement shall
be valid unless the same be in writing and signed by the parties hereto.
(g)
Entire Agreement
. This Agreement and the Plan contain the entire agreement and
understanding of the parties hereto with respect to the subject matter contained herein and therein
and supersede all prior communications, representations and negotiations in respect thereto.
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(h)
Governing Law
. This Agreement and the rights of the Grantee hereunder shall be construed
and determined in accordance with the laws of the State of Delaware, other than the conflicts of
law provisions thereof.
(i)
Headings
. The headings of the Sections hereof are provided for convenience only and are
not to serve as a basis for interpretation or construction, and shall not constitute a part, of
this Agreement.
(j)
Counterparts
. This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same instrument.
(k)
Confidentiality
. By signing this Agreement, Grantee agrees to keep confidential and not
to disclose to any person or entity information concerning the Company’s Restricted Stock, the
number of shares of Restricted Stock covered by this Agreement or any transactions between the
Grantee and the Company pursuant to this Agreement, except as required by applicable law.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto as of
the 14
th
day of February, 2006.
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BUILDERS FIRSTSOURCE, INC.
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By: Donald F. McAleenan
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Its: Senior Vice President
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