UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of report: May 5, 2017
(Date of earliest event reported)
GMS Inc.
(Exact name of registrant as specified in its charter)
Delaware |
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001-37784 |
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46-2931287 |
(State or other jurisdiction
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(Commission
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(IRS Employer Identification No.) |
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100 Crescent Centre Parkway, Suite 800 |
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Tucker, Georgia |
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30084 |
(Address of principal executive offices) |
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(Zip Code) |
(800) 392-4619
(Registrants 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 ( see General Instruction A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth company as defined in as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company o
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o
Item 1.01. Entry into a Material Definitive Agreement.
On May 5, 2017, GMS Inc. (the Company) and AEA GMS Holdings LP, an affiliate of AEA Investors LP (AEA), which as of the date of the Second Amendment, holds a majority of the Registrable Securities held by all Holders (as such terms are defined in the Registration Rights Agreement), entered into Amendment No. 2 (the Second Amendment) to the Registration Rights Agreement, dated as of April 1, 2014, by and among the Company, certain affiliates of AEA and the other Holders party thereto (as amended, modified or supplemented from time to time, the Registration Rights Agreement), pursuant to which the parties agreed, among other things, to reduce certain notice periods for Holders of record of Registrable Securities from ten business days to three business days. As of the date of the Second Amendment, AEA GMS Holdings LP is the holder of record of approximately 34.7% of the outstanding shares of common stock of the Company. Each of Messrs. de La Chapelle, Hoesterey and Sharpe serves on the Companys board of directors as a representative of AEA.
The foregoing description of the Second Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Second Amendment, which is filed as an exhibit hereto.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits . The following exhibit is filed with this report:
Exhibit No. |
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Description |
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10.1 |
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Amendment No. 2 to Registration Rights Agreement, by and between the Company and AEA GMS Holdings LP, dated May 5, 2017. |
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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GMS INC. |
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By: |
/s/ H. Douglas Goforth |
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Name: |
H. Douglas Goforth |
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Title: |
Chief Financial Officer |
Date: May 8, 2017
Exhibit 10.1
AMENDMENT NO. 2
TO
REGISTRATION RIGHTS AGREEMENT
THIS AMENDMENT NO. 2 to Registration Rights Agreement (this Amendment No. 2 ) is entered into as of May 5, 2017, by and between GMS Inc., a Delaware corporation (the Company ), and AEA GMS Holdings LP, a Delaware limited partnership ( AEA ), to amend the Registration Rights Agreement, dated as of April 1, 2014 (as amended, modified or supplemented from time to time, the Registration Rights Agreement ) by and among the Company, certain affiliates of AEA and the other Holders party thereto, with such amendment to be effective as of the date hereof. Capitalized terms used but not defined in this Amendment No. 2 shall have the meanings ascribed to them in the Registration Rights Agreement.
WHEREAS, AEA holds, as of the date hereof, a majority of the Registrable Securities held by all Holders; and
WHEREAS, AEA and the Company desire to set forth herein an amendment to the Registration Rights Agreement in accordance with Section 4.4 thereof.
NOW, THEREFORE, in consideration of the respective covenants contained herein and intending to be legally bound hereby, the parties agree as follows:
1. Amendment to Section 2.1(a)(i) . Section 2.1(a)(i) of the Registration Rights Agreement is hereby amended by deleting the fourth and fifth sentences thereof in their entirety and replacing such sentences with the following:
The Company shall give written notice (the Demand Exercise Notice ) of such Demand Registration Request (1) to each of the Holders of record of Registrable Securities (other than individuals), at least three (3) Business Days prior to the filing of any registration statement under the Securities Act and (2) to each Holder of Registrable Securities that is an individual, no more than ten (10) Business Days after the filing of the registration statement under the Securities Act (or, in the case of a request for the filing of an automatic shelf registration statement, at least three (3) Business Days prior to the filing of such registration statement). Notwithstanding the foregoing, the Company may delay any Demand Exercise Notice, including until after filing a registration statement, so long as all recipients of such notice have the same amount of time to determine whether to participate in an offering as they would have had if such notice had not been so delayed.
2. Amendment to Section 2.1(a)(ii) . Section 2.1(a)(ii) of the Registration Rights Agreement is hereby amended by replacing the reference to ten (10) therein with a reference to three (3).
3. Amendment to Section 2.1(e) . Section 2.1(e) of the Registration Rights Agreement is hereby amended by replacing the reference to five (5) days therein with a reference to three (3) Business Days.
4. Amendment to Section 2.2(a) . Section 2.2(a) of the Registration Rights Agreement is hereby amended by deleting the first, second and third sentences thereof in their entirety and replacing such sentences with the following:
(a) If the Company proposes or is required (pursuant to Section 2.1 or
otherwise) to register any of its equity securities for its own account or for the account of any other shareholder under the Securities Act (other than pursuant to registrations on Form S-4 or Form S-8 or any similar successor forms thereto), the Company shall give written notice (the Piggyback Notice ) of its intention to do so (1) to each of the Holders of record of Registrable Securities (other than individuals), at least three (3) Business Days prior to the filing of any registration statement under the Securities Act and (2) to each Holder of Registrable Securities that is an individual, no more than ten (10) Business Days after the filing of the registration statement under the Securities Act (or, in the case of an automatic shelf registration statement, at least three (3) Business Days prior to the filing of such registration statement). Notwithstanding the foregoing, the Company may delay any Piggyback Notice, including until after filing a registration statement, so long as all recipients of such notice have the same amount of time to determine whether to participate in an offering as they would have had if such notice had not been so delayed. Upon the written request of any such Holder, made within three (3) Business Days following the receipt of any such Piggyback Notice (which request shall specify the maximum number of Registrable Securities intended to be disposed of by such Holder and the intended method of distribution thereof), the Company shall, subject to Sections 2.2(c), 2.2(f), 2.3 and 2.6 hereof, use its reasonable best efforts to cause all such Registrable Securities, the Holders of which have so requested the registration thereof, to be registered under the Securities Act with the securities which the Company at the time proposes to register to permit the sale or other disposition by the Holders (in accordance with the intended method of distribution thereof) of the Registrable Securities to be so registered, including, if necessary, by filing with the SEC a post-effective amendment or a supplement to the registration statement filed by the Company or the prospectus related thereto.
5. Amendment to Section 2.4 . Section 2.4 of the Registration Rights Agreement is hereby amended by replacing the reference to five (5) therein with a reference to three (3).
6. Effectiveness . This Amendment No. 2 shall be deemed to be effective and in full force and effect as of the date hereof. Except as expressly amended by this Amendment No. 2, all terms and provisions of the Registration Rights Agreement shall remain unchanged and in full force and effect without modification, and nothing herein shall operate as a waiver of any partys rights, powers or privileges under the Registration Rights Agreement.
7. Counterparts . This Amendment No. 2 may be executed and delivered in any number of separate counterparts (including by facsimile or electronic mail), each of which shall be an original, but all of which together shall constitute one and the same instrument.
8. Governing Law; Arbitration .
8.1. This Amendment No. 2 will be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to the principles of conflict of laws thereof.
8.2. Any controversy or dispute arising out of this Amendment No. 2, the interpretation of any of the provisions hereof or the action or inaction of any Person hereunder shall be submitted to arbitration in New York, New York, before the American Arbitration Association under the commercial arbitration rules of such Association. Any award or decision obtained from any such arbitration proceeding shall be final and binding on the parties, and judgment upon any award so obtained may be entered in any court having jurisdiction thereof. To the fullest extent permitted by law, no action at law or in equity based upon any claim arising out of or related to this Amendment No. 2 shall be
instituted in any court by any party except: (i) an action to compel arbitration pursuant to this Section 4.2, (ii) an action to enforce an award obtained in an arbitration proceeding in accordance with this Section 4.2, or (iii) an action for injunctive relief when and if such relief is appropriate under the terms of this Amendment No. 2.
[ Remainder of Page Intentionally Left Blank ]
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be signed by their respective officers thereunto duly authorized, all as of the date first written above.
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THE COMPANY: |
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GMS INC. |
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By: |
/s/ Craig D. Apolinsky |
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Name: Craig D. Apolinsky |
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Title: General Counsel |
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AEA: |
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AEA GMS HOLDINGS LP |
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By:AEA GMS Holdings GP LLC, its general partner |
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By: |
/s/ Barbara Burns |
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Name: Barbara Burns |
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Title: Vice President |
[Signature Page to Amendment No. 2 to Registration Rights Agreement]