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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Amendment No. 3)
Under the Securities Exchange Act of 1934
NCI Building Systems, Inc.
(Name of Issuer)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
Clayton, Dubilier & Rice Fund VIII, L.P.
c/o Clayton, Dubilier & Rice, LLC
Attention: Theresa A. Gore
375 Park Ave, New York NY 10152
(212) 407-5227
Copy to:
Steven J. Slutzky
Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022
(212) 909 6000
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
June 15, 2011
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition
which is the subject of this Schedule 13D, and is filing this schedule because of Sections
240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o
Note: Schedules filed in paper format shall include a signed original and five copies of the
schedule, including all exhibits. See Section 240.13d-7 for other parties to whom copies are to be
sent.
* The remainder of this cover page shall be filled out for a reporting person’s initial filing on
this form with respect to the subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be “filed” for
the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to
the liabilities of that section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
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| 1 |
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NAMES OF REPORTING PERSONS
Clayton, Dubilier & Rice Fund VIII, L.P. |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE
INSTRUCTIONS)
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(a) þ |
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(b) o |
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SEC USE ONLY |
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SOURCE OF FUNDS (SEE INSTRUCTIONS) |
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OO |
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CHECK I0046 DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR
2(e) |
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o |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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Cayman Islands
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7 |
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SOLE VOTING POWER |
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| NUMBER OF |
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0 |
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| SHARES |
8 |
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SHARED VOTING POWER |
| BENEFICIALLY |
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| OWNED BY |
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44,866,482 (see Item 5)(1) |
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| EACH |
9 |
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SOLE DISPOSITIVE POWER |
| REPORTING |
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| PERSON |
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0 |
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| WITH |
10 |
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SHARED DISPOSITIVE POWER |
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44,866,482 (see Item 5)(2) |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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44,866,482 (see Item 5)(1) |
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE
INSTRUCTIONS) |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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69.1%(3) |
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) |
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PN |
(1) Clayton, Dubilier & Rice Fund VIII, L.P. (“Fund VIII”)
holds 280,212.4068 shares of a class of convertible
preferred stock, par value $1.00 per share, of NCI
Building Systems, Inc., a Delaware corporation (the
“Company” or the “Issuer”), designated the Series B
Cumulative Convertible Participating Preferred Stock
(the “Preferred Stock,” and shares thereof, the
“Preferred Shares”). Each Preferred Share is entitled
to vote with holders of shares of common stock, par
value $0.01 per share (“Common Stock” and shares
thereof, the “Common Shares”), of the Issuer on an
as-converted basis (without taking into account any
limitations on convertibility that may then be
applicable). Fund VIII’s voting percentage is 69.1%,
calculated using a fraction, the numerator of which is
44,866,482 (representing (i) 280,212.4068 Preferred
Shares held by Fund VIII, voted on an as-converted
basis, and (ii) $5,766,548.54 of dividend accrued for
the period between October 21, 2010 and December 29,
2010 (such cash dividend, the “Fund VIII Cash Dividend”
and such period, the “Cash Dividend Period”), voted on
an as converted basis, in each case, after giving
effect to the Reverse Stock Split (defined below)), and
the denominator of which is 64,903,952 (calculated by
adding the number of outstanding shares of Common Stock
as of June 15, 2011, which is 19,925,163, plus the
Total Cash Dividend (defined below) and the total
number of Preferred Shares outstanding, each voted on
an as-converted basis, which is 44,978,789).
On February 19, 2010, at a meeting duly called by the
Issuer, the shareholders of the Issuer approved a
reverse stock split of the Common Stock (the “Reverse
Stock Split”). On the same date, the Board of Directors
of the Issuer (the “Board”) approved a ratio for the
Reverse Stock Split of 1-for-5. The Reverse Stock Split
became effective on March 5, 2010.
(2) Represents the number of available, unreserved and
unissued shares of Common Stock into which (i) the
280,212.4068 Preferred Shares held by Fund VIII and
(ii) the Fund VIII Cash Dividend, could be converted
within 60 days of the date hereof.
Preferred Shares. 249,651 Preferred Shares were issued
to Fund VIII in a private offering (the “Investment”)
pursuant to an Investment Agreement, dated August 14,
2009, as amended (the “Investment Agreement”), which
closed on October 20, 2009. Effective January 4, 2010,
Fund VIII transferred 282 shares of Preferred Stock,
equivalent to 44,243 shares of Common Stock on an
as-converted basis and after giving effect to the
Reverse Stock Split, to CD&R Friends & Family Fund
VIII, L.P. (“F&F Fund VIII”). 6,346.1178 shares of
Preferred Stock convertible into 995,626 shares of
Common Stock have accrued to Fund VIII as dividends
payable to holders of Preferred Stock pursuant to the
Certificate of Designations, Preferences and Rights of
the Preferred Stock (the “Certificate of Designations”)
for the period from December 30, 2009 to March 15,
2010. 7,951.9087 shares of Preferred Stock convertible
into 1,247,554 shares of Common Stock that represent
(i) the dividend accrual to Fund VIII as a holder of
Preferred Stock pursuant to the Certificate of
Designations for the period from March 16, 2010 to June
15, 2010 and (ii) a 3% increase in the dividend rate
for the period from March 15, 2010 to March 17, 2010
(date on which the dividend for the period ending March
15, 2010 was paid) have accrued to Fund VIII pursuant
to the Certificate of Designations. 8,149.4437 shares
of Preferred Stock convertible into 1,278,545 shares of
Common Stock have accrued to Fund VIII as dividends
payable to holders of Preferred Stock pursuant to the
Certificate of Designations for the period from June
16, 2010 to September 15, 2010. For the periods
between (i) September 16, 2010 to December 15, 2010
and (ii) December 16, 2010 to March 15, 2011, the
Company paid the dividends in cash. 8,395.9366 shares
of Preferred Stock convertible into 1,317,216.28 shares
of common stock have accrued to Fund VIII as dividends
payable to holders of Preferred Stock pursuant to the
Certificate of Designation for the period from March
16, 2011 to June 15, 2011.
Fund VIII Cash Dividend. $5,766,548.54 has accrued to
Fund VIII as cash dividends payable to Fund VIII
pursuant to the Certificate of Designations for the
Cash Dividend Period. Pursuant to the Certificate of
Designations, until such Fund VIII Cash Dividend is
paid in cash, such dividend will be convertible into
904,699 shares of Common Stock. The Company has not yet
paid the Fund VIII Cash Dividend.
(3) This percentage is calculated using a fraction, the
numerator of which is 44,866,482 (representing (i)
280,212.4068 Preferred Shares held by Fund VIII, voted
on an as-converted basis, and (ii) the Fund VIII Cash
Dividend, voted on an as converted basis, in each case,
after giving effect to the Reverse Stock Split), and
the denominator of which is 64,903,952 (calculated by
adding the number of outstanding shares of Common Stock
as of June 15, 2011, which is 19,925,163, plus the
Total Cash Dividend and the total number of Preferred
Shares outstanding, each voted on an as-converted
basis, which is 44,978,789).
1
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NAMES OF REPORTING PERSONS
CD&R Friends & Family Fund VIII, L.P. |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE
INSTRUCTIONS)
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(a) þ |
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(b) o |
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SEC USE ONLY |
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SOURCE OF FUNDS (SEE INSTRUCTIONS) |
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OO |
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR
2(e) |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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Cayman Islands
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7 |
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SOLE VOTING POWER |
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| NUMBER OF |
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0 |
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| SHARES |
8 |
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SHARED VOTING POWER |
| BENEFICIALLY |
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| OWNED BY |
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112,307 (see Item 5)(1) |
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| EACH |
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SOLE DISPOSITIVE POWER |
| REPORTING |
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| PERSON |
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0 |
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| WITH |
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SHARED DISPOSITIVE POWER |
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112,307 (see Item 5)(2) |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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112,307 (see Item 5)(1) |
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE
INSTRUCTIONS) |
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o
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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0.2%(3) |
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) |
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PN |
(1) F&F Fund VIII holds 707.7855 shares of Preferred Stock
of the Issuer. Each Preferred Share is entitled to vote
with holders of shares of Common Stock of the Issuer on
an as-converted basis (without taking into account any
limitations on convertibility that may then be
applicable). F&F Fund VIII’s voting percentage is 0.2%,
calculated using a fraction, the numerator of which is
112,307 (representing (i) 707.7855 Preferred Shares
held by F&F Fund VIII, voted on an as-converted basis,
and (ii) $8,061.46 of dividend accrued for the Cash
Dividend Period (the “F&F Fund VIII Cash Dividend” and
together with the Fund VIII Cash Dividend, the “Total
Cash Dividend”), voted on an as converted basis, in
each case, after giving effect to the Reverse Stock
Split), and the denominator of which 64,903,952
(calculated by adding the number of outstanding shares
of Common Stock as of June 15, 2011, which is
19,925,163, plus the Total Cash Dividend and the total
number of Preferred Shares outstanding, each voted on
an as-converted basis, which is 44,978,789).
(2) Represents the number of available, unreserved and
unissued shares of Common Stock into which (i) the
707.7855 Preferred Shares held by F&F Fund VIII and
(ii) the F&F Fund VIII Cash Dividend, could be
converted within 60 days of the date hereof.
Preferred Shares. 349 Preferred Shares were issued to
F&F Fund VIII pursuant to the Investment Agreement.
Effective January 4, 2010, Fund VIII transferred 282
shares of Preferred Stock, equivalent to 44,243 shares
of Common Stock on an as-converted basis and after
giving effect to the Reverse Stock Split, to F&F Fund
VIII. 15.46377 shares of Preferred Stock convertible
into 2,426 shares of Common Stock have accrued to F&F
Fund VIII as dividends payable to holders of Preferred
Stock pursuant to the Certificate of Designations for
the period from December 30, 2009 to March 15, 2010.
19.9051 shares of Preferred Stock convertible into
3,123 shares of Common Stock that represent (i) the
dividend accrual to F&F Fund VIII as a holder of
Preferred Stock pursuant to the Certificate of
Designations for the period from March 15, 2010 to June
15, 2010 and (ii) a 3% increase in the dividend rate
for the period from March 15, 2010 to March 17, 2010
(date on which the dividend for the period ending March
15, 2010 was paid) have accrued to F&F Fund VIII
pursuant to the Certificate of Designations. 20.4001
shares of Preferred Stock convertible into 3,201 shares
of Common Stock have accrued to F&F Fund VIII as
dividends payable to holders of Preferred Stock
pursuant to the Certificate of Designations for the
period from June 16, 2010 to September 15, 2010. For
the periods between (i) September 16, 2010 to December
15, 2010 and (ii) December 16, 2010 to March 15, 2011,
the Company paid the dividends in cash. 21.0165 shares
of Preferred Stock convertible into 3,297 shares of
Common Stock have accrued to F&F Fund VIII as dividends
payable to holders of Preferred Stock pursuant to the
Certificate of Designations for the period from March
16, 2011 to June 16, 2011.
F&F Fund VIII Cash Dividend. $8,061.46 has accrued to
F&F Fund VIII as cash dividends payable to F&F Fund
VIII pursuant to the Certificate of Designations for
the Cash Dividend Period. Pursuant to the Certificate
of Designations, until such F&F Fund VIII Cash Dividend
is paid in cash, such dividend will be convertible into
1,264 shares of Common Stock. The Company has not yet
paid the F&F Fund VIII Cash Dividend.
(3) This percentage is calculated using a fraction, the
numerator of which is 112,307 (representing (i)
707.7855 Preferred Shares held by F&F Fund VIII, voted
on an as-converted basis, and (ii) the F&F Fund VIII
Cash Dividend, voted on an as converted basis, in each
case, after giving effect to the Reverse Stock Split),
and the denominator of which is 64,903,952 (calculated
by adding the number of outstanding shares of Common
Stock as of June 15, 2011, which is 19,925,163, plus
the Total Cash Dividend and the total number of
Preferred Shares outstanding, each voted on an
as-converted basis, which is 44,978,789).
2
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NAMES OF REPORTING PERSONS
CD&R Associates VIII, Ltd. |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
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(a) o |
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(b) þ |
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SEC USE ONLY |
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SOURCE OF FUNDS (SEE INSTRUCTIONS) |
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OO |
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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Cayman Islands
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7 |
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SOLE VOTING POWER |
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| NUMBER OF |
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0 |
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| SHARES |
8 |
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SHARED VOTING POWER |
| BENEFICIALLY |
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| OWNED BY |
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44,978,789 (see Item 5)(1) |
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| EACH |
9 |
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SOLE DISPOSITIVE POWER |
| REPORTING |
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| PERSON |
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0 |
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| WITH |
10 |
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SHARED DISPOSITIVE POWER |
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44,978,789 (see Item 5)(2) |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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44,978,789 (see Item 5)(1) |
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) |
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o
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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69.3%(3) |
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) |
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CO |
(1) CD&R Associates VIII, Ltd. may be deemed to beneficially own Common Shares of the Issuer because it is the general partner of Fund VIII and F&F Fund VIII (the “CD&R Funds”). The CD&R Funds hold 280,920.1923 shares of Preferred Stock. Each Preferred Share is entitled to vote with holders of shares of Common Stock of the Issuer on an as-converted basis (without taking into account any limitations on convertibility that may then be
applicable). The CD&R Funds’ voting percentage is 69.3%, calculated using a fraction, the numerator of which is 44,978,789 (representing (i) 280920.1923 Preferred Shares held by the CD&R Funds, voted on an as-converted basis, and (ii) $5,774,610.00 of Total Cash Dividend accrued for the Cash Dividend Period, voted on an as converted basis, in each case, after giving effect to the Reverse Stock Split), and the denominator of which is 64,903,952 (calculated by adding the number of outstanding
shares of Common Stock as of June 15, 2011, which is 19,925,163, plus the Total Cash Dividend and the total number of Preferred Shares outstanding, each voted on an as-converted basis, which is 44,978,789).
(2) Represents the number of available, unreserved and unissued shares of Common Stock into which (i) the 280,920.1923 Preferred Shares held by the CD&R Funds and (ii) the Total Cash Dividend, could be converted within 60 days of the date hereof.
Preferred Shares.
250,000 Preferred Shares were issued to the CD&R Funds pursuant to the Investment Agreement.
6,361.58152 shares of Preferred Stock convertible into 998,052 shares of
Common Stock have accrued to the CD&R Funds as dividends payable to holders of Preferred Stock pursuant to the
Certificate of Designations for the period from December 30, 2009 to March 15, 2010. 7,971.8138 shares of Preferred Stock
convertible into 1,250,677 shares of Common Stock that represent (i) the dividend accrual to the CD&R Funds as holders
of Preferred Stock pursuant to the Certificate of Designations for the period from March 16, 2010 to June 15, 2010, and (ii)
a 3% increase in the dividend rate for the period from March 15, 2010 to March 17, 2010 (date on which the dividend for the
period ending March 15, 2010 was paid) have accrued to the CD&R Funds pursuant to the Certificate of Designations.
8,169.8438 shares of Preferred Stock convertible into 1,281,746 shares of Common Stock have accrued to the CD&R Funds
as dividends payable to holders of Preferred Stock pursuant to the Certificate of Designations for the period from June 16,
2010 to September 15, 2010. For the periods between (i) September 16, 2010 to December 15, 2010 and (ii) December 16, 2010 to March 15, 2011, the Company paid the dividends in cash.
8416.9531 shares of Preferred Stock convertible into 1,320,514 shares of Common Stock have accrued to the CD&R Funds as
dividends payable to holders of Preferred Stock pursuant to the Certificate of Designations for the period from March 16,
2011 to June 16, 2011.
Total Cash Dividend. $5,774,610 has accrued to the CD&R Funds as cash dividends payable
to the CD&R Funds
pursuant to the Certificate of Designations for the Cash Dividend Period. Pursuant to the Certificate of Designations,
until such Total Cash Dividend is paid in cash, such dividend will be convertible into 905,963 shares of Common Stock.
The Company has not yet paid the Total Cash Dividend.
(3) This percentage is calculated using a fraction, the numerator of which is 44,978,789 (representing (i) 280,920.1923 Preferred Shares held by the CD&R Funds, voted on an as-converted basis, and (ii) $5,774,610.00 of Total Cash Dividend accrued for the Cash Dividend Period, voted on an as converted basis, in each case, after giving effect to the Reverse Stock Split),
and the denominator of which is 64,903,952 (calculated by adding the number of outstanding shares of Common Stock as of June 15, 2011, which is 19,925,163, plus the Total Cash Dividend and the total number of Preferred Shares outstanding, each voted on an as-converted basis, which is 44,978,789).
3
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| 1 |
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NAMES OF REPORTING PERSONS
CD&R Associates VIII, L.P. |
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| 2 |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
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(a) o |
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(b) þ |
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| 3 |
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SEC USE ONLY |
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| 4 |
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SOURCE OF FUNDS (SEE INSTRUCTIONS) |
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OO |
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| 5 |
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
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| 6 |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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Cayman Islands
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7 |
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SOLE VOTING POWER |
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| NUMBER OF |
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0 |
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| SHARES |
8 |
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SHARED VOTING POWER |
| BENEFICIALLY |
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| OWNED BY |
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44,978,789 (see Item 5)(1) |
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| EACH |
9 |
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SOLE DISPOSITIVE POWER |
| REPORTING |
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| PERSON |
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0 |
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| WITH |
10 |
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SHARED DISPOSITIVE POWER |
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44,978,789 (see Item 5)(2) |
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| 11 |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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44,978,789 (see Item 5)(1) |
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| 12 |
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) |
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o
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| 13 |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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69.3%(3) |
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| 14 |
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) |
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PN |
(1) CD&R Associates VIII, L.P. may be deemed to beneficially own Common Shares of the Issuer because it is the sole shareholder of CD&R Associates VIII, Ltd., the general partner of the CD&R Funds. The CD&R Funds hold 280,920.1923 shares of Preferred Stock. Each Preferred Share is
entitled to vote with holders of shares of Common Stock of the Issuer on an as-converted basis (without taking into account any limitations on convertibility that may then be applicable). The CD&R Funds’ voting percentage is 69.3% calculated using a fraction, the numerator of which is 44,978,789 (representing (i) 280,920.1923 Preferred Shares held by the CD&R Funds, voted on an as-converted basis,
and (ii) $5,774,610.00 of Total Cash Dividend accrued for the Cash Dividend Period, voted on an as converted basis, in each case, after giving effect to the Reverse Stock Split), and the denominator of which is 64,903,952 (calculated by adding the number of outstanding shares of Common Stock as of June 15, 2011, which is 19,925,163, plus the Total Cash Dividend and the total number of Preferred Shares outstanding, each voted on an as-converted basis, which is 44,978,789).
(2) Represents the number of available, unreserved and unissued shares of Common Stock into which (i) the 280,920.1923 Preferred Shares held by the CD&R Funds and (ii) the Total Cash Dividend, could be converted within 60 days of the date hereof.
Preferred Shares.
250,000 Preferred Shares were issued to the CD&R Funds pursuant to the Investment Agreement.
6,361.58152 shares of Preferred Stock convertible into 998,052 shares of Common
Stock have accrued to the CD&R Funds as dividends payable to holders of Preferred Stock pursuant to the Certificate of
Designations for the period from December 30, 2009 to March 15, 2010. 7,971.8138 shares of Preferred Stock convertible into
1,250,677 shares of Common Stock that represent (i) the dividend accrual to the CD&R Funds as holders of Preferred
Stock pursuant to the Certificate of Designations for the period from March 16, 2010 to June 15, 2010 and (ii) a 3% increase
in the dividend rate for the period from March 15, 2010 to March 17, 2010 (date on which the dividend for the period ending
March 15, 2010 was paid) have accrued to the CD&R Funds pursuant to the Certificate of Designations. 8,169.8438 shares of Preferred Stock convertible into 1,281,746 shares of Common Stock have accrued to the CD&R Funds as dividends payable to holders of Preferred Stock pursuant to the Certificate of Designations for the period from June 16, 2010 to September 15, 2010. For the periods between (i) September
16, 2010 to December 15, 2010 and (ii) December 16, 2010 to March 15, 2011, the Company paid the dividends in cash. 8416.9531 shares of Preferred Stock convertible into 1,320,514 shares of Common Stock have accrued to the CD&R Funds as dividends payable to holders of Preferred Stock pursuant to the Certificate of Designations for the period from March 16, 2011 to June 16, 2011.
Total Cash Dividend. $5,774,610 has accrued to the CD&R Funds as cash dividends payable to the CD&R Funds pursuant to the Certificate of Designations for the Cash Dividend Period. Pursuant to the Certificate of Designations, until such Total Cash Dividend is paid in cash, such dividend will be convertible into 905,963 shares of Common Stock. The Company has not yet paid the Total Cash Dividend.
(3) This percentage is calculated using a fraction, the numerator of which is 44,978,789 (representing (i) 280,920.1923 Preferred Shares held by the CD&R Funds, voted on an as-converted basis, and (ii) $5,774,610.00 of Total Cash Dividend accrued for the Cash Dividend Period, voted on an as converted basis, in each case,
after giving effect to the Reverse Stock Split), and the denominator of which is 64,903,952 (calculated by adding the number of outstanding shares of Common Stock as of June 15, 2011, which is 19,925,163, plus the Total Cash Dividend and the total number of Preferred Shares outstanding, each voted on an as-converted basis, which is 44,978,789).
4
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NAMES OF REPORTING PERSONS
CD&R Investment Associates VIII, Ltd. |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
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(a) o |
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(b) þ |
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SEC USE ONLY |
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SOURCE OF FUNDS (SEE INSTRUCTIONS) |
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OO |
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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Cayman Islands
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SOLE VOTING POWER |
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SHARED VOTING POWER |
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44,978,789 (see Item 5)(1) |
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SOLE DISPOSITIVE POWER |
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SHARED DISPOSITIVE POWER |
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44,978,789 (see Item 5)(2) |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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44,978,789 (see Item 5)(1) |
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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69.3%(3) |
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) |
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CO |
(1) CD&R Investment Associates VIII, Ltd. may be deemed to beneficially own Common Shares of the Issuer because
it is the general partner of CD&R Associates VIII, L.P., which is the sole shareholder of CD&R Associates VIII, Ltd., the general partner of the CD&R Funds.
The CD&R Funds hold 280,920.1923 shares of Preferred Stock.
Each Preferred Share is entitled to vote with holders of shares of Common Stock of the Issuer on an as-converted
basis (without taking into account any limitations on convertibility that may then be applicable). The CD&R
Funds’ voting percentage is 69.3%, calculated using a fraction, the numerator of which is 44,978,789 (representing
(i) 280,920.1923 Preferred Shares held by the CD&R Funds, voted on an as-converted basis, and (ii) $5,774,610.00 of
Total Cash Dividend accrued for the Cash Dividend Period, voted on an as converted basis, in each case, after giving
effect to the Reverse Stock Split), and
the denominator of which is 64,903,952 (calculated by adding the number of outstanding shares of Common Stock as of
June 15, 2011, which is 19,925,163, plus the Total Cash Dividend and the total number of Preferred Shares outstanding,
each voted on an as-converted basis, which is 44,978,789).
(2) Represents the number of available, unreserved and
unissued shares of Common Stock into which (i) the 280,920.1923 Preferred Shares held by the CD&R
Funds and (ii) the Total Cash Dividend, could be converted within 60 days of the date hereof.
Preferred Shares. 250,000 Preferred Shares were issued to the CD&R
Funds pursuant to the Investment Agreement. 6,361.58152 shares of Preferred Stock convertible into 998,052 shares of Common Stock have
accrued to the CD&R Funds as dividends payable to holders of Preferred Stock pursuant to the Certificate of Designations for the period from December 30, 2009 to March 15, 2010. 7,971.8138 shares
of Preferred Stock convertible into 1,250,677 shares of Common Stock that represent (i) the dividend accrual
to the CD&R Funds as holders of Preferred Stock pursuant to the Certificate of Designations for the period from March 16, 2010 to June 15, 2010 and (ii) a 3%
increase in the dividend rate for the period from March 15, 2010 to March 17, 2010 (date on which the dividend for the period ending March 15, 2010 was paid) have accrued to
the CD&R Funds pursuant to the Certificate of Designations. 8,169.8438 shares of Preferred Stock convertible into 1,281,746 shares of Common Stock have accrued to the CD&R Funds as dividends
payable to holders of Preferred Stock
pursuant to the Certificate of Designations for the period from June 16, 2010 to September 15, 2010. For the periods between (i) September
16, 2010 to December 15, 2010 and (ii) December 16, 2010 to March 15, 2011, the Company paid the dividends in cash. 8416.9531 shares
of Preferred Stock convertible into 1,320,514 shares of Common Stock have accrued to the CD&R Funds as dividends payable to holders of Preferred Stock pursuant to the Certificate of Designations for the period from March 16, 2011 to June 16, 2011.
Total Cash Dividend. $5,774,610 has accrued to the CD&R Funds as cash dividends payable to the CD&R Funds
pursuant to the Certificate of Designations for the Cash Dividend Period. Pursuant to the Certificate of Designations, until such Total Cash Dividend is paid in cash, such dividend will be convertible into 905,963 shares of Common Stock. The Company has not yet paid the Total Cash Dividend.
(3) This percentage is calculated using a fraction, the numerator of which is 44,978,789 (representing (i) 280,920.1923 Preferred Shares held by the CD&R Funds,
voted on an as-converted basis, and (ii) $5,774,610.00 of Total Cash Dividend accrued for the Cash Dividend Period, voted on an as converted basis, in each case, after giving effect to the Reverse Stock Split), and the denominator of which is 64,903,952 (calculated by adding the number of outstanding
shares of Common Stock as of June 15, 2011, which is 19,925,163, plus the Total Cash Dividend and the total number of Preferred Shares outstanding, each voted on an as-converted basis, which is 44,978,789).
5
TABLE OF CONTENTS
Item 3. Source and Amount of Funds or Other Consideration.
Item 3 is hereby amended and supplemented by adding the following:
“In accordance with the terms of the Certificate of Designations, since the date of issuance of the
Preferred Stock, the Preferred Shares have accrued the following dividends:
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Preferred Shares.
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(i)
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6,361.5815 shares of Preferred Stock
convertible into 998,052 shares of Common
Stock have accrued to the CD&R Funds as
dividends payable to holders of Preferred
Stock for the period from December 30,
2009 to March 15, 2010. Such dividend was
declared by the Board and paid to the CD&R
Funds on March 17, 2010. |
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(ii)
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7,971.8138 shares of Preferred Stock
convertible into 1,250,677 shares of
Common Stock have accrued to the CD&R
Funds as dividends payable to holders of
Preferred Stock for the period from March
16, 2010 to June 15, 2010. Such dividend
was declared by the Board and paid to the
CD&R Funds on June 15, 2010. |
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(iii)
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8,169.8438 shares of Preferred Stock
convertible into 1,281,746 shares of
Common Stock have accrued to the CD&R
Funds as dividends payable to holders of
Preferred Stock pursuant to the
Certificate of Designations for the period
from June 16, 2010 to September 15, 2010.
Such dividend was declared by the Board
and paid to the CD&R Funds on September
15, 2010.
( |
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(iv)
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8416.9531 shares of Preferred Stock
convertible into 1,320,514 shares of
Common Stock have accrued to the CD&R
Funds as dividends payable to holders of
Preferred Stock pursuant to the
Certificate of Designations for the period
from March 16, 2011 to June 16, 2011.
Such dividend was declared by the Board
and paid to the CD&R Funds on June 15,
2011. |
Total Cash Dividend. $5,774,610 has accrued to the CD&R Funds as cash dividends payable to the CD&R
Funds for the Cash Dividend Period. Until such Total Cash Dividend is paid in cash, such dividend
will be convertible into 905,963 shares of Common Stock.”
Item 5. Interest in the Securities of the Issuer
(a)
Items 5(a)(i) and (ii) are hereby amended in their entirety to read as follows:
“(i) Fund VIII is the beneficial owner of 44,866,482 shares of Common Stock, which it has the right
to vote with holders of Common Stock on an as-converted basis pursuant to the Certificate of
Designations, without taking into account any limitations on convertibility due to the number of
authorized shares available for issuance that may then be applicable. At the initial conversion
price of $1.2748 (or 6.3740 after giving effect to the Reverse Stock Split), Fund VIII’s voting
interest is approximately 69.1% of the voting power of the Company.
(ii) F&F Fund VIII is the beneficial owner of 112,307 shares of Common Stock, which it has the
right to vote with holders of Common Stock on an as-converted basis pursuant to the Certificate of
Designations, without taking into account any limitations on convertibility due to the number of
authorized shares available for issuance that may then be applicable. At the initial conversion
price of $1.2748 (or 6.3740 after giving effect to the Reverse Stock Split), F&F Fund VIII’s voting
interest is approximately 0.2% of the voting power of the Company.”
Item 7. Material to be filed as exhibits.
Item 7 is hereby amended and supplemented by adding the following:
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Description of Exhibit |
1.
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Joint Filing Agreement, dated as of June 16, 2011 by and
between Clayton, Dubilier & Rice Fund VIII, L.P., CD&R Friends
& Family Fund VIII, L.P., CD&R Associates VIII, Ltd., CD&R
Associates VIII, L.P. and CD&R Investment Associates VIII,
Ltd. |
6
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information
set forth in this statement is true, complete and correct.
Date June 16, 2010
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CLAYTON, DUBILIER & RICE FUND VIII, L.P. |
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By:
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CD&R Associates VIII, Ltd., |
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its general partner |
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/s/ Theresa A. Gore |
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Name:
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Theresa A. Gore |
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Title:
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Vice President, Treasurer and Assistant Secretary |
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CD&R FRIENDS & FAMILY FUND VIII, L.P. |
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By:
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CD&R Associates VIII, Ltd., |
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its general partner |
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By:
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/s/ Theresa A. Gore
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Name: Theresa A. Gore |
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Title: Vice President, Treasurer and Assistant Secretary |
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CD&R ASSOCIATES VIII, LTD. |
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By:
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/s/ Theresa A. Gore
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Name: Theresa A. Gore |
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Title: Vice President, Treasurer and Assistant Secretary |
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CD&R ASSOCIATES VIII, L.P. |
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By:
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CD&R Investment Associates VIII, |
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Ltd., its general partner |
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By:
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/s/ Theresa A. Gore
Name: Theresa A. Gore
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Title: Vice President, Treasurer and
Assistant Secretary |
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CD&R INVESTMENT ASSOCIATES VIII, LTD. |
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By:
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/s/ Theresa A. Gore
Name: Theresa A. Gore
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Title: Vice President, Treasurer and
Assistant Secretary |
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7