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 (Date of earliest event reported) FEBRUARY 9, 2007
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BUILDING MATERIALS CORPORATION OF AMERICA
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(Exact Name of Registrant as Specified in Its Charter)
DELAWARE
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(State or Other Jurisdiction of Incorporation)
33-81808 22-3276290
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(Commission File Number) (IRS Employer Identification No.)
1361 ALPS ROAD
WAYNE, NEW JERSEY 07470
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(Address of Principal Executive Offices) (Zip Code)
(973) 628-3000
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(Registrant's Telephone Number, Including Area Code)
NOT APPLICABLE
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(Former Name or Former Address, if Changed Since Last Report)
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):
|_| Written communications 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))
ADDITIONAL REGISTRANTS
Address, including zip
code and telephone
State or other Registration number, including area
jurisdiction of No./I.R.S. code, of registrant's
Exact name of registrant incorporation or Employer principal
as specified in its charter organization Identification No. executive offices
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Building Materials Delaware 333-69749-01/ 1361 Alps Road
Manufacturing Corporation 22-3626208 Wayne, NJ 07470
(973) 628-3000
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ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
As of February 9, 2007, Building Materials Corporation of America ("BMCA"),
through two of its subsidiaries, BMCA Acquisition Inc. ("Parent") and BMCA
Acquisition Sub Inc., a wholly-owned direct subsidiary of Parent ("Offeror"),
entered into an Agreement and Plan of Merger (the "Merger Agreement") with
ElkCorp, a Dallas, Texas manufacturer of roofing products and building materials
("Elk"). Parent and Offeror originally made a binding offer to enter into the
Merger Agreement with Elk on January 29, 2007.
On January 18, 2007, BMCA withdrew its then pending tender offer for shares of
Elk, and, through two of its subsidiaries, Parent and Offeror, commenced a
tender offer to acquire all of Elk's outstanding shares of common stock, par
value $1.00 per share (the "Shares") for $42.00 per share of common stock in
cash, which offer was increased to $43.50 per share of common stock on January
23, 2007 (the "Tender Offer"). On February 12, 2007, the Tender Offer documents
were amended to reflect the terms of the Merger Agreement. The Board of
Directors of Elk has recommended to its shareholders that they accept the offer
and tender their shares to the Offeror.
The closing of the Tender Offer and Offeror's obligation to pay for all Shares
tendered is subject to the following conditions: (i) the number of Shares which,
when taken together with the Shares beneficially owned by Parent and Offeror
(and any of Samuel J. Heyman, Heyman Investment Associates Limited Partnership,
BMCA, BMCA Holdings Corporation, G-I Holdings Inc., G Holdings Inc., Heyman
Holdings Associates Limited Partnership and any other person who has or does
file an ownership statement on Schedule 13D regarding Elk, together or in
connection with any of the aforementioned persons), have been validly tendered
and not withdrawn prior to the expiration of the Offer, representing more than
one-half of the number of Shares outstanding on a fully diluted basis; (ii) Elk
having performed, in all material aspects, all of its obligations and complied
with all covenants set forth in the Merger Agreement, which are required to be
performed or complied with by Elk prior to the expiration date of the Tender
Offer; (iii) there not occurring any fact, circumstance, event, change, effect
or occurrence that has or would be reasonably likely to have a Company Material
Adverse Effect (as defined in the Merger Agreement); (iv) a governmental entity
enacting, issuing or entering any restraining order, injunction or similar order
or legal restraint or prohibition which remains in effect and which enjoins or
otherwise prohibits consummation of the Tender Offer or the Merger (as defined
below); (v) the Merger Agreement shall not have been terminated by Offeror,
Parent or Elk in accordance with its terms; (vi) any of the representations and
warranties of Elk not being true and correct in all respects as of the date upon
which such representations and warranties must be true and correct (subject to
certain exceptions as specified in the Merger Agreement) except where the
failure to be so true and correct would not have, individually or in the
aggregate, a Company Material Adverse Effect; or (vii) Elk delivering to Parent
on the date the Offer expires a certificate, dated as of such date and signed by
its Chief Executive Officer or another senior executive officer, certifying,
solely in his or her capacity as an officer of Elk without personal liability,
to the effect that certain conditions have been satisfied.
Once the Tender Offer has been completed, the parties will complete a
second-step merger (the "Merger") in which all remaining Shares will be
cancelled and converted into $43.50 per share, without interest, or such higher
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amount as may be paid for Shares in the Tender Offer. The Merger is subject to
the following conditions: (i) if stockholder approval is required, adoption of
the Merger Agreement by holders of a majority of outstanding Shares (which
approval will be guaranteed if at such time Parent, Offeror or another direct or
indirect wholly owned subsidiary of Parent own a majority of the outstanding
Shares); (ii) the absence of any injunction or other order prohibiting the
completion of the Merger; and (iii) Offeror having purchased the Shares tendered
pursuant to the Tender Offer.
The parties have agreed that if Parent, Offeror or any direct or indirect
subsidiary of Parent, own at least 90% of the outstanding Shares following the
completion of the Tender Offer, then the Merger will be completed without a
meeting of Elk's stockholders. Parent and Offeror are not obligated to effect
the Merger until the earlier of (a) 35 days from the date Offeror first accepts
Shares for payment in the Tender Offer and (b) the time that certain other
conditions have been satisfied.
Pursuant to the terms of the Merger Agreement, Parent and Offeror have, subject
to certain conditions and limitations, an irrevocable option, which may be
exercised after completion of the Tender Offer, to acquire a number of Shares
not to exceed maximum numbers, that, when added to the number of Shares owned by
Parent, Offeror or any direct or indirect subsidiary of Parent or Offeror at the
time of the exercise of the option, constitutes one share more than 90% of the
number of Shares that will be outstanding after giving effect to the exercise of
the option, at a price per Share equal to the amount paid for Shares pursuant to
the Tender Offer (the "Top-Up Option"). The Top-Up Option is intended to
expedite the timing of the completion of the Merger by permitting the Merger to
occur pursuant to Delaware's short form merger statute at a time when the
approval of the Merger at a meeting of Elk's stockholders would be assured
because of Parent's and Offeror's ownership of a majority of the Shares
following completion of the Tender Offer.
The Merger Agreement further provides that, after Offeror has purchased all
Shares tendered pursuant to the Tender Offer, which results in Parent and
Offeror (and any of Samuel J. Heyman, Heyman Investment Associates Limited
Partnership, BMCA, BMCA Holdings Corporation, G-I Holdings Inc., G Holdings
Inc., Heyman Holdings Associates Limited Partnership and any other person that
has or does file an ownership statement on Schedule 13D regarding Elk together
or in connection with any of the aforementioned persons) owning beneficially
(within the meaning of the Exchange Act) at least a majority of the Shares,
Parent has the right to designate a number of directors of Elk that is equal to
the product of the total number of directors on Elk's board of directors
multiplied by the percentage that the aggregate number of Shares beneficially
owned by Parent or any affiliate of Parent bears to the number of Shares
outstanding. In the event that Parent's designees are appointed or elected to
Elk's board of directors, until the effective time of the Merger, the board of
directors shall have at least three independent directors who are current
directors of Elk and who are neither officers of Elk nor designees,
stockholders, affiliates or associates (within the meaning of the federal
securities laws) of Parent ("Independent Directors"). After the time directors
designated by Parent are elected or appointed to Elk's board of directors and
prior to the effective time of the Merger, the affirmative vote of a majority of
the Independent Directors shall be required to (i) authorize any agreement
between Elk and any of its subsidiaries, on the one hand, and Parent, Offeror
and any of their affiliates (other than Elk and any of its subsidiaries) on the
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other hand, (ii) amend or terminate the Merger Agreement on behalf of Elk, (iii)
exercise or waive any of Elk's rights or remedies under the Merger Agreement,
(iv) extend the time for performance of Parent's or Offeror's obligations under
the Merger Agreement or (v) take any other action by Elk in connection with the
Merger Agreement or the transactions contemplated thereby required to be taken
by Elk's board of directors.
Offeror and Parent have obtained debt financing commitments from affiliates of
Deutsche Bank, Bear Stearns and JPMorgan Securities for the transactions
contemplated by the Merger Agreement, as well as the refinancing of certain
indebtedness of BMCA and its affiliates. Consummation of the Tender Offer and
the Merger is not subject to a financing condition.
The Merger Agreement may be terminated before consummation of the Tender Offer
under a number of specified circumstances, including by Elk (i) in order to
accept a Superior Proposal (as defined in the Merger Agreement) or (ii) in the
event that Offeror terminates the Tender Offer or fails to accept shares validly
tendered in the Tender Offer. Upon termination of the Merger Agreement, under
specified circumstances, Elk will be required to reimburse Parent for the
transaction expenses of Parent or Offeror up to $5 million. In addition, under
specified circumstances (including the circumstances referred to in clause (ii)
above), Parent will be required to pay Elk a termination fee of $35 million.
BMCA has provided a written guarantee of Parent's or Offeror's obligation to pay
any such fee.
The foregoing summary of the Merger Agreement and the transactions contemplated
thereby do not purport to be complete and is subject to, and qualified in its
entirety by, the full text of the Merger Agreement, which is incorporated herein
by reference.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
(d) Exhibits.
See the Index of Exhibits attached to this Form 8-K, which is incorporated
herein by reference.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrants have duly caused this report to be signed on their behalf by the
undersigned hereunto duly authorized.
BUILDING MATERIALS CORPORATION OF AMERICA
BUILDING MATERIALS MANUFACTURING CORPORATION
Dated: February 15, 2007 By: /s/ John F. Rebele
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Name: John F. Rebele
Title: Senior Vice President,
Chief Financial Officer and
Chief Administrative Officer
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EXHIBIT INDEX
Exhibit Number Description
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2.1 Agreement and Plan of Merger, dated as of
February 9, 2007, by and among BMCA
Acquisition Inc., BMCA Acquisition Sub Inc.
and ElkCorp (incorporated by reference to
Exhibit (d)(2) to the Schedule TO of BMCA
Acquisition Inc. and BMCA Acquisition Sub
Inc. filed with the Securities and Exchange
Commission on February 12, 2007).
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