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): January 2629, 2021

FOUNDATION BUILDING MATERIALS, INC.

(Exact Name of the Registrant as Specified in Charter)

Delaware

001-38009

81-4259606

(State or Other Jurisdiction of Incorporation)

(Commission File Number)

(IRS Employer Identification No.)



2520 Red Hill Avenue	Santa Ana,	California	92705
(Address of principal executive offices)			(Zip Code)

(714) 380-3127

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:


☐			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))

Indicate by check mark whether the registrant is an emerging growth company 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			☐

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. ¨

Securities registered pursuant to Section 12(b) of the Act:

Title of each class

Trading Symbol

Name of each exchange on which registered

Common Stock

FBM

New York Stock Exchange

~~Item 7.01. Regulation FD Disclosure.~~Introduction

~~As previously announced, on November 14, 2020, Foundation Building Materials, Inc., a Delaware corporation (the “Company”), entered into an Agreement and Plan of~~ Merger ~~(the “Merger~~ Agreement”) with ASP Flag Intermediate Holdings, Inc., a Delaware corporation (“Parent”), and ASP Flag Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”). Parent and Merger Sub are affiliates of American Securities LLC. Pursuant to the Merger Agreement, subject to the satisfaction or waiver of specified conditions, Merger Sub will merge with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly owned subsidiary of Parent.

~~The~~On ~~Company~~January ~~expects~~29, 2021, pursuant to that certain Agreement and Plan of Merger, dated as of November 14, 2020 (the “Merger toAgreement”), ~~close~~by onand ~~January~~among 29Foundation Building Materials, ~~2021~~Inc., ~~subject~~a toDelaware corporation (the ~~satisfaction~~“Company”), orASP ~~waiver~~Flag Intermediate Holdings, Inc., a Delaware corporation (“Parent”) and ASP Flag Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of ~~certain~~Parent ~~customary~~(“Merger ~~closing~~Sub”), ~~conditions~~Merger Sub merged with and into the Company (the “Merger”), with the Company continuing as the surviving corporation and as a wholly owned subsidiary of Parent. The Merger became effective upon the filing of the certificate of merger with the Delaware Secretary of State on January 29, 2021 (the “Effective Time”).

~~The~~Pursuant ~~information~~to ~~included~~the inMerger ~~this~~Agreement, ~~Item~~at ~~7.01~~the isEffective ~~being~~Time, ~~furnished~~each toissued ~~the~~and ~~Securities~~outstanding ~~and~~share ~~Exchange~~of ~~Commission~~common stock of the Company (the “~~SEC~~Common Stock”) ~~and~~was ~~shall~~converted ~~not~~into bethe ~~deemed~~right ~~“filed”~~to ~~for~~receive ~~purposes~~$19.25 ofin ~~Section~~cash, 18without ofinterest, ~~the~~and ~~Securities~~subject ~~Exchange~~to ~~Act~~deduction offor ~~1934,~~any asrequired ~~amended~~withholding tax (the “~~Exchange~~Merger ~~Act~~Consideration”), orother ~~otherwise~~than ~~subject~~shares toof the ~~liabilities~~Company’s ofCommon ~~that~~Stock ~~section,~~held ~~nor~~by ~~shall~~Parent, itMerger beSub ~~deemed~~or ~~incorporated by reference in~~ any ~~filing~~other ~~under~~wholly-owned ~~the~~subsidiary ~~Securities Act~~ of ~~1933~~the Company, asshares ~~amended~~held (by the ~~“Securities~~Company ~~Act”),~~in ortreasury ~~the~~and ~~Exchange~~shares ~~Act,~~owned ~~except~~by asstockholders ~~shall~~who behave ~~expressly~~properly ~~set~~exercised ~~forth~~and byperfected ~~specific~~appraisal ~~reference~~rights inunder ~~such~~Delaware ~~filing~~law.

~~Cautionary~~At ~~Note~~the ~~Regarding~~Effective ~~Forward-Looking~~Time, ~~Statements~~each grant of restricted stock units granted under the Company’s 2017 Stock Incentive Plan (the “Company Stock Plan”) that was outstanding immediately prior to the Effective Time fully vested and converted into the right to receive an amount in cash (without interest and subject to applicable tax withholdings) equal to the product of (i) the Merger Consideration multiplied by (ii) the number of shares of Common Stock subject to such restricted stock units. At the Effective Time, each option to purchase Common Stock granted under the Company Stock Plan that was outstanding immediately prior to the Effective Time fully vested and converted into the right to receive an amount in cash (without interest and subject to applicable tax withholdings) equal to the product of (i) the remainder, if positive, of (A) the Merger Consideration minus (B) the exercise price per share of Common Stock of such option multiplied by (ii) the number of shares of Common Stock subject to such option.

~~This~~The ~~Report~~foregoing ~~contains~~description ~~forward-looking~~of ~~statements~~the ~~that~~Merger ~~involve risks~~ and ~~uncertainties~~the ~~that~~Merger ~~could~~Agreement ~~cause~~does ~~actual~~not ~~results~~purport to ~~differ~~be ~~materially~~complete ~~from~~and ~~the~~is ~~results~~subject ~~expressed~~to, orand ~~implied~~qualified ~~by such forward-looking statements. The Company has made these statements~~ in ~~reliance~~its onentirety ~~the safe harbor created~~ by, the ~~Private~~full ~~Securities~~text ~~Litigation Reform Act~~ of ~~1995 (set forth in Section 27A of~~ the ~~Securities~~Merger ~~Act~~Agreement, ~~and~~a ~~Section~~copy ~~21E~~ of ~~the~~which ~~Exchange~~is ~~Act).~~incorporated ~~In some cases, forward-looking statements can be identified~~ by ~~words~~reference ~~such~~ as ~~“anticipates,”~~Exhibit “believes,” “could,” “estimates,” “expects,” “intends,” “may,” “plans,” “potential,” “predicts,” “projects,” “proposed,” “should,” “will,” “would” or the negative or similar expressions2.1 ~~All of the Company’s forward-looking statements are subject~~ to ~~risks~~this ~~and~~Current ~~uncertainties~~Report ~~that~~on ~~may~~Form ~~cause~~8-K. ~~actual results to differ materially from those that the Company is expecting, including:~~

~~•the~~Item ~~occurrence~~1.01 ofEntry ~~any~~into ~~event,~~a ~~change~~Material orDefinitive ~~other circumstances that could give rise to the termination of the Merger~~ Agreement;.

~~•the~~The ~~length~~information ~~and~~set ~~severity~~forth ofin the ~~novel~~section ~~coronavirus~~above ~~pandemic~~titled ~~(the~~ “~~COVID-19 pandemic~~Introduction”) ~~and~~of ~~its~~this ~~impact~~Current Report on ~~the~~Form ~~global~~8-K ~~economy,~~is ~~the~~incorporated ~~Company’s~~herein ~~business,~~by ~~operations and financial results;~~reference.

~~•federal,~~Item ~~state~~2.01 ~~and~~Completion ~~local~~of ~~government~~Acquisition ~~initiatives~~or toDisposition ~~mitigate the impact~~ of ~~the COVID-19 pandemic, including additional restrictions on business activities, “shelter-in-place” orders, guidelines and other restrictions;~~Assets.

•The information set forth in the ~~outcome~~section above titled “Introduction” of ~~any~~this ~~legal~~Current ~~proceedings~~Report ~~that~~on ~~may~~Form be8-K ~~instituted~~is ~~following~~incorporated ~~announcement~~herein ofby reference. On January 29, 2021, the Merger ~~Agreement;~~was completed pursuant to Section 251 of the Delaware General Corporation Law, and the Company became a wholly-owned subsidiary of Parent. As a result, a change of control of the Company occurred.

~~•conditions~~Item ~~affecting~~3.01 ~~the~~Notice ~~industry~~of ~~generally~~Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer.

~~•local~~On January 29, 2021, in connection with the consummation of the Merger, the Company notified the New York Stock Exchange (“NYSE”) of the consummation of the Merger and ~~global~~requested ~~political~~that the NYSE (x) cease trading of Common Stock on the NYSE and ~~economic~~suspend ~~conditions;~~the listing of the Common Stock, in each case effective prior to market open on January 29, 2021, and (y) file with the SEC a Form 25 Notification of Removal from Listing and/or Registration (“Form 25”) to delist the Common Stock from the NYSE and deregister the Common Stock under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Company expects that, in accordance with the Company’s request, the NYSE will file a Form 25 with the SEC with respect to Common Stock to report the delisting of Common Stock from the NYSE and suspend trading of Common Stock on the NYSE before market open on January 29, 2021.

~~•conditions~~The inCompany intends to file with the ~~securities~~SEC ~~market~~a Form 15 with respect to its Common Stock, requesting that ~~are~~the ~~less~~Common ~~favorable~~Stock ~~than~~be ~~expected;~~deregistered under Section 12(g) of the Exchange Act, and that the reporting obligations of the Company under Sections 13 and 15(d) of the Exchange Act be suspended.

•other risks described in the Company’s filings with the SEC, including the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019, Quarterly Reports on Form 10-Q and Definitive Information Statement.

The forward-looking statements contained in this Report are based on historical performance and management’s current plans, estimates and expectations in light of information currently available to the Company and are subject to uncertainty and changes in circumstances. There can be no assurance that future developments affecting the Company will be those that we have anticipated. Actual results may differ materially from these expectations due to changes in global, regional or local political, economic, business, competitive, market, regulatory, public health and other factors, many of which are beyond the Company’s control, as well as the other factors described in the Company’s filings with the SEC. Additional factors or events that could cause the Company’s actual results to differ may also emerge from time to time, and it is not possible for us to predict all of them. You should not place undue reliance on any of the Company’s forward-looking statements. Any forward-looking statement made by the Company in this Report speaks only as of the date hereof. The Company undertakes no obligation to publicly update any forward-looking statement, whether as a result of new information, future developments or otherwise, except as may be required by applicable securities laws. The Company qualifies all of its forward-looking statements by these disclaimers.

~~Additional~~Item ~~Information~~3.03 ~~and~~Material ~~Where~~Modification to ~~Find~~rights Itof Security Holders.

InThe ~~connection~~information ~~with~~contained ~~the~~in ~~proposed Merger,~~ the ~~Company~~“Introduction” ~~filed~~and ~~certain~~Items ~~materials with the SEC~~2.01, ~~including~~3.01 ~~the~~and ~~Definitive~~5.03 ~~Information Statement, which was first mailed to stockholders~~ of ~~the~~this ~~Company~~Current Report on orForm ~~about~~8-K ~~December~~is 4,incorporated ~~2020.~~herein ~~You may obtain copies of all documents filed~~ by ~~the Company with the SEC, free of charge, at the SEC’s website, www~~reference.~~sec.gov, or from the Company’s website at https://investors.fbmsales.com/.~~

Item 5.01 Changes in Control of Registrant.

The information contained in the “Introduction”, Item 2.01, 3.01 and 5.03 of this Current Report on Form 8-K is incorporated herein by reference.

As a result of the consummation of the Merger, a change of control of the Company occurred and the Company became a wholly owned subsidiary of Parent. Parent funded the acquisition through a combination of equity financing and proceeds from the First Lien Term Loan Agreement, dated as of January 29, 2021, by and among Parent, Merger Sub and following consummation of the Merger, the Company, as borrower, the subsidiaries of the Company from time to time party thereto, as subsidiary guarantors, the financial institutions from time to time party thereto, as lenders, and Credit Suisse AG, Cayman Islands Branch, as administrative agent and collateral agent (the “Term Loan Agreement”) and the ABL Credit Agreement, dated as of January 29, 2021, by and among Parent, Merger Sub and following consummation of the Merger, the Company, as a U.S. borrower and as borrower representative, the Canadian subsidiary borrowers from time to time party thereto, the U.S. subsidiary borrowers from time to time party thereto, the subsidiaries of the Company from time to time party thereto, as subsidiary guarantors, the financial institutions from time to time party thereto, as lenders, and Bank of America, N.A., as administrative agent and collateral agent (the “ABL Credit Agreement”).

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Directors

In accordance with the terms of the Merger Agreement, at the Effective Time, each of the directors of the Company (Ruben D. Mendoza, Chris Meyer, Rafael Colorado, Maureen Harrell, Chad Lewis, Chase Hagin, Matthew J. Espe, Fareed A. Khan and James F. Underhill) ceased to be directors of the Company. At the Effective Time, in connection with the Merger and in accordance with the terms of the Merger Agreement, the directors of Merger Sub immediately prior to the Effective Time, Kevin Penn and Aaron Maeng, became the directors of the Company, and the officers of the Company immediately prior to the Effective Time remained the officers of the Company.

Employee Stock Purchase Plans; Equity Incentive Plans

In accordance with the terms of the Merger Agreement, prior to the Effective Time, the Company Stock Plan was terminated.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year

Pursuant to the terms of the Merger Agreement, at the Effective Time, the amended and restated certificate of incorporation and amended and restated bylaws of the Company were each amended and restated, and such amended and restated certificate of incorporation and bylaws became the certificate of incorporation and bylaws, respectively, of the Company. Copies of the Second Amended and Restated Certificate of Incorporation of the Company and the Second Amended and Restated Bylaws of the Company are attached as Exhibits 3.1 and 3.2, respectively, to this Current Report on Form 8-K and incorporated herein by reference.

Item 8.01. Other Events.

On January 29, 2021, the Company issued a press release announcing the completion of the Merger, a copy of which is attached hereto as Exhibit 99.1 and incorporated herein by reference.

Item 9.01. Financial Statements and Exhibits.


(d)			Exhibits


Exhibit No.						Description
2.1*						Agreement and Plan of Merger, dated November 14, 2020, by and among ASP Flag Intermediate Holdings, Inc., ASP Flag Merger Sub, Inc. and Foundation Building Materials, Inc. (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K of Foundation Building Materials, Inc., which was filed with the SEC on November 16, 2020)
3.1						Second Amended and Restated Certificate of Incorporation of Foundation Building Materials, Inc.
3.2						Second Amended and Restated Bylaws of Foundation Building Materials, Inc.
99.1						Press Release of Foundation Building Materials, Inc. dated January 29, 2021
104.1						Cover Page Interactive Data File – The cover page from the Company’s Current Report on Form 8-K filed on January 29, 2021 is formatted in Inline XBRL (included as Exhibit 104).
*						certain schedules and exhibits to this agreement have been omitted in accordance with Item 601(a)(5) of Regulation S-K. A copy of any omitted schedule and/or exhibit will be furnished supplementally to the SEC upon its request.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this Report to be signed on its behalf by the undersigned hereunto duly authorized.

FOUNDATION BUILDING MATERIALS, INC.

Date: January 26, 2021

By:

/s/ Richard Tilley

Date: January 29, 2021

By:

/s / Richard J. Tilley

Name:

Richard J. Tilley

Title:

Vice President, General Counsel and Secretary

Filing Compare · Foundation Building Materials, Inc.