Form 10-Q BEACON ROOFING SUPPLY For: Jun 30
Exhibit 10.1
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Beacon Roofing Supply, Inc. |
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Office of the General Counsel |
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Beacon Roofing Supply, Inc. |
6701 Democracy Blvd. Suite 200 |
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Bethesda, MD 20817 |
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Tel. 301-272-2124 |
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Fax. 301-656-3212 |
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June 11, 2019
CD&R Boulder Holdings, L.P.
c/o Clayton, Dubilier & Rice, LLC
375 Park Avenue, 18th Floor
New York, New York 10152
Attn: Nathan K. Sleeper, JL Zrebiec
Fax: (212) 407-5252
Email: [email protected], [email protected]
Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022
Attention: Paul S. Bird; Uri Herzberg
Email: [email protected]; [email protected]
Re:Amendment and Restatement of Section 2(a) of the Registration Rights Agreement Dear Nate:
Reference is hereby made to that certain Registration Rights Agreement (as amended, supplemented or otherwise modified from time to time, the “Agreement”), dated as of January 2, 2018, by and among Beacon Roofing Supply, Inc., a Delaware corporation (the “Company”), CD&R Boulder Holdings, L.P., a Cayman Islands exempted limited partnership (“CD&R Investor”), and, any Person who becomes a party thereto pursuant to Section 8(d) of the Agreement (each such party and CD&R Investor, a “CD&R Stockholder” and collectively, the “CD&R Stockholders”). Capitalized terms used herein without definition shall have the meanings given to them in the Agreement.
The undersigned CD&R Investor does hereby represent and warrant to the Company that, as of the date hereof, it has not transferred, assigned or otherwise disposed of any shares of Preferred Stock or Common Stock and is the sole CD&R Stockholder and sole holder of Registrable Securities under the Agreement.
Amendment and Restatement of Section 2(a) of the Agreement
This letter agreement evidences the agreement of the sole CD&R Stockholder and the Company, in consideration of the promises and mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are mutually agreed, to amend and restate, in accordance with Section 8(c) of the Agreement, Section 2(a) of the Agreement in its entirety as follows:
“(a) Shelf Registration. At any time after the expiration of the Lock-Up Period, the CD&R Stockholders may deliver a written request to the Company that the Company file with the SEC a registration statement on Form S-3 or any comparable or successor form or forms or any similar short-form registration constituting a “shelf” registration statement providing for the registration of, and the sale by the CD&R Stockholders on a continuous or delayed basis of, all of the Registrable Securities, pursuant to Rule 415 or otherwise (a “Shelf Registration Statement”). The Company shall file with the SEC a Shelf Registration Statement within forty-five (45) days after receipt by the Company of such written request of the CD&R Stockholders and thereafter use its reasonable best efforts to cause to be declared effective such Shelf Registration Statement.”
I. Miscellaneous
Except as amended by this letter agreement, all other terms and provisions of the Agreement shall remain in full force and effect.
The terms of this letter agreement are irrevocable and shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of Laws of another jurisdiction. This letter agreement shall bind and inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns.
This letter agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof, and may be amended or modified only in a written instrument executed by the parties hereto. In the event that any provision of this letter agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this letter agreement will not in any way be affected or impaired thereby. For the convenience of the parties, this letter agreement may be executed by PDF, facsimile and in counterparts, each of which shall be deemed to be an original, and all of which, taken together, shall constitute one agreement binding on the parties hereto.
[Signatures follow on next page]
IN WITNESS WHEREOF, the duly authorized representatives of the parties hereto have signed this letter agreement as of the day and year first above written.
Very truly yours,
BEACON ROOFING SUPPLY, INC.
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By: |
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/s/ Ross Cooper |
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Name: Ross Cooper |
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Title: Executive Vice President, and General Counsel |
Acknowledged and Agreed:
CD&R BOULDER HOLDINGS, L.P.
By: CD&R Investment Associates IX,
Ltd., 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 |
EXHIBIT 31.1
CERTIFICATION PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Paul M. Isabella, certify that:
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I have reviewed this quarterly report on Form 10-Q of Beacon Roofing Supply, Inc.; |
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Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
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Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
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The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
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(a) |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
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Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
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(c) |
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; |
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(d) |
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
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The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
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(a) |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
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Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
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Date: August 7, 2019 |
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/s/ PAUL M. ISABELLA |
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Paul M. Isabella |
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President & Chief Executive Officer |
EXHIBIT 31.2
CERTIFICATION PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Joseph M. Nowicki, certify that:
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1. |
I have reviewed this quarterly report on Form 10-Q of Beacon Roofing Supply, Inc.; |
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2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
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3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
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4. |
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
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(a) |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
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(b) |
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
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(c) |
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; |
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(d) |
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
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5. |
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
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(a) |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
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(b) |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
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Date: August 7, 2019 |
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/s/ JOSEPH M. NOWICKI |
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Joseph M. Nowicki |
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Executive Vice President & Chief Financial Officer |
EXHIBIT 32.1
Certification of CEO and CFO Pursuant to 18 U.S.C. Section 1350
(Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002)
In connection with the Quarterly Report on Form 10-Q of Beacon Roofing Supply, Inc. (the “Company”) for the period ended June 30, 2019 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), Paul M. Isabella, as President & Chief Executive Officer of the Company, and Joseph M. Nowicki, as Executive Vice President & Chief Financial Officer of the Company, each hereby certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
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(1) |
The Report fully complies with the requirements of Section 13(a) of the Securities Exchange Act of 1934; and |
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(2) |
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
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Date: August 7, 2019 |
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/s/ PAUL M. ISABELLA |
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Paul M. Isabella |
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President & Chief Executive Officer |
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/s/ JOSEPH M. NOWICKI |
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Joseph M. Nowicki |
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Executive Vice President & Chief Financial Officer |
This certification accompanies the Report pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and shall not be deemed filed by the Company for purposes of Section 18 of the Securities Exchange Act of 1934, as amended. A signed original of this written statement required by Section 906 has been provided to Beacon Roofing Supply, Inc. and will be retained by Beacon Roofing Supply, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.