exv10w2






Exhibit 10.2




AMENDMENT AGREEMENT




     This AMENDMENT AGREEMENT (this “Agreement”) is entered into this 14th day
of August, 2009, by and between Norman C. Chambers (the “Executive”), NCI Building Systems,
Inc. (the “Company”) and NCI Group, L.P.



     WHEREAS, Clayton, Dubilier & Rice Fund VIII, L.P., a Caymans Islands exempted limited
partnership (“CD&R”) has entered into an investment agreement, dated as of August 14, 2009
(as it may be amended from time to time, the “Investment Agreement”) with the Company
pursuant to which CD&R will purchase and acquire from the Company, and the Company will issue and
sell to CD&R 250,000 shares (the “Series B Preferred Shares”) of a newly created series of
preferred stock designated the Series B Cumulative Convertible Participating Preferred Stock, par
value $1.00 per share.



     WHEREAS, the Investment Agreement contains a covenant pursuant to which the Company agrees to
take all actions set forth on Exhibit G to the Investment Agreement (“Exhibit G”) prior to
the Closing Date (as defined in the Investment Agreement).



     WHEREAS, a true and complete copy of Exhibit G is attached to this Agreement.



     WHEREAS, with respect to the Executive, pursuant to Exhibit G, the Company has agreed to amend
that certain Employment Agreement, entered into April 12, 2004, by and between the Company, NCI
Group, L.P. and Executive, as amended (the “Employment Agreement”) and that certain
Restricted Stock Agreement, dated April 26, 2004, between the Company and Executive, as amended
(the “Restricted Stock Agreement”), in each case as described in and in the manner set
forth on Exhibit G as it pertains to the Executive.



     NOW THEREFORE, in consideration of the foregoing, the parties hereto agree as follows:



     Effective immediately prior to the Closing (as defined in the Investment Agreement), the
Employment Agreement and the Restricted Stock Agreement automatically shall be amended as set forth
on Exhibit G as it pertains to the Executive, without any further action by the Executive, the
Company or any other party. At the request of the Company, the Executive agrees promptly to
execute any additional documents in order to reflect the amendments effectuated by this Agreement.



 









 





     IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered
as of the date first written above.



	 	 	 	 	 
	 	NCI BUILDING SYSTEMS, INC.

 	 
	 	By:  	/s/ Todd R. Moore
 	 
	 	 	Name:  	Todd R. Moore 	 
	 	 	Title:  	Executive Vice President & General Counsel 	 
	 
	 	NCI GROUP, L.P.

 	 
	 	By:  	/s/ Todd R. Moore
 	 
	 	 	Name:  	Todd R. Moore 	 
	 	 	Title:  	Executive Vice President & General Counsel 	 
	 
	 	/s/ Norman C. Chambers
 	 
	 	NORMAN C. CHAMBERS 	 
	 	 	 



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EXHIBIT G




Employee Benefits Covenants 




          1. The Company will take all actions necessary such that the consummation by the Company of
the Transactions will not constitute a “Change in Control” for purposes of the administration
provisions contemplated by Section 13.2 of the NCI Building Systems, Inc. Deferred Compensation
Plan (as amended and restated effective January 1, 2007).




          2. The Company will cause the NCI Building Systems, Inc. Grantor Trust Agreement entered into
between the Company and Wachovia Bank National Association (the “Trust”) to be amended to provide
that the execution, delivery and performance of this Agreement and the other Transaction Documents
by the Company and the consummation by the Company of the Transactions will not constitute a Change
of Control (as defined in the Trust).




          3. The Company will cause the NCI Building Systems, Inc. Change in Control Severance Policy,
effective as of September 1, 2007 (the “Policy”), to be amended, effective as of immediately prior
to the Closing, to provide that (i) the definition of “Good Reason” set forth in the Policy as of
the date of this Agreement shall be superseded by the definition set forth in Exhibit G-1, (ii) the
right of the Company to amend, substitute, revoke or terminate the Policy shall be modified as
provided in Exhibit G-1, and (iii) in the event that severance pay becomes payable thereunder
following the Closing, payment of such severance pay will be conditioned on the covered employee’s
execution, delivery and non-revocation of a general release of claims within thirty (30) days
following the date of termination. Further, the Company shall take all action necessary such that,
(x) from the date of this Agreement through the Closing Date, no additional employee shall
participate in the Policy without the written consent of the Investor and (y) after the Closing
Date, no additional employee shall participate in the Policy without the approval of the Board.




          4. The Company will cause each of the Employment Agreements listed on Exhibit G-2 and Exhibit
G-3 to be amended, effective as of immediately prior to the Closing, (i) to provide that the
definition of “Good Reason” set forth in such Employment Agreement as of the date of this Agreement
shall be superseded by the definition set forth in Exhibit G-2 or Exhibit G-3 (as applicable), (ii)
to provide that, in the event that severance pay becomes payable thereunder following the Closing,
payment of such severance pay will be conditioned on the covered employee’s execution, delivery and
non-revocation of a general release of claims within thirty (30) days following the date of
termination, (iii) in the case of the Employment Agreement set forth in Exhibit G-2, (A) to modify
the severance payment thereunder as provided in Exhibit G-2, and (B) to modify Section 2 thereof to
reflect the executive’s position, title, reporting relationship, duties and authority that will be
in effect immediately after the Closing Date, which will be the positions and titles of Chairman of
the Board of Directors and Chief Executive Officer (the most senior executive officer of the
Company), reporting solely to the Board of Directors with the customary duties and authorities of
such positions, including, but not limited to, the day-to-day control and management of the Company
and its operations (subject to establishment of a Lead Director, Chairman of the Executive
Committee or other similar Board position with oversight duties customarily associated with such a
position), and (iv) in the case of




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each Employment Agreement set forth in Exhibit G-3, to modify the term of the Employment
Agreement contained in Section 3 thereof as provided in Exhibit G-3.




          5. The Company will cause each of the Restricted Stock Agreements set forth below to be
amended, effective as of immediately prior to the Closing, to provide that (i) the
execution, delivery and performance of this Agreement and the other Transaction Documents by the
Company and the consummation by the Company of the Transactions will not constitute a “Change in
Control” (as defined in such Restricted Stock Agreement), and (ii) the “Awarded Shares” (as
defined in such Restricted Stock Agreement) subject to such Restricted Stock Agreement shall,
notwithstanding any provision to the contrary in such Restricted Stock Agreement, become fully
vested upon a termination of employment by the holder of such Awarded Shares by the Company without
“Cause” (as defined in such Restricted Stock Agreement) or by the holder with “Good Reason”, except
that the definition of “Good Reason” set forth in Exhibit G-2 or Exhibit G-3 (as applicable) shall
be applicable and shall supersede the definition thereunder (if any).






          (i) NCI Building Systems, Inc. 2003 Long-Term Stock Incentive Plan Restricted Stock
Agreement, dated April 26, 2004, between NCI Building Systems, Inc. and Norman C. Chambers
(the definition of “Good Reason” set forth in Exhibit G-2 is to be incorporated therein
directly or by reference to the applicable Employment Agreement);




          (ii) NCI Building Systems, Inc. 2003 Long-Term Stock Incentive Plan Restricted Stock
Agreement, dated August 26, 2004, between NCI Building Systems, Inc. and Charles W.
Dickinson (the definition of “Good Reason” set forth in Exhibit G-3 is to be incorporated
therein directly or by reference to the applicable Employment Agreement); and




          (iii) NCI Building Systems, Inc. 2003 Long-Term Stock Incentive Plan Restricted Stock
Agreement, dated August 26, 2004, between NCI Building Systems, Inc. and Mark W. Dobbins
(the definition of “Good Reason” set forth in Exhibit G-3 is to be incorporated therein
directly or by reference to the applicable Employment Agreement).



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Exhibit G-1




	 	 	 
	Applicable Arrangement

	 	NCI Building Systems, Inc. Change in
Control Severance Policy effective
as of September 1, 2007.
Capitalized terms used but not
defined herein shall have the
meaning set forth in the Policy.
	 
	 	 
	Definition of “Good Reason”

	 	Effective as of the “Closing Date”,
as defined in that certain
Investment Agreement by and between
the Company and the Clayton,
Dubilier & Rice Fund VIII, L.P.,
dated August 14, 2009 (as it may be
amended from time to time, the
“Investment Agreement”), “Good
Reason” means the following event
that occurs after a Change in
Control or within thirty (30) days
prior to a Change in Control without
the Participant’s prior written
consent:
	 
	 	 
	 

	 	Any reduction in the amount of the
Participant’s then current base
salary in excess of ten percent
(10%) in any twelve month period.

	 
	 	 
	 

	 	In order for a termination by the
Participant to constitute a
termination for Good Reason, the
Participant must notify the Company
of the circumstances claimed to
constitute Good Reason in writing
not later than the thirtieth (30th)
day after such circumstances have
arisen or occurred and must provide
the Company with at least thirty
(30) days within which to cure such
circumstances before terminating
employment, and, failing a cure, the
Participant must terminate his
employment within thirty (30) days
following the expiration of such
cure period.
	 
	 	 
	Policy Term (Section 7)

	 	Effective as of the Closing Date,
Section 7 of the Policy shall be
amended to permit the Committee to
amend, substitute, revoke or
terminate the Policy as to any
future Change in Control only if
such Committee action occurs at
least one year prior to such future
Change in Control (excluding
amendments and modifications that do
not adversely affect a Participant’s
rights under the Policy). For
avoidance of doubt, the amendment to
Section 7 described herein shall not
apply to the Change in Control that
occurs pursuant to the transactions
contemplated by the Investment
Agreement.






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Exhibit G-2




	 	 	 
	Applicable Agreement

	 	Employment Agreement, entered into
April 12, 2004 by and between NCI
Building Systems, Inc., NCI Group,
L.P. and Norman C. Chambers, as
amended. Capitalized terms used but
not defined herein shall have the
meaning set forth in the Employment
Agreement.
	 
	 	 
	Definition of “Good Reason”

	 	Effective as of the “Closing Date”,
as defined in that certain
Investment Agreement by and between
the Company and Clayton, Dubilier &
Rice Fund VIII, L.P., dated August
14, 2009 (as it may be amended from
time to time, the “Investment
Agreement”), “Good Reason” means any
of the following events that occurs
without the Employee’s prior written
consent:
	 
	 	 
	 

	 	     (i) (A) Any reduction in the amount
of the Employee’s base salary in
excess of the percentage set forth
in Section 3(a) or below the annual
base salary rate set forth in
Section 3(a), (B) failure either (i)
to maintain an annual cash bonus
plan in the same or substantially
similar form as the form of the
Company’s annual cash bonus plan in
effect immediately prior to the
Closing (except that the Company
shall be permitted, in its
reasonable discretion from time to
time, to modify the qualitative
performance measures and numerical
performance goals so long as the
projected bonus opportunity for the
Employee immediately after the
modification is substantially
comparable to the projected bonus
opportunity for the Employee
immediately before the modification)
or (ii) to provide the Employee with
an annual cash bonus or annual cash
incentive opportunity that (together
with the other elements of annual
cash compensation) permits the
Employee to earn total cash
compensation substantially
comparable to the total cash
compensation opportunity of the
Chief Executive Officers of the peer
group of companies referred to by
the Company in its annual proxy
reporting , or (C) any material
reduction in the aggregate employee
benefits as in effect for the
benefit of the Employee from time to
time (unless such reduction in
employee benefits is pursuant to a
general change in employee benefits
applicable to all senior executives
of the Company and the Employer);
	 
	 	 
	 

	 	     (ii) (A) the removal of or failure
to elect or appoint the Employee as
Chief Executive Officer and Chairman
of the Board, or (B) any material,
adverse reduction in the nature or
status of the Employee’s authority
as Chairman of the Board of
Directors and Chief Executive
Officer of the Company or in his
duties or responsibilities in such
positions, including, but not
limited to, action or inaction by
the Company or Board of Directors
that is inconsistent with the
Employee’s position as the most
senior executive of the Company, the
customary duties and authority of
such position, or the Employee’s
day-to-day






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	 	control and management of
the Company and its operations;
provided, that the establishment of
a Lead Director, Chairman of the
Executive Committee or other similar
Board position with oversight duties
customarily associated with such a
position will not be deemed to be a
reduction in the nature or status of
the Employee’s authority or his
duties or responsibilities
hereunder;
	 
	 	 
	 

	 	     (iii) a breach or failure by the
Company or Employer to perform any
of its material covenants contained
in this Agreement; or
	 
	 	 
	 

	 	     (iv) any relocation of the
Employee’s principal place of
employment outside the Houston,
Texas metropolitan area.
	 
	 	 
	 

	 	In order for a termination by the
Employee to constitute a termination
for Good Reason, the Employee must
notify the Company of the
circumstances claimed to constitute
Good Reason in writing not later
than the thirtieth (30th) day after
such circumstances have arisen or
occurred and must provide the
Company with at least thirty (30)
days within which to cure such
circumstances before terminating
employment, and, failing a cure, the
Employee must terminate his
employment within thirty (30) days
following the expiration of such
cure period.
	 
	 	 
	Severance

	 	Effective as of the Closing Date,
Section 5(b) of the Agreement will
be amended to reflect that the
Employee’s severance entitlement
will be the greater of (i) the
aggregate amount of the Employee’s
annual base salary, at the rate then
in effect, from the date of
termination through the end of the
Employment Term and (ii) two (2)
times his annual base salary, at the
rate then in effect.






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Exhibit G-3




	 	 	 	 	 	 	 
	 	 	Agreement, entered into between NCI Building Systems, Inc., NCI
Group, Inc. and the following individuals as of the date following
each such individual’s name. Capitalized terms used but not
defined herein shall have the meaning set forth in the Employment
Agreement.
	 
	 	 	 	 	 	 
	 

	 	Todd R. Moore (January 28, 2008)
	 	John L. Kuzdal (June 4, 2008)	 	 
	 
	 	 	 	 	 	 
	 

	 	Mark E. Johnson (January 28, 2008)
	 	Mark T. Golladay (June 4, 2008)	 	 
	 
	 	 	 	 	 	 
	 

	 	Keith E. Fischer (January 1, 2008)
	 	Charles W. Dickinson (March 13, 2009)	 	 
	 
	 	 	 	 	 	 
	 

	 	Brad Robeson (January 1, 2008)
	 	Mark W. Dobbins (March 13, 2009)	 	 
	 
	 	 	 	 	 	 
	 

	 	Eric J. Brown (January 1, 2008)	 	 	 	 
	 
	 	 	 	 	 	 
	Definition of “Good
Reason”	 	Effective as of the “Closing Date”, as defined in that certain
Investment Agreement by and between the Company and Clayton,
Dubilier & Rice Fund VIII, L.P., dated August 14, 2009 (as it may
be amended from time to time, the “Investment Agreement”), “Good
Reason” means any of the following events that occurs without the
Employee’s prior written consent:
	 
	 	 	 	 	 	 
	 	 	     (i) any reduction in the amount of the Employee’s then-current base
salary in excess of ten percent (10%) in any twelve month period;
	 
	 	 	 	 	 	 
	 	 	     (ii) (A) a material reduction in the Employee’s title; or (B) a
material, adverse reduction in the duties or responsibilities of
the Employee relative to the Employee’s duties or responsibilities
as described in Section 2;
	 
	 	 	 	 	 	 
	 	 	     (iii) the breach or failure by the Company or Employer to perform
any of its material covenants contained in this Agreement; or
	 
	 	 	 	 	 	 
	 	 	     (iv) any relocation of the Employee’s principal place of employment
outside the Houston, Texas metropolitan area.
	 
	 	 	 	 	 	 
	 	 	In order for a termination by the Employee to constitute a
termination for Good Reason, the Employee must notify the Company
of the circumstances claimed to constitute Good Reason in writing
not later than the thirtieth (30th) day after such circumstances
have arisen or occurred and must provide the Company with at least
thirty (30) days within which to cure such circumstances before
terminating employment, and, failing a cure, the Employee must
terminate his employment within thirty (30) days following the
expiration of such cure period.






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	Term of Agreement
(Section 3)	 	Effective as of the Closing Date, Section 3 of each of the
Employment Agreements shall be amended to increase the notice
period contained therein from 120 days to one year.







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