exv10w16







Exhibit 10.16




	 	 	 	 	 



NCI BUILDING SYSTEMS, INC. 2003 LONG-TERM STOCK INCENTIVE PLAN




RESTRICTED STOCK AGREEMENT




	 	 	 	 	 
	Grantee:

	 	Charles W. Dickinson

	Number of Awarded Shares:

	 	 	25,000	 
	Date of Award:

	 	August 26, 2004

	Expiration of Restriction Period

	 	See Section 3






NCI Building Systems, Inc., a Delaware corporation (the “Company”), hereby grants to the individual
whose name appears above (“Grantee”), pursuant to the provisions of the NCI Building Systems, Inc.
2003 Long-Term Stock Incentive Plan, as in effect on the date hereof (the “Plan”), a restricted
stock award (this “Award”) of shares (the “Awarded Shares”) of its common stock, $0.01 par value
per share (the “Common Stock”), effective as of the date of award as set forth above (the “Grant
Date”), upon and subject to the terms and conditions set forth in this Restricted Stock Agreement
(this “Agreement”) and in the Plan. Unless otherwise defined in this Agreement, capitalized terms
used in this Agreement shall have the meanings assigned to them in the Plan. A copy of the Plan in
effect as of the date hereof is attached hereto, the terms and conditions of which are incorporated
herein by reference.




     1. Effect of the Plan. The Awarded Shares granted to Grantee are subject to all of
the provisions of the Plan and of this Agreement, together with all rules and determinations from
time to time issued by the Committee and by the Board pursuant to the Plan. The Company hereby
reserves the right to amend, modify, restate, supplement or terminate the Plan without the consent
of Grantee. This Award shall be subject, without further action by the Company or Grantee, to any
amendment, modification, restatement or supplement to the Plan that is beneficial to, or increases
the rights of, Grantee. This Award shall not be subject to any amendment, modification,
restatement or supplement to the Plan that reduces or adversely affects the rights and benefits
available to Grantee hereunder.



     2. Grant. This Award shall evidence Grantee’s ownership of the Awarded Shares, and
Grantee acknowledges that he or she will not receive a stock certificate representing the Awarded
Shares unless and until the Awarded Shares vest as provided in this Agreement and all tax
withholding obligations applicable to the Vested Awarded Shares (as defined below) have been
satisfied. The Awarded Shares will be held in custody for Grantee, by the Chief Financial
Officer of the Company pursuant to joint escrow instructions between Grantee and the Company
(substantially in the form of Exhibit A hereto), until the Awarded Shares have vested in accordance
with Section 3 of this Award. Upon vesting of the Awarded Shares, the Company



 









 




shall, unless
otherwise paid by Grantee as described in Section 9(a) of this Award, withhold that number of
Vested Awarded Shares necessary to satisfy any applicable tax withholding obligation of Grantee in
accordance with the provisions of Section 9(a) of this Award, and thereafter instruct the Chief
Financial Officer to deliver to Grantee all remaining Vested Awarded Shares; provided,
however, that Grantee shall have the right to make a one-time irrevocable election, at
least six (6) months prior to a Vesting Date (as defined below), to receive the Vested Awarded
Shares in up to twenty (20) annual installments, with the first installment being distributed to
Grantee on the Vesting Date. Grantee shall exercise this right by delivering to the Company a
written notice that states his election to defer the receipt of the Vested Awarded Shares pursuant
to this Section 2, which notice shall include Grantee’s schedule of receipt of the Vested Awarded
Shares in up to twenty (20) annual installments. Grantee agrees that the Awarded Shares shall be
subject to all of the terms and conditions set forth in this Agreement and the Plan, including, but
not limited to, the forfeiture conditions set forth in Section 4 of this Agreement, the
restrictions on transfer set forth in Section 5 of this Agreement and the satisfaction of the
Required Withholding as set forth in Section 9(a) of this Agreement.




     3. Vesting Schedule; Service Requirements. Except as provided otherwise in Section 4
of this Agreement, the Awarded Shares shall vest if Grantee’s continuing employment or consulting
relationship with the Company or any Subsidiary (“Continuous Service”) is not terminated during the
period commencing with the Grant Date and ending with the applicable date that such portion of the
Awarded Shares vests (each, a “Vesting Date”). Awarded Shares that have vested pursuant to this
Agreement are referred to herein as “Vested Awarded Shares” and Awarded Shares that have not yet
vested pursuant to this Agreement are referred to herein as “Unvested Awarded Shares.” Subject to
the provisions of Section 4 of this Agreement, if Grantee’s Continuous Service is not terminated
prior to an applicable Vesting Date, the Awarded Shares shall vest on the date that Grantee retires
from his Continuous Service at or
after Normal Retirement Age. For purposes of this Agreement, Normal Retirement Age shall be
deemed to be 65 years of age.



     4. Conditions of Forfeiture.



          (a) Upon the date of termination of Grantee’s Continuous Service (the “Termination Date”):





     (i) by the Company for Cause (as hereinafter defined) or by Grantee’s voluntary
resignation without Good Reason (as herein after defined) before all of the Awarded Shares
become Vested Awarded Shares, all Unvested Awarded Shares as of the Termination Date shall,
without further action of any kind by the Company or Grantee, be forfeited; or




     (ii) by the Company without Cause or by Grantee’s voluntary resignation with Good
Reason before all of the Awarded Shares become Vested Awarded Shares, on the Termination
Date eight and thirty-three hundredths percent (8.33%) of the Unvested Awarded Shares shall
vest for each twelve-month period of Grantee’s



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Continuous Service completed since the Grant
Date, and the remainder of the Unvested Awarded Shares as of the Termination Date shall,
without further action of any kind by the Company or Grantee, be forfeited.



     (b) All Unvested Awarded Shares that are forfeited pursuant to the terms of this Agreement
shall be deemed to be immediately transferred to the Company without any payment by the Company or
action by Grantee, and the Company shall have the full right to cancel any evidence of Grantee’s
ownership of such forfeited Unvested Awarded Shares and to take any other action necessary to
demonstrate that Grantee no longer owns such forfeited Unvested Awarded Shares automatically upon
such forfeiture. Following such forfeiture, Grantee shall have no further rights with respect to
such forfeited Unvested Awarded Shares. Grantee, by his acceptance of the Award granted pursuant
to this Agreement, irrevocably grants to the Company a power of attorney to transfer Unvested
Awarded Shares that are forfeited to the Company and agrees to execute any documents requested by
the Company, including but not limited to one or more stock assignments separate from the
certificate substantially in the form of Exhibit B hereto, to facilitate such transfer upon
forfeiture. The provisions of this Agreement regarding transfers of Unvested Awarded Shares that
are forfeited shall be specifically performable by the Company in a court of equity or law.



     (c) Notwithstanding anything to the contrary in this Agreement, the Unvested Awarded Shares
shall become vested (i) on the death of Grantee during Grantee’s Continuous Service; (ii) if
Grantee suffers a Disability during Grantee’s Continuous Service; or (iii) in accordance with the
provisions of Section 12(b) of the Plan relating to a Change in Control.



     (d) For purposes of this Agreement, “Cause” means:




     (i) Grantee’s failure or inability for any reason to devote substantially all of his
business time and effort to the performance of his duties and responsibilities to NCI Group,
L.P. (“NCI Group”), the Company and their affiliates (vacation time and absence due to
sickness or disability being excepted herefrom) and such failure or inability continues for
a period of thirty (30) days after written notice to Grantee by NCI Group or the Company of
the existence of such failure or inability; provided, however, that only one such notice by
NCI Group or the Company need be sent and, if such failure re-occurs thereafter, no further
notice and opportunity to cure such failure shall be required;




     (ii) indictment for, or conviction of, or plea of nolo contendere to, a felony, other
than a felony involving the operation of a motor vehicle which does not result in serious
bodily harm to any person;




     (iii) disregard or failure to use commercially reasonable efforts to carry out the
reasonable and lawful instructions of the Board of Directors of the Company, or a material
violation of policies established by NCI Group or the Company, with respect to the operation
of its business and affairs that continues for a period of thirty (30) days after



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written
notice to Grantee by NCI Group or the Company of the existence of such violation, disregard
or failure; provided, however, that only one such notice by NCI Group or the Company need be
sent and, if such violation, disregard or failure re-occurs thereafter, no further notice
and opportunity to cure such violation, disregard or failure shall be required;




     (iv) an act committed by Grantee which (A) brings NCI Group or the Company into public
disgrace, or (B) harms the business operations of NCI Group or the Company; provided,
however, that the Board of Directors of the Company or the Chairman of the Board must first
provide to Grantee written notice clearly and fully describing the particular acts or
omissions which the Board or the
Chairman of the Board reasonably believes in good faith constitutes Cause under this
subsection and an opportunity, within thirty (30) days following his receipt of such notice,
to meet in person with the Board of Directors or the Chairman of the Board to explain or
defend the alleged acts or omissions relied upon by the Board of Directors and, to the
extent practicable, to cure such acts or omissions;




     (v) habitual insobriety or illegal use of controlled substances by Grantee; or




     (vi) breach or failure by Grantee to comply in any material respect with the Company’s
Corporate Governance Guidelines or Code of Business Conduct and Ethics (as the same may be
amended, restated, extended, supplemented or otherwise modified in writing from time to time
in the sole discretion of the Board of Directors of the Company) that is not cured within
thirty (30) days after written notice to Grantee by NCI Group or the Company of the breach
or failure to perform; provided, however, that only one such notice by NCI Group or the
Company need be sent and, if such breach or failure re-occurs thereafter, no further notice
and opportunity to cure such breach or failure shall be required.


For purposes of this Agreement, any termination of Grantee’s employment for Cause shall be
effective only upon delivery to Grantee of a certified copy of a resolution of the Board of
Directors of the Company, adopted by the affirmative vote of a majority of the entire membership of
the Board of Directors (excluding Grantee) following a meeting at which Grantee was given an
opportunity to be heard on at least five business days’ advance notice, finding that Grantee was
guilty of the conduct constituting Cause, and specifying the particulars thereof.




     (e) For purposes of this Agreement, “Good Reason” means any of the following events that
occurs without Grantee’s prior written consent:




     (i) (A) Any reduction in the amount of Grantee’s then current base salary in excess of
ten percent (10%) in any twelve month period or below his now current base salary rate, (B)
any material reduction in the aggregate amount of cash bonuses and other cash incentive
compensation that Grantee has an opportunity to earn



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under the various bonus and inventive
programs of the Company and NCI Group, or (C) any material reduction in the aggregate
employee benefits as in effect for the benefit of Grantee from time to time (unless such
reduction is pursuant to a
general change in compensation or benefits applicable to all similarly situated
employees of the Company and its affiliates); or




     (ii) (A) the removal of or failure to elect or appoint Grantee to an executive officer
(as defined in Rule 3b-7 of the Securities Exchange Act of 1934, as amended from time to
time) position with the Company, or (B) any material reduction in the nature or status of
Grantee’s authority or in his duties or responsibilities;


provided, however, that no act or omission shall constitute “Good Reason” for purposes of this
Agreement unless Grantee provides to the Board of Directors of the Company or the Chairman of the
Board a written notice clearly and fully describing the particular acts or omissions which Grantee
reasonably believes in good faith constitutes “Good Reason”, and an opportunity, within thirty (30)
days following its receipt of such notice, to cure such acts or omissions.




     5. Non-Transferability. Grantee may not sell, transfer, pledge, exchange,
hypothecate, or otherwise encumber or dispose of any of the Unvested Awarded Shares, or any right
or interest therein, by operation of law or otherwise. Any transfer in violation of this Section 5
shall be void and of no force or effect, and shall result in the immediate forfeiture of all
Unvested Awarded Shares.



     6. Dividend and Voting Rights. Subject to the restrictions contained in this
Agreement, Grantee shall have the rights of a stockholder with respect to the Awarded Shares,
including the right to vote all such Awarded Shares, including Unvested Awarded Shares, and to
receive all dividends, cash or stock (other than stock dividends accounted for as a stock split),
paid or delivered thereon, from and after the date hereof. In the event of forfeiture of Unvested
Awarded Shares, Grantee shall have no further rights with respect to such Unvested Awarded Shares.
However, the forfeiture of the Unvested Awarded Shares pursuant to Section 4 hereof shall not
create any obligation to repay cash dividends or stock dividends (other than stock dividends
accounted for as a stock split) received as to such Unvested Awarded Shares, nor shall such
forfeiture invalidate any votes given by Grantee with respect to such Unvested Awarded Shares prior
to forfeiture.



     7. Capital Adjustments and Corporate Events. If, from time to time during the term of
this Agreement, there is any capital adjustment affecting the outstanding Common Stock as a class
without the Company’s receipt of consideration (including stock dividends accounted for as a stock
split), the Unvested
Shares shall be adjusted in accordance with the provisions of Section 12 of the Plan. Any and
all new, substituted or additional securities to which Grantee may be entitled by reason of
Grantee’s ownership of the Unvested Awarded Shares hereunder because of a capital adjustment shall
be immediately subject to the forfeiture provisions of this Agreement and included thereafter as
“Unvested Awarded Shares” for purposes of this Agreement.



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     8. Refusal to Transfer. The Company shall not be required (i) to transfer on its
books any Unvested Awarded Shares that have been sold or otherwise transferred in violation of any
of the provisions of this Agreement or the Plan, or (ii) to treat as owner of such Unvested Awarded
Shares, or accord the right to vote or pay or deliver dividends or other distributions to, any
purchaser or other transferee to whom or which Grantee shall have attempted to transfer such
Unvested Awarded Shares.



     9. Tax Matters.



          (a) The Company’s obligation to deliver Awarded Shares to Grantee upon the vesting of such
shares shall be subject to the satisfaction of all applicable federal, state and local income and
employment tax withholding requirements (the “Required Withholding”). The Company shall withhold
from the Vested Awarded Shares that otherwise would have been delivered to Grantee the number of
Vested Awarded Shares necessary to satisfy Grantee’s Required Withholding, and deliver the
remaining Vested Awarded Shares to Grantee, unless Grantee has made arrangements with the Company
for Grantee to deliver to the Company cash, a check or other available funds for the full amount of
the Required Withholding by 5:00 P.M. Central Standard Time on the later of (i) the date Awarded
Shares become Vested Awarded Shares or (ii) the date on which the Vested Awarded Shares are
distributed to Grantee, or by such date Grantee has not made such other provision for the
satisfaction of the Required Withholding in form satisfactory to the Committee or Board, in its
sole discretion. The amount of the Required Withholding and the number of Vested Awarded Shares to
be withheld by the Company, if applicable, to satisfy Grantee’s Required Withholding, as well as
the amount reflected on tax reports filed by the Company, shall be based on the value of the Vested
Awarded Shares determined by using the last sales price of the Common Stock (as reported by the New
York Stock Exchange) on the date prior to the applicable Vesting Date or the date on which the
Vested Awarded Shares are distributed to Grantee, as appropriate. The obligations of the Company
under this Award
will be conditioned on such satisfaction of the Required Withholding.




          (b) Grantee acknowledges that the tax consequences associated with the Award are complex and
that the Company has urged Grantee to review with Grantee’s own tax advisors the federal, state,
and local tax consequences of this Award. Grantee is relying solely on such advisors and not on
any statements or representations of the Company or any of its agents. Grantee understands that
Grantee (and not the Company) shall be responsible for Grantee’s own tax liability that may arise
as a result of the Award. Grantee understands further that Section 83 of the Internal Revenue Code
of 1986, as amended (the “Code”), taxes as ordinary income the fair market value of the Vested
Awarded Shares as of the Vesting Date for those shares. Grantee also understands that Grantee may
elect to be taxed at Grant Date rather than at the time the Awarded Shares vest by filing an
election under Section 83(b)of the Code with the Internal Revenue Service and by providing a copy
of the election to the Company. GRANTEE ACKNOWLEDGES THAT HE OR SHE HAS BEEN INFORMED OF THE
AVAILABILITY OF MAKING AN ELECTION IN ACCORDANCE WITH SECTION 83(b)




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 OF THE CODE; THAT SUCH ELECTION
MUST BE FILED WITH THE INTERNAL REVENUE SERVICE (AND A COPY OF THE ELECTION GIVEN TO THE COMPANY)
WITHIN 30 DAYS OF THE GRANT OF AWARDED SHARES TO GRANTEE; AND THAT GRANTEE IS SOLELY RESPONSIBLE
FOR MAKING SUCH ELECTION.




     10. Covenants of Grantee.



          (a) For a period for five (5) years immediately following Grantee’s receipt of any Vested
Awarded Shares pursuant to this Agreement, Grantee shall not, directly or indirectly and whether on
his own behalf or on behalf of any other person, partnership, association, corporation or other
entity, engage in or be an owner, director, officer, employee, agent, consultant or other
representative of or for, or lend money or equipment to or otherwise support, any business that
manufactures, engineers, markets, sells or provides, within a 250-mile radius of any then existing
manufacturing facility of the Company and its subsidiaries and affiliates, metal building systems
or components (including, without limitation, primary and secondary framing systems, roofing
systems, end or side wall panels, doors, windows or other metal components of a building
structure), coated or painted steel or metal coils, coil coating or painting services, or any other
products or services that are the same as or similar to those manufactured, engineered, marketed,
sold or provided by the Company or its subsidiaries
and affiliates during the Continuous Service of Grantee. Ownership by Grantee of equity
securities of the Company, or of equity securities in other publicly owned companies constituting
less than 1% of the voting securities in such companies, shall be deemed not to be a breach of this
covenant.




          (b) For a period for five (5) years immediately following Grantee’s receipt of any Vested
Awarded Shares pursuant to this Agreement, Grantee shall not, directly or indirectly and whether on
his own behalf or on behalf of any other person, partnership, association, corporation or other
entity, either (i) hire, seek to hire or solicit the employment or service of any employee, agent
or consultant of the Company or its Subsidiaries and affiliates; (ii) in any manner attempt to
influence or induce any employee, agent or consultant of the Company or its Subsidiaries and
affiliates to leave the employment or service of the Company or its Subsidiaries and affiliates;
(iii) use or disclose to any person, partnership, association, corporation or other entity any
information concerning the names and addresses of any employees, agents or consultants of the
Company or its Subsidiaries and affiliates unless required by due process of law; or (iv) call
upon, solicit, divert or attempt to call upon, solicit or divert the business of any customer,
vendor or acquisition prospect of the Company or any of its Subsidiaries or affiliates with whom
Grantee dealt, directly or indirectly, during his engagement with the Company or its Subsidiaries
or affiliates.




          (c) Prior to the vesting of Grantee’s Unvested Awarded Shares, for purposes of the covenants
made in this Section 10, the Company promises to provide Grantee (as is necessary for Grantee’s
position) with various trade secrets and proprietary and confidential information consisting of,
but not limited to, processes, computer programs, compilations of information, records, sales
procedures, customer requirements, pricing techniques, customer lists, methods of doing business
and other confidential information (collectively referred to as the




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“Trade Secrets”), which are
owned by the Company and regularly used in the operation of its business, but in connection with
which the Company takes precautions to prevent dissemination to persons other than certain
directors, officers and employees. Grantee acknowledges and agrees that the Trade Secrets (a) are
secret and not known in the industry or to the public; (b) are entrusted to him after being
informed of their confidential and secret status by the Company and because of the fiduciary
position occupied by him with the Company; (c) have
been developed by the Company for, and on behalf of, the Company through substantial
expenditures of time, effort and money and are used in its business; (d) give the Company an
advantage over competitors who do not know or use the Trade Secrets; (e) are of such value and
nature as to make it reasonable and necessary to protect and preserve the confidentiality and
secrecy of the Trade Secrets; and (f) the Trade Secrets are valuable, special and unique assets of
the Company, the disclosure of which could cause substantial injury and loss of profits and
goodwill to the Company. Grantee shall not use in any way or disclose any of the Trade Secrets,
directly or indirectly, during his Continuous Service with the Company, or at any time thereafter,
except as required in the course of his Continuous Service with the Company. All files, records,
documents, information, data and similar items relating to the business of the Company, whether
prepared by Grantee or otherwise coming into his possession, shall remain the exclusive property of
the Company and shall not be removed from the premises of the Company under any circumstances
without the prior written consent of the Board of Directors of the Company (except in the ordinary
course of business during Grantee’s Continuous Service with the Company), and in any event shall be
promptly delivered to the Company upon termination of Grantee’s Continuous Service for any reason.
Grantee agrees that, upon his receipt of any subpoena, process or other request to produce or
divulge, directly or indirectly, any Trade Secrets to any entity, agency, tribunal or person, he
shall timely notify and promptly hand deliver a copy of the subpoena, process or other request to
the Chairman of the Board and Chief Executive Officer of the Company. For this purpose, Grantee
irrevocably nominates and appoints the Company (including any attorney retained by the Company), as
his true and lawful attorney-in-fact, to act in his name, place and stead to perform any act that
he might perform to defend and protect against any disclosure of any Trade Secrets.




          (d) For a period for five (5) years immediately following Grantee’s receipt of any Vested
Awarded Shares pursuant to this Agreement, Grantee shall not for any reason whatsoever (whether or
not related to this Agreement or the Awarded Shares) institute any legal proceedings against the
Company, any of its subsidiaries, or any of its officers, directors, agents or representatives.





     (e) (i) The parties hereto intend all provisions of subsections (a), (b), (c) and (d)
of this Section 10 to be enforced to the fullest extent permitted by law.
Accordingly, should a court of competent jurisdiction determine that the scope of any
provision of subsections (a), (b), (c) or (d) of this Section 10 is too broad to be enforced
as written, the parties intend that the court may reform the provision to such narrower
scope as it determines to be reasonable and enforceable, and, in the event the court reforms
Section 10(a) hereof, the Company may elect to either accept enforcement of the



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provision as
so modified or require the return of cash or Shares as set forth in Section 10(e)(ii). In
addition, however, Grantee agrees that the non-competition agreements, non-employment
agreements, non-disclosure and no litigation agreements set forth above each constitute
separate agreements independently supported by good and adequate consideration and shall
survive this Agreement. The existence of any claim or cause of action of Grantee against
the Company, except for a breach of this Agreement by the Company or its subsidiaries, shall
not constitute a defense to the enforcement by the Company of the covenants and agreements
of Grantee contained in the non-competition, non-employment, non-disclosure and no
litigation agreements.




     (ii) If in connection with the challenge by Grantee of any provision of Section 10(a),
any court of competent jurisdiction determines that the non-competition agreement in Section
10(a) hereof is void or unenforceable or modifies Section 10(a) and the Company declines to
accept the modification, Grantee agrees to return to the Company an amount equal to 80% of
the total value awarded Grantee under this Award, whether in the form of (A) Awarded Vested
Shares still owned by Grantee, (B) cash or other immediately available funds in an amount
equal to the then fair market value of the Awarded Vested Shares determined by using the
last sales price of the Common Stock (as reported by the New York Stock Exchange) on the
date such determination is made, or (C) any combination of (A) and (B).



          (f) Grantee hereby agrees that a breach of any of the provisions of this Section 10 would
cause irreparable injury to the Company and its Subsidiaries and affiliates, for which they would
have no adequate remedy at law. If Grantee breaches or threatens to breach any of the covenants
set forth in this Section 10, then without regard for any provision to the contrary, including
Section 13 hereof, the Company shall have the right to immediately seek injunctive relief from a
court
having jurisdiction for any actual or threatened breach of this Section 10 without necessity
of complying with any requirement as to the posting of a bond or other security (it being
understood that Grantee hereby waives any such requirement). Any such injunctive relief shall be
in addition to any other remedies to which the Company may be entitled at law, in equity or
otherwise. Grantee hereby agrees that upon receipt of notice of the Company’s intent to seek
injunctive relief, Grantee will not sell, transfer, pledge, exchange, hypothecate, or otherwise
encumber or dispose of any of the Awarded Vested Shares, or any right or interest therein, pending
the final resolution of such injunctive relief proceeding. In addition, Grantee shall, within ten
(10) business days after it is ultimately determined that he has committed such a breach hereof,
whether in an injunctive proceeding brought under this Section 10(f) or pursuant to the dispute
resolution provisions of Section 13 hereof, either (I) redeliver to the Company the Awarded Vested
Shares, if still owned by Grantee, or (ii) reimburse the Company an amount equal to the then fair
market value of the Awarded Vested Shares determined by using the last sales price of the Common
Stock (as reported by the New York Stock Exchange) on the date such determination is made; which
amount shall be paid to the Company in cash or other immediately available funds.




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          (g) By acceptance of this Agreement, Grantee agrees to cooperate with, provide information to,
and to participate in such exams and activities as requested by, the Company, if the Company, in
its sole discretion, elects to obtain insurance or make other financial arrangements to fund or
otherwise assure or assist in the performance and satisfaction of the Company’s obligations and
liabilities under this Agreement.




     11. Entire Agreement; Governing Law. The Plan and this Agreement constitute the
entire agreement of the Company and Grantee (collectively, the “Parties”) with respect to the
subject matter hereof and supersede in their entirety all prior undertakings and agreements of the
Parties with respect to the subject matter hereof. If there is any inconsistency between the
provisions of this Agreement and of the Plan, the provisions of the Plan shall govern. Nothing in
the Plan and this Agreement (except as expressly provided therein or herein) is intended to confer
any rights or remedies on any person other than the Parties. The Plan and this Agreement are to be
construed in accordance with and governed by the internal laws of the State of Texas, without
giving effect to any choice-of-law rule that would cause the application of the laws of any
jurisdiction other than the internal laws of the State of Texas to the rights and duties of
the Parties. Should any provision of the Plan or this Agreement relating to the Shares (excluding
for this purpose the provisions of Section 10(a), which is addressed in Section 10(e)) be
determined by a court of law to be illegal or unenforceable, such provision shall be enforced to
the fullest extent allowed by law and the other provisions shall nevertheless remain effective and
shall remain enforceable.



     12. Interpretive Matters. Whenever required by the context, pronouns and any
variation thereof shall be deemed to refer to the masculine, feminine, or neuter, and the singular
shall include the plural, and vice versa. The term “include” or “including” does not denote or
imply any limitation. The captions and headings used in this Agreement are inserted for
convenience and shall not be deemed a part of the Restricted Stock Award or this Agreement for
construction or interpretation.



     13. Dispute Resolution. Except as provided in Section 10 hereof, the provisions of
this Section 13 shall be the exclusive means of resolving disputes of the Parties (including any
other persons claiming any rights or having any obligations through the Company or Grantee) arising
out of or relating to the Plan and this Agreement. The Parties shall attempt in good faith to
resolve any disputes arising out of or relating to the Plan and this Agreement by negotiation
between individuals who have authority to settle the controversy. Either Party may commence
negotiations by delivering to the other Party a written statement of the Party’s position and the
name and title of the individual who will represent the Party. Within thirty (30) days of the
written notification, the Parties shall meet at a mutually acceptable time and place, and
thereafter as often as they reasonably deem necessary, to resolve the dispute. If the dispute has
not been resolved by negotiation within ninety (90) days of the written notification of the
dispute, either Party may file suit and each Party agrees that any suit, action, or proceeding
arising out of or relating to the Plan or this Agreement shall be brought in the United States
District Court for the Southern District of Texas (or should such court lack jurisdiction to hear
such action, suit or



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proceeding, in a Texas state court in Harris County, Texas) and that the
Parties shall submit to the jurisdiction of such court. The Parties irrevocably waive, to the
fullest extent permitted by law, any objection a Party may have to the laying of venue for any such
suit, action or proceeding brought in such court. THE PARTIES
ALSO EXPRESSLY WAIVE ANY RIGHT THEY HAVE OR MAY HAVE TO A JURY TRIAL OF ANY SUCH SUIT, ACTION
OR PROCEEDING. If any one or more provisions of this Section 13 shall for any reason be held
invalid or unenforceable, it is the specific intent of the Parties that such provisions shall be
modified to the minimum extent necessary to make it or its application valid and enforceable.




     14. Nature of Payments. Any and all grants or deliveries of Awarded Shares hereunder
shall constitute special incentive payments to Grantee and shall not be taken into account in
computing the amount of salary or compensation of Grantee for the purpose of determining any
retirement, death or other benefits under (a) any retirement, bonus, life insurance or other
employee benefit plan of the Company, or (b) any agreement between the Company and Grantee, except
as such plan or agreement shall otherwise expressly provide.



     15. Payment of Par Value. The Company’s obligation to deliver Awarded Shares to
Grantee upon the vesting of such shares shall be subject to the payment in full of the requisite
par value per share of the Awarded Shares prior to such issuance (collectively, the “Par Value”).
If the Company has not received from Grantee cash, a check or other available funds for the full
amount of the Par Value by 5:00 P.M. Central Standard Time within five (5) days after the Grant
Date, or Grantee has not made by that date such other provision for the payment of the Par Value in
form satisfactory to the Committee or Board in its sole discretion, the Company shall pay the Par
Value of the Awarded Shares on behalf of Grantee and will report the amount of such payment as
income to Grantee for the taxable period of Grantee during which the Awarded Shares are granted.
Grantee acknowledges and agrees that he shall be responsible for the payment of any and all
federal, state and local taxes on such income if the Company pays the Par Value on behalf of
Grantee.



     16. Amendment; Waiver. This Agreement may be amended or modified only by means of a
written document or documents signed by the Company and Grantee. Any provision for the benefit of
the Company contained in this Agreement may be waived, either generally or in any particular
instance, by the Board or by the Committee. A waiver on one occasion shall not be deemed to be a
waiver of the same or any other breach on a future occasion.



     17. Notice. Any notice or other communication required or permitted hereunder shall
be given in writing and shall be deemed given, effective, and received upon prepaid delivery in
person or by courier or upon the earlier of delivery or the
third business day after deposit in the United States mail if sent by certified mail, with
postage and fees prepaid, addressed to the other Party at the Company’s principal executive office
or the address of the Grantee in the records and books of the Company, or to such other address as
such Party may designate in writing from time to time by notice to the other Party in accordance
with this Section 17.



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	 	NCI BUILDING SYSTEMS, INC,

 	 
	 	By:  	/s/ A.R. Ginn
 	 
	 	 	A.R. Ginn, Chairman of the Board and Chief 	 
	 	 	Executive Officer 	 
	 


GRANTEE ACKNOWLEDGES AND AGREES THAT THE SHARES SUBJECT TO THIS RESTRICTED STOCK AWARD SHALL VEST
AND THE FORFEITURE PROVISIONS SHALL LAPSE, IF AT ALL, ONLY DURING THE PERIOD OF GRANTEE’S
CONTINUOUS SERVICE OR AS OTHERWISE PROVIDED IN THIS AGREEMENT (NOT THROUGH THE ACT OF BEING GRANTED
THE RESTRICTED STOCK AWARD). GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS
AGREEMENT OR THE PLAN SHALL CONFER UPON GRANTEE ANY RIGHT WITH RESPECT TO FUTURE AWARDS OR
CONTINUATION OF GRANTEE’S CONTINUOUS SERVICE. Grantee acknowledges receipt of a copy of the Plan,
represents that he or she is familiar with the terms and provisions thereof, and hereby accepts the
Restricted Stock Award subject to all of the terms and provisions hereof and thereof. Grantee has
reviewed this Agreement and the Plan in their entirety, has had an opportunity to obtain the advice
of counsel prior to executing this Agreement, and fully understands all provisions of this
Agreement and the Plan. Grantee hereby agrees that all disputes arising out of or relating to this
Agreement and the Plan shall be resolved in accordance with Section 13 of this Agreement. Grantee
further agrees to notify the Company upon any change in the address for notice indicated in this
Agreement.




	 	 	 	 	 
	 	 	 
	   DATED: 11/22/04  	SIGNED:  	/s/ Charles W. Dickinson
 	 
	 	 	GRANTEE 	 
	 	 	 	 



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EXHIBIT A




JOINT ESCROW INSTRUCTIONS




August 26, 2004




Chief Financial Officer

NCI Building Systems, Inc.

10943 North Sam Houston Parkway West

Houston, Texas 77064




Dear Sir or Madam:



As Escrow Agent for both NCI Building Systems, Inc., a Delaware corporation (the “Company”), and
the undersigned grantee (the “Grantee”) of shares of Common Stock of the Company (the “Shares”)
under that certain Restricted Stock Agreement between the Company and the Grantee (the
“Agreement”), you are hereby authorized and directed to hold the Shares, the stock certificate(s)
evidencing the Shares, and any other property and documents delivered to you pursuant to the
Agreement, in accordance with the following instructions:





     1. In the event the Shares are forfeited to the Company pursuant to the Agreement, the Company
shall give the Grantee and you a written notice of such forfeiture and the number of the Shares to
be forfeited thereunder (the “Notice”). The Grantee and the Company hereby irrevocably authorize
and direct you to complete the transaction described in the Notice in accordance with the terms of
the Notice. To complete the transaction described in the Notice at the closing, you are directed
(a) to complete, as appropriate, the stock assignment(s) necessary for the transfer of forfeited
Shares to the Company as described in the Notice, and (b) to deliver same, together with the
certificate(s) evidencing the forfeited Shares to be transferred, to the Company.



     2. The Grantee irrevocably authorizes the Company to deposit with you any certificates
evidencing the Shares to be held by you hereunder and any additions and substitutions to said
Shares as described in the Agreement. The Grantee does hereby irrevocably constitute and appoint
you as the Grantee’s attorney-in-fact and agent for the term of this escrow
to execute with respect to such Shares all documents necessary or appropriate to make such
Shares negotiable and to complete any transaction herein contemplated. Subject to the provisions
of this paragraph 2, the Grantee shall exercise all rights and privileges of a shareholder of the
Company with respect to the Shares while the Shares are held by you.



     3. Upon written request to you and to the Company by the Grantee following the lapse of the
forfeiture provisions described in the Agreement, you shall deliver to the Grantee a



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stock
certificate or stock certificates representing those Shares as to which the forfeiture provisions
have lapsed.




     4. If, at the time of termination of this escrow (upon the lapse of forfeiture provisions
regarding all of the Shares and other property in your possession in accordance with the
Agreement), you should have in your possession any documents, securities, or other property
belonging to the Grantee, you shall deliver all of the same to the Grantee and shall be discharged
of all further obligations hereunder.



     5. Your duties hereunder may be altered, amended, modified or revoked only by a writing signed
by all of the parties hereto.



     6. You shall be obligated only for the performance of such duties as are specifically set
forth herein and may rely, and you shall be protected in relying or refraining from acting on any
instrument reasonably believed by you to be genuine and to have been signed or presented by the
proper party or parties. You shall not be personally liable for any act you may do or omit to do
hereunder as Escrow Agent or as attorney-in-fact for the Grantee while acting in good faith, and
any act done or omitted by you pursuant to the advice of your own attorneys shall be conclusive
evidence of such good faith.



     7. You are hereby expressly authorized to disregard any and all warnings given by any of the
parties hereto or by any other person or entity, excepting only orders or process of courts of law,
and are hereby expressly authorized to comply with and obey orders, judgments, or decrees of any
court. In case you obey or comply with any such order, judgment, or decree, you shall not be
liable to any of the parties hereto or to any other person or entity by reason of such compliance,
notwithstanding any such order, judgment, or decree being subsequently reversed, modified,
annulled, set aside, vacated, or found to have been entered without jurisdiction.



     8. You shall not be liable in any respect on account of the identity, authorities or rights of
the parties executing or delivering, or purporting to execute or deliver, the Agreement or any
documents or papers deposited or called for hereunder.



     9. You shall be entitled to employ such legal counsel and other experts as you may deem
necessary properly to advise you in connection with your obligations hereunder, may rely upon the
advice of such counsel, and may pay such counsel reasonable compensation therefor, for which you
will be reimbursed by the Company.



     10. Your responsibilities as Escrow Agent hereunder shall terminate if you shall cease to be
the Chief Financial Officer of the Company or if you shall resign by written notice to each party.
In the event of any such termination, the Company shall appoint a successor Escrow Agent, who may
be any person or entity selected by the Company. In the absence of such appointment by the
Company, or until it has so specifically appointed another person or entity as a successor Escrow
Agent, the successor Escrow Agent automatically, without the necessity of



A-2









 




any further action by the
Company, shall be deemed to be the person appointed or elected as the successor Chief Financial
Officer of the Company to succeed the Chief Financial Officer who so resigned or otherwise ceased
to be the Chief Financial Officer of the Company.




     11. If you reasonably require other or further instruments in connection with these Joint
Escrow Instructions or obligations in respect hereto, the necessary party or parties hereto shall
join in furnishing such instruments.



     12. It is understood and agreed that should any dispute arise with respect to the delivery
and/or ownership or right of possession of the Shares or any other property held by you hereunder,
you are authorized and directed to retain in your possession, without liability to anyone, all or
any part of such property until such dispute shall have been settled either by mutual written
agreement of the parties concerned or by a final order, decree, or judgment of a court of competent
jurisdiction after the time for appeal has expired and no appeal has been perfected, but you shall
be under no duty whatsoever to institute or defend any such proceedings.



     13. Any notice required or permitted hereunder shall be given in writing and shall be given by
personal or courier delivery or deposit in the United States mail, by registered or certified mail
with postage and fees prepaid, addressed to each of the other parties thereunto entitled at the
following addresses or at such other addresses as a party may designate by ten days’ advance
written notice to each of the other parties hereto:



	 	 	 
	If to the Company:
	 	NCI Building Systems, Inc.
	 
	 	10943 North Sam Houston Parkway West
	 
	 	Houston, Texas 77064
	 
	 	Attention: Chairman of the Board
	 
	 	 
	If to the Grantee:
	 	[Address]
	 
	 	[Address]
	 
	 	 
	If to the Escrow Agent:
	 	c/o NCI Building Systems, Inc.
	 
	 	10943 North Sam Houston Parkway West
	 
	 	Houston, Texas 77064
	 
	 	Attention: Chief Financial Officer







Any notice so given by personal or courier delivery shall be deemed to have been duly given upon
delivery, and any notice so given by United States mail shall be deemed to have been duly given
upon the earlier of receipt by the addressee or the fourth business day after deposit in the
mail.



     14. By signing these Joint Escrow Instructions, you become a party hereto only for the purpose
of the Joint Escrow Instructions; you do not become a party to the Agreement.



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     15. This instrument shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns.



     16. These Joint Escrow Instructions shall be governed by, and construed and enforced in
accordance with, the internal substantive laws, but not the choice of law rules, of the State of
Texas.



	 	 	 	 	 
	Very truly yours,





NCI BUILDING SYSTEMS, INC.

 	 	 
	By:  	/s/ A.R. Ginn
 	 	 
	 	A.R. Ginn, Chairman of the Board and 	 	 
	 	Chief Executive Officer 	 	 
	 
	GRANTEE:

 	 	 
	/s/ Charles W. Dickinson
 	 	 
	Signature 	 	 
	 	 	 
	Charles W. Dickinson

Print Name

 	 	 
	 	 	 
	ESCROW AGENT:

 	 	 
	/s/ Robert J. Medlock
 	 	 
	Chief Financial Officer 	 	 
	 	 	 



A-4









 







EXHIBIT B




ASSIGNMENT SEPARATE FROM CERTIFICATE







     FOR VALUE RECEIVED, I,                                                             ,
hereby sell, assign and transfer unto NCI Building
Systems, Inc. (the “Company”)                                          (                    ) shares of the Company’s Common
Stock standing in my name of the books of the Company represented by Certificate No._________
delivered herewith, and do hereby irrevocably constitute and appoint _________________________________ as
attorney-in-fact, with full power of substitution, to transfer such shares on the books of the
Company.



	 	 	 	 	 
	 	 	 
	/s/ Charles W. Dickinson
 	 	 
	(Signature) 	 	 
	 	 	 
	Charles W. Dickinson

(Please print name)

 	 	 
	 	 	 
	 	 	 



INSTRUCTIONS:



Please do not fill in any blanks other than the signature lines. The purpose of this assignment is
to enable the Company to receive the shares upon the occurrence of a forfeiture of all, or any
portion of, the shares, as set forth in the Restricted Stock Agreement, without requiring
additional signatures on the part of the Grantee.





B-1