exv10w32






EXHIBIT 10.32




AMENDMENT AGREEMENT




          This AMENDMENT AGREEMENT (this “Agreement”) is entered into this 14th day
of August, 2009, by and between [NAME]1 (the “Executive”), NCI Building Systems,
Inc. (the “Company”) and NCI Group, [L.P.]2 [Inc.]3




          WHEREAS, Clayton, Dubilier & Rice Fund VIII, L.P., a Cayman 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”)]4 [certain Employment Agreement, entered into
March 13, 2009, by and between the Company, NCI Group, Inc. and Executive (the “Employment
Agreement”) and that certain Restricted Stock Agreement, dated August 26, 2004, between the
Company and Executive, as amended (the “Restricted Stock Agreement”)]5 [certain
Employment Agreement, entered into January 28, 2008, by and between the Company, NCI Group, Inc.
and Executive (the “Employment Agreement”)]6 [certain Employment Agreement, entered into
January 1, 2008, by and between the Company, NCI Group, Inc. and Executive (the “Employment
Agreement”)]7 [certain Employment Agreement, entered into June 4, 2008, by and between
the Company, NCI Group, Inc. and Executive (the “Employment Agreement”)],8 [in each
case]9 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:






 




			
	1	 	Norman C. Chambers, Todd R. Moore, Mark E. Johnson,
Keith E. Fischer, Brad Robeson, Eric J. Brown, John L. Kudzal, Mark T.
Golladay, Charles W. Dickinson and Mark W. Dobbins.
	 
	2	 	For Norman C. Chambers.
	 
	3	 	For all executives (other than Norman C. Chambers).
	 
	4	 	For Norman C. Chambers.
	 
	5	 	For Charles W. Dickinson and Mark W. Dobbins.
	 
	6	 	For Todd R. Moore and Mark E. Johnson.
	 
	7	 	For Keith E. Fischer, Brad Robeson and Eric J. Brown.
	 
	8	 	For John L. Kuzdal and Mark T. Golladay.
	 
	9	 	For Norman C. Chambers, Charles W. Dickinson and Mark
W. Dobbins only.





 









 





     Effective immediately prior to the Closing (as defined in the Investment Agreement), the
Employment Agreement [and the Restricted Stock Agreement]10 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:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	NCI GROUP, [L.P.]11 [INC.]12	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	  	 	 
	 	 	[EXECUTIVE]	 	 








 




			
	10	 	For Norman C. Chambers, Charles W. Dickinson and Mark
W. Dobbins only.
	 
	11	 	For Norman C. Chambers only.
	 
	12	 	For all executives (other than 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




 









 




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).




 











 




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.





 








 




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 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.




 







 





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.	 
	 	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 
	 	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.