exv10w2



 





Exhibit 10.2




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




RESTRICTED STOCK AGREEMENT




	 	 	 
	Grantee:

	 	Norman C. Chambers

	 	 	 
	Number of Awarded Shares:

	 	64,516

	 	 	 
	Date of Award:

	 	April 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 Award 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 the
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 Award.



     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 of the Company (“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 ten percent (10%) of the
Unvested Awarded Shares shall vest for each twelve-month period of
Grantee’s 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



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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 the 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 the this Agreement, “Cause” means:




               (i) Grantee’s failure or inability for any reason to devote the
amount of his business time to the business of NCI Group, L.P. (“NCI
Group”), the Company and their affiliates contemplated under Section 2(c)
of that certain Employment Agreement, dated April 8, 2004, among Grantee,
NCI Group and the Company (the “Employment Agreement”) (vacation time in
accordance with Section 3(h) of the Employment Agreement and absence due
to sickness or disability being excepted herefrom except as provided in
clause (ii) hereof) and such failure or inability continues for a period
of thirty (30) days after written notice 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) breach or failure by Grantee to perform any of his material
covenants contained in the Employment Agreement that is not cured within
thirty (30) days after written notice 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;




               (iv) 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 written notice 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



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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;




               (v) 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;




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




               (vii) 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 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 the Grantee’s prior written consent:




               (i) (A) Any reduction in the amount of the Grantee’s base salary in
excess of the percentage set forth in Section 3(a) of the Employment
Agreement or below the annual base salary rate set forth in Section 3(a)
of the Employment Agreement, (B) any material reduction in the aggregate
amount of cash bonuses and other cash incentive compensation that Grantee
has an opportunity to earn 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);



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               (ii) (A) the removal of or failure to elect or appoint Grantee to
the position set forth in Section 2(a) of the Employment Agreement, or
(B) any material reduction in the nature or status of the Grantee’s
authority as set forth in Section 2(b) of the Employment Agreement or in
his duties or responsibilities as set forth in Section 2(b) and 2(c) of
the Employment Agreement;




               (iii) the failure to elect or appoint Grantee to the position of
Chief Executive Officer of the Company after A.R. Ginn ceases to serve in
that position with the Company; or




               (iv) breach or failure by the Company or NCI Group to perform any of
its material covenants contained in the Employment Agreement;



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 the 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 the Grantee
has made arrangements with the Company for the 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) 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.



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     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 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
hire, seek to hire or solicit the employment of any employee of the Company or
its subsidiaries and affiliates or in any manner attempt to influence or induce
any employee of the Company or its subsidiaries and affiliates to leave the
employment of the Company or its subsidiaries and affiliates, or use or
disclose to any person, partnership, association, corporation or other entity
any information concerning the names and addresses of any employees of the
Company or its subsidiaries and affiliates unless required by due process of
law.



          (c) Grantee, during his Continuous Service with the Company, will have
access to, and become familiar 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 “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



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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) 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
reform the provision to such narrower scope as it determines to be reasonable
and enforceable. 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 be severable from the
other provisions of this Agreement 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. If any provision of this
Agreement is held to be illegal, invalid or unenforceable under present or
future laws effective during the term hereof, such provision shall be fully
severable and this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision never comprised a part of this
Agreement; and the remaining provisions of this Agreement shall remain in full
force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom. Furthermore, in lieu of
such illegal, invalid or unenforceable provision, there shall be added
automatically as part of this Agreement, a provision as similar in its terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.



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          (f) If Grantee breaches any of the covenants set forth in this Section 10,
Grantee shall, within ten (10) business days after it is ultimately determined
that he has committed such a breach 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.



          (g) By acceptance of this Agreement, the 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 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. 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



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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 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. The 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 the 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



10









 







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.



	 	 	 	 	 
	 
	 	 	 	 
	 	 	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: April 28, 2004

	 	SIGNED:
	 	/s/ Norman C. Chambers


	

	 	 	 	GRANTEE







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EXHIBIT A




JOINT ESCROW INSTRUCTIONS




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



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     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 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.



A - 2









 





     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:
	 	99 North Post Oak Lane
	

	 	 	 	No. 1106
	

	 	 	 	Houston, Texas 77024
	 
	 	 	 	 
	

	 	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.



     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.



A - 3









 





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/ Norman C. Chambers


	 
	Signature
	 
	 
	 
	Norman C. Chambers


	 
	Print Name
	 







ESCROW AGENT:




	 	 
	/s/ Robert J. Medlock


	 
	Chief Financial Officer








A - 4









 





EXHIBIT B




ASSIGNMENT SEPARATE FROM CERTIFICATE




FOR VALUE RECEIVED, I, Norman C. Chambers, 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 the such shares on the books of the Company.




	 
	/s/ Norman C. Chambers



	(Signature)








	 
	Norman C. Chambers



	(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