Exhibit 10.1
NCI BUILDING SYSTEMS,
INC.
2003 LONG-TERM STOCK INCENTIVE
PLAN
(As Amended and Restated
March 12, 2009)
1. PURPOSE. The purposes of the Plan
are to attract and retain for the Company and its Subsidiaries the
best available personnel, to provide additional incentives to
Employees, Directors and Consultants, to increase their interest in
the Company’s welfare, and to promote the success of the
business of the Company and its Subsidiaries.
2. INCENTIVE AWARDS AVAILABLE UNDER
THE PLAN. Awards granted under this Plan may be (a) Incentive
Stock Options, (b) Non-Qualified Stock Options,
(c) Restricted Stock Awards; (d) Stock Appreciation
Rights; (e) Cash Awards; (f) Performance Share Awards;
(g) Phantom Stock Awards and (h) Restricted Stock Unit
Awards.
3. SHARES SUBJECT TO PLAN. Subject
to adjustment pursuant to Section 12(a) hereof, the total
number of shares of Common Stock that may be issued with respect to
Awards granted under the Plan shall not exceed 3,660,000 (the
“Pool Limit”). At all times during the term of the
Plan, the Company shall allocate and keep available such number of
shares of Common Stock as will be required to satisfy the
requirements of outstanding Awards under the Plan. Shares of Common
Stock issued pursuant to (i) Awards of Options or Stock
Appreciation Rights granted at any time or (ii) Restricted
Stock Awards, Restricted Stock Unit Awards, Phantom Stock Awards or
Performance Share Awards granted prior to March 11, 2005 shall
each count against the Pool Limit as one (1) full share of
Common Stock. Shares of Common Stock issued pursuant to a
Restricted Stock Award, Restricted Stock Unit Award, Phantom Stock
Award or Performance Share Award granted on or after March 11,
2005 shall each count against the Pool Limit as one and one- half
(1.5) shares of Common Stock. The number of shares reserved
for issuance under the Plan shall be reduced only to the extent
that shares of Common Stock are issued in connection with the
exercise or settlement of an Award; provided, however, that the
number of shares reserved for issuance shall be reduced by the
total number of Options or Stock Appreciation Rights exercised. Any
shares of Common Stock covered by an Award (or a portion of an
Award) that is forfeited or canceled or that expires shall be
deemed not to have been issued for purposes of determining the
maximum aggregate number of shares of Common Stock which may be
issued under the Pool Limit and shall remain available for Awards
under the Plan. Notwithstanding the foregoing, the following shares
of Common Stock may not again be made available for issuance as
Awards under the Plan: (a) shares of Common Stock not issued
or delivered as a result of the net settlement of an outstanding
Option or Stock Appreciation Right, (b) shares of Common Stock
used to pay the exercise price or withholding taxes related to an
outstanding Award, or (c) shares of Common Stock repurchased
on the open market with the proceeds of the Option exercise price.
The shares to be delivered under the Plan shall be made available
from authorized but unissued shares of Common Stock or Common Stock
held in the treasury of the Company.
4. ELIGIBILITY. Awards other than
Incentive Stock Options may be granted to Employees, Directors and
Consultants. Incentive Stock Options may be granted only to
Employees. The Committee in its sole discretion shall select the
recipients of Awards. A Grantee may be granted more than one Award
under the Plan, and Awards may be granted at any
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time or times during the term of the Plan. The
grant of an Award to an Employee, Director or Consultant shall not
be deemed either to entitle that individual to, or to disqualify
that individual from, participation in any other grant of Awards
under the Plan.
5. LIMITATION ON INDIVIDUAL AWARDS.
Except for Cash Awards described in Section 10(a), no
individual shall be granted, in any fiscal year, Awards under the
Plan covering or relating to an aggregate of more than 250,000
shares of Common Stock. No individual shall receive payment for
Cash Awards during any fiscal year aggregating in excess of
$5,000,000. The preceding shall be applied in a manner which will
permit compensation generated under the Plan, where appropriate, to
constitute “performance-based” compensation for
purposes of Section 162(m) of the Code.
6. STOCK OPTIONS.
(a) Grant of Options. An Option is a
right to purchase shares of Common Stock during the option period
for a specified exercise price. The Committee shall determine
whether each Option shall be granted as an Incentive Stock Option
or a Non-Qualified Stock Option and the provisions, terms and
conditions of each Option including, but not limited to, the
vesting schedule, the number of shares of Common Stock subject to
the Option, the exercise price of the Option, the period during
which the Option may be exercised, repurchase provisions,
forfeiture provisions, methods of payment, and all other terms and
conditions of the Option.
(b) Limitations on Incentive Stock
Options. The aggregate Fair Market Value (determined as of the date
of grant of an Option) of Common Stock which any Employee is first
eligible to purchase during any calendar year by exercise of
Incentive Stock Options granted under the Plan and by exercise of
Incentive Stock Options granted under any other incentive stock
option plan of the Company or a Subsidiary shall not exceed
$100,000. If the Fair Market Value of stock with respect to which
all Incentive Stock Options described in the preceding sentence
held by any one Optionee are exercisable for the first time by such
Optionee during any calendar year exceeds $100,000, the Options
(that are intended to be Incentive Stock Options on the date of
grant thereof) for the first $100,000 worth of shares of Common
Stock to become exercisable in such year shall be deemed to
constitute Incentive Stock Options and the Options (that are
intended to be Incentive Stock Options on the date of grant
thereof) for the shares of Common Stock in the amount in excess of
$100,000 that become exercisable in that calendar year shall be
treated as Non-Qualified Stock Options. If the Code or the Treasury
regulations promulgated thereunder are amended after the effective
date of the Plan to provide for a different limit than the one
described in this Section 6(b), such different limit shall be
incorporated herein and shall apply to any Options granted after
the effective date of such amendment.
(c) Acquisitions and Other
Transactions. Notwithstanding the provisions of Section 11(h),
in the case of an Option issued or assumed pursuant to
Section 11(h), the exercise price and number of shares for the
Option shall be determined in accordance with the principles of
Section 424(a) of the Code and the Treasury regulations
promulgated thereunder.
(d) Payment on Exercise. Payment for
the shares of Common Stock to be purchased upon exercise of an
Option may be made in cash (by check) or, if elected by the
Optionee where permitted by law: (i) if a public market for
the Common Stock exists, through a
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“same day sale” arrangement between
the Optionee and a NASD Dealer whereby the Optionee elects to
exercise the Option and to sell a portion of the shares of Common
Stock so purchased to pay for the exercise price and whereby the
NASD Dealer commits upon receipt of such shares of Common Stock to
forward the exercise price directly to the Company; (ii) if a
public market for the Common Stock exists, through a
“margin” commitment from the Optionee and an NASD
Dealer whereby the Optionee elects to exercise the Option and to
pledge the shares of Common Stock so purchased to the NASD Dealer
in a margin account as security for a loan from the NASD Dealer in
the amount of the exercise price, and whereby the NASD Dealer
commits upon receipt of such shares of Common Stock to forward the
exercise price directly to the Company; or (iii) by surrender
for cancellation of Qualifying Shares at the Fair Market Value per
share at the time of exercise (provided that such surrender does
not result in an accounting charge for the Company). No shares of
Common Stock may be issued until full payment of the purchase price
therefor has been made.
7. RESTRICTED STOCK
AWARDS.
(a) Restricted Stock Awards. A
Restricted Stock Award is a grant of shares of Common stock for
such consideration, if any, and subject to such restrictions on
transfer, rights of first refusal, repurchase provisions,
forfeiture provisions and other terms and conditions as are
established by the Committee.
(b) Forfeiture Restrictions. Shares
of Common Stock that are the subject of a Restricted Stock Award
shall be subject to restrictions on disposition by the Grantee and
to an obligation of the Grantee to forfeit and surrender the shares
to the Company under certain circumstances (the “Forfeiture
Restrictions”). The Forfeiture Restrictions shall be
determined by the Committee in its sole discretion, and the
Committee may provide that the Forfeiture Restrictions shall lapse
on the passage of time, the attainment of one or more performance
targets established by the Committee, or the occurrence of such
other event or events determined to be appropriate by the
Committee; provided, however, that except as provided in
Section 11 hereof, (i) for a Restricted Stock Award based
on the passage of time, the Forfeiture Restrictions shall lapse
ratably over a minimum period of four years, and (ii) for a
Restricted Stock Award based on performance criteria or any other
event, the Forfeiture Restrictions shall not lapse prior to one
year after grant of the Restricted Stock Award. The Forfeiture
Restrictions applicable to a particular Restricted Stock Award
(which may differ from any other such Restricted Stock Award) shall
be stated in the Restricted Stock Agreement.
(c) Rights as Stockholder. Shares of
Common Stock awarded pursuant to a Restricted Stock Award shall be
represented by a stock certificate registered in the name of the
Grantee of such Restricted Stock Award. The Grantee shall have the
right to receive dividends with respect to the shares of Common
Stock subject to a Restricted Stock Award, to vote the shares of
Common Stock subject thereto and to enjoy all other stockholder
rights with respect to the shares of Common Stock subject thereto,
except that, unless provided otherwise in this Plan, or in the
Restricted Stock Agreement, (i) the Grantee shall not be
entitled to delivery of the shares of Common Stock except as the
Forfeiture Restrictions expire, (ii) the Company or an escrow
agent shall retain custody of the shares of Common Stock until the
Forfeiture Restrictions expire, (iii) the Grantee may not
sell, transfer, pledge, exchange, hypothecate or otherwise dispose
of the shares of Common Stock until the Forfeiture Restrictions
expire.
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(d) Stock Certificate Delivery. One
or more stock certificates representing shares of Common Stock,
free of Forfeiture Restrictions, shall be delivered to the Grantee
promptly after, and only after, the Forfeiture Restrictions have
expired. The Grantee, by his or her acceptance of the Restricted
Stock Award, irrevocably grants to the Company a power of attorney
to transfer any shares so forfeited to the Company, agrees to
execute any documents requested by the Company in connection with
such forfeiture and transfer, and agrees that such provisions
regarding transfers of forfeited shares shall be specifically
performable by the Company in a court of equity or law.
(e) Payment for Restricted Stock.
The Committee shall determine the amount and form of any payment
for shares of Common Stock received pursuant to a Restricted Stock
Award. In the absence of such a determination, the Grantee shall
not be required to make any payment for shares of Common Stock
received pursuant to a Restricted Stock Award, except to the extent
otherwise required by law.
(f) Forfeiture of Restricted Stock.
Unless otherwise provided in a Restricted Stock Agreement, on
termination of the Grantee’s employment or service prior to
lapse of the Forfeiture Restrictions, the shares of Common Stock
which are still subject to the Restricted Stock Award shall be
forfeited by the Grantee. Upon any forfeiture, all rights of the
Grantee with respect to the forfeited shares of the Common Stock
subject to the Restricted Stock Award shall cease and terminate,
without any further obligation on the part of the Company except to
repay any purchase price per share paid by the Grantee for the
shares forfeited.
(g) Waiver of Forfeiture
Restrictions; Committee’s Discretion. With respect to a
Restricted Stock Award that has been granted to a Covered Employee
where such Award has been designed to meet the exception for
performance-based compensation under Section 162(m) of the
Code, the Committee may not waive the Forfeiture Restrictions
applicable to such Restricted Stock Award.
8. STOCK APPRECIATION
RIGHTS.
(a) Stock Appreciation Rights. A
Stock Appreciation Right is a right to receive, upon exercise of
the right, shares of Common Stock or their cash equivalent in an
amount equal to the increase in Fair Market Value of the Common
Stock between the grant and exercise dates. As of the grant date of
an Award of a Stock Appreciation Right, the Committee may
specifically designate that the Award will be paid (i) only in
cash, (ii) only in stock or (iii) in such other form or
combination of forms as the Committee may elect or permit at the
time of exercise.
(b) Tandem Rights. Stock
Appreciation Rights may be granted in connection with the grant of
an Option, in which case exercise of Stock Appreciation Rights will
result in the surrender of the right to purchase the shares under
the Option as to which the Stock Appreciation Rights were
exercised. Alternatively, Stock Appreciation Rights may be granted
independently of Options in which case each Award of Stock
Appreciation Rights shall be evidenced by a Stock Appreciation
Rights Agreement. With respect to Stock Appreciation Rights that
are subject to Section 16 of the Exchange Act, the Committee
shall retain sole discretion (i) to determine the form in
which payment of the Stock Appreciation Right will be made (i.e.,
cash, securities or any combination thereof) or (ii) to
approve an election by a Grantee to receive cash in full or partial
settlement of Stock Appreciation Rights.
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(c) Limitations on Exercise of Stock
Appreciation Rights. A Stock Appreciation Right shall be
exercisable in whole or in such installments and at such times as
determined by the Committee.
9. PERFORMANCE SHARE AWARDS, PHANTOM
STOCK AWARDS AND RESTRICTED STOCK UNIT AWARDS.
(a) Performance Share Awards. A
Performance Share Award is a right to receive shares of Common
Stock or their cash equivalent based on the attainment of
pre-established performance goals and such other conditions,
restrictions and contingencies as the Committee shall determine.
Each Performance Share Award may have a maximum value established
by the Committee at the time of such Award. The Committee shall
establish, with respect to and at the time of each Performance
Share Award, a performance period or periods over which the
performance applicable to the Performance Share Award of the
Grantee shall be measured; provided, however, that the minimum
performance period shall be for one year after grant of the
Performance Share Award. The Committee shall determine the effect
of termination of employment or service during the performance
period on a Grantee’s Performance Share Award, which shall be
set forth in the Award Agreement.
(b) Phantom Stock Awards. Phantom
Stock Awards are rights to receive an amount equal to the Fair
Market Value of shares of Common Stock or rights to receive an
amount equal to any appreciation or increase in the Fair Market
Value of the Common Stock over a specified period of time, which
may vest over a period of time as established by the Committee,
without payment of any amounts by the Grantee thereof (except to
the extent otherwise required by law) or satisfaction of any
performance criteria or objectives. Each Phantom Stock Award may
have a maximum value established by the Committee at the time of
such Award. The Committee shall establish, at the time of grant of
each Phantom Stock Award, a period over which the Award shall vest
with respect to the Grantee, and terms and conditions of
forfeiture, which shall be set forth in the Award
Agreement.
(c) Restricted Stock Unit Awards.
Restricted Stock Unit Awards are Awards denominated in units
evidencing the right to receive shares of Common Stock, which may
vest over a period of time as established by the Committee, without
payment of any amounts by the Grantee thereof (except to the extent
otherwise required by law) or satisfaction of any performance
criteria or objectives. The Committee shall establish, at the time
of grant of each Restricted Stock Unit Award, a period over which
the Award shall vest with respect to the Grantee, and terms and
conditions of forfeiture, which shall be set forth in the Award
Agreement.
(d) Payment. Following the end of
the performance period of a Performance Share Award or the
determined vesting period for a Phantom Stock Award or a Restricted
Stock Unit Award, the Grantee shall be entitled to receive payment
of an amount, not exceeding the maximum value of the Award, if any,
based on (1) the achievement of the performance measures for
such performance period for a Performance Share Award or
(2) the then vested value of the
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Phantom Stock Award or the number of shares of
Common Stock evidences by the Restricted Stock Unit Award, each as
determined by the Committee. If awarded, cash dividend equivalents
may be paid during, or may be accumulated and paid at the end of,
the vesting period with respect to Phantom Stock Awards or
Restricted Stock Unit Awards, as determined by the
Committee.
10. CASH AWARDS AND PERFORMANCE
AWARDS.
(a) Cash Awards. In addition to
granting Options, Stock Appreciation Rights, Restricted Stock
Awards, Performance Share Awards, Phantom Stock Awards and
Restricted Stock Unit Awards, the Committee shall, subject to the
limitations of the Plan, have authority to grant Cash Awards. Each
Cash Award shall be subject to such terms and conditions,
restrictions and contingencies as the Committee shall determine.
Restrictions and contingencies limiting the right to receive a cash
payment pursuant to a Cash Award shall be based upon the
achievement of single or multiple Performance Objectives over a
performance period established by the Committee. The determinations
made by the Committee pursuant to this Section 10(a) shall be
specified in the applicable Award Agreement.
(b) Designation as a Performance
Award. The Committee shall have the right to designate any Award of
Options, Stock Appreciation Rights, Restricted Stock Awards,
Performance Share Awards and Phantom Stock Awards as a Performance
Award. All Cash Awards shall be designated as Performance
Awards.
(c) Performance Objectives. The
grant or vesting of a Performance Award shall be subject to the
achievement of Performance Objectives over a performance period
established by the Committee based upon one or more of the
following business criteria that apply to the Grantee, one or more
business units, divisions or Subsidiaries of the Company or the
applicable sector of the Company, or the Company as a whole, and if
so desired by the Committee, by comparison with a peer group of
companies: revenue; increased revenue; net income measures
(including income after capital costs and income before or after
taxes); profit measures (including gross profit, operating profit,
economic profit, net profit before taxes and adjusted pre-tax
profit); stock price measures (including growth measures and total
stockholder return); price per share of Common Stock; market share;
earnings per share or adjusted earnings per share (actual or growth
in); earnings; earnings before interest, taxes, depreciation, and
amortization (EBITDA); earnings before interest and taxes (EBIT);
economic value added (or an equivalent metric); market value added;
debt to equity ratio; cash flow measures (including cash flow
return on capital, cash flow return on tangible capital, net cash
flow and net cash flow before financing activities); return
measures (including return on equity, return on assets, return on
capital, risk-adjusted return on capital, return on
investors’ capital and return on average equity); operating
measures (including operating income, funds from operations, cash
from operations, after-tax operating income; sales volumes,
production volumes and production efficiency); expense measures
(including overhead cost and general and administrative expense);
changes in working capital; margins; stockholder value; total
stockholder return; proceeds from dispositions; total market value;
customer satisfaction or growth; employee satisfaction; and
corporate values measures (including ethics compliance,
environmental and safety). Unless otherwise stated, such a
Performance Objective need not be based upon an increase or
positive result under a particular business criterion and could
include, for example, maintaining the status
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