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Exhibit 10.4
NCI BUILDING SYSTEMS, INC. 2003 LONG-TERM STOCK
INCENTIVE PLAN
RESTRICTED STOCK UNIT AGREEMENT
As described in the letter notifying Grantee of an award (the
"Award Letter"), NCI Building Systems, Inc., a Delaware corporation
(the "Company"), has granted to Grantee, pursuant to the provisions
of the NCI Building Systems, Inc. 2003 Long-Term Stock Incentive
Plan, as in effect on the Grant Date (the "Plan"), a Restricted
Stock Unit Award (this "Award") of the number of units designated
in the Award Letter (the "Awarded Units") each such Awarded Unit
representing one share of the Company’s common stock, $0.01
par value per share (the "Common Stock"), upon and subject to the
terms and conditions set forth in this Restricted Stock Unit
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 and in the
Award Letter. Grantee acknowledges receipt of a copy of the Plan
in effect as of the date hereof, the terms and conditions of which
are incorporated herein by reference.
1. Effect of the Plan . The Awarded Units 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
right to receive a number of shares of Common Stock equal to the
number of Vested Awarded Units (as defined below) subject to all
tax withholding obligations applicable to the Vested Awarded Units
being satisfied. Settlement of the Vested Awarded Units shall be
made by the delivery of shares of Common Stock as soon as
administratively practicable after vesting, but in no case later
than the March 15th following the year in which vesting
occurs. Grantee agrees that the Awarded Units 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
assignment set forth in Section 5 of this Agreement and the
satisfaction of the Required Withholding as set forth in
Section 10 of this Agreement.
3. Vesting Schedule; Service Requirements . Except as
provided otherwise in Section 4 of this Agreement, the Awarded
Units 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 Units vest (each, a "Vesting
Date"). Awarded Units that have vested pursuant to this Agreement
are referred to herein as "Vested Awarded Units," and Awarded Units
that have not yet vested pursuant to this Agreement are referred to
herein as
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"Unvested Awarded Units." 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 Units shall vest as follows:
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(i) twenty-five percent (25%) of the Awarded Units shall
vest on the first anniversary of the Grant Date;
(ii) twenty-five percent (25%) of the Awarded Units shall
vest on the second anniversary of the Grant Date;
(iii) twenty-five percent (25%) of the Awarded Units shall
vest on the third anniversary of the Grant Date; and
(iv) the remaining Awarded Units shall vest on the fourth
anniversary of the Grant Date.
If an installment of the vesting would result in a fractional
Vested Awarded Unit, such installment will be rounded to the next
higher or lower Awarded Unit, as determined by the Company, except
the final installment, which will be for the balance of the Awarded
Units.
4. Conditions of Forfeiture .
(a) Upon any termination of Grantee’s Continuous Service
(the "Termination Date") before all of the Awarded Units become
Vested Awarded Units, all Unvested Awarded Units as of the
Termination Date shall, without further action of any kind by the
Company or Grantee, be forfeited.
(b) Notwithstanding anything to the contrary in this Agreement,
the Unvested Awarded Units shall become vested (i) upon the
death of Grantee during Grantee’s Continuous Service;
(ii) if Grantee suffers a Disability during Grantee’s
Continuous Service; (iii) upon Grantee’s cessation of
Continuous Service due to retirement at or after attainment of age
65; or (iv) in accordance with the provisions of
Section 12(b) of the Plan relating to a Change in Control.
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5. Assignment . Grantee may not sell, transfer, pledge,
exchange, hypothecate, or otherwise encumber or dispose of any of
the Unvested Awarded Units, 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
Units.
6. Dividend Equivalent Payments . The Company will pay
dividend equivalents for each outstanding Awarded Unit in cash as
soon as administratively practicable after dividends, if any, are
paid on the Company’s outstanding shares of Common Stock.
Such payments shall be made no later than March 15th following
the year in which the dividends are paid.
7. Shareholder Rights . Grantee shall have no shareholder
rights, including voting or dividend rights, with respect to shares
of Common Stock represented by the Awarded Units subject to the
Award unless and until such time as shares of Common Stock have
been issued pursuant to Section 2.
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8. 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 Awarded Units 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 Units hereunder because of a capital adjustment
shall be immediately subject to the forfeiture provisions of this
Agreement and included thereafter as "Unvested Awarded Units" for
purposes of this Agreement.
9. Refusal to Transfer . Grantee’s rights to the
Awarded Units and the payment for or the issuance and delivery of
Common Stock in exchange for such Awarded Units are subject to
compliance with all applicable requirements of law. In addition,
the Company shall not be obligated to deliver any shares of Common
Stock if counsel to the Company determines that such delivery would
violate any applicable law or any rule or regulations of any
governmental authority or any rule or regulation of, or agreement
of the Company with, any securities exchange or association upon
which the Common Stock is listed or quoted.
10. Tax Matters .
(a) At the time of issuance of Common Stock upon the vesting of
the Awarded Units, the Company shall withhold an appropriate number
of shares of Common Stock, having a Fair Market Value 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 vesting, equal to
the amount necessary to satisfy the minimum federal, state and
local tax withholding obligation with respect to this Award. The
distribution of Common Stock described in Section 2 will be
net of such shares of Common Stock that are withheld to satisfy
applicable taxes pursuant to this Section 10.
(b) In lieu of withholding of shares of Common Stock as provided
in Section 10(a), the Committee may, in its discretion,
authorize tax withholding to be satisfied by a cash payment to the
Company, by withholding an appropriate amount of cash from base
pay, or by such other method as the Committee determines may be
appropriate to satisfy all obligations for withholding of such
taxes.
(c) 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.
11. Covenants of Grantee .
(a) For the period beginning on the Grant Date through the fifth
anniversary of the Grant Date, Grantee shall not, directly or
indirectly and whether on his own behalf or on
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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 the period beginning on the Grant Date through the fifth
anniversary of the Grant Date, 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 s
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