EXHIBIT 10.8
NCI BUILDING SYSTEMS, INC.
AMENDED AND RESTATED SUPPLEMENTAL BENEFIT PLAN
[AS AMENDED AND RESTATED ON DECEMBER 12, 2002]
NCI Building Systems, Inc. (the "Company"), hereby establishes the NCI
Building Systems, Inc. Supplemental Benefit Plan for specified employees of the
Company upon the terms and conditions below, effective as of February 1, 1996.
ARTICLE I
PURPOSE
The purpose of this Plan is to provide retirement and survivor benefits
to or on behalf of a select group of management or highly compensated Employees
on the terms and conditions set forth herein to reward such Employees for their
loyal service to the Company and to provide an incentive to remain in the employ
of the Company. The Company intends that the Plan shall constitute an unfunded
deferred compensation arrangement for a select group of management or highly
compensated employees for purposes of the Internal Revenue Code of 1986, as
amended (the "Code") and of the Employee Retirement Income Security Act of 1974,
as amended, and that any Employee or Beneficiary shall have the status of an
unsecured general creditor of the Company in the event the Company becomes
Insolvent as to the Plan and any trust fund that may be established by the
Company, or asset identified specifically by the Company, as a reserve for the
discharge of its obligations under the Plan. Benefits provided under the Plan
are in addition to any other benefit plans or programs of the Company.
Participation in the Plan does not limit or otherwise affect an Employee's
participation in any other plan sponsored by the Company.
ARTICLE II
DEFINITIONS
Unless the context otherwise requires, capitalized terms used herein
shall have the meanings set forth below:
2.1 "Administrator" means the Company or such other person or committee
as may be appointed from time to time by the Board to administer the Plan.
2.2 "Beneficiary" means the Beneficiary designated in writing by the
Employee to receive benefits due under the Plan after his or her death. If the
Employee fails to designate a Beneficiary or if the designated Beneficiary
predeceases the Employee, the Employee's Beneficiary shall be his or her spouse,
if living, and if no such spouse is living, the Employee's estate.
2.3 "Board" means the Board of Directors of the Company, or any
committee of the Board or person authorized to act on its behalf.
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2.4 "Cause" shall be determined by the Board, in its sole and absolute
discretion, and means the occurrence of either or both of the following:
(a) The Employee's conviction for committing an act of fraud,
embezzlement, theft, or other act constituting a felony; or
(b) The willful engaging by the Employee in gross misconduct
materially and demonstrably injurious to the Company, as determined by
the Company. However, no act or failure to act, on the Employee's part
shall be considered "willful" unless done, or omitted to be done, by
the Employee not in good faith and without reasonable belief that his
action or omission was in the best interest of the Company.
2.5 "Change in Control" of the Company means the occurrence of one or
more of the following conditions:
(a) Any "Person", [as defined in Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and
used in Sections 13(d) and 14(d) thereof], including a "group" as
defined in Section 13(d) of the Exchange Act, (other than those Persons
in control of the Company as of the effective date of this Agreement,
or other than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company, or a corporation owned directly
or indirectly by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company), becomes
the "Beneficial Owner", [as described in Rule 13d-3 of the General
Rules and Regulations under the Exchange Act], directly or indirectly,
of securities of the Company representing twenty-five percent (25%) or
more of the combined voting power of the Company's then outstanding
securities; or
(b) During any period of two (2) consecutive years (not
including any period prior to the execution of this Agreement),
individuals who are in the beginning of such period constitute the
Board (and any new members of the Board, whose election by the
Company's stockholders was approved by a vote of at least two-thirds
(2/3) of the Board members then still in office who either were Board
members at the beginning of the period or whose election or nomination
for election was so approved), cease for any reason to constitute a
majority thereof; or
(c) The stockholders or Directors of the Company approve: (A)
a plan of complete liquidation of the Company; or (B) an agreement for
the sale or disposition of all or substantially all the Company's
assets; or (C) a merger, consolidation, or reorganization of the
Company with or involving any other corporation, other than a merger,
consolidation, or reorganization that would result in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity), at least
fifty percent (50%) of the combined voting power of the voting
securities of the Company
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(or such surviving entity) outstanding immediately after such merger,
consolidation, or reorganization.
However, in no event shall a Change in Control be deemed to have occurred, with
respect to an Employee if the Employee is part of a purchasing group which
consummates the Change in Control transaction. The Employee shall be deemed
"part of a purchasing group" for purposes of the preceding sentence if the
Employee is an equity participant in the purchasing company or group (except
for: (i) passive ownership of less than three percent (3%) of the stock of the
purchasing company; or (ii) ownership of equity participation in the purchasing
company or group which is otherwise not significant, as determined prior to the
Change in Control by a majority of the non-employee continuing Board members).
2.6 "Disabled" or "Disability" means the physical or mental incapacity
of an Employee which, in the opinion of a physician approved by the Company,
will permanently prevent such Employee from performing the principal duties of
his or her employment with the Company.
2.7 "Employee" means any person employed by the Company who is included
on the Federal Insurance Contribution Act rolls of the Company and who is
designated by the Board to receive benefits from the Plan in accordance with the
provisions of Article III.
2.8 "Insolvent" means (i) the Company is unable to pay its debts as
they become due or (ii) the Company is subject to a pending proceeding as a
debtor under the United States Bankruptcy Code.
2.9 "Participation Agreement" means the agreement executed by the
Employee following his designation by the Board as eligible to participate in
the Plan and shall be in such form as the Board shall approve from time to time.
The Participation Agreement shall become a part of the Plan with respect to the
Employee who executes such Participation Agreement.
2.10 "Plan" means the agreement set forth in this document, as it may
be amended from time to time.
2.11 "Preretirement Survivor Benefit" means with respect to any
Employee, the amount designated by the Board and listed on Exhibit "A" to the
Plan to which the Employee's Beneficiary will be entitled in the event an
Employee dies prior to terminating employment with the Company. A Preretirement
Survivor Benefit will be payable in accordance with Section 4.3.
2.12 "Normal Retirement Age" means, with respect to each Employee, the
date the Employee attains age 65.
2.13 "Normal Retirement Date" means, with respect to each Employee, the
later of (i) the first day of the month following the date the Employee attains
Normal Retirement Age or
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(ii) the first day of the month following the termination of the Employee's
employment with the Company.
2.14 "Year of Participation" means (i) each calendar year during which
an Employee is eligible to participate in the Plan and performs at least 1,000
hours of service for the Company, and (ii) each other calendar year, or portion
thereof, commencing April 1, 1992, during which an Employee performs at least
1,000 hours of service for the Company.
2.15 "Retirement Benefit" means, with respect to any Employee, the
amount designated by the Board on Exhibit "A" to the Plan to which the Employee
will be entitled in the event of the Employee's termination of employment,
subject to the vesting provisions of Section 4.4. An Employee's Retirement
Benefit will be payable in accordance with Section 4.2.
ARTICLE III
ELIGIBILITY
The Board shall designate Employees eligible to receive benefits under
the terms of the Plan. The Board, or its representative, shall notify each
Employee of his or her eligibility to participate in the Plan as soon as
administratively practicable following the Board's designation. Prior to
commencing participation in the Plan, each Employee shall be given a copy of
this Agreement and shall execute a Participation Agreement. The amount of
benefits, if any, that an Employee (or, if applicable, his or her Beneficiary
following the Employee's death) shall be entitled to receive under the Plan
shall be determined under Article IV.
ARTICLE IV
PLAN CONTRIBUTIONS AND PLAN BENEFITS
4.1 Amount of Benefits. At the time the Board designates an Employee as
eligible to participate in the Plan, the Board shall irrevocably specify the
amount of Retirement Benefit and Preretirement Survivor Benefit to which each
Employee shall be entitled under the Plan. Benefits awarded to an Employee shall
be expressed as a dollar amount, or as a percentage of an Employee's current
compensation. A separate bookkeeping account shall be established by the Company
for each Employee who is entitled to benefits hereunder and such account shall
be credited with the amounts awarded to the Employee by the Board. The Company
shall maintain a schedule, which shall be attached hereto as Exhibit "A",
reflecting the Retirement Benefit and Preretirement Survivor Benefit to which
each Employee is entitled under the Plan. As soon as administratively
practicable following each such determination of Plan benefits by the Board,
Exhibit "A" shall be restated to reflect the appropriate amount of benefits to
which an Employee is entitled from the Plan.
4.2 Retirement Benefits. Except as provided in Section 4.5, the
Retirement Benefit credited to an Employee's bookkeeping account pursuant to
Section 4.1, to the extent vested under Section 4.4, shall become payable in the
form described herein to the Employee as soon as
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administratively practicable, but not later than 30 days, following the
Employee's Normal Retirement Date, or if earlier, the date the Employee ceases
active employment with the Company due to his Disability. The Employee's
Retirement Benefit shall be paid in equal monthly installments over a period of
10 years. If the Employee dies prior to receiving the entire Retirement Benefit
to which he or she is entitled, the Employee's Beneficiary shall receive the
unpaid portion of the Employee's Retirement Benefit in equal monthly payments
during the remainder of the 10 year period.
4.3 Preretirement Survivor Benefit. If an Employee dies while employed
by the Company, the Employee shall not be entitled to a Retirement Benefit and
Employee's Beneficiary shall receive the Preretirement Survivor Benefit credited
to the Employee's bookkeeping account under Section 4.1 payable in equal monthly
installments over a period of 10 years. Payment of the Beneficiary's
Preretirement Survivor Benefit shall commence as soon as administratively
practicable, but not later than 30 days, following the Employee's death. If the
Employee's Beneficiary dies prior to the payment of the entire Preretirement
Survivor Benefit, the then present value of Beneficiary's remaining
Preretirement Survivor Benefit, shall be paid to Beneficiary's estate in a
single sum distribution within 30 days after the date of Beneficiary's death.
4.4 Vesting. An Employee's right to a Retirement Benefit shall vest
over a period of 10 years, at the rate of 10% for each Year of Participation by
the Employee. In addition, an Employee shall become fully vested in his or her
Retirement Benefit upon the occurrence of his or her Disability or a Change in
Control. Notwithstanding any other provision of the Plan to the contrary, if an
Employee's employment with the Company is terminated for Cause, the Employee
shall forfeit his or her rights to any benefits under the Plan.
4.5 Timing of Certain Payments. Notwithstanding the provisions of
Section 4.2, benefits will be paid to an Employee or if applicable his or her
Beneficiary upon the following terms:
(a) If an Employee's employment with the Company is terminated
without Cause on or after the occurrence of a Change in Control
(irrespective of whether such termination is initiated by an Employee
or the Company and without regard to the reason therefor), the then
present value of the Employee's Retirement Benefit shall be paid to the
Employee in a single sum distribution within 30 days after the
Employee's termination of employment.
(b) If Employee's employment with the Company is terminated
without Cause prior to the occurrence of a Change in Control
(irrespective of whether such termination is initiated by Employee or
the Company and without regard to the reason therefor), Employee shall
become fully vested in his or her Retirement Benefit, which Retirement
Benefit shall be paid in annual installments over a period of 10 years,
commencing on the first anniversary of such termination. If a Change in
Control occurs while Employee is entitled to receive his Retirement
Benefit, the then present value of Employee's remaining
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Retirement Benefit shall be paid to Employee in a single sum
distribution within 30 days after such Change in Control.
(c) For purposes of this Plan, whenever the Company is
required to calculate the present value of any benefit to be paid in a
single sum hereunder, the Company shall calculate the present value of
such benefit using a discount rate equal to the prime rate reported by
the Company's principal bank lender on the date on which such payment
became payable (i.e., the date of termination of Employee's employment
with the Company or the occurrence of a Change in Control), but in no
event shall such discount rate exceed 8%.
(d) The Administrator may make payments from the Plan before
they would otherwise be due if, based on a change in the federal or
applicable state tax or revenue laws, a published ruling or similar
announcement issued by the Internal Revenue Service, a regulation
issued by the Secretary of the Treasury, a decision by a court or
competent jurisdiction involving an Employee or a Beneficiary, or a
closing agreement made under Code section 7121 that is approved by the
Internal Revenue Service and involves an Employee, the Administrator
determines that an Employee has or will recognize income for federal or
state income tax purposes with respect to amounts that are or will be
payable under the Plan before they otherwise would be paid. The amount
of any payments made from the Plan pursuant to this Section 4.5 shall
not exceed the lesser of (i) the amount in the trust properly allocable
to the Employee or (ii) the amount of taxable income with respect to
which the tax liability is assessed or determined.
4.6 Financing the Plan. All benefits under this Plan shall be paid or
provided directly by the Company. Such benefits shall be general obligations of
the Company which shall not require the segregation of any funds or property
therefor. Notwithstanding the foregoing, in the discretion of the Company, the
Company's obligations hereunder may be satisfied from a grantor trust
established by the Company or from an insurance contract, annuity or similar
funding vehicle owned by the Company. The assets of any such trust, insurance
contract, or other funding vehicle shall continue for all purposes to be a part
of the general funds of the Company, shall be considered solely a means to
assist the Company to meet its contractual obligations under this Plan and shall
not create a funded account or security interest for the benefit of any Employee
under this Plan. All such assets shall be subject to the claims of the general
creditors of the Company in the event the Company is Insolvent. To the extent
that any person acquires a right to receive a payment from the Company under the
Plan, such right shall be no greater than the right of any unsecured general
creditor of the Company.
4.7 Death of Employee. In the event of an Employee's death, the Company
shall make any payments called for hereunder to his or her Beneficiary in the
manner described in Section 4.2 or 4.3, as applicable, following his or her
death. Any payment made by the Company in good faith shall fully discharge the
Company from its obligations with respect to such payment, and the Company shall
have no further obligation to see to the application of any money so paid.
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4.8 Claims Procedure. An Employee or Beneficiary may make a claim for
specific benefits under the Plan by filing a written request with the Company.
If a claim is wholly or partially denied, notice of the decision shall be
furnished to the claimant within 60 days after receipt of the claim by the
Company, unless special circumstances require an extension of time for
processing the claim, in which case a decision shall be rendered as soon as
possible, but in no event later than 120 days after receipt of the claim.
Written notice of the extension shall be furnished to the claimant prior to the
termination of the initial 60-day period, and shall indicate the circumstances
requiring the extension and the date by which the Company expects to render its
decision. The notice of the decision shall contain the specific reason or
reasons for the denial of the claim, specific references to pertinent Plan
provisions on which the denial is based, a description of any additional
material or information necessary for the claimant to perfect the claim, an
explanation of why such additional material or information is necessary and an
explanation of the Plan's claims review procedure. If notice of the denial is
not furnished in accordance with the above procedure, the claim shall be deemed
denied and the claimant shall be permitted to proceed with the review procedure.
A claimant or his duly authorized representative may appeal the denial of a
claim by making a written application to the Company requesting a review. The
claimant or his duly authorized representative may, in connection with the
appeal, review pertinent documents and submit issues and comments to the Company
in writing. The request for a review of a denied claim must be made to the
Company within 60 days after receipt by the claimant of written notification of
denial of a claim. A decision by the Company shall be made no later than 60 days
after its receipt of a request for a review, unless special circumstances
require an extension of time for processing the request, in which case a
decision shall be rendered as soon as possible, but in no event later than 120
days after receipt of the request for review. If such an extension of time for
review is required, written notice of the extension shall be furnished to the
claimant prior to the commencement of the extension. The decision on review
shall be in writing and shall include specific reasons for the decision and
specific references to the pertinent Plan provisions on which the decision is
based. If the decision on review is not furnished within the appropriate time,
the claim shall be deemed denied on review. All interpretations, determinations,
and decisions by the Company in respect of any matter hereunder will be final,
conclusive, and binding upon the Company, Employees, Beneficiaries, and all
other persons claiming any interest in the Plan.
4.9 Arbitration. If an Employee or Beneficiary has completed the claims
procedures set forth in Section 4.8 and decides to pursue his or her claim
further, the Employee or Beneficiary shall comply with the following procedures:
(a) The exclusive remedy or method of resolving all disputes
or questions arising out of or relating to this Agreement shall be
arbitration. Arbitration shall be held in Houston, Texas by three
arbitrators, one to be appointed by the Company, a second to be
appointed by the Employee (or Beneficiary, if applicable), and a third
to be appointed by those two arbitrators. The third arbitrator shall
act as chairman. Any arbitration may be initiated by the Employee (or
Beneficiary) by written notice to the Company specifying the
NCI BUILDING SYSTEMS, INC. SUPPLEMENTAL BENEFIT PLAN
(AMENDED AND RESTATED 12/12/02) Page 7
subject of the requested arbitration and appointing the Employee's (or
Beneficiary's) arbitrator ("Arbitration Notice").
(b) If (i) the Company fails to appoint an arbitrator by
written notice to the Employee (or Beneficiary) within ten days after
the Arbitration Notice is given, or (ii) the two arbitrators appointed
by the parties herein fail to appoint a third arbitrator within ten
days after the date of the appointment of the second arbitrator, then
the American Arbitration Association in Houston, Texas, upon
application of the Employee (or Beneficiary) shall appoint an
arbitrator to fill that position.
(c) The arbitration proceeding shall be conducted in
accordance with the rules of the American Arbitration Association. A
determination or award made or approved by at least two of the
arbitrators shall be the valid and binding action of the arbitrators.
The costs of arbitration (exclusive of the expense of a party in
obtaining and presenting evidence and attending the arbitration and of
the fees and expense of legal counsel to a party, all of which shall be
borne by that party) shall be borne by the Company if the Employee (or
Beneficiary) receives substantially the relief sought by the Employee
(or Beneficiary) in the arbitration, whether by settlement, award, or
judgment; otherwise, the costs shall be borne equally by the parties.
The arbitration determination or award shall be final and conclusive on
the parties, and judgment upon such award may be entered and enforced
in any court of competent jurisdiction.
ARTICLE V
ADMINISTRATION
5.1 Authority of Company. The Administrator may adopt rules and
procedures regarding the operation of the Plan and shall have full power and
authority to interpret, construe and administer the Plan. The Administrator's
interpretation and construction hereof, and actions hereunder, including any
determination of the amount or recipient of any payment to be made under the
Plan, shall be binding and conclusive on all persons and for all purposes. The
Board may request certain of the Company's employees to assist the Administrator
in its administration of the Plan. The Administrator may employ attorneys,
accountants, actuaries and other professional advisors to assist the
Administrator in its administration of the Plan. The Company shall pay the
reasonable fees of any such advisor employed by the Administrator. To the extent
permitted by law, no member of the Board or any employee or officer of the
Company shall be liable to any person for any action taken or omitted in
connection with the interpretation and administration of the Plan unless
attributable to his or her own willful misconduct or lack of good faith.
5.2 Indemnification of Employees of the Company. The Company hereby
agrees to indemnify, jointly and severally, all members of the Board and all
employees of the Company against any and all claims, losses, damages, expenses,
including counsel fees, incurred by them, and any liability, including any
amounts paid in settlement with their approval arising from their action or
failure to act with respect to any matter relating to the Plan, except when the
same is
NCI BUILDING SYSTEMS, INC. SUPPLEMENTAL BENEFIT PLAN
(AMENDED AND RESTATED 12/12/02) Page 8
judicially determined to be attributable to their willful misconduct or lack of
good faith. The indemnification provided by this Section 5.2 shall survive the
termination of the Plan and shall be binding upon the Company's successors and
assigns.
5.3 Cost of Administration. The cost of this Plan and the expenses of
administering the Plan shall be paid by the Company.
ARTICLE VI
AMENDMENT AND TERMINATION
6.1 Amendment. The Company, by action of the Board, shall have the
right to amend this Plan at any time and from time to time, including a
retroactive amendment, by resolution adopted by the Board. Any such amendment
shall become effective upon the date stated therein, except as otherwise
provided in such amendment; provided, however, that no such action shall affect
any benefit adversely to which an Employee would be entitled had his employment
terminated immediately before such amendment was effective.
6.2 Termination of the Plan. The Company has established this Plan with
the bona fide intention and expectation that from year to year it will deem it
advisable to continue it in effect. However, the Board, in its sole discretion,
reserves the right to terminate the Plan in its entirety at any time; provided,
however, that (i) an Employee's benefits hereunder shall not be affected by the
termination where the event giving rise to the benefit (the Employee's
termination of employment, death or disability, or a Change in Control) has
occurred and (ii) no such action shall affect any benefit adversely to which an
Employee would be entitled had his employment terminated immediately before such
termination was effective.
ARTICLE VII
GENERAL PROVISIONS
7.1 Rights Against Company. The Plan shall not be deemed to constitute
a contract between the Company and any Employee or to be a consideration for, or
an inducement for, the employment of any Employees by the Company. Nothing
contained in the Plan shall be deemed to give any Employee the right to be
retained in the service of the Company or to interfere with the right of the
Company to discharge any Employee at any time, without regard to the effect such
discharge may have on any rights under the Plan.
7.2 Payment Due an Incompetent. If the Company shall find that any
person to whom any payment is payable under the Plan is unable to care for his
affairs because of mental or physical illness, accident, or death, or is a
minor, any payment due (unless a prior claim therefor shall have been made by a
duly appointed guardian, committee or other legal representative) may be paid to
the spouse, a child, a parent, a brother or sister or any person deemed by the
Company, in its sole discretion, to have incurred expenses for such person
otherwise entitled to payment, in such manner and proportions as the Company may
determine. Any such payment shall be a
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complete discharge of the liabilities of the Company under this Plan, and the
Company shall have no further obligation to see to the application of any money
so paid.
7.3 Spendthrift Clause. No right, title or interest of any kind in the
Plan shall be transferable or assignable by any Employee or Beneficiary or be
subject to alienation, anticipation, encumbrance, garnishment, attachment,
execution or levy of any kind, whether voluntary or involuntary, nor subject to
the debts, contracts, liabilities, engagements, or torts of the Employee or
Beneficiary. Any attempt to alienate, anticipate, encumber, sell, transfer,
assign, pledge, garnish, attach or otherwise subject to legal or equitable
process or encumber or dispose of any interest in the Plan shall be void.
7.4 Severability. In the event that any provision of this Plan shall be
declared illegal or invalid for any reason, said illegality or invalidity shall
not affect the remaining provisions of this Plan but shall be fully severable
and this Plan shall be construed and enforced as if said illegal or invalid
provision had never been inserted herein.
7.5 Construction. The article and section headings and numbers are
included only for convenience of reference and are not to be taken as limiting
or extending the meaning of any of the terms and provisions of this Plan.
Whenever appropriate, words used in the singular shall include the plural or the
plural may be read as the singular. When used herein, the masculine gender
includes the feminine gender.
7.6 Governing Law. The validity and effect of this Plan, and the rights
and obligations of all persons affected hereby, shall be construed and
determined in accordance with the laws of the State of Texas unless superseded
by federal law.
7.7 Effectiveness. Section 4.5(b) of this Amended and Restated Plan
shall be effective on December 12, 2002. All other terms and provisions hereof
are effective as of February 1, 1996, including amendments adopted thereafter.
EXECUTED this 12th day of December, 2002.
NCI BUILDING SYSTEMS, INC.
By: /s/ A.R. Ginn
-------------------------------------
A.R. Ginn, Chairman of the Board
NCI BUILDING SYSTEMS, INC. SUPPLEMENTAL BENEFIT PLAN
(AMENDED AND RESTATED 12/12/02) Page 10
EXHIBIT "A"
NCI BUILDING SYSTEMS, INC. SUPPLEMENTAL BENEFIT PLAN
<Table>
<Caption>
Employee's Name Benefit Retirement Benefit Preretirement Survivor
----------------------- ------------------ ----------------------
Robert J. Medlock $ 1,000,000 $ 2,500,000
</Table>
THIS EXHIBIT "A" to the NCI Building Systems, Inc. Supplemental Benefit
Plan is dated effective as of February 1, 1996.
NCI BUILDING SYSTEMS, INC.
By: /s/ A.R. Ginn
-------------------------------------
A.R. Ginn, Chairman of the Board
NCI BUILDING SYSTEMS, INC. SUPPLEMENTAL BENEFIT PLAN
(AMENDED AND RESTATED 12/12/02) Page 11