EXHIBIT 10.9
SUPPLEMENTAL BENEFIT AGREEMENT
This Supplemental Benefit Agreement (this "Agreement"), dated December
13, 2002, is by and between NCI Building Systems, Inc. (the "Company"), and A.R.
Xxxx, Jr. ("Employee").
ARTICLE I
PURPOSE
The purpose of this Agreement is to provide retirement and survivor
benefits to or on behalf of a member of senior management or highly compensated
Employee on the terms and conditions set forth herein to reward Employee for
loyal service to the Company and to provide an incentive to remain in the employ
of the Company. The Company intends that this Agreement shall constitute an
unfunded deferred compensation arrangement for a member of a select group of
senior management or highly compensated employee 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 Employee or Beneficiary shall
have the status of an unsecured general creditor of the Company in the event the
Company becomes Insolvent as to this Agreement 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 this Agreement. Benefits
provided under this Agreement are in addition to any other benefit plans or
programs of the Company. The existence of this Agreement does not limit or
otherwise affect 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 this Agreement.
2.2 "Agreement" means this Agreement, as it may be amended from time to
time.
2.3 "Beneficiary" means the Beneficiary designated in writing by
Employee on Exhibit "A" hereto to receive benefits due under this Agreement
after his or her death. If Employee fails to designate a Beneficiary or if the
designated Beneficiary predeceases Employee, Employee's Beneficiary shall be his
or her spouse, if living, and if no such spouse is living, Employee's estate.
2.4 "Board" means the Board of Directors of the Company, or any
committee of the Board or person authorized to act on its behalf.
2.5 "Cause" shall be determined by the Board, in its sole and absolute
discretion, and means the occurrence of any or all of the following:
SUPPLEMENTAL BENEFIT AGREEMENT - A.R. XXXX, JR. Page 1
(a) Employee's conviction for committing an act of fraud,
embezzlement, theft, or other act constituting a felony; or
(b) The willful engaging by Employee in gross misconduct
materially and demonstrably injurious to the Company, as determined by the
Company. However, no act or failure to act, on Employee's part shall be
considered "willful" unless done, or omitted to be done, by Employee not in good
faith and without reasonable belief that his action or omission was in the best
interest of the Company; or
(c) The failure or inability for any reason of Employee to
devote his full business time to the Company's business.
2.6 "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 (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 Employee if Employee is part of a purchasing group that consummates
the Change in Control transaction. Employee shall be deemed "part of a
purchasing group" for purposes of the preceding sentence if Employee is an
equity participant in the purchasing company or group
SUPPLEMENTAL BENEFIT AGREEMENT - A.R. XXXX, JR. Page 2
(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).
2.7 "Disabled" or "Disability" means the physical or mental incapacity
of Employee which, in the opinion of a physician approved by the Company, will
permanently prevent Employee from performing the principal duties of his or her
employment with the Company.
2.8 "Employee" means any person employed by the Company who is included
on the Federal Insurance Contribution Act rolls of the Company.
2.9 "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.
2.10 "Preretirement Survivor Benefit" means with respect to Employee,
the amount designated by the Board and listed on Exhibit "A" to this Agreement
to which Employee's Beneficiary will be entitled in the event Employee dies
prior to terminating employment with the Company. A Preretirement Survivor
Benefit will be payable in accordance with Section 3.3.
2.11 "Normal Retirement Age" means, with respect to Employee, the date
Employee attains age 65.
2.12 "Normal Retirement Date" means, with respect to Employee, the
later of (i) the first day of the month following the date Employee attains
Normal Retirement Age or (ii) the first day of the month following the
termination of Employee's employment with the Company.
2.13 "Year of Participation" means (i) each calendar year during which
Employee performs at least 1,000 hours of service for the Company, and (ii) each
other calendar year, or portion thereof, commencing May 1, 1998, during which
Employee performs at least 1,000 hours of service for the Company.
2.14 "Retirement Benefit" means, with respect to Employee, the amount
designated by the Board on Exhibit "A" to this Agreement to which Employee will
be entitled in the event of Employee's termination of employment, subject to the
vesting provisions of Section 3.4. Employee's Retirement Benefit will be payable
in accordance with Section 3.2.
ARTICLE III
CONTRIBUTIONS AND BENEFITS
3.1 Amount of Benefits. The amount of Retirement Benefit and
Preretirement Survivor Benefit to which Employee shall be entitled under this
Agreement are set forth on Exhibit "A," attached hereto and incorporated by
reference herein. The Company shall establish a separate bookkeeping account for
Employee and such account shall be credited with the amounts awarded to
Employee.
SUPPLEMENTAL BENEFIT AGREEMENT - A.R. XXXX, JR. Page 3
3.2 Retirement Benefits. Except as provided in Section 3.5, the
Retirement Benefit credited to Employee's bookkeeping account pursuant to
Section 3.1, to the extent vested under Section 3.4, shall become payable in the
form described herein to Employee as soon as administratively practicable, but
not later than 30 days, following Employee's Normal Retirement Date, or if
earlier, the date Employee ceases active employment with the Company due to his
Disability. Employee's Retirement Benefit shall be paid on January 15th of each
calendar year in equal annual installments over a period of 10 years if, on each
annual payment date, Employee has not breached or violated any of his or her
covenants set forth in Article V hereof. If Employee dies prior to receiving the
entire Retirement Benefit to which he or she is entitled and has not breached or
violated any of his or her covenants set forth in Article V hereof, Employee's
Beneficiary shall receive the unpaid portion of Employee's Retirement Benefit in
equal annual payments during the remainder of the 10-year period.
Notwithstanding any other provision of this Agreement to the contrary, if
Employee breaches or violates any of his or her covenants set forth in Article V
hereof, Employee immediately shall forfeit his or her rights to any remaining
Retirement Benefit under this Agreement.
3.3 Preretirement Survivor Benefit. If Employee dies while employed by
the Company, Employee shall not be entitled to a Retirement Benefit and
Employee's Beneficiary shall receive the Preretirement Survivor Benefit credited
to Employee's bookkeeping account under Section 3.1 payable in equal annual
installments over a period of 10 years. Payment of the Beneficiary's
Preretirement Survivor Benefit shall commence on the January 15th next following
the date of death. If 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, determined in accordance with Section
3.5(c) hereof, shall be paid to Beneficiary's estate in a single sum
distribution within 30 days after the date of Beneficiary's death.
3.4 Vesting.
(a) If, at the time of execution of this Agreement, Employee
has ten or more years until he reaches Normal Retirement Age, 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 Employee. If, at the time of execution of this
Agreement, Employee has five or fewer years until he reaches Normal Retirement
Age, Employee's right to a Retirement Benefit shall vest over a period of 5
years, at the rate of 20% for each Year of Participation by Employee. In
addition, Employee shall become fully vested in his or her Retirement Benefit
upon the occurrence of his or her death, Disability or a Change in Control.
Notwithstanding any other provision of this Agreement to the contrary, if
Employee's employment with the Company is terminated for Cause, Employee shall
forfeit his or her rights to any benefits under this Agreement.
(b) Employee acknowledges and agrees that during the vesting
period described in Section 3.4(a) above, the Company may, from time to time, be
required by applicable law to withhold amounts for certain federal employment
taxes related to or incurred in connection with the amount of the benefit vested
during each Year of Participation (the "Employment Taxes"). Employee may elect,
in his sole discretion, to pay such Employment Taxes by either (i) delivering to
the Company a check, cash or other readily available funds in an amount equal to
the Employment Taxes no later than 30 days prior to the end of the applicable
Year of Participation, or
SUPPLEMENTAL BENEFIT AGREEMENT - A.R. XXXX, JR. Page 4
(ii) executing such documentation as the Company may require authorizing the
Company to, beginning July 1 of the applicable Year of Participation, withhold
from the Employee's compensation, in substantially equal amounts per pay period,
the Employment Taxes. Notwithstanding the foregoing, if Employee terminates
service with the Company subsequent to receiving a Year of Participation for
vesting purposes under the Plan but prior to paying the entire amount of
Employment Taxes applicable to such Year of Participation, Employee agrees, in
the sole discretion of the Company, to either (i) execute such documentation as
the Company may require authorizing the Company to withhold from the Employee's
final paycheck the balance of the Employment Taxes due or (ii) deliver to the
Company a check, cash or other readily available funds in an amount equal to the
Employment Taxes no later than the date of termination of Employee's employment
with the Company.
3.5 Timing of Certain Payments. Notwithstanding the provisions of
Section 3.2, benefits will be paid to Employee or if applicable his or her
Beneficiary upon the following terms:
(a) If 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 Employee or the Company and without
regard to the reason therefor), the present value of Employee's Retirement
Benefit, determined in accordance with Section 3.5(c) hereof, shall be paid to
Employee in a single sum distribution within 30 days after 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 on January 15th of
each calendar year, commencing on the January 15th next following 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
Retirement Benefit, determined in accordance with Section 3.5(c) hereof, shall
be paid to Employee in a single sum distribution within 30 days after such
Change in Control.
(c) For purposes of this Agreement, whenever the Company is
required to calculate the present value of any benefit to be paid to Employee or
Beneficiary 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 this Agreement
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 Employee
or a Beneficiary, or a closing agreement made under Code section 7121 that is
approved by the Internal Revenue Service and involves Employee, the
Administrator determines that Employee has or will recognize income for federal
or state income tax purposes with respect to
SUPPLEMENTAL BENEFIT AGREEMENT - A.R. XXXX, JR. Page 5
amounts that are or will be payable under this Agreement before they otherwise
would be paid. The amount of any payments made from this Agreement pursuant to
this Section 3.5 shall not exceed the lesser of (i) the amount in the trust
properly allocable to Employee or (ii) the amount of taxable income with respect
to which the tax liability is assessed or determined.
3.6 Financing this Agreement. All benefits under this Agreement 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
Agreement and shall not create a funded account or security interest for the
benefit of Employee under this Agreement. 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 this Agreement, such right shall be no greater than the
right of any unsecured general creditor of the Company.
3.7 Death of Employee. In the event of Employee's death, the Company
shall make any payments called for hereunder to his or her Beneficiary in the
manner described in Section 3.2 or 3.3, 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.
3.8 Claims Procedure. Employee or Beneficiary may make a claim for
specific benefits under this Agreement 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 provisions
of this Agreement 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 claims review procedure in this Agreement. 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,
SUPPLEMENTAL BENEFIT AGREEMENT - A.R. XXXX, JR. Page 6
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 Agreement 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,
Employee, Beneficiaries, and all other persons claiming any interest in this
Agreement.
3.9 Arbitration. If Employee or Beneficiary has completed the claims
procedures set forth in Section 3.8 and decides to pursue his or her claim
further, 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 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 Employee
(or Beneficiary) by written notice to the Company specifying the subject of the
requested arbitration and appointing Employee's (or Beneficiary's) arbitrator
("Arbitration Notice").
(b) If (i) the Company fails to appoint an arbitrator by
written notice to 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 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 Employee (or Beneficiary) receives substantially the relief sought by
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 IV
ADMINISTRATION
4.1 Authority of Company. The Administrator may adopt rules and
procedures regarding the operation of this Agreement and shall have full power
and authority to interpret,
SUPPLEMENTAL BENEFIT AGREEMENT - A.R. XXXX, JR. Page 7
construe and administer this Agreement. 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 this Agreement, shall be
binding and conclusive on all persons and for all purposes. The Board may
request that certain employees assist the Administrator in its administration of
this Agreement. The Administrator may employ attorneys, accountants, actuaries
and other professional advisors to assist the Administrator in its
administration of this Agreement. 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 this Agreement unless attributable to his
or her own willful misconduct or lack of good faith.
4.2 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 this Agreement, except
when the same is judicially determined to be attributable to their willful
misconduct or lack of good faith. The indemnification provided by this Section
4.2 shall survive the termination of this Agreement and shall be binding upon
the Company's successors and assigns.
4.3 Cost of Administration. The cost of this Agreement and the expenses
of administering this Agreement shall be paid by the Company.
ARTICLE V
NON-COMPETITION AND NON-SOLICITATION
In consideration for participation in this Agreement, Employee hereby
covenants and agrees as follows:
(a) At all times during the period in which he receives
Retirement Benefits pursuant to Section 3.2 hereof, Employee 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, in any
state of the United States of America, 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 period of employment of
Employee by the Company. Ownership by Employee 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.
SUPPLEMENTAL BENEFIT AGREEMENT - A.R. XXXX, JR. Page 8
(b) At all times during the period in which he receives
Retirement Benefits pursuant to Section 3.2 hereof, Employee 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 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.
ARTICLE VI
AMENDMENT AND TERMINATION
6.1 Amendment. The Company, by action of the Board, shall have the
right to amend this Agreement 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 Employee would be entitled had his employment
terminated immediately before such amendment was effective.
6.2 Termination. The Company has entered into this Agreement 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 this Agreement in its entirety at any time;
provided, however, that (i) Employee's benefits hereunder shall not be affected
by the termination where the event giving rise to the benefit (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
Employee would be entitled had his employment terminated immediately before such
termination was effective.
ARTICLE VII
GENERAL PROVISIONS
7.1 Rights Against the Company. This Agreement shall not be deemed to
constitute an employment contract between the Company and Employee or to be a
consideration for, or an inducement for, the employment of Employees by the
Company. Nothing contained in this Agreement shall be deemed to give Employee
the right to be retained in the service of the Company or to interfere with the
right of the Company to discharge Employee at any time, without regard to the
effect such discharge may have on any rights under this Agreement.
7.2 Payment Due an Incompetent. If the Company shall find that any
person to whom any payment is payable under this Agreement 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
SUPPLEMENTAL BENEFIT AGREEMENT - A.R. XXXX, JR. Page 9
complete discharge of the liabilities of the Company under this Agreement, 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 this
Agreement shall be transferable or assignable by 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 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 this Agreement shall be void.
7.4 Severability. In the event that any provision of this Agreement
shall be declared illegal or invalid for any reason, said illegality or
invalidity shall not affect the remaining provisions of this Agreement but shall
be fully severable and this Agreement 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 Agreement.
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 Agreement, 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
EMPLOYEE: NCI BUILDING SYSTEMS, INC.
/s/ A.R. Xxxx, Jr. By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------- -------------------------------------
A. R. Xxxx, Jr. Xxxxxx X. Xxxxxxx, Executive Vice
President and Chief Financial Officer
SUPPLEMENTAL BENEFIT AGREEMENT - A.R. XXXX, JR. Page 10
EXHIBIT "A"
SUPPLEMENTAL BENEFIT AGREEMENT
Retirement Benefit Preretirement Survivor Benefit
------------------ ------------------------------
$200,000 per year $200,000 per year
SUPPLEMENTAL BENEFIT AGREEMENT - A.R. XXXX, JR. Page 11
