(Mark One) | ||
þ
|
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934 |
|
For the fiscal year ended November 1, 2009 | ||
or
|
||
o
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934 |
|
For the transition period from to . |
Delaware
|
76-0127701 | |
(State or other jurisdiction of
incorporation or organization) |
(I.R.S. Employer
Identification No.) |
|
10943 North Sam Houston Parkway West
|
77064 | |
(Address of principal executive
offices)
|
(zip code) |
Title of Each Class
|
Name of Each Exchange on Which Registered
|
|
Common Stock, $0.01 par value
|
New York Stock Exchange |
Large accelerated filer o | Accelerated filer þ | Non-accelerated filer o | Smaller reporting company o |
i
| industry cyclicality and seasonality and adverse weather conditions; | |
| general economic conditions affecting the construction industry; | |
| the current financial crisis and U.S. recession; | |
| current challenges in the credit market; | |
| ability to service or refinance our debt and obtain future financing; | |
| the Companys ability to comply with the financial tests and covenants in its existing and future debt obligations; | |
| operational limitations in connection with our debt; | |
| the current economic and credit conditions are severely affecting its operations; | |
| recognition of asset impairment charges; | |
| raw material pricing and supply; | |
| retention and replacement of key personnel; | |
| enforcement and obsolescence of intellectual property rights; | |
| fluctuations in customer demand and other patterns; | |
| environmental cleanups, investigations, claims and liabilities; | |
| competitive activity and pricing pressure; | |
| the volatility of the Companys stock price; | |
| the ability to make strategic acquisitions accretive to earnings; | |
| the substantial rights, seniority and potentially dilutive effect on our common stockholders of the convertible preferred stock issued to investment funds affiliated with Clayton, Dubilier & Rice, LLC; | |
| increases in energy costs; | |
| breaches of our information security system security measures; | |
| hazards that may cause personal injury or property damage, thereby subjecting us to liabilities and possible losses, which may not be covered by insurance; |
ii
| changes in laws or regulations; | |
| costs and other effects of legal and administrative proceedings, settlements, investigations, claims and other matters; and | |
| other risks detailed under the caption Risk Factors in Item 1A of this report. |
iii
25
Item 1.
Business.
1
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we consummated an exchange offer (the Exchange
Offer) to acquire all of our existing $180 million
aggregate principal amount 2.125% Convertible Senior
Subordinated Notes due 2024 in exchange for a combination of
$90.0 million in cash and 70.2 million shares of
common stock;
we refinanced our existing term loan by repaying approximately
$143 million in principal amount of the existing
$293 million in principal amount of outstanding term loans
and amending the terms and extending the maturity of the
remaining $150 million balance (the Amended Credit
Agreement); and
2
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we entered into an asset-based revolving credit facility with a
maximum available amount of up to $125 million (the
ABL Facility). See Item 7.
Managements Discussion and Analysis of Financial Condition
and Results of Operations Liquidity and Capital
Resources.
3
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2009
%
2008
%
2007
%
$
169,897
18
$
305,657
17
$
272,543
16
458,734
47
715,255
41
663,331
41
541,609
56
1,110,534
63
1,021,544
63
(202,317
)
(21
)
(367,287
)
(21
)
(332,350
)
(20
)
$
967,923
100
$
1,764,159
100
$
1,625,068
100
$
(99,631
)
$
29,381
$
25,136
(129,975
)
82,094
49,609
(389,309
)
107,851
113,265
(64,583
)
(64,616
)
(56,276
)
$
(683,498
)
$
154,710
$
131,734
(117,990
)
(24,330
)
(26,909
)
$
(801,488
)
$
130,380
$
104,825
$
57,208
9
$
196,615
14
159,690
26
371,464
27
241,260
39
716,671
52
155,690
26
95,951
7
$
613,848
100
$
1,380,701
100
4
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5
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6
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7
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8
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9
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Corporate-Wide Initiatives
Metal Coil Coating Segment
Components Segment
Buildings Segment
10
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11
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quality;
service;
on-time delivery;
ability to provide added value in the design and engineering of
buildings;
price; and
speed of construction.
12
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restricting the way we can handle or dispose of our waste;
requiring investigative or remedial action to mitigate or
address certain environmental conditions that may have been
caused by our operations or attributable to former
operators; and
enjoining the operations of facilities deemed in non-compliance
with environmental laws and regulations or permits issued
pursuant to such laws or regulations.
13
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14
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15
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Item 1A.
Risk
Factors.
Our ability to obtain additional financing, if necessary, for
working capital, capital expenditures, acquisitions or other
purposes may be impaired or additional financing may not be
available on favorable terms;
We must use a portion of our cash flow to pay the principal and
interest on our debt. These payments reduce the funds that would
otherwise be available for our operations and future business
opportunities;
16
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A substantial decrease in our net operating cash flows could
make it difficult for us to meet our debt service requirements
and force us to modify our operations; and
We may be more vulnerable to a downturn in our business or the
economy generally.
incurring additional indebtedness;
making restricted payments, including dividends or other
distributions;
incurring liens;
making investments, including joint venture investments;
selling assets;
repurchasing our debt and our capital stock; and
merging or consolidating with or into other companies or sell
substantially all our assets.
17
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18
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19
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quality;
service;
on-time delivery;
ability to provide added value in the design and engineering of
buildings;
price;
speed of construction in buildings and components; and
personal relationships with customers.
variations in quarterly operating results;
deviations in our earnings from publicly disclosed
forward-looking guidance;
declines in our revenues;
changes in earnings estimates by analysts;
our announcements of significant contracts, acquisitions,
strategic partnerships or joint ventures;
20
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general conditions in the metal components and engineered
building systems industries;
uncertainty about current global economic conditions;
fluctuations in stock market price and volume; and
other general economic conditions.
the risk of incorrect assumptions or estimates regarding the
future results of the acquired business or expected cost
reductions or other synergies expected to be realized as a
result of acquiring the business;
diversion of managements attention from existing
operations;
unexpected losses of key employees, customers and suppliers of
the acquired business;
integrating the financial, technological and management
standards, processes, procedures and controls of the acquired
business with those of our existing operations; and
increasing the scope, geographic diversity and complexity of our
operations.
21
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6.00% per annum, if the default is the result of a failure by us
after June 30, 2011 to reserve and keep available for
issuance a number of shares of common stock equal to 110% of the
number of shares of common stock issuable upon conversion of all
outstanding shares of Convertible Preferred Stock; or
3.00% per annum for any other specified default.
22
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23
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Item 1B.
Unresolved
Staff Comments.
Item 2.
Properties.
24
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Square
Owned or
Products
Feet
Leased
Doors and related metal components
37,975
Leased
Metal components(1)
70,956
Owned
Engineered building systems(2)
219,870
Owned
Metal coil coating
111,611
Owned
Metal components(1)
78,809
Owned
Metal components(3)
125,081
Owned
Doors and related metal components
83,775
Owned
Metal coil coating
194,836
Leased
Metal components(1)
71,734
Owned
Engineered building systems(4)
232,368
Owned
Metal components(5)
74,771
Owned
Metal components(5)
26,943
Owned
Metal components(9)
171,790
Owned
Metal coil coating
354,350
Owned
Metal components(1)
132,752
Owned
Metal components(5)
55,460
Owned
Metal components(5)
83,500
Owned
Engineered building systems(4)
218,430
Owned
Engineered building systems(4)
228,113
Leased
Engineered building systems(6)
140,504
Owned
Metal coil coating
65,895
Owned
Metal components(1)
68,627
Owned
Metal components(3)
335,756
Owned
Metal coil coating
36,509
Owned
Engineered building systems(4)
497,856
Owned
Engineered building systems(7)
117,208
Owned
Doors and related metal components
42,500
Owned
Metal components(1)
95,361
Owned
Metal components(5)
42,400
Owned
Metal components(8)
72,504
Leased
Metal components(3)
93,508
Owned
Engineered building systems(4)
157,000
Owned
Engineered building systems(6)
246,075
Owned
(1)
Secondary structures and metal roof and wall systems.
(2)
End walls, secondary structures and metal roof and wall systems
for components and engineered building systems.
(3)
Full components product range.
(4)
Primary structures, secondary structures and metal roof and wall
systems for engineered building systems.
(5)
Metal roof and wall systems.
(6)
Primary structures for engineered building systems.
(7)
Structural steel.
(8)
Insulated panel systems.
(9)
Closed during fiscal 2008 and 2009 to be retooled to manufacture
insulated panel systems.
Table of Contents
Item 3.
Legal
Proceedings.
Item 4.
Submission
of Matters to a Vote of Security Holders.
26
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106
113
114
Item 5.
Market
for Registrants Common Equity, Related Stockholder Matters
and Issuer Purchases of Equity Securities.
Fiscal Year 2009
High
Low
$
19.35
$
11.56
$
13.26
$
1.76
$
7.50
$
1.81
$
5.12
$
1.60
Fiscal Year 2008
High
Low
$
39.90
$
23.06
$
34.13
$
19.99
$
39.81
$
23.20
$
40.95
$
14.25
(d) Maximum
Number (or
(c) Total Number
Approximate
of Shares
Dollar Value) of
Purchased as Part
Shares that May
(a) Total Number
(b) Average Price
of Publicly
Yet be Purchased
of Shares
Paid per Share
Announced Plans
Under the Plans or
Purchased(1)
(or Unit)
or Programs
Programs(1)
82
3.72
646,092
646,092
145,530
2.51
646,092
145,612
2.51
646,092
(1)
Our board of directors has authorized a stock repurchase
program. Subject to applicable federal securities law, such
purchases occur at times and in amounts that we deem
appropriate. Shares repurchased are used primarily for later
re-issuance in connection with our equity incentive and 401(k)
profit sharing plans. On February 28, 2007, we publicly
announced that our board of directors authorized the repurchase
of an additional 1.0 million shares of our common stock.
There is no time limit on the duration of the program. Although
we did not repurchase any shares of our common stock during
fiscal 2009, we did withhold shares of restricted stock to
satisfy tax withholding obligations arising in connection with
the vesting of awards of restricted stock. At November 1,
2009, there were 0.6 million shares remaining authorized
for repurchase under the program.
27
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28
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Item 6.
Selected
Financial Data.
2009
2008(2)
2007
2006
2005
In thousands, except per share data
$
967,923
$
1,764,159
$
1,625,068
$
1,571,183
$
1,130,066
(746,964
)(1)
78,881
(3)
63,729
73,796
55,951
(758,677
)
(34.06
)
4.08
3.25
3.70
2.73
(34.06
)(1)
4.05
(3)
3.06
3.45
2.68
95,370
40,194
137,625
121,514
118,267
613,848
1,380,701
1,343,058
1,299,701
990,219
150,249
474,400
497,037
497,984
373,000
222,815
$
49,665
$
623,829
$
539,696
$
498,409
$
444,144
22,013
(4)
19,486
20,793
21,395
20,857
(1)
Includes goodwill and other intangible asset impairment of
$622.6 million ($600.0 million after tax), debt
extinguishment and refinancing costs of $100.3 million
($94.1 million after tax), lower of cost or market charge
of $40.0 million ($25.8 million after tax), change in
control charges of $11.2 million ($6.9 million after
tax), restructuring charges of $9.1 million
($5.6 million after tax), asset impairments of
$6.3 million ($3.9 million after tax), interest rate
swap of $3.1 million ($1.9 million after tax) and
environmental and other contingencies of $1.1 million
($0.7 million after tax) in fiscal 2009.
(2)
Fiscal 2008 includes 53 weeks of operating activity.
(3)
Includes executive retirement costs of $2.9 million
($1.8 million after tax), lower of cost or market charge of
$2.7 million ($1.6 million after tax), restructuring
charges of $1.1 million ($0.7 million after tax) and
asset impairments of $0.2 million ($0.12 million after
tax) in fiscal 2008.
(4)
In October 2009, we consummated an exchange offer to acquire all
our 2.125% Convertible Senior Subordinated Notes due 2024
in an exchange for cash and 70.2 million shares of our
common stock.
Item 7.
Managements
Discussion and Analysis of Financial Condition and Results of
Operations.
29
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we refinance our existing credit agreement as in effect prior to
such date (the Credit Agreement), which was due to
mature on June 18, 2010, by repaying approximately
$143 million in principal amount of the approximately
$293 million in principal amount then outstanding and
amending the terms and extending the maturity of the remaining
$150 million balance of the term loans. The Amended Credit
Agreement requires quarterly principal payments of 0.25% of the
principal amount of the term loan then outstanding as of the
last day of each quarter and a final payment of approximately
$131.1 million in principal at maturity on April 20,
2014.
we entered into the ABL Facility, an asset-based revolving
credit facility agreement with a maximum available amount of up
to $125 million which has an additional $50 million
incremental credit facility. The ABL Facility replaces the
revolving credit facility, and letters of credit, subfacility
under our Credit Agreement, which expired on June 18, 2009.
The ABL Facility has a maturity of April 20, 2014 and
30
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includes borrowing capacity of up to $25 million for
letters of credit and up to $10 million for swingline
borrowings.
31
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32
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33
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Fiscal year ended
November 1,
November 2,
October 28,
2009
2008
2007
100.0
%
100.0
%
100.0
%
77.8
74.9
75.2
4.1
0.2
0.7
17.4
24.9
24.8
21.6
16.1
16.7
64.3
0.9
0.1
1.2
(70.6
)
8.8
8.1
0.0
0.1
0.0
(2.1
)
(1.3
)
(1.8
)
(10.3
)
0.2
(0.1
)
0.1
(82.8
)
7.4
6.4
(5.6
)
2.9
2.5
(77.2
)%
4.5
%
3.9
%
34
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2009
%
2008
%
2007
%
$
169,897
18
$
305,657
17
$
272,543
16
458,734
47
715,255
41
663,331
41
541,609
56
1,110,534
63
1,021,544
63
(202,317
)
(21
)
(367,287
)
(21
)
(332,350
)
(20
)
$
967,923
100
$
1,764,159
100
$
1,625,068
100
$
(99,631
)
$
29,381
$
25,136
(129,975
)
82,094
49,609
(389,309
)
107,851
113,265
(64,583
)
(64,616
)
(56,276
)
$
(683,498
)
$
154,710
$
131,734
(117,990
)
(24,330
)
(26,909
)
$
(801,488
)
$
130,380
$
104,825
$
57,208
9
$
196,615
14
159,690
26
371,464
27
241,260
39
716,671
52
155,690
26
95,951
7
$
613,848
100
$
1,380,701
100
35
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36
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37
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38
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39
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40
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we refinanced our existing credit agreement as in effect prior
to such date (the Credit Agreement), which was due
to mature on June 18, 2010, by repaying approximately
$143 million in principal amount of the approximately
$293 million in principal amount then outstanding and
amending the terms and extending the maturity of the remaining
$150 million balance of the term loans. The Amended Credit
Agreement, our amended term loan, requires quarterly principal
payments of 0.25% of the principal amount of the term loan then
outstanding as of the last day of each quarter and a final
payment of approximately $131.1 million in principal at
maturity on April 20, 2014.
we entered into the ABL Facility, an asset-based revolving
credit facility agreement, with a maximum available amount of up
to $125 million which has an additional $50 million
incremental credit facility. The ABL Facility replaces the
revolving credit facility and letters of credit subfacility
under our Credit Agreement, which expired on June 18, 2009.
The ABL Facility has a maturity of April 20, 2014 and
includes borrowing capacity of up to $25 million for
letters of credit and up to $10 million for swingline
borrowings.
we completed the Exchange Offer to acquire the $180 million
of our then-outstanding Convertible Notes for an aggregate
combination of $90.0 million in cash and 70.2 million
shares of common stock.
41
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the net cash proceeds of (1) certain asset sales,
(2) certain debt offerings and (3) certain insurance
recovery and condemnation events;
50% of annual excess cash flow (as defined in the Amended Credit
Agreement) for any fiscal year ending on or after
October 31, 2010, unless a specified leverage ratio target
is met; and
the greater of $10.0 million and 50% of certain 2009 tax
refunds (as defined in the Amended Credit Agreement) received by
the Company.
42
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43
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44
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45
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Payments due by period
Less than
4-5
More than
Total
1 year
1-3 years
years
5 years
$
150,249
$
14,164
$
2,698
$
133,387
$
69,661
17,424
29,919
22,318
202,590
45,020
45,020
112,550
16,423
7,162
6,745
1,042
1,474
14,464
7,703
6,761
10,730
2,860
3,170
4,700
4,864
4,107
300
300
157
$
468,981
$
50,560
$
94,303
$
205,237
$
118,881
46
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(1)
As of November 1, 2009, the aggregate principal amount and
accrued and unpaid interest thereon of the outstanding
Convertible Notes was approximately $59,000. As of
December 9, 2009 until December 28, 2009, the
Convertible Notes may be converted at the option of the holder.
We are required to convert the principal amount of a
holders Convertible Notes, or any portion of such
principal amount that is a multiple of $1,000, into cash and
fully paid shares of common stock of the Company in accordance
with the terms, procedures and conditions outlined in the
indenture pursuant to which the Convertible Notes were issued.
As of November 1, 2009, the conversion rate is
24.9121 shares of common stock per $1,000 in principal
amount of the Convertible Notes. On December 29, 2009, we
have an obligation to redeem all outstanding Convertible Notes.
(2)
Interest payments were calculated based on the stated interest
rate for fixed rate obligations and rates in effect at
November 1, 2009 for variable rate obligations and the
interest rate swap payments.
(3)
We have assumed that the dividends required by our Convertible
Preferred Stock will be paid in-kind during fiscal 2010 because
we are limited in our ability to pay cash dividends until
October 2010 under the Amended Credit Agreement and the ABL
Facility, except for certain specified purposes. For simplicity,
we have assumed cash dividends of 8% will be paid subsequent to
fiscal 2010 until the Convertible Preferred Stock can be either
called by us or put to us by the CD&R funds on the tenth
anniversary of the Closing Date. However, if at any time after
the 30 month anniversary of the Closing Date, the trading
price of the common stock of the Company exceeds 200% of the
initial conversion price (as defined in the Certificate of
Designation) for each of 20 consecutive trading days, the
dividend rate (excluding any applicable adjustments as a result
of a default) will become 0.00%.
(4)
Includes various agreements for steel delivery obligations, gas
contracts, transportation services and telephone service
obligations. In general, purchase orders issued in the normal
course of business can be terminated in whole or part for any
reason without liability until the product is received. Steel
consignment inventory from our suppliers does not constitute a
purchase commitment and are not included in our table of
contractual obligations. However, it is our current practice to
purchase all consignment inventory that remains in consignment
after an agreed term. Consignment inventory at November 1,
2009 is estimated to be approximately $22 million.
(5)
Amounts represent our estimate of the minimum funding
requirements as determined by government regulations. Amounts
are subject to change based on numerous assumptions, including
the performance of the assets in the plan and bond rates.
(6)
Includes contractual payments and projected supplemental
retirement benefits to or on behalf of former executives.
47
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48
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49
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50
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51
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52
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53
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Item 7A.
Quantitative
and Qualitative Disclosures About Market Risk.
54
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55
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Fair
Scheduled Maturity Date(a)
Value
2010
2011
2012
2013
2014
Thereafter
Total
11/1/09
(In millions, except interest rate percentages)
$
0.2
$
$
0.2
$
0.2
2.1
%
2.1
%
$
13.9
1.4
1.3
1.3
132.1
$
150.0
$
138.0
(c)
8.0
%
8.0
%
8.0
%
8.0
%
8.0
%
8.0
%
(a)
Expected maturity date amounts are based on the face value of
debt and do not reflect fair market value of the debt.
(b)
Fixed rate debt excludes the Swap Agreement.
(c)
Based on recent trading activities of comparable market
instruments.
56
Item 8.
Financial
Statements and Supplementary Data.
58
59
60
61
62
63
64
65
66
57
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58
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59
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60
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Fiscal Year Ended
November 1,
November 2,
October 28,
2009
2008
2007
(In thousands, except per share data)
$
967,923
$
1,764,159
$
1,625,068
752,793
1,321,917
1,221,463
39,986
2,739
6,291
157
168,853
439,346
403,605
209,567
283,577
271,871
622,564
9,052
1,059
11,168
(683,498
)
154,710
131,734
393
1,085
725
(20,410
)
(23,535
)
(28,829
)
(100,260
)
2,287
(1,880
)
1,195
(801,488
)
130,380
104,825
(54,524
)
51,499
41,096
$
(746,964
)
$
78,881
$
63,729
1,187
10,526
$
(758,677
)
$
78,881
$
63,729
$
(34.06
)
$
4.08
$
3.25
$
(34.06
)
$
4.05
$
3.06
22,013
19,332
19,582
22,013
19,486
20,793
61
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62
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Fiscal Year Ended
November 1,
November 2,
October 28,
2009
2008
2007
(In thousands)
$
(746,964
)
$
78,881
$
63,729
32,776
35,588
35,535
4,835
9,504
8,610
9,066
95,418
(928
)
(1,264
)
(814
)
696
39,986
2,739
1,221
3,468
330
3,072
(24,452
)
266
(7,090
)
6,291
622,564
78,895
(5,008
)
9,753
79,362
(57,025
)
28,020
(32,332
)
(1,423
)
(9,724
)
(957
)
(30,754
)
(23,738
)
12,978
(41,599
)
7,445
(10,815
)
336
(938
)
(2,350
)
95,370
40,194
137,625
(20,086
)
(21,657
)
(24,803
)
(42,041
)
2,589
4,238
6,696
2,101
(34
)
(226
)
(932
)
(19,102
)
(18,690
)
(56,363
)
12
698
3,923
(12,979
)
215
1,596
90,500
(90,500
)
(920
)
(22,637
)
(947
)
(1,693
)
(3,892
)
250,000
(89,971
)
(143,290
)
(54,659
)
(914
)
(75
)
(451
)
(2,226
)
(36,122
)
(53,951
)
(28,756
)
(31,625
)
(99
)
399
379
22,218
(6,853
)
50,016
68,201
75,054
25,038
$
90,419
$
68,201
$
75,054
63
Table of Contents
Accumulated
Additional
Retained
Other
Common Stock
Paid-In
Earnings
Comprehensive
Treasury Stock
Stockholders
Shares
Amount
Capital
(Deficit)
(Loss) Income
Shares
Amount
Equity
(In thousands, except share data)
21,793,914
$
218
$
175,121
$
403,125
$
(1,804
)
(1,816,516
)
$
(78,251
)
$
498,409
(4,410
)
(4,410
)
(773,888
)
(36,122
)
(36,122
)
109,233
1
3,922
3,923
1,596
1,596
190,641
2
(2
)
142
142
8,610
8,610
35,448
1,800
1,800
2,019
2,019
63,729
63,729
22,129,236
$
221
$
191,047
$
462,444
$
357
(2,590,404
)
$
(114,373
)
$
539,696
(79,282
)
(2,226
)
(2,226
)
34,343
698
698
(566
)
(566
)
240,132
3
(3
)
(1,797
)
(1,797
)
9,504
9,504
(361
)
(361
)
78,881
78,881
22,403,711
$
224
$
200,680
$
540,964
$
(1,440
)
(2,669,686
)
$
(116,599
)
$
623,829
(176,918
)
(451
)
(451
)
(2,846,604
)
(29
)
(117,021
)
2,846,604
117,050
825
12
12
(5,073
)
(5,073
)
70,177,085
702
169,725
170,427
(1,186
)
(1,186
)
2,585
2,585
675,130
7
(3
)
4
(7,419
)
(7,419
)
13,901
13,901
(746,964
)
(746,964
)
90,410,147
$
904
$
263,620
$
(206,000
)
$
(8,859
)
$
$
49,665
64
Table of Contents
Fiscal Year Ended
November 1,
November 2,
October 28,
2009
2008
2007
(In thousands)
$
(758,677
)
$
78,881
$
63,729
(198
)
259
244
(9,641
)
(1,628
)
454
(554
)
(428
)
(556
)
2,974
(7,419
)
(1,797
)
142
$
(766,096
)
$
77,084
$
63,871
65
Table of Contents
1.
NATURE OF
BUSINESS AND PRINCIPLES OF CONSOLIDATION
consummated its exchange offer (the Exchange Offer)
to acquire all of the Companys existing 2.125% convertible
notes due 2024 in exchange for a combination of $90 million
in cash and 70.2 million shares of our common stock;
refinanced the Companys existing credit agreement, which
included the partial prepayment of approximately
$143 million in principal amount of the existing
$293 million in principal amount of outstanding term loans
thereunder and a modification of the terms and an amendment and
extension of the maturity of the remaining $150 million
outstanding balance of the term loans (the Amended Credit
Agreement); and
entered into an asset-based revolving credit facility with a
maximum available amount of up to $125 million (the
ABL Facility). Borrowing availability on the
asset-based revolving credit facility is determined by a monthly
borrowing base collateral calculation that is based on specified
percentages of the value of qualified cash, eligible inventory
and eligible accounts receivable, less certain reserves and
subject to certain other adjustments. At November 1, 2009,
our excess availability under the asset-based revolving credit
facility was $70.4 million.
66
Table of Contents
2.
SUMMARY
OF SIGNIFICANT ACCOUNTING POLICIES
67
Table of Contents
November 1,
November 2,
October 28,
2009
2008
2007
$
10,330
$
8,975
$
15,225
1,221
3,468
330
(2,512
)
(2,113
)
(6,580
)
$
9,039
$
10,330
$
8,975
November 1,
November 2,
2009
2008
$
48,081
$
142,614
23,456
49,397
$
71,537
$
192,011
November 1,
November 2,
October 28,
2009
2008
2007
$
1,807
$
4,433
$
3,737
1,409
252
1,710
(1,624
)
(2,878
)
(1,014
)
$
1,592
$
1,807
$
4,433
68
Table of Contents
November 1,
November 2,
2009
2008
$
22,141
$
24,281
165,846
165,495
225,367
229,591
3,326
3,470
77,407
69,592
494,087
492,429
(262,247
)
(241,266
)
$
231,840
$
251,163
10 39 years
3 10 years
5 10 years
3 7 years
69
Table of Contents
70
Table of Contents
71
Table of Contents
72
Table of Contents
3.
CHANGES
IN ACCOUNTING
73
Table of Contents
74
Table of Contents
4.
PLANT
RESTRUCTURING AND ASSET IMPAIRMENTS
75
Table of Contents
Cost
Remaining
Total
Incurred
Anticipated
Anticipated
Fiscal 2009
Fiscal 2008
to Date
Cost
Cost
$
2,987
$
87
$
3,074
$
$
3,074
57
57
57
1,234
1,234
1,234
4,278
87
4,365
4,365
$
1,016
$
106
$
1,122
$
$
1,122
303
303
181
484
199
199
199
1,634
157
1,791
1,791
3,152
263
3,415
181
3,596
$
399
$
$
399
$
$
399
22
22
22
442
442
92
534
30
30
30
893
893
92
985
$
2,349
$
$
2,349
$
$
2,349
219
219
339
558
1,060
1,060
1,283
2,343
3,393
3,393
3,393
7,021
7,021
1,622
8,643
$
15,344
$
350
$
15,694
$
1,895
$
17,589
7,522
61
7,583
1,645
9,228
1,216
106
1,322
250
1,572
103
103
103
211
27
238
238
$
9,052
$
194
$
9,246
$
1,895
$
11,141
4,316
157
4,473
4,473
766
766
766
1,209
1,209
1,209
$
6,291
$
157
$
6,448
$
$
6,448
(1)
The fair value of assets was determined based on prices of
similar assets adjusted for their remaining useful life.
76
Table of Contents
Employee or
Severance
Costs
Other Costs
Total
$
193
$
$
193
6,751
2,303
9,054
(5,622
)
(2,303
)
(7,925
)
65
65
$
1,387
$
$
1,387
(1)
Relates to the foreign currency translation.
5.
ACQUISITIONS
6.
RESTRICTED
CASH
77
Table of Contents
7.
OTHER
ACCRUED EXPENSES
November 1,
November 2,
2009
2008
$
$
4,873
3,651
10,116
16,116
16,484
9,604
8,751
2,121
6,648
20,963
13,141
$
52,455
$
60,013
8.
WARRANTY
November 1,
November 2,
2009
2008
$
16,484
$
14,843
2,628
3,405
(1,273
)
(1,323
)
(259
)
(217
)
(1,313
)
(151
)
(224
)
$
16,116
$
16,484
(1)
This adjustment relates to certain of the RCC warranty claims
liabilities that were updated based on a change in our claims
processing procedures and revised analysis. This change was
recorded in cost of sales in our Consolidated Statement of
Operations during the first quarter of fiscal 2009.
9.
SUPPLEMENTARY
CASH FLOW INFORMATION
Fiscal Year Ended
November 1,
November 2,
October 28,
2009
2008
2007
$
18,445
$
26,872
$
26,166
5,645
57,837
42,739
78
Table of Contents
10.
LONG-TERM
DEBT AND NOTE PAYABLE
November 1,
November 2,
2009
2008
$
150,000
$
293,290
59
180,000
190
1,110
150,249
474,400
(14,164
)
(920
)
$
136,085
$
473,480
$
14,164
1,356
1,342
1,329
132,058
$
150,249
79
Table of Contents
the net cash proceeds of (1) certain asset sales,
(2) certain debt offerings and (3) certain insurance
recovery and condemnation events;
50% of annual excess cash flow (as defined in the Amended Credit
Agreement) for any fiscal year ending on or after
October 31, 2010, unless a specified leverage ratio target
is met; and
the greater of $10.0 million and 50% of certain 2009 tax
refunds (as defined in the Amended Credit Agreement) received by
the Company.
80
Table of Contents
81
Table of Contents
82
Table of Contents
11.
FAIR
VALUE OF FINANCIAL INSTRUMENTS
83
Table of Contents
November 1, 2009
November 2, 2008
Carrying
Carrying
Amount
Fair Value
Amount
Fair Value
(In thousands)
(In thousands)
$
59
$
97
$
180,000
$
149,456
$
150,000
$
138,000
$
293,200
$
251,980
12.
DERIVATIVE
INSTRUMENT AND HEDGING STRATEGY
84
Table of Contents
Liability Derivatives
November 1, 2009
November 2, 2008
Balance Sheet Location
Fair Value
Fair Value
Other long-term liabilities
$
$
3,928
Other accrued expenses
$
2,208
$
Other accrued expenses
1,041
$
3,249
$
3,928
$
3,249
$
3,928
Amount of Loss Reclassified
from Accumulated
Amount of Loss Recognized
Location of Loss Reclassified
OCI into Income
Derivative in ASC
in OCI on Derivative
from Accumulated OCI
(Effective Portion)
815 Cash Flow Hedging
(Effective Portion)
into Income (Loss)
November 1,
November 2,
November 1, 2009
November 2, 2008
(Effective Portion)
2009
2008
$
(739
)
$
(428
)
Interest expense
$
(1,756
)
$
Amount of Loss Recognized
Derivatives Not Designated as Hedging
in Income (Loss) on Derivative
Location of Loss Recognized in Income
November 1, 2009
November 2, 2008
(Loss) on Derivative
$
(3,072
)
$
Interest expense
85
Table of Contents
13.
FAIR
VALUE MEASUREMENTS
Level 1
Level 2
Level 3
Total
$
3,359
3,359
$
(3,480
)
(3,480
)
(2,208
)
(2,208
)
(1,041
)
(1,041
)
$
(3,480
)
(2,208
)
(1,041
)
(6,729
)
(1)
Unrealized holding gains (losses) for the fiscal years ended
November 1, 2009 and November 2, 2008 was
$0.9 million and $(1.1) million, respectively. These
unrealized holding gains (losses) are primarily offset by
changes in the deferred compensation plan liability.
November 1,
2009
$
(1,041
)
$
(1,041
)
14.
SERIES B
CUMULATIVE CONVERTIBLE PARTICIPATING PREFERRED STOCK
86
Table of Contents
87
Table of Contents
88
Table of Contents
15.
RELATED
PARTIES
89
Table of Contents
the Investment Agreement, pursuant to which the CD&R Funds
acquired a 68.4% interest in the Company, CD&R Fund
VIIIs transaction expenses were reimbursed and a deal fee
of $8.25 million was paid to CD&R, Inc., which
indirectly controls CD&R, LLC, on the Closing Date;
the Stockholders Agreement, which sets forth certain terms and
conditions regarding the Equity Investment and the CD&R
Funds ownership of the Preferred Shares, including certain
restrictions on the transfer of the Preferred Shares and the
shares of our common stock issuable upon conversion thereof and
on certain actions of the CD&R Funds and their controlled
affiliates with respect to the Company, and to provide for,
among other things, subscription rights, corporate governance
rights and consent rights as well as other obligations and
rights;
a Registration Rights Agreement, dated as of the Closing Date
(the Registration Rights Agreement), between the
Company and the CD&R Funds, pursuant to which the Company
granted to the CD&R Funds, together with any other
stockholder of the Company that may become a party to the
Registration Rights Agreement in accordance with its terms,
certain customary registration rights with respect to the shares
of our common stock issuable upon conversion of the Preferred
Shares; and
an Indemnification Agreement, dated as of the Closing Date
between the Company, NCI Group, Inc., a wholly owned subsidiary
of the Company, Robertson-Ceco II Corporation, a wholly
owned subsidiary of the Company, the CD&R Funds and
Clayton, Dubilier & Rice, Inc., pursuant to which the
Company, NCI Group, Inc. and Robertson-Ceco II Corporation
agreed to indemnify CD&R, Inc., the CD&R Funds and
their general partners, the special limited partner of CD&R
Fund VIII and any other investment vehicle that is a stockholder
of the Company and is managed by CD&R, Inc. or any of its
affiliates, their respective affiliates and successors and
assigns and the respective directors, officers, partners,
members, employees, agents, representatives and controlling
persons of each of them, or of their respective partners,
members and controlling persons, against certain liabilities
arising out of the Equity Investment and transactions in
connection with the Equity Investment, including, but not
limited to, the Amended Credit Agreement, the ABL Facility, the
Exchange Offer, and certain other liabilities and claims.
16.
GOODWILL
AND OTHER INTANGIBLE ASSETS
90
Table of Contents
Metal
Engineered
Coil
Metal
Building
Coating
Components
Systems
Total
$
98,959
$
149,180
$
368,261
$
616,400
(1,940
)
1,940
226
226
$
98,959
$
147,240
$
370,427
$
616,626
(98,959
)
(147,240
)
(365,227
)
(611,426
)
$
$
$
5,200
$
5,200
91
Table of Contents
(1)
During the fourth quarter of fiscal 2008, we changed the
reporting structure and management team responsibilities to
better align certain of our products in order to respond
effectively to current market opportunities. As a result of this
change, certain amounts of goodwill have been transferred
accordingly. Fiscal 2007 segment presentation has been
reclassified to conform to fiscal 2008 presentation.
Range of
November 1,
November 2,
Life (Years)
2009
2008
15
$
5,588
$
5,588
1
3,019
3,019
15
8,710
8,710
5-10
8,132
8,132
7
990
990
$
26,439
$
26,439
$
(1,719
)
$
(1,345
)
(3,019
)
(3,019
)
(1,937
)
(1,356
)
(4,236
)
(3,273
)
(613
)
(472
)
$
(11,524
)
$
(9,465
)
$
14,915
$
16,974
$
24,704
$
24,704
(11,249
)
13,455
24,704
$
28,370
$
41,678
92
Table of Contents
$
2,058
2,058
1,746
1,563
1,563
17.
INCOME
TAXES
Fiscal Year Ended
November 1,
November 2,
October 28,
2009
2008
2007
$
(28,706
)
$
44,330
$
42,369
(1,366
)
6,903
5,817
(30,072
)
51,233
48,186
(21,368
)
179
(6,404
)
(3,084
)
87
(686
)
(24,452
)
266
(7,090
)
$
(54,524
)
$
51,499
$
41,096
Fiscal Year Ended
November 1,
November 2,
October 28,
2009
2008
2007
35.0
%
35.0
%
35.0
%
3.3
%
3.5
%
3.4
%
(27.0
)%
(0.1
)%
1.3
%
0.8
%
(0.2
)%
1.2
%
1.5
%
(2.0
)%
(1.1
)%
(4.1
)%
(0.1
)%
0.5
%
(0.4
)%
6.8
%
39.5
%
39.2
%
93
Table of Contents
The $611.4 million goodwill impairment charges discussed in
Note 16 Goodwill and Other Intangible Assets.
The $84.5 million premium paid on the exchange offer to
retire our Convertible Notes which is not deductible.
As of
As of
November 1,
November 2,
2009
2008
$
1,008
$
1,281
2,137
2,115
11,545
14,212
1,878
2,211
6,266
6,712
847
1,508
6,469
3,943
454
867
2,390
725
218
33,719
33,067
(5,018
)
(4,972
)
28,701
28,095
(25,163
)
(47,809
)
(2,566
)
(776
)
(359
)
(28,505
)
(48,168
)
$
196
$
(20,073
)
94
Table of Contents
November 1,
November 2,
October 28,
2009
2008
2007
$
4,972
$
4,603
$
3,171
46
369
1,432
$
5,018
$
4,972
$
4,603
November 1,
November 2,
2009
2008
$
1,321
$
864
239
590
(875
)
(133
)
$
685
$
1,321
95
Table of Contents
18.
ACCUMULATED
OTHER COMPREHENSIVE (LOSS) INCOME
November 1,
November 2,
2009
2008
$
391
$
589
(9,250
)
391
(2,420
)
$
(8,859
)
$
(1,440
)
19.
OPERATING
LEASE COMMITMENTS
$
7,162
4,603
2,142
577
465
1,474
20.
STOCK
REPURCHASE PROGRAM
Number of
Shares
Amount
2,590
$
114,373
80
2,226
2,670
116,599
177
451
(2,847
)
(117,050
)
$
96
Table of Contents
21.
SHARE-BASED
COMPENSATION
97
Table of Contents
Weighted
Weighted
Average
Average
Aggregate
Number of
Exercise
Remaining
Intrinsic
Shares
Price
Life
Value
901
$
27.43
(3
)
(35.75
)
(153
)
(25.59
)
745
$
27.78
(18
)
(31.21
)
(34
)
(19.86
)
693
$
28.09
(41
)
(27.78
)
(1
)
(15.15
)
651
$
28.13
4.2 years
651
$
28.13
4.2 years
Options Outstanding and Exercisable
Range of Exercise
Weighted Average
Weighted Average
Number of Options
Remaining Life
Exercise Price
$
15.13 19.38
130,824
2.4 years
$
16.85
20.64 30.18
232,863
4.2 years
26.91
31.00 38.01
245,490
4.8 years
32.40
44.00 60.64
42,093
6.1 years
44.99
651,270
4.2 years
$
28.13
98
Table of Contents
Number of
Weighted Average
Shares
Grant Price
436,272
$
32.42
151,456
53.82
(67,482
)
37.26
(5,346
)
43.47
514,900
$
37.97
251,295
26.01
(273,685
)
34.64
(10,791
)
39.09
481,719
$
33.59
708,789
8.65
(136,018
)
36.08
(33,659
)
28.49
1,020,831
$
16.11
99
Table of Contents
22.
EARNINGS
PER SHARE
Fiscal Year Ended
November 1,
November 2,
October 28,
2009
2008
2007
$
(758,677
)
$
78,881
$
63,729
22,013
19,332
19,582
104
211
50
78
922
22,013
19,486
20,793
$
(34.06
)
$
4.08
$
3.25
$
(34.06
)
$
4.05
$
3.06
(1)
The indenture under which the Convertible Notes were issued
contains a net share settlement provision as
described in guidance that has been codified under ASC Topic
260-10,
Earnings Per Share Overall
, whereby
conversions are settled for a combination of cash and shares,
and shares are only issued to the extent the conversion value
exceeds the principal amount. The incremental shares that we
would have been required to issue had the Convertible Notes been
converted at the average trading price during the period have
been included in the diluted earnings per share calculation
because our average stock trading price had exceeded the $40.14
conversion threshold. However, during fiscal 2009, the
Convertible Notes could only be converted by the holders if our
stock price traded above the initial conversion price of our
Convertible Notes (see Note 10) for at least 20
trading days in each of the 30 consecutive trading day period of
the preceding calendar quarter or upon other specified events.
At November 1, 2009, the Convertible Notes were not
convertible.
100
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23.
EMPLOYEE
BENEFIT PLANS
101
Table of Contents
As of October 28, 2007
Effect of Adopting
As Reported at
ASC 715-20
October 28, 2007
$
2,292
$
2,292
1,016
(1,289
)
(1,289
)
(2,019
)
(2,019
)
November 1,
November 2,
2009
2008
$
46,091
$
38,127
$
38,127
$
48,805
3,077
2,810
(4,253
)
(4,580
)
9,236
(8,908
)
(96
)
$
46,091
$
38,127
102
Table of Contents
November 1,
November 2,
2009
2008
5.75
%
8.50
%
November 1,
November 2,
2009
2008
$
38,859
$
51,097
4,868
(7,658
)
(4,253
)
(4,580
)
$
39,474
$
38,859
November 1,
November 2,
2009
2008
$
39,474
$
38,859
46,091
38,127
$
(6,617
)
$
732
6,428
(634
)
(95
)
$
(284
)
$
98
November 1,
November 2,
2009
2008
6,428
(634
)
(95
)
$
6,333
$
(634
)
November 1,
November 2,
2009
2008
$
3,076
$
2,810
(2,694
)
(3,924
)
$
382
$
(1,114
)
Fiscal 2009
Fiscal 2008
5.75
%
8.5
%
7.1
%
8.0
%
103
Table of Contents
November 1,
November 2,
2009
2008
27
%
21
%
38
56
13
12
9
4
4
3
9
4
100
%
100
%
Pension
Benefits
$
4,087
3,750
3,842
3,676
3,732
17,061
24.
CONTINGENCIES
25.
BUSINESS
SEGMENTS
104
Table of Contents
2009
2008
2007
$
169,897
$
305,657
$
272,543
458,734
715,255
663,331
541,609
1,110,534
1,021,544
(202,317
)
(367,287
)
(332,350
)
$
967,923
$
1,764,159
$
1,625,068
$
53,189
$
96,957
$
83,583
389,132
600,010
561,622
525,602
1,067,192
979,863
$
967,923
$
1,764,159
$
1,625,068
$
(99,631
)
$
29,381
$
25,136
(129,975
)
82,094
49,609
(389,309
)
107,851
113,265
(64,583
)
(64,616
)
(56,276
)
$
(683,498
)
$
154,710
$
131,734
(117,990
)
(24,330
)
(26,909
)
$
(801,488
)
$
130,380
$
104,825
105
Table of Contents
2009
2008
2007
$
5,456
$
6,574
$
6,510
9,282
9,384
8,856
14,823
15,940
16,794
3,215
3,690
3,375
$
32,776
$
35,588
$
35,535
$
1,865
$
3,073
$
4,150
14,726
9,109
17,693
1,347
10,912
15,839
3,719
1,709
4,359
$
21,657
$
24,803
$
42,041
$
36,116
$
39,738
89,256
84,026
77,551
108,876
28,917
18,523
$
231,840
$
251,163
$
57,208
$
196,615
159,690
371,464
241,260
716,671
155,690
95,951
$
613,848
$
1,380,701
Table of Contents
26.
QUARTERLY
RESULTS (Unaudited)
First
Second
Third
Fourth
Quarter
Quarter
Quarter
Quarter
$
260,364
$
224,719
$
238,439
$
244,401
$
16,527
$
31,212
$
61,080
$
60,034
$
(528,610
)
$
(120,207
)
$
3,971
$
(102,118
)(2)
$
(528,610
)
$
(120,207
)
$
3,971
$
(113,831
)
$
(27.20
)
$
(6.17
)
$
0.20
$
(3.54
)
$
(27.20
)
$
(6.17
)
$
0.20
$
(3.54
)
$
361,489
$
416,143
$
477,596
$
508,931
$
82,431
$
103,440
$
128,525
$
124,139
$
7,510
$
14,866
$
31,891
$
24,614
$
0.39
$
0.77
$
1.65
$
1.27
$
0.39
$
0.76
$
1.63
$
1.26
(1)
The sum of the quarterly income per share amounts may not equal
the annual amount reported, as per share amounts are computed
independently for each quarter and for the full year based on
the respective weighted average common shares outstanding.
(2)
Included in net income (loss) is pre-tax debt extinguishment and
refinancing costs of $99.2 million incurred as a result of
the completion of the Recapitalization Plan.
First
Second
Third
Fourth
Quarter
Quarter
Quarter
Quarter
$
(517,628
)
$
(104,936
)
$
$
(29,378
)
(10,608
)
(2,479
)
(3,796
)
(1,213
)
(1,564
)
(11,168
)
(623
)
(5,295
)
(26
)
(347
)
(1,115
)
$
(550,108
)
$
(124,635
)
$
(1,239
)
$
(14,194
)
$
$
$
$
(2,739
)
(663
)
(2,189
)
(226
)
(640
)
(43
)
(150
)
(157
)
$
(889
)
$
(2,829
)
$
(43
)
$
(3,046
)
107
Table of Contents
Item 9.
Changes
in and Disagreements with Accountants on Accounting and
Financial Disclosure.
Item 9A.
Controls
and Procedures.
Item 9B.
Other
Information.
Item 10.
Directors,
Executive Officers and Corporate Governance.
Item 11.
Executive
Compensation.
108
Table of Contents
Item 12.
Security
Ownership of Certain Beneficial Owners and Management and
Related Stockholder Matters.
Item 13.
Certain
Relationships and Related Transactions, and Director
Independence.
Item 14.
Principal
Accounting Fees and Services.
Item 15.
Exhibits,
Financial Statement Schedules.
109
Table of Contents
By:
Chairman of the Board, President and Chief Executive Officer
(Principal Executive Officer)
Executive Vice President, Chief Financial Officer and Treasurer
(Principal Financial and Accounting Officer)
Director
Director
Director
Director
110
Table of Contents
Director
Director
Director
Director
*By:
111
Table of Contents
2
.1
Stockholders Agreement, dated as of October 20, 2009, by and
between the Company, Clayton, Dubilier & Rice Fund VIII,
L.P. and CD&R Friends & Family Fund VIII, L.P. (filed
as Exhibit 2.1 to NCIs Current Report on Form 8-K dated
October 26, 2009 and incorporated by reference herein)
2
.2
Registration Rights Agreement, dated as of October 20, 2009, by
and between the Company, Clayton, Dubilier & Rice Fund
VIII, L.P. and CD&R Friends & Family Fund VIII, L.P.
(filed as Exhibit 2.2 to NCIs Current Report on Form 8-K
dated October 26, 2009 and incorporated by reference herein)
2
.3
Indemnification Agreement, dated as of October 20, 2009, by and
between the Company, NCI Group, Inc., Robertson-Ceco II
Corporation, Clayton, Dubilier & Rice Fund VIII, L.P.,
CD&R Friends & Family Fund VIII, L.P. and Clayton,
Dubilier & Rice, Inc. (filed as Exhibit 2.3 to NCIs
Current Report on Form 8-K dated October 26, 2009 and
incorporated by reference herein)
2
.5
Investment Agreement, dated as of August 14, 2009, by and
between NCI Building Systems, Inc. and Clayton, Dubilier &
Rice Fund VIII, L.P. (filed as Exhibit 2.1 to NCIs Current
Report on Form 8-K dated August 19, 2009 and incorporated by
reference herein)
2
.6
Amendment, dated as of August 28, 2009, to the Investment
Agreement, dated as of August 14, 2009, by and between NCI
Building Systems, Inc. and Clayton, Dubilier & Rice Fund
VIII, L.P. (filed as Exhibit 2.1 to NCIs Current Report
on Form 8-K dated August 28, 2009 and incorporated by reference
herein)
2
.7
Amendment No. 2, dated as of August 31, 2009, to the Investment
Agreement (as amended), dated as of August 14, 2009, by and
between NCI Building Systems, Inc. and Clayton, Dubilier &
Rice, Fund VIII, L.P., including exhibits thereto (filed as
Exhibit 2.1 to NCIs Current Report on Form 8-K filed
September 1, 2009 and incorporated by reference herein)
2
.8
Amendment No. 3, dated as of October 8, 2009, to the Investment
Agreement (as amended), dated as of August 14, 2009, by and
between NCI Building Systems, Inc. and Clayton, Dubilier &
Rice, Fund VIII, L.P., including exhibits thereto (filed as
Exhibit 2.1 to NCIs Current Report on Form 8-K filed
October 8, 2009 and incorporated by reference herein)
2
.9
Amendment No. 4, dated as of October 16, 2009, to the Investment
Agreement (as amended), dated as of August 14, 2009, by and
between NCI Building Systems, Inc. and Clayton, Dubilier &
Rice, Fund VIII, L.P., including exhibits thereto (filed as
Exhibit 2.1 to NCIs Current Report on Form 8-K filed
October 19, 2009 and incorporated by reference herein)
3
.1
Restated Certificate of Incorporation, as amended through
September 30, 1998 (filed as Exhibit 3.1 to NCIs Annual
Report on Form 10-K for the fiscal year ended November 2, 2002
and incorporated by reference herein)
3
.2
Certificate of Amendment to Restated Certificate of
Incorporation, effective as of March 12, 2007 (filed as Exhibit
3.2 to NCIs Quarter Report on Form 10-Q for the quarter
ended April 29, 2007 and incorporated by reference herein)
3
.3
Second Amended and Restated By-Laws, effective as of October 20,
2009 (filed as Exhibit 3.4 to NCIs Current Report on Form
8-K dated October 26, 2009 and incorporated by reference herein)
3
.4
Certificate of Designations, preferences, limitations and
relative rights of Series B Cumulative Convertible Participating
Preferred Stock of the Company (filed as Exhibit 3.1 to
NCIs Current Report on Form 8-K dated October 26, 2009 and
incorporated by reference herein)
3
.5
Certificate of Elimination of the Series A Junior Participating
Preferred Stock of the Company (filed as Exhibit 3.2 to
NCIs Current Report on Form 8-K dated October 26, 2009 and
incorporated by reference herein)
3
.6
Certificate of Increase of Number of Shares of Series B
Cumulative Convertible Participating Preferred Stock of the
Company (filed as Exhibit 3.3 to NCIs Current Report on
Form 8-K dated October 26, 2009 and incorporated by reference
herein)
4
.1
Form of certificate representing shares of NCIs common
stock (filed as Exhibit 1 to NCIs registration statement
on Form 8-A filed with the SEC on July 20, 1998 and incorporated
by reference herein)
4
.2
Credit Agreement, dated June 18, 2004, by and among NCI, certain
of its subsidiaries, as guarantors, Wachovia Bank, National
Association, as administrative agent, Bank of America, N.A., as
syndication agent, and the several lenders named therein (filed
as Exhibit 4.1 to NCIs Form 10-Q/A, filed with the SEC on
September 16, 2004, amending its quarterly report on Form 10-Q
for the quarter ended July 31, 2004 and incorporated by
reference herein)
112
Table of Contents
4
.3
First Amendment to Credit Agreement, dated as of November 9,
2004, between NCI Building Systems, Inc, as borrower, certain of
its subsidiaries, as guarantors, Wachovia National Bank,
National Association, as administrative agent and lender, and
the several lenders named therein (filed as Exhibit 10.1 to
NCIs Current Report on Form 8-K dated November 16, 2004
and incorporated by reference herein)
4
.4
Second Amendment to Credit Agreement, dated as of October 14,
2005, between NCI Building Systems, Inc, as borrower, certain of
its subsidiaries, as guarantors, Wachovia National Bank,
National Association, as administrative agent and lender, and
the several lenders named therein (filed as Exhibit 10.1 to
NCIs Current Report on Form 8-K dated October 14, 2005 and
incorporated by reference herein)
4
.5
Third Amendment, dated April 7, 2006, to Credit Agreement, dated
June 18, 2004, by and among NCI Building Systems, Inc. as
borrower, certain of its subsidiaries, as guarantors, Wachovia
Bank, National Association, as administrative agent and lender,
and the several lenders parties thereto (filed as Exhibit 10.2
to NCIs Current Report on Form 8-K dated April 7, 2006 and
incorporated by reference herein)
4
.6
Indenture, dated November 16, 2004, by and among NCI, and The
Bank of New York (filed as Exhibit 4.1 to NCIs Current
Report on Form 8-K dated November 16, 2004 and incorporated by
reference herein)
4
.7
Amended Credit Agreement, dated as of October 20, 2009, among
the Company, as borrower, Wachovia Bank, National Association,
as administrative agent and collateral agent and the several
lenders party thereto (filed as Exhibit 10.1 to NCIs
Current Report on Form 8-K dated October 26, 2009 and
incorporated by reference herein)
4
.8
Loan and Security Agreement, dated as of October 20, 2009, by
and among NCI Group, Inc. and Robertson-Ceco II
Corporation, as borrowers, the Company and Steelbuilding.Com,
Inc., as guarantors, Wells Fargo Foothill, LLC, as
administrative and co-collateral agent, Bank of America, N.A.
and General Electric Capital Corporation, as co-collateral
agents and the lenders and issuing bank party thereto (filed as
Exhibit 10.2 to NCIs Current Report on Form 8-K dated
October 26, 2009 and incorporated by reference herein)
4
.9
Intercreditor Agreement, dated as of October 20, 2009, by and
among the Company, as borrower or guarantor, certain domestic
subsidiaries of the Company, as borrowers or guarantors,
Wachovia Bank, National Association, as term loan agent and term
loan administrative agent, Wells Fargo Foothill, LLC, as working
capital agent and working capital administrative agent and Wells
Fargo Bank, National Association, as control agent (filed as
Exhibit 10.3 to NCIs Current Report on Form 8-K dated
October 26, 2009 and incorporated by reference herein)
4
.10
Guarantee and Collateral Agreement, dated as of October 20, 2009
by the Company and certain of its subsidiaries in favor of
Wachovia Bank, National Association as administrative agent and
collateral agent (filed as Exhibit 10.4 to NCIs Current
Report on Form 8-K dated October 26, 2009 and incorporated by
reference herein)
4
.11
Guaranty Agreement, dated as of October 20, 2009 by NCI Group,
Inc., Robertson-Ceco II Corporation, the Company and
Steelbuilding.com, Inc., in favor of Wells Fargo Foothill, LLC
as administrative agent and collateral agent (filed as Exhibit
10.5 to NCIs Current Report on Form 8-K dated October 26,
2009 and incorporated by reference herein)
4
.12
Pledge and Security Agreement, dated as of October 20, 2009, by
and among the Company, NCI Group, Inc. and
Robertson-Ceco II Corporation, to and in favor of Wells
Fargo Foothill, LLC in its capacity as administrative agent and
collateral agent (filed as Exhibit 10.6 to NCIs Current
Report on Form 8-K dated October 26, 2009 and incorporated by
reference herein)
10
.1
Employment Agreement, dated April 12, 2004, among the Company,
NCI Group, L.P. and Norman C. Chambers (filed as Exhibit 10.1 to
NCIs Quarterly Report on Form 10-Q for the quarter ended
May 1, 2004 and incorporated by reference herein)
*10
.2
Amendment Agreement, dated August 14, 2009, among the Company,
NCI Group, L.P. and Norman C. Chambers.
10
.3
Amended and Restated Bonus Program, as amended and restated as
of September 4, 2008 (filed as Exhibit 10.2 to NCIs Annual
Report on Form 10-K for the fiscal year ended November 2, 2008
and incorporated by reference herein)
Table of Contents
10
.4
Stock Option Plan, as amended and restated on December 14, 2000
(filed as Exhibit 10.4 to NCIs Annual Report on Form 10-K
for the fiscal year ended October 31, 2000 and incorporated by
reference herein)
10
.5
Form of Nonqualified Stock Option Agreement (filed as Exhibit
10.5 to NCIs Annual Report on Form 10-K for the fiscal
year ended October 31, 2000 and incorporated by reference herein)
10
.6
2003 Long-Term Stock Incentive Plan, as amended and restated
March 12, 2009 (filed as Annex C to NCIs Proxy Statement
for the Annual Meeting held March 12, 2009 and incorporated by
reference herein)
10
.7
Form of Nonqualified Stock Option Agreement (filed as Exhibit
4.2 to NCIs registration statement no. 333-111139 and
incorporated by reference herein)
10
.8
Form of Incentive Stock Option Agreement (filed as Exhibit 4.3
to NCIs registration statement no. 333-111139 and
incorporated by reference herein)
10
.9
Form of Restricted Stock Award Agreement for Senior Executive
Officers (Electronic) (filed as Exhibit 10.2 to NCIs
Current Report on Form 8-K dated December 7, 2006 and
incorporated by reference herein)
10
.10
Form of Restricted Stock Award Agreement for Key Employees
(filed as Exhibit 10.3 to NCIs Current Report on Form 8-K
dated December 7, 2006 and incorporated by reference herein)
10
.11
Form of Restricted Stock Unit Agreement (filed as Exhibit 10.1
to NCIs Current Report on Form 8-K dated December 7, 2006
and incorporated by reference herein)
10
.12
Form of Restricted Stock Award Agreement for Non-Employee
Directors (filed as Exhibit 10.4 to NCIs Current Report on
Form 8-K dated October 23, 2006 and incorporated by reference
herein)
10
.13
Restricted Stock Agreement, dated April 26, 2004, between NCI
and Norman C. Chambers (filed as exhibit 10.2 to NCIs
Quarterly Report on Form 10-Q for the quarter ended May 1, 2004
and incorporated by reference herein)
10
.14
First Amendment, dated October 24, 2005, to Restricted Stock
Agreement, dated April 26, 2004, between NCI and Norman C.
Chambers (filed as Exhibit 10.21 to NCIs Annual Report on
Form 10-K for the fiscal year ended October 29, 2005 and
incorporated by reference herein)
*10
.15
Restricted Stock Agreement, effective August 26, 2004,
between NCI and Mark Dobbins
*10
.16
Restricted Stock Agreement, effective August 26, 2004
between NCI and Charles Dickinson
10
.17
Amended and Restated NCI Building Systems, Inc. Deferred
Compensation Plan (as amended and restated effective
January 1, 2007) (filed as Exhibit 10.23 to NCIs
Annual Report on Form 10-K for the fiscal year ended
October 29, 2006 and incorporated by reference herein)
*10
.18
First Amendment to the NCI Building Systems, Inc. Deferred
Compensation Plan (as amended and restated effective October 20,
2009)
10
.19
Form of Employment Agreement between NCI and executive officers
(filed as Exhibit 10.25 to NCIs Annual Report on Form 10-K
for the fiscal year ended October 28, 2007 and incorporated by
reference herein)
*10
.20
Form of Amendment Agreement, dated August 14, 2009, among the
Company, NCI Group, L.P. and executive officers
10
.21
Form of Indemnification Agreement for Officers and Directors
(filed as Exhibit 10.1 to NCIs Current Report on Form 8-K
dated October 22, 2008 and incorporated by reference herein)
10
.22
Form of Director Indemnification Agreement (filed as Exhibit
10.7 to NCIs Current Report on Form 8-K dated October 26,
2009 and incorporated by reference herein)
*21
.1
List of Subsidiaries
*23
.1
Consent of Independent Registered Public Accounting Firm
*24
.1
Powers of Attorney
*31
.1
Rule 13a-14(a)/15d-14(a) Certifications (Section 302 of the
Sarbanes-Oxley Act of 2002)
*31
.2
Rule 13a-14(a)/15d-14(a) Certifications (Section 302 of the
Sarbanes-Oxley Act of 2002)
*32
.1
Certifications pursuant to Section 1350 of Chapter 63 of Title
18 of the United States Code (Section 906 of the Sarbanes-Oxley
Act of 2002)
*32
.2
Certifications pursuant to Section 1350 of Chapter 63 of Title
18 of the United States Code (Section 906 of the Sarbanes-Oxley
Act of 2002)
*
Filed herewith
Management contracts or compensatory plans or arrangements
NCI BUILDING SYSTEMS, INC.
|
||||
By: | /s/ Todd R. Moore | |||
Name: | Todd R. Moore | |||
Title: | Executive Vice President & General Counsel | |||
NCI GROUP, L.P.
|
||||
By: | /s/ Todd R. Moore | |||
Name: | Todd R. Moore | |||
Title: | Executive Vice President & General Counsel | |||
/s/ Norman C. Chambers | ||||
NORMAN C. CHAMBERS | ||||
2
1
2
Applicable Arrangement
|
NCI Building Systems, Inc. Change in Control Severance Policy effective as of September 1, 2007. Capitalized terms used but not defined herein shall have the meaning set forth in the Policy. | |
|
||
Definition of Good Reason
|
Effective as of the Closing Date, as defined in that certain Investment Agreement by and between the Company and the Clayton, Dubilier & Rice Fund VIII, L.P., dated August 14, 2009 (as it may be amended from time to time, the Investment Agreement), Good Reason means the following event that occurs after a Change in Control or within thirty (30) days prior to a Change in Control without the Participants prior written consent: | |
|
||
|
Any reduction in the amount of the
Participants then current base
salary in excess of ten percent
(10%) in any twelve month period.
|
|
|
||
|
In order for a termination by the Participant to constitute a termination for Good Reason, the Participant must notify the Company of the circumstances claimed to constitute Good Reason in writing not later than the thirtieth (30th) day after such circumstances have arisen or occurred and must provide the Company with at least thirty (30) days within which to cure such circumstances before terminating employment, and, failing a cure, the Participant must terminate his employment within thirty (30) days following the expiration of such cure period. | |
|
||
Policy Term (Section 7)
|
Effective as of the Closing Date, Section 7 of the Policy shall be amended to permit the Committee to amend, substitute, revoke or terminate the Policy as to any future Change in Control only if such Committee action occurs at least one year prior to such future Change in Control (excluding amendments and modifications that do not adversely affect a Participants rights under the Policy). For avoidance of doubt, the amendment to Section 7 described herein shall not apply to the Change in Control that occurs pursuant to the transactions contemplated by the Investment Agreement. |
3
Applicable Agreement
|
Employment Agreement, entered into April 12, 2004 by and between NCI Building Systems, Inc., NCI Group, L.P. and Norman C. Chambers, as amended. Capitalized terms used but not defined herein shall have the meaning set forth in the Employment Agreement. | |
|
||
Definition of Good Reason
|
Effective as of the Closing Date, as defined in that certain Investment Agreement by and between the Company and Clayton, Dubilier & Rice Fund VIII, L.P., dated August 14, 2009 (as it may be amended from time to time, the Investment Agreement), Good Reason means any of the following events that occurs without the Employees prior written consent: | |
|
||
|
(i) (A) Any reduction in the amount of the Employees base salary in excess of the percentage set forth in Section 3(a) or below the annual base salary rate set forth in Section 3(a), (B) failure either (i) to maintain an annual cash bonus plan in the same or substantially similar form as the form of the Companys annual cash bonus plan in effect immediately prior to the Closing (except that the Company shall be permitted, in its reasonable discretion from time to time, to modify the qualitative performance measures and numerical performance goals so long as the projected bonus opportunity for the Employee immediately after the modification is substantially comparable to the projected bonus opportunity for the Employee immediately before the modification) or (ii) to provide the Employee with an annual cash bonus or annual cash incentive opportunity that (together with the other elements of annual cash compensation) permits the Employee to earn total cash compensation substantially comparable to the total cash compensation opportunity of the Chief Executive Officers of the peer group of companies referred to by the Company in its annual proxy reporting , or (C) any material reduction in the aggregate employee benefits as in effect for the benefit of the Employee from time to time (unless such reduction in employee benefits is pursuant to a general change in employee benefits applicable to all senior executives of the Company and the Employer); | |
|
||
|
(ii) (A) the removal of or failure to elect or appoint the Employee as Chief Executive Officer and Chairman of the Board, or (B) any material, adverse reduction in the nature or status of the Employees authority as Chairman of the Board of Directors and Chief Executive Officer of the Company or in his duties or responsibilities in such positions, including, but not limited to, action or inaction by the Company or Board of Directors that is inconsistent with the Employees position as the most senior executive of the Company, the customary duties and authority of such position, or the Employees day-to-day |
4
|
control and management of the Company and its operations; provided, that the establishment of a Lead Director, Chairman of the Executive Committee or other similar Board position with oversight duties customarily associated with such a position will not be deemed to be a reduction in the nature or status of the Employees authority or his duties or responsibilities hereunder; | |
|
||
|
(iii) a breach or failure by the Company or Employer to perform any of its material covenants contained in this Agreement; or | |
|
||
|
(iv) any relocation of the Employees principal place of employment outside the Houston, Texas metropolitan area. | |
|
||
|
In order for a termination by the Employee to constitute a termination for Good Reason, the Employee must notify the Company of the circumstances claimed to constitute Good Reason in writing not later than the thirtieth (30th) day after such circumstances have arisen or occurred and must provide the Company with at least thirty (30) days within which to cure such circumstances before terminating employment, and, failing a cure, the Employee must terminate his employment within thirty (30) days following the expiration of such cure period. | |
|
||
Severance
|
Effective as of the Closing Date, Section 5(b) of the Agreement will be amended to reflect that the Employees severance entitlement will be the greater of (i) the aggregate amount of the Employees annual base salary, at the rate then in effect, from the date of termination through the end of the Employment Term and (ii) two (2) times his annual base salary, at the rate then in effect. |
5
Agreement, entered into between NCI Building Systems, Inc., NCI Group, Inc. and the following individuals as of the date following each such individuals name. Capitalized terms used but not defined herein shall have the meaning set forth in the Employment Agreement. | ||||||
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Todd R. Moore (January 28, 2008) | John L. Kuzdal (June 4, 2008) | ||||
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Mark E. Johnson (January 28, 2008) | Mark T. Golladay (June 4, 2008) | ||||
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Keith E. Fischer (January 1, 2008) | Charles W. Dickinson (March 13, 2009) | ||||
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Brad Robeson (January 1, 2008) | Mark W. Dobbins (March 13, 2009) | ||||
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Eric J. Brown (January 1, 2008) | |||||
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Definition of Good Reason | Effective as of the Closing Date, as defined in that certain Investment Agreement by and between the Company and Clayton, Dubilier & Rice Fund VIII, L.P., dated August 14, 2009 (as it may be amended from time to time, the Investment Agreement), Good Reason means any of the following events that occurs without the Employees prior written consent: | |||||
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(i) any reduction in the amount of the Employees then-current base salary in excess of ten percent (10%) in any twelve month period; | ||||||
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(ii) (A) a material reduction in the Employees title; or (B) a material, adverse reduction in the duties or responsibilities of the Employee relative to the Employees duties or responsibilities as described in Section 2; | ||||||
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(iii) the breach or failure by the Company or Employer to perform any of its material covenants contained in this Agreement; or | ||||||
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(iv) any relocation of the Employees principal place of employment outside the Houston, Texas metropolitan area. | ||||||
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In order for a termination by the Employee to constitute a termination for Good Reason, the Employee must notify the Company of the circumstances claimed to constitute Good Reason in writing not later than the thirtieth (30th) day after such circumstances have arisen or occurred and must provide the Company with at least thirty (30) days within which to cure such circumstances before terminating employment, and, failing a cure, the Employee must terminate his employment within thirty (30) days following the expiration of such cure period. |
6
Grantee:
|
Mark W. Dobbins | |
Number of Awarded Shares:
|
25,000 | |
Date of Award:
|
August 26, 2004 | |
Expiration of Restriction Period
|
See Section 3 |
2
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4
5
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8
9
10
11
NCI BUILDING SYSTEMS, INC.
|
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By: | /s/ A.R. Ginn | |||
A.R. Ginn, Chairman of the Board and Chief | ||||
Executive Officer | ||||
DATED: 11/19/04 | SIGNED: | /s/ Mark W. Dobbins | ||
GRANTEE | ||||
12
A-1
A-2
If to the Company:
|
NCI Building Systems, Inc.
10943 North Sam Houston Parkway West Houston, Texas 77064 Attention: Chairman of the Board |
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|
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If to the Grantee:
|
[Address]
[Address] |
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|
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If to the Escrow Agent:
|
c/o NCI Building Systems, Inc.
10943 North Sam Houston Parkway West Houston, Texas 77064 Attention: Chief Financial Officer |
A-3
Very truly yours,
NCI BUILDING SYSTEMS, INC. |
||||
By: | /s/ A.R. Ginn | |||
A.R. Ginn, Chairman of the Board and | ||||
Chief Executive Officer | ||||
GRANTEE:
|
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/s/ Mark W. Dobbins | ||||
Signature | ||||
Mark W. Dobbins | ||||
Print Name | ||||
ESCROW AGENT:
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/s/ Robert J. Medlock | ||||
Chief Financial Officer | ||||
A-4
/s/ Mark W. Dobbins | ||||
(Signature) | ||||
Mark W. Dobbins | ||||
(Please print name) | ||||
B-1
Grantee:
|
Charles W. Dickinson | |||
Number of Awarded Shares:
|
25,000 | |||
Date of Award:
|
August 26, 2004 | |||
Expiration of Restriction Period
|
See Section 3 |
2
3
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11
NCI BUILDING SYSTEMS, INC,
|
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By: | /s/ A.R. Ginn | |||
A.R. Ginn, Chairman of the Board and Chief | ||||
Executive Officer | ||||
DATED: 11/22/04 | SIGNED: | /s/ Charles W. Dickinson | ||
GRANTEE | ||||
12
A-1
A-2
If to the Company:
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NCI Building Systems, Inc. | |
|
10943 North Sam Houston Parkway West | |
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Houston, Texas 77064 | |
|
Attention: Chairman of the Board | |
|
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If to the Grantee:
|
[Address] | |
|
[Address] | |
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If to the Escrow Agent:
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c/o NCI Building Systems, Inc. | |
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10943 North Sam Houston Parkway West | |
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Houston, Texas 77064 | |
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Attention: Chief Financial Officer |
A-3
Very truly yours,
NCI BUILDING SYSTEMS, INC. |
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By: | /s/ A.R. Ginn | |||
A.R. Ginn, Chairman of the Board and | ||||
Chief Executive Officer | ||||
GRANTEE:
|
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/s/ Charles W. Dickinson | ||||
Signature | ||||
Charles W. Dickinson
Print Name |
||||
ESCROW AGENT:
|
||||
/s/ Robert J. Medlock | ||||
Chief Financial Officer | ||||
A-4
/s/ Charles W. Dickinson | ||||
(Signature) | ||||
Charles W. Dickinson
(Please print name) |
||||
B-1
1
NCI Building Systems, Inc.
|
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By: | /s/ Todd R. Moore | |||
Name: | Todd R. Moore | |||
Title: | Executive Vice President, General Counsel and Secretary |
2
NCI BUILDING SYSTEMS, INC.
|
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By: | ||||
Name: | Mark E. Johnson | |||
Title: | CFO, EVP | |||
NCI GROUP, INC.
|
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By: | ||||
Name: | Mark E. Johnson | |||
Title: | CFO, EVP | |||
Executive | ||||
2
1
2
Applicable Arrangement
|
NCI Building Systems, Inc. Change in Control Severance Policy effective as of September 1, 2007. Capitalized terms used but not defined herein shall have the meaning set forth in the Policy. | |
|
||
Definition of Good Reason
|
Effective as of the Closing Date, as defined in that certain Investment Agreement by and between the Company and the Clayton, Dubilier & Rice Fund VIII, L.P., dated August 14, 2009 (as it may be amended from time to time, the Investment Agreement), Good Reason means the following event that occurs after a Change in Control or within thirty (30) days prior to a Change in Control without the Participants prior written consent: | |
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Any reduction in the amount of the
Participants then current base
salary in excess of ten percent
(10%) in any twelve month period.
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|
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In order for a termination by the Participant to constitute a termination for Good Reason, the Participant must notify the Company of the circumstances claimed to constitute Good Reason in writing not later than the thirtieth (30th) day after such circumstances have arisen or occurred and must provide the Company with at least thirty (30) days within which to cure such circumstances before terminating employment, and, failing a cure, the Participant must terminate his employment within thirty (30) days following the expiration of such cure period. | |
|
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Policy Term (Section 7)
|
Effective as of the Closing Date, Section 7 of the Policy shall be amended to permit the Committee to amend, substitute, revoke or terminate the Policy as to any future Change in Control only if such Committee action occurs at least one year prior to such future Change in Control (excluding amendments and modifications that do not adversely affect a Participants rights under the Policy). For avoidance of doubt, the amendment to Section 7 described herein shall not apply to the Change in Control that occurs pursuant to the transactions contemplated by the Investment Agreement. |
3
Applicable Agreement
|
Employment Agreement, entered into April 12, 2004 by and between NCI Building Systems, Inc., NCI Group, L.P. and Norman C. Chambers, as amended. Capitalized terms used but not defined herein shall have the meaning set forth in the Employment Agreement. | |
|
||
Definition of Good Reason
|
Effective as of the Closing Date, as defined in that certain Investment Agreement by and between the Company and Clayton, Dubilier & Rice Fund VIII, L.P., dated August 14, 2009 (as it may be amended from time to time, the Investment Agreement), Good Reason means any of the following events that occurs without the Employees prior written consent: | |
|
||
|
(i) (A) Any reduction in the amount of the Employees base salary in excess of the percentage set forth in Section 3(a) or below the annual base salary rate set forth in Section 3(a), (B) failure either (i) to maintain an annual cash bonus plan in the same or substantially similar form as the form of the Companys annual cash bonus plan in effect immediately prior to the Closing (except that the Company shall be permitted, in its reasonable discretion from time to time, to modify the qualitative performance measures and numerical performance goals so long as the projected bonus opportunity for the Employee immediately after the modification is substantially comparable to the projected bonus opportunity for the Employee immediately before the modification) or (ii) to provide the Employee with an annual cash bonus or annual cash incentive opportunity that (together with the other elements of annual cash compensation) permits the Employee to earn total cash compensation substantially comparable to the total cash compensation opportunity of the Chief Executive Officers of the peer group of companies referred to by the Company in its annual proxy reporting , or (C) any material reduction in the aggregate employee benefits as in effect for the benefit of the Employee from time to time (unless such reduction in employee benefits is pursuant to a general change in employee benefits applicable to all senior executives of the Company and the Employer); | |
|
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|
(ii) (A) the removal of or failure to elect or appoint the Employee as Chief Executive Officer and Chairman of the Board, or (B) any material, adverse reduction in the nature or status of the Employees authority as Chairman of the Board of Directors and Chief Executive Officer of the Company or in his duties or responsibilities in such |
4
|
positions, including, but not limited to, action or inaction by the Company or Board of Directors that is inconsistent with the Employees position as the most senior executive of the Company, the customary duties and authority of such position, or the Employees day-to-day control and management of the Company and its operations; provided, that the establishment of a Lead Director, Chairman of the Executive Committee or other similar Board position with oversight duties customarily associated with such a position will not be deemed to be a reduction in the nature or status of the Employees authority or his duties or responsibilities hereunder; | |
|
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|
(iii) a breach or failure by the Company or Employer to perform any of its material covenants contained in this Agreement; or | |
|
||
|
(iv) any relocation of the Employees principal place of employment outside the Houston, Texas metropolitan area. | |
|
||
|
In order for a termination by the Employee to constitute a termination for Good Reason, the Employee must notify the Company of the circumstances claimed to constitute Good Reason in writing not later than the thirtieth (30th) day after such circumstances have arisen or occurred and must provide the Company with at least thirty (30) days within which to cure such circumstances before terminating employment, and, failing a cure, the Employee must terminate his employment within thirty (30) days following the expiration of such cure period. | |
|
||
Severance
|
Effective as of the Closing Date, Section 5(b) of the Agreement will be amended to reflect that the Employees severance entitlement will be the greater of (i) the aggregate amount of the Employees annual base salary, at the rate then in effect, from the date of termination through the end of the Employment Term and (ii) two (2) times his annual base salary, at the rate then in effect. |
5
|
Agreement, entered into between NCI Building Systems, Inc., NCI Group, Inc. and the following individuals as of the date following each such individuals name. Capitalized terms used but not defined herein shall have the meaning set forth in the Employment Agreement. |
Definition of Good
Reason
|
Effective as of the Closing Date, as defined in that certain Investment Agreement by and between the Company and Clayton, Dubilier & Rice Fund VIII, L.P., dated August 14, 2009 (as it may be amended from time to time, the Investment Agreement), Good Reason means any of the following events that occurs without the Employees prior written consent: | |
|
||
|
(i) any reduction in the amount of the Employees then-current base salary in excess of ten percent (10%) in any twelve month period; | |
|
||
|
(ii) (A) a material reduction in the Employees title; or (B) a material, adverse reduction in the duties or responsibilities of the Employee relative to the Employees duties or responsibilities as described in Section 2; | |
|
||
|
(iii) the breach or failure by the Company or Employer to perform any of its material covenants contained in this Agreement; or | |
|
||
|
(iv) any relocation of the Employees principal place of employment outside the Houston, Texas metropolitan area. | |
|
||
|
In order for a termination by the Employee to constitute a termination |
6
|
for Good Reason, the Employee must notify the Company of the circumstances claimed to constitute Good Reason in writing not later than the thirtieth (30th) day after such circumstances have arisen or occurred and must provide the Company with at least thirty (30) days within which to cure such circumstances before terminating employment, and, failing a cure, the Employee must terminate his employment within thirty (30) days following the expiration of such cure period. | |
|
||
Term of Agreement
(Section 3)
|
Effective as of the Closing Date, Section 3 of each of the Employment Agreements shall be amended to increase the notice period contained therein from 120 days to one year. |
7
NCI Group, Inc.
|
Nevada | |
|
||
Steelbuilding.com, Inc.
|
Delaware | |
|
||
Building Systems de Mexico, S.A. de C.V.
|
Mexico | |
|
||
Robertson-Ceco II Corporation
|
Delaware | |
|
||
Robertson Building Systems Limited
|
Canada |
NCI Building Systems, Inc. Form S-8
|
File No. 333-124266 | |
|
||
NCI Building Systems, Inc. Form S-8
|
File No. 333-14957 | |
|
||
NCI Building Systems, Inc. Form S-8
|
File No. 333-111139 | |
|
||
NCI Building Systems, Inc. Form S-8
|
File No. 333-34899 | |
|
||
NCI Building Systems, Inc. Form S-8
|
File No. 333-12921 | |
|
||
NCI Building Systems, Inc. Form S-8
|
File No. 333-111142 | |
|
||
NCI Building Systems, Inc. Form S-8
|
File No. 333-139983 | |
|
||
NCI Building Systems, Inc. Form S-8
|
File No. 333-162568 | |
|
||
NCI Building Systems, Inc. Form S-4
|
File No. 333-161842 | |
|
||
NCI Building Systems, Inc. Form S-3
|
File No. 333-156448 |
Name | Title | |
|
||
/s/
Kathleen J. Affeldt
|
Director | |
|
||
Kathleen J. Affeldt
|
||
|
||
/s/
James G. Berges
|
Director | |
|
||
James G. Berges
|
||
|
||
/s/
Gary L. Forbes
|
Director | |
|
||
Gary L. Forbes
|
||
|
||
/s/
John J. Holland
|
Director | |
|
||
John J. Holland
|
||
|
||
/s/
Lawrence J. Kremer
|
Director | |
|
||
Lawrence J. Kremer
|
||
|
||
/s/
George Martinez
|
Director | |
|
||
George Martinez
|
||
|
||
/s/
Nathan K. Sleeper
|
Director | |
|
||
Nathan K. Sleeper
|
||
|
||
/s/
Jonathan L. Zrebiec
|
Director | |
|
||
Jonathan L. Zrebiec
|
/s/ Norman C. Chambers | ||||
Norman C. Chambers | ||||
Chairman of the Board,
President and Chief Executive Officer |
/s/ Mark E. Johnson | ||||
Mark E. Johnson | ||||
Executive Vice President,
Chief Financial Officer and Treasurer |
/s/ Norman C. Chambers | ||||
Norman C. Chambers | ||||
Chairman of the Board,
President and Chief Executive Officer |
||||
/s/ Mark E. Johnson | ||||
Mark E. Johnson | ||||
Executive Vice President,
Chief Financial Officer and Treasurer |
||||