Attached files
file | filename |
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10-Q - FORM 10-Q - Cornerstone Building Brands, Inc. | h84471e10vq.htm |
EX-32.1 - EX-32.1 - Cornerstone Building Brands, Inc. | h84471exv32w1.htm |
EX-31.1 - EX-31.1 - Cornerstone Building Brands, Inc. | h84471exv31w1.htm |
EX-31.2 - EX-31.2 - Cornerstone Building Brands, Inc. | h84471exv31w2.htm |
EX-32.2 - EX-32.2 - Cornerstone Building Brands, Inc. | h84471exv32w2.htm |
EXCEL - IDEA: XBRL DOCUMENT - Cornerstone Building Brands, Inc. | Financial_Report.xls |
Exhibit 10.1
EXECUTION COPY
MUTUAL WAIVER AND CONSENT
This MUTUAL WAIVER AND CONSENT (this Agreement), dated as of September 6, 2011, is
entered into by and between NCI Building Systems, Inc. (the Company), a Delaware
corporation, on the one hand, and Clayton, Dubilier & Rice Fund VIII, L.P., a Cayman exempted
limited partnership (Fund VIII), and CD&R Friends & Family Fund VIII, L.P., a Cayman
exempted limited partnership (together with Fund VIII, the CD&R Funds), on the other
hand.
W I T N E S S E T H:
WHEREAS, the CD&R Funds are the owners of all the issued and outstanding shares of the
Companys Series B Cumulative Convertible Participating Preferred Stock (the Series B
Preferred Stock), issued pursuant to the Certificate of Designations, Preferences and Rights
of Series B Cumulative Convertible Participating Preferred Stock of NCI Building Systems, Inc. (the
Certificate of Designations) (defined terms used but not defined in this Agreement are
used as defined in the Certificate of Designations);
WHEREAS, pursuant to the Certificate of Designations, Series B Preferred Dividends are payable
quarterly in arrears, if, as and when so authorized and declared by the Board of Directors, on each
Series B Preferred Dividend Payment Date;
WHEREAS, pursuant to the Certificate of Designations and subject to the limitations therein
set forth, Series B Preferred Dividends may, at the option of the Company, be paid by issuing fully
paid and nonassessable shares of Series B Preferred Stock (a PIK Dividend) or in cash;
WHEREAS, the Company and the CD&R Funds are parties to a Stockholders Agreement, dated as of
October 20, 2009 (the Stockholders Agreement);
WHEREAS, pursuant to Section 6.1(a)(iii) of the Stockholders Agreement, the Company has
covenanted, subject to the terms and conditions therein set forth, that the Company will not,
without the prior consent of the CD&R Funds, authorize, issue, deliver, sell, pledge, dispose of,
grant, award or encumber any shares (or options, warrants, convertible securities or rights of any
kind to acquire or receive any shares) of capital stock, ownership interests or voting securities,
subject to certain exceptions, including issuances the aggregate proceeds of which to the Company
do not exceed $5 million in any given fiscal year (the $5 Million Issuance Basket);
WHEREAS, the next Series B Preferred Dividend Payment Date is September 15, 2011 (the
September 2011 Dividend Payment Date), and the Company wishes to pay the Series B
Preferred Dividend due on that date as a PIK Dividend, computed at a Base
Dividend Rate of 8.00% per annum, rather than the 12% per annum otherwise provided for in the
Certificate of Designations (the September 2011 Base Dividend Rate Reduction);
WHEREAS, the CD&R Funds are willing to consent to the September 2011 Base Dividend Rate
Reduction and waive their right to receive PIK Dividends on the September 2011 Dividend Payment
Date calculated at a rate in excess of 8.00% per annum, subject to and conditioned upon the
Companys waiver of its right to utilize all or any portion of the $5 Million Issuance Basket in
respect of its fiscal year ending October 30, 2011; and
WHEREAS, the Company is willing to waive its right to utilize all or any portion of the $5
Million Issuance Basket in respect of its fiscal year ending October 30, 2011 in return for the
CD&R Funds waiver and consent to the September 2011 Base Dividend Rate Reduction;
NOW, THEREFORE, in consideration of the premises and of the respective representations,
warranties, covenants and conditions contained herein, the parties hereto agree as follows:
Section 1. September 2011 Base Dividend Rate Reduction. Subject to and conditioned
on the Companys due performance of its covenant set forth in Section 2, the CD&R Funds consent to
the September 2011 Base Dividend Rate Reduction and waive any right to receive, and the accrual of,
PIK Dividends on the September 2011 Dividend Payment Date in respect of the Payment Period then
ended at the rate of 12% per annum, rather than 8.00% per annum. For avoidance of doubt, nothing
contained in this Agreement shall affect the accrual or payment of Series B Preferred Dividends in
respect of any Payment Period after the September 2011 Dividend Payment Date.
Section 2. Waiver of $5 Million Issuance Basket. Subject to and conditioned on the
CD&R Funds waiver and consent granted pursuant to Section 1, the Company waives any right under
the Stockholders Agreement to, and covenants not to, authorize, issue, deliver, sell, pledge,
dispose of, grant, award or encumber any shares (or options, warrants, convertible securities or
rights of any kind to acquire or receive any shares) of capital stock, ownership interests or
voting securities on or after the date hereof and prior to October 31, 2011, except (i)
with the prior written consent of the CD&R Funds, and (ii) grants in the ordinary course of
business consistent with past practice to employees or directors of the Company pursuant to an
existing stock option plan or restricted stock plan, pursuant to another plan or agreement adopted
or approved by the Board of Directors in the ordinary course with terms that are consistent with
past practice or pursuant to the issuance of shares in respect of any exercise of options or
settlement of any other share-based awards outstanding on the date of this Agreement, or as may be
granted after the date of this Agreement, as permitted by the Stockholders Agreement. For
avoidance of doubt, nothing contained in this Section 2 shall affect the right of the Company or
the CD&R Funds with respect to the authorization, issuance, delivery, sale,
pledge, disposal, grant, award or encumbrance of any shares on or after October 31, 2011.
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Section 3. Representations and Warranties. Each of the parties represents and
warrants that:
(a) it has been duly incorporated or organized and is validly existing and in good standing
under the laws of the jurisdiction of its organization, and has full right, power, authority and
capacity to enter into this Agreement and to consummate the transactions contemplated hereby;
(b) the execution, delivery and performance of this Agreement by it and the consummation of
the transactions contemplated hereby have been duly authorized by all necessary action on its part;
and
(c) this Agreement has been duly authorized, validly executed and delivered by it, and
assuming due authorization, execution and delivery of this Agreement by the other parties hereto,
constitutes its valid and binding obligations, enforceable against it in accordance with its terms,
except to the extent that the enforcement thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar Laws affecting the enforcement of creditors
rights generally and general equitable principles, regardless of whether such enforceability is
considered in a proceeding at Law or in equity.
Section 4. Successors and Assigns. This Agreement shall inure to the benefit of and
be enforceable by each of the parties hereto and its successors and assigns.
Section 5. Notice. All notices and other communications required or permitted under
this Agreement shall be given in accordance with Section 13(c) of the Certificate of Designations.
Section 6. Entire Agreement; Amendments. Except as otherwise specified herein, this
Agreement constitutes the entire agreement and understanding between the parties with respect to
the subject matter hereof. Except for the waivers and consent granted in Sections 1 and 2, each of
the terms of the Certificate of Designations and the Stockholders Agreement, as in effect as of the
date hereof, is confirmed and ratified by each of the parties and shall remain in full force and
effect.
Section 7. Modification or Waiver. No provision of this Agreement may be modified or
waived unless such modification or waiver is agreed to in writing and signed by each of the parties
hereto. No waiver by either party hereto at any time of any breach by the other party hereto of,
or compliance with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at
any prior or subsequent time.
Section 8. Governing Law; Validity. The interpretation, construction and performance
of this Agreement shall be governed by and construed and enforced in accordance with the internal
laws of the State of Delaware without regard to the principle of conflicts of laws. The invalidity
or enforceability of any provision of this Agreement
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shall not affect the validity or
enforceability of any of the other provisions of this Agreement, which other provisions shall
remain in full force and effect.
Section 9. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original and all of which together shall be deemed to be one and the
same instrument.
[Signature Page Immediately Follows]
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be duly executed by
its authorized officer as of the date set forth at the head of this Agreement.
NCI BUILDING SYSTEMS, INC. | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
CLAYTON, DUBILIER & RICE FUND VIII, L.P. | ||||||
By: | CD&R ASSOCIATES VIII, LTD., | |||||
its General Partner | ||||||
By: | ||||||
Name: | ||||||
Title: | Vice President, Treasurer & | |||||
Assistant Secretary | ||||||
CD&R FRIENDS & FAMILY FUND VIII, L.P | ||||||
By: | CD&R ASSOCIATES VIII, LTD., | |||||
its General Partner | ||||||
By: | ||||||
Name: | ||||||
Title: | Vice President, Treasurer & | |||||
Assistant Secretary |
[Signature Page to Mutual Waiver and Consent]
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