Exhibit
10.27
INDEMNIFICATION
AGREEMENT
This Agreement (the
“Agreement”), effective as of
, between NCI BUILDING SYSTEMS, INC., a Delaware corporation (the
“Company”), and
(“Indemnitee”), currently or formerly a
director and/or officer of the Company and/or one or more of its
subsidiaries.
WITNESSETH:
WHEREAS,
the Company desires to have
qualified directors serving on its Board of Directors and officers
serving the Company and/or one or more of its subsidiaries who are
willing to make decisions that in their judgment are in the
Company’s best interest without any undue threat of personal
liability;
WHEREAS,
the Certificate of Incorporation of
the Company ( “Certificate of
Incorporation”) and the Company’s Bylaws
(“Bylaws”) require indemnification of
each director or officer of the Company and/or one or more of its
subsidiaries to the fullest extent permitted by the Delaware
General Corporation Law, as the same exists or may be hereafter
amended;
WHEREAS,
the Company desires to grant to
Indemnitee the maximum indemnification for any Loss (hereinafter
defined) permitted by the Certificate of Incorporation, Bylaws and
applicable law;
WHEREAS,
developments with respect to the
terms and availability of directors’ and officers’
liability insurance and with respect to the application, amendment,
and enforcement of statutory, charter, and bylaw indemnification
provisions generally have raised questions concerning the adequacy
and reliability of the protection afforded to persons intended to
be protected thereunder; and
WHEREAS,
in order to resolve such questions
and thereby induce Indemnitee to serve and to continue serving as a
director and/or officer of the Company and/or one or more of its
subsidiaries, the Company has agreed to enter into this Agreement
with Indemnitee.
NOW, THEREFORE,
in consideration of
Indemnitee’s agreement to serve and to continue servings as a
director and/or officer of the Company and/or one or more of its
subsidiaries, the parties hereto agree as follows:
1. Indemnity of
Indemnitee . The
Company shall indemnify Indemnitee in his capacity as director
and/or officer of the Company and/or one or more of its
subsidiaries and, if serving at the request of the Company as a
director, officer, trustee, employee, agent, or similar functionary
of another corporation, trust, partnership, Joint venture, sole
proprietorship, employee benefit plan, or other enterprise, in each
of those capacities, against any and all Losses, including
reasonable Expenses, that may be incurred by Indemnitee, either as
a party, witness, or potential party or witness, in connection with
or resulting from (a) any threatened, pending, or completed
action, suit, or proceeding, whether brought in the right of the
Company or otherwise and whether civil, criminal, administrative,
arbitrative, or investigative (a
“Proceeding”), (b) an appeal in such
a Proceeding, or (c) any inquiry or investigation that could
lead to such a Proceeding, all to the fullest extent permitted by
all applicable laws. All indemnity obligations
and/or liabilities of the Company hereunder
shall be without limit and without regard to the cause or causes
thereof or the negligence or gross negligence of any person or
persons (expressly including Indemnitee), whether such negligence
or gross negligence of Indemnitee be sole, joint or concurrent,
active, or passive.
2. Continuation of
Indemnity . All
agreements and obligations of the Company contained herein shall be
retroactive to the date the Indemnitee first began serving as a
director and/or officer of the Company and/or one or more of its
subsidiaries, shall continue during the entire period Indemnitee is
a director and/or officer of the Company and/or one or more of its
subsidiaries, and shall continue after Indemnitee no longer serves
as a director or officer of the Company and/or one or more of its
subsidiaries so long as Indemnitee shall be subject to any possible
claim or threatened, pending, or completed Proceeding, any appeal
in a Proceeding, and any inquiry or investigation that could lead
to a Proceeding by reason of the fact that Indemnitee was serving,
or had consented to serve, in any capacity referred to
herein.
3. Notification and Defense of
Claim . Promptly
after receipt by Indemnitee of notice of any claim against
Indemnitee or the commencement of any Proceeding, Indemnitee will,
if a claim in respect thereof is to be made against the Company
under this Agreement, notify the Company of the assertion or any
such claim or the commencement thereof; but the omission so to
notify the Company will not relieve it from any liability under
this Agreement unless such delay in notification actually
prejudiced the Company (and then only to the extent the Company was
actually prejudiced thereby) and in addition, the Company shall not
be relieved from any liability which it may have to Indemnitee
otherwise than under this Agreement. With respect to any such
Proceeding as to which Indemnitee notifies the Company of the
commencement thereof:
(a) The Company will be entitled to
participate therein at its own expense.
(b) Except as otherwise provided
below, to the extent that it may wish, the Company jointly with any
other indemnifying party similarly notified will be entitled to
assume the defense thereof, with counsel satisfactory to
Indemnitee. After notice from the Company to Indemnitee of its
election to assume the defense thereof, the Company will not be
liable to Indemnitee under this Agreement for any legal or other
expenses subsequently incurred by Indemnitee in connection with the
defense thereof other than reasonable costs of investigation or as
otherwise provided below. Indemnitee shall have the right to employ
his own counsel in such Proceeding, but the fees and expenses of
such counsel incurred after notice from the Company of its
assumption of the defense thereof shall be at the expense of
Indemnitee unless (i) the employment of counsel by Indemnitee
has been authorized by the Company, (ii) Indemnitee shall have
reasonably concluded that there may be a conflict of interest
between the Company and Indemnitee in the conduct of the defense of
such action, or (iii) the Company shall not in fact have
employed counsel to assume the defense of such action, in each of
which cases the fees and expenses of counsel shall be at the
expense of the Company. The Company shall not be entitled to assume
the defense of any Proceeding brought by or on behalf of the
Company or as to which Indemnitee shall have made the conclusion
provided for in (ii) above.
(c) The Company shall not be liable
to indemnify Indemnitee under this Agreement for any amounts paid
in settlement of any action or claim effected without its written
consent. The Company shall not settle any action or claim in any
manner which would impose any penalty or limitation on Indemnitee
without Indemnitee’s written consent. Neither the Company nor
Indemnitee will unreasonably withhold their consent to any proposed
settlement.
4. Expenses of Successful
Party; Advances of Expenses.
(a) Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is or
has been successful on the merits or otherwise in defense of any
Proceeding or in defense of any claim, issue or matter therein,
including the dismissal of any action or claim without prejudice,
Indemnitee shall be indemnified against all Expenses incurred in
connection therewith.
(b) Reasonable Expenses incurred by
Indemnitee pursuant to Section 1 of this Agreement in any
Proceeding shall be paid by the Company as incurred and in advance
of the final disposition of the Proceeding, provided the Indemnitee
undertakes in writing (in form and substance reasonably
satisfactory to the Company) to repay the amount paid or reimbursed
if it is ultimately determined that Indemnitee is not entitled to
indemnification for such Expenses. The written undertaking
described above must be an unlimited general obligation of
Indemnitee but need not be secured. Such undertaking shall be
without reference to the financial ability of Indemnitee to make
repayment. All such Expenses shall be paid or reimbursed by the
Company from time to time within 20 days after the Company receives
the written request by Indemnitee accompanied by substantiating
documentation of such expenses.
5. Right of Indemnitee to
Indemnification Upon Application: Procedure Upon
Application . Upon
the written request of Indemnitee to be indemnified pursuant to
this Agreement (other than pursuant to Section 4(b) hereof),
the Company shall cause the Reviewing Party (hereinafter defined)
to determine, within 45 days, whether or not the Indemnitee has met
the relevant standards for indemnification required by this
Agreement. The termination of a Proceeding by judgment, order,
settlement, or conviction, or on a plea of nolo contendere or its
equivalent, shall not of itself create a presumption that
Indemnitee did not meet the requirements for indemnification
required by this Agreement. If a determination of indemnification
is to be made by Independent Legal Counsel (hereinafter defined),
such Independent Legal Counsel shall render its written opinion to
the Company and Indemnitee as to what extent Indemnitee will be
permitted to be indemnified. The Company shall pay the reasonable
fees of Independent Legal Counsel and indemnify and hold harmless
such Indemnitee against any and al
