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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:
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(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.
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(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 all expenses (including attorneys’
fees), claims, liabilities, and damages arising out of or r
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