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Exhibit 10.2 [officer] INDEMNIFICATION
AGREEMENT This Indemnification Agreement ("Agreement") is
made and entered into as of _____ , 2008 by and between
Quanex Building Products Corporation, a Delaware corporation (the
"Corporation"), and
("Indemnitee"). This Agreement supersedes and replaces any and all
previous Agreements between the Corporation and Indemnitee covering
the subject matter of this Agreement. RECITALS WHEREAS,
highly competent persons have become more reluctant to serve
publicly-held corporations as directors and officers or in other
capacities unless they are provided with adequate protection
through insurance or adequate indemnification against inordinate
risks of claims and actions against them arising out of their
service to and activities on behalf of the corporation; WHEREAS,
the Board of Directors of the Corporation (the "Board") has
determined that, in order to attract and retain qualified
individuals, the Corporation will attempt to maintain on an ongoing
basis, at its sole expense, liability insurance to protect persons
serving the Corporation and its subsidiaries from certain
liabilities. Although the furnishing of such insurance has been a
customary and widespread practice among United States-based
corporations and other business enterprises, the Corporation
believes that, given current market conditions and trends, such
insurance may be available to it in the future only at higher
premiums and with more exclusions. At the same time, directors,
officers, and other persons in service to corporations or business
enterprises are being increasingly subjected to expensive and
time-consuming litigation relating to, among other things, matters
that traditionally would have been brought only against the
Corporation or business enterprise itself. Article XI of the
By-laws of the Corporation requires indemnification of the officers
and directors of the Corporation. Indemnitee may also be entitled
to indemnification pursuant to the General Corporation Law of the
State of Delaware (the "DGCL"). The By-laws and the DGCL expressly
provide that the indemnification provisions set forth therein are
not exclusive, and thereby contemplate that contracts may be
entered into between the Corporation and members of the board of
directors, officers and other persons with respect to
indemnification; WHEREAS, the uncertainties relating to such
insurance and to indemnification have increased the difficulty of
attracting and retaining such persons; WHEREAS, the Board has
determined that the increased difficulty in attracting and
retaining such persons is detrimental to the best interests of the
Corporation and its stockholders and that the Corporation should
act to assure such persons that there will be increased certainty
of such protection in the future; WHEREAS, it is reasonable,
prudent and necessary for the Corporation contractually to obligate
itself to indemnify, and to advance expenses on behalf of, such
persons to the fullest extent permitted by applicable law so that
they will serve or continue to serve the Corporation free from
undue concern that they will not be so indemnified; WHEREAS, this
Agreement is a supplement to and in furtherance of Article XI
of the By-laws of the Corporation and any rights granted under the
Certificate of Incorporation of the Corporation and any resolutions
adopted pursuant thereto, and shall not be deemed a substitute
therefor, nor to diminish or abrogate any rights of Indemnitee
thereunder;
WHEREAS, Indemnitee is willing to serve as an officer of the
Corporation, and the Corporation desires Indemnitee to serve in
such capacity and is willing to indemnify Indemnitee as described
hereunder; and NOW, THEREFORE, in consideration of the premises and
the covenants contained herein, the Corporation and Indemnitee do
hereby covenant and agree as follows: Section 1. Services
to the Corporation. Indemnitee agrees to serve as an officer of
the Corporation and, at the request of the Corporation, as a
director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise. Indemnitee may at any time and for any reason resign or
be removed from such position (subject to any other contractual
obligation or any obligation imposed by operation of law), in which
event the Corporation shall have no obligation under this Agreement
to continue Indemnitee in such position. This Agreement shall not
be deemed an employment contract between the Corporation (or any of
its subsidiaries or any Enterprise) and Indemnitee. Indemnitee
specifically acknowledges that Indemnitee’s employment with
the Corporation (or any of its subsidiaries or any Enterprise), if
any, is at will, and the Indemnitee may be discharged at any time
for any reason, with or without cause, except as may be otherwise
provided in any written employment contract between Indemnitee and
the Corporation (or any of its subsidiaries or any Enterprise),
other applicable formal severance policies duly adopted by the
Board, or, with respect to service as an officer of the
Corporation, by the Corporation’s Certificate of
Incorporation, the Corporation’s By-laws, and the DGCL. The
foregoing notwithstanding, this Agreement shall continue in force
after Indemnitee has ceased to serve as an officer of the
Corporation. Section 2. Definitions. As used in this
Agreement: (a) References to "agent" shall mean any person who
is or was a director, officer, or employee of the Corporation or a
Subsidiary of the Corporation or other person authorized by the
Corporation to act for the Corporation, to include such person
serving in such capacity as a director, officer, employee,
fiduciary or other official of another corporation, partnership,
limited liability company, joint venture, trust or other Enterprise
at the request of, for the convenience of, or to represent the
interests of the Corporation or a Subsidiary of the Corporation.
(b) A "Change in Control" shall be deemed to occur upon the
earliest to occur after the date of this Agreement of any of the
following events: i. Acquisition of Stock by Third Party. Any
Person (as defined below) is or becomes the Beneficial Owner (as
defined below), directly or indirectly, of securities of the
Corporation representing thirty-five percent (35%) or more of the
combined voting power of the Corporation’s then outstanding
securities, without prior approval of at least two-thirds members
of the Board of Directors in office immediately prior to such
person attained such percentage interest; ii. Change in Board
of Directors. During any period of two (2) consecutive years
(not including any period prior to the execution of this
Agreement), individuals who at the beginning of such period
constitute the Board, and any new director (other than a director
designated by a person who has entered into an agreement with the
Corporation to effect a transaction described in
Sections 2(b)(i), 2(b)(iii) or 2(b)(iv)) whose election by the
Board or nomination for election by the Corporation’s
stockholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the
beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to
constitute at least a majority of the members of the Board;
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iii. Corporate Transactions. The effective date of a merger
or consolidation of the Corporation with any other entity, other
than a merger or consolidation which would result in the voting
securities of the Corporation outstanding immediately prior to such
merger or consolidation continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity) more than 51% of the combined voting power
of the voting securities of the surviving entity outstanding
immediately after such merger or consolidation and with the power
to elect at least a majority of the board of directors or other
governing body of such surviving entity; iv. Liquidation. The
approval by the stockholders of the Corporation of a complete
liquidation of the Corporation or an agreement for the sale or
disposition by the Corporation of all or substantially all of the
Corporation’s assets; and v. Other Events. There occurs
any other event of a nature that would be required to be reported
in response to Item 6(e) of Schedule 14A of
Regulation 14A (or a response to any similar item on any
similar schedule or form) promulgated under the Exchange Act (as
defined below), whether or not the Corporation is then subject to
such reporting requirement. For purposes of this Section 2(b),
the following terms shall have the following meanings: (A)
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time. (B) "Person" shall have the meaning as
set forth in Sections 13(d) and 14(d) of the Exchange Act;
provided, however, that Person shall exclude (i) the
Corporation, (ii) any trustee or other fiduciary holding
securities under an employee benefit plan of the Corporation, and
(iii) any corporation owned, directly or indirectly, by the
stockholders of the Corporation in substantially the same
proportions as their ownership of stock of the Corporation. (C)
"Beneficial Owner" shall have the meaning given to such term in
Rule 13d-3 under the Exchange Act; provided, however, that
Beneficial Owner shall exclude any Person otherwise becoming a
Beneficial Owner by reason of the stockholders of the Corporation
approving a merger of the Corporation with another entity.
(c) "Corporate Status" describes the status of a person who is
or was a director, officer, employee or agent of the Corporation or
of any other corporation, limited liability company, partnership or
joint venture, trust, employee benefit plan or other enterprise
which such person is or was serving at the request of the
Corporation. (d) "Disinterested Director" means a director of
the Corporation who is not and was not a party to the Proceeding in
respect of which indemnification is sought by Indemnitee.
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(e) "Enterprise" shall mean the Corporation and any other
corporation, limited liability company, partnership, joint venture,
trust, employee benefit plan or other enterprise of which
Indemnitee is or was serving at the request of the Corporation as a
director, officer, employee, agent or fiduciary.
(f) "Expenses" shall include all reasonable attorneys’
fees, retainers, court costs, transcript costs, fees of experts,
witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees,
any federal, state, local or foreign taxes imposed on Indemnitee as
a result of the actual or deemed receipt of any payments under this
Agreement, ERISA excise taxes and penalties, and all other
disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or
defend, investigating, being or preparing to be a witness in, or
otherwise participating in, a Proceeding. Expenses also shall
include (i) Expenses incurred in connection with any appeal
resulting from any Proceeding, including without limitation the
premium, security for, and other costs relating to any cost bond,
supersedeas bond, or other appeal bond or its equivalent, and (ii)
for purposes of Section 14(d) only, Expenses incurred by Indemnitee
in connection with the interpretation, enforcement or defense of
Indemnitee’s rights under this Agreement, by litigation or
otherwise. The parties agree that for the purposes of any
advancement of Expenses for which Indemnitee has made written
demand to the Corporation in accordance with this Agreement, all
Expenses included in such demand that are certified by affidavit of
Indemnitee’s counsel as being reasonable shall be presumed
conclusively to be reasonable. Expenses, however, shall not include
amounts paid in settlement by Indemnitee or the amount of judgments
or fines against Indemnitee. (g) "Independent Counsel" means a
law firm, or a member of a law firm, that is experienced in matters
of corporation law and neither presently is, nor in the past five
years has been, retained to represent: (i) the Corporation or
Indemnitee in any matter material to either such party (other than
with respect to matters concerning the Indemnitee under this
Agreement, or of other indemnitees under similar indemnification
agreements), or (ii) any other party to the Proceeding giving
rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term "Independent Counsel" shall not include any
person who, under the applicable standards of professional conduct
then prevailing, would have a conflict of interest in representing
either the Corporation or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement. The Corporation
agrees to pay the reasonable fees and expenses of the Independent
Counsel referred to above and to fully indemnify such counsel
against any and all Expenses, claims, liabilities and damages
arising out of or relating to this Agreement or its engagement
pursuant hereto. (h) The term "Proceeding" shall include any
threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or any other actual, threatened or completed
proceeding, whether brought in the right of the Corporation or
otherwise and whether of a civil, criminal, administrative,
legislative, or investigative (formal or informal) nature,
including any appeal therefrom, in which Indemnitee was, is or will
be involved as a party, potential party, non-party witness or
otherwise by reason of the fact that Indemnitee is or was a
director or officer of the Corporation, by reason of any action
taken by him or of any action on his part while acting as director
or officer of the Corporation, or by reason of the fact that he is
or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, limited
liability company, partnership, joint venture, trust or other
enterprise, in each case whether or not serving in such capacity at
the time any liability or expense is incurred for which
indemnification, reimbursement, or advancement of expenses can be
provided under this Agreement. If the Indemnitee believes in good
faith that a given situation may lead to or culminate in the
institution of a Proceeding, this shall be considered a Proceeding
under this paragraph.
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(i) Reference to "other enterprise" shall include employee
benefit plans; references to "fines" shall include any excise tax
assessed with respect to any employee benefit plan; references to
"serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee
benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner he reasonably believed to be in
the best interests of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in manner "not
opposed to the best interests of the Corporation" as referred to in
this Agreement. Section 3. Indemnity in Third-Party
Proceedings. The Corporation shall indemnify Indemnitee in
accordance with the provisions of this Section 3 if Indemnitee
is, or is threatened to be made, a party to or a participant in any
Proceeding, other than a Proceeding by or in the right of the
Corporation to procure a judgment in its favor. Pursuant to this
Section 3, Indemnitee shall be indemnified to the fullest
extent permitted by applicable law against all Expenses, judgments,
fines and amounts paid in settlement actually and reasonably
incurred by Indemnitee or on his behalf in connection with such
Proceeding or any claim, issue or matter therein, if Indemnitee
acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Corporation and, in the
case of a criminal Proceeding had no reasonable cause to believe
that his conduct was unlawful. The parties hereto intend that this
Agreement shall provide to the fullest extent permitted by law for
indemnification in excess of that expressly permitted by statute,
including, without limitation, any indemnification provided by the
Corporation’s Certificate of Incorporation, its Bylaws, vote
of its stockholders or disinterested directors or applicable law.
Section 4. Indemnity in Proceedings by or in the Right of
the Corporation. The Corporation shall indemnify Indemnitee in
accordance with the provisions of this Section 4 if Indemnitee
is, or is threatened to be made, a party to or a participant in any
Proceeding by or in the right of the Corporation to procure a
judgment in its favor. Pursuant to this Section 4, Indemnitee
shall be indemnified to the fullest extent permitted by applicable
law against all Expenses actually and reasonably incurred by him or
on his behalf in connection with such Proceeding or any claim,
issue or matter therein, if Indemnitee acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the Corporation. No indemnification for Expenses shall
be made under this Section 4 in respect of any claim, issue or
matter as to which Indemnitee shall have been finally adjudged by a
court to be liable to the Corporation, unless and only to the
extent that the Delaware Court of Chancery or any court in which
the Proceeding was brought shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnification. Section 5. Indemnification for
Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provisions of this Agreement, to the
fullest extent permitted by applicable law and to the extent that
Indemnitee is a party to (or a participant in) and is successful,
on the merits or otherwise, in any Proceeding or in defense of any
claim, issue or matter therein, in whole or in part, the
Corporation shall indemnify Indemnitee against all Expenses
actually and reasonably incurred by him in connection therewith. If
Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less
than all claims, issues or matters in such Proceeding, the
Corporation shall indemnify Indemnitee against all Expenses
actually and reasonably incurred by him or on his behalf in
connection with or related to each successfully resolved claim,
issue or matter to the fullest extent permitted by law. For
purposes of this Section and without limitation, the termination of
any claim, issue or matter in such a Proceeding by dismissal, with
or without prejudice, shall be deemed to be a successful result as
to such claim, issue or matter.
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Section 6. Indemnification For Expenses of a
Witness. Notwithstanding any other provision of this Agreement,
to the fullest extent permitted by applicable law and to the extent
that Indemnitee is, by reason of his Corporate Status, a witness or
otherwise asked to participate in any Proceeding to which
Indemnitee is not a party, he shall be indemnified against all
Expenses actually and reasonably incurred by him or on his behalf
in connection therewith. Section 7. Partial
Indemnification. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Corporation for some or
a portion of Expenses, but not, however, for the total amount
thereof, the Corporation shall nevertheless indemnify Indemnitee
for the portion thereof to which Indemnitee is entitled.
Section 8. Additional Indemnification.
(a) Notwithstanding any limitation in Sections 3, 4, or
5, the Corporation shall indemnify Indemnitee to the fullest extent
permitted by applicable law if Indemnitee is a party to or
threatened to be made a party to any Proceeding (including a
Proceeding by or in the right of the Corporation to procure a
judgment in its favor) against all Expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred by
Indemnitee in connection with the Proceeding. (b) For purposes
of Section 8(a), the meaning of the phrase "to the fullest
extent permitted by applicable law" shall include, but not be
limited to: i. to the fullest extent permitted by the
provision of the DGCL that authorizes or contemplates additional
indemnification by agreement, or the corresponding provision of any
amendment to or replacement of the DGCL, and ii. to the
fullest extent authorized or permitted by any amendments to or
replacements of the DGCL adopted after the date of this Agreement
that increase the extent to which a corporation may indemnify its
officers and directors. Section 9. Exclusions.
Notwithstanding any provision in this Agreement, the Corporation
shall not be obligated under this Agreement to make any indemnity
in connection with any claim made against Indemnitee: (a) for
which payment has actually been made to or on behalf of Indemnitee
under any insurance policy or other indemnity provision, except
with respect to any excess b
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