INDEMNIFICATION AGREEMENT
Indemnification
Agreement, dated as of
, between NCI Building Systems, Inc., a Delaware corporation (the
“ Company ”), and
(“ Indemnitee ”).
WHEREAS, qualified
persons are reluctant to serve corporations as directors or
otherwise unless they are provided with broad indemnification and
insurance against claims arising out of their service to and
activities on behalf of the corporations; and
WHEREAS, the
Company has determined that attracting and retaining such persons
is in the best interests of the Company’s stockholders and
that it is reasonable, prudent and necessary for the Company to
indemnify such persons to the fullest extent permitted by
applicable law and to provide reasonable assurance regarding
insurance;
NOW, THEREFORE,
the Company and Indemnitee hereby agree as follows:
1.
Defined Terms; Construction .
(a)
Defined Terms . As used in this Agreement, the following
terms shall have the following meanings:
“ Change
in Control ” means, and shall be deemed to have occurred
if, on or after the date of this Agreement, ( i ) any
“person” (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended), other
than ( A ) a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any of its
subsidiaries acting in such capacity, or ( B ) a corporation
owned directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock of
the Company, is or becomes the “beneficial owner” (as
defined in Rule 13d-3 under said Act), directly or indirectly,
of securities of the Company representing more than 20% of the
total voting power represented by the Company’s then
outstanding Voting Securities, ( ii ) during any period of
two consecutive years, individuals who at the beginning of such
period constitute the board of directors of the Company and any new
director whose election by the board of directors of the Company or
nomination for election by the Company’s stockholders was
approved by a vote of at least two-thirds (2/3) 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 a
majority thereof, ( iii ) the stockholders of the Company
approve a merger or consolidation of the Company with any other
corporation other than a merger or consolidation that would result
in the Voting Securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining
outstanding or by being converted into Voting Securities of the
surviving entity) at least 80% of the total voting power
represented by the Voting
Securities of
the Company or such surviving entity outstanding immediately after
such merger or consolidation, ( iv ) the stockholders of the
Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of (in one
transaction or a series of related transactions) all or
substantially all of its assets, or ( v ) the Company shall
file or have filed against it, and such filing shall not be
dismissed, any bankruptcy, insolvency or dissolution proceedings,
or a trustee, administrator or creditors committee shall be
appointed to manage or supervise the affairs of the
Company.
“
Corporate Status ” means the status of a person who is
or was a director (or a member of any committee of a board of
directors), officer, employee or agent (including without
limitation a manager of a limited liability company) of the Company
or any of its subsidiaries, or of any predecessor thereof, or is or
was serving at the request of the Company as a director (or a
member of any committee of a board of directors), officer, employee
or agent (including without limitation a manager of a limited
liability company) of another corporation, limited liability
company, partnership, joint venture, trust or other enterprise, or
of any predecessor thereof, including service with respect to an
employee benefit plan.
“
Determination ” means a determination that either (
x ) there is a reasonable basis for the conclusion that
indemnification of Indemnitee is proper in the circumstances
because Indemnitee met a particular standard of conduct (a “
Favorable Determination ”) or ( y ) there is no
reasonable basis for the conclusion that indemnification of
Indemnitee is proper in the circumstances because Indemnitee met a
particular standard of conduct (an “ Adverse
Determination ”). An Adverse Determination shall include
the decision that a Determination was required in connection with
indemnification and the decision as to the applicable standard of
conduct.
“
DGCL ” means the General Corporation Law of the State
of Delaware, as amended from time to time.
“
Expenses ” means all attorneys’ fees and
expenses, retainers, court, arbitration and mediation costs,
transcript costs, fees of experts, bonds, witness fees, costs of
collecting and producing documents, travel expenses, duplicating
costs, printing and binding costs, telephone charges, postage,
delivery service fees 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, appealing or otherwise
participating in a Proceeding.
“
Independent Legal Counsel ” means an attorney or firm
of attorneys competent to render an opinion under the applicable
law, selected in accordance with the provisions of
Section 5(e), who has not otherwise performed any services for
the Company or any of its
subsidiaries or
for Indemnitee within the last three years (other than with respect
to matters concerning the rights of indemnitees under indemnity
agreements).
“
Proceeding ” means a threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative
or investigative, including without limitation a claim, demand,
discovery request, formal or informal investigation, inquiry,
administrative hearing, arbitration or other form of alternative
dispute resolution, including an appeal from any of the
foregoing.
“ Voting
Securities ” means any securities of the Company that
vote generally in the election of directors.
(b)
Construction . For purposes of this Agreement,
(i)
References to the Company and any of its “subsidiaries”
shall include any corporation, limited liability company,
partnership, joint venture, trust or other entity or enterprise
that before or after the date of this Agreement is party to a
merger or consolidation with the Company or any such subsidiary or
that is a successor to the Company as contemplated by Section 8(d)
(whether or not such successor has executed and delivered the
written agreement contemplated by Section 8(d)).
(ii)
References to “fines” shall include any excise taxes
assessed on Indemnitee with respect to an employee benefit
plan.
(iii)
References to a “witness” in connection with a
Proceeding shall inc
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