INDEMNIFICATION AGREEMENT
Exhibit 10.22
This Indemnification Agreement is dated as of
_____, 2011 (this
“Agreement”) and is between AMH Investment Holdings Corp., a Delaware corporation formerly
known as Xxxxx Investment Holdings Corp. (“Holdings”), AMH Intermediate Holdings Corp., a
Delaware corporation formerly known as Xxxxx Intermediate Holdings Corp. (“Intermediate”),
and Associated Materials, LLC, a Delaware limited liability company (“Associated,” and
together with Holdings and Intermediate, the “Companies”), and
_____
(“Indemnitee”).
WHEREAS, Indemnitee is a director and/or officer of one or more of the Companies and may also
serve as a director, officer, partner, member, manager, employee, consultant, fiduciary or agent
(collectively, the “Indemnifiable Positions”) of other corporations, limited liability
companies, partnerships, joint ventures, trusts, employee benefit plans or other enterprises
controlled by the Companies (collectively, the “Controlled Entities”);
WHEREAS, in order to induce Indemnitee to continue to serve as a director and/or officer of
the Companies and/or in other Indemnifiable Positions of the Controlled Entities, the Companies
wish to provide for the indemnification of, and the advancement of Expenses (as defined herein) to,
Indemnitee to the maximum extent permitted by law;
WHEREAS, the Certificates of Incorporation of Holdings and Intermediate (as amended from time
to time, the “Charters”) provide for the indemnification of the directors and officers of
Holdings and Intermediate to the fullest extent permitted under the Delaware General Corporation
Law (the “DGCL”);
WHEREAS, the Bylaws of Holdings and Intermediate (as amended from time to time, the
“Bylaws”) provide certain indemnification rights to the directors and officers of Holdings
and Intermediate; and
WHEREAS, the Limited Liability Company Agreement of Associated (as amended from time to time,
the “LLC Agreement”) provides for the indemnification of the directors and officers of
Associated to the fullest extent permitted under the Delaware Limited Liability Company Act (the
“LLC Act”);
WHEREAS, the Stockholders Agreement, dated as of October 13, 2010 (as amended from time to
time, the “Stockholders Agreement”), by and among the Companies, Xxxxxxx & Xxxxxxxx Capital
Partners VI, L.P., a Delaware limited partnership, Xxxxxxx & Xxxxxxxx Capital Partners VI
(Parallel), L.P., a Delaware limited partnership, Xxxxxxx & Xxxxxxxx Capital Executives VI, L.P., a
Delaware limited partnership, Xxxxxxx & Xxxxxxxx Capital Associates VI, L.P., a Delaware limited
partnership, and the other parties thereto provides certain indemnification rights to certain of
the parties thereto, including certain of the Companies’ directors and officers;
WHEREAS, the Companies and Indemnitee desire to enter into this Agreement to set forth their
agreement regarding indemnification and the advancement of Expenses and to clarify the priority of
the indemnification and advancement of Expenses with respect to certain Jointly Indemnifiable
Claims (as defined herein).
NOW, THEREFORE, in consideration of Indemnitee’s service or continued service to the Companies
and/or the Controlled Entities and the covenants and agreements set forth below, and for other good
and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties
hereto, intending to be legally bound, hereby agree as follows.
Section 1. Indemnification.
To the fullest extent permitted by the DGCL:
(a) The Companies, jointly and severally, shall indemnify Indemnitee if Indemnitee was or is
made or is threatened to be made a party to, or is otherwise involved in, as a witness or
otherwise, any threatened, pending or completed Action, Suit or Proceeding (brought in the right of
any of the Companies or otherwise), whether civil, criminal, administrative or investigative and
whether formal or informal, including appeals.
(b) The indemnification provided by this Section 1 shall be from and against all loss
and liability suffered and Expenses (including attorneys’ fees), Judgments, Fines and Amounts Paid
in Settlement actually and reasonably incurred by or on behalf of Indemnitee in connection with
such Action, Suit or Proceeding, including any appeals.
Section 2. Payment of Expenses. To the fullest extent permitted by the DGCL,
Expenses (including attorneys’ fees) incurred by Indemnitee in appearing at, participating in or
defending any Action, Suit or Proceeding or in connection with an enforcement action as
contemplated by Section 3(d), shall be paid, jointly and severally, by the Companies in
advance of the final disposition of such Action, Suit or Proceeding or such enforcement action
within 15 days after receipt by the Companies of a statement or statements from Indemnitee
requesting such advance or advances from time to time. The Indemnitee hereby undertakes to repay
any amounts advanced (without interest) to the extent that it is ultimately determined that
Indemnitee is not entitled under this Agreement to be indemnified by the Companies in respect of
such Action, Suit or Proceeding or such enforcement action as contemplated by Section 3(d).
No other form of undertaking shall be required of Indemnitee other than the execution of this
Agreement. This Section 2 shall be subject to Section 3(b) and shall not apply to
any claim made by Indemnitee for which indemnity is excluded pursuant to Section 6(a).
Section 3. Procedure for Indemnification; Notification and Defense of Claim.
(a) Promptly after receipt by Indemnitee of notice of the commencement of any Action, Suit or
Proceeding, Indemnitee shall, if a claim in respect thereof is to be made or could be made against
the Companies hereunder, notify the Companies in writing of the commencement thereof. The failure
to promptly notify the Companies of the commencement of the Action, Suit or Proceeding, or of
Indemnitee’s request for indemnification, will not relieve the Companies from any liability that
they may have to Indemnitee hereunder, except to the extent the Companies are actually and
materially prejudiced (through the forfeiture of substantive rights or defenses) in their defense
of such Action, Suit or Proceeding as a result of such failure. To obtain indemnification under
this Agreement, Indemnitee shall submit to the Companies a written request therefor including such
documentation and information as is
reasonably available to Indemnitee and is reasonably necessary to enable the Companies to
determine whether and to what extent Indemnitee is entitled to indemnification. In addition,
Indemnitee shall reasonably cooperate with the Companies and shall give the Companies such
additional information as the Companies may reasonably require.
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(b) With respect to any Action, Suit or Proceeding of which the Companies are so notified as
provided in this Agreement, the Companies shall, subject to the last two sentences of this
paragraph and subject to the Companies’ prior determination pursuant to Section 3(c) to
grant Indemnitee’s indemnification request with respect to such Action, Suit or Proceeding, be
entitled to assume the defense of such Action, Suit or Proceeding, with counsel reasonably
acceptable to Indemnitee (which acceptance shall not be unreasonably withheld or delayed), upon the
delivery to Indemnitee of written notice of its election to do so. After delivery of such notice,
approval of such counsel by Indemnitee and the retention of such counsel by the Companies, the
Companies will not be liable to Indemnitee under this Agreement for any subsequently-incurred fees
of separate counsel engaged by or on behalf of Indemnitee with respect to the same Action, Suit or
Proceeding unless the Companies do not continue to retain such counsel to defend such Action, Suit
or Proceeding. Notwithstanding the foregoing, if Indemnitee, based on the advice of his or her
counsel, shall have reasonably concluded (with written notice being given to the Companies setting
forth the basis for such conclusion) that, in the conduct of any such defense, there is or is
reasonably likely to be a conflict of interest or position between any of the Companies and
Indemnitee with respect to a significant issue, then the Companies will not be entitled, without
the written consent of Indemnitee, to assume such defense. In addition, the Companies will not be
entitled, without the written consent of Indemnitee, to assume the defense of any claim brought by
or in the right of any of the Companies.
(c) The determination whether to grant Indemnitee’s indemnification request shall be made
promptly and in any event within 30 days following the Companies’ receipt of a request for
indemnification in accordance with Section 3(a). If the Companies determine that
Indemnitee is entitled to such indemnification, the Companies will make payment to Indemnitee of
the indemnifiable amount within such 30 day period. If the Companies’ determination of whether to
grant Indemnitee’s indemnification request shall not have been made within such 30 day period, the
requisite determination of entitlement to indemnification shall, subject to Section 6,
nonetheless be deemed to have been made and Indemnitee shall be entitled to such indemnification,
absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact
necessary to make Indemnitee’s statement not materially misleading, in connection with the request
for indemnification, or (ii) a prohibition of such indemnification under the DGCL.
(d) In the event that (i) the Companies determine in accordance with this Section 3
that Indemnitee is not entitled to indemnification under this Agreement, (ii) the Companies deny a
request for indemnification, in whole or in part, or fails to respond or make a determination of
entitlement to indemnification within 30 days following receipt of a request for indemnification as
described above, (iii) payment of indemnification is not made within such 30 day period, (iv)
advancement of Expenses is not timely made in accordance with Section 2, or (v) any of the
Companies or any other person takes or threatens to take any action to declare this Agreement void
or unenforceable, or institutes any litigation or other action or proceeding
designed to deny, or to recover from, the Indemnitee the benefits provided or intended to be
provided to Indemnitee hereunder, Indemnitee shall be entitled to an adjudication in any court of
competent jurisdiction of his or her entitlement to such indemnification or advancement of
Expenses. To the extent not already advanced pursuant to Section 2, Indemnitee’s Expenses
(including attorneys’ fees) incurred in connection with successfully establishing Indemnitee’s
right to indemnification or advancement of Expenses, in whole or in part, in any such proceeding or
otherwise shall also be indemnified, jointly and severally, by the Companies; provided that
to the extent Indemnitee is successful in part and unsuccessful in part in establishing
Indemnitee’s right to indemnification or advancement of Expenses hereunder, Indemnitee shall be
entitled to partial indemnification of Expenses in accordance with Section 20.
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(e) Indemnitee shall be presumed to be entitled to indemnification and advancement of Expenses
under this Agreement upon submission of a request therefor in accordance with Section 2 or
Section 3 of this Agreement, as the case may be. The Companies shall have the burden of
proof in overcoming such presumption, and such presumption shall be used as a basis for a
determination of entitlement to indemnification and advancement of Expenses unless the Companies
overcome such presumption by clear and convincing evidence. Neither the failure of the Companies
to have made a determination prior to the commencement of any action pursuant to this Agreement
that indemnification is proper in the circumstances because Indemnitee has met the applicable
standard of conduct, nor an actual determination by the Companies that Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create a presumption that
Indemnitee has not met the applicable standard of conduct.
Section 4. Insurance and Subrogation.
(a) To the extent the Companies maintain a policy or policies of insurance providing
directors’ and officers’ liability insurance, Indemnitee shall be covered by such policy or
policies, in accordance with its or their terms, to the maximum extent of the coverage provided to
any other director or officer of the Companies. If, at the time the Companies receive from
Indemnitee any notice of the commencement of an Action, Suit or Proceeding, the Companies have such
insurance in effect which would reasonably be expected to cover such Action, Suit or Proceeding,
the Companies shall give prompt notice of the commencement of such Action, Suit or Proceeding to
the insurers in accordance with the procedures set forth in such policy or policies. The Companies
shall thereafter take all necessary or reasonably desirable action to cause such insurers to pay,
on behalf of Indemnitee, all amounts payable as a result of such Action, Suit or Proceeding in
accordance with the terms of such policy or policies.
(b) Subject to Section 9(b), in the event of any payment by the Companies under this
Agreement, the Companies shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee with respect to any insurance policy. Indemnitee shall execute all papers
required and take all action necessary to secure such rights, including execution of such documents
as are necessary to enable the Companies to effectively bring suit to enforce such rights in
accordance with the terms of such insurance policy. The Companies, jointly and severally, shall
pay or reimburse all Expenses actually and reasonably incurred by Indemnitee in connection with
such subrogation.
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(c) Subject to Section 9(b), the Companies shall not be liable under this Agreement to
make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to,
Judgments, Fines and Amounts Paid in Settlement, and ERISA excise taxes or penalties) if and to the
extent that Indemnitee has otherwise actually received such payment under this Agreement or any
insurance policy, contract, agreement or otherwise.
Section 5. Certain Definitions. For purposes of this Agreement, the following
definitions shall apply:
(a) The term “Action, Suit or Proceeding” shall be broadly construed and shall
include, without limitation, the investigation, preparation, prosecution, defense, settlement,
arbitration and appeal of, and the giving of testimony in, any threatened, pending or completed
claim, action, suit, arbitration, investigation, inquiry, alternative dispute mechanism or
proceeding, whether civil (including intentional and unintentional tort claims), criminal,
administrative or investigative, in each case, by reason of the service of Indemnitee as a director
and/or officer of any of the Companies and/or in other Indemnifiable Positions of the Controlled
Entities, or by reason of any action alleged to have been taken or omitted in any such capacity.
(b) The term “Expenses” shall include all out-of-pocket costs of any type or nature
whatsoever (including, without limitation, all attorneys’ fees and related disbursements), in each
case, actually and reasonably incurred by or on behalf of Indemnitee in connection with either the
investigation, defense or appeal of an Action, Suit or Proceeding or establishing or enforcing a
right to indemnification under this Agreement or otherwise incurred in connection with a claim that
is indemnifiable hereunder.
(c) The term “Judgments, Fines and Amounts Paid in Settlement” shall be broadly
construed and shall include, without limitation, all direct and indirect payments of any type or
nature whatsoever, as well as any penalties or excise taxes assessed on a person with respect to an
employee benefit plan.
Section 6. Limitation on Indemnification. Notwithstanding any other provision herein
to the contrary, the Companies shall not be obligated pursuant to this Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or advance Expenses to Indemnitee
with respect to any threatened, pending or completed claim, action, suit, arbitration,
investigation, inquiry, alternative dispute mechanism or proceeding, whether civil (including
intentional and unintentional tort claims), criminal, administrative or investigative, however
denominated, initiated or brought voluntarily by Indemnitee whether by way of defense, counterclaim
or cross claim or otherwise, other than (i) an action brought to establish or enforce a right to
indemnification or advancement of Expenses under this Agreement (which shall be governed by the
provisions of Section 6(b) of this Agreement), (ii) a claim, action, suit, arbitration,
investigation, inquiry, alternative dispute mechanism or proceeding that was authorized or
consented to by the Boards of Directors of the Companies, it being understood and agreed that such
authorization or consent shall not be unreasonably withheld in connection with any compulsory
counterclaim brought by Indemnitee in response to an Action, Suit or Proceeding otherwise
indemnifiable under this Agreement or (iii) as otherwise required under the DGCL.
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(b) Action for Indemnification. To indemnify Indemnitee for any Expenses incurred by
Indemnitee with respect to an action instituted by Indemnitee to enforce or interpret this
Agreement if Indemnitee is not successful in such enforcement action in establishing Indemnitee’s
right, in whole or in part, to indemnification or advancement of Expenses hereunder;
provided that to the extent Indemnitee is successful in part and unsuccessful in part in
establishing Indemnitee’s right to indemnification or advancement of Expenses hereunder, Indemnitee
shall be entitled to partial indemnification of Expenses in accordance with Section 20.
(c) Section 16(b) Matters. To indemnify Indemnitee on account of any Action, Suit or
Proceeding in which judgment is rendered against Indemnitee for disgorgement of profits made from
the purchase or sale by Indemnitee of securities of any of the Companies pursuant to the provisions
of Section 16(b) of the Securities Exchange Act of 1934, as amended.
(d) Fraud or Willful Misconduct. To indemnify Indemnitee on account of conduct by
Indemnitee where such conduct has been determined (which determination has not been reversed or
overturned on appeal) to have been knowingly fraudulent or constitute willful misconduct by a
judgment or other adjudication of a court or arbitration or administrative body of competent
jurisdiction; provided, however, that Indemnitee shall be entitled to
indemnification from the Companies pursuant to this Agreement pending the outcome of an appeal of
any such judgment or other adjudication if Indemnitee posts a cost bond, supersedeas bond or any
other appeal bond or its equivalent that is reasonably satisfactory to the Companies at
Indemnitee’s sole cost and expense, including any premium, security for and other costs relating
thereto.
(e) Prohibited by Law. To indemnify Indemnitee in any circumstance where such
indemnification has been determined to be prohibited by law by a final (not interlocutory) judgment
or other adjudication of a court or arbitration or administrative body of competent jurisdiction as
to which there is no further right or option of appeal or the time within which an appeal must be
filed has expired without such filing.
(f) Unauthorized Settlement. To indemnify Indemnitee for any amounts paid in
settlement of any Action, Suit or Proceeding without the Companies’ prior written consent. The
Companies will not unreasonably withhold or delay their consent to any proposed settlement.
Section 7. Certain Settlement Provisions. The Companies shall be permitted to settle
any Action, Suit or Proceeding, except that it shall not settle any Action, Suit or Proceeding in
any manner that would impose any penalty (unless the only penalty imposed is a monetary amount that
will be paid in full by the Companies (or its insurers)) or limitations or constitute any admission
of wrongdoing or which may compromise, or may adversely affect, the defense of the Indemnitee in
any other Action, Suit or Proceeding, whether civil or criminal, without Indemnitee’s prior written
consent. Indemnitee will not unreasonably withhold or delay his or her consent to any proposed
settlement.
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Section 8. Savings Clause. If any provision or provisions (or portion thereof) of
this Agreement shall be invalidated on any ground by any court of competent jurisdiction, then the
Companies shall nevertheless indemnify Indemnitee if Indemnitee was or is made or is
threatened to be made a party or is otherwise involved in any threatened, pending or completed
Action, Suit or Proceeding (brought in the right of any of the Companies or otherwise), whether
civil, criminal, administrative or investigative and whether formal or informal, including appeals,
from and against all loss and liability suffered and Expenses (including attorneys’ fees),
Judgments, Fines and Amounts Paid in Settlement actually and reasonably incurred by or on behalf of
Indemnitee in connection with such Action, Suit or Proceeding, including any appeals, to the
fullest extent permitted by any applicable portion of this Agreement that shall not have been
invalidated.
Section 9. Contribution/Jointly Indemnifiable Claims.
(a) In order to provide for just and equitable contribution in circumstances in which the
indemnification provided for herein is held by a court of competent jurisdiction to be unavailable
to Indemnitee in whole or in part, it is agreed that, in such event, the Companies shall, jointly
and severally, to the fullest extent permitted by law, contribute to the payment of all of
Indemnitee’s loss and liability suffered and Expenses (including attorneys’ fees), Judgments, Fines
and Amounts Paid in Settlement actually and reasonably incurred by or on behalf of Indemnitee in
connection with any Action, Suit or Proceeding, including any appeals, in an amount that is just
and equitable in the circumstances; provided, that, without limiting the generality of the
foregoing, such contribution shall not be required where such holding by the court is due to any
limitation on indemnification set forth in Section 4(c), 6 or 7 hereof.
(b) Given that certain Jointly Indemnifiable Claims may arise by reason of the service of
Indemnitee as a director of the Companies and/or in other Indemnifiable Positions of the Controlled
Entities, or by reason of any action alleged to have been taken or omitted in any such capacity,
the Companies acknowledge and agree that the Companies shall, jointly and severally, and to the
extent applicable shall cause the Controlled Entities to, be fully and primarily responsible for
the payment to the Indemnitee in respect of indemnification or advancement of Expenses in
connection with any such Jointly Indemnifiable Claim, pursuant to and in accordance with (as
applicable) the terms of (i) the DGCL, (ii) the LLC Act, (iii) the Charters, (iv) the Bylaws, (v)
the LLC Agreement, (vi) the Stockholders Agreement, (vii) this Agreement, (viii) any other
agreement between any of the Companies or any Controlled Entity and the Indemnitee pursuant to
which the Indemnitee is indemnified, (ix) the laws of the jurisdiction of incorporation or
organization of any Controlled Entity and/or (x) the certificate of incorporation, certificate of
organization, bylaws, partnership agreement, operating agreement, certificate of formation,
certificate of limited partnership or other organizational or governing documents of any Controlled
Entity ((i) through (x) collectively, the “Indemnification Sources”), irrespective of any
right of recovery the Indemnitee may have from the Indemnitee-Related Entities. Under no
circumstance shall the Companies or any Controlled Entity be entitled to any right of subrogation
or contribution by the Indemnitee-Related Entities and no right of advancement or recovery the
Indemnitee may have from the Indemnitee-Related Entities shall reduce or otherwise alter the rights
of the Indemnitee or the obligations of the Companies or any Controlled Entity under the
Indemnification Sources. In the event that any of the Indemnitee-Related Entities shall make any
payment to the Indemnitee in respect of indemnification or advancement of Expenses with respect to
any Jointly Indemnifiable Claim,
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(i) the Companies, jointly and severally, shall, and to the extent
applicable shall cause the Controlled Entities to, reimburse the Indemnitee-Related Entity making such payment to the extent of such payment
promptly upon written demand from such Indemnitee-Related Entity, (ii) to the extent not previously
and fully reimbursed by the Companies and/or any Controlled Entity pursuant to clause (i), the
Indemnitee-Related Entity making such payment shall be subrogated to the extent of the outstanding
balance of such payment to all of the rights of recovery of the Indemnitee against the Companies
and/or any Controlled Entity, as applicable, and (iii) Indemnitee shall execute all papers
reasonably required and shall do all things that may be reasonably necessary to secure such rights,
including the execution of such documents as may be necessary to enable the Indemnitee-Related
Entities effectively to bring suit to enforce such rights. The Companies and Indemnitee agree that
each of the Indemnitee-Related Entities shall be third-party beneficiaries with respect to this
Section 9(b), entitled to enforce this Section 9(b) as though each such
Indemnitee-Related Entity were a party to this Agreement. The Companies shall cause each of the
Controlled Entities to perform the terms and obligations of this Section 9(b) as though
each such Controlled Entity was one of the “Companies” under this Agreement. For purposes of this
Section 9(b), the following terms shall have the following meanings:
(i) The term “Indemnitee-Related Entities” means any corporation, limited
liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise (other than the Companies, any Controlled Entity or the insurer under and
pursuant to an insurance policy of the Companies or any Controlled Entity) from whom an
Indemnitee may be entitled to indemnification or advancement of Expenses with respect to
which, in whole or in part, the Companies or any Controlled Entity may also have an
indemnification or advancement obligation.
(ii) The term “Jointly Indemnifiable Claims” shall be broadly construed and
shall include, without limitation, any Action, Suit or Proceeding for which the Indemnitee
shall be entitled to indemnification or advancement of Expenses from both (i) any of the
Companies and/or any Controlled Entity pursuant to the Indemnification Sources, on the one
hand, and (ii) any Indemnitee-Related Entity pursuant to any other agreement between any
Indemnitee-Related Entity and the Indemnitee pursuant to which the Indemnitee is
indemnified, the laws of the jurisdiction of incorporation or organization of any
Indemnitee-Related Entity and/or the certificate of incorporation, certificate of
organization, bylaws, partnership agreement, operating agreement, certificate of formation,
certificate of limited partnership or other organizational or governing documents of any
Indemnitee-Related Entity, on the other hand.]1
Section 10. Form and Delivery of Communications. All notices, requests, demands and
other communications under this Agreement shall be in writing and shall be deemed to have been duly
given if (a) delivered by hand, upon receipt by the party to whom said notice or other
communication shall have been directed, (b) mailed by certified or registered mail with postage
prepaid, on the third business day after the date on which it is so mailed, (c) mailed by reputable
overnight courier, one day after deposit with such courier and with written verification of receipt
or (d) sent by email or facsimile transmission, with receipt of oral confirmation that such
transmission has been received. Addresses for notice to either party are shown on the
signature page of this Agreement, or as subsequently modified by written notice.
| 1 | Included in agreements for non-employee directors only. |
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Section 11. Nonexclusivity. The provisions for indemnification and advancement of
Expenses set forth in this Agreement shall not be deemed exclusive of any other rights which
Indemnitee may have under any provision of law, in any court in which a proceeding is brought,
other agreements or otherwise, and Indemnitee’s rights hereunder shall inure to the benefit of the
heirs, executors and administrators of Indemnitee. No amendment or alteration of the Charters or
Bylaws or the Stockholders Agreement or any other agreement shall adversely affect the rights
provided to Indemnitee under this Agreement.
Section 12. No Construction as Employment Agreement; Duration of Agreement. Nothing
contained herein shall be construed as giving Indemnitee any right to be retained as a director
and/or officer of any of the Companies or in other Indemnifiable Positions of the Controlled
Entities or in the employ of any of the Companies or any of the Controlled Entities. For the
avoidance of doubt, the indemnification and advancement of Expenses provided under this Agreement
shall continue as to the Indemnitee even though he may have ceased to be a director and/or officer
of the Companies and/or in other Indemnifiable Positions of the Controlled Entities.
Section 13. Interpretation of Agreement. It is understood that the parties hereto
intend this Agreement to be interpreted and enforced so as to provide indemnification to Indemnitee
to the fullest extent now or hereafter permitted by the DGCL or the LLC Act, as applicable,
notwithstanding that such indemnification may not be specifically authorized by the Charters,
Bylaws or LLC Agreement, as applicable, or by statute as of the date hereof. In the event of any
change after the date of this Agreement in any applicable law, statute or rule which expands the
right of a Delaware corporation or limited liability company to indemnify a member of its board of
directors or an officer, employee, consultant, fiduciary or agent, it is the intent of the parties
hereto that Indemnitee shall enjoy by this Agreement the greater benefits afforded by such change.
In the event of any change in any applicable law, statute or rule which narrows the right of a
Delaware corporation or limited liability company to indemnify a member of its board of directors
or an officer, employee, consultant, fiduciary or agent, such change, to the extent not otherwise
required by such law, statute or rule to be applied to this Agreement, shall have no effect on this
Agreement or the parties’ rights and obligations hereunder.
Section 14. Entire Agreement. Without limiting any of the rights of Indemnitee under
any of the Indemnification Sources, this Agreement and the documents expressly referred to herein
constitute the entire agreement between the parties hereto with respect to the matters covered
hereby, and any other prior or contemporaneous oral or written understandings or agreements with
respect to the matters covered hereby are expressly superseded by this Agreement.
Section 15. Modification and Waiver. No supplement, modification, waiver or
amendment of this Agreement shall be binding unless executed in writing by both the Companies and
the Indemnitee. No waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not similar) nor shall such
waiver constitute a continuing waiver. For the avoidance of doubt, this Agreement may not be
terminated by the Companies without Indemnitee’s prior written consent.
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Section 16. Successor and Assigns. All of the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of and shall be enforceable by the parties hereto
and their respective successors, assigns, spouses, heirs, executors, administrators and legal
representatives. The Companies shall require and cause any direct or indirect successor (whether
by purchase, merger, consolidation or otherwise) to all or substantially all of the business or
assets of any of the Companies, by written agreement in form and substance reasonably satisfactory
to Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to
the same extent that the Companies would be required to perform if no such succession had taken
place.
Section 17. Service of Process and Venue. The Companies and Indemnitee hereby
irrevocably and unconditionally (i) agree that any action or proceeding arising out of or in
connection with this Agreement shall be brought only in the Chancery Court of the State of Delaware
(the “Delaware Court”), and not in any other state or federal court in the United States of
America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of
the Delaware Court for purposes of any action or proceeding arising out of or in connection with
this Agreement, (iii) waive any objection to the laying of venue of any such action or proceeding
in the Delaware Court, and (iv) waive, and agree not to plead or to make, any claim that any such
action or proceeding brought in the Delaware Court has been brought in an improper or inconvenient
forum.
Section 18. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware. If a court of competent jurisdiction shall make
a final determination that the provisions of the law of any state other than Delaware govern
indemnification by the Companies of Indemnitee, then the indemnification provided under this
Agreement shall in all instances be enforceable to the fullest extent permitted under such law,
notwithstanding any provision of this Agreement to the contrary.
Section 19. Injunctive Relief. The parties hereto agree that each party hereto may
enforce this Agreement by seeking specific performance hereof, without any necessity of showing
irreparable harm or posting a bond, which requirements are hereby waived, and that by seeking
specific performance, Indemnitee shall not be precluded from seeking or obtaining any other relief
to which he or she may be entitled.
Section 20. Partial Indemnification. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Companies for some or a portion of loss and liability
suffered and Expenses (including attorneys’ fees), Judgments, Fines and Amounts Paid in Settlement
actually and reasonably incurred by or on behalf of Indemnitee in connection with an Action, Suit
or Proceeding, including any appeals, but not, however, for the total amount thereof, the Companies
shall nevertheless indemnify Indemnitee for the portion of such amounts otherwise payable
hereunder.
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Section 21. Mutual Acknowledgement. Both the Companies and Indemnitee acknowledge
that in certain instances, federal law or applicable public policy may prohibit the
Companies from indemnifying their directors, officers, employees, consultants, fiduciaries or
agents under this Agreement or otherwise. Indemnitee understands and acknowledges that the
Companies may be required to submit the question of indemnification to a court in certain
circumstances for a determination of the Companies’ right, under public policy, to indemnify
Indemnitee.
Section 22. Counterparts. This Agreement may be executed in two or more
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, notwithstanding that both parties are not signatories to
the original or same counterpart.
Section 23. Headings. The section and subsection headings contained in this
Agreement are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
[Signature Page Follows]
11
This Indemnification Agreement has been duly executed and delivered to be effective as of the
date stated above.
| AMH INVESTMENT HOLDINGS CORP. | ||||||||
| AMH INTERMEDIATE HOLDINGS CORP. | ||||||||
| ASSOCIATED MATERIALS, LLC | ||||||||
| By: | ||||||||
| Name: | Xxxxxxx X. Xxxxxx | |||||||
| Title: | Vice President — Chief Financial Officer, | |||||||
| Treasurer and Secretary | ||||||||
| Address: | 0000 Xxxxx Xxxx | |||||||
| Xxxxxxxx Xxxxx, Xxxx 00000 | ||||||||
| Attention: | Xxxxxxx X. Xxxxxx | |||||||
| Facsimile: | ||||||||
| INDEMNITEE | ||||||||
| Name: | ||||||||
| Address: | ||||||||
| Facsimile: | ||||||||
[Signature Page to Indemnification Agreement]
