Exhibit 10.53
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "Agreement") is made and entered
into as of this 31st day of August, 2000, by and between D and W Holdings, Inc.,
Delaware corporation and each entity listed on SCHEDULE A hereto, as the same
may be amended, modified or supplemented from time to time or at any time, (each
a "Company" and, collectively, including any successors thereto, the
"Companies"), and Xxxx X. Xxxx ("Indemnitee").
RECITALS:
A. Competent and experienced persons are reluctant to serve or to
continue to serve corporations as directors, officers or in other capacities
unless they are provided with adequate protection through insurance or
indemnification (or both) against claims and actions against them arising out of
their service to and activities on behalf of those corporations.
B. The current uncertainties relating to the availability of adequate
insurance for directors and officers have increased the difficulty for
corporations to attract and retain competent and experienced persons.
C. The Boards of Directors of each of the Companies (the "Boards") have
determined that the continuation of present trends in litigation will make it
more difficult to attract and retain competent and experienced persons, that
this situation is detrimental to the best interests of the Companies'
stockholders, and that the Companies should act to assure their directors and
officers that there will be increased certainty of adequate protection in the
future.
D. It is reasonable, prudent and necessary for the Companies to
obligate themselves contractually to indemnify their directors and officers to
the fullest extent permitted by applicable law in order to induce them to serve
or continue to serve the Companies.
E. Indemnitee is willing to serve and continue to serve the Companies
on the condition that he be indemnified to the fullest extent permitted by law.
F. Concurrently with the execution of this Agreement, Indemnitee is
agreeing to serve or to continue to serve as a director or officer of the
Companies.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing premises,
Indemnitee's agreement to serve or continue to serve as a director or officer of
the Companies, and the covenants contained in this Agreement, the Companies and
Indemnitee hereby covenant and agree as follows:
1. Certain Definitions:
For purposes of this Agreement:
a. Affiliate: shall mean any Person that directly, or indirectly,
through one or more intermediaries, controls, is controlled by,
or is under common control with the Person specified.
b. Change of Control: shall mean the occurrence of any of the
following events:
(i) The acquisition after the date of this Agreement by any
individual, entity, or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) (a "Person")
of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 50% or more of
either (x) the then outstanding shares of common stock of
the relevant Company (the "Outstanding Company Common
Stock") or (y) the combined voting power of the then
outstanding voting securities of the relevant Company
entitled to vote generally in the election of directors
(the "Outstanding Company Voting Securities"); provided,
however, that for purposes of this paragraph (i), the
following acquisitions shall not constitute a Change of
Control: (A) any acquisition directly from the relevant
Company or any Subsidiary thereof, (B) any acquisition by
the relevant Company or any Subsidiary thereof, (C) any
acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the relevant Company or
any Subsidiary of the relevant Company, (D) any
acquisition by one or more members of the Investor Group,
or (E) any acquisition by any entity or its security
holders pursuant to a transaction which complies with
clauses (A), (B), and (C) of paragraph (iii) below; or
(ii) Individuals who, as of the date of this Agreement,
constitute the Boards (the "Incumbent Boards") cease for
any reason to constitute at least a majority of the
relevant Board; provided, however, that
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any individual becoming a director subsequent to the date
of this Agreement (A) who is appointed by a member of the
Investor Group, or (B) whose election, or nomination for
election by the relevant Company's stockholders, was
approved by a vote of at least a majority of the directors
then comprising the relevant Incumbent Board, shall be
considered as though such individual were a member of the
relevant Incumbent Board, but excluding, for this purpose,
any such individual whose initial assumption of office
occurs as a result of an actual or threatened election
contest with respect to the election or removal of
directors or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than
the relevant Board; or
(iii) Consummation of a reorganization, merger, or consolidation
or sale or other disposition of all or substantially all
of the assets of the relevant Company or an acquisition of
assets of another entity (a "Business Combination"), other
than a Business Combination with one or more members of
the Investor Group, in each case, unless, immediately
following such Business Combination, (A) all or
substantially all of the individuals and entities who were
the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50%
of, respectively, the then outstanding shares of common
stock or other equity interests and the combined voting
power of the then outstanding voting securities entitled
to vote generally in the election of directors (or similar
governing body), as the case may be, of the entity
resulting from such Business Combination (including,
without limitation, an entity which as a result of such
transaction owns the relevant Company or all or
substantially all of the relevant Company's assets either
directly or through one or more Subsidiaries) in
proportions not materially different from their ownership,
immediately prior to such Business Combination, of the
Outstanding Company Common Stock and Outstanding Company
Voting Securities, as the case may be, (B) no Person
(excluding any entity resulting from such Business
Combination or any employee benefit plan (or related
trust) of the relevant Company or such entity resulting
from such Business Combination or any Subsidiary of either
of them) beneficially owns, directly or indirectly, 20% or
more of, respectively, the then outstanding
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shares of common stock of the entity resulting from such
Business Combination or the combined voting power of the
then outstanding voting securities of such entity except
to the extent that such ownership existed prior to the
Business Combination, and (C) at least a majority of the
members of the board of directors (or similar governing
body) of the entity resulting from such Business
Combination were members of the Incumbent Board at the
time of the execution of the initial agreement, or of the
action of the Board, providing for such Business
Combination; or
(iv) Approval by the stockholders of the relevant Company of a
complete liquidation or dissolution of such Company.
c. Claim: shall mean any threatened, pending, or completed action,
suit or proceeding (including, without limitation, securities
laws actions, suits and proceedings and also any cross claim or
counterclaim in any action, suit or proceeding), whether civil,
criminal, arbitral, administrative or investigative in nature,
or any inquiry or investigation (including discovery), whether
conducted by the Companies or any other Person, that Indemnitee
in good faith believes might lead to the institution of any
action, suit or proceeding.
d. Expenses: shall mean all costs, expenses (including attorneys'
and expert witnesses' fees), and obligations paid or incurred in
connection with investigating, defending (including affirmative
defenses and counterclaims), being a witness in, or
participating in (including on appeal), or preparing to defend,
be a witness in, or participate in, any Claim relating to any
Indemnifiable Event.
e. Indemnifiable Event: shall mean any actual or alleged act,
omission, statement, misstatement, event or occurrence related
to the fact that Indemnitee is or was a director, officer, agent
or fiduciary of any of the Companies, or is or was serving at
the request of any of the Companies as a director, officer,
trustee, agent or fiduciary of another corporation, partnership,
joint venture, employee benefit plan, trust, or other
enterprise, or by reason of any actual or alleged thing done or
not done by Indemnitee in any such capacity. For purposes of
this Agreement, the Companies agrees that Indemnitee's service
on behalf of or with respect to any Subsidiary or employee
benefits plan of any of the Companies or any Subsidiary of any
of the Companies shall be deemed to be at the request of such
Company.
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6. Indemnifiable Liabilities: shall mean all Expenses and all other
liabilities, damages (including, without limitation, punitive,
exemplary, and the multiplied portion of any damages),
judgments, payments, fines, penalties, amounts paid by
Indemnitee in settlement solely with the Companies' consent
(such consent not to be unreasonably withheld), and awards paid
or incurred that arise out of, or in any way relate to, any
Indemnifiable Event.
g. Investor Group: shall include Ardshiel, Inc., Ardatrium L.L.C.,
Arddoor L.L.C., Ardwing X.XX.,Wing Partners L.L.C., GE
Investment Private Placement Partners II, a Limited Partnership
and each of their respective affiliates.
h. Potential Change of Control: shall be deemed to have occurred if
(i) any of the Companies enters into an agreement, the
consummation of which would result in the occurrence of a Change
of Control of any of the Companies; (ii) any Person (including
any of the Companies) commences a tender offer that, if
consummated, would constitute a Change of Control of any of the
Companies; or (iii) any of the Board adopts a resolution to the
effect that, for purposes of this Agreement, a Potential Change
of Control of any of the Companies has occurred.
i. Reviewing Party: shall mean (i) a member or members of the Board
who are not parties to the particular Claim for which Indemnitee
is seeking indemnification or (ii) if a Change of Control of any
of the Companies has occurred and Indemnitee so requests, or if
the members of the Board so elect, or if all of the members of
the Board are parties to such Claim, Special Counsel.
j. Special Counsel: shall mean special, independent legal counsel
selected by Indemnitee and approved by the Companies (which
approval shall not be unreasonably withheld), and who has not
otherwise performed material services for any of the Companies
or for Indemnitee within the last three years (other than as
Special Counsel under this Agreement or similar agreements).
k. Subsidiary: shall mean, with respect to any Person, any
corporation or other entity of which a majority of the voting
power of the voting equity securities or equity interest is
owned, directly or indirectly, by that Person.
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2. Indemnification and Expense Advancement.
a. The Companies shall, jointly and severally, indemnify Indemnitee
and hold Indemnitee harmless to the fullest extent permitted by
Section 145 of the Delaware General Corporation Law, as soon as
practicable but in any event no later than 30 days after written
demand is presented to the Companies, from and against any and
all Indemnifiable Liabilities. Notwithstanding the foregoing,
the obligations of the Companies under Section 2(a) shall be
subject to the condition that the Reviewing Party shall not have
determined (in a written opinion, in any case in which Special
Counsel is involved) that Indemnitee is not permitted to be
indemnified under applicable law. Nothing contained in this
Agreement shall require any determination under this Section
2(a) to be made by the Reviewing Party prior to the disposition
or conclusion of the Claim against the Indemnitee.
b. If so requested by Indemnitee, the Companies shall advance to
Indemnitee all reasonable Expenses incurred by Indemnitee to the
fullest extent permitted by law (or, if applicable, reimburse
Indemnitee for any and all reasonable Expenses incurred by
Indemnitee and previously paid by Indemnitee) within ten
business days after such request (an "Expense Advance"). The
Companies shall be obligated from time to time at the request of
Indemnitee to make or pay an Expense Advance in advance of the
final disposition or conclusion of any Claim. In connection with
any request for an Expense Advance, if requested by the
Companies, Indemnitee or Indemnitee's counsel shall submit an
affidavit stating that the Expenses to which the Expense
Advances relate are reasonable. Any dispute as to the
reasonableness of any Expense shall not delay an Expense Advance
by the Companies. If, when, and to the extent that the Reviewing
Party determines that (i) Indemnitee would not be permitted to
be indemnified with respect to a Claim under applicable law or
(ii) the amount of the Expense Advance was not reasonable, the
Companies shall be entitled to be reimbursed by Indemnitee and
Indemnitee hereby agrees to reimburse the Companies without
interest (which agreement shall be an unsecured obligation of
Indemnitee) for (x) all related Expense Advances theretofore
made or paid by the Companies in the event that it is determined
that indemnification would not be permitted or (y) the excessive
portion of any Expense Advances in the event that it is
determined that such Expenses Advances were unreasonable;
provided, however, that if Indemnitee has commenced legal
proceedings in a court of competent jurisdiction to secure a
determination that Indemnitee could be
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indemnified under applicable law, or that the Expense Advances
were reasonable, any determination made by the Reviewing Party
that Indemnitee would not be permitted to be indemnified under
applicable law or that the Expense Advances were unreasonable;
shall not be binding, and the Companies shall be obligated to
continue to make Expense Advances, until a final judicial
determination is made with respect thereto (as to which all
rights of appeal therefrom have been exhausted or lapsed), which
determination shall be conclusive and binding. If there has been
a Change of Control of any of the Companies, the Reviewing Party
shall be Special Counsel, if Indemnitee so requests. If there
has been no determination by the Reviewing Party or if the
Reviewing Party determines that Indemnitee substantively is not
permitted to be indemnified in whole or part under applicable
law or that any Expense Advances were unreasonable, Indemnitee
shall have the right to commence litigation in any court in the
states of Texas, New York or Delaware having subject matter
jurisdiction thereof and in which venue is proper seeking an
initial determination by the court or challenging any such
determination by the Reviewing Party or any aspect thereof, and
the Companies hereby consent to service of process and to appear
in any such proceeding. Any determination by the Reviewing Party
otherwise shall be conclusive and binding on the Companies and
Indemnitee.
c. Nothing in this Agreement, however, shall require the Companies
to indemnify Indemnitee with respect to any Claim initiated by
Indemnitee, other than a Claim solely seeking enforcement of the
Companies' indemnification obligations to Indemnitee or a Claim
authorized by the Board.
3. Change of Control. The Companies agree that, if there is a Potential
Change of Control or a Change of Control of any of the Companies and if
Indemnitee requests in writing that Special Counsel be the Reviewing Party, then
Special Counsel shall be the Reviewing Party. In such a case, the Companies
agree not to request or seek reimbursement from Indemnitee of any
indemnification payment or Expense Advances unless Special Counsel has rendered
its written opinion to the Companies and Indemnitee that the Companies were not
or are not permitted under applicable law to indemnify Indemnitee or that such
Expense Advances were unreasonable. However, if Indemnitee has commenced legal
proceedings in a court of competent jurisdiction to secure a determination that
Indemnitee could be indemnified under applicable law or that the Expense
Advances were reasonable, any determination made by Special Counsel that
Indemnitee would not be permitted to be indemnified under applicable law or that
the Expense Advances were unreasonable shall not be binding, and the Companies
shall be obligated to continue to make Expense Advances, until a final judicial
determination is made with respect
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thereto (as to which all rights of appeal therefore have been exhausted or
lapsed), which determination shall be conclusive and binding. The Companies
agree to pay the reasonable fees of Special Counsel and to indemnify Special
Counsel against any and all expenses (including attorneys' fees), claims,
liabilities, and damages arising out of or relating to this Agreement or Special
Counsel's engagement pursuant hereto.
4. Establishment of Trust. In the event of a Potential Change of
Control or a Change of Control of any of the Companies, the Companies shall,
upon written request by Indemnitee, create a trust for the benefit of Indemnitee
(the "Trust") and from time to time upon written request of Indemnitee shall
fund the Trust in an amount equal to all Indemnifiable Liabilities reasonably
anticipated at the time to be incurred in connection with any Claim. The amount
to be deposited in the Trust pursuant to the foregoing funding obligation shall
be determined by the Reviewing Party. The terms of the Trust shall provide that,
upon a Change of Control of any of the Companies, (i) the Trust shall not be
revoked or the principal thereof invaded, without the written consent of
Indemnitee; (ii) the trustee of the Trust shall advance, within ten business
days of a request by Indemnitee, any and all reasonable Expenses (any
determination concerning the reasonableness of the Expenses shall be made by the
Reviewing Party) to Indemnitee (and Indemnitee hereby agrees to reimburse the
Trust under the circumstances in which Indemnitee would be required to reimburse
the Companies for Expense Advances under this Agreement), (iii) the Trust shall
continue to be funded by the Company in accordance with the funding obligation
set forth above; (iv) the trustee of the Trust shall promptly pay to Indemnitee
all amounts for which Indemnitee shall be entitled to indemnification pursuant
to this Agreement; and (v) all unexpended funds in the Trust shall revert to the
Companies upon a final determination by the Reviewing Party or a court of
competent jurisdiction, as the case may be, that Indemnitee has been fully
indemnified under the terms of this Agreement. The trustee of the Trust shall be
chosen by Indemnitee, and shall be a financial institution that is not
affiliated with Indemnitee. Nothing in this Section 4 shall relieve the
Companies of any of their obligations under this Agreement.
5. Indemnification for Additional Expenses. The Companies shall
indemnify Indemnitee against any and all costs and expenses (including
attorneys' and expert witnesses' fees) and, if requested by Indemnitee, shall
(within two business days of that request) advance those costs and expenses to
Indemnitee that are incurred by Indemnitee if Indemnitee, whether by formal
proceedings or through demand and negotiation without formal proceedings: (a)
seeks to enforce Indemnitee's rights wider this Agreement, (b) seeks to enforce
Indemnitee's rights to expense advancement or indemnification under any other
agreement or provision of any of the Companies' Certificate of Incorporation
(the "Certificate of Incorporation") or Bylaws (the "Bylaws") now or hereafter
in effect relating to Claims for Indemnifiable Events, or (c) seeks recovery
under any directors' and officers' liability insurance policies maintained by
the Companies, in each case regardless of whether Indemnitee ultimately
prevails; provided that a court of competent jurisdiction has not found
Indemnitee's claim for indemnification or expense
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advancements under the foregoing clauses (a), (b) or (c) to be frivolous,
presented for an improper purpose, without evidentiary support, or otherwise
sanctionable under Federal Rule of Civil Procedure No. 11 or an analogous rule
or law, and provided further, that if a court makes such a finding, Indemnitee
shall reimburse the Companies for all amounts previously advanced to Indemnitee
pursuant to this Section 5. Subject to the provisos contained in the preceding
sentence, to the fullest extent permitted by law, the Companies waive any and
all rights that they may have to recover its costs and expenses from Indemnitee.
6. Partial Indemnity. If Indemnitee is entitled under any provision of
this Agreement to indemnification by the Companies for some, but not all, of
Indemnitee's Indemnifiable Liabilities, the Companies shall indemnify Indemnitee
for the portion thereof to which Indemnitee is entitled.
7. Contribution.
a. Contribution Payment. To the extent the indemnification provided
for under any provision of this Agreement is determined (in the
manner herein above provided) not to be permitted under
applicable law, the Companies, in lieu of indemnifying
Indemnitee, shall, to the extent permitted by law, contribute to
the amount of any and all Indemnifiable Liabilities incurred or
paid by Indemnitee for which such indemnification is not
permitted. The amount the Companies contribute shall be in such
proportion as is appropriate to reflect the relative fault of
Indemnitee, on the one hand, and of the Companies and any and
all other parties (including officers and directors of the
Companies other than Indemnitee) who may be at fault
(collectively, including the Companies, the "Third Parties"), on
the other hand.
b. Relative Fault. The relative fault of the Third Parties and the
Indemnitee shall be determined (i) by reference to the relative
fault of Indemnitee as determined by the court or other
governmental agency or (ii) to the extent such court or other
governmental agency does not apportion relative fault, by the
Reviewing Party after giving effect to, among other things, the
relative intent, knowledge, access to information, and
opportunity to prevent or correct the relevant events, of each
party, and other relevant equitable considerations.
c. The Companies and Indemnitee agree that it would not be just and
equitable if contribution were determined by pro rata allocation
or by any other method of allocation that does take account of
the equitable considerations referred to in this Section 7(b).
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8. Assumption of Defense by the Companies. Except as otherwise provided
below, any of the Companies, jointly with any other indemnifying party similarly
notified, will be entitled to assume the defense of any Claim, with counsel
reasonably satisfactory to Indemnitee. Indemnitee shall have the right to employ
his own counsel in connection with such Claim but the fees and expenses of such
counsel incurred after notice from any of the Companies 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 Companies, (ii) Indemnitee
shall have reasonably concluded that there may be a conflict of interest between
the Companies and Indemnitee in the conduct of such defense or (iii) the
Companies shall not in fact have employed counsel to assume the defense of such
action, in each of which cases the fees and expenses of Indemnitee's counsel
shall be subject to reimbursement in accordance with the terms of this
Agreement. The Companies shall not be entitled to assume Indemnitee's defense of
any Claim brought by the Companies or as to which Indemnitee shall have reached
the conclusion provided for in clause (ii) above.
9. Burden of Proof. In connection with any determination by the
Reviewing Party or otherwise as to whether Indemnitee is entitled to be
indemnified under any provision of this Agreement or to receive contribution
pursuant to Section 7 of this Agreement, to the extent permitted by law the
burden of proof shall be on the Companies to establish that Indemnitee is not so
entitled.
10. No Presumption. For purposes of this Agreement, the termination of
any Claim by judgment, order, settlement (whether with or without court
approval), or conviction, or upon a plea of nolo contendere, or its equivalent,
or an entry of an order of probation prior to judgment shall not create a
presumption (other than any presumption arising as a matter of law that the
parties may not contractually agree to disregard) that Indemnitee did not meet
any particular standard of conduct or have any particular belief or that a court
has determined that indemnification is not permitted by applicable law.
11. Non-exclusivity. The rights of Indemnitee hereunder shall be in
addition to any other rights Indemnitee may have under the Bylaws or Certificate
of Incorporation or the Delaware General Corporation Law or otherwise. To the
extent that a change in the Delaware General Corporation Law (whether by statute
or judicial decision) permits greater indemnification by agreement than would be
afforded currently under this Agreement, it is the intent of the parties hereto
that Indemnitee shall enjoy by this Agreement the greater benefits so afforded
by that change. Indemnitee's rights under this Agreement shall not be diminished
by any amendment to the Certificate of Incorporation or Bylaws, or of any other
agreement or instrument to which Indemnitee is not a party, and shall not
diminish any other rights that Indemnitee now or in the future has against the
Companies.
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12. Liability Insurance. Except as otherwise agreed to by the Companies
and Indemnitee in a written agreement, to the extent the Companies maintains an
insurance policy or policies providing directors' and officers' liability
insurance, Indemnitee shall be covered by that policy or those policies, in
accordance with its or their terms, to the maximum extent of the coverage
available for any Company director or officer.
13. Period of Limitations. No action, lawsuit, or proceeding may be
brought against Indemnitee or Indemnitee's spouse, heirs, executors, or personal
or legal representatives, nor may any cause of action be asserted in any such
action, lawsuit or proceeding, by or on behalf of the Companies, after the
expiration of two years after the statute of limitations commences with respect
to Indemnitee's act or omission that gave rise to the action, lawsuit,
proceeding or cause of action; provided, however, that, if any shorter period of
limitations is otherwise applicable to any such action, lawsuit, proceeding or
cause of action, the shorter period shall govern.
14. Amendments. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both of the parties
hereto. No waiver of any provision of this Agreement shall be effective unless
in a writing signed by the party granting the waiver. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any
other provisions hereof (whether or not similar) nor shall that waiver
constitute a continuing waiver.
15. Other Sources. Indemnitee shall not be required to exercise any
rights that Indemnitee may have against any other Person (for example, under an
insurance policy) before Indemnitee enforces his rights under this Agreement.
However, to the extent the Companies actually indemnify Indemnitee or advances
him Expenses, the Companies shall be subrogated to the rights of Indemnitee and
shall be entitled to enforce any such rights which Indemnitee may have against
third parties. Indemnitee shall assist the Companies in enforcing those rights
if it pays his costs and expenses of doing so. If Indemnitee is actually
indemnified or advanced Expenses by any third party, then, for so long as
Indemnitee is not required to disgorge the amounts so received, to that extent
the Companies shall be relieved of their obligation to indemnify Indemnitee or
advance Indemnitee Expenses.
16. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors, assigns (including any direct or indirect successor by merger or
consolidation), spouses, heirs and personal and legal representatives. This
Agreement shall continue in effect regardless of whether Indemnitee continues to
serve as an officer or director of the Companies or another enterprise at the
Companies' request.
17. Severability. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws effective during
the term hereof, that provision shall
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be fully severable; this Agreement shall be construed and enforced as if that
illegal, invalid, or unenforceable provision had never comprised a part hereof;
and the remaining provisions shall remain in full force and effect and shall not
be affected by the illegal, invalid or unenforceable provision or by its
severance from this Agreement. Furthermore, in lieu of that illegal, invalid, or
unenforceable provision, there shall be added automatically as a part of this
Agreement a provision as similar in terms to the illegal, invalid, or
unenforceable provision as may be possible and be legal, valid, and enforceable.
18. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed in that state without giving effect to the
principles of conflicts of laws.
19. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
20. Notices. Whenever this Agreement requires or permits notice to be
given by one party to the other, such notice must be in writing to be effective
and shall be deemed delivered and received by the party to whom it is sent upon
actual receipt (by any means) of such notice. Receipt of a notice by the
Secretary of a Company shall be deemed receipt of such notice by such Company.
21. Complete Agreement. This Agreement constitutes the complete
understanding and agreement among the parties with respect to the subject matter
hereof and supersedes all prior agreements and understandings between the
parties with respect to the subject matter hereof, other than any
indemnification rights that Indemnitee may enjoy under the Certificate of
Incorporation, the Bylaws or the Delaware General Corporation Law.
22. Effective Date. This Agreement shall be effective as of October 2,
1998.
23. Counterparts. This Agreement may be executed in two or more
counterparts, all of which were taken together shall be deemed one and the same
instrument.
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EXECUTED as of the date first written above.
D AND W HOLDINGS, INC.
By:
------------------------------
ATRIUM CORPORATION
By:
------------------------------
ATRIUM COMPANIES, INC.
By:
------------------------------
ATRIUM DOOR AND WINDOW
COMPANY - WEST COAST
By:
------------------------------
ATRIUM DOOR AND WINDOW
COMPANY OF THE NORTHEAST
By:
------------------------------
ATRIUM DOOR AND WINDOW
COMPANY OF NEW YORK
By:
------------------------------
ATRIUM DOOR AND WINDOW
COMPANY OF ARIZONA
By:
------------------------------
ATRIUM DOOR AND WINDOW
COMPANY OF NEW ENGLAND
By:
------------------------------
DOOR HOLDINGS, INC.
By:
------------------------------
X.X. XXXXX COMPANY, INC.
By:
------------------------------
X.X. XXXXX COMPANY -
SOUTH
By:
------------------------------
TOTAL TRIM, INC.
By:
------------------------------
TOTAL TRIM, INC. - SOUTH
By:
------------------------------
WING INDUSTRIES HOLDINGS,
INC.
By:
------------------------------
WING INDUSTRIES, INC.
By:
------------------------------
HEAT, INC.
By:
------------------------------
H.I.G. VINYL, INC.
By:
------------------------------
THERMAL INDUSTRIES, INC.
By:
------------------------------
BEST BUILT, INC.
By:
------------------------------
CHAMPAGNE INDUSTRIES, INC.
By:
------------------------------
INDEMNITEE
---------------------------------
SCHEDULE A
Atrium Corporation, a Delaware corporation
Atrium Companies, Inc., a Delaware corporation
Atrium Door and Window Company West Coast, a Texas corporation
Atrium Door and Window Company of the Northeast, a Connecticut corporation
Atrium Door and Window Company of New York, a Connecticut corporation
Atrium Door and Window Company of Arizona, a Delaware corporation
Atrium Door and Window Company of New England, a Connecticut corporation
Door Holdings, Inc., a Delaware corporation
X.X. Xxxxx Company, Inc., an Alabama corporation
X.X. Xxxxx Company - South, a Delaware corporation
Total Trim, Inc., an Alabama corporation
Total Trim, Inc. - South, a Delaware corporation
Wing Industries Holdings, Inc., a Delaware corporation
Wing Industries, Inc., a Texas corporation
Heat, Inc., a Delaware corporation
H.I.G. Vinyl, Inc., a Delaware corporation
Thermal Industries, Inc., a Delaware corporation
Best Built, Inc., a Delaware corporation
Champagne Industries, Inc., a Colorado corporation
