Exhibit 10.64
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "Agreement") is made and entered
into as of this 25th day of October, 2000, by and between Atrium Corporation, a
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 C. Xxxxxxx Xxxxx ("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 any
individual becoming a
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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 shares of common stock
of the entity resulting from such Business
Combination or
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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.
f. 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
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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.
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
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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, jointly
and severally, 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 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
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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 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,
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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
under 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 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.
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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.
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.
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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.
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.
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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 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.
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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 25, 2000.
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.
ATRIUM CORPORATION
By:
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ATRIUM COMPANIES, INC.
By:
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INDEMNITEE
By:
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SCHEDULE A
Atrium Companies, Inc
