EXHIBIT 10.61
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "Agreement") is made and entered into
as of this 25th day of October, 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 Xxxxxxx, Jr. ("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.
D AND W HOLDINGS, INC.
By: ___________________________
ATRIUM COMPANIES, INC.
By: ___________________________
INDEMNITEE
By: ___________________________
SCHEDULE A
Atrium Companies, Inc
