Exhibit 10.11
BLUELINX HOLDINGS INC.
FORM OF DIRECTOR AND OFFICER INDEMNIFICATION AGREEMENT
This Indemnification
Agreement (“Agreement”) is made as of this day of
___________ 2004, by and between BlueLinx Holdings Inc., a Delaware corporation
(the “Company”), and
[ ]
(“Indemnitee”).
WHEREAS, the Company desires
to attract and retain the services of highly qualified individuals, such as
Indemnitee, to serve as officers and directors of the Company and to indemnify
its officers and directors so as to provide them with the maximum protection
permitted by law;
WHEREAS, the Company and
Indemnitee recognize the increasing difficulty in obtaining directors’ and
officers’ liability insurance, the significant increases in the cost of such
insurance and the general reductions in the coverage of such insurance;
WHEREAS, the Company and
Indemnitee further recognize the substantial increase in corporate litigation
in general, subjecting officers and directors to expensive litigation risks at the
same time as the availability and coverage of liability insurance has been
severely limited;
WHEREAS, it is reasonable,
prudent and necessary for the Company contractually to obligate itself to
indemnify its directors and certain of its officers to the fullest extent
permitted by applicable law so that they will serve or continue to serve the
Company free from undue concern that they will not be so indemnified; and
WHEREAS, the Indemnitee is
willing to serve, continue to serve and to take on additional service for or on
behalf of the Company on the condition that he or she be so indemnified.
NOW,
THEREFORE, in consideration of the premises and the covenants contained herein,
the Company and the Indemnitee do hereby covenant and agree as follows:
1. Indemnification.
(a) Third
Party Proceedings. Subject to
Section 1(c), the Company shall indemnify Indemnitee if Indemnitee is or was a
party to any threatened, pending or completed action, suit, arbitration or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Company) by reason of the fact that he
or she is or was, (1) a director, officer, employee or agent of the Company,
(2) named in a registration statement filed by the Company under the Securities
Act of 1933, as amended (the “Securities Act”), as a person who is about to
become a director of the Company, or (3) serving at the request of the Company
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit or
proceeding if he or she acted in good faith and in a
manner he or she reasonably
believed to be in or not opposed to the best interests of the Company, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his or her conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that Indemnitee did not act in good
faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his or her conduct
was unlawful.
(b) Proceedings
by or in the Right of the Company.
Subject to Section 1(c), the Company shall indemnify Indemnitee if
Indemnitee is or was a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Company to procure a judgment in its favor by reason of the fact that he or she
is or was, (1) a director, officer, employee or agent of the Company, (2) named
in a registration statement filed by the Company under the Securities Act as a
person who is about to become a director of the Company, or (3) serving at the
request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys’ fees) actually and reasonably incurred by him or
her in connection with the defense or settlement of such action or suit if he
or she acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the Company; except that no
indemnification shall be made in respect of any claim, issue or matter as to
which Indemnitee shall have been adjudged to be liable to the Company unless
and only to the extent that the Delaware Court of Chancery or the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, Indemnitee is fairly and reasonably entitled to indemnity for such
expenses which the Delaware Court of Chancery or such other court shall deem proper.
(c) Authorization. Any indemnification under this Agreement
(unless ordered by a court) shall be made by the Company only as authorized in
the specific case upon a determination that indemnification of the Indemnitee
is proper in the circumstances because he or she has met the applicable
standard of conduct set forth in Section 1 (a) or (b). Such determination shall be made (a) by a
majority vote of the directors who were not parties to such action, suit or
proceeding, even though less than a quorum, (b) by a committee of such
directors designated by majority vote of such directors, even though less than
a quorum, (c) if there are no such directors, or, if such directors so direct,
by independent legal counsel in a written opinion or (d) by the stockholders. To the extent, however, that Indemnitee has
been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter
therein, he or she shall be indemnified against expenses (including attorneys’
fees) actually and reasonably incurred by him or her in connection therewith,
without the necessity of authorization in the specific case.
2. Expenses; Indemnification Procedure.
(a) Advance
of Expenses. Expenses (including
reasonable attorneys’ fees) incurred by Indemnitee in defending any civil,
criminal, administrative or investigative action, suit or proceeding described
in Section 1(a) or (b) hereof shall be paid by the Company in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking
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by or on behalf of
Indemnitee to repay such amount if it shall ultimately be determined that he or
she is not entitled to be indemnified by the Company as authorized under this
Agreement.
(b) Notice/Cooperation
By Indemnitee. Indemnitee shall, as
a condition precedent to his or her right to be indemnified under this
Agreement, give the Company notice in writing as soon as reasonably practicable
of any claim made or threatened to be made against Indemnitee for which
indemnification is or will be sought under this Agreement. Notice to the Company shall be directed to
the Company at the address shown in Section 11 of this Agreement (or such
address as the Company shall designate in writing to Indemnitee). In addition, Indemnitee shall give the
Company such information and cooperation as it may reasonably require and as
shall be within Indemnitee’s power.
(c) Procedure. If a claim under Section 1 hereof is not
paid in full by the Company within ninety (90) days after a written claim has
been received by the Company, or a claim under Section 2(a) hereof for an
advancement of expenses is not paid in full by the Company within thirty (30)
days after a written claim has been received by the Company, Indemnitee may at
any time thereafter bring suit against the Company to recover the unpaid amount
of the claim. If successful in whole or
in part in any such suit, or in a suit brought by the Company to recover an
advancement of expenses pursuant to Section 2(a), Indemnitee shall also be
entitled to be paid the expense of prosecuting or defending such suit,
including any reasonable attorneys’ fees.
In any suit by the Company to recover an advancement of expenses
pursuant to Section 2(a), the Company shall be entitled to recover such
expenses, upon a final judicial decision from which there is no further right
to appeal that Indemnitee has not met the standards of conduct which makes it
permissible under applicable law for the Company to indemnify Indemnitee for
the amounts claimed. Neither the
failure of the Company (including its board of directors, independent legal
counsel or stockholders) to have made a determination prior to the commencement
of such suit that indemnification of Indemnitee is proper in the circumstances
because Indemnitee has met the standards of conduct which makes it permissible
under applicable law for the Company to indemnify Indemnitee for the amounts
claimed, nor an actual determination by the Company (including its board of
directors, independent legal counsel, or stockholders) that Indemnitee has not
met such applicable standard of conduct, shall create a presumption that
Indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by Indemnitee, be a defense to such suit. In any suit brought by Indemnitee to enforce
a right to indemnification or to an advancement of expenses pursuant to Section
2(a) hereunder, or by the Company to recover an advancement of expenses
pursuant to Section 2(a), the burden of proving that Indemnitee is not entitled
to be indemnified, or to such advancement of expenses, under this Agreement or
otherwise shall be on the Company.
(d) Notice
to Insurers. If, at the time of the
receipt of a notice of an actual or threatened claim pursuant to Section 2(b)
hereof, the Company has director and officer liability insurance in effect, the
Company shall give prompt notice of the commencement of such proceeding to the
insurers in accordance with the procedures set forth in its policies. The Company shall thereafter take all
necessary or desirable action to cause such insurers to pay, on behalf of the
Indemnitee, all amounts payable as a result of such proceeding in accordance
with and to the extent of the terms of such policies.
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(e) Selection
of Counsel. In the event the
Company shall be obligated under Section 1 hereof to pay the expenses of any
proceeding against Indemnitee, the Company, if appropriate, shall be entitled
to assume the defense of such proceeding, with counsel approved by Indemnitee,
which approval shall not be unreasonably withheld or delayed, upon the delivery
to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of
such counsel by Indemnitee and the retention of such counsel by the Company,
the Company will not be liable to Indemnitee under this Agreement for any fees
of counsel subsequently incurred by Indemnitee with respect to the same
proceeding, provided that: (i) Indemnitee shall have the right to employ his or
her counsel in any such proceeding at Indemnitee’s expense; and (ii) if (A) the
employment of counsel by Indemnitee at the Company’s expense has been
previously authorized by the Company, or (B) the Company shall not, in fact,
have employed counsel to assume the defense of such proceeding, then the
reasonable fees and expenses of Indemnitee’s counsel shall be at the expense of
the Company.
3. Additional Indemnification Rights: Nonexclusivity.
(a) Scope. Notwithstanding any other provision of this
Agreement, the Company hereby agrees to indemnify the Indemnitee to the fullest
extent permitted from time to time by the Delaware General Corporation Law as
the same presently exists or may hereafter be amended (but, if permitted by
applicable law, in the case of any amendment, only to the extent that such
amendment permits the Company to provide broader indemnification rights than
permitted prior to such amendment) or any other applicable law as presently or
hereafter in effect. In the event of
any change in any applicable law, statute or rule which narrows the right of a
Delaware corporation to indemnify a member of its board of directors, an
officer or other corporate agent, such changes, to the extent not otherwise
required by such law, statute or rule to be applied to this Agreement, shall
have no effect on this Agreement or the parties’ rights and obligations
hereunder.
(b) Nonexclusivity. The indemnification and advancement of
expenses provided by or granted pursuant to this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may be entitled under the
Company’s Fourth Amended and Restated Certificate of Incorporation (as the same
may be further amended from time to time), the Company’s Amended and Restated
By-Laws (as the same may be amended from time to time), any other agreement or
contract, any vote of stockholders or disinterested directors or otherwise,
both as to action in his or her official capacity and as to action in another
capacity while holding such office.
4. Partial
Indemnification. If Indemnitee is
entitled under any provision of this Agreement to indemnification by the Company
for some or a portion of the expenses, judgments, fines or penalties actually
or reasonably incurred by him or her in the investigation, defense, appeal or
settlement of any civil or criminal action or proceeding, but not, however, for
the total amount thereof, the Company shall nevertheless indemnify Indemnitee
for the portion of such expenses, judgments, fines or penalties to which
Indemnitee is entitled.
5. Mutual
Acknowledgment. Both the Company
and Indemnitee acknowledge that, in certain instances, Federal law or
applicable public policy may prohibit the Company from indemnifying its
directors and officers under this Agreement or otherwise.
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Indemnitee understands and
acknowledges that the Company may be required in the future to submit for
determination by the appropriate regulatory agency the question of whether the
Company’s obligation to indemnify Indemnitee is barred as a matter of public
policy. Nothing in this Agreement is
intended to require or shall be construed as requiring the Company to do or
fail to do any act in violation of applicable law. The Company’s inability, pursuant to court order, to perform its
obligations under this Agreement shall not constitute a breach of this Agreement.
6. Exceptions. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:
(a) Excluded
Acts. To indemnify Indemnitee for
any acts or omissions or transactions from which an officer or a director may
not be relieved of liability under the Delaware General Corporation Law; or
(b) Claims
Initiated by Indemnitee. To
indemnify or advance expenses to Indemnitee with respect to a proceeding (or
part thereof) initiated or brought voluntarily by Indemnitee and not by way of
defense, except with respect to a proceeding (or part thereof) brought to
enforce a right to indemnification under this Agreement and except with respect
to a proceeding (or part thereof) authorized or consented to by the board of
directors of the Company; or
(c) Lack
of Good Faith. To indemnify
Indemnitee for any expenses incurred by the Indemnitee with respect to any
proceeding instituted by Indemnitee to enforce or interpret this Agreement, if
a court of competent jurisdiction determines that each of the material
assertions made by the Indemnitee in such proceeding was not made in good faith
or was frivolous; or
(d) Insured
Claims. To indemnify Indemnitee for
expenses or liabilities of any type whatsoever (including, but not limited to,
judgments, fines, ERISA excise taxes or penalties, and amounts paid in
settlement) to the extent paid, or acknowledged to be payable, directly to or
on behalf of Indemnitee by an insurance carrier under a policy of officers’ and
directors’ liability insurance; or
(e) Claims
Under Section 16(B). To indemnify
Indemnitee for expenses and the payment of profits arising from the purchase
and sale by Indemnitee of securities that is deemed, pursuant to a final
judicial decision from which there is no further right to appeal, in violation
of Section 16(b) of the Securities Exchange Act of 1934, as amended, or any
similar successor statute.
7. Certain
Definitions. For purposes of this
Agreement, references to “the Company” shall include, in addition to the
resulting corporation, any constituent corporation (including any constituent
of a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under this
Agreement with
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respect to the resulting or
surviving corporation as he or she would have with respect to such constituent
corporation if its separate existence had continued. For purposes of this Agreement, references to “other enterprises”
shall include employee benefit plans; references to “fines” shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to “serving at the request of the Company” shall include any service
as a director, officer, employee or agent of the Company which imposes duties on,
or involves services by, such director, officer, employee or agent with respect
to an employee benefit plan, its participants or beneficiaries; and a person
who acted in good faith and in a manner he or she reasonably believed to be in
the interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner “not opposed to the best interests of
the Company” as referred to in this Agreement.
8. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original.
9. Binding
Effect; Successors and Assigns.
This Agreement shall be binding upon the Company and its successors and
assigns (including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business or
assets of the Company), and shall inure to the benefit of Indemnitee and
Indemnitee’s estate, heirs, legal representative and assigns. The Company shall require and cause any
successor (whether direct or indirect, and whether by purchase, merger,
consolidation or otherwise) to all or substantially all of its business or
assets expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that it would be required to perform if no such
succession had taken place.
10. Attorney’s
Fees. In the event that any action
is instituted by Indemnitee under this Agreement to enforce or interpret any of
the terms hereof, Indemnitee shall be entitled to be paid all costs and expenses,
including reasonable attorneys’ fees, incurred by Indemnitee with respect to
such action, unless as a part of such action, the court of competent
jurisdiction determines that each of the material assertions made by Indemnitee
as a basis for such action were not made in good faith or were frivolous. In the event of an action instituted by or
in the name of the Company under this Agreement or to enforce or interpret any
of terms of this Agreement, Indemnitee shall be entitled to be paid all costs and
expenses, including reasonable attorneys’ fees, incurred by Indemnitee in
defense of such action (including with respect to Indemnitee’s counterclaims
and cross-claims made in such action), unless as a part of such action the
court determines that each of Indemnitee’s material defenses to such action
were made in bad faith or were frivolous.
11. Notice. All notices, requests, demands and other
communications under this Agreement shall be in writing, shall be deemed
received three business days after the date postmarked if sent by domestic
certified or registered mail, properly addressed, or if sent otherwise, when
such notice shall actually be received, and shall be delivered by Federal
Express or a similar courier, personal delivery, certified or registered air
mail, or by facsimile transmission.
Addresses for notice to either party are as follows (or at such other
addresses for a party as shall be specified by like notice):
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if
to the Company:
BlueLinx Holdings Inc.
4300 Wildwood Parkway
Atlanta, Georgia 30339
Attention: General Counsel
Telephone No.: 770-953-7000
if
to Indemnitee:
[Indemnitee]
c/o BlueLinx Holdings Inc.
4300 Wildwood Parkway
Atlanta, Georgia 30339
Attention: General Counsel
Telephone No.: 770-953-7000
12. Consent
To Jurisdiction. The Company and
Indemnitee each hereby irrevocably consent to the jurisdiction of the courts of
the State of Delaware for all purposes in connection with any action or
proceeding which arises out of or relates to this Agreement and agree that any
action instituted under this Agreement shall be brought only in the state
courts of the State of Delaware.
13. Choice
of Law. This Agreement shall be
governed by and its provisions construed in accordance with the laws of the
State of Delaware, as applied to contracts between Delaware residents entered
into and to be performed entirely within Delaware.
14. Severability. The provisions of this Agreement shall be
severable in the event that any of the provisions hereof (including any
provision within a single section, paragraph or sentence) are held by a court
of competent jurisdiction to be invalid, void or otherwise unenforceable, and
the remaining provisions shall remain enforceable to the fullest extent
permitted by law. Furthermore, to the
fullest extent possible, the provision of this Agreement (including, without
limitations, each portion of this Agreement containing any provision held to be
invalid, void or otherwise unenforceable, that is not itself invalid, void or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.
15. Subrogation. In the event of payment under this
Agreement, the Company shall be subrogated to the extent of such payment to all
of the rights of recovery of Indemnitee, who shall execute all documents
required and shall do all acts that may be necessary to secure such rights and
to enable the Company effectively to bring suit to enforce such rights.
16. Continuation
of Indemnification. The
indemnification and advancement of expenses provided by, or granted pursuant
to, this Agreement shall, unless otherwise provided
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when authorized or ratified,
continue as to Indemnitee after Indemnitee has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors, administrators and personal representatives of Indemnitee.
17. Amendment
and Termination. No amendment,
modification, termination or cancellation of this Agreement shall be effective
unless in writing signed by both parties hereto.
18. Integration
and Entire Agreement. This
Agreement sets forth the entire understanding between the parties hereto and
supersedes and merges all previous written and oral negotiations, commitments,
understandings and agreements relating to the subject matter hereof between the
parties hereto.
19. No
Construction as Employment Agreement.
Nothing contained in this Agreement shall be construed as giving
Indemnitee any right to be retained in the employ of the Company or any of its
subsidiaries or affiliated entities.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
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BLUELINX
HOLDINGS INC.
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By:
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Name:
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Title:
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[INDEMNITEE]
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Name:
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Title:
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