EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
AND
COVENANT NOT TO XXX
AGREEMENT, made and entered into as of 27 June 1998, between Black Diamond
INDUSTRIES, INC., a Florida corporation (the "Corporation"), and Xxxxx Xxxxxxx,
(collectively herein, "Indemnitee").
W I T N E S S E T H
WHEREAS, at the request of the Corporation, Indemnitee currently serves as
Officer and/or Director of the Corporation and may, therefore, be subjected to
actions, suits or proceedings by reason of such service; and
WHEREAS, as an inducement to Indemnitee to continue to serve as Officer and
Director, the Corporation has agreed not to xxx and to indemnify Indemnitee
against expenses and costs incurred by Indemnitee in connection with any such
actions, suits or proceedings, to the fullest extent permitted by law; and
WHEREAS, the parties desire to set forth their agreement regarding
indemnification;
NOW, THEREFORE, for and in consideration of the mutual promises contained
herein, and other good and valuable consideration, the parties agree as follows:
1. Acts or Omissions Covered By This Agreement.
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This Agreement shall cover any act or omission by Indemnitee which:
1.1 occurs or is alleged to have occurred by reason of its being or
having been the Officer and/or Director of the Corporation;
1.2 occurs or is alleged to have occurred before, during or after the
time when the Indemnitee served as Officer and/or Director of the Corporation;
and
1.3 gives rise to, or is the direct or indirect subject of a claim in
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, at any time or times whether during
or after Indemnitee serves as Officer and/or Director of the Corporation.
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2. Indemnity and Covenant Not to Xxx.
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Subject to the provisions of Florida Statute Section 607.0850:
2.1 The Corporation shall indemnify, to the fullest extent permitted
by the Corporation's articles of incorporation and by laws, and regardless of
any bylaw provision to the contrary, Indemnitee, from and against any expenses
(including attorneys' fees), judgments, fines, taxes, penalties and amounts
paid in settlement actually and reasonably incurred by Indemnitee in connection
with any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that
Indemnitee is or was Officer and/or director of the Corporation or was serving
at the request of the Corporation as the Officer and/or Director of
another corporation, partnership, joint venture, trust or other enterprise and
whether or not such actions are by or in the right of the Corporation or such
other corporation, partnership, joint venture, trust or other enterprise with
respect to which the Indemnitee serves or has served.
2.2 The Corporation agrees that it will never institute any action or
suit at law or in equity against Indemnitee, nor institute, prosecute, or in any
way aid in the institution or prosecution of any claim, demand, action, or cause
of action for damages, costs, loss of services, expenses, or compensation for or
on account of any damage, loss or injury either to person or property, or both,
whether developed or undeveloped, resulting or to result, known or unknown,
past, present, or future, arising out of Indemnitee' services to the
Corporation.
3. Successful Defense; Burden of Proof; Settlement; No Presumption.
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Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee has been successful or unsuccessful on the merits in defense of any
action, suit or proceeding or in defense of any issue or matter therein,
including, without limitation, dismissal without prejudice, Indemnitee shall be
indemnified against any and all expenses (including attorney fees), judgments,
fines, taxes, penalties and amounts paid in settlement with respect to such
action, suit or proceeding.
3.1 Indemnitee shall be presumed to be entitled to indemnification for
any act or omission covered under this Agreement. The burden of proof of
establishing that Indemnitee is not entitled to indemnification because of the
failure to fulfill some requirement of Federal or Florida law, the Corporation's
articles of incorporation or by-laws or this Agreement shall be on the
Corporation.
3.2 The Corporation shall not settle any action or claim in any manner
which would impose any penalty or limitation on Indemnitee without Indemnitee's
prior written consent. Indemnitee shall not unreasonably withhold his consent to
any proposed settlement.
3.3 For purposes of this Agreement, the termination of any action,
suit or proceeding, by judgment, order, settlement (whether with or without
court approval) or conviction, or upon a plea of nolo contendere, or its
equivalent, shall not create a presumption that Indemnitee did not meet any
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particular standard of conduct or have any particular belief or that a court has
determined that indemnification is not permitted by applicable law or this
Agreement.
4. Notice By Indemnitee. Indemnitee shall notify the Corporation in writing of
any matter with respect to which Indemnitee intends to seek indemnification
hereunder as soon as reasonably practicable following the receipt by Indemnitee
of written threat thereof; provided, however, that failure to so notify the
Corporation shall not constitute a waiver by Indemnitee of his rights hereunder.
5. Advancement of Expenses. In the event of any action, suit or proceeding
against Indemnitee which may give rise to a right of indemnification from the
Corporation pursuant to this Agreement, following written request to the
Corporation by Indemnitee, the Corporation shall advance to Indemnitee amounts
to cover expenses (including attorney fees) incurred by Indemnitee in defending
any such action, suit or proceeding in advance of the final disposition thereof
upon receipt of reasonably satisfactory evidence as to the amount of such
expenses. Indemnitee's written certification together with a copy of any expense
statement paid or to be paid by Indemnitee shall constitute satisfactory
evidence as to the amount of expenses.
6. Non-Exclusivity of Right of Indemnification. The indemnification rights
granted to Indemnitee under this Agreement shall not be deemed exclusive of, or
in limitation of, any other rights to which Indemnitee may be entitled under
Florida or Federal law, the Corporation's articles of incorporation or by-laws,
any other agreement, any vote of Shareholders or Directors or otherwise. To the
extent Florida or Federal law, the Corporation's articles of incorporation or
by-laws or other applicable law, as in effect on the date hereof or at any time
in the future, permit greater indemnification than is provided for in this
Agreement, Indemnitee shall enjoy such greater benefits so afforded, and this
agreement shall be deemed amended without any further action by the Corporation
or Indemnitee to grant such greater benefits. Indemnitee shall be entitled, in
the sole discretion of Indemnitee, to elect to have Indemnitee's rights
hereunder interpreted on the basis of applicable law in effect at the time of
execution of this Agreement, at the time of the occurrence of the indemnifiable
event giving rise to a claim or at the time indemnification is sought. 7.
Termination of Agreement and Survival of Right of Indemnification. Subject to
Section 7.1, this Agreement shall terminate when Indemnitee' services to the
Corporation as Officer and/or Director end.
7.1 The rights granted to Indemnitee hereunder shall continue after
termination and shall inure to the benefit of Indemnitee, his heirs, personal
representatives and assigns, and this Agreement shall be binding upon the
Corporation and its successors and assigns.
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8. Mediation and Arbitration.
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Any disputes between the parties hereto, whether arising under this agreement or
otherwise, which the parties cannot resolve between themselves using good faith
shall be:
8.1 Referred to a court certified mediator of the Circuit Court in the
County of the principal office of the Corporation, and any mediation shall be
held in the County of the principal office of the Corporation. The parties shall
share equally in the cost of said mediation.
8.2 In the event that said dispute is not resolved in mediation, the
parties shall submit the dispute to a neutral arbitrator residing in the County
of the principal address of the Corporation. The arbitration shall be held in
the County of the principal office of the Corporation. The parties shall share
equally in the cost of said arbitration. In the event that the parties are
unable to agree upon an arbitrator within 15 days of the date on which either
party requests arbitration of a matter, the arbitrator shall be provided by the
American Arbitration Association. The parties further agree that full discovery
shall be allowed to each party to the arbitration and a written award shall be
entered forthwith. Any and all types of relief that would otherwise be available
in Court shall be available to both parties in the arbitration. The decision of
the arbitrator shall be final and binding. Arbitration shall be the exclusive
legal remedy of the parties. judgment upon the award may be entered in any court
of competent jurisdiction pursuant to Florida Statutes Chapter 682, as amended,
The Arbitration Code.
8.3 If either party refuses to comply with a ruling or decision of the
arbitrator and a lawsuit is brought to enforce said ruling or decision, it is
agreed that the party not complying with the ruling or decision of the
arbitrator shall pay the court costs and reasonable attorney's fees (including
Trial and Appellate attorney's fees) incurred in enforcing the ruling or
decision of the arbitrator.
8.4 Any rights of injunctive relief shall be in addition to and not in
derogation or limitation of any other legal rights.
9. Interpretation of Agreement.
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The parties acknowledge that this Agreement is the product of mutual efforts by
the parties and their respective agents. This Agreement shall be interpreted
neither more favorable in favor of one party, nor less favorably in favor of
another party.
10. Entire Agreement.
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This Agreement constitutes the entire understanding of the parties and
supersedes all prior discussions, negotiations, and understandings, whether oral
or written, with respect to its subject matter.
11. Modification.
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No change or modification of this Agreement shall be valid unless it is in
writing and signed by all the parties who are bound by the terms of this
Agreement.
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12. Attorney's fees; Costs.
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In any mediation, arbitration or litigation arising out of this Agreement, the
prevailing party in such litigation shall be entitled to recover reasonable
attorney's fees and costs at both the trial and appellate levels.
13. Severability.
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If any provision of this Agreement is held invalid, unenforceable, or void by a
court of competent jurisdiction, this Agreement shall be considered divisible as
to such provision, and the remainder of the Agreement shall be valid and binding
as though such provision were not included in this Agreement.
14. Authorization.
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The Corporation is authorized to enter into this Agreement by virtue of a
resolution adopted as a meeting of Directors held the 27 June 1998.
15. Benefits; Binding Effects.
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This Agreement shall be binding upon and shall operate for the benefit of the
parties hereto and their respective heirs, personal representative,
administrators, successors, and assigns.
16. Venue and Jurisdiction.
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Should a lawsuit be necessary to enforce this Agreement the parties agree that
jurisdiction and venue are waived and suit shall be brought in the county of the
principal office of the Corporation.
17. Notices.
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All notices, offers, acceptances and other communications provided for in this
Agreement shall be deemed delivered if sent in writing and delivered either
personally or by certified mail to the Corporation at its principal office, or
to the Indemnitee address appearing on the records of the Corporation, or to
such other address as may be designated in writing by the Corporation or the
Indemnitee.
18. No-Waivers.
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The waiver by any party of any other party's breach of any provision of this
Agreement shall not operate nor be construed as a waiver of any subsequent
breach, and the waiver by any party to exercise any right or remedy shall not
operate nor be construed as a waiver or bar to the exercise of such right or
remedy upon the occurrence of any subsequent breach.
19. Headings.
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Headings in this Agreement are for convenience only and shall not be used to
interpret or construe its provisions.
20. Governing Law.
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This Agreement shall be governed by the laws of the State of Florida (without
regard to the laws that might be applicable under principles of conflicts of
law) as to all matters, including, but not limited to, matters of validity,
construction, effect and performance.
21. Counterparts.
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This Agreement may be executed in two or more parts, each of which shall be
deemed an original but all of which together shall be one and the same
instrument.
22. Facsimile Copy.
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A facsimile copy of this Agreement and any signatures affixed hereto shall be
considered for all purposes as originals.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above stated.
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, Indemnitee
BLACK DIAMOND INDUSTRIES, INC.
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, Director
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