INDEMNITY AGREEMENT
Exhibit
10.4
INDEMNITY
AGREEMENT
THIS
INDEMNITY AGREEMENT ("Agreement") is entered into on the 9th day of August
2001
between SITEWORKS BUILDING AND DEVELOPMENT CO.,, a Florida corporation (the
"Company"), and Carf M Nurse_(Indemnitee").
R
E C I T
A L
The
Indemnitee currently is serving as a director or officer, or both, of the
Company and the Company wishes the Indemnitee to continue in such capacities.
In
order to induce the Indemnitee to continue to serve in such capacities for
the
Company and in consideration for his continued service, the Company wishes
to
provide for indemnification of the Indemnitee upon the terms and conditions
set
forth below.
A
G R E E
M E N T
It
is
agreed as follows:
1. The
Company will pay on behalf of the Indemnitee, and his executors, administrators
or assigns, any amount which he is or becomes legally obligated to pay because
of any claim or claims made against him because of any act or omission or
neglect or breach of duty which he commits or suffers while acting in his
capacity as a director or officer of the Company. The payments which the Company
will be obligated to make hereunder shall include, INTER ALIA, damages,
judgments, settlements, costs of investigation and costs of defense of legal,
criminal or equitable actions, claims or proceedings and appeals therefrom,
including attorneys' fees of Indemnitee, costs of attachment or similar bonds,
costs of establishing a right to indemnification under this Agreement, and
fines, penalties or other obligations or fees imposed by law.
2. If
a claim under this Agreement is not paid by the Company within 60 days after
a
written claim has been received by the Company, the claimant may at any time
thereafter bring suit against the Company to recover the unpaid amount of the
claim and if successful, in whole or in part, the claimant also shall be
entitled to receive from the Company claimant's reasonable attorneys' fees
and
other expenses of prosecuting such claim.
3. 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 the Indemnitee,
who shall execute all papers reasonably required and shall do everything that
may be necessary or appropriate to secure such rights, including the execution
of such documents necessary or appropriate to enable the Company effectively
to
bring suit to enforce such rights.
4. Notwithstanding
anything contained herein to the contrary:
(a)
The Company shall not be liable to Indemnitee for, nor obligated to furnish
advances in connection with, any loss, cost or expense of Indemnitee resulting
from his willful or negligent violation of Section 16(b) of the Securities
Exchange Act of 1934 or the Foreign Corrupt Practices Act of 1977.
(b)
The Company shall not be liable to the Indemnitee for, and shall not be
obligated to furnish any advances except for repayable costs, charges and
expenses as stated below, in connection with, any loss, cost or expense of
Indemnitee as the direct result of a final judgment for money damages payable
to
the Company or any affiliate for or on account of loss, cost or expense directly
or indirectly resulting form the Indemnitee's negligence or misconduct within
the meaning of Florida General Corporation Law.
(c)
Unless otherwise allowed by a court of competent jurisdiction, the Company
shall
not be liable to Indemnitee for, and Indemnitee undertakes to repay the Company
for all advances which may have been made of, expenses of investigation, defense
or appeal of any matter the judgment of which is excluded under subsection
4(b)
next above.
(d)
Unless otherwise determined by a court of competent jurisdiction, a settlement
of any suit, action or proceeding shall be presumed to be an "expense" in
mitigation of the expenses of continued litigation and not the compromise of
a
judgment on the merits of the action, suit or proceeding.
(e)
Insofar as indemnification for liabilities arising under the Securities Act
of
1933 (the "Securities Act") may be permitted to directors of the Company
pursuant to the foregoing provisions, or otherwise, the Board of Directors
has
been advised that in the opinion of the Securities and Exchange Commission
such
indemnification is against public policy as expressed in the Securities Act
and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director of the Company in the wholly or partially
successful defense of any action, suit or proceeding) is asserted by the
Indemnitee in connection with Company securities which have been registered,
the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it hereunder is against public policy
as expressed in the Securities Act and will be governed by the final
adjudication of such issue. In effect, therefore, absent a court decision in
the
individual case or controlling precedent, the provisions of the Agreement will
not apply to liabilities of the Indemnitee arising under the Securities Act
unless and only to the extent that the Indemnitee is successful in the defense
of the action, suit or proceeding in question.
(f)
The Company shall not be liable under this Agreement to make any payment in
connection with any claim made against the Indemnitee:
(i) based
upon or attributable to the Indemnitee or any member of his immediate family
gaining in fact any personal profit or advantage to which he was not legally
entitled;
(ii)based
upon or attributable to the dishonesty of the Indemnitee seeking payment
hereunder; provided that the Indemnitee shall be protected under this Agreement
as to any claims upon which suit may be brought against him by reason of any
alleged dishonesty on his part, unless a judgment or other final adjudication
thereof adverse to the Indemnitee shall establish that he committed acts of
active and deliberate dishonesty, with actual dishonest purpose and intent,
which acts were material to the cause of action so adjudicated;
(iii)for
bodily injury, sickness, disease or death of any person, or damage to or
destruction of any tangible property, including loss of use thereof; or
(iv)for
which indemnification under this Agreement is determined by a final adjudication
of a court of competent jurisdiction to be unlawful and violative of public
policy.
5. The
Indemnitee, as a condition precedent to his right to be indemnified under this
Agreement, shall give to the Company notice in writing as soon as practicable
of
any claim made against him for which indemnity will or could be sought under
this Agreement. Notice to the Company shall be directed to the attention of
the
Corporate Secretary of the Company at the address of the Company's executive
offices (or such other address as the Company shall designate in writing to
the
Indemnitee); notice shall be deemed received if sent by prepaid mail properly
addressed, the date of such notice being the date postmarked. In addition,
upon
request made by the Corporation the Indemnitee shall give the Company such
information and cooperation as it may reasonably require and as shall be within
the Indemnitee's power.
6. Costs
and expenses (including attorneys' fees) incurred by the Indemnitee in defending
or investigating any action, suit, proceeding or investigation shall be paid
by
the Company in advance of the final disposition of such matter. The Indemnitee
agrees to repay any such advances in the event that it is ultimately determined
that the Indemnitee is not entitled to indemnification under the terms of the
Agreement. Notwithstanding the foregoing or any other provision of this
Agreement, no advance shall be made by the Company if a determination is
reasonably and promptly made by the board of directors by a majority vote of
a
quorum of disinterested directors, or (if such a quorum is not obtainable or,
even if obtainable, a quorum of disinterested directors so directs) by
independent legal counsel, that, based upon the facts known to the board or
counsel at the time such determination is made, (a) the Indemnitee knowingly
and
intentionally acted in bad faith, and (b) it is more likely than not that it
will ultimately be determined that the Indemnitee is not entitled to
indemnification under the terms of this Agreement.
7. Nothing
contained herein shall be deemed to diminish or otherwise restrict the
Indemnitee's right to indemnification under any provision of the articles of
incorporation or bylaws of the Company or under Florida law.
8. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Florida.
9. This
Agreement shall be binding upon all successors and assigns of the Company
(including any transferee of all or substantially all of its assets and any
successor by merger or operation of law) and shall inure to the benefit of
the
heirs, personal representatives and estate of Indemnitee.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and signed as of the day and year first above written.
"COMPANY"
SITEWORKS
BUILDING AND DEVELOPMENT CO.,,
a
Florida
corporation
Xxxx
M
Nurse,
President
"INDEMNITEE
