The following exhibit is the form of Indemnification Agreement entered into with
Xxx X. Xxxxxx, Xxx X. Xxxxx and Xx. Xxxxxxx Xxxxx as Indemnitees.
1
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is entered into
effective as of January 19, 2001, by and between AMERICAN FINANCIAL HOLDING,
INC., a Delaware corporation (the "Corporation"), and _____________________
("Indemnitee").
Agreement
NOW, THEREFORE, in consideration of the covenants contained herein, the
Corporation and Indemnitee do hereby covenant and agree as follows:
1. Indemnity of Director or Officer. The Corporation shall indemnify
Indemnitee and hold him harmless against any and all expenses incurred by reason
of the fact that Indemnitee is or was a director, officer, agent, or advisor of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee, agent, or advisor of another corporation,
partnership, joint venture, trust, limited liability company, or other entity or
enterprise to the fullest extent permitted by the Delaware General Corporation
Law.
2. Advances of Expenses. Expenses (other than judgments, penalties,
fines, and settlements) incurred by Indemnitee shall be paid by the Corporation,
in advance of the final disposition of the proceeding, within ten days after
receipt of Indemnitee's written request accompanied by substantiating
documentation and Indemnitee's unsecured undertaking to repay such amount to the
extent it is ultimately determined that Indemnitee is not entitled to
indemnification to the fullest extent permitted by the Delaware General
Corporation Law.
3. Undertaking by Indemnitee. Indemnitee hereby undertakes to repay to
the Corporation any advances of expenses pursuant to this Agreement to the
extent that it is ultimately determined that Indemnitee is not entitled to
indemnification.
4. Indemnification Hereunder Not Exclusive. The indemnification and
advancement of expenses provided by this Agreement shall not be deemed exclusive
of any other rights to which Indemnitee may be entitled under the Articles,
Bylaws, Statute, any policy or policies of directors' and officers' liability
insurance, any agreement, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office.
However, Indemnitee shall reimburse the Corporation for amounts paid to him
under this Agreement in an amount equal to any payments received pursuant to
such other rights to the extent such payments duplicate any payments received
pursuant to this Agreement.
5. Continuation of Indemnity. All agreements and obligations of the
Corporation contained herein shall continue during the period Indemnitee is a
director, officer, agent, or advisor of the Corporation (or is or was serving at
the request of the Corporation as a director, officer, employee, agent, or
advisor of another corporation, partnership, joint venture, trust, limited
liability company, or other enterprise) and shall continue thereafter so long as
Indemnitee shall be subject to any possible proceeding.
6. Enforcement.
(a) The Corporation expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed on the
2
Corporation hereby in order to induce Indemnitee to serve as a director
or officer of the Corporation, and acknowledges that Indemnitee is
relying upon this Agreement in continuing as a director or officer.
(b) In the event Indemnitee is required to bring any action or
other proceeding to enforce rights or to collect monies due under this
Agreement and is successful in such action, the Corporation shall
reimburse Indemnitee for all of the Indemnitee's expenses in bringing
and pursuing such action.
7. Governing Law; Binding Effect; Amendment and Termination.
(a) This Agreement shall be interpreted and enforced in
accordance with the laws of the state of Delaware.
(b) This Agreement shall be binding upon the Corporation, its
successors and assigns, and shall inure to the benefit of Indemnitee,
his heirs, personal representatives, and assigns, and to the benefit of
the Corporation, its successors and assigns.
(c) No amendment, modification, termination, or cancellation
of this Agreement shall be effective unless in writing signed by the
Corporation and Indemnitee.
8. Severability. If any provision of this Agreement shall be held to be
invalid, illegal, or unenforceable,
(a) the validity, legality, and enforceability of the
remaining provisions of this Agreement shall not be in any way affected
or impaired thereby; and
(b) to the fullest extent possible, the provisions of this
Agreement shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal, or unenforceable.
Each section of this Agreement is a separate and independent portion of this
Agreement. If the indemnification to which Indemnitee is entitled as respects
any aspect of any claim varies between two or more sections of this Agreement,
that section providing the most comprehensive indemnification shall apply.
9. Notice. All notices, demands, requests, or other communications
required or authorized hereunder shall be in writing and shall be deemed to have
been given on the date of service if personally served or by facsimile
transmission (if receipt is confirmed by the facsimile operator of the
recipient), or on the following day if delivered by overnight courier service,
or on the fifth day after mailing if mailed by certified mail, return receipt
requested, addressed as follows
If to the Corporation, to: American Financial Holding, Inc.
000 Xxx Xxxxxx Xxxxx
Xx. Xxxxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Electronic Mail: x-x-x@xxxxxxxx.xxx
3
If to the Indemnitee, to:
Telephone:
Facsimile:
Electronic Mail:
or such other addresses and facsimile numbers as shall be furnished by any party
in the manner for giving notices hereunder, and any such notice, demand,
request, or other communication shall be deemed to have been given as of the
date so delivered or sent by facsimile transmission, five business days after
the date so mailed, or one day after the date so sent by overnight delivery.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the day and year first above written.
Corporation:
AMERICAN FINANCIAL HOLDING, INC.
By:
-------------------------------
Xxxxxx X. Xxxxxxx, President
Indemnitee:
--------------------------------
4
The following exhibit is the form of Indemnification Agreement entered into with
Xxxxxx X. Xxxxxxx and Xxxxxxx X. Punta as Indemnitees.
5
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is entered into
effective as of January 19, 2001, by and between AMERICAN FINANCIAL HOLDING,
INC., a Delaware corporation (the "Corporation"), and __________________
("Indemnitee").
Agreement
NOW, THEREFORE, in consideration of the covenants contained herein, the
Corporation and Indemnitee do hereby covenant and agree as follows:
1. Indemnity of Director or Officer. The Corporation shall indemnify
Indemnitee and hold him harmless against any and all expenses incurred by reason
of the fact that Indemnitee is or was a director, officer, agent, or advisor of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee, agent, or advisor of another corporation,
partnership, joint venture, trust, limited liability company, or other entity or
enterprise, to the fullest extent permitted by the Delaware General Corporation
Law, save and except any and all loss, cost, damage, or expense in connection
with that certain lawsuit in the Third District Court in Salt Lake County, Utah,
styled Bridge v. American Financial Holding, Inc., Triad Financial Systems,
Inc., Xxxxxxx X. Punta, and Xxxxxx X. Xxxxxxx (Civil No. 990912544).
2. Advances of Expenses. Expenses (other than judgments, penalties,
fines, and settlements) incurred by Indemnitee shall be paid by the Corporation,
in advance of the final disposition of the proceeding, within ten days after
receipt of Indemnitee's written request accompanied by substantiating
documentation and Indemnitee's unsecured undertaking to repay such amount to the
extent it is ultimately determined that Indemnitee is not entitled to
indemnification to the fullest extent permitted by the Delaware General
Corporation Law.
3. Undertaking by Indemnitee. Indemnitee hereby undertakes to repay to
the Corporation any advances of expenses pursuant to this Agreement to the
extent that it is ultimately determined that Indemnitee is not entitled to
indemnification.
4. Indemnification Hereunder Not Exclusive. The indemnification and
advancement of expenses provided by this Agreement shall not be deemed exclusive
of any other rights to which Indemnitee may be entitled under the articles of
incorporation, bylaws, statutes, any policy or policies of directors' and
officers' liability insurance, any agreement, or otherwise, both as to action in
his official capacity and as to action in another capacity while holding such
office. However, Indemnitee shall reimburse the Corporation for amounts paid to
him under this Agreement in an amount equal to any payments received pursuant to
such other rights to the extent such payments duplicate any payments received
pursuant to this Agreement.
5. Continuation of Indemnity. All agreements and obligations of the
Corporation contained herein shall continue during the period Indemnitee is a
director, officer, agent, or advisor of the Corporation (or is or was serving at
the request of the Corporation as a director, officer, employee, agent, or
advisor of another corporation, partnership, joint venture, trust, limited
liability company, or other enterprise) and shall continue thereafter so long as
Indemnitee shall be subject to any possible proceeding.
6
6. Enforcement.
(a) The Corporation expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed on the
Corporation hereby in order to induce Indemnitee to serve as a director
or officer of the Corporation, and acknowledges that Indemnitee is
relying upon this Agreement in continuing as a director or officer.
(b) In the event Indemnitee is required to bring any action or
other proceeding to enforce rights or to collect monies due under this
Agreement and is successful in such action, the Corporation shall
reimburse Indemnitee for all of the Indemnitee's expenses in bringing
and pursuing such action.
7. Governing Law; Binding Effect; Amendment and Termination.
(a) This Agreement shall be interpreted and enforced in
accordance with the laws of the state of Delaware.
(b) This Agreement shall be binding upon the Corporation, its
successors and assigns, and shall inure to the benefit of Indemnitee,
his heirs, personal representatives, and assigns, and to the benefit of
the Corporation, its successors and assigns.
(c) No amendment, modification, termination, or cancellation
of this Agreement shall be effective unless in writing signed by the
Corporation and Indemnitee.
8. Severability. If any provision of this Agreement shall be held to be
invalid, illegal, or unenforceable,
(a) the validity, legality, and enforceability of the
remaining provisions of this Agreement shall not be in any way affected
or impaired thereby; and
(b) to the fullest extent possible, the provisions of this
Agreement shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal, or unenforceable.
Each section of this Agreement is a separate and independent portion of this
Agreement. If the indemnification to which Indemnitee is entitled as respects
any aspect of any claim varies between two or more sections of this Agreement,
that section providing the most comprehensive indemnification shall apply.
9. Notice. All notices, demands, requests, or other communications
required or authorized hereunder shall be in writing and shall be deemed to have
been given on the date of service if personally served or by facsimile
transmission (if receipt is confirmed by the facsimile operator of the
recipient), or on the following day if delivered by overnight courier service,
or on the fifth day after mailing if mailed by certified mail, return receipt
requested, addressed as follows
If to the Corporation, to: American Financial Holding, Inc.
000 Xxx Xxxxxx Xxxxx
Xx. Xxxxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Electronic Mail: x-x-x@xxxxxxxx.xxx
7
If to the Indemnitee, to:
Telephone:
Facsimile:
Electronic Mail:
or such other addresses and facsimile numbers as shall be furnished by any party
in the manner for giving notices hereunder, and any such notice, demand,
request, or other communication shall be deemed to have been given as of the
date so delivered or sent by facsimile transmission, five business days after
the date so mailed, or one day after the date so sent by overnight delivery.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the day and year first above written.
Corporation:
AMERICAN FINANCIAL HOLDING, INC.
By:
--------------------------------
Xxxxxx X. Xxxxxxx, President
Indemnitee:
-------------------------
8
