OFFICER INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is made as of the __ day of ___ 1999, by
and between:
XXXXXXXX.XXX, INC., a Florida corporation, with its principal office
and place of business at 0000 Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxx 00000 (the "Corporation"), and
_________, a resident of the State of Florida ("Officer") whose
residence address is:
_____________________
_____________________
_____________________
Background
The Corporation desires that Officer serve as an executive officer of
the Corporation. Officer has indicated that he will be willing to serve in that
capacity set forth above, on the condition that he be indemnified as provided in
this Agreement.
NOW, THEREFORE, in consideration of the premises and as an inducement
to Officer to accept the positions described above as well as any other
additional positions as may be mutually agreed upon by the Corporation and
Officer, the Corporation hereby covenants and agrees with Officer, as follows:
1. Definitions. For purposes of this Agreement:
a. "Expenses" include all expenses actually and reasonably
incurred with respect to a Proceeding, including, without limitation,
fees, expenses and disbursements of attorneys, accountants, financial
consultants and other professionals.
b. "Liabilities" includes obligations to pay a judgment,
settlement, penalty, fine or tax (including, without limitation, any
withholding or employment tax and any excise tax assessed with respect
to the Corporation, any Subsidiary, any employee benefit plan or any
other enterprise as to which Officer is or was serving in an Official
Capacity), together with any obligation to pay interest thereon.
c. "Proceeding" includes any threatened, asserted, pending or
completed claim, action, suit or other type of proceeding, whether
civil, criminal, administrative or investigative, whether formal or
informal, including, without limitation, any arbitration proceeding or
other proceeding for the resolution of any claim or dispute and any
privately conducted negotiations, and including, without limitation,
any settlement, hearing, trial or appeal of any of the foregoing.
d. "Serving in an Official Capacity" includes (i) serving as a
director, officer, employee or agent of the Corporation or any
Subsidiary or (ii) serving at the request of the Corporation or any
Subsidiary as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
including any employee benefit plan.
e. "Subsidiary" means any corporation or other entity directly
or indirectly controlled by the Corporation which now exists or may
hereafter be formed.
2. Statutory Indemnification. The Corporation hereby agrees to
indemnify and hold harmless Officer to the fullest extent permitted or required
by the provisions of Chapter 607 of the Florida Statutes, as amended, or the
laws of the state of incorporation of any successor to the Corporation, and to
cause any Subsidiary to indemnify and hold harmless Officer to the fullest
extent permitted or required by the provisions of the laws of its jurisdiction
of incorporation against any Liability or Expense incurred by Officer by reason
of the fact that Officer is or was Serving in an Official Capacity. The
Corporation agrees that such obligation shall be to the fullest extent required
or permitted by any subsequent amendment to any of such provisions of the
Florida Statutes or by any other applicable statutory provisions permitting or
requiring such indemnification which are adopted after the date of this
Agreement (but in the case of any amendment or subsequent statutory provisions,
only to the extent that such amendment or provisions permit or require broader
or more extensive indemnification rights than prior thereto).
3. Additional Indemnification. Subject only to the exclusions set forth
in this Section 3, the Corporation further agrees to indemnify and hold harmless
and to cause any Subsidiary to indemnify and hold harmless Officer against any
and all Liabilities and Expenses incurred by Officer in connection with any
Proceeding to which Officer is or was a party or is threatened to be made a
party or in which Officer is called to testify as a witness or deponent by
reason of the fact that Officer is or was Serving in an Official Capacity.
Officer shall not be entitled to any indemnification pursuant to this Section 3
if a judgment or other final adjudication establishes that any act or omission
of Officer was material to the cause of action so adjudicated and that such act
or omission constituted:
a. A criminal violation, unless Officer had reasonable cause
to believe that Officer's conduct was lawful or had no reasonable cause
to believe that such conduct was unlawful;
b. A transaction from which Officer derived an improper
personal benefit;
c. An act or omission giving rise to liability for an unlawful
distribution under Section 607.0834, Florida Statutes, or any successor
provision; or
d. Wilful misconduct or a conscious disregard for the best
interests of the Corporation (or any Subsidiary or any other enterprise
as to which Officer is or was Serving in an Official Capacity).
4. Advance of Expenses; Partial Indemnification. The Corporation shall
advance or cause any Subsidiary to advance Expenses incurred by Officer in
defending any Proceeding for which Officer may be entitled to indemnification
hereunder, provided that the Corporation or any Subsidiary shall not be required
to advance any sums for such Expenses if the Board of Officers of the
Corporation or the Board of Officers of any Subsidiary, as the case may be,
makes a preliminary good faith determination that Officer engaged in willful
misconduct or acted with a conscious disregard for the best interests of the
Corporation or any Subsidiary, as the case may be (but no such determination by
the Board of Officers of any Subsidiary alone shall have any effect upon the
obligations of the Corporation under this Agreement without such a determination
by the Board of Officers of the Corporation). Officer hereby agrees to repay any
2
such advances of Expenses made hereunder with respect to a matter if Officer is
ultimately found not to be entitled to indemnification hereunder with respect to
such matter. If Officer is entitled under any provision of this Agreement to
indemnification by the Corporation for some or a portion of any Expense or
Liability but not entitled to indemnification for all of the total amount
thereof, the Corporation shall indemnify Officer for such portion thereof to
which Officer is entitled.
5. Obligations of Corporation and Subsidiary; Separate Obligations. It
is the intention of the parties that Officer be entitled to indemnification to
the broadest possible extent allowed by law. Accordingly, any ambiguity in this
Agreement shall be construed in favor of indemnification. Furthermore, in the
event that applicable law would not permit or require indemnification as to a
Liability or Expense but Florida law would, or vice versa, or in the event that
a Liability or Expense would be indemnifiable under both laws but the law of one
would permit or require broader indemnification than the other, Officer shall be
indemnified pursuant to the law that will provide maximum indemnification. The
obligations of the Corporation under this Agreement are separate, independent
and primary obligations of the Corporation, and may be enforced directly against
the Corporation without any necessity for joining any Subsidiary or any other
enterprise as to which Officer is or was Serving in an Official Capacity, for
recovering or seeking to enforce any judgment against any Subsidiary or such
other enterprise, or for otherwise seeking to recover from or out of the assets
of any Subsidiary or any such other enterprise, whether or not any Subsidiary or
any such other enterprise has assets sufficient for such recovery.
6. Notification of Defense of Claim. Promptly after receipt by Officer
of the notice of the commencement of any Proceeding (including any threat
thereof) as to which Officer may be entitled to indemnification hereunder,
Officer shall notify the Corporation in writing of the commencement thereof.
Failure to so notify the Corporation shall not relieve the Corporation from any
obligation hereunder except to the extent that it may suffer material prejudice
by reason of such failure. With respect to any such Proceeding as to which
Officer notifies the Corporation of the commencement thereof:
a. The Corporation shall be entitled to participate therein at
its own expense.
b. Except as otherwise provided below, the Corporation shall
be entitled to assume the defense thereof on behalf of Officer, with
counsel satisfactory to Officer and the Corporation. Officer shall have
the right to employ separate counsel in such Proceeding, and the fees,
expenses and disbursements of Officer's own separate counsel incurred
after written notice from the Corporation to Officer of its assumption
of the defense thereof and after the full assumption of such defense by
counsel engaged by the Corporation and satisfactory to Officer, shall
be the expense of Officer except (i) if the employment of counsel by
Officer has been authorized in writing by the Corporation, or (ii) if
Officer shall have reasonably concluded that there may be a conflict of
interest between Officer and the Corporation with respect to the
defense of such action, or (iii) if any fees, expenses and
disbursements of Officer's own separate counsel are incurred in
connection with familiarizing or providing assistance to counsel
employed by the Corporation, in which case the fees, expenses and
disbursements of Officer's own separate counsel shall be paid by the
Corporation. The Corporation shall not be entitled to assume the
defense of any Proceeding brought by or on behalf of the Corporation or
as to which Officer shall have made the conclusion provided for in (ii)
above.
3
c. The Corporation shall not be obligated to indemnify Officer
under this Agreement for any amounts paid in settlement of any
Proceeding effected without its written consent. The Corporation shall
not settle any action or claim in any manner which would impose any
penalty, limitation, Liability or Expense on Officer for which Officer
is not entitled to indemnification hereunder, without Officer's written
consent.
7. Insurance. Nothing in this Agreement shall be deemed to require the
Corporation to indemnify Officer to the extent that insurance proceeds under any
policy of policies of insurance carried by the Corporation, any Subsidiary or
any affiliate of the Corporation are available to satisfy any Liability or
Expense incurred by Officer by reason of the fact that Officer is or was Serving
in an Official Capacity. In the event the Corporation maintains policies of
directors and officers liability insurance, Officer shall be named as an insured
in such manner as to provide Officer the same rights and benefits as are
accorded to the most favorably insured of the Corporation's directors.
8. No Third Party Beneficiaries. This Agreement is not intended for the
benefit of and shall not create any rights in favor of any third parties, it
being the intent of the parties that this Agreement be solely for the benefit of
Officer, Officer's heirs and personal representatives, in the event that Officer
incurs any Liability or Expense for which Officer is entitled to indemnification
hereunder.
9. Miscellaneous. This Agreement shall continue in force during the
period that Officer is Serving in an Official Capacity and shall continue
thereafter so long as Officer shall be subject to any possible claim or
Proceeding by reason of the fact that Officer was Serving in an Official
Capacity. Officer shall be entitled to reimbursement from the Corporation for
the fees, expenses and disbursements of counsel reasonably incurred by Officer
in enforcing Officer's rights under this Agreement. In the event that any
provision of this Agreement is held to be void or unenforceable, the remaining
provisions shall not be affected thereby. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
personal representatives and successors. This Agreement is not assignable by
either party. No amendment or modification to this Agreement shall be effective
unless made in a writing signed by the party against whom enforcement is sought.
XXXXXXXX.XXX, INC.
By:______________________________________________
Xxxx X. Xxxxxx, President and Chief Executive
Officer
_________________________________________________
4
