Hvide Marine Incorporated
Indemnification Agreement
This Indemnification Agreement, dated as of October 30 , 1998, is
entered into by and between Hvide Marine Incorporated, a Florida corporation
(the "Corporation"), and Xxxx X. Xxxxx (the "Indemnitee").
W I T N E S S E T H:
WHEREAS, the Corporation and the Indemnitee have been contacted in
connection with a potential proceeding (the "Proceeding");
WHEREAS, the Indemnitee believes that the indemnity provisions of the
Corporation's Articles of Incorporation might not themselves provide sufficient
protection against personal liability, if any, that may arise out of the
Proceeding as a result of his service on behalf of the Corporation;
WHEREAS, the Corporation desires to hold harmless and indemnify the
Indemnitee and to make arrangements by which the Indemnitee may be advanced or
reimbursed expenses incurred by him in connection with the Proceeding, all to
the fullest extent permitted by the Florida Business Corporation Act and other
applicable law;
NOW, THEREFORE, for and in consideration of the premises and agreements
contained herein, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Corporation and the Indemnitee
agree as follows:
Section 1. Mandatory Indemnification. Subject to the provisions of
Section 3, the Corporation shall indemnify and hold harmless the Indemnitee from
and against any and all claims, damages, expenses (including attorneys' fees),
judgments, penalties, fines (including excise taxes assessed with respect to
employee benefit plans), settlements, and all other liabilities incurred or paid
by him in connection with the Proceeding, defense, prosecution, settlement
and/or appeal of the Proceeding or any action, suit or proceeding arising out of
the Proceeding, whether civil, criminal, administrative or investigative, and to
which the Indemnitee was or is a party, or is threatened to be made a party, by
reason of the fact that the Indemnitee is or was an officer, director or
employee of the Corporation or is or was serving at the request of the
Corporation as an officer, director, partner, trustee, employee, adviser or
agent of another corporation, partnership, limited liability company, joint
venture, trust, employee benefit plan or other enterprise, or by reason of
anything done or not done by the Indemnitee in any such capacity or capacities,
provided that the Indemnitee shall, with respect to the conduct subject to the
cause of action, have acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Corporation and (i) with
respect to any action by or in the right of the Corporation, the Indemnitee's
conduct shall not have been adjudged to have been material to the cause of
action adjudicated and to have constituted willful misconduct or conscious
disregard for the best interests of the Corporation and (ii) with
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respect to any criminal action or proceeding, the Indemnitee shall have had no
reasonable cause to believe his conduct was unlawful.
Section 2. Indemnification of Expenses Incurred While Testifying. The
Corporation shall indemnify the Indemnitee against reasonable expenses,
including attorneys' fees, incurred or paid by the Indemnitee as a result of
providing testimony in any proceeding arising out of the Proceeding, whether
civil, criminal, administrative or investigative, including any action or suit
by or in the right of the Corporation, by reason of the fact that the Indemnitee
is or was a director, officer or employee of the Corporation, or is or was
serving at the request of the Corporation as an officer, director, partner,
trustee, employee, adviser or agent of another corporation, partnership, limited
liability company, joint venture, trust, employee benefit plan or other
enterprise.
Section 3. Authorization of Indemnification. (a) Any indemnification
under Section 1, unless pursuant to a determination by a court, shall be made by
the Corporation only as authorized in the specific case upon a determination
that indemnification or reimbursement of the Indemnitee is proper in the
circumstances because the Indemnitee has met the applicable standards of conduct
set forth in Section 1 and that the amount thereof is reasonable (the
"Determination") made:
(i) by the Corporation's Board of Directors (the "Board") by
majority vote or consent of a quorum consisting of directors who are
not, at the time of the Determination, named parties to the proceeding
that is the subject of the Determination ("Disinterested Directors");
(ii) by majority vote or consent of a committee duly
designated by the Board (in which designation directors who are not
Disinterested Directors may participate) consisting solely of two or
more Disinterested Directors;
(iii) by independent legal counsel selected by the Board
pursuant to a majority vote as described in subparagraph (i), by the
committee described in subparagraph (ii), or, if the quorum
contemplated by subparagraph (i) cannot be obtained and the committee
cannot be designated, by a majority vote of the full Board in which
directors who are not Disinterested Directors may participate; or
(iv) by the Corporation's shareholders by a vote or consent of
a majority of a quorum consisting of shareholders who are not, at the
time of the Determination, parties to the proceeding subject to the
Determination or, if no such quorum is obtainable, by a majority vote
of shareholders who are not parties to such proceeding.
(b) 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 the Indemnitee did
not act in good faith and in a manner that he reasonably believed to be in or
not opposed to the best interests of the
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Corporation or, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(c) The Indemnitee's conduct with respect to an employee benefit plan
for a purpose he reasonably believed to be in the interests of the participants
in and beneficiaries of the plan shall be deemed to be conduct that the
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Corporation.
(d) For purposes of any Determination hereunder, the Indemnitee shall
be deemed to have acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation, or, with respect
to any criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based upon (i) the records or books
of account of the Corporation or another enterprise, including financial
statements, (ii) information supplied to him by the officers of the Corporation
or another enterprise in the course of their duties, (iii) the advice of legal
counsel for the Corporation or another enterprise, or (iv) information or
records given or reports made to the Corporation or another enterprise by an
independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Corporation or another enterprise. The term
"another enterprise" as used in this paragraph shall mean any other corporation
or any partnership, limited liability company, joint venture, trust, employee
benefit plan or other enterprise of which the Indemnitee is or was serving at
the request of the Corporation as an officer, director, partner, trustee,
employee, adviser or agent. The provisions of this paragraph shall not be deemed
to be exclusive or to limit the circumstances in which the Indemnitee may be
deemed to have met the applicable standard of conduct set forth in Section 1.
(e) Notwithstanding any other provision of this Agreement, to the
extent that the Indemnitee has been successful on the merits or otherwise in
defense of any action, suit or proceeding described in Section 1, or in defense
of any claim, issue or matter referred to therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the Proceeding, defense, settlement or appeal thereof.
For purposes of this paragraph, the term "successful on the merits or otherwise"
shall include (i) any termination, withdrawal, or dismissal (with or without
prejudice) of any claim, action, suit or proceeding against the Indemnitee
without any express finding of liability or guilt against him, (ii) the
expiration of 120 days after the making of any claim or threat of an action,
suit or proceeding without the institution of the same and without any promise
or payment made to induce a settlement, and (iii) the settlement of any action,
suit or proceeding described in Section 1 pursuant to which the Indemnitee pays
less than $25,000.
(f) If the Indemnitee is entitled under any provision of this Agreement
to indemnification or reimbursement by the Corporation for only a portion of the
claims, damages, expenses, judgments, penalties, fines or amounts paid in
settlement by the Indemnitee in connection with the Proceeding, defense,
settlement or appeal of, or testimony provided with respect to, any action
specified in Sections 1 or 2, the Corporation shall indemnify or reimburse the
Indemnitee for the portion thereof to which
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the Indemnitee is entitled. The party or parties making the Determination shall
determine the portion (if less than all) of such claims, damages, expenses,
judgments, penalties, fines or amounts paid in settlement for which the
Indemnitee is entitled to indemnification or reimbursement under this Agreement.
Section 4. Procedures for Making Determination. (a) All costs of making the
Determination required by Section 3 shall be borne by the Corporation.
(b) The Corporation shall use its best efforts to make the
Determination contemplated by Section 3 promptly and in any event:
(i) if the Determination is to be made by the Board or a
committee thereof or by independent legal counsel, not later than 30
days after delivery of a written request therefor to the Corporation by
the Indemnitee;
(ii) if the Determination is to be made by the shareholders of
the Corporation, not later than 120 days after delivery of such
request.
The failure to make a Determination, either favorable or adverse, within such
time period shall constitute a Determination approving full indemnification or
reimbursement of the Indemnitee except, in the case of an action by or in the
right of the Corporation, to the extent that such indemnification or
reimbursement is inconsistent with an adjudication that the Indemnitee's conduct
was material to the cause of action adjudicated and constituted willful
misconduct or conscious disregard for the best interests of the Corporation.
(c) Immediately following a Determination that the Indemnitee is
entitled to indemnification or reimbursement, or the passage of time prescribed
in paragraph (b) for making such Determination, the Corporation shall pay to the
Indemnitee in cash the amount to which the Indemnitee is entitled to be
indemnified or reimbursed without further authorization or action by the Board;
provided, however, that such payment shall be made only to the extent that the
expenses for which indemnification or reimbursement is sought have been incurred
by the Indemnitee.
(d) If the Determination is to be made by independent legal counsel,
such counsel shall, at the option of the Indemnitee, be selected by the
Indemnitee with the approval of the Board, which approval shall not be
unreasonably withheld and which shall be deemed a selection by the Board within
the meaning of clause (iii) of paragraph (a) of Section 3.
(e) In the event of a Determination that the Indemnitee did not meet
the applicable standards of conduct set forth in Section 1 or that the amount
for which indemnification or reimbursement is sought is not reasonable, the
Corporation shall, upon the written request of the Indemnitee, cause a new
Determination to be made by the Corporation's shareholders at the next regular
or special meeting of shareholders.
(f) If at any time a majority of the Board is not comprised of persons
who are members of the Board at the date of this Agreement or who were nominated
to serve on
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the Board by a majority of such members ("Continuing Directors"), or there is
otherwise a change in control of the Corporation, the Corporation shall, upon
the request of the Indemnitee, cause the Determination required by Section 3 to
be made by independent legal counsel or by a majority vote or consent of a
committee of the Board consisting solely of Continuing Directors.
(g) The Corporation shall afford to the Indemnitee and his
representatives full opportunity to present evidence of the facts upon which the
Indemnitee relies for indemnification or reimbursement, together with other
information relating to any requested Determination. The Corporation shall also
afford the Indemnitee the reasonable opportunity to include such evidence and
information in any proxy statement of the Corporation relating to a
Determination by the shareholders of the Corporation.
Section 5. Exclusion from Right to Indemnification. Notwithstanding any
other provision of this Agreement, no indemnification or reimbursement shall be
made by the Corporation with respect to any claim against the Indemnitee under
Section 16(b) of the Securities Exchange Act of 1934, as amended, or any claim
as to which indemnification is held to be unlawful or against public policy.
Section 6. Advance of Expenses. (a) Expenses, including attorneys'
fees, incurred by the Indemnitee in investigating, defending, settling, or
appealing, or providing testimony in, any action, suit or proceeding described
in Sections 1 or 2 (including, without limitation, a suit or proceeding seeking
to require the Corporation to advance expenses to the Indemnitee pursuant to
this Agreement) shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding. The Corporation shall promptly
pay the amount of such expenses to the Indemnitee, in no event later than 10
days following the Indemnitee's delivery to the Corporation of a written request
for an advance, together with a reasonable accounting of such expenses.
(b) The Indemnitee hereby undertakes and agrees to repay to the
Corporation any advances made pursuant to this Section if and to the extent that
it shall ultimately be determined that the Indemnitee is not entitled to be
indemnified by the Corporation for such amounts.
Section 7. Nondisclosure of Payments. Except as expressly required by
the federal securities or other applicable laws, neither party shall disclose
any payments under this Agreement without the prior approval of the other. Any
payments to the Indemnitee required to be disclosed shall, unless otherwise
required by law, be described only in proxy or information statements relating
to special and/or annual meetings of the Corporation's shareholders, and the
Corporation shall afford the Indemnitee the reasonable opportunity to review all
such disclosures and, if requested, to explain in such statement any mitigating
circumstances regarding the events reported.
Section 8. Miscellaneous. (a) All notices and other communications
pertaining to this Agreement shall be in writing and shall be deemed to have
been duly given upon the receipt thereof. Such notices shall be delivered by
hand or facsimile transmission, or
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mailed, certified or registered mail with postage prepaid, or sent by overnight
courier or delivery service, to the Indemnitee at the address set forth
following the Indemnitee's signature hereto and to the Corporation at:
0000 Xxxxx Xxxxx
P.O. Box 13038
Ft. Xxxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
or to such other address as shall be furnished to the other party in writing.
(b) This Agreement constitutes the entire understanding of the parties
and supersedes all prior understandings, whether written or oral, between the
parties with respect to the subject matter of this Agreement.
(c) The rights of indemnification and reimbursement provided in this
Agreement shall be in addition to any rights to which the Indemnitee may
otherwise be entitled under the Corporation's Articles of Incorporation or
By-laws or any statute, agreement, vote of shareholders, or otherwise.
(d) In case any provision of this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby and such
provision shall be ineffective only to the extent of such invalidity, illegality
or unenforceability. The parties shall endeavor in good faith to replace the
invalid, illegal or unenforceable provision with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provision.
(e) The Corporation shall cooperate in good faith with the Indemnitee
and use its best efforts to ensure that the Indemnitee is indemnified or
reimbursed for liabilities described herein to the fullest extent permitted by
law.
(f) This Agreement shall be governed by and construed under the laws of
the State of Florida regardless of laws that might otherwise govern under
applicable principles of conflict of laws.
(g) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement in writing between the
parties hereto.
(h) The obligations of the Corporation to the Indemnitee hereunder
shall survive and continue as to the Indemnitee although the Indemnitee may
cease to be a director or officer of the Corporation. Each and all of the
covenants, terms and provisions of this Agreement shall be binding upon and
inure to the benefit of the successors and assigns of the Corporation and, upon
the death or incapacity of the Indemnitee, to the benefit of his estate, heirs,
executors, administrators and personal representatives.
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(i) The provisions of this Agreement shall apply to claims, actions,
suits and proceedings whether now pending or hereafter commenced and shall be
retroactive to apply to acts or omissions that have occurred prior to the
execution of this Agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
HVIDE MARINE INCORPORATED
By:
INDEMNITEE:
Name: Xxxx X. Xxxxx
Address:
Facsimile:
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