Exhibit 10.5
INDEMNIFICATION AGREEMENT
AND
COVENANT NOT TO XXX
AGREEMENT, made and entered into as of 20 August 1997, between GINSITE
MATERIALS, INC., a Florida corporation (the "Company"), and Xxxxxx Xxxxxxxx,
(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 laws; and
WHEREAS, the parties desire to set forth their agreement regarding
indemnification;
NOW, THEREFORE, for an 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. 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 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's services as
Officer and/or Director of the Corporation.
2. Indemnity and Covenant Not to Xxx. 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 by-law provision to the contrary, Indemnitee,
from and against any expanses (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 an 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 action is 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
Indemnitiees' services to the Corporation.
3. Successful Defense; Burden of Proof; Settlement; No Presumption.
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 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 or nolo
contendere, or its equivalent, shall not create a presumption
that Indemnitee does not meet any 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 or her 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 the 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 Indemnitees' 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's 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 or
her heirs, personal representatives and assigns, and this
Agreement shall be binding upon the Corporation and its
successors and assigns.
8. Mediation and Arbitration. Any disputes arising hereunder which the parties
cannot resolve between themselves using good faith shall be referred to a court
certified mediator of the circuit Court in the County of the principal office of
the Corporation, and any mediation and or arbitration shall be held in the
County of the principal office of the Corporation, and shall be the exclusive
legal remedies of the parties. The parties shall share equally in the cost of
said mediation. In the event that said dispute is not resolved in mediation, the
parties shall submit the dispute to an arbitrator certified by the Circuit Court
in the County of the principal office of the Corporation. The decision of the
arbitrator shall be final and binding. Judgment upon the award may be entered in
any court of competent jurisdiction pursuant to Florida Statutes Chapter 682, as
amended, The Arbitration Code.
9. Interpretation of Agreement. 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. 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. 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.
12. Attorneys' fees; Costs. In any mediation, arbitration or litigation arising
out of this Agreement, the prevailing party in such litigation shall be entitled
to recover reasonable attorneys' fees and costs at both the trial and appellate
levels.
13. Severability. If any provision of this Agreement is held invalid,
unenforceable, or void by a court of competent jurisdiction, this Agreement
shall be consider3ed 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. The Corporation is authorized to enter into this Agreement by
virtue of a resolution adopted as a meeting of Directors held the 20 August
1997.
15. Benefits; Binding Effects. 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. 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. 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's 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. 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. Headings in this Agreement are for convenience only and shall not
be used to interpret or construe its provisions.
20. Governing Law. 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. 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. A facsimile copy of this Agreement and any signatures
affixed hereto shall be considered for all purposes as originals.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above stated.
/s/ Xxxxxx Xxxxxxxx
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GINSITE MATERIALS, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx, President
