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EXHIBIT 10.16
SETTLEMENT AGREEMENT
--------------------
THIS SETTLEMENT AGREEMENT (the "Agreement"), dated October 9th, 1998,
is made by and between Xxxx Xxxxxx ("Xxxxxx") and Let's Talk Cellular and
Wireless, Inc., a Florida corporation (the "Company").
W I T N E S S E T H:
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WHEREAS, Xxxxxx and the Company have agreed that Xxxxxx'x employment
as an officer and director of the Company shall cease as of October 9, 1998;
WHEREAS, Xxxxxx and the Company acknowledge this Agreement is
necessary to fully and completely define the parties' obligations to each other
going forward from October 9, 1998;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties do hereby
agree as follows:
1. Xxxxxx hereby voluntarily resigns as officer, director, and in any
other capacity on behalf of the Company effective October 9, 1998 and
acknowledges that this voluntary resignation is not the result of a
constructive termination. Further, this Agreement supersedes and replaces that
certain Amended and Restated Employment Agreement dated June 27, 1997
(including its Amendment dated July 9, 1998).
2. The Company shall pay Xxxxxx a total of $450,000.00, pursuant to
the following terms: 1) $200,000.00 shall be paid upon execution of this
Agreement; and 2) $250,000.00 shall be paid on May 1, 1999. The Company agrees
it will pay Xxxxxx 15% interest
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on any late payment of the $250,000.00 May 1, 1999 payment referenced above. The
foregoing payments consist of consideration for the obligations of Xxxxxx
contained herein, including but not limited to consideration for Xxxxxx'x
covenant not to compete contained in paragraph seven herein. Xxxxxx is also
entitled to be paid his normal salary, on a pro-rated basis for the days he has
worked in October, 1998 as well as nine of his accrued vacation days on the next
regularly-scheduled Company payday.
3. The Company will continue to provide Xxxxxx the following, and only
the following, enumerated benefits in substantially the same form and cost as
they are currently provided by the Company, until such time as the total
$450,000 referenced in Paragraph 2 of this Agreement is paid in its entirety:
auto lease (1 car), auto insurance, health insurance, life insurance,
disability insurance, and 401(K) plan. Nothing contained in this Agreement
shall in any way limit or diminish Xxxxxx'x rights, if any, to convert any
insurance policies, or exercise his rights under that Federal statute commonly
referred to as COBRA. The Company shall provide Xxxxxx written notice of
specific payments it makes concerning the above-referenced auto lease, auto
insurance, and life insurance if such specific notice is requested by Xxxxxx.
Xxxxxx is also entitled to continue to receive the benefit of the country club,
the dues of which have already been paid for the club's current membership
year. When the current country club membership year ends Xxxxxx shall retain
the right to use the country club privileges in his own name at his own
expense. The Company shall pay no further monies whatsoever with regard to
country club membership
4. Xxxxxx may retain all current "demo equipment" in his possession
and may retain the use of pager services, and continue to utilize such "demo
equipment" and pager
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services, as long as such "demo equipment" and pager services result in no cost
or liability to the Company; provided, however, that Xxxxxx'x right to use such
"demo equipment" and pager service shall expire on October 9, 2002. Further,
Xxxxxx may retain the use of two free promotional cellular lines (Nos.
000-000-0000 and 000-000-0000), as long as such free promotional cellular lines
results in no cost or liability to the Company; provided, however, that
Xxxxxx'x right to use such free promotional cellular lines shall expire on
October 9, 2002. The Company shall not be obligated to pay any further monies
whatsoever with regard to the "demo equipment", pager service, and cellular
lines referenced in this paragraph.
5. The parties agree that the press release attached hereto as Exhibit
"A" shall be released on the date of this Agreement. Further, in the event the
Company cites by name the founders of the Company in any written communication
publicly released by the Company concerning the Company's history (including
media releases and prospectus), Xxxxxx shall be acknowledged as a co-founder of
the Company. Xxxxxx shall also be entitled to sign the annual letter to the
shareholders for the fiscal year ending July 31, 1998, and his picture shall
appear in the Company's annual report if, and only if, other founder's pictures
also appear therein.
6. Xxxxxx'x 91,174 Company stock options (Option No. __) which are
already fully vested at the exercise price of approximately $20.04 shall remain
exercisable in accordance with their terms, which the parties acknowledge
expire on July 27, 2006. Also, one-third of Xxxxxx'x 59,202 unvested Company
stock options, with a strike price of $12.00, shall fully vest to Xxxxxx upon
execution of this Agreement and the return of the original option agreement and
the issuance of a replacement option agreement for the 19,734 options. The
remaining unvested Company stock options shall terminate and expire upon the
execution of
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this Agreement. Additionally, the Company agrees to file an appropriate
registration statement, covering the issuance of the Company common stock upon
exercise of these stock options within 180 days following the date on which any
of the options "is in the money." The Company agrees to have outside counsel
deliver an opinion upon request by Xxxxxx or any of his agents or
representatives to assist Xxxxxx in the sale of his stock in compliance with
the safe harbor provided by Rule 144 under the Securities Act of 1933, as
amended, in order to facilitate any such transactions. On January 9, 1999, the
Company shall, and instruct its transfer agent to, remove any legends and stop
transfer orders with respect to the Company stock owned by Xxxxxx.
7. Xxxxxx agrees, for a period of two years from the date of execution
of this Agreement, not to directly or indirectly serve as a consultant to, or
be an employee, officer, agent, director, or owner of more than 3% of, any
corporation, partnership or other entity which engages in the primary business
of selling cellular or wireless communication services or products to consumers
on a retail basis in the Restricted Area (as defined herein). Xxxxxx also
agrees, for a period of two years from the date of execution of this Agreement,
not to directly or indirectly serve as a consultant to, or be an employee,
officer, agent, director, or owner of more than 3% of, any retailer for which
Xxxxxx will have any involvement in the sale or distribution of cellular or
wireless communication services or products to consumers on a retail basis in
the Restricted Area (as defined herein). The "Restricted Area" consists of any
metropolitan area or proposed metropolitan area (as reflected in the written
business plans of the Company in effect as of the date of this Agreement), in
which the Company is doing or will do business within six months of the date of
the execution of this Agreement. Xxxxxx further agrees that during the two year
non-competition period, he will not solicit for employment or endeavor to
entice away from
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employment with the Company or its affiliates any employee of the Company or
its affiliates who is an officer or manager of any department.
8. Except as may be required by legal process or the lawful order of a
court or agency of competent jurisdiction, Xxxxxx agrees to keep secret and
confidential, for a period of two years from the date of the execution of this
Agreement, all non-public information concerning the Company and/or its
affiliates which was acquired by or disclosed to Xxxxxx during the course of
his employment by the Company and/or its affiliates, including information
relating to customers (including, without limitation, credit history, repayment
history, financial information and financial statement), costs, operations,
financial data, and plans, whether past, current or planned, and not to
disclose the same, either directly or indirectly, to any other person, firm or
business entity, or to use it in any way; provided, however, that the
provisions of this paragraph shall not apply to information which is in the
public domain or that was disclosed to Xxxxxx by independent third parties who
are not bound by an obligation of confidentiality. Xxxxxx further agrees that
he will not make any statement or disclosure which would be prohibited by
applicable federal or state laws. Further, Xxxxxx agrees not to make or state
publicly or privately any remark, comment, disclosure or communication that
would reflect negatively on the Company, its affiliates, officers, employees,
directors and/or shareholders. The Company agrees that its directors and
officers who have been involved in the negotiation, approval and execution of
this Agreement shall not make or state publicly or privately any remark,
comment, disclosure or communication that would reflect negatively on Xxxxxx.
The parties acknowledge that these covenants not to disparage in the future are
a material part of this Agreement, the breach of which may cause substantial
damages.
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9. The parties agree that any violation or breach of paragraphs seven
and/or eight of this Agreement will result in irreparable harm. The parties
further agree that in the event of a violation of paragraphs seven and/or eight
of his Agreement, the injured party is entitled, upon the proper showing to a
court of competent jurisdiction of a likelihood of success on the merits, to
injunctive relief enjoining the offending party from further violation of the
Agreement without the posting of a bond.
10. The Company agrees to make an additional payment to Xxxxxx, at the
time of the execution of this Agreement, in the amount of $11,300.00, as an
agreed-to reimbursement amount for legal fees incurred by Xxxxxx to date
relating solely to the negotiation and execution of this Agreement.
11. Xxxxxx agrees to deliver to the Company, concurrently with his
execution of this Agreement, a general release in the form attached hereto as
Exhibit "B", The Company agrees to deliver to Xxxxxx, concurrently with the
execution of this Agreement, a general release in the form attached hereto as
Exhibit "C". Nothing contained in this Agreement or in the General Releases
attached hereto as Exhibits "B" and "C" shall in any way restrict or prevent
the parties from bringing an action to enforce its rights under this Agreement.
12. The Indemnification Agreement between Xxxxxx and the Company,
dated November 24, 1997 and attached hereto as Exhibit "D", shall remain in
full force and effect.
13. In the event the Company is sold to a third party, or if the
Company conducts a stock buyback resulting in the Company becoming a privately
held company, then Xxxxxx shall have the right to participate in such
transaction(s) on the same terms and same basis as HIG Fund V or its affiliates.
in the event HIG acquires all of the stock of the Company, then
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Xxxxxx will be entitled to the same stock price and terms as given to Xx. Xxxxx
Xxxxxxxxx. In the event of the above transaction(s), the Company will provide
Xxxxxx at least thirty calendar days written notice of the transaction(s).
Xxxxxx shall have twenty calendar days from the date of the above notification
to notify the Company, in writing, of his intent to participate or not
participate in the transactions. Xxxxxx'x failure to deliver a written response
within the requisite time period will be deemed waiver of Xxxxxx'x right to
participate in the transactions. In the event Xxxxxx elects to participate in
the transactions, he agrees to deliver an enforceable proxy to the Company to
be exercised by the Company with regard to Xxxxxx'x shares.
14. Waiver by any party of any breach of this Agreement shall not be
considered as or constitute a continued waiver or waiver of any other breach at
a future date or of any other provision of this Agreement.
15. Any dispute arising between the parties hereto regarding the
interpretation, application, and/or enforcement of this Agreement shall be
referred to arbitration in Miami Dade County, Florida under the Expedited
Employment Arbitration Rules of the American Arbitration Association. However,
the parties agree that only one arbitrator shall be selected. The party
requesting arbitration shall serve upon the other party hereto a written demand
for arbitration. Should the party upon whom the demand for arbitration is
served fail or refuse to participate in the arbitration, the arbitrator shall
have the right to decide the dispute alone, and his decision or award shall be
final and binding on the parties. Nothing contained in this paragraph shall in
any way limit the right of either party to this Agreement to obtain injunctive
relief under paragraph 9 of this Agreement.
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16. In the event any provision of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other part
of this Agreement, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had not been contained in this Agreement.
This Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of Florida. The parties agree that any
dispute concerning this Agreement shall have venue exclusively in Dade County,
Florida.
17. Neither this Agreement, nor any terms hereof, may be amended,
changed, waived, discharged, or terminated unless such amendment, change,
waiver, discharge, or termination is in writing and signed by the party against
whom enforcement is sought. In the event of any dispute concerning this
Agreement, neither party will be deemed to have drafted the Agreement such that
any presumptions of law or fact are construed against a particular party.
18. This Agreement, and new option agreement and indemnification
agreement referenced herein, constitute the entire agreement between the
parties, and the parties agree that there arc no other agreements, written or
oral between them.
19. The parties to this Agreement agree that the terms set forth
herein are confidential in that a) Xxxxxx will not disclose the terms of this
Agreement and/or the amounts paid to him under this Agreement to any person
with the exception of his attorneys, accountants, financial advisors and
immediate family members and b) the Company will not disclose the terms of this
Agreement and amounts to be paid to Xxxxxx beyond those directors, officers,
and managers who have a legitimate business need to know.
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20. This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the respective successors, affiliates and assigns of the
parties.
21. In the event of any litigation between the parties hereto
concerning this Agreement or any document or instrument referred to herein, the
prevailing party will be entitled to reimbursement and/or an award of
reasonable attorneys fees and costs, including attorney time, paralegal time,
pretrial, trial, appellate and post-judgment proceedings.
22. Any notice or communication required or permitted to be given
hereunder shall be addressed as follows: Xxxx Xxxxxx, 000 Xxxxxx Xxxxxxx, Xxxxx
Xxxxxx, XX 00000 and Let's Talk Cellular & Wireless, Inc., 000 Xxxxxxxx Xxxxxx,
Xxxxx 000, Xxxxx, XX 00000.
The parties duly execute and deliver this Agreement on the date first
above written.
LET'S TALK CELLULAR AND WIRELESS, INC.
By: /s/ Xxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxxx
Title: President
/s/ Xxxx Xxxxxx
----------------------------------
XXXX XXXXXX
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Let's Talk Cellular & Wireless
000 Xxxxxxxx Xxxxxx
Xxxxx, XX 00000
Nasdaq: LTCW
Let's Talk Cellular & Wireless The Finanical Relations Board
------------------------------ -----------------------------
Xxxxx Xxxxxxxxx Xxxx Xxxxx Xxx Xxxxxxxxx Xxxx Xxxxxx-Xxxxxx Xxxxxxxx Xxxxxxxx
Chairman & President 000-000-0000 (general contact) (analyst contact) (media contact)
000-000-0000 xxxxxxxxxx@xxx.xxx 000-000-0000 000-000-0000 000-000-0000
FOR IMMEDIATE RELEASE
October xx, 1998
LET'S TALK CELLULAR & WIRELESS
CO-CHAIRMAN XXXX XXXXXX TO LEAVE COMPANY
Miami, FL (October xx. 1998) - Let's Talk Cellular & Wireless, Inc, (Nasdaq:
LTCW), announced today that Xxxx Xxxxxx, Co-Chairman and President of Business
Development, will be resigning his position effective October xx, 1998 to
pursue other entrepreneurial opportunities. The Company has no plans to fill
this position.
Xxxxx Xxxxxxxxx, President and Chairman of the Board said, "In the years since
Nick and I co-founded the Company in 1989, Mick's entrepreneurial skills and
expertise has helped build Let's Talk Cellular and Wireless into a leading
retailer of cellular and wireless products. Nick has made significant
contributions as a member of our management team in the areas of finance and
administration as well as in the expansion of our retail operations. On behalf
of the Company and the Board we wish him every success in his future
endeavors."
Xxxx Xxxxxx said, "When Xxxxx and I started this business 10 years ago, we
had a dream of growing Let's Talk Cellular & Wireless into the largest
independent wireless retailer in the U.S. Today I leave the Company as just
that. It has been a wonderful journey and I will look to apply my experience on
new and exciting ideas. I wish the team of Let's Talk the very best."
Let's Talk Cellular & Wireless is the larger independent specialty retailer of
cellular and wireless products, services and accessories. Let's Talk Cellular &
Wireless owns and operates xx stores located predominently in regional shopping
malls and strip center locations throughout the United Slates and Puerto Rico.
This release contains forward-looking statements which are made pursuant to the
safe harbor provisions of the Private Securities Litigation Reform Act of 1995.
These forward-looking statements involve risks and uncertainties that could
cause actual results to differ materially from the forward-looking statements.
All forward-looking statements should be considered in light of associated
risks and uncertainties.
# # #
For more information on Let's Talk Cellular & Wireless via fax at no charge,
please dial 0-000-XXX-XXXX and enter ticker symbol LTCW
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EXHIBIT A
GENERAL RELEASE
---------------
To all to Whom these Presents, shall come, or may concern, know that
Xxxx Xxxxxx, on behalf of himself and all those entitled to make or bring
claims by or through him, as RELEASOR, in consideration of the sum of Ten
Dollars and 00/ 100 ($ 10.00), and other good and valuable consideration, the
receipt and sufficiency whereof are hereby acknowledged, releases and forever
discharges Let's Talk Cellular & Wireless, Inc., its agents, affiliates,
sureties, parent companies, managers, underwriters, successors, officers,
directors, shareholders, employees, and trustees, as RELEASEE, from all
actions, causes of actions, suits, debts, dues, sums of money, accounts.
reckonings, bonds, bills, covenants, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, executions, rights, claims
and demands whatsoever, whether in law, IN REM, equity or otherwise, and
whether known or unknown, which RELEASOR or his respective successors or
assigns ever had, may have had, now have, or hereafter can, shall or may have
relating to any and all claims existing as of the date of this General Release,
including, without limitation, those claims which in any way relate to the
Amended and Restated Employment Agreement dated June 27, 1997 (including the
Amendment dated July 9, 1998) or which relate to Xxxxxx'x business relationship
with RELEASEE; provided, however, that RELEASOR shall retain the right to
enforce that certain Settlement Agreement dated October 9, 1998 by and between
RELEASOR and RELEASEE. RELEASOR acknowledges this General Release has not been
procured under fraud or duress and has been reviewed by his counsel prior to
execution.
Xxxx Xxxxxx
By: /s/ Xxxx Xxxxxx
---------------
STATE OF FLORIDA )
) SS.:
COUNTY OF MIAMI-DADE)
BEFORE ME, the undersigned authority, personally appeared, Xxxx Xxxxxx,
who is personally known to me or who has produced __________________ as
identification, and who did/did not take an oath and acknowledged before me that
he executed the foregoing Release.
/s/ Xxxxx Xxxxxx Xxxxx
My commission expires: -----------------------------
NOTARY PUBLIC, STATE OF
FLORIDA AT LARGE
Name: Xxxxx Xxxxxx Xxxxx
OFFICIAL NOTARY XXXX
XXXXX XXXXXX XXXXX
NOTARY PUBLIC XXXXX XX XXXXXXX
XXXXXXXXXX XX. XX000000
MY COMMISSION EXP. APR. 10, 2001
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EXHIBIT B
GENERAL RELEASE
---------------
To all to Whom these Presents, shall come, or may concern, know that
Let's Talk Cellular & Wireless, Inc., on behalf of itself and all those entitled
to make or bring claims by or through it, as RELEASOR, in consideration of the
sum of Ten Dollars and 00/100 ($ 10,00), and other good and valuable
consideration, the receipt and sufficiency whereof are hereby acknowledged,
releases and forever discharges Xxxx Xxxxxx, as RELEASEE, from all actions,
causes of actions, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, executions, rights, claims and
demands whatsoever, whether in law, IN REM equity or otherwise, and whether
known or unknown, which RELEASOR or its respective successors or assigns ever
had, may have had, now have. or hereafter can, shall or may have relating to
any and all claims existing as of the date of this General Release, including,
without limitation, those claims which in any way relate to the Amended and
Restated Employment Agreement dated June 27, 1997 (including the Amendment
dated July 9. 1998) or which relate to Xxxxxx'x business relationship with
RELEASOR, provided, however, that RELEASOR shall retain the right to enforce
that certain Settlement Agreement dated October 9, 1998 by and between RELEASOR
and RELEASEE.
Let's Talk Cellular & Wireless, Inc.
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxxx
Title: President
STATE OF FLORIDA )
) SS.:
COUNTY OF MIAMI-DADE)
BEFORE ME, the undersigned authority, personally appeared Xxxxx
Xxxxxxxxx as the President of Let's Talk Cellular & Wireless, Inc, who is
personally known to me or who has produced as identification, and
who did/did not take an oath and acknowledged before me that he executed the
foregoing Release.
/s/ Xxxxx Xxxxxx Xxxxx
My commission expires: -----------------------------
NOTARY PUBLIC, STATE OF
FLORIDA AT LARGE
Name: Xxxxx Xxxxxx Xxxxx
OFFICIAL NOTARY XXXX
XXXXX XXXXXX XXXXX
NOTARY PUBLIC XXXXX XX XXXXXXX
XXXXXXXXXX XX. XX000000
MY COMMISSION EXP. APR. 10, 2001
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EXHIBIT C
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT, dated as of the 24th day of November,
1997, between LET'S TALK CELLULAR & WIRELESS, INC., a Florida corporation (the
"Company"), and XXXXXXX XXXXXX (the "Indemnitee").
RECITALS
A. The Company desires to retain the services of the Indemnitee as
Director of the Company.
B. As a condition to the Indemnitee's agreement to continue to serve
as Director of the Company, the Indemnitee requires that he be indemnified from
liability to the fullest extent permitted by law.
C. The Company is willing to indemnify the Indemnitee to the fullest
extent permitted by law in order to retain the services of the Indemnitee.
NOW, THEREFORE, for and in consideration of the mutual premises and
covenants contained herein, the Company and the Indemnitee agree as follows:
1. MANDATORY INDEMNIFICATION IN ACTIONS, SUITS OR PROCEEDINGS OTHER
THAN THOSE BY OR IN THE RIGHT OF THE COMPANY. Subject to Section 4 hereof, the
Company shall indemnify and hold harmless the Indemnitee from and against any
and all claims, damages, expenses (including attorneys' fees), judgments. fines
(including excise taxes assessed with respect to an employee benefit plan),
amounts paid in settlement and all other liabilities actually and reasonably
incurred by him in connection with the investigation, defense, prosecution,
settlement or appeal of any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Company) 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, shareholder, employee or agent of the
Company, or is or was serving at the request of the Company as an officer,
director, partner, trustee, employee or agent of another corporation.
partnership, 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 acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
2. MANDATORY INDEMNIFICATION IN ACTIONS OR SUITS BY OR IN THE RIGHT OF
THE COMPANY. Subject to Section 4 hereof, the Company shall indemnify and hold
harmless the Indemnitee from and against any and all expenses (including
attorneys' fees) and amounts paid in settlement actually and reasonably incurred
by him in connection with the investigation, defense, settlement or appeal of
any threatened, pending or completed action or suit by or in the right of the
Company to procure a judgment in its favor 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, shareholder, employee or agent of the
Company, or is or was serving at
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the request of the Company as an officer, director, partner, trustee, employee
or agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, or by reason of anything done or not done by
the Indemnitee in such capacity or capacities, provided that (i) the Indemnitee
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company, (ii) indemnification for amounts
paid in settlement shall not exceed the estimated expense of litigating the
proceeding to conclusion, and (iii) no indemnification shall be made in respect
of any claim, issue or matter as to which the Indemnitee shall have been
adjudged to be liable for misconduct in the performance of his duty to the
Company unless and only to the extent that the court in which such action or
suit was brought (or any other court of competent jurisdiction) shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, the Indemnitee is fairly and reasonably entitled
to indemnity for such expenses which such court shall deem proper.
3. REIMBURSEMENT OF EXPENSES FOLLOWING ADJUDICATION OF NEGLIGENCE. The
Company shall reimburse the Indemnitee for any expenses (including attorney's
fees) and amounts paid in settlement actually and reasonably incurred by him in
connection with the investigation, defense, settlement or appeal of any action
or suit described in Section 2 hereof that results in an adjudication that the
Indemnitee was liable for negligence, gross negligence or recklessness (but not
willful misconduct) in the performance of his duty to the Company; provided,
however, that the Indemnitee acted in good faith and in a manner he believed to
be in the best interests of the Company.
4. AUTHORIZATION OF INDEMNIFICATION. Any indemnification under Sections
1 and 2 hereof (unless ordered by a court) and any reimbursement made under
Section 3 hereof shall be made by the Company only as authorized in the
specific case upon a determination (the "Determination") that indemnification
or reimbursement of the Indemnitee is proper in the circumstances because the
Indemnitee has met the applicable standard of conduct set forth in Section 1, 2
or 3 hereof, as the case may be. Subject to Sections 5.6, 5.7, 5.8 and 8 of
this Agreement, the Determination shall be made in the following order of
preference:
(1) first, by the Company's Board of Directors (the
"Board") by majority vote or consent of a quorum consisting of directors
("Disinterested Directors") who are not, at the time of the Determination,
named parties to such action, suit or proceeding; or
(2) next, if such a quorum of Disinterested Directors
cannot be obtained, by majority vote or consent of a committee duly designated
by the Board (in which designation all directors, whether or not Disinterested
Directors, may participate) consisting solely of two or more Disinterested
Directors; or
(3) next, if such a committee cannot be designated, by
any independent legal counsel (who may be the outside counsel regularly
employed by the Company); or
(4) next, if such legal council determination cannot
be obtained. by vote or consent of the holders of a majority of the Company's
common stock that are represented in person or by proxy and entitled to vote at
a meeting called for such purpose.
4.1 NO PRESUMPTIONS. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall
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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 Company, and with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
4.2 BENEFIT PLAN CONDUCT. 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 not opposed
to the best interests of the Company.
4.3 RELIANCE AS SAFE HARBOR. 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 Company, 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
on (i) the records or books of account of the Company or another enterprise,
including financial statements, (ii) information supplied to him by the
officers of the Company or another enterprise in the course of their duties,
(iii) the advice of legal counsel for the Company or another enterprise, or (iv)
information or records given or reports made to the Company or another
enterprise by an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the Company or another
enterprise. The term "another enterprise" as used in this Section 4.3 shall
mean any other corporation or any partnership, joint venture, trust, employee
benefit plan or other enterprise of which the Indemnitee is or was serving at
the request or the Company as an officer, director, partner, trustee, employee
or agent. The provisions of this Section 4.3 shall not be deemed to be
exclusive or to limit in any way the other circumstances in which the
Indemnitee may be deemed to have met the applicable standard of conduct set
forth in Sections 1, 2 or 3 hereof, as the case may be.
4.4 SUCCESS ON MERITS OR OTHERWISE. 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 2 hereof, or in defense of any claim, issue
or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection with the
investigation, defense, settlement or appeal thereof. For purposes of this
Section 4.4, the term "successful on the merits or otherwise" shall include,
but not be limited to, (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 settlement, or (iii) the settlement of any
action, suit or proceeding under Section 1, 2 or 3 hereof pursuant to which the
Indemnitee pays less thin $25,000.
4.5 PARTIAL INDEMNIFICATION OR REIMBURSEMENT. If the
Indemnitee is entitled under any provision of this Agreement to indemnification
and/or reimbursement by the Company for some or a portion of the claims,
damages, expenses (including attorneys' fees), judgments, fines or amounts paid
in settlement by the Indemnitee in connection with the investigation, defense,
settlement or appeal of any action specified in Section 1, 2 or 3 hereof, but
not, however, for the total amount thereof, the Company shall nevertheless
indemnify and/or reimburse the indemnitee for the portion thereof to which the
Indemnitee is entitled. The party or
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panics making the Determination shall determine the portion (if less than all)
of such claims, damages, expenses (including attorneys' fees), judgments, fines
or amounts paid in settlement for which the Indemnitee is entitled to
indemnification and/or reimbursement under this Agreement.
4.6 LIMITATIONS ON INDEMNIFICATION. No indemnification pursuant
to Sections 1 and 2 hereof shall be paid by the Company if a judgment (after
exhaustion of all appeals) or other final adjudication determines that the
Indemnitee's actions, or omissions to act, were material to the cause of action
so adjudicated and constitute:
(a) a violation of criminal law, unless the Indemnitee
had reasonable cause to believe his conduct was lawful or had no reasonable
cause to believe his conduct was unlawful;
(b) a transaction from which the Indemnitee received
an improper personal benefit within the meaning of Section 6070850(7) of the
Florida Business Corporation Act;
(c) a circumstance under which the liability
provisions of Section 607.0834 of the Florida Business Corporation Act are
applicable; or
(d) willful misconduct or conscious disregard for the
best interests of the Company in a proceeding by or in the right of the Company
to procure a judgment in its favor or in a proceeding by or in the right of a
shareholder of the Company.
5. PROCEDURES FOR DETERMINATION OF WHETHER STANDARDS HAVE BEEN
SATISFIED.
5.1 COSTS. All costs of making the Determination required by
Section 4 hereof shall be borne solely by the Company, including, but not
limited to, the costs of legal counsel, proxy solicitations and judicial
determinations. The Company shall also be solely responsible for paying (i) all
reasonable expenses incurred by the Indemnitee to enforce this Agreement,
including, but not limited to, the costs incurred by the Indemnitee to obtain
court-ordered indemnification pursuant to Section 8 hereof, regardless of the
outcome of any such application or proceeding, and (ii) all costs of defending
any suits or proceedings challenging payments to the Indemnitee under this
Agreement.
5.2 TIMING OF THE DETERMINATION, The Company shall use its
best efforts to make the Determination contemplated by Section 4 hereof
promptly. In addition, the Company agrees:
(a) if the Determination is to be made by the Board or
a committee thereof, such Determination shall be made not later than 15 days
after a written request for a Determination (a "Request") is delivered to the
Company by the Indemnitee;
(b) if the Determination is to be made by independent
legal counsel, such Determination shall be made not later than 30 days after a
Request is delivered to the Company by the Indemnitee; and
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(c) if the Determination is to be made by the
shareholders of the Company, such Determination shall be made not later than
120 days after a Request is delivered to the Company by the Indemnitee.
The failure to make a Determination within the above-specified time period shall
constitute a Determination approving full Indemnification or reimbursement of
the Indemnitee. Notwithstanding anything herein to the contrary, a
Determination may be made in advance of (i) the Indemnitee's payment (or
incurring) of expenses with respect to which indemnification or reimbursement is
sought and/or (ii) final disposition of the action, suit or proceeding with
respect to which indemnification or reimbursement is sought.
5.3 REASONABLENESS OF EXPENSES. The evaluation and finding as
to the reasonableness of expenses incurred by the Indemnitee for purposes of
this Agreement shall be made (in the following order of preference) within 15
days of the Indemnitee's delivery to the Company of a Request that includes a
reasonable accounting of expenses incurred:
(a) first, by the Board by a majority vote of a quorum
consisting of Disinterested Directors; or
(b) next, if a quorum cannot be obtained under
subdivision (a), by majority vote or consent of a committee duly designated by
the Board (in which designation all directors, whether or not Disinterested
Directors, may participate), consisting solely of two or more Disinterested
Directors; or
(c) next, if a finding cannot be obtained under either
subdivision (a) or (b), by vote or consent of the holders of a majority of the
Company's Common Stock that are, represented in person or by proxy at a meeting
called for such purpose.
All expenses shall be considered reasonable for purposes of this Agreement if
the finding contemplated by this Section 5.3 is not made within the prescribed
time. The finding required by this Section 5.3 may be made in advance of the
payment (or incurring) of the expenses for which indemnification or
reimbursement is sought.
5.4 PAYMENT OF INDEMNIFIED AMOUNT. Immediately following a
Determination that the Indemnitee has met the applicable standard of conduct
set forth in Section 1, 2 or 3 hereof, as the case may be, and the finding of
reasonableness of expenses contemplated by Section 5.3 hereof, or the passage
of time prescribed for making such determination(s), the Company shall pay to
the Indemnitee in cash the amount to which the Indemnitee is entitled to be
indemnified and/or reimbursed, as the case may be, without further
authorization or action by the Board; provided, however, that the expenses for
which indemnification or reimbursement is sought have actually been incurred by
the Indemnitee.
5.5 SHAREHOLDER VOTE ON DETERMINATION. The Indemnitee and any
other shareholder who is A party to the proceeding for which Indemnification
or reimbursement is sought shall be entitled to vote on any Determination to be
made by the Company's shareholders, including a Determination made pursuant to
Section 5.7 hereof. In addition, in connection with each meeting at which a
shareholder Determination will be made, the Company shall solicit proxies that
expressly include a proposal to indemnify or reimburse the Indemnitee. The
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Company proxy statement relating to the proposal to indemnify or reimburse the
Indemnitee shall not include a recommendation against indemnification or
reimbursement.
5.6 SELECTION OF INDEPENDENT LEGAL COUNSEL. If the
Determination required under Section 4 is to be made by independent legal
counsel, such counsel shall be selected by the Indemnitee with the approval of
the Board, which approval shall not be unreasonably withheld. The fees and
expenses incurred by counsel in making any Determination (including
Determinations pursuant to Section 5.8 hereof) shall be borne solely by the
Company regardless of the results of any Determination and, if requested by
counsel, the Company shall give such counsel an appropriate written agreement
with respect to the payment of their fees and expenses and such other matters
as may be reasonably requested by counsel.
5.7 RIGHT OF DIRECTOR TO APPEAL AN ADVERSE DETERMINATION BY
BOARD. If a Determination is made by the Board or a committee thereof that the
Indemnitee did not meet the applicable standard of conduct set forth in Section
1, 2 or 3 hereof, upon the written request of the Indemnitee and the
Indemnitee's delivery of $500 to the Company, the Company shall cause a new
Determination to be made by the Company's shareholders at the next regular or
special meeting of shareholders. Subject to Section 3 hereof, such
Determination by the Company's shareholders shall be binding and conclusive for
all purposes of this Agreement.
5.8 RIGHT OF DIRECTOR TO SELECT FORUM FOR DETERMINATION. If,
at any time subsequent to the date of this Agreement, "Continuing Directors" do
not constitute a majority of the members of the Board, or there is otherwise a
change in control of the Company (as contemplated by Item 403(c) of Regulation
S-K), then upon the request of the Indemnitee, the Company shall cause the
Determination required by Section 4 hereof to be made by independent legal
counsel selected by the Indemnitee and approved by the Board (which approval
shall not be unreasonably withheld), which counsel shall be deemed to satisfy
the requirements of clause (3) of Section 4 hereof. If none of the legal
counsel selected by the Indemnitee are willing and/or able to make the
Determination, then the Company shall cause the Determination to be made by a
majority vote or consent of a Board committee consisting solely of Continuing
Directors. For purposes of this Agreement, a "Continuing Director" means either
a member of the Board at the date of this Agreement, or a person nominated
to serve as a member of the Board by a majority of the then Continuing
Directors.
5.9 ACCESS BY INDEMNITEE TO DETERMINATION. The Company shall
afford to the Indemnitee and his representatives ample 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 Company shall also afford the Indemnitee the reasonable
opportunity to include such evidence and information in any Company proxy
statement relating to a shareholder Determination.
5.10 JUDICIAL DETERMINATIONS IN DERIVATIVE SUITS. In each
action or suit described in Section 2 hereof, the Company shall cause its
counsel to use its best efforts to obtain from the Court in which such action or
suit was brought (i) an express adjudication whether the Indemnitee is liable
for negligence or misconduct in the performance of his duty to the Company, and,
if the Indemnitee is so liable, (ii) a determination whether and to what extent,
despite the adjudication of liability but in view of all the circumstances of
the case (including this Agreement), the Indemnitee is fairly and reasonably
entitled to indemnification.
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6. SCOPE OF INDEMNITY. The actions, suits and proceedings described in
Sections 1 and 2 hereof shall include, for purposes of this Agreement, any
actions that involve, directly or indirectly, activities of the Indemnitee both
in his official capacities as a Company director or officer and actions taken
in another capacity while serving as director or officer, including, but not
limited to, actions or proceedings involving (i) compensation paid to the
Indemnitee by the Company, (a) activities by the Indemnitee on behalf of the
Company, including actions in which the Indemnitee is plaintiff, (iii) actions
alleging a misappropriation of a "corporate opportunity," (iv) responses to a
takeover attempt or threatened takeover attempt of the Company, (v)
transactions by the Indemnitee in Company securities, and (vi) the Indemnitee's
preparation for and appearance (or potential appearance) as a witness in any
proceeding relating, directly or indirectly, to the Company. In addition, the
Company agrees that, for purposes of this Agreement, all services performed by
the Indemnitee on behalf of, in connection with or related to any subsidiary of
the Company, any employee benefit plan established for the benefit of employees
of the Company or any subsidiary, any corporation or partnership or other
entity in which the Company or any subsidiary has a 5% ownership interest, of
any other affiliate of the Company, shall be deemed to be at the request of the
Company.
7. ADVANCE FOR EXPENSES.
7.1 MANDATORY ADVANCE. Expenses (including attorneys' fees,
court costs, judgments, fines, amounts paid in settlement and other payments)
incurred by the Indemnitee in investigating, defending, settling or appealing
any action, suit or proceeding described in Section 1 or 2 hereof shall be paid
by the Company in advance of the final disposition of such action, suit or
proceeding. The Company shall promptly pay the amount of such expenses to the
Indemnitee, but in no event later than 10 days following the Indemnitee's
delivery to the Company of a written request for an advance pursuant to this
Section 7, together with a reasonable accounting of such expenses.
7.2 UNDERTAKING TO REPAY. The Indemnitee hereby undertakes and
agrees to repay to the Company any advances made pursuant to this Section 7 if
and to the extent that it shall ultimately be found that the Indemnitee is not
entitled to be indemnified by the Company for such amounts.
7.3 MISCELLANEOUS. The Company shall make the advances
contemplated by this Section 7 regardless of the Indemnitee's financial ability
to make repayment, and regardless whether indemnification of the Indemnitee by
the Company will ultimately be required. Any advances and undertakings to repay
pursuant to this Section 7 shall be unsecured and interest-free.
8. COURT-ORDERED INDEMNIFICATION. Regardless whether the Indemnitee has
met the standard of conduct set forth in Sections 1, 2 or 3 hereof. as the case
may be, and notwithstanding the presence or absence of any Determination whether
such standards have been satisfied, the Indemnitee may apply for indemnification
(and/or reimbursement pursuant to Section 3 or 12 hereof) to the court
conducting any proceeding to which the Indemnitee is a party or to any other
court of competent jurisdiction. On receipt of an application, the court, after
giving any notice the court considers necessary, may order indemnification
(and/or reimbursement) if it determines the Indemnitee is fairly and reasonably
entitled to indemnification (and/or reimbursement) in view of all the relevant
circumstances (including this Agreement).
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9. NONDISCLOSURE OF PAYMENTS. Except as expressly required by Federal
securities laws, neither party shall disclose any payments under this Agreement
unless prior approval of the other party is obtained. Any payments to the
Indemnitee that must be disclosed shall, unless otherwise required by law, be
described only in Company proxy or information statements relating to special
and/or annual meetings of the Company's shareholders, and the Company 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.
10. COVENANT NOT TO XXX, LIMITATION OF ACTIONS AND RELEASE OF CLAIMS. No
legal action shall be brought and no cause of action shall be asserted by or on
behalf of the Company (or any of its subsidiaries) against the Indemnitee, his
spouse, heirs, executors, personal representatives or administrators after the
expiration of 2 years from the date the Indemnitee ceases (for any reason) to
serve as either director or an executive officer of the Company, and any claim
or cause of action of the Company (or any of its subsidiaries) shall be
extinguished and deemed released unless asserted by filing of a legal action
within such 2-year period.
11. INDEMNIFICATION OF INDEMNITEE'S ESTATE. Notwithstanding any other
provision of this Agreement, and regardless whether indemnification of the
Indemnitee would be permitted and/or required under this Agreement, if the
Indemnitee is deceased, the Company shall indemnify and hold harmless the
Indemnitee's estate, spouse, heirs, administrators, personal representatives and
executors (collectively the "Indemnitee's Estate") against, and the Company
shall assume, any and all claims, damages, expenses (including attorneys' fees),
penalties, judgments, fines and amounts paid in settlement actually incurred by
the Indemnitee or the Indemnitee's Estate in connection with the investigation,
defense, settlement or appeal of any action described in Section 1 or 2 hereof.
Indemnification of the Indemnitee's Estate pursuant to this Section 11 shall be
mandatory and not require a Determination or any other finding that the
Indemnitee's conduct satisfied a particular standard of conduct.
12. REIMBURSEMENT OF ALL LEGAL EXPENSES. Notwithstanding any other
provision of this Agreement, and regardless of the presence or absence of any
Determination, the Company promptly (but not later than 30 days following the
Indemnitee's submission of a reasonable accounting) shall reimburse the
Indemnitee for all attorneys' fees and related court costs and other expenses
incurred by the Indemnitee in connection with the investigation, defense,
settlement or appeal of any action described in Section 1 or 2 hereof
(including, but not limited to, the matters specified in Section 6 hereof).
13. MISCELLANEOUS
13.1 NOTICE PROVISION. Any notice. payment, demand or
communication required or permitted to be delivered or given by the provisions
of this Agreement shall be deemed to have been effectively delivered or given
and received on the date personally delivered to the respective party to whom it
is directed, or when deposited by registered or certified mail, with postage and
charges prepaid and addressed to the parties at the addresses set forth above
their signatures to this Agreement.
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13.2 ENTIRE AGREEMENT. Except for the Company's Articles of
Incorporation, 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.
13.3 SEVERABILITY OF PROVISIONS. If any provision of this
Agreement is held to be illegal, invalid, or unenforceable under present or
future laws effective during the term of this Agreement, such provision shall
be fully severable; this Agreement shall be construed and enforced as if such
illegal, invalid, or unenforceable provision had never comprised a part of this
Agreement; and the remaining provisions of this Agreement shall remain in full
force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance from this Agreement. Furthermore.
in lieu of each such illegal, invalid, or unenforceable provision there shall
be added automatically as a part of this Agreement a provision as similar in
terms to such illegal, invalid or unenforceable provision as may be possible
and be legal, valid, and enforceable.
13.4 APPLICABLE LAW. This Agreement shall be governed by and
construed under the laws of the State of Florida.
13.5 EXECUTION IN COUNTERPARTS. This Agreement and any
amendment may be executed simultaneously or in two or more counterparts, each
of which together shall constitute one and the same instrument.
13.6 COOPERATION AND INTENT. The Company shall cooperate in
good faith with the Indemnitee and use its best efforts to ensure that the
Indemnitee is indemnified and/or reimbursed for liabilities described herein to
the fullest extent permitted by law.
13.7 AMENDMENT. No amendment, modification or alteration of
the terms of this Agreement shall be binding unless in writing, dated
subsequent to the date of this Agreement, and executed by the parties.
13.8 BINDING, EFFECT. The obligations of the Company to the
Indemnitee hereunder shall survive and continue as to the Indemnitee even if
the Indemnitee ceases to be a director, officer, employee and/or agent of the
Company. Each and all of the covenants, terms and provisions of this Agreement
shall be binding upon and inure to the benefit of the successors to the Company
and, upon the death of the Indemnitee, to the benefit of the estate, heirs,
executors, administrators and personal representatives of the Indemnitee.
13.9 GENDER AND NUMBER. Wherever the context shall so require,
all words herein in the male gender shall be deemed to include the female or
neuter gender, all singular words shall include the plural and all plural words
shall include the singular.
13.10 NONEXCLUSIVITY. The rights or indemnification and
reimbursement provided in this Agreement shall be in addition to any rights to
which the Indemnitee may otherwise be entitled by statute, bylaw, agreement,
vote of shareholders or otherwise.
13.11 EFFECTIVE DATE. The provisions of this Agreement shall
cover claims, actions, suits and proceedings whether now pending or hereafter
commenced and shall be
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retroactive to cover acts or omissions or alleged acts or omissions which
heretofore have taken place.
Executed as of the date first above written.
THE COMPANY:
----------------------------------
By: /s/ Xxxxx Xxxxxxxxx
------------------------------
XXXXX XXXXXXXXX President
THE INDEMNITEE:
/s/ Xxxxxxx Xxxxxx
----------------------------------
XXXXXXX XXXXXX Director
Print address
000 Xxxxxxxx Xxx., Xxx. 000
Xxxxx. XX 00000
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