INDEMNIFICATION AGREEMENT
Exhibit
10.7
THIS INDEMNIFICATION AGREEMENT
("Agreement") is made as of the 1st day of April 2009, by and
between 21st Century
Holding Company, a Florida corporation (the “Corporation”), and Xxxxxxx X.
Xxxxxxxxx (the “Indemnitee”).
WHEREAS, the Indemnitee is
currently serving as a director and/or executive officer of the Corporation and
the Corporation desires to continue to retain the services of the Indemnitee as
a director and/or executive officer of the Company;
WHEREAS, through its Amended
and Restated Articles of Incorporation and Bylaws it is the express policy of
the Corporation to indemnify its executive officers and directors so as to
provide them with the maximum possible protection permitted by law;
and
WHEREAS, the Board of
Directors has concluded that it is in the best interests of the Corporation’s
shareholders for the Corporation to contractually reaffirm the Shareholders’
expressed policy to indemnify its executive officers and directors
and to establish procedures and presumptions with respect thereto to make the
process of indemnification more certain; and
WHEREAS, Florida Statutes,
Section 607.0850, empowers corporations to indemnify, among others, any
person serving as a executive officer and/or director of the Corporation, and
such Section 607.0850 specifies that the indemnification set forth therein
shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any bylaw, agreement, vote of shareholders
or Disinterested Directors, or otherwise; and
WHEREAS, the Corporation
desires to have Indemnitee serve or continue to serve as an executive officer
and/or director of the Corporation or of any other corporation, subsidiary,
partnership, joint venture, or trust or other enterprise of which Indemnitee has
been or is serving at the request, or to represent the interests, of the
Corporation (hereinafter referred to as “Affiliates(s) of the Corporation”) free
from undue concern for unpredictable, inappropriate or unreasonable claims for
damages by reason of Indemnitee’s Corporate Status and Indemnitee desires to
serve or to continue to serve (provided that Indemnitee is furnished the
indemnity provided for hereinafter), in one or more of such
capacities;
NOW, THEREFORE, in
consideration of the mutual covenants set forth herein, the Corporation and
Indemnitee hereby agrees as follows:
1. Indemnification. To
the fullest extent permitted by the laws of the State of Florida, the
Corporation shall indemnify and advance Expenses to Indemnitee as provided in
this Agreement. Capitalized terms are defined in Section 12 of this
Agreement.
2. Proceedings
Other Than Proceedings by or in the Right of the
Corporation. Indemnitee shall be entitled to the rights of
indemnification, set forth in Section 1 if, by reason of Indemnitee’s
Corporate Status, Indemnitee is, or is threatened to be, made a party to any
threatened, pending, or completed Proceeding, other than a Proceeding by or in
the right of the Corporation. Indemnitee shall be indemnified against
Expenses, liability and loss, including but not limited to, judgments, fines,
and amounts paid in settlement actually and reasonably incurred by him/her or on
Indemnitee’s behalf in connection with such Proceeding or any claim, issue or
matter related thereto, if such Indemnification is permitted by applicable law
and Indemnitee acted in good faith and in a manner Indemnitee reasonably
believed to be in, or not opposed to, the best interests of the Corporation,
and, with respect to any criminal Proceeding, had no reasonable cause to believe
Indemnitee’s conduct was unlawful.
3. Proceedings
by or in the Right of the Corporation. Indemnitee shall be
entitled to the rights of indemnification set forth in Section 1 if, by
reason of Indemnitee’s Corporate Status, Indemnitee is, or is threatened to be,
made a party to any threatened, pending or completed Proceeding brought by or in
the right of the Corporation to procure a judgment in its favor provided such
Proceeding was authorized by the Board of Directors of the
Corporation. Indemnitee shall be indemnified against Expenses
actually and reasonably incurred by him/her or on Indemnitee’s behalf in
connection with such Proceeding if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Corporation. Notwithstanding the foregoing, no
indemnification against such Expenses shall be made in respect of any claim,
issue or matter in such Proceeding as to which Indemnitee shall have been
adjudged to be liable, unless the court in which the Proceeding was brought, or
any other court of competent jurisdiction, shall determine upon application
that, despite the adjudication of liability but in view of all circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
Expenses which such court shall deem proper.
4. Indemnification
for Expenses of a Party Who is Wholly or Partly
Successful. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of Indemnitee’s Corporate
Status, a party to and is successful, on the merits or otherwise, in any
Proceeding or any claim, issue or matter therein, Indemnitee shall be
indemnified against all Expenses actually incurred by him/her or on Indemnitee’s
behalf in connection therewith. If Indemnitee is not wholly
successful in such a Proceeding but is successful, on the merits or otherwise,
as to one or more but less than all claims, issues or matters in such a
Proceeding, the Corporation shall indemnify Indemnitee against all Expenses
actually incurred by him/her or on Indemnitee’s behalf in connection with each
successfully resolved claim, issue or matter. For purposes of this
Section 4 and without limitation, the termination of any claim, issue or
matter in such a Proceeding by dismissal, with or without prejudice, shall be
deemed to be a successful result as to such claim, issue or matter.
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5. Indemnification
for Expenses of a Witness. Notwithstanding any other provision
of this Agreement, to the extent that Indemnitee is, by reason of Indemnitee’s
Corporate Status, a witness in any Proceeding, Indemnitee shall be indemnified
against all Expenses incurred by him/her or on Indemnitee’s behalf in connection
therewith.
6. Advancement
of Expenses. The Corporation shall pay all Expenses incurred
by or on behalf of Indemnitee in connection with any Proceeding within sixty
(60) days after the receipt by the Corporation of a statement or statements
from Indemnitee requesting such payment from time to time, whether prior to or
after final disposition of such Proceeding. Such statement or
statements shall reasonably evidence the Expenses incurred by Indemnitee and
shall include or be preceded or accompanied by an undertaking by or on behalf of
Indemnitee to repay any Expenses if it shall ultimately be determined that
Indemnitee is not entitled to be indemnified against such Expenses.
7. Procedure
for Determination of Entitlement to Indemnification.
(a) To
obtain indemnification, Indemnitee shall submit to the Corporation a written
request, accompanied by such documentation and information as is reasonably
available to Indemnitee and is reasonably necessary to determine whether and to
what extent Indemnitee is entitled to indemnification (hereinafter a “Request
for Indemnification”). The Secretary of the Corporation shall,
promptly upon receipt of such a Request for Indemnification, advise the Board of
Directors in writing that Indemnitee has requested indemnification.
(b) Upon
submission of a Request for Indemnification, a determination, (unless otherwise
ordered by a court), with respect to Indemnitee’s entitlement thereto, shall be
made as follows: (1) by the Board of Directors of the Corporation by a
majority vote of a quorum consisting of directors who were not parties to such
proceeding; (2) if such quorum is not obtainable or, even if obtainable, by
majority vote of a committee duly designated by the Board of Directors (in which
directors who are parties may participate) consisting solely of two or more
directors not at the time parties to the Proceeding; (3) by Independent
Counsel: (i) selected by the Board of Directors prescribed in
paragraph (a) or the committee prescribed in paragraph (b); or
(ii) if a quorum of the Directors cannot be obtained for paragraph (a)
and the committee cannot be designated under paragraph (b), selected by
majority vote of the full Board of Directors (in which directors who are parties
may participate); or (4) by the Shareholders by a majority vote of a quorum
consisting of Shareholders who were not parties to such proceeding, or if no
such quorum is obtainable, by a majority vote of Shareholders who were not
parties to such proceeding.
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(c) If
a determination is to be made by Independent Counsel, the Corporation shall pay
all fees and expenses of Independent Counsel in making such
determination.
8. Presumptions
and Effect of Certain Proceedings.
(a) When
making a determination with respect to entitlement to indemnification, the
person, persons or entity making such determination shall presume that
Indemnitee is entitled to indemnification if Indemnitee has submitted a Request
for Indemnification in accordance with Section 7(a) and the Corporation shall
have the burden of proof to overcome that presumption.
(b) If
the person, persons or entity empowered or selected under Section 7 to
determine whether Indemnitee is entitled to indemnification denies such request,
in whole or in part, or shall not have made such determination within sixty
(60) days after receipt by the Corporation of the request therefore, the
Indemnitee may seek to establish any rights to indemnification granted by
Section 1 of this Agreement in any court of competent
jurisdiction. The Indemnitee’s expenses (including attorneys’ fees)
incurred in connection with successfully establishing Indemnitee’s right to
indemnification, in whole or in part, in any such Proceeding or otherwise shall
also be indemnified by the Corporation.
(c) The
termination of any Proceeding or of any claim, issue or matter related thereto
by judgment, order, settlement or conviction, or upon a plea of nolo contendere or
its equivalent, shall not (except as otherwise expressly provided in this
Agreement or by law) of itself adversely affect the right of Indemnitee to
indemnification or create a presumption that Indemnitee did not act in good
faith and in a manner which Indemnitee reasonably believed to be in or not
opposed to the best interest of the Corporation or, with respect to any criminal
Proceeding, that Indemnitee had reasonable cause to believe that Indemnitee’s
conduct was unlawful. In addition, neither the failure of the
Independent Counsel to have made a determination as to whether Indemnitee has
met any particular standard of conduct or had any particular belief, nor an
actual determination by the Independent Counsel that the Indemnitee has not met
such standard of conduct or did not have such belief, prior to the commencement
of proceedings by Indemnitee to secure an arbitral or judicial determination
that Indemnitee should be indemnified under applicable law shall be a defense to
Indemnitee’s claim or create a presumption that Indemnitee has not met any
particular standard of conduct or did not have any particular
belief.
9. Exceptions. Any
other provision herein to the contrary notwithstanding, the Corporation shall
not be obligated pursuant to the terms of this Agreement:
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(a) Excluded Action or
Omissions. To indemnify Indemnitee under circumstances that
would render such indemnification unlawful under Florida law.
(b) Claims Initiated by
Indemnitee. To indemnify or advance expenses to Indemnitee
with respect to a Proceeding (or part thereof) initiated by Indemnitee, except
with respect to: (1) a Proceeding brought to establish or enforce a right
to indemnification (which shall be governed by the provisions of Section 7(b) of
this Agreement); or (2) a Proceeding (or part thereof) of which the
Indemnitee has provided notice to the Board of Directors of Corporation of his
intent to commence such Proceeding and for which the Board of Directors has not
denied authorization to Indemnitee to commence such Proceeding (or any part
thereof) within sixty (60) days of its receipt of such notice, and then,
Indemnitee shall be entitled to indemnification and the advancement of Expenses
for such Proceeding initiated by Indemnitee only upon such terms and conditions
as the Board of Directors may deem appropriate.
(c) Claims Under
Section 16(b). To indemnify Indemnitee for Expenses and
payment of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Securities Exchange Act of 1934,
as amended, or any similar successor statute as evidenced by a judgment or
ruling in any judicial, administrative or alternative dispute resolution
proceeding.
10. Non-Exclusivity;
Survival of Rights; Insurance.
(a) The
rights of indemnification and to receive advancement of Expenses as described by
this Agreement shall not be deemed exclusive of any other rights to which
Indemnitee may at any time be entitled under applicable law, the Corporation's
Amended and Restated Articles of Incorporation, the Corporation's Bylaws, any
agreement, a vote of shareholders, a resolution of Disinterested Directors or
otherwise. No amendment, alteration or repeal of the Corporation's
Amended and Restated Articles of Incorporation or Bylaws or of any provision
hereof shall be effective as to Indemnitee with respect to any action or
omission by such Indemnitee in Indemnitee’s Corporate Status prior to such
amendment, alteration or repeal. To the extent that a change in the
laws of the State of Florida (whether by statute or judicial action) permits
greater indemnification by agreement than would be afforded currently under the
Corporation’s Amended and Restated Articles of Incorporation, Bylaws and this
Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by
this Agreement the greater benefits so afforded by such change. The
provisions of this Agreement shall continue as to an Indemnitee whose Corporate
Status has ceased and shall inure to the benefit of Indemnitee’s heirs,
executors and administrators.
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(b) The
Corporation shall maintain directors’ and officers’ liability insurance,
covering Indemnitee, with commercially reasonable coverage terms and limits for
so long as Indemnitee serves as a director of the Corporation or an Affiliate of
the Corporation, provided and to the extent that such insurance is available on
a commercially reasonable basis. However, the Corporation agrees that
the provisions hereof shall remain in effect regardless of whether insurance
coverage is at any time obtained or retained by the Corporation; except that any
payments made under an insurance policy shall reduce the obligations of the
Company hereunder.
11. Severability. If
any provision or provisions of this Agreement shall be held to be invalid,
illegal or unenforceable for any reason whatsoever: (a) the validity,
legality and enforceability of the remaining provisions of this Agreement shall
not be in any way be affected or impaired thereby; and (b) to the fullest
extent possible, the provisions of this Agreement shall be construed so as to
give effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
12. Definitions. For
purposes of this Agreement:
(a) “Corporate
Status” means the status of a person who is or was an executive officer and/or
director of the Corporation or of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise which such person is
or was serving at the request of the Corporation. Any election or
appointment of an Indemnitee as an executive officer and/or director of the
Corporation or of any corporation, partnership or joint venture which is a
subsidiary or affiliate of the Corporation, or of a trust or employee benefit
plan of the Corporation or any such subsidiary or affiliate, shall conclusively
evidence that such Indemnitee’s service in such capacity was at the request of
the Corporation.
(b) “Disinterested
Director” means a director of the Corporation who is not and was not a party to
the Proceeding in respect of which indemnification is sought by
Indemnitee.
(c) “Expenses”
means all attorneys’ fees, retainers, court costs, transcript costs, fees of
experts, witness fees, travel charges, postage, delivery service fees, and all
other disbursements or expenses of the types customarily incurred in connection
with prosecuting, defending, preparing to prosecute or defend, investigating, or
being or preparing to be a witness in a Proceeding.
(d) “Indemnitee”
means any person who is, or is threatened to be made, a witness in or a party to
any Proceeding as described in Sections 2, 3, 4 or 5 by reason of
Indemnitee’s Corporate Status.
(e) “Independent
Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither presently is, nor in the past five years
has been, retained to represent: (i) the Corporation or Indemnitee in any
matter (other than with respect to the rights of Indemnitee under this Agreement
or other indemnities under similar indemnity agreements); or (ii) any other
party to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term “Independent
Counsel” shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in
representing either the Corporation or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement.
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(f) “Proceeding”
means any action, suit, indictment, information, arbitration, alternate dispute
resolution mechanism, inquiry, investigation, congressional, regulatory or
administrative hearing or any other proceeding whether civil, criminal,
regulatory, administrative or investigative, except one initiated by an
Indemnitee unless such Proceeding was authorized by the Board of Directors or
Indemnitee is enforcing Indemnitee’s rights to indemnification and/or
advancement of Expenses. For purposes of this definition, a
counterclaim, cross claim or third party claim in a Proceeding shall be
considered a separate and distinct Proceeding.
13. Notification
and Defense of Claim.
(a) Indemnitee
shall give the Corporation notice in writing as soon as reasonably practicable
of any claim made against him/her for which indemnity will or could be sought
under this Agreement. In addition, Indemnitee shall, at the
Corporations’ expense give the Corporation such information and cooperation as
it may reasonable require and as shall be within Indemnitee’s
power. Notice to the Corporation shall be directed to 21st Century
Holding Company, 0000 Xxxx Xxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxx Xxxxx,
Xxxxxxx 00000, Attention: Xxxxx X. Prygelski, Chief Financial Officer
(or such other address as the Corporation shall designate in writing to
Indemnitee). Notices to Indemnitee shall be directed to the address
set forth below the signature of the Indemnitee on this Agreement (or such other
address as the Indemnitee shall designate in writing to the
Corporation). Notices shall be deemed received three (3) days
after the date postmarked, if sent by prepaid certified mail, return receipt
requested, properly addressed.
(b) In
the event the Corporation shall be obligated to pay the Expenses of Indemnitee
with respect to a Proceeding, as provided in this Agreement, the Corporation, if
appropriate, shall be entitled to assume the defense of such Proceeding, with
counsel reasonably acceptable to Indemnitee, upon the delivery to Indemnitee of
written notice of its election to do so. After delivery of such
notice, approval of such counsel by Indemnitee and the retention of such counsel
by the Corporation, the Corporation will not be liable to Indemnitee under this
Agreement for any fees of counsel subsequently incurred by Indemnitee with
respect to the same Proceeding, provided that Indemnitee shall have the right to
employ Indemnitee’s own counsel in such Proceeding at Indemnitee’s own
expense. Notwithstanding the above provisions of this
Section 13(b), the Corporation shall not be entitled to assume the defense
of a Proceeding with counsel of its choosing, and all Expenses incurred by
Indemnitee in defending such a Proceeding with Indemnitee’s own counsel shall be
the obligation of the Corporation, if (i) the employment of Indemnitee’s
own counsel has been previously authorized in writing by the Corporation;
(ii) counsel to the Corporation or Indemnitee shall have reasonably
concluded that there may be a conflict of interest or position, or reasonably
believes that a conflict is likely to arise, on any significant issue between
the Corporation and Indemnitee in the conduct of any such defense; or
(iii) the Corporation shall not, in fact, have employed counsel to assume
the defense of such Proceeding, except as otherwise expressly provided by this
Agreement. The Corporation shall not be entitled, without the consent
of Indemnitee, to assume the defense of any Proceeding brought by or in the
right of the Corporation or as to which counsel for the Corporation or
Indemnitee shall have reasonably made the conclusion provided for in clause
(ii) above.
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14. Governing
Law, Amendment. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida. This
Agreement constitutes the entire may be amended or modified only by a writing
executed and signed by the parties hereto. This Agreement may be
executed in any number of counterparts, each of which shall constitute one and
the same original.
15. Successors
and Assigns. 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, adviser and/or agent of the
Corporation. Each and all of the covenants, terms 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 of the Indemnitee, to the benefit of the estate, heirs, executors,
administrators and personal representatives of the Indemnitee.
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement on and as of the day and year first
above written.
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21st
CENTURY HOLDING COMPANY,
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a
Florida corporation
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By:
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/s/ Xxxxxxx X. Xxxxx
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Name:
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Xxxxxxx X. Xxxxx
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Title:
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Chief Executive Officer
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INDEMNITEE:
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/s/ Xxxxxxx X. Xxxxxxxxx
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Print
Name: Xxxxxxx X.
Xxxxxxxxx
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