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EXHIBIT 10.48
FORM OF
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made as of this ___ day of
May, 2000 between Able Telcom Holding Corp., a Florida corporation (the
"Company"), and _________________________(the "Indemnitee").
WHEREAS, it is essential and in the best interests of the Company to retain and
attract the most capable persons available as directors and officers of the
Company or any entity on which the officers or directors indemnified herein
serve at the request of the Company;
WHEREAS, Indemnitee is serving as an officer or director of the Company, or as
an officer or director of any entity at the request of the Company;
WHEREAS, the Company and Indemnitee recognize the increased risk of litigation
and other claims being asserted against directors and officers of companies; and
WHEREAS, in recognition of Indemnitee's need for substantial protection against
personal liability; in order to enhance Indemnitee's continued service to the
Company or other corporation in an effective manner; to provide Indemnitee with
specific contractual assurance that indemnification protection will be provided;
and in order to induce Indemnitee to continue to provide services to the Company
or any entity at the request of the Company as an officer or director thereof
the Company wishes to provide in this Agreement for the indemnification and
advancing of expenses to Indemnitee to the fullest extent permitted by law and
as set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing premises and of the Indemnitee
continuing to serve the Company or any entity at the request of the Company, and
intending to be legally bound hereby, the parties hereto agree as follows:
1. Definitions.
(a) "Claim" means any threatened, pending or completed
action, suit, proceeding or alternative dispute resolution mechanism, or any
inquiry, hearing or investigation, whether conducted by the Company or any other
party, that Indemnitee in good faith believes might lead to the institution of
an action, suit, proceeding or alternative dispute resolution mechanism, whether
civil, criminal, administrative, investigative or otherwise; provided, however,
that the term "Claim" shall not include any threatened, pending or completed
action, suit, proceeding, alternate dispute, resolution mechanism,
investigation, inquiry or administrative proceeding to the extent such
proceeding involves an event or occurrence that is not indemnifiable by the
Company under applicable law.
(b) "Expenses" include attorneys' fees (through all
appeals) and all other costs, travel expenses, fees of experts, transcript
costs, filing fees, witness fees, telephone charges, postage, delivery service
fees, expenses and obligations of any nature whatsoever reasonably and actually
incurred in connection with investigating, defending, being a witness or
participating in as a party (including on appeal), or preparing to defend, any
Claim relating to any Indemnifiable Event.
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(c) "Indemnifiable Event" means any event, occurrence or
omission related to the fact that Indemnitee is or was a director or senior
officer of the Company, or is or was serving at the request of the Company as a
director, officer, employee, trustee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise;
provided, however, that an Indemnifiable Event shall not include any event or
occurrence that is not indemnifiable by the Company under applicable law.
(d) "Reviewing party" means (i) a majority of a quorum of
members of the Company's Board of Directors, consisting of members who are not
parties to the particular Claim for which Indemnitee is seeking indemnification,
or if such quorum is not obtainable, or even if obtainable, by a majority of a
committee duly designated by the Board of Directors (in which designation
directors who are parties may participate) consisting solely of two or more
directors who, at the time, are not parties to the particular Claim for which
Indemnitee is seeking indemnification; (ii) Independent Legal Counsel, if
appointed by a quorum of disinterested directors, the committee referred to in
Section 1 (d)(i) above or a majority of the full Board of Directors (in which
directors who are parties may participate); or (iii) a majority of a quorum of
shareholders who were not a party to the particular Claim for which the
Indemnitee seeks indemnification, or if no such quorum is available, by a
majority of shareholders who were not a party to such Claim.
(e) "Independent Legal Counsel" means an attorney,
selected by the Board of Directors of the Company. Independent Legal Counsel
shall not be any person who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in representing the
Company or Indemnitee in an action to determine Indemnitee's rights under this
Agreement, nor shall Independent Legal Counsel be any person who has been
sanctioned or censured for ethical violations of applicable standards of
professional conduct.
2. Basic Indemnification Arrangement
(a) In the event Indemnitee was, is or becomes a party to
or witness or other participant in, or is threatened to be made a party to or
witness or other participant in, a Claim by reason of (or arising in part out
of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the
fullest extent permitted by law as soon as practicable, but in any event no
later than thirty (30) days after written demand is presented to the Company by
Indemnitee, against any and all Expenses, judgments, fines, penalties, or other
amounts adjudicated against Indemnitee, and amounts actually and reasonably
incurred in settlement (including all interest, assessments and other charges
paid or payable in connection with or in respect of such Expenses, judgments,
fines, penalties or amounts paid in settlement) of such Claim and any federal,
state, local or foreign taxes imposed on the Indemnitee as a result of the
actual or deemed receipt of any payments under this Agreement.
(b) Notwithstanding the foregoing, the obligations of the
Company under Section 2(a) shall be subject to the condition that the Reviewing
party shall not have determined (in a written opinion, in any case in which the
Independent Legal Counsel is involved) that Indemnitee would not be permitted to
be indemnified under this Agreement or applicable law.
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(c) To the extent that Indemnitee has been successful on
the merits or otherwise in defense of any or all Claims relating in whole or in
part to an Indemnifiable Event or in defense of any issue or matter therein,
including dismissal without prejudice, Indemnitee shall be indemnified against
all Expenses incurred in connection therewith. In connection with any
determination by the Reviewing Party or otherwise as to whether Indemnitee is
entitled to be indemnified hereunder, the burden of proof shall be on the
Company to establish that Indemnitee is not so entitled.
(d) Notwithstanding the foregoing, no indemnification or
Expense Advance (under Section 4 (c)) shall be provided hereunder if (i)
Indemnitee institutes or initiates an action, proceeding or claim against the
Company (except for an action to enforce or interpret this Agreement, which is
provided for in Section 4(d) below); (ii) a court determines that, with respect
to an action or claim instituted by the Indemnitee to enforce or interpret this
Agreement, the action or claim was not in good faith or was frivolous; (iii) the
Claim is for an amount paid in a settlement without the Company's consent; (iv)
such payment would be prohibited by applicable law; or (v) a judgment or other
final adjudication establishes that Indemnitee's actions or omissions to act
were material to the cause of action so adjudicated and constitute (A) a
violation of the criminal law, unless the Indemnitee had reasonable cause to
believe his conduct was lawful and had no reasonable cause to believe his
conduct was unlawful; (B) a transaction from which the Indemnitee derived an
improper personal benefit; (C) in the case of a director, a circumstance under
which the liability provisions of Section 607.0834 of the Florida Business
Corporation Act is applicable; or (D) fraudulent, dishonest or willful
misconduct or a 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.
3. Partial Indemnity
If Indemnitee is entitled under any provision of this Agreement, or is
determined by a court of competent jurisdiction to be entitled to
indemnification by the Company for some or a portion of the Expenses, judgments,
fines, penalties and amounts paid in settlement or appeal of a Claim but not,
however, for the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion thereof to which Indemnitee is entitled.
4. Indemnification Procedures
(a) In the event any Claim should be asserted against the
Indemnitee the Indemnitee shall notify the Company to that effect within five
(5) days of the date Indemnitee receives formal notice of such Claim. At such
time, the Company shall have the right, but not the obligation, to assume
control of the defense of such Claim through its own attorney(s) at its own
expense or pursuant to directors and officers liability insurance which may be
in effect, and in connection therewith, Indemnitee shall cooperate fully to make
available to the Company all pertinent information under the control of the
Indemnitee which relates to such Claim; provided, however, that the attorney(s)
appointed by the Company is reasonably acceptable to Indemnitee. After approval
of such counsel by Indemnitee and the retention of such counsel by the Company,
the Company will not be liable to Indemnitee under this Agreement for any
attorneys' fees subsequently incurred by Indemnitee with respect to the same
proceeding; provided, however, that if Indemnitee shall have reasonably
concluded that there is a conflict of interest between the
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Company and Indemnitee in the conduct of any such defense, the Company, at its
expense will provide Indemnitee with counsel reasonably acceptable to Indemnitee
to defend the Claim.
(b) If, within ten (10) days of notice to the Company by
Indemnitee of the assertion of a Claim against Indemnitee, the Company does not
notify Indemnitee in writing that it shall assume control of the defense of the
Claim, Indemnitee shall have the right to appoint his or her own counsel, and
seek indemnification under this Agreement.
(c) Expense Advance. Subject to the Company assuming
control of the defense of a claim and subject to sub-section (d) below, the cost
and Expenses reasonably incurred by Indemnitee or on Indemnitee's behalf in
investigating, defending or appealing any Claim, or in enforcing Indemnitee's
right under any provisions of this Agreement, covered by Section 2 above shall
be paid by the Company within ten (10) business days of Indemnitee's written
request therefor even if there has been no final disposition of such Claim,
provided that such costs and Expenses reasonably are expected to be incurred
within thirty days of Indemnitee's request. Indemnitee's written request shall
state the amount requested and shall be accompanied by copies of the invoices or
other relevant documentation.
(d) Obligation to Repay Advances. The obligation of the
Company to make an Expense Advance pursuant to Section 4(c) shall be subject to
the condition that, if, when and to the extent that the Reviewing party
determines that Indemnitee would not be permitted to be so indemnified under
this Agreement or applicable law, Indemnitee agrees to reimburse the Company for
all such amounts and Expenses theretofore paid; provided, however, that if
Indemnitee has commenced legal proceedings in a court of competent jurisdiction
to secure a determination that Indemnitee should be indemnified under applicable
law, any determination made by the Reviewing party that Indemnitee would not be
permitted to be indemnified under applicable law shall not be binding and
Indemnitee shall not be required to reimburse the Company for any Expense
Advance until a final judicial determination is made with respect thereto (as to
which all rights of appeal therefrom have been exhausted or lapsed).
Indemnitee's obligation to reimburse the Company for Expense Advances shall be
unsecured and no interest shall be charged thereon. If there has been no
determination by the Reviewing party within ten (10) days of being notified of a
Claim, or if the Reviewing party determines that Indemnitee substantively would
not be permitted to be indemnified in whole or in part under this Agreement or
applicable law, Indemnitee shall have the right, at Indemnitee's expense, to
commence litigation in any court referenced in paragraph 16 of this Agreement
seeking an initial determination by the court regarding indemnification or
challenging any such determination by the Reviewing party or any aspect thereof.
If successful in an enforcement action, the Indemnitee shall be entitled to be
paid the Expenses, including but not limited to, reasonable attorneys' fees, of
prosecuting such claim.
5. Settlements without Consent
The Company shall not be liable to indemnify Indemnitee under this Agreement for
any amounts paid in settlement of any proceeding effected without its written
consent. The Company shall not settle any proceeding for which the Company has
assumed the defense in any manner that would impose any penalty on Indemnitee
without Indemnitee's written consent. Neither the
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Company nor Indemnitee will unreasonably withhold their respective consent to
any proposed settlement.
6. No Presumption
For purposes of this Agreement, the termination of any Claim, action, suit or
proceeding, by judgment, order, settlement (whether with or without court
approval) or upon a plea of nolo contendere, or its equivalent, shall not create
a presumption that Indemnitee did not meet any particular standard of conduct,
that Indemnitee had a particular belief or that a court has determined that
indemnification is not permitted by applicable law.
7. Non-Exclusivity
The rights of Indemnitee hereunder shall be in addition to any other rights
Indemnitee may have under the Articles of Incorporation or Bylaws of the Company
or a subsidiary of the Company or the Florida Business Corporation Act or
otherwise. To the extent that a change in the Florida Business Corporation Act
(whether by statute or judicial decision) permits greater indemnification by
agreement than would be afforded currently under the Articles of Incorporation
and Bylaws of the Company, a subsidiary of the Company 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 rights of Indemnitee
hereunder shall continue to exist if the provisions of the Bylaws of the Company
with respect to indemnification should be rescinded or restrictively modified.
8. No Construction as Employment Agreement
Nothing contained herein shall be construed as giving or limiting any right of
Indemnitee to be retained in the employ of the Company or any of its
subsidiaries.
9. Amendments
The provisions of this Agreement may not be amended, supplemented, waived or
changed orally, but only by a writing signed by the party as to whom enforcement
of any such amendment, supplement, waiver or modification is sought and making
specific reference to this Agreement.
10. Subrogation
In the event of payment under this Agreement, the Company shall be subrogated to
the extent of such payment to all of the rights of recovery of Indemnitee, who
shall execute all papers required and shall do everything that may be necessary
to secure such rights, including the execution of such documents necessary to
enable the Company effectively to bring suit to enforce such rights.
11. No Duplication of Payments
The Company shall not be liable under this Agreement to make any payment in
connection with any claim made against Indemnitee to the extent Indemnitee has
otherwise actually received payment (under any insurance policy, Articles of
Incorporation or Bylaws of the Company or otherwise) of the amounts otherwise
indemnifiable hereunder.
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12. Binding Effect
All of the terms and provisions of this Agreement shall be binding upon, inure
to the benefit of, and be enforceable by the parties and their respective
administrators, executors, legal representatives, heirs, successors and
permitted assigns, including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business
and/or assets of the Company. The Company shall require and cause any successor
(whether direct or indirect by purchase, merger, consolidation or otherwise) to
all, substantially all or a substantial part, of the business and/or assets of
the Company, by written agreement in form and substance satisfactory to
Indemnitee, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform if
no such succession had taken place. This Agreement shall continue in effect
regardless of whether Indemnitee continues to serve as a director or officer of
the Company or of any other company at the direction of the Company, and
regardless of the termination, for any or no reason, of any employment agreement
or employment relationship with the Company, so long as Indemnitee shall be
subject to any possible Claim by reason of the fact that Indemnitee was an
officer or director of the Company (or was serving in such other capacities at
the Company's request).
13. Severability
If any provision of this Agreement or any other agreement entered into pursuant
hereto is contrary to, prohibited by or deemed invalid under applicable law or
regulation, such provision shall be inapplicable and deemed omitted to the
extent so contrary, prohibited or invalid, but the remainder hereof shall not be
invalidated thereby and shall be given full force and effect so far as possible.
If any provision of this Agreement may be construed in two or more ways, one of
which would render the provision invalid or otherwise voidable or unenforceable
and another of which would render the provision valid and enforceable, such
provision shall have the meaning which renders it valid and enforceable.
14. Notice
All notices required to be given under the terms of this Agreement shall be in
writing, shall be effective upon receipt (except that if delivery of certified
mail is refused, delivery shall be deemed made five (5) days after the date of
mailing), and shall be delivered to the addressee in person or mailed by
certified mail, return receipt requested:
If to the Company, addressed to:
Able Telcom Holding Corp.
0000 Xxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: President
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If to Indemnitee addresses to:
Xxxxxx X. Xxxxxxx
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
or such other address as the party to receive the notice shall advise by due
notice hereunder.
15. Governing Law
This Agreement and all transactions contemplated by this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Florida.
16. Jurisdiction and Venue
The parties acknowledge that a substantial portion of the negotiations,
anticipated performance and execution of this Agreement occurred or shall occur
in Atlanta, Georgia. Any civil action or legal proceeding arising out of or
relating to this Agreement shall be brought in the courts of record of the State
of Georgia in Xxxxxx County or the United States District Court, having
jurisdiction in Atlanta, Georgia. Each party consents to the jurisdiction of
such court in any such civil action or legal proceeding and waives any objection
to the laying of venue of any such civil action or legal proceeding in such
court. Service of any court paper may be effected on such party by mail, as
provided in this Agreement, or in such other manner as may be provided under
applicable laws, rules of procedure or local rules.
17. Third Parties
Unless expressly stated herein to the contrary, nothing in this Agreement,
whether express or implied, is intended to confer any rights or remedies under
or by reason of this Agreement on any persons other than the parties hereto and
their respective administrators, executors, other legal representatives, heirs,
successors and permitted assigns. Nothing in this Agreement is intended to
relieve or discharge the obligation or liability of any third persons to any
party to this Agreement, nor shall any provision give any third persons any
right of subrogation or action over or against any party to this Agreement.
18. Recitals
The recitals herein are true and correct and constitute a part hereof.
19. Entire Agreement
This Agreement represents the entire understanding and agreement between the
parties with respect to the subject matter hereof, and supersedes all other
negotiations, understandings and representations (if any) made by and between
such parties.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement as of the date first written above.
ABLE TELCOM HOLDING CORP.
By:
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Name:
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Title:
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INDEMNITEE
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Xxxxxx X. Xxxxxxx
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