RELEASE AND INDEMNIFICATION AGREEMENT
THIS RELEASE AND INDEMNIFICATION AGREEMENT ("Agreement") is made as of
the 31st day of October, 1998 by and among XXXXXX ENTERPRISES, INC., CASTLE
ROOM, INC., CLEMATIS BISTRO CORPORATION and SUSHI ENTERPRISES, INC., each a
Florida corporation (individually "Company" and collectively "Companies") and
XXXXXX XXX, XXXX XXXXXXXX and XXX XXXXXXXXX (referred to individually as
"Indemnitee" and collectively as "Indemnitees"). Each Company shall be jointly
and severally liable hereunder with each of the other Companies.
PRELIMINARY STATEMENT:
As a material inducement to Indemnitees and their affiliates to enter
into that certain Agreement with the Companies of even date herewith pursuant to
which, amony other things, Indemnitees are resigning as officers and directors
of certain of the Companies, the Companies have agreed to release and indemnify
the Indemnitees, and the Indemnitees have agreed not to xxx the Companies, as
set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the undertakings
of the parties described above, the Companies hereby agree as follows:
1. Release: Covenant. Each of the Companies hereby remises, releases,
acquits, satisfies, and forever discharges each of the Indemnitees from all, and
all manner of action and actions, cause and causes of action, suits, debts,
dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants,
contracts, controversies, agreements, promises, variances, trespasses, damages,
judgments, executions, claims and demands whatsoever, in law or in equity, which
said Companies ever had, now has, or which any personal representative,
successor, heir or assign of said Companies, hereafter can, shall or may have,
against said Indemnitees for, upon or by reason of any matter, cause or thing
whatsoever, from the beginning of the world to the day of these presents.
Indemnitees hereby covenant and agree that from the date of this Agreement to
the date on which any claim is made against any of the Indemnitees by or in the
name of any of the Companies, Indemnitees shall not initiate any suit or action
at law against any of the Companies with respect to acts or omissions of any of
the Companies occurring prior to the date of this Agreement.
2. Indemnification. To the fullest extent permitted by Florida law, the
Companies hereby agree to defend, indemnify and otherwise hold harmless
Indemnitees, their heirs, personal representatives, administrators, successors
and assigns from and against any and all claims, suits, actions or threatened
actions (including, but not limited to any action by or in the right of a
Company or its shareholders and regardless of whether the same be civil,
criminal, administrative, investigative or otherwise), injuries, losses,
liabilities, damages, causes of action and expenses of any nature ("Indemnified
Loss"), arising, directly or indirectly, by reason of the fact that he is or was
an officer, director, employee, agent of one or more of the Companies or any
subsidiary (direct or indirect) of any Company or by reason of any act or
omission occurring while he served in such capacity (each an "Indemnified
Matter").
"Indemnified Loss" shall include, but shall not be limited to, all
costs, attorneys' fees (including all appellate levels), expenses, liabilities,
fines, judgements and amounts paid in settlement thereof, which are actually and
reasonably incurred by or imposed upon Indemnitees, or which arise in connection
with such action, suit or proceeding. "Indemnified Loss" shall also include but
not be limited to any and all expenses that any Indemnitee incurs to enforce his
rights pursuant to this Agreement, including, but not limited to, pursuing an
order for specific enforcement of any of the provisions, conditions, covenants
or restrictions contained herein.
This Agreement shall be construed to provide each Indemnitee with the
most favorable rights to indemnification and advancement of expenses that can be
given under Florida law as to any Indemnified Matter, and to avoid any payment
or expense by any Indemnitee in connection with any Indemnified Matter. The only
limitation on indemnification and advancement of expenses as to any given
Indemnified Matter shall be to the extent of a judgement or other final
adjudication, within the ,meaning of Florida Statutes Section 607.0850(7), that
establishes that the Indemnitee's actions, or omissions to act, were material to
the cause of action and constitute:
a. A violation of the 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 derived an improper
personal benefit;
c. In the case of a director, a circumstance under which the
liability provisions of Florida Statutes Section 607.0834 are applicable; or
d. 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.
Until any such a final adjudication occurs with respect to a matter,
however, the Companies shall indemnify, defend, hold harmless and advance
expenses to each Indemnitee with respect to such Indemnified Matter to the full
extent set forth herein, without regard to the aforedescribed limitation.
3. Defense of Indemnified Matters.
a. Within fifteen (15) business days after receipt of notice of
commencement of any action or claim by any third-party (including any
governmental authority) before any court or other governmental authority of
competent jurisdiction (but in any event at least 10 business days preceding the
date on which an answer or other pleading must be served in order to prevent a
judgment by default in favor of the third-party claimant), Indemnitee shall give
Companies written notice thereof, together with a copy of such claim, process or
other legal pleading, which notice shall be provided by overnight express mail.
Upon receipt of such notice, the Companies shall undertake the defense of such
claim through the law firm of Xxxxx, McClosky, Smith, Xxxxxxxx & Xxxxxxx, P.A.,
or, if that firm is unable or unwilling to accept such representation, by
another firm reasonably acceptable to the Indemnitee, and shall promptly confirm
such undertaking to the Indemnitee in writing. Notwithstanding the Companies'
undertaking of such defense, the Indemnitee shall have the right, at its own
expense, to engage its own counsel and participate in the defense of such claim,
and no settlement or compromise of such claim shall be made without the prior
written consent of the Indemnitee, which consent shall not be unreasonably
withheld. In connection with any defense undertaken by the Companies in
accordance with this Section 3(a), the Indemnitee will cooperate with all
reasonable requests of the Companies.
b. If the Companies by the fifteenth (15th) business day after
receipt of notice of commencement of any such claim (or such earlier date which
is five (5) days before the date on which the answer or other responsive
pleading must be filed in order to prevent judgment by default in favor of the
third-party claimant), does not undertake the defense of such claim, or if the
Indemnitee reasonably determines that the Companies or any of them have a
conflict of interest with respect to such claim or the vigorous defense thereof,
the Indemnitee (upon further written notice to the Companies) shall have the
right to undertake and control the defense, compromise or settlement of such
claim on behalf of and for the account and risk of the Companies. To the fullest
extent permitted by Florida law, the Companies shall advance to each Indemnitee,
within ten (10) days of each written demand by an Indemnitee therefor,
Indemnitees' costs and expenses incurred in defending any civil or criminal
proceeding pursuant to this Section 3(b).
4. Miscellaneous
a. Notices. All notices and other communications required or
permitted hereunder shall be in writing and, except as otherwise noted herein,
shall be deemed effectively given upon personal delivery, delivery by nationally
recognized courier or upon deposit with the United States Post Office, (by first
class mail, postage prepaid) addressed:
If to the Companies: c/x Xxxxxx Enterprises, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
If to Xxxxxx Xxx: Unique Restaurant Concepts, Inc.
000 Xxxx Xxxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
If Xxxx Xxxxxxxx: Unique Restaurant Concepts, Inc.
000 Xxxx Xxxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
If to Xxx Xxxxxxxxx: Catalfumo Companies
0000 Xxxxxxxxx Xxx
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Any party change the address to which notices are to be addressed by giving the
other party notice in the manner herein set forth.
b. Entire Agreement. This Agreement sets forth all the promises,
covenants, agreements, conditions and understandings between the parties hereto,
and supersedes all prior and contemporaneous agreements, understandings,
inducements or conditions, expressed or implied, oral or written, except as
herein contained.
c. Amendment. The parties hereby irrevocably agree that no attempted
amendment, modification, termination, discharge or change (collectively,
"Amendent") of this Agreement shall be valid and effective, unless the parties
shall unanimously agree in writing to such Amendment.
d. No Waiver. No waiver of any provision of this Agreement shall be
effective, unless it is in writing and signed by the party against whom it is
asserted, and any such written waiver shall only be applicable to the specific
instance to which it relates and shall not be deemed to be a continuing or
future waiver.
e. Counterparts. This Agreement and any amendments may be executed
in one or more counterparts, each of which shall be deemed an original and all
of which together will constitute one and the same instrument.
f. Headings. The article and section headings contained in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
g. Governing Law. This Agreement shall be construed in accordance
with the laws of the State of Florida, and any proceeding arising between the
parties in any manner pertaining or related to this Agreement shall, to the
extent permitted by law, be held in Broward County, Florida.
h. Further Assurances. The parties hereto will execute and deliver
such further instruments and do such further acts and things as may be
reasonably required to carry out the intent and purposes of this Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
COMPANIES:
XXXXXX ENTERPRISES, INC., a Florida corporation
By:/s Xxxxxx X. Xxxxxxxx, Xx.
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CASTLE ROOM, INC., a Florida corporation
By:/s Xxxx Xxxxxxx
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CLEMATIS BISTRO CORPORATION,
a Florida corporation
By:/s Xxxx Xxxxxxx
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SUSHI ENTERPRISES, INC., a Florida corporation
By:/s Xxxx Xxxxxxx
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Title: President
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INDEMNITEES:
/s XXXXXX XXX
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XXXXXX XXX
/s XXXX XXXXXXXX
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XXXX XXXXXXXX
/s XXX XXXXXXXXX
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XXX XXXXXXXXX
EXHIBIT B
Form of Amendment to Limited Partnership Agreement
