DIRECTOR/OFFICER INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is made as of the __ day of ____ 1999,
by and between:
XXXXXXXX.XXX, INC., a Florida corporation, with its principal office
and place of business at 0000 Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxx 00000 (the "Corporation"), and
___________, a resident of the State of Florida ("Director") whose
residence address is:
__________________________________
__________________________________
__________________________________
Background
The Corporation desires that Director serve as a member of the Board of
Directors of the Corporation. Director has indicated that he will be willing to
serve in that capacity set forth above, on the condition that he be indemnified
as provided in this Agreement. The Corporation also desires that Director serve
as an executive officer of the Corporation, and such service shall also be on
the condition that Director be indemnified as provided in this Agreement.
NOW, THEREFORE, in consideration of the premises and as an inducement
to Director to accept the positions described above as well as any other
additional positions as may be mutually agreed upon by the Corporation and
Director, the Corporation hereby covenants and agrees with Director, as follows:
1. Definitions. For purposes of this Agreement:
a. "Expenses" include all expenses actually and reasonably
incurred with respect to a Proceeding, including, without limitation,
fees, expenses and disbursements of attorneys, accountants, financial
consultants and other professionals.
b. "Liabilities" includes obligations to pay a judgment,
settlement, penalty, fine or tax (including, without limitation, any
withholding or employment tax and any excise tax assessed with respect
to the Corporation, any Subsidiary, any employee benefit plan or any
other enterprise as to which Director is or was serving in an Official
Capacity), together with any obligation to pay interest thereon.
c. "Proceeding" includes any threatened, asserted, pending or
completed claim, action, suit or other type of proceeding, whether
civil, criminal, administrative or investigative, whether formal or
informal, including, without limitation, any arbitration proceeding or
other proceeding for the resolution of any claim or dispute and any
privately conducted negotiations, and including, without limitation,
any settlement, hearing, trial or appeal of any of the foregoing.
d. "Serving in an Official Capacity" includes (i) serving as a
director, officer, employee or agent of the Corporation or any
Subsidiary or (ii) serving at the request of the Corporation or any
Subsidiary as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
including any employee benefit plan.
e. "Subsidiary" means any corporation or other entity directly
or indirectly controlled by the Corporation which now exists or may
hereafter be formed.
2. Statutory Indemnification. The Corporation hereby agrees to
indemnify and hold harmless Director to the fullest extent permitted or required
by the provisions of Chapter 607 of the Florida Statutes, as amended, or the
laws of the state of incorporation of any successor to the Corporation, and to
cause any Subsidiary to indemnify and hold harmless Director to the fullest
extent permitted or required by the provisions of the laws of its jurisdiction
of incorporation against any Liability or Expense incurred by Director by reason
of the fact that Director is or was Serving in an Official Capacity. The
Corporation agrees that such obligation shall be to the fullest extent required
or permitted by any subsequent amendment to any of such provisions of the
Florida Statutes or by any other applicable statutory provisions permitting or
requiring such indemnification which are adopted after the date of this
Agreement (but in the case of any amendment or subsequent statutory provisions,
only to the extent that such amendment or provisions permit or require broader
or more extensive indemnification rights than prior thereto).
3. Additional Indemnification. Subject only to the exclusions set forth
in this Section 3, the Corporation further agrees to indemnify and hold harmless
and to cause any Subsidiary to indemnify and hold harmless Director against any
and all Liabilities and Expenses incurred by Director in connection with any
Proceeding to which Director is or was a party or is threatened to be made a
party or in which Director is called to testify as a witness or deponent by
reason of the fact that Director is or was Serving in an Official Capacity.
Director shall not be entitled to any indemnification pursuant to this Section 3
if a judgment or other final adjudication establishes that any act or omission
of Director was material to the cause of action so adjudicated and that such act
or omission constituted:
a. A criminal violation, unless Director had reasonable cause
to believe that Director's conduct was lawful or had no reasonable
cause to believe that such conduct was unlawful;
b. A transaction from which Director derived an improper
personal benefit;
c. An act or omission giving rise to liability for an unlawful
distribution under Section 607.0834, Florida Statutes, or any successor
provision; or
d. Wilful misconduct or a conscious disregard for the best
interests of the Corporation (or any Subsidiary or any other enterprise
as to which Director is or was Serving in an Official Capacity).
4. Advance of Expenses; Partial Indemnification. The Corporation shall
advance or cause any Subsidiary to advance Expenses incurred by Director in
defending any Proceeding for which Director may be entitled to indemnification
hereunder, provided that the Corporation or any Subsidiary shall not be required
to advance any sums for such Expenses if the Board of Directors of the
Corporation or the Board of Directors of any Subsidiary, as the case may be,
makes a preliminary good faith determination that Director engaged in willful
misconduct or acted with a conscious disregard for the best interests of the
Corporation or any Subsidiary, as the case may be (but no such determination by
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the Board of Directors of any Subsidiary alone shall have any effect upon the
obligations of the Corporation under this Agreement without such a determination
by the Board of Directors of the Corporation). Director hereby agrees to repay
any such advances of Expenses made hereunder with respect to a matter if
Director is ultimately found not to be entitled to indemnification hereunder
with respect to such matter. If Director is entitled under any provision of this
Agreement to indemnification by the Corporation for some or a portion of any
Expense or Liability but not entitled to indemnification for all of the total
amount thereof, the Corporation shall indemnify Director for such portion
thereof to which Director is entitled.
5. Obligations of Corporation and Subsidiary; Separate Obligations. It
is the intention of the parties that Director be entitled to indemnification to
the broadest possible extent allowed by law. Accordingly, any ambiguity in this
Agreement shall be construed in favor of indemnification. Furthermore, in the
event that applicable law would not permit or require indemnification as to a
Liability or Expense but Florida law would, or vice versa, or in the event that
a Liability or Expense would be indemnifiable under both laws but the law of one
would permit or require broader indemnification than the other, Director shall
be indemnified pursuant to the law that will provide maximum indemnification.
The obligations of the Corporation under this Agreement are separate,
independent and primary obligations of the Corporation, and may be enforced
directly against the Corporation without any necessity for joining any
Subsidiary or any other enterprise as to which Director is or was Serving in an
Official Capacity, for recovering or seeking to enforce any judgment against any
Subsidiary or such other enterprise, or for otherwise seeking to recover from or
out of the assets of any Subsidiary or any such other enterprise, whether or not
any Subsidiary or any such other enterprise has assets sufficient for such
recovery.
6. Notification of Defense of Claim. Promptly after receipt by Director
of the notice of the commencement of any Proceeding (including any threat
thereof) as to which Director may be entitled to indemnification hereunder,
Director shall notify the Corporation in writing of the commencement thereof.
Failure to so notify the Corporation shall not relieve the Corporation from any
obligation hereunder except to the extent that it may suffer material prejudice
by reason of such failure. With respect to any such Proceeding as to which
Director notifies the Corporation of the commencement thereof:
a. The Corporation shall be entitled to participate therein at
its own expense.
b. Except as otherwise provided below, the Corporation shall
be entitled to assume the defense thereof on behalf of Director, with
counsel satisfactory to Director and the Corporation. Director shall
have the right to employ separate counsel in such Proceeding, and the
fees, expenses and disbursements of Director's own separate counsel
incurred after written notice from the Corporation to Director of its
assumption of the defense thereof and after the full assumption of such
defense by counsel engaged by the Corporation and satisfactory to
Director, shall be the expense of Director except (i) if the employment
of counsel by Director has been authorized in writing by the
Corporation, or (ii) if Director shall have reasonably concluded that
there may be a conflict of interest between Director and the
Corporation with respect to the defense of such action, or (iii) if any
fees, expenses and disbursements of Director's own separate counsel are
incurred in connection with familiarizing or providing assistance to
counsel employed by the Corporation, in which case the fees, expenses
and disbursements of Director's own separate counsel shall be paid by
the Corporation. The Corporation shall not be entitled to assume the
defense of any Proceeding brought by or on behalf of the Corporation or
as to which Director shall have made the conclusion provided for in
(ii) above.
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c. The Corporation shall not be obligated to indemnify
Director under this Agreement for any amounts paid in settlement of any
Proceeding effected without its written consent. The Corporation shall
not settle any action or claim in any manner which would impose any
penalty, limitation, Liability or Expense on Director for which
Director is not entitled to indemnification hereunder, without
Director's written consent.
7. Insurance. Nothing in this Agreement shall be deemed to require the
Corporation to indemnify Director to the extent that insurance proceeds under
any policy of policies of insurance carried by the Corporation, any Subsidiary
or any affiliate of the Corporation are available to satisfy any Liability or
Expense incurred by Director by reason of the fact that Director is or was
Serving in an Official Capacity. In the event the Corporation maintains policies
of directors and officers liability insurance, Director shall be named as an
insured in such manner as to provide Director the same rights and benefits as
are accorded to the most favorably insured of the Corporation's directors.
8. No Third Party Beneficiaries. This Agreement is not intended for the
benefit of and shall not create any rights in favor of any third parties, it
being the intent of the parties that this Agreement be solely for the benefit of
Director, Director's heirs and personal representatives, in the event that
Director incurs any Liability or Expense for which Director is entitled to
indemnification hereunder.
9. Miscellaneous. This Agreement shall continue in force during the
period that Director is Serving in an Official Capacity and shall continue
thereafter so long as Director shall be subject to any possible claim or
Proceeding by reason of the fact that Director was Serving in an Official
Capacity. Director shall be entitled to reimbursement from the Corporation for
the fees, expenses and disbursements of counsel reasonably incurred by Director
in enforcing Director's rights under this Agreement. In the event that any
provision of this Agreement is held to be void or unenforceable, the remaining
provisions shall not be affected thereby. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
personal representatives and successors. This Agreement is not assignable by
either party. No amendment or modification to this Agreement shall be effective
unless made in a writing signed by the party against whom enforcement is sought.
XXXXXXXX.XXX, INC.
By: ________________________________________
Xxxx X. Xxxxx, Executive Vice President
____________________________________________
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