INDEMNIFICATION AGREEMENT
Exhibit
10.4
THIS
INDEMNIFICATION AGREEMENT (this “Agreement) is dated as of January 26, 2004, by
and between 21st
CENTURY
HOLDING COMPANY, a Florida corporation (the “Company”), with its principal
office located at 0000 X.X. 0xx
Xxxxxx,
Xxxxxxxxxx, Xxxxxxx 00000, and XXXXX X. PRYGELSKI, whose residence is 00000
XX
00 Xxxxx, Xxxxx Xxxxxxx, Xxxxxxx 00000 (the “Indemnitee”).
Recitals
1. The
substantial increase in corporate litigation subjects directors and officers
of
corporations and others to expensive litigation risks at the same time that
the
availability of competent and qualified directors, officers, employees,
consultants, advisers and agents has been greatly reduced, and the coverage
offered by directors’ and officers’ liability insurance has been severely
limited;
2. The
Company’s Restated and Amended Articles of Incorporation (the “Articles of
Incorporation”) and By-Laws (the By-Laws”) requires the Company to indemnity and
advance expenses to its directors and officers to the fullest extent permitted
by law and the Indemnitee has been serving and continues to serve as a director
or officer of the Company in part in reliance on such Articles of
Incorporation;
3. In
recognition of Indemnitee’s need for substantial protection against personal
liability in order to enhance Indemnitee’s continued service to the Company in
an effective manner and Indemnitee’s reliance on the Articles of Incorporation
and By-Laws, and in part to provide Indemnitee with specific contractual
assurance that the protection promised by the Articles of Incorporation and
By-Laws will be available to Indemnitee (regardless of, among other things,
any
amendment to or revocation of such or any change in the composition of the
Company’s Board of Directors (the “Board”) or acquisition transaction relating
to the Company), the Company wishes to provide in this Agreement for the
indemnification of, and the advancing of expenses to, Indemnitee to the fullest
extent (whether partial or complete) permitted by law and as set forth in this
Agreement, and, to the extent insurance is maintained, for the continued
coverage of Indemnitee under the Company’s directors’ and officers’ liability
insurance policies;
4. As
a
condition to the Indemnitee’s agreement to continue to serve as a director of
the Company, the Indemnitee requires that he be indemnified from liability
to
the fullest extent permitted by law; and
5. 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,
in
consideration of the premises and mutual covenants set forth herein, the parties
hereby agree as follows:
1. MANDATORY
INDEMNIFICATION IN PROCEEDINGS OTHER THAN THOSE BY OR IN THE RIGHT OF THE
COMPANY. Subject to Section 5 hereof, the Company shall indemnify and hold
harmless the Indemnitee from and against any and all claims, damages, expenses
(including attorneys’ fees), judgments, penalties, fines (including excise taxes
assessed with respect to an employee benefit plan), settlements, and all other
liabilities incurred or paid 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 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, consultant, adviser or agent of the Company, or is or was serving
at
the request of the Company as an officer, director, partner, trustee, employee,
adviser 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 PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. Subject to
Section 5 hereof the Company shall indemnify and hold harmless the Indemnitee
from and against any and all expenses (including attorneys’ fees) and amounts
actually and reasonably incurred or paid by him in connection with the
investigation, defense, prosecution, settlement or appeal of any threatened,
pending or completed action, suit or proceeding by or in the right of the
Company to procure a judgment in its favor, whether civil, criminal,
administrative or investigative, 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, consultant, adviser or
agent
of the Company, or is or was serving at the request of the Company as an
officer, director, partner, trustee, employee, adviser 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 (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 and (ii) no indemnification shall be made under this
Section 2 in respect of any claim, issue or matter as to which the Indemnitee
shall have been adjudged to be liable to the Company for misconduct in the
performance of his duty to the Company unless, and only to the extent that,
the
court in which such 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 the circumstances of the case, the Indemnitee
is
fairly and reasonably entitled to indemnity for such expenses which such court
shall deem proper.
3. MANDATORY
INDEMNIFICATION AGAINST EXPENSES INCURRED WHILE TESTIFYING. Subject to Section
5
hereof, the Company shall indemnify the Indemnitee against expenses (including
attorneys’ fees) incurred or paid by the Indemnitee as a result of providing
testimony in any proceeding, whether civil, criminal, administrative or
investigative (including but not limited to any action or suit by or in the
right of the Company to procure judgment in its favor), by reason of the fact
that the Indemnitee is or was an officer, director, shareholder, employee,
consultant, adviser or agent of the Company, or is or was serving at the request
of the Company as an officer, director, partner, trustee, employee, adviser
or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise.
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4. REIMBURSEMENT
OF EXPENSES FOLLOWING ADJUDICATION OF NEGLIGENCE. The Company shall reimburse
the Indemnitee for any expenses (including attorneys’ fees) and amounts actually
and reasonably incurred or paid 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 or not opposed to
the
best interests of the Company.
5. AUTHORIZATION
OF INDEMNIFICATION. Any indemnification under Sections 1, 2 and 3 hereof (unless
ordered by a court) and any reimbursement made under Section 4 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
requirements set forth in Sections 1, 2, 3 and 4 hereof, as the case may be.
Subject to Sections 6.6, 6.7 and 9 of this Agreement, the Determination shall
be
made in the following order of preference:
(a) first,
by
the Board by a majority vote or consent of a quorum, in each case consisting
of
directors who are not, at the time of the Determination, named parties to such
action, suit or proceeding (“Disinterested Directors”); or
(b) 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
(c) next,
if
such a committee cannot be designated, by any independent legal counsel (who
may
be any outside counsel regularly employed by the Company) in a written opinion;
or
(d) next,
if
such legal counsel determination cannot be obtained, by vote or consent of
the
holders of a majority of the Company’s Common Stock.
5.1 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 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.
5.2 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.
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5.3 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
5.3 shall mean any other corporation or partnership, joint venture, trust,
employee benefit plan or other enterprise of which the Indemnitee is or was
serving at the request of the Company as an officer, director, partner, trustee,
employee, adviser or agent. The provisions of this
Section
5.3 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 4 hereof, as the case may
be.
5.4 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 Sections 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
5.4, 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, and (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 a settlement.
5.5 PARTIAL
INDEMNIFICATION OR REIMBURSEMENT. If the Indemnitee is entitled under any
provision of this Agreement of indemnification and/or reimbursement by the
Company for some or a portion of the claims, damages, expenses (including
attorneys’ fees), judgments, penalties, fines or amounts paid in settlement by
the Indemnitee in connection with the investigation of, defense of, settlement
of, appeal of or testimony provided with respect to any action specified in
Sections 1, 2, 3 or 4 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 parties making
the Determination shall determine the portion (if less than all) of such claims,
damages, expenses (including attorneys’ fees), judgments, penalties, fines or
amounts paid in settlement for which the Indemnitee is entitled to
indemnification and/or reimbursement under this Agreement.
6. PROCEDURES
FOR DETERMINATION OF WHETHER STANDARDS HAVE BEEN SATISFIED.
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6.1 COSTS.
All costs of making the Determination required by Section 6 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 9 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.
6.2 TIMING
OF
THE DETERMINATION. The Company shall use its best efforts to make the
Determination contemplated by Section 5 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
(c) if
the
Determination is to be made by the shareholders of the Company, such
Determination shall be made not later than 90 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.
6.3 REASONABLENESS
OF EXPENSE. 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 or 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 or consent 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.
All
expenses shall be considered reasonable for purposes of this Agreement if the
finding contemplated by this Section 6.3 is not made within the prescribed
time.
The finding required by this Section 6.3 may be made in advance of the payment
(or incurring) of the expenses for which indemnification or reimbursement is
sought.
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6.4 PAYMENT
OF INDEMNIFIED AMOUNT. Immediately following a Determination that the Indemnitee
has met the applicable requirements set forth in Sections 1, 2, 3 or 4 hereof,
as the case may be, and the finding of reasonableness of expenses contemplated
by Section 6.3 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.
6.5 SHAREHOLDER
VOTE ON DETERMINATION. Notwithstanding the provisions of the Florida statutes,
if the Indemnitee is a shareholder of the Company, 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 6.3 hereof. Ind 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
Company proxy statement relating to the proposal to indemnify or reimburse
the
Indemnitee shall not include a recommendation against indemnification or
reimbursement.
6.6 SELECTION
OF INDEPENDENT LEGAL COUNSEL. If the Determination required under Section 5
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 6.8 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.
6.7 RIGHT
OF
INDEMNITEE 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
requirements set forth in Sections 1, 2, 3 or 4 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
9
hereof, such Determination by the Company’s shareholders shall be binding and
conclusive for all purposes of this Agreement.
6.8 RIGHT
OF
INDEMNITEE 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 5 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 5 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.
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6.9 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.
6.10 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.
7. 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 capacities
as a
Company director, officer, adviser or agent and actions taken in another
capacity while serving as director, officer, adviser or agent, including, but
not limited to, actions or proceedings involving (i) compensation paid to the
Indemnitee by the Company, (ii) 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, or any other
affiliate shall be deemed to be at the request of the Company.
8. ADVANCE
FOR EXPENSES.
8.1 MANDATORY
ADVANCE. Expenses (including attorneys’ fees) incurred by the Indemnitee in
investigating, defending, settling or appealing any action, suit or proceeding
described in Sections 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 Indemnitees’s delivery to the Company of a
written request for an advance pursuant to this Section 8, together with a
reasonable accounting of such expenses.
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8.2 UNDERTAKING
TO REPAY. The Indemnitee hereby undertakes and agrees to repay to the Company
any advances made pursuant to this Section 8 if and to the extent that it shall
ultimately be found (by final judicial determination from which there is no
further right to appeal) that the Indemnitee is not entitled to be indemnifed
by
the Company for such amounts.
8.3 MISCELLANEOUS.
The Company shall make the advances contemplated by this Section 8 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 8 shall be
unsecured and interest-free.
9. COURT-ORDERED
INDEMNIFICATION.
9.1 Regardless
of whether the Indemnitee has met the requirements set forth in Sections 1,
2, 3
or 4 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 Sections 4 or 13
hereto) 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).
9.2 The
right
to indemnification and advances as provided by this Agreement shall be
enforceable by Indemnitee in an action in any court of competent jurisdiction.
In such an action, the burden of proving that indemnification is not required
hereunder shall be on the Company. Neither the failure of the Company (including
its Board and independent legal counsel) to have made a Determination prior
to
the commencement of such an action that indemnification is proper in the
circumstances because Indemnitee has met the applicable standard of conduct,
nor
an actual Determination by the Company (including its Board and independent
legal counsel) that Indemnitee has not met such applicable standard of conduct,
shall be a defense to such an action or create a presumption that Indemnitee
has
not met the applicable standard of conduct. Indemnitee’s expenses reasonably
incurred in connection with establishing his right to indemnification, in whole
or in part, in connection with any proceeding shall also be indemnified by
the
Company.
10. 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 the
Company’s 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.
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11. 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 of the Indemnitee ceases (for any reason) to serve as either
an officer, director, adviser or agent 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.
12. INDEMNIFICAION
OF INDEMNITEE’S ESTATE. Notwithstanding any other provision of this Agreement,
if the Indemnitee is deceased, and indemnification of the Indemnitee would
be
permitted and/or required under this Agreement, 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
Sections 1, 2 or 4 hereof.
13. MISCELLANEOUS.
13.1 NOTICE.
Any notice required or permitted to be delivered hereunder shall be deemed
to be
delivered when sent by facsimile with receipt confirmed or deposited in the
United States mail, postage prepaid, registered or certified mail, return
receipt requested, or by overnight courier addressed to the parties at the
address first stated herein, or to such other address as either party hereto
shall from time to time designate to the other party by notice in writing as
provided herein.
13.2 ENTIRE
AGREEMENT. This Agreement constitutes the entire Agreement between the parties
hereto with respect to the subject matter hereof. It supercedes all prior
negotiations, letters and understandings relating to the subject matter
hereof.
13.3 NON-EXCLUSIVITY.
The rights of indemnification and reimbursement provided in this Agreement
shall
be in addition to any rights to which the Indemnitee may otherwise be entitled
under the Company’s Articles of Incorporation or By-Lays or any statute,
agreement, vote of shareholders or otherwise.
13.4 SEVERABILITY.
The invalidity, illegality or unenforceability of any provision or provisions
of
this Agreement will not affect any other provision of this Agreement, which
will
remain in full force and effect, nor will the invalidity, illegality or
unenforceability of a portion of any provision of this Agreement affect the
balance of such provision. In the event that any one or more of the provisions
contained in this Agreement or any portion thereof shall for any reason be
held
to be invalid, illegal or unforceable in any respect, this Agreement shall
be
reformed, construed and enforced as is such invalid, illegal or unenforceable
provision had never been contained herein.
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13.5 SAVING
CLAUSE. If this Agreement or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, the Company shall nevertheless
indemnify Indemnitee as to expenses, judgments, fines and penalties with respect
to any proceeding to the full extent permitted by any applicable portion of
Agreement that shall not have been invalidated or by any applicable
law.
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 SECURITY.
To the fullest extent permitted by applicable law, the Company may from time
to
time, but shall not be required to, provide such insurance, collateral, letters
of credit or other security devices as its Board may deem appropriate to support
or secure the Company’s obligations under this Agreement.
13.8 CHOICE
OF
LAW. This Agreement will be interpreted, construed and enforced in accordance
with the laws of the State of Florida, without giving effect to the application
of the principles pertaining to conflicts of laws.
13.9 AMENDMENT.
This Agreement may not be amended, supplemented or modified in whole or in
part
except by an instrument in writing signed by the party or parties against whom
enforcement of any such amendment, supplement or modification is
sought.
13.10 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, adviser 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 and assigns of the Company and,
upon
the death of the Indemnitee, to the benefit of the estate, heirs, executors,
administrators and personal representatives of the Indemnitee.
13.11 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which will
be deemed an original.
13.12 EFFECTIVE
DATE. The provisions of this Agreement shall cover claims, actions, suits and
proceedings whether now pending or hereafter commenced and shall be retroactive
to cover acts or omissions or alleged acts or omissions which heretofore have
taken place.
13.13 EFFECT
OF
WAIVER. The failure of any party at any time or times to require performance
of
any provision of this Agreement will in no manner affect the right to enforce
the same. The waiver by any party of any breach of any provision of this
Agreement will not be construed to be a waiver by any such party of any
succeeding breach of that provision or a waiver by such party of any breach
of
any other provision.
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13.14 ENFORCEMENT.
Should it become necessary for any party to institute legal action to enforce
the terms and conditions of this Agreement, the successful party will be awarded
reasonable attorneys’ fees at all trial and appellate levels, expenses and
costs. Any suit, action or proceeding with respect to this Agreement shall
be
brought in the courts of Broward County in the State of Florida or in the U.S.
District Court for the Southern District of Florida. The parties hereto hereby
accept the exclusive jurisdiction of those courts for the purpose of any such
suit, action or proceeding.
Venue
for
any such action, in addition to any other venue permitted by statute, will
be
Broward Count, Florida. The parties hereto hereby irrevocably waive, to the
fullest extent permitted by law, any objection that any of them may now or
hereafter have to the laying of venue of any suit, action of proceeding arising
out of or relating to this Agreement or any judgment entered by any court in
respect thereof brought in Broward County, Florida, and hereby further
irrevocably waive any claim that any suit, action or proceeding brought in
Broward County, Florida, has been brought in an inconvenient forum.
The
parties hereto acknowledge and agree that any party’s remedy at law for a breach
or threatened breach of any of the provisions of this Agreement would be
inadequate and such breach or threatened breach shall be per se deemed as
causing irreparable harm to such party. Therefore, in the event of such breach
or threatened breach, the parties hereto agree that, in addition to any
available remedy at law, including but not limited to monetary damages, an
aggrieved party, without posting any bond, shall be entitled to obtain, and
the
offending party agrees not to oppose the aggrieved party’s request for,
equitable relief in the form of specific enforcement, temporary restraining
order, temporary or permanent injunction, or any other equitable remedy that
may
then be available to the aggrieved party.
IN
WITNESS WHEREOF,
this
Agreement is dated as of the day and year first above written.
21st
CENTURY HOLDING COMPANY
By: /s/
Xxxxxx X. Xxxxxx
Name:
XXXXXX
X. XXXXXX
Title: PRESIDENT
and CHAIRMAN
THE
INDEMNITEE
/s/ Xxxxx X. Prygelski
XXXXX
X.
PRYGELSKI
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