EXHIBIT 10.4
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is dated as of
September __, 1998, 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 ____________________________, whose
residence is _____________________________ (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
indemnify 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 an 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 attorney's 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 attorney's
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.
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
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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 any 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 to 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.
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
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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 EXPENSES. 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 of 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.
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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.
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. In 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
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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.
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.
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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 Indemnitee'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.
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 indemnified 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.
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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.
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 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. INDEMNIFICATION 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 addresses 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-Laws or any statute, agreement, vote of shareholders or
otherwise.
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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
unenforceable in any respect, this Agreement shall be reformed, construed and
enforced as if such invalid, illegal or unenforceable provision had never been
contained herein.
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.
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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.
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 County, 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 or
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.
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IN WITNESS WHEREOF, this Agreement has been duly signed by the parties
hereto on the day and year first above written.
21ST CENTURY HOLDING COMPANY
By:
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Name:
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Title:
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THE INDEMNITEE:
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XXXXXX X. XXXXXX
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