Exhibit 10.16
INDEMNITY AND RELEASE AGREEMENT
This Indemnity and Release Agreement (the "Agreement") is entered into
as of the16th day of February 2004, by and among P.D.C. Innovative Industries,
Inc., a Nevada corporation ("PDC"), Xxxxx' Ribs, Inc., a Florida corporation and
wholly-owned subsidiary of PDC ("RRI"), and Fern Xxxxxxx Xxxxxxx ("Xxxxxxx").
WHEREAS, concurrent with the execution of this Agreement by all of the
parties hereto, Xxxxxxx is waiving any and all accrued salary, if any, which may
be due and owing to her by PDC and/or any subsidiary thereof, any and all other
compensation, if any and however characterized, which may be due and owing to
Xxxxxxx by PDC and/or any subsidiary thereof, and waiving the repayment of any
and all loans (including principal and interest thereon), if any, accrued
expenses, and all other debt, if any, however characterized, which may be due
and owing to Xxxxxxx or previously made by Xxxxxxx to PDC and/or any subsidiary
thereof which have not been repaid as of the date hereof (collectively, the
"Waiver");
NOW THEREFORE, in consideration of such Waiver by Xxxxxxx, and for such
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged by each of PDC and RRI, each of PDC and RRI agree jointly
and severally to:
Indemnify and hold harmless Xxxxxxx, and her personal representatives,
heirs, successors and assigns for a period of three (3) years following the
execution of this Agreement from and against any and all claims, damages and
liabilities, including reasonable attorneys' fees and costs in connection with
and/or arising from any and all claims, actions and/or proceedings that may be
asserted or commenced by any person(s) and/or entity/entities against Xxxxxxx
and/or her personal representatives, heirs, successors and assigns in connection
with and/or relating in any manner whatsoever to PDC and/or any subsidiary
thereof, and/or its/their past, present and/or future business and operations
and/or her association therewith in any and all capacities whatsoever
(including, but not limited to, any officer, director and/or employee
position(s)), subject to the indemnification provisions, if any, in: (x) PDC's
Certificate of Incorporation, as amended, and Bylaws, as amended, and as
otherwise provided by applicable law; and (y) RRI's Articles of Incorporation,
as amended, Bylaws, and as otherwise provided by applicable law.
Hereby remise, release, acquit, satisfy, and forever discharge Xxxxxxx
and her personal representatives, heirs, successors and assigns, as the case may
be, of and 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 each of PDC, RRI and each of their
respective subsidiaries ever had, now has, or hereafter can, shall or may have,
and/or which any personal representative, successor, heir or assign of which
each of PDC, RRI and each of their respective subsidiaries ever had, now has, or
hereafter can, shall or may have, against Xxxxxxx, and/or her personal
representatives, heirs, successors and assigns, as the case may be, for, upon or
by reason of any matter, cause or thing whatsoever, from the beginning of the
world to the date hereof in connection with and/or relating
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in any manner whatsoever to PDC, RRI and each of their respective subsidiaries,
and/or its/their past, present and/or future business and operations and/or her
association therewith in any and all capacities whatsoever (including, but not
limited to, any officer, director and/or employee position(s)), and any and all
known and unknown, seen and unforeseen claims and damages and the consequences
thereof, resulting from her association with PDC and or any of its subsidiaries
in any capacity whatsoever (including, but not limited to, any officer, director
and/or employee position(s)), subject to the indemnification provisions, if any,
in: (x) PDC's Certificate of Incorporation, as amended, and Bylaws, as amended,
and as otherwise provided by applicable law; and (y) RRI's Articles of
Incorporation, as amended, Bylaws, and as otherwise provided by applicable law.
This Agreement shall inure to the benefit of and be binding upon each
of the parties hereto and their respective personal representatives, heirs,
successors and assigns, as the case may be. Each of the parties hereto hereby
agree that this Agreement and each of PDC's and RRI's respective obligations
hereunder shall not be assignable without the prior written consent of all of
the other parties hereto, which consent may be withheld in each of such other
parties' sole discretion and without any liability to any such party.
Each of PDC and RRI hereto represents and warrants that it has not
previously assigned, transferred or purported to assign or transfer to any
person and/or entity any claim of any type whatsoever herein released and/or
discharged; claims herein released and/or discharged constitute all the matters
which have been, are, or could be asserted now or in the future by each of PDC
and RRI against Xxxxxxx.
This Agreement shall be governed in all respects solely by the laws of
the State of Florida without respect to conflict or choice of law principles.
Jurisdiction and venue in connection with any action and/or proceeding relating
to or arising out of this Agreement shall be solely in the federal and/or state
courts located in Broward County, Florida. In the event of any action and/or
proceeding relating hereto or arising hereunder, the parties hereto agree to
submit any such action and/or proceeding solely to the exclusive jurisdiction
and venue of the federal and/or state courts located in Broward County, Florida.
Each of the parties hereto willingly and knowingly waives his/her/its right to a
trial by jury in any such action and/or proceeding. The prevailing party in any
such action and/or proceeding shall be entitled to recover his/her/its
reasonable attorney's fees and costs from the other party.
In the event one or more of the provisions of this Agreement shall for
any reason be held invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect the validity,
legality and enforceability of any other provision hereof, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision(s) had
never been contained herein, provided that this Agreement as so modified
preserves the basic intent of the parties.
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As each of the parties hereto has had the opportunity to review this
Agreement and its terms and conditions with their respective counsel, the rule
of construction that ambiguities shall be construed against the drafter shall
not be applicable.
This Agreement may be executed in counterparts and via telecopier,
which when taken together shall constitute a single agreement.
Each of the undersigned have hereunto executed this Agreement as of the
date set forth above.
P.D.C. Innovative Industries, Inc., Xxxxx' Ribs, Inc.,
a Nevada corporation a Florida corporation
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxx Xxxxx
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Xxxxx Xxxxxxxx, Chief Executive Officer Xxxx Xxxxx, President
/s/ Fern Xxxxxxx Xxxxxxx
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Fern Xxxxxxx Xxxxxxx
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