Exhibit 10.19
Rev. 11/9/89
OFFICER'S
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made as of the day of , 19
between Reflectone, Inc., a Florida corporation ("Corporation"),
and ("Officer").
WITNESSETH THAT:
WHEREAS, Officer is an officer of the Corporation and ln such
capacity is performing a valuable service; and
WHEREAS, the Corporation's Bylaws (the "Bylaws") provide for the
indemnification of the officers, directors, agents and employees
of the Corporation to the maximum extent authorized by Section
607.014 of Florida Statutes Annotated, as amended to date (the
"State Statute"); and
WHEREAS, such Bylaws and the State Statute specifically provide
that they are not exclusive, and contemplate that contracts may
be entered into between Corporation and its officers with respect
to indemnification of such officers and
WHEREAS, in accordance with the authorization provided by the
State Statute, the Corporation has purchased and presently
maintains a policy of directors and officers liability insurance
("D & O Insurance"), covering certain liabilities which may be
incurred by its directors and officers in the performance of
their services for the Corporation; and
WHEREAS, recent developments with respect to the terms and
availability of D & O Insurance have raised questions concerning
the adequacy and reliability of the protection afforded to
officers thereby and under the Bylaws and State Statute; and
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WHEREAS, in order to resolve such questions and thereby induce
Officer to continue to serve as an officer of the Corporation,
and to otherwise provide services to the Corporation, the
Corporation has determined and agreed to enter into this contract
with Officer;
NOW, THEREFORE, in consideration of Officer's continued service
as an officer, and in such other capacities as Officer shall
render services to the Corporation, after the date hereof, the
parties hereto agree as follows:
1. Indemnity of Officer. The Corporation hereby agrees to hold
harmless and indemnify Officer to the full extent authorized or
permitted by the provisions of subsections (1) through (6) and
(8) of the State Statute, or by any amendment thereof or other
similar statutory provision authorizing or permitting such
indemnification which is adopted after the date hereof.
2. Maintenance of Insurance and Self Insurance.
(a) Subject only to the provisions of Section 2(b) hereof,
the Corporation hereby agrees that, so long as Officer shall
continue to serve as an officer of the Corporation (or shall
continue at the request of the Corporation to serve as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise), and
thereafter so long as Officer shall be subject to any
possible claim or threatened, pending or completed action,
suit or proceeding, whether civil, criminal or
investigative, by reason of the fact that Officer was an
officer of the Corporation (or served in any of said other
capacities), the Corporation will purchase and maintain in
effect for the benefit of Officer one or more valid, binding
and enforceable policy or policies of D & O Insurance
providing, in all respects, coverage at least comparable to
that presently provided pursuant to the policy of D & O
Insurance currently maintained in force and effect by the
Corporation (the "Insurance Policy").
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(b) The Corporation shall not be required to maintain said
policy or policies of D & O Insurance in effect if said
insurance is not reasonably available or if, in the
reasonable business judgment of the Board of Directors,
either (i) the premium cost for such insurance is
substantially disproportionate to the amount of coverage, or
(ii) the coverage provided by such insurance is so limited
by exclusions that there is insufficient benefit from such
insurance.
(c) In the event the Corporation does not purchase and
maintain in effect said policy or policies of D & O
Insurance pursuant to the provisions of Section 2(b) hereof,
the Corporation agrees to hold harmless and indemnify
Officer to the full extent of the coverage which would
otherwise have been provided for the benefit of Officer
pursuant to the Insurance Policy.
3. Additional Indemnity. Subject only to the exclusions set
forth in Section 4 hereof, and in addition to the indemnity
provided in Sections 1 and 2(c) hereof, the Corporation hereby
further agrees to hold harmless and indemnify Officer against any
and all expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred
by Officer in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (including an action by or in the
right of the Corporation) to which Officer is, was or at any time
becomes a party, or is threatened to be made a party, by reason
of the fact that Officer is, was or at any time becomes an
officer, employee or agent of the Corporation, or is or was
serving or at any time serves at the request of the Corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise.
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4. Limitations on Additional Indemnity. No indemnity pursuant
to Section 3 hereof shall be paid by the Corporation:
(a) In respect of expenses, judgments and settlement
amounts to the extent attributable to the recovery of
remuneration paid or other financial benefit provided to
Officer by the Corporation if it shall be determined by a
final judgment or other final adjudication that such
remuneration or financial benefit was paid or provided in
violation of Officer's duties and obligations to the
Corporation;
(b) On account of any suit in which judgment is rendered
against Officer for an accounting of profits, made from the
purchase or sale by Officer of securities of the
Corporation, pursuant to the provisions of Section 16(b) of
the Securities Exchange Act of 1934 and amendments thereto
or similar provisions of any federal, state or local
statutory law, or on account of any payment by Officer to
the Corporation in respect of any claim for such an
accounting;
(c) On account of Officer's conduct if it shall be
determined by a final judgment or other final adjudication
to have been knowingly fraudulent, deliberately dishonest,
or grossly negligent, or to have constituted willful
misconduct; or
(d) If a final decision by a Court having jurisdiction in
the matter shall determine that such indemnity is prohibited
by the State Statute or otherwise is not lawful.
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5. Contribution. If the indemnification provided in Sections
1, 2(c) and 3 is unavailable and may not be paid to Officer for
any reason other than those set forth in paragraphs (a), (b) and
(c) of Section 4, or as a result of prohibitions set forth in the
State Statute, then in respect of any threatened, pending or
completed action, suit or proceeding in which the Company is
jointly liable with Officer (or would be if joined in such
action, suit or proceeding), the Company shall contribute to the
amount of expenses, judgments, fines and settlements paid or
payable by Officer in such proportion as is appropriate to
reflect (i) the relative benefits received by the Company on the
one hand and Officer on the other hand from the transaction from
which such action, suit or proceeding arose, and (ii) the
relative fault of the Company on the one hand and of Officer on
the other in connection with the events which resulted in such
expenses, judgments, fines or settlement amounts, as well as any
other relevant equitable considerations. The relative fault of
the Company on the one hand and of Officer on the other shall be
determined by reference to, among other things, the parties'
relative intent, knowledge, access to information and opportunity
to correct or prevent the circumstances resulting in such
expenses, judgments, fines or settlement amounts. The Company
agrees that it would not be just and equitable if contribution
pursuant to this Section 5 were determined by pro rata allocation
or any other method of allocation which does not take account of
the foregoing equitable considerations.
6. Continuation of Obligations. All agreements and obligations
of the Corporation contained herein shall continue during the
period Officer is an officer, employee or agent of the
Corporation (or is serving at the request of the Corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise), and shall
continue thereafter for so long as Officer shall be subject to
any possible claim or threatened, pending or completed action,
suit or proceeding, whether civil, criminal or investigative, by
reason of the fact that Officer was an officer of the Corporation
or serving in any other capacity referred to herein.
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7. Notification and Defense of Claim. Promptly after receipt
by Officer of notice of the commencement of any action, suit or
proceeding, Officer will, if a claim in respect thereof is to be
made against the Corporation under this Agreement (other than
under Section 1 hereof), notify the Corporation of the
commencement thereof, but the omission so to notify the
Corporation will not relieve it from any liability which it may
have to Officer otherwise than under this Agreement. With
respect to any such action, suit or proceeding as to which
Officer so notifies the Corporation:
(a) The Corporation will be entitled to participate therein
at its own expense;
(b) The Corporation will directly pay, or promptly
reimburse Officer for, all expenses reasonably incurred by
Officer in the defense thereof; and
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(c) Except as otherwise provided below, the Corporation may
assume the defense thereof. After notice from the
Corporation to Officer of its election so to assume such
defense, the Corporation will not be liable to Officer under
this Agreement for any legal or other expenses subsequently
incurred by Officer in connection with the defense thereof,
other than reasonable costs of investigation or as otherwise
provided below. Officer shall have the right to employ his
separate counsel in such action, suit or proceeding, but the
fees and expenses of such counsel incurred after notice from
the Corporation of its assumption of the defense thereof
shall be at the expense of Officer unless (i) the employment
of counsel by Officer has been authorized by the
Corporation, (ii) counsel designated by the Corporation to
conduct such defense shall not be reasonably satisfactory to
Officer, or (iii) the Corporation shall not in fact have
employed counsel to assume the defense of such action, in
each of which cases the fees and expenses of such counsel
shall be at the expense of the Corporation. For the
purposes of clause (ii) above, Officer shall be entitled to
determine that counsel designated by the Corporation is not
reasonably satisfactory if, among other reasons, Officer
shall have been advised by qualified counsel that, because
of actual or potential conflicts of interest in the matter
between Officer, other officers or directors similarly
indemnified by the Corporation, and/or the Corporation,
representation of Officer by counsel designated by the
Corporation is likely to materially and adversely affect
Officer's interests or would not be permissible under
applicable canons of legal ethics.
The Corporation shall not be liable to indemnify Officer
under this Agreement for any amounts paid in settlement of any
action or claim effected without its written consent. The
Corporation shall not settle any action or claim in any manner
which would impose any penalty or limitation on Officer without
Officer's written consent. Neither the Corporation nor Officer
will unreasonably withhold their consent to any proposed
settlement.
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8. Repayment of Expenses. Officer agrees to reimburse the
Corporation for all reasonable expenses paid by the Corporation
in defending any civil or criminal action, suit or proceeding
against Officer in the event, and only to the extent, that it
shall be ultimately determined that Officer is not entitled to be
indemnified by the Corporation for such expenses under the
provisions of the State Statute, the Bylaws, this Agreement or
otherwise.
9. Enforcement.
(a) The Corporation expressly confirms and agrees that it
has entered into this Agreement and assumed the obligations
imposed on it hereby in order to induce Officer to continue
as an officer of the Corporation and to otherwise provide
such services to the Corporation as may be provided by
Officer from time to time, and acknowledges that Officer is
relying upon this Agreement in continuing to serve in such
capacity or capacities.
(b) In the event Officer is required to bring any action to
enforce rights or to collect moneys due under this Agreement
and is successful in such action, the Corporation shall
reimburse Officer for all of Officer's reasonable fees and
expenses in bringing and pursuing such action.
10. Separability. Each of the provisions of this Agreement is a
separate and distinct agreement and independent of the others, so
that if any provision hereof shall be held to be invalid or
unenforceable in whole or in part for any reason, such invalidity
or unenforceability shall not affect the validity or
enforceability of the other provisions hereof.
11. Governing Law; Successors; Amendment and Termination.
(a) This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Florida.
(b) This Agreement shall be binding upon Officer and the
Corporation, its successors and assigns, and shall inure to
the benefit of Officer, his heirs, personal representatives
and assigns and to the benefit of the Corporation, its
successors and assigns.
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(c) No amendment, modification, termination or cancellation
of this Agreement shall be effective unless in writing
signed by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
REFLECTONE, INC.
___________________ By: ____________________
Officer Its
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