EXHIBIT 10.39
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made and entered into
EFFECTIVE as of the _____ day of ________________, _____, by and between
_______________ (the "Indemnitee"), and JLM INDUSTRIES, INC., a Delaware
corporation (the "Corporation").
W I T N E S S E T H:
WHEREAS, it is essential to the Corporation to retain and attract as
directors, officers and key employees the most capable persons available; and
WHEREAS, the substantial increase in corporate litigation subjects
directors and officers to expensive litigation risks at the same time that the
availability of directors' and officers' liability insurance is severely
limited; and
WHEREAS, in addition, the indemnification provisions of the Delaware
General Corporation Law (the "DGCL," as further defined below) expressly provide
that such provisions are non-exclusive; and
WHEREAS, the Indemnitee does not regard the protection available under the
Certificate of Incorporation and Bylaws of the Corporation and insurance, if
any, as adequate in the present circumstances, and considers it necessary to
condition the Indemnitee's agreement to serve as a Director and/or officer of
the Corporation to have appropriate contractual rights to indemnification from
the Corporation, and the Corporation desires the Indemnitee to serve in such
capacity or capacities and to have such rights as set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained in this Agreement, it is hereby agreed as follows:
1. DEFINITIONS.
For the purposes of this Agreement, the terms below shall have the
indicated meanings except where the context in which such a term is used in this
Agreement clearly indicates otherwise:
1. AFFILIATE means, as to any Person (the "first Person"), any other
Person that, either directly or indirectly, controls, is controlled by or
is under common control with the first Person.
2. AGREEMENT OF INDEMNITY means the agreement provided for by Section
3(e)(i) of this Agreement.
3. ASSOCIATE of a Person means a director, officer, employee, agent,
consultant, independent contractor, stockholder or partner of such Person.
4. BOARD means the Board of Directors of the Corporation.
5. EVALUATION DATE means, as to any Indemnification Notice, the date
thirty (30) calendar days after the date of receipt by the Board of such
Indemnification Notice.
6. EXPENSE means any cost or expense (other than a Liability), including
but not limited to Legal Fees, and including interest on any of the
foregoing, reasonably paid or required to be paid by the Indemnitee on
account of or in connection with any Proceeding.
7. EXPENSE ADVANCE REQUEST means the request provided for by Section
3(d)(ii) of this Agreement.
8. DGCL means the Delaware General Corporation Law, and any successor
statute.
9. INDEMNIFICATION NOTICE means the notice provided for by Section 3(a) of
this Agreement.
10. LEGAL FEES means the fees and disbursements of legal counsel, legal
assistants, experts, accountants, consultants and investigators, before
and at trial, in appellate or bankruptcy proceedings and otherwise.
11. LIABILITY means any amount (other than an Expense), including any
assessment, fine, penalty, excise or other tax, and including interest on
any of the foregoing, paid or required to be paid by the Indemnitee on
account of or in connection with any Proceeding.
12. NONINDEMNIFIABLE CONDUCT means any act or omission to act of the
Indemnitee material to a Proceeding as to which indemnification under this
Agreement is sought, which act or omission is determined to involve:
1. a violation of criminal law, unless the Indemnitee had reasonable
cause to believe such conduct was lawful or had no reasonable cause
to believe such conduct was unlawful;
2. a transaction from which the Indemnitee derived an improper
personal benefit;
3. willful misconduct or a conscious disregard for the best
interests of the Corporation (when indemnification is sought in a
Proceeding by or in the right of the Corporation to procure a
judgment in favor of the Corporation or when indemnification is
sought in a Proceeding by or in the right of a stockholder); or
4. conduct as to which then applicable law prohibits
indemnification.
13. PERSON means any natural person or individual, or any artificial
person, including any corporation, association, unincorporated
organization, partnership, joint venture, firm, company, business, trust,
business trust, limited liability company, government, public body or
authority, governmental agency or department, and any other entity.
14. PROCEEDING means any threatened, pending or completed claim, demand,
inquiry, investigation, action, suit or proceeding, whether formal or
informal, or whether brought by or in the right of the Corporation,
whether brought by a governmental body, agency or representative or by any
other Person, and whether of a civil, criminal, administrative or
investigative nature, and includes any Third Party Proceeding.
15. THIRD PARTY PROCEEDING means any Proceeding against the Indemnitee by,
or any Proceeding by the Indemnitee against, any third party.
2. GRANT OF INDEMNITY.
The Corporation shall indemnify and hold harmless the Indemnitee in respect of:
1. any and all Liabilities that may be incurred or suffered by the
Indemnitee as a result of or arising out of or in connection with
prosecuting, defending, settling or investigating any Proceeding in which
the Indemnitee may be or may have been involved as a party or otherwise,
arising out of the fact that the Indemnitee is or was an Associate of the
Corporation or any of its Affiliates, or served as an Associate in or for
any Person at the request of the Corporation (including without limitation
service as a trustee or in any fiduciary or similar capacity for or in
connection with any employee benefit plan maintained by the Corporation or
for the benefit of any of the employees of the Corporation or any of its
Affiliates, or service on any trade association, civic, religious,
educational or charitable boards or committees);
2. any and all Liabilities that may be incurred or suffered by the
Indemnitee as a result of or arising out of or in connection with any
attempt (regardless of its success) by any Person to charge or cause the
Indemnitee to be charged with wrongdoing or with financial responsibility
for damages arising out of or incurred in connection with the matters
indemnified against in this Agreement; and
3. any and all Expenses that may be incurred or suffered by the Indemnitee
as a result of or arising out of or in connection with any matter referred
to in the preceding two paragraphs.
3. CLAIMS FOR INDEMNIFICATION; PROCEDURES
1. SUBMISSION OF CLAIMS. Whenever any Proceeding shall occur as to which
indemnification under this Agreement may be sought by the Indemnitee, the
Indemnitee shall give the Corporation written notice thereof as promptly
as reasonably practicable after the Indemnitee has actual knowledge of
such Proceeding (an "Indemnification Notice"). The Indemnification Notice
shall specify in reasonable detail the facts known to the Indemnitee
giving rise to such Proceeding, the positions and allegations of the
parties to such Proceeding and the factual bases therefor, and the amount
or an estimate of the amount of Liabilities and Expenses reasonably
expected to arise therefrom. A delay by the Indemnitee in providing such
notice shall not relieve the Corporation from its obligations under this
Agreement unless and only to the extent that the Corporation is materially
and adversely affected by the delay. If the Indemnitee desires to
personally retain the services of an attorney in connection with any
Proceeding, the Indemnitee shall notify the Corporation of such desire in
Indemnification Notice relating thereto, and such notice shall identify
the counsel to be retained.
2. PRESUMPTION OF RIGHT TO INDEMNIFICATION. Upon submission of an
Indemnification Notice to the Corporation, the Board shall review such
Notice and endeavor to determine whether the Indemnitee is entitled to
indemnification under this Agreement with respect to the matters described
therein. As of the Evaluation Date, unless the Board has reasonably
determined that the Indemnitee is not entitled to indemnification under
this Agreement with respect to the matters described in such
Indemnification Notice, there shall be created a presumption that the
Indemnitee is entitled to such indemnification. Such presumption shall
continue, and indemnification and payment shall be provided under this
Agreement, unless and until such time as the Board shall reasonably
determine that the Indemnitee is not entitled to indemnification under
this Agreement. This paragraph is procedural only and shall not affect the
right of the Indemnitee to indemnification under this Agreement. Any
determination by the Board that the Indemnitee is not entitled to
indemnification under this Agreement and any failure to make any payments
requested in an Indemnification Notice or otherwise shall be subject to
judicial review.
3. LIMITATION ON ADVERSE DETERMINATIONS BY THE BOARD. Subject to
applicable law, no determination by the Board that the Indemnitee is not
entitled to indemnification or payment under this Agreement shall be given
effect under this Agreement unless (i) such
determination is based upon clear and convincing evidence, (ii) such
determination is made by a vote of a majority of the Corporation's
Directors at a meeting at which a quorum is present, and (iii) the
Indemnitee is given written notice of such meeting at least ten days in
advance of such meeting and given a meaningful opportunity to present at
such meeting information in support of the claim for indemnification or
payment.
4. EXPENSES.
1. With respect to any Proceeding as to which the Indemnitee is entitled
(or presumed entitled) to indemnification under this Agreement, Expenses
incurred or required to be incurred by the Indemnitee in connection with
such Proceeding, but prior to the final disposition of such Proceeding,
shall be paid or caused to be paid by the Corporation to or on behalf of
the Indemnitee notwithstanding that there has been no final disposition of
such Proceeding, to the extent provided in the following paragraph.
2. For purposes of determining whether to authorize advancement of
Expenses pursuant to the preceding paragraph, the Indemnitee shall from
time to time submit to the Board a statement requesting advancement of
Expenses (an "Expense Advance Request." Each Expense Advance Request shall
set forth (i) in reasonable detail, all Expenses already incurred or
required to be incurred by the Indemnitee and the reason therefor, and
(ii) an undertaking by the Indemnitee, in form and substance reasonably
satisfactory to the Corporation, to repay all the Expenses set forth
therein if it shall ultimately be determined that the Indemnitee is not
entitled to be indemnified with respect to such Proceeding by the
Corporation under this Agreement or otherwise. Upon receipt of an Expense
Advance Request satisfying the foregoing requirements, as to each Expense
set forth therein, unless the Board reasonably determines that the
Indemnitee is not entitled to payment of such Expense, the Corporation
shall, within 10 business days thereafter (or, if later as to any Expense
yet to be incurred by the Indemnitee, on or before the date three business
days prior to the date such Expense is required to be paid by the
Indemnitee), pay or cause to be paid by the Corporation the amount of such
Expense to or on behalf of the Indemnitee. No security shall be required
in connection with any Expense Advance Request, and the ability or
inability of the Indemnitee to make repayment shall not be considered in
any evaluation of an Expense Advance Request.
5. RIGHTS TO DEFEND OR SETTLE; THIRD PARTY PROCEEDINGS, ETC.
1. If the Corporation at any time provides the Indemnitee with an
agreement in writing, in form and substance reasonably satisfactory to the
Indemnitee and the Indemnitee's counsel, agreeing to indemnify, defend or
prosecute and hold the Indemnitee harmless from all Liabilities and
Expenses arising from any Third Party Proceeding (an "Agreement of
Indemnity"), and demonstrating to the reasonable satisfaction of the
Indemnitee the Corporation's financial wherewithal to accomplish such
indemnification, the Corporation may thereafter at its own expense
undertake full responsibility for and control of the defense or
prosecution of such Third Party Proceeding. The Corporation may contest or
settle any such Third Party Proceeding for money damages on such terms and
conditions as it deems appropriate but shall be obligated to consult in
good faith with the Indemnitee and not to contest or settle any Third
Party Proceeding involving injunctive or equitable relief against or
affecting the Indemnitee or the Indemnitee's properties or assets without
the prior written consent of the Indemnitee, such consent not to be
unreasonably withheld. The Indemnitee may participate at the Indemnitee's
own expense and with the Indemnitee's own counsel in defense or
prosecution of a Third Party Proceeding controlled by the Corporation.
Such participation shall not relieve the Corporation of its obligation to
indemnify the Indemnitee with respect to such Third Party Proceeding under
this Agreement.
2. If, as of ten (10) business days after the receipt by the Board of an
Indemnification Notice, the Corporation has not delivered to the
Indemnitee a reasonably satisfactory Agreement of Indemnity and evidence
of financial wherewithal as contemplated by the preceding paragraph, the
Indemnitee may contest or settle the Third Party Proceeding on such terms
as it sees fit but shall not reach a settlement with respect to the
payment of money damages without consulting in good faith with the
Corporation. As to any Third Party Proceeding as to which the Indemnitee
is entitled (or presumed entitled) to indemnification under this
Agreement, unless and until such time as the Corporation at its own
expense undertakes full responsibility for and control of the defense or
prosecution of such Third Party Proceeding, the Indemnitee shall be
entitled to indemnification under this Agreement with respect any Expenses
of the Indemnitee, including Legal Fees, relating to such Third Party
Proceeding. Notwithstanding the foregoing, the Corporation may at any time
deliver to the Indemnitee a reasonably satisfactory Agreement of Indemnity
and evidence of financial wherewithal as contemplated by the preceding
paragraph, and thereafter at its own expense undertake full responsibility
for and control of the defense or prosecution of such Third Party
Proceeding.
3. All Expenses incurred in defending or prosecuting any Third Party
Proceeding shall be paid in accordance with the procedure set forth in
Section 3(d) of this Agreement.
4. If, by reason of any Third Party Proceeding as to which the Indemnitee
is entitled (or presumed entitled) to indemnification under this
Agreement, a lien, attachment, garnishment or execution is placed upon any
of the property or assets of the Indemnitee, the Corporation shall
promptly furnish a reasonably satisfactory indemnity bond to obtain the
prompt release of such lien, attachment, garnishment or execution.
5. The Corporation may participate at its own expense and with its own
counsel in defense or prosecution of any Third Party Proceeding, but any
such participation shall not relieve the Corporation of its obligations to
indemnify the Indemnitee under this Agreement. Any election by the
Corporation to at its own expense undertake full responsibility for and
control of the defense or prosecution of a Third Party Proceeding shall
not affect the entitlement of the Indemnitee to indemnification under this
Agreement.
6. The Indemnitee shall cooperate in the defense or prosecution of any
Third Party Proceeding controlled by the Corporation.
7. The parties shall cooperate in good faith and use reasonable efforts to
mitigate and minimize any Expense or Liability.
6. CHOICE OF COUNSEL. In all matters as to which indemnification is or may be
available to the Indemnitee under this Agreement, the Indemnitee shall be
free to choose and retain counsel of the Indemnitee's choice, provided
that the Indemnitee shall secure the prior written consent of the
Corporation as to such selection, which consent shall not be unreasonably
withheld.
7. REPAYMENT. Notwithstanding anything to the contrary, if the Corporation
has paid or advanced any Liability or Expense under this Agreement
(including pursuant to an Expense Advance Request) to, on behalf of or for
the benefit of the Indemnitee and it is determined by a court of competent
jurisdiction, in a decision which the Indemnitee does not properly appeal
or which decision is affirmed on appeal, that the Indemnitee's actions or
omissions constitute Nonindemnifiable Conduct or that the Indemnitee
otherwise is not or was not entitled to such payment or advance or that
the Indemnitee is required to reimburse or repay the Corporation for the
amount thereof, the Indemnitee shall and does hereby undertake in such
circumstances to reimburse and repay the Corporation for any
and all such amounts paid, which thereupon shall be deemed and shall be
and become the legal, valid and enforceable debt and obligation of the
Indemnitee to the Corporation.
8. REPRESENTATIONS AND AGREEMENTS OF THE CORPORATION.
1. AUTHORITY. The Corporation represents, covenants and agrees that it has
the corporate power and authority to enter into this Agreement and to
carry out its obligations under this Agreement. The execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated by this Agreement have been duly authorized by the Board.
This Agreement is a valid and binding obligation of the Corporation and is
enforceable against the Corporation in accordance with its terms.
2. NONCONTESTABILITY. The Corporation represents, covenants and agrees
that it will not initiate, and will use its best efforts to cause each of
its Affiliates not to initiate, any action, suit or proceeding challenging
the validity or enforceability of this Agreement.
3. GOOD FAITH JUDGMENT. The Corporation represents, covenants and agrees
that it will exercise good faith and its best reasonable judgment in
determining the entitlement of the Indemnitee to indemnification under
this Agreement.
4. RELATIONSHIP OF THIS AGREEMENT TO OTHER INDEMNITIES.
1. NONEXCLUSIVITY.
1. This Agreement and all rights granted to the Indemnitee under
this Agreement are in addition to and are not deemed to be exclusive
with or of any other rights that may be available to the Indemnitee
under any Certificate of Incorporation, bylaw, statute, agreement,
or otherwise.
2. The rights, duties and obligations of the Corporation and the
Indemnitee under this Agreement do not limit, diminish or supersede
the rights, duties and obligations of the Corporation and the
Indemnitee with respect to the indemnification afforded to the
Indemnitee under any liability insurance, the DGCL, or under the
Bylaws or the Certificate of Incorporation of the Corporation. In
addition, the Indemnitee's rights under this Agreement will not be
limited or diminished in any respect by any amendment to the Bylaws
or the Certificate of Incorporation of the Corporation.
2. AVAILABILITY, CONTRIBUTION, ETC.
1. The availability or nonavailability of indemnification by way of
insurance policy, Certificate of Incorporation, bylaw, vote of
stockholders, or otherwise from the Corporation to the Indemnitee
shall not affect the right of the Indemnitee to indemnification
under this Agreement, provided that all rights under this Agreement
shall be subject to applicable statutory provisions in effect from
time to time.
2. Any funds actually received by the Indemnitee by way of
indemnification or payment from any source other than from the
Corporation under this Agreement shall reduce any amount otherwise
payable to the Indemnitee under this Agreement.
3. If the Indemnitee is entitled under any provision of this
Agreement to indemnification by the Corporation for some Liabilities
or Expenses but not as to others, or for some or a portion thereof
actually incurred by the Indemnitee or amounts actually paid in
settlement by the Indemnitee in the investigation, defense, appeal
or settlement of any Proceeding for which indemnification is sought
under this Agreement but not for the total amount thereof, the
Corporation shall indemnify the Indemnitee for the portion thereof
to which the Indemnitee is entitled.
4. If for any it is determined by a court of competent jurisdiction,
in a decision which neither party to this Agreement properly appeals
or which decision is affirmed on appeal, that the indemnity provided
under this Agreement is unavailable, or if for any reason the
indemnity under this Agreement is insufficient to hold the
Indemnitee harmless as provided in this Agreement, then, in any such
event, the Corporation shall contribute to the amounts paid or
payable by the Indemnitee in such proportion as equitably reflects
the relative benefits received by, and fault of, the Indemnitee and
the Corporation and its Affiliates and its and their respective
Associates.
3. COORDINATION WITH INSURANCE. The obligation of the Corporation under
this Agreement is not conditioned in any way on any attempt, whether or
not successful, by the Indemnitee or the Corporation to collect from an
insurer any amount under any insurance policy.
5. LIMITATIONS.
In no case shall any indemnification or payment be provided or made under this
Agreement to or on behalf of or for the direct or indirect benefit of the
Indemnitee by the Corporation:
1. except as set forth in Section 6(g) of this Agreement, in any
Proceeding brought by or in the name or interest of the Indemnitee against
the Corporation;
2. except as set forth in Section 6(g) of this Agreement, in any
Proceeding brought by the Corporation against the Indemnitee, which action
is initiated at the direction of the Board; or
3. for any Nonindemnifiable Conduct.
6. MISCELLANEOUS.
1. COOPERATION. The parties to this Agreement shall execute such powers of
attorney as may be necessary or appropriate to permit participation of
counsel selected by any party hereto and, as may be reasonably related to
any such claim or action, shall provide to the counsel, accountants and
other representatives of each party access during normal business hours to
all properties, personnel, books, records, contracts, commitments and all
other business records of such other party and will furnish to such other
party copies of all such documents as may be reasonably requested
(certified, if requested).
2. FURTHER ASSURANCES. The parties to this Agreement will execute and
deliver, or cause to be executed and delivered, such additional or further
documents, agreements or instruments and shall cooperate with one another
in all respects for the purpose of carrying out the transactions
contemplated by this Agreement.
3. NOTICES. Any notice, request, demand or other communication required or
permitted to be given or made under this Agreement shall be in writing and
shall be deemed to have been duly given: upon receipt if personally
delivered; upon successful completion of transmission if transmitted by
telecopy, electronic telephone line facsimile transmission or other
similar electronic or digital transmission method; at the close of
business on the next business day after it is sent, if sent by recognized
overnight delivery service with all fees payable by the sender; or at the
close of business on the fifth business day after it is sent, if mailed,
first class mail, postage prepaid. In each case such notice, request,
demand or other communication shall be sent to:
if to the Indemnitee:
if to the Corporation: JLM Industries, Inc.
c/o Xxxx X. Xxxxx
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxx, XX 00000
With a copy to: Xxxxxxx X. Xxxxxxx
Trenam, Kemker, Scharf, Barkin,
Frye, X'Xxxxx and Xxxxxx, P.A.
000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, XX 00000
or to such other address as either party may have specified in writing to
the other using the procedures specified above in this Section 6(c).
4. GOVERNING LAW. This Agreement shall be construed pursuant to and
governed by the substantive laws of the State of Delaware (but any
provision of Delaware law shall not apply if the application of such
provision would result in the application of the law of a state or
jurisdiction other than Delaware). Delaware law shall also not apply to
the extent that application of Delaware law would cause venue to lie
otherwise than as described in paragraph 6(k) of this Agreement.
5. SEVERABILITY. Any provision of this Agreement that is determined by a
court of competent jurisdiction to be prohibited, unenforceable or not
authorized in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition, unenforceability or
non-authorization without invalidating the remaining provisions hereof or
affecting the validity, enforceability or legality of such provision in
any other jurisdiction. In any such case, such determination shall not
affect any other provision of this Agreement, and the remaining provisions
of this Agreement shall remain in full force and effect. If any provision
or term of this Agreement is susceptible to two or more constructions or
interpretations, one or more of which would render the provision or term
void or unenforceable, the parties agree that a construction or
interpretation which renders the term or provision valid shall be favored.
6. SPECIFIC ENFORCEMENT; PRESUMPTION.
1. The parties agree and acknowledge that, in the event of a breach
by the Corporation of its obligation promptly to indemnify the
Indemnitee as provided in this Agreement, or breach of any other
material provision of this Agreement, damages at law will be an
insufficient remedy to the Indemnitee. Accordingly, the parties
agree that, in addition to any other remedies or rights that may be
available to the Indemnitee, the Indemnitee shall also be entitled,
upon application to a court of competent jurisdiction, to obtain
temporary or permanent injunctions to compel specific performance of
the obligations of the Corporation under this Agreement.
2. There shall exist in any action to enforce the rights of the
Indemnitee under this Agreement a rebuttable presumption that the
Indemnitee has met the applicable standard(s) of conduct and is
therefore entitled to indemnification pursuant to this Agreement,
and the burden of proving that the relevant standards have not been
met by the Indemnitee shall be on the Corporation. Neither the
failure of the Corporation (including the Board or independent legal
counsel) prior to the commencement of such action to have made a
determination that indemnification is proper in the circumstances
because the Indemnitee has met the applicable standard of conduct,
nor an actual determination by the Corporation (including the Board
or independent legal counsel) that the Indemnitee has not met such
applicable standard of conduct, shall (X) constitute a defense to
the action, (Y) create a presumption that the Indemnitee has not met
the applicable standard of conduct, or (Z) otherwise alter the
presumption in favor of the Indemnitee referred to in the preceding
sentence.
7. COST OF ENFORCEMENT; INTEREST.
1. If either party to this Agreement engages the services of an
attorney or any other third party or in any way initiates legal
action to enforce the party's rights under this Agreement, including
but not limited to the collection of monies due, the prevailing
party in such action shall be entitled to recover all Expenses
incurred in connection therewith. Should the Indemnitee prevail,
such Expenses shall be in addition to monies otherwise due the
Indemnitee under this Agreement.
2. If any amount shall be due or payable under this Agreement
(including under an Expense Advance Request) and shall not be paid
within 30 days from the date as of which the obligation to make such
payment arises, interest shall accrue on such unpaid amount from the
date when due until it is paid in full at the rate of 2% per annum
in excess of the prime rate published from time to time in THE WALL
STREET JOURNAL in its "Money Rates" column or any similar or
successor column or feature, or such lower rate as may be required
to comply with applicable law.
8. NO ASSIGNMENT. Any claim, right, title, benefit, remedy or interest of
the Indemnitee in, to or under or arising out of or in connection with
this Agreement is personal and may not be sold, assigned, transferred,
pledged or hypothecated, but the provisions of this Agreement shall
survive the death, disability or incapacity of the Indemnitee or the
termination of the Indemnitee's service as a Director or officer of the
Corporation and shall inure to the benefit of the Indemnitee's heirs,
executors and administrators. This Agreement shall inure to the benefit of
and shall be binding upon the successors in interest and assigns of the
Corporation, including any successor corporation resulting from a merger,
consolidation, recapitalization, reorganization, sale of all or
substantially all of the assets of the Corporation, or any other
transaction resulting in the successor corporation assuming the
liabilities of the Corporation under this Agreement (by operation of law
or otherwise).
9. NO THIRD PARTY BENEFICIARIES. This Agreement is not intended to benefit
or entered into for the benefit of any third parties and, other than as
set forth in the preceding paragraph as to heirs, assignees and
successors, nothing in this Agreement, whether express or implied, is
intended or should be construed to confer upon, or to grant to, any
person, except the Corporation and the Indemnitee, any claim, right,
benefit or remedy under or because of this Agreement or any provision set
forth in this Agreement.
10. CONSTRUCTION. As used in this Agreement, (1) the word "including" is
always without limitation, and (2) words in the singular number include
words of the plural number and vice versa.
11. VENUE; PROCESS. The parties to this Agreement agree that jurisdiction
and venue in any action brought pursuant to this Agreement to enforce its
terms or otherwise with respect to the relationships between the parties
shall properly lie in and only in the Circuit Court of the State of
Florida in and for Hillsborough County (the "Selected Court") and the
parties agree that jurisdiction shall not properly lie in any other
jurisdiction provided, however, if jurisdiction does not properly lie with
the Selected Court, the parties agree that jurisdiction and venue shall
properly lie in and only in the United States District Court for the
Middle District of Florida. The parties hereby waive any objections which
they may now or hereafter have based on venue and/or forum non conveniens
and irrevocably submit to the jurisdiction of any such court in any legal
suit, action or proceeding arising out of or relating to this Agreement.
The parties further agree that the mailing by certified or registered
mail, return receipt requested, of any process required by any such court
shall constitute valid and lawful service of process against them, without
the necessity for service by any other means provided by statute or rule
of court.
12. WAIVER AND DELAY. No waiver or delay in enforcing the terms of this
Agreement or in taking any action with respect to any breach of this
Agreement shall be construed as a waiver of any subsequent breach. No
action taken by the Indemnitee shall constitute a waiver of the
Indemnitee's rights under this Agreement.
13. MODIFICATION. This Agreement contains the entire agreement of the
parties, and supersedes any prior written or oral agreement of the
parties, with respect to the subject matter hereof. This Agreement may be
modified only by an instrument in writing signed by both parties hereto.
14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be considered an original, but all of
which together shall constitute one and the same instrument.
15. HEADINGS. The headings of the various sections in this Agreement are
inserted for the convenience of the parties and shall not affect the
meaning, construction or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement EFFECTIVE as
of the date first above written.
INDEMNITEE
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Signature Date
JLM INDUSTRIES, INC.
By:
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Xxxx X. Xxxxxxxxx Date
