Exhibit 10.63
INDEMNIFICATION AGREEMENT
AGREEMENT made as of the 14th day of July, 1995, by and between PEACHES
ENTERTAINMENT CORPORATION (the "Company"), a Florida corporation, whose address
is 0000 Xxxxxxxxx Xxx, Xxxxxxx, Xxxxxxx 00000 , and XXXXX XXXX, whose office
address is 0000 Xxxxxxxxx Xxx, Xxxxxxx, Xxxxxxx 00000 (the "Indemnitee").
The Company believes that in order to induce competent persons
to continue to serve as officers and directors and to attract
and retain additional persons to serve in such capacities, it is
in the best interests of the Company to provide them with
adequate protection against inordinate risks of claims and
actions against them arising out of such service;
It believes that it is reasonable, prudent and necessary for the
Company, contractually, to obligate itself to indemnify such
persons so that they will serve or continue to serve the Company
free from undue concern that they will not be so indemnified;
and
The Indemnitee is willing to serve, to continue to serve and to
take on additional service for or on behalf of the Company on
the condition that Indemnitee be so indemnified.
IT IS, THEREFORE, AGREED:
ARTICLE I
Definitions
As used in this Agreement, the following terms shall have the following
meanings:
1.1 "Board" means the Board of Directors of the Company.
1.2 "Corporation Act" means the Florida General Corporation Act.
1.3 "Corporate Position" means the position of a person as a director or
officer of the Company.
1.4 "Company" means Peaches Entertainment Corporation.
1.5 "Disinterested Director" means a director of the Company who is not and
was not a party to the Proceeding in respect of which indemnification is sought
by Indemnitee.
1.6 "Expenses" means all reasonable attorneys' fees, retainers, court
costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, and other disbursements or expenses customarily incurred
in connection with defending, preparing to defend, investigating, or being or
preparing to be a witness in a Proceeding.
1.7 "Independent Counsel" means a law firm, or a member of a law firm which
is selected as provided under paragraph 4(c) of Section 607.014 of the
Corporation Act.
1.8 "Proceeding" means any action, suit, arbitration, alternate dispute
resolution mechanism, investigation, administrative hearing or any other
proceeding whether civil, criminal, administrative or investigative, except one
(a) initiated by Indemnitee, unless the Board of Directors consents, or (b)
pending on or before the date hereof.
ARTICLE II
Term of Agreement
This Agreement shall become effective on the date hereof and terminate upon
the later of (a) 10 years after the date that Indemnitee ceases to hold a
Corporate Position, or (b) 120 days after the final termination of (i) all
pending Proceedings in respect of which Indemnitee is granted rights of
indemnification or advancement of Expenses hereunder and (ii) any adjudication
or arbitration commenced by Indemnitee under Article VIII of this Agreement.
ARTICLE III
Services By Indemnitee, Notice of Proceedings
3.1 Services. Indemnitee agrees to serve the Company in the Corporate
Position to which he is elected, subject to his acceptance of such position.
However, Indemnitee shall have no obligation to continue in any such Position by
virtue of his execution of this Agreement.
3.2 Notice of Proceeding. Indemnitee agrees promptly to notify the Company
in writing upon being served with any summons, citation, subpoena, complaint,
indictment, information or other document relating to any Proceeding which may
be subject to indemnification or advancement of Expenses covered hereunder.
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ARTICLE IV
Indemnification
4.1 In General. Without limiting any other rights of the Company or
Indemnitee, as provided in Article IX hereof, the Company agrees to indemnify
and advance Expenses to Indemnitee as provided in this Agreement, if by reason
of Indemnitee's Corporate Position, Indemnitee is, or is threatened to be made,
a party to any threatened, pending or completed Proceeding, including any
Proceeding by or in the right of the Company, unless a judgment or other final
adjudication should establish that his actions or omissions to act were material
to the cause of action so adjudicated and constitute: (i) a violation of the
criminal law unless the Indemnitee had reasonable cause to believe his conduct
was lawful or had no reasonable cause to believe his conduct was unlawful; or
(ii) a transaction from which the Indemnitee derived an improper personal
benefit; or (iii) in the case of a director, a circumstance under which the
liability provisions of Section 607.144 of the Corporation Act are applicable;
or (iv) willful misconduct or a conscious disregard for the best interests of
the Company in a proceeding by or in the right of the Company to procure a
judgment in its favor or in a proceeding by or in the right of a shareholder.
4.2 Indemnification for Expenses of a Witness. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is, by reason of
Indemnitee's Corporate Position, a witness in any Proceeding to which Indemnitee
is not a party, Indemnitee shall be indemnified against all Expenses actually
and reasonably incurred by Indemnitee or on Indemnitee's behalf in connection
therewith.
ARTICLE V
Advancement of Expenses
The Company shall advance all reasonable Expenses which, by reason of
Indemnitee's Corporate Position, were incurred by or on Indemnitee's behalf in
connection with any threatened, pending or completed Proceeding within 20 days
after receipt by the Company of (a) a statement or statements from Indemnitee
requesting such advance or advances, whether before or after final disposition
of such Proceeding and (b) an undertaking by or on behalf of Indemnitee to repay
any Expenses advanced if it shall ultimately be determined that Indemnitee is
not entitled to be indemnified against such Expenses. All statements shall
reasonably evidence the Expenses incurred by Indemnitee. Any advance and any
undertaking to repay advances under this Article shall be unsecured and interest
free.
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ARTICLE VI
Procedures For Determination of Entitlement to Indemnification
6.1 Initial Request. To obtain indemnification under this Agreement,
Indemnitee shall submit to the Company a written request, including such
documentation and information as is reasonably available to Indemnitee and is
reasonably necessary to determine whether and to what extent Indemnitee is
entitled to indemnification. The Secretary of the Company shall, promptly upon
receipt of such a request for indemnification, advise the Board in writing that
Indemnitee has requested indemnification.
6.2 Method of Determination. A determination (if required by applicable
law) with respect to Indemnitee's entitlement to indemnification shall be made
in the specific case (a) by the Board by a majority vote of a quorum consisting
of disinterested Directors, (b) if a quorum of the Board consisting of
Disinterested Directors is not obtainable, or even if obtainable, if the Board
so directs, by Independent Counsel selected by the Board, in a written opinion
to the Board, a copy of which shall be delivered to Indemnitee.
6.3 Selection, Payment and Discharge of Independent Counsel. If the
determination of entitlement to indemnification is to be made by Independent
Counsel under Section 6.2 of this Agreement, the Independent Counsel shall be
selected by the Board, and the Company shall give written notice to Indemnitee
advising Indemnitee of the identity of the Independent Counsel so selected. The
Company shall pay any and all reasonable fees and expenses of Independent
Counsel incurred by such Independent Counsel in connection with his functioning
as such pursuant to this Agreement.
6.4 Cooperation. Indemnitee shall cooperate with the person, persons or
entity making the determination with respect to Indemnitee's entitlement to
indemnification, including providing to such person, persons or entity any
documentation or information which is not privileged or otherwise protected from
disclosure and which is reasonably available to Indemnitee and reasonably
necessary to such determination. All reasonable costs or expenses, including
attorneys' fees and disbursements, incurred by Indemnitee in so cooperating with
the person, persons or entity making such determination shall be borne by the
Company, irrespective of the determination as to Indemnitee's entitlement to
indemnification.
6.5 Payment. If it is determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within 10 days after such
determination.
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ARTICLE VII
Presumptions and Effect of Certain Proceedings
7.1 Burden of Proof. In making a determination with respect to entitlement
to indemnification hereunder, the person, persons or entity making such
determination shall presume that Indemnitee is entitled to indemnification under
this Agreement, and the Company shall have the burden of proof to overcome that
presumption in connection with the making by any person, persons or entity of
any determination contrary to that presumption.
7.2 Effect of Other Proceedings. The termination of any Proceeding, or of
any claim, issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, adversely affect the right of Indemnitee to indemnification or create a
presumption of any kind against Indemnitee.
ARTICLE VIII
Remedies of Indemnitee
8.1 Application. This Article shall apply in the event of a Dispute. For
purposes of this Article, "Dispute" shall mean any of the following events:
(a) a determination under Article VI that Indemnitee is not entitled
to indemnification;
(b) failure to make timely advancement of Expenses under Article V;
(c) failure to make the determination as to entitlement to
indemnification under Section 6.2 by the later of (i) 30 days after receipt
by the Company of the request for indemnification and (ii) 30 days after
the final disposition of a Proceeding;
(d) failure to make payment of indemnification within 10 days after a
determination has been made that Indemnitee is entitled to indemnification.
8.2 Adjudication. In the event of a Dispute, Indemnitee shall be entitled
to an adjudication in an appropriate court of the State of Florida, or in any
other court of competent jurisdiction, of Indemnitee's entitlement to such
indemnification or advancement of Expenses. Alternatively, Indemnitee, at
Indemnitee's option, may seek an award in arbitration to be conducted by a
single arbitrator in Miami, Florida, under the Commercial Arbitration Rules of
the American Arbitration Association. Indemnitee shall commence any action under
this Agreement seeking an adjudication or an award in arbitration within 180
days following the date on which Indemnitee first has the right to commence such
action under this Section 8.2.
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8.3 De Novo Review. If a determination is made under Article VI that
Indemnitee is not entitled to indemnification, any adjudication or arbitration
commenced under this Article shall be conducted in all respects as a de novo
trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by
reason of such adverse determination. In any such adjudication or arbitration,
the Company shall have the burden of proving that Indemnitee is not entitled to
indemnification.
8.4 Company Bound. If a determination is made under Article VI that
Indemnitee is entitled to indemnification, the Company shall be bound by such
determination in any adjudication or arbitration absent (a) a misstatement by
Indemnitee of a material fact, or an omission of a material fact necessary to
make Indemnitee's statement not materially misleading, in connection with the
request for indemnification or the furnishing of information under Section 6.4,
or (b) a prohibition of such indemnification under applicable law.
8.5 Expenses of Adjudication. If, in accordance with this Article,
Indemnitee seeks an adjudication or an award in arbitration to enforce
Indemnitee's rights under, or to recover damages for breach of, this Agreement,
Indemnitee shall be entitled to recover from the Company any and all expenses
(of the types described in the definition of Expenses in Section 1.6) actually
and reasonably incurred by Indemnitee in such adjudication or arbitration, but
only if Indemnitee prevails therein. If it shall be determined in such
adjudication or arbitration that Indemnitee is entitled to receive part but not
all of the indemnification or advancement of expenses sought, the Indemnitee
shall be entitled to recover expenses from the Company on a pro-rata basis.
ARTICLE IX
Non-Exclusivity, Subrogation
9.1 Non-Exclusivity. The indemnification and advancement of Expenses
provided under this Agreement shall not be deemed to be exclusive of any other
rights to indemnification and advancement of expenses which Indemnitee may have,
or any other right or power which the Company may have to provide
indemnification and advancement of expenses to Indemnitee, under the Corporation
Act, the certificate of incorporation or by-laws of the Company or any affiliate
of the Company, any other agreement, a vote of stockholders, a resolution of
directors or otherwise. No amendment, alteration, rescission or replacement of
this Agreement or any provision hereof shall be effective as to Indemnitee with
respect to any action taken or omitted by such Indemnitee in Indemnitee's
Corporate Position before such amendment, alteration, rescission or replacement.
9.2 Subrogation. In the event of any payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall execute all papers required and take all
action necessary to secure such rights, including execution of such documents as
are necessary to enable the Company to bring suit to enforce such rights.
9.3 No Duplicative Payment. The Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable hereunder if
and to the extent
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that Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
ARTICLE X
General Provisions
10.1 Employee Benefit Plans. Reference to "fines" in this Agreement shall
include without limitation any excise taxes assessed on Indemnitee with respect
to any employee benefit plan. An Indemnitee who acted in good faith and in a
manner Indemnitee reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall not be deemed to have acted
in violation of paragraphs 7(a) through (d) of Section 6071014 of the
Corporation Act.
10.2 Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns and shall inure to the benefit of
Indemnitee and Indemnitee's heirs, executors and administrators.
10.3 Severability. If any provision or provisions of this Agreement shall
be held to be invalid, illegal or unenforceable for any reason whatsoever:
(a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including without limitation each portion of
any section of this Agreement containing any such provision held to be
invalid, illegal or unenforceable that is not itself invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby; and
(b) to the fullest extent possible, the remaining provisions of this
Agreement (including, without limitation, each portion of any section of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent
manifested by the entire Agreement.
10.4 No Adequate Remedy. The parties acknowledge that it is impossible to
measure in money the damages which will accrue to either party by reason of a
failure to perform any of the obligations under this Agreement. Therefore, if
either party shall institute any action or proceeding to enforce the provisions
hereof, the party against whom such action or proceeding is brought hereby
waives the claim or defense that the party bringing such action has an adequate
remedy at law, and the party against whom the action is brought shall not assert
in any such action or proceeding the claim or defense that the other party has
an adequate remedy at law.
10.5 Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be considered an original and all of
which together shall constitute one Agreement.
10.6 Headings. The headings in this Agreement are for convenience of
reference
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only and shall not affect its interpretation or construction.
10.7 Waiver. A party shall not be deemed to have waived a right or remedy
provided in or relating to this Agreement unless the waiver is in writing and
duly executed by the party.
10.8 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand and receipted for by the party to whom said notice or other
communication shall have been directed (which receipt shall be required to be
given upon such delivery); or (ii) mailed by certified or registered mail with
postage prepaid, on the third business day after the date on which it is so
mailed, at the address indicated after each party's name on page 1 hereof or to
such other address as may have been furnished to Indemnitee by the Company or to
the Company by Indemnitee, as the case may be in the manner provided by this
Agreement.
10.9 Governing Law. The law of Florida shall govern the validity,
interpretation, construction and effect of this Agreement.
10.10 Entire Agreement. This Agreement completely states the rights and
duties of the parties, sets forth their entire understanding and merges all
prior and contemporaneous representations, promises, proposals, discussions and
understandings by or between the parties, insofar as the subject matter of this
Agreement is concerned. It may be amended only by another written agreement duly
executed by the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
PEACHES ENTERTAINMENT CORPORATION
By s/Xxxxx Xxxxxxxxx
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Title Ex. Vice-President
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Attest:
By s/Xxxx Xxxxxxx
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INDEMNITEE
s/Xxxxx Xxxx
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