1
Exhibit 10.1
FORM OF
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT, dated as of the ______ day of
________, 199__, between WINSLOEW FURNITURE, INC., a Florida corporation (the
"Company"), and (the "Indemnitee").
RECITALS
A. The Company desires to retain the services of the Indemnitee as of
the Company.
B. As a condition to the Indemnitee's agreement to serve the Company
as such, the Indemnitee requires that he be indemnified from liability to the
fullest extent permitted by law.
C. 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, for and in consideration of the mutual premises and
covenants contained herein, the Company and the Indemnitee agree as follows:
SECTION 1. MANDATORY INDEMNIFICATION IN PROCEEDINGS OTHER THAN THOSE BY OR IN
THE RIGHT OF THE COMPANY. Subject to Section 4 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),
amounts paid in settlement and all other liabilities 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, whether civil, criminal, administrative,
investigative or otherwise (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 or agent of the Company, or is or was serving
at the request of the Company as an officer, director, partner, trustee,
employee 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
SECTION 2. MANDATORY INDEMNIFICATION IN PROCEEDINGS BY OR IN THE RIGHT OF THE
COMPANY. Subject to Section 4 hereof, the Company shall indemnify and hold
harmless the Indemnitee from and against any and all expenses (including
attorneys' fees) and amounts paid in settlement 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, investigative
or otherwise, 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 or agent of the Company, or is or was serving
at the request of the Company as an officer, director, partner, trustee,
employee 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 action, suit
or 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.
SECTION 3. REIMBURSEMENT OF EXPENSES FOLLOWING ADJUDICATION OF NEGLIGENCE. The
Company shall reimburse the Indemnitee for any expenses (including attorney's
fees) and amounts paid in settlement 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 the best interests of the Company.
SECTION 4. AUTHORIZATION OF INDEMNIFICATION. Any indemnification under Sections
1 and 2 hereof (unless ordered by a court) and any reimbursement made under
Section 3 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 standard of conduct set forth in Section 1, 2
or 3 hereof, as the case may be. Subject to Sections 5.6, 5.7, 5.8 and 8 of
this Agreement, the Determination shall be made in the following order of
preference:
(1) first, by the Company's Board of Directors (the "Board") by
majority vote or consent of a quorum consisting of directors ("Disinterested
Directors") who are not, at the time of the Determination, named parties to such
action, suit or proceeding; or
-2-
3
(2) 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
(3) next, if such a committee cannot be designated, by any
independent legal counsel (who may be any outside counsel regularly employed by
the Company); or
(4) 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 that
are represented in person or by proxy at a meeting called for such purpose.
4.1 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.
4.2 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.
4.3 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 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 4.3 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
or agent. The provisions of this Section 4.3 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 3 hereof, as the case may be.
-3-
4
4.4 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
Section 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 4.4, 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, (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, or (iii) the settlement of any action, suit or proceeding
under Section 1, 2 or 3 hereof pursuant to which the Indemnitee pays less than
$25,000.
4.5 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, fines or amounts paid in settlement by
the Indemnitee in connection with the investigation, defense, settlement or
appeal of any action specified in Section 1, 2 or 3 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, fines or amounts paid in settlement for which the
Indemnitee is entitled to indemnification and/or reimbursement under this
Agreement.
4.6 Limitations on Indemnification. No indemnification pursuant to Sections 1
or 2 hereof shall be paid by the Company if a judgment (after exhaustion of all
appeals) or other final adjudication determines that the Indemnitee's actions,
or omissions to act, were material to the cause of action so adjudicated and
constitute:
(a) a violation of 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;
(b) a transaction from which the Indemnitee derived an improper
personal benefit within the meaning of Section 607.0850(7) of the Florida
Business Corporation Act;
(c) in the event that the Indemnitee is a director of the
Company, a circumstance under which the liability provisions of Section 607.0834
of the Florida Business Corporation Act are applicable; or
(d) willful misconduct or 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 of the Company.
-4-
5
SECTION 5. PROCEDURES FOR DETERMINATION OF WHETHER STANDARDS HAVE BEEN
SATISFIED.
5.1 Costs. All costs of making the Determination required by Section 4 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 8 hereof, regardless of the outcome of any
such application or proceeding, and (ii) all costs of defending any suits or
proceedings challenging payments to the Indemnitee under this Agreement.
5.2 Timing of the Determination. The Company shall use its best efforts to make
the Determination contemplated by Section 4 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.
5.3 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
after the Indemnitee's delivery to the Company of a Request that includes a
reasonable accounting of expenses incurred:
-5-
6
(a) first, by the Board by majority vote or consent of a
quorum consisting of Disinterested Directors; or
(b) next, if such a quorum 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);
(d) provided, however, that if a determination as to
reasonableness of expenses is not made under any of the foregoing subsections
(a), (b) and (c), such determination shall be made, not later than 90 days after
the Indemnitee's delivery of such Request, by vote or consent of the holders of
a majority of the Company's Common Stock that are represented in person or by
proxy at a meeting called for such purpose.
All expenses shall be considered reasonable for purposes of this
Agreement if the finding contemplated by this Section 5.3 is not made within the
prescribed time. The finding required by this Section 5.3 may be made in advance
of the payment (or incurring) of the expenses for which indemnification or
reimbursement is sought.
5.4 Payment of Indemnified Amount. Immediately following a Determination that
the Indemnitee has met the applicable standard of conduct set forth in Section
1, 2 or 3 hereof, as the case may be, and the finding of reasonableness of
expenses contemplated by Section 5.3 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.
5.5 Shareholder Vote on Determination. Notwithstanding the provisions of
Section 607.0850 of the Florida Business Corporation Act, 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 5.7 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. Any Company proxy statement relating to a proposal to
indemnify or reimburse the Indemnitee shall not include a recommendation
against indemnification or reimbursement.
-6-
7
5.6 Selection of Independent Legal Counsel. If the Determination required under
Section 4 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 5.8
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.
5.7 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 applicable standard of conduct set forth in Section 1, 2 or 3
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 8 hereof, such Determination by the Company's
shareholders shall be binding and conclusive for all purposes of this
Agreement.
5.8 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 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 4 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 4 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.
5.9 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.
5.10 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-
8
SECTION 6. 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 official capacities as a Company director or officer and actions taken
in another capacity while serving as director or officer, 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 of the Company, shall be deemed to be at the request of the
Company.
SECTION 7. ADVANCE FOR EXPENSES.
7.1 Mandatory Advance. Expenses (including attorneys' fees, court costs,
judgments, fines, amounts paid in settlement and other payments) incurred by
the Indemnitee in investigating, defending, settling or appealing any action,
suit or proceeding described in Section 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 7,
together with a reasonable accounting of such expenses.
7.2 Undertaking to Repay. The Indemnitee hereby undertakes and agrees to repay
to the Company any advances made pursuant to this Section 7 if and to the
extent that it shall ultimately be found that the Indemnitee is not entitled to
be indemnified by the Company for such amounts.
7.3 Miscellaneous. The Company shall make the advances contemplated by this
Section 7 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 7 shall be unsecured and interest-free.
-8-
9
SECTION 8. COURT-ORDERED INDEMNIFICATION. Regardless whether the Indemnitee
has met the standard of conduct set forth in Sections 1, 2 or 3 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 Section 3 or 12 hereof) 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).
SECTION 9. 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 Company 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.
SECTION 10. 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 following the date the Indemnitee ceases (for any
reason) to serve as either an executive officer or director of the Company, and
any and all such claims and causes 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.
SECTION 11. INDEMNIFICATION OF INDEMNITEE'S ESTATE. Notwithstanding any other
provision of this Agreement, and regardless whether indemnification of the
Indemnitee would be permitted and/or required under this Agreement, if the
Indemnitee is deceased, 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 Section
1 or 2 hereof. Indemnification of the Indemnitee's Estate pursuant to this
Section 11 shall be mandatory and not require a Determination or any other
finding that the Indemnitee's conduct satisfied a particular standard of
conduct.
-9-
10
SECTION 12. REIMBURSEMENT OF ALL LEGAL EXPENSES. Notwithstanding
any other provision of this Agreement, and regardless of the presence or
absence of any Determination, the Company promptly (but not later than 30 days
following the Indemnitee's submission of a reasonable accounting) shall
reimburse the Indemnitee for all attorneys' fees and related court costs and
other expenses incurred by the Indemnitee (but not for judgments, penalties,
fines or amounts paid in settlement) in connection with the investigation,
defense, settlement or appeal of any action described in Section 1 or 2 hereof
(including, but not limited to, the matters specified in Section 6 hereof).
SECTION 13. MISCELLANEOUS.
13.1 Notice Provision. Any notice, payment, demand or communication required or
permitted to be delivered or given by the provisions of this Agreement shall be
deemed to have been effectively delivered or given and received on the date
personally delivered to the respective party to whom it is directed, or when
deposited by registered or certified mail, with postage and charges prepaid and
addressed to the parties at the respective addresses set forth below opposite
their signatures to this Agreement, or to such other address as to which notice
is given.
13.2 Entire Agreement. Except for the Company's Articles of Incorporation, this
Agreement constitutes the entire understanding of the parties and supersedes
all prior understandings, whether written or oral, between the parties with
respect to the subject matter of this Agreement.
13.3 Severability of Provisions. If any provision of this Agreement is held to
be illegal, invalid, or unenforceable under present or future laws effective
during the term of this Agreement, such provision shall be fully severable;
this Agreement shall be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part of this Agreement; and the
remaining provisions of this Agreement shall remain in full force and effect
and shall not be affected by the illegal, invalid, or unenforceable provision
or by its severance from this Agreement. Furthermore, in lieu of each such
illegal, invalid, or unenforceable provision there shall be added automatically
as a part of this Agreement a provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible and be legal, valid, and
enforceable.
13.4 Applicable Law. This Agreement shall be governed by and construed under the
laws of the State of Florida.
13.5 Execution in Counterparts. This Agreement and any amendment may be executed
simultaneously or in two or more counterparts, each of which together shall
constitute one and the same instrument.
-10-
11
11.1 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.
11.2 Amendment. No amendment, modification or alteration of the terms of this
Agreement shall be binding unless in writing, dated subsequent to the date of
this Agreement, and executed by the parties.
11.3 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 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 to the Company and, upon the death
of the Indemnitee, to the benefit of the estate, heirs, executors,
administrators and personal representatives of the Indemnitee.
11.4 Gender and Number. Wherever the context shall so require, all words herein
in the male gender shall be deemed to include the female or neuter gender, all
singular words shall include the plural and all plural words shall include the
singular.
11.5 Nonexclusivity. 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 by statute, bylaw, agreement, vote of shareholders or
otherwise.
11.6 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.
(signatures on following page)
-11-
12
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
ADDRESS: THE COMPANY:
WINSLOEW FURNITURE, INC.
By:
------------------------------
ADDRESS: THE INDEMNITEE:
---------------------------------
-12-
