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EXHIBIT 10.5
INDEMNIFICATION AGREEMENT
AGREEMENT dated as of this 17th day of June, 1999, by and between TBM
Holdings, Inc., a Florida corporation (the "Company") and
__________________________ (the "Indemnitee").
WHEREAS, the Indemnitee is serving as a director and/or officer of the
Company and the Company, in order to induce the Indemnitee to continue his
service, wishes to set forth its indemnification obligations to the
Indemnitee;
NOW, THEREFORE, in consideration of the promises and conditions set
forth herein, including the Indemnitee's continued service to the Company,
the Company and Indemnitee hereby agree as follows:
1. Definitions. The following terms, as used herein, shall have the
following respective meanings:
"Covered Amount" means the aggregate amount of all Losses and Expenses
which, in type or amount, are not insured under any director's and officer's
liability insurance maintained by the Company from time to time.
"Covered Act" means any of the following, whether occurring on, prior
to or after the date of this Agreement: any breach of duty, neglect, error,
misstatement, misleading statement, omission or other act done or wrongfully
attempted by Indemnitee or any of the foregoing alleged by any claimant or
any claim against Indemnitee solely by reason of his being a director or
officer, or both, of the Company.
"Determination" means a determination, based on the facts known at the
time, made by:
(i) a majority vote of a quorum of disinterested directors of the
Company;
(ii) independent legal counsel in a written opinion prepared at the
request of a majority of a quorum of disinterested directors of the Company;
(iii) a majority of the disinterested stockholders of the Company; or
(iv) a final adjudication by a court of competent jurisdiction.
"Determined" shall have a correlative meaning.
"Excluded Claim" means any Loss or Expense:
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(i) based upon or attributable to Indemnitee's gaining in fact any
personal profit or advantage to which the Indemnitee is not entitled;
(ii) for the return by Indemnitee of any remuneration paid to
Indemnitee without the previous approval of the stockholders of the Company
which is illegal;
(iii) for an accounting of profits in fact made from the purchase or
sale by Indemnitee of securities of the Company within the meaning of Section
16 of the Securities Exchange Act of 1934, as amended, or any similar
provision of any state law;
(iv) resulting from Indemnitee's knowingly fraudulent, dishonest or
willful misconduct;
(v) the payment of which by the Company under this Agreement is not
permitted by applicable law; or
(vi) which is not within the Covered Amount.
"Expenses" means any reasonable expenses incurred by Indemnitee as a
result of a claim or claims made against him for any Covered Act including,
without limitation, counsel fees and costs of investigative, judicial or
administrative proceedings or appeals, but shall not include Fines.
"Fines" means any fine, penalty or, with respect to an employee benefit
plan, any excise tax or penalty assessed with respect thereto.
"Loss" means any amount which the Indemnitee is legally obligated to
pay as a result of a claim or claims made against him for any Covered Act
including, without limitation, damages and judgments and sums paid in
settlement of a claim or claims, but shall not include Fines.
2. Maintenance of Directors' and Officers' Liability Insurance.
(a) The Company hereby represents and warrants that it is
applying for a policy of directors, and officers, liability insurance and
that, subject to Section 2(c), it will use its best efforts to obtain such
liability insurance coverage.
(b) The Company hereby covenants and agrees that, so long as
Indemnitee shall continue to serve as a director or officer, or both, of the
Company and thereafter so long as the Indemnitee shall be subject to any
possible claim or threatened, pending or completed action, suit,
investigation or proceeding, whether civil, criminal or investigative, by
reason of the fact that the Indemnitee was a director or officer, or both, of
the Company, the Company, subject to Section 2 (c) , shall maintain in full
force and effect directors' and officers' liability insurance coverage.
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(c) The Company shall have no obligation to maintain directors'
and officers' liability insurance coverage if the Company determines in good
faith that such insurance is not reasonably available, the premium cost for
such insurance is disproportionate to the amount of coverage provided, or the
coverage provided by such insurance is limited by exclusions so as to provide
an insufficient benefit.
3. Indemnification. The Company shall indemnify the Indemnitee
fully and hold him harmless from the Covered Amount of any and all Losses and
Expenses subject, in each case, to the further provisions of this Agreement.
4. Excluded Coverage.
(a) The Company shall have no obligation to indemnify the
Indemnitee and hold him harmless from any Loss or Expense which has been
Determined to constitute an Excluded Claim.
(b) The Company shall have no obligation to indemnify
Indemnitee and hold him harmless from any Loss or Expense to the extent that
Indemnitee is indemnified by the Company pursuant to the Company's bylaws or
is otherwise indemnified (other than pursuant to any indemnification which
is, by its terms, secondary to any indemnification provided by the Company).
5. Indemnification Procedures.
(a) Promptly after receipt by the Indemnitee of notice of the
commencement of or the threat of commencement of any action, suit,
investigation or proceeding, the Indemnitee shall, if indemnification with
respect thereto may be sought from the Company under this Agreement, notify
the Company of the commencement or threat thereof.
(b) If, at the time of the receipt of such notice, the Company
has directors' and officers' liability insurance coverage in effect, the
Company shall give prompt notice of the commencement or the threat of
commencement of such action, suit, investigation or proceeding to the
insurers in accordance with the procedures set forth in the respective
policies in favor of Indemnitee. The Company shall thereafter take all
necessary or desirable action to cause such insurers to pay, on behalf of
Indemnitee, all Losses and Expenses payable as a result of such action, suit,
investigation or proceeding in accordance with the terms of such policies.
(c) To the extent the Company does not, at the time of the
commencement of or the threat of commencement of such action, suit,
investigation or proceeding, have applicable directors' and officers'
liability insurance coverage, or if a Determination is made that any Expenses
arising out of such action, suit, investigation or proceeding will not be
payable under the directors' and officers' liability insurance coverage then
in effect, the Company shall be obligated to pay the Expenses of such action,
suit, investigation or proceeding as they are incurred and in advance of the
final disposition thereof and the Company shall be entitled to assume the
defense of such action, suit, investigation or proceeding, with counsel
reasonably
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satisfactory to Indemnitee, upon the delivery to Indemnitee of written notice
of its election so to do. After delivery of such notice, the Company will not
be liable to Indemnitee under this Agreement for any legal or other Expenses
subsequently incurred by the Indemnitee in connection with such defense other
than reasonable Expenses of investigation; provided, that Indemnitee shall
have the right to employ his counsel in any such action, suit, investigation
or proceeding but the fees and expenses of such counsel incurred after
delivery of such notice shall be at the Indemnitee's expense; and provided
further, that if (i) the employment of counsel by Indemnitee has been
previously authorized by the Company, (ii) Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the Company and
Indemnitee in the conduct of any such defense or (iii) the Company shall not,
in fact, have employed counsel to assume the defense of such action, the fees
and expenses of such counsel employed by Indemnitee shall be at the expense
of the Company.
(d) All payments on account of the Company's indemnification
obligations under this Agreement shall be made within sixty (60) days of
Indemnitee's written request therefor unless a Determination is made that the
claims giving rise to Indemnitee's request are Excluded Claims or otherwise not
payable under this Agreement; provided, that all payments on account of the
Company's obligations under Section 5(c) of this Agreement prior to the final
disposition of any action, suit, investigation or proceeding shall be made
within twenty (20) days of Indemnitee's written request therefor and such
obligation shall not be subject to any such determination but shall be subject
to Section 5(e) of this Agreement.
(e) Indemnitee agrees that he will reimburse the Company for
all Losses and Expenses paid by the Company in connection with any action,
suit, investigation or proceeding against Indemnitee in the event and only to
the extent that a Determination shall have been made by a court in a final
adjudication from which there is no further right of appeal that the
Indemnitee is not entitled to be indemnified by the Company for such Expenses
because the claim is an Excluded Claim or because Indemnitee is otherwise not
entitled to payment under this Agreement.
6. Settlement. The Company shall have no obligation to indemnify
Indemnitee under this Agreement for any amounts paid in settlement of any
action, suit, investigation or proceeding effected without the Company's
prior written consent. The Company shall not settle any claim in any matter
which would impose any Fine or any obligation on Indemnitee without
Indemnitee's written consent. Neither the Company nor Indemnitee shall
unreasonably withhold their consent to any proposed settlement.
7. Rights Not Exclusive. The rights provided hereunder shall not be
deemed exclusive of any other rights to which the Indemnitee may be entitled
under the articles of incorporation or bylaws of the Company or any by-law,
agreement, vote of stockholders or of disinterested directors or otherwise,
both as to action in his official capacity and as to action in any other
capacity by holding such office, and shall continue after the Indemnitee
ceases to serve the Company as an officer or director.
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8. Enforcement.
(a) Indemnitee's right to indemnification shall be enforceable
by Indemnitee only in the courts of the State of Connecticut or in the United
States District Court for the District of Connecticut and shall be
enforceable notwithstanding any adverse Determination. In any such action, if
a prior adverse Determination has been made, the burden of proving that
indemnification is required under this Agreement shall be on Indemnitee. The
Company shall have the burden of proving that indemnification is not required
under this Agreement if no prior adverse Determination shall have been made.
(b) In the event that any action is instituted by Indemnitee
under this Agreement, or to enforce or interpret any of the terms of this
Agreement, Indemnitee shall be entitled to be paid all court costs and
expenses, including reasonable counsel fees, incurred by Indemnitee with
respect to such action, unless the court determines that each of the material
assertions made by Indemnitee as a basis for such action were not made in
good faith or were frivolous.
9. Severability. In the event that any provision of this Agreement
is determined by a court to require the Company to do or to fail to do an act
which is in violation of applicable law, such provision shall be limited or
modified in its application to the minimum extent necessary to avoid a
violation of law, and, as so limited or modified, such provision and the
balance of this Agreement shall be enforceable in accordance with the terms
thereof.
10. Choice of Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Connecticut.
11. Consent to Jurisdiction. The Company and the Indemnitee each
hereby irrevocably consents to the jurisdiction of the courts of the State of
Connecticut and the United States District Court for the State of Connecticut
for all purposes in connection with any action or proceeding which arises out
of or relates to this Agreement and agree that any action instituted under
this Agreement shall be brought only in the courts of the State of
Connecticut or in the United States District Court for the State of
Connecticut.
12. Successor and Assigns. This Agreement shall be (i) binding upon
all successors and assigns of the Company (including any transferee of all or
substantially all of its assets and any successor by merger or otherwise by
operation of law) and (ii) shall be binding on and inure to the benefit of
the heirs, personal representatives and estate of Indemnitee.
13. Amendment. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless made in a writing
signed by each of the parties hereto.
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IN WITNESS WHEREOF, the Company and Indemnitee have executed this
Agreement as of the day and year first above written.
TBM HOLDINGS, INC.
By:
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President
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Indemnitee
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