EXHIBIT 10.9
FORM OF INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement"), is made and
entered into as of the _____ day of April, 1997, by and between
________________________, a Florida corporation (the "Company"),
and ____________________________ (the "Indemnitee").
RECITALS
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A. The Indemnitee currently serves as a director and/or
executive officer of the Company.
B. As a condition to the Indemnitee's agreement to serve the
Company as such, the Indemnitee required that the Company indemnify
him from liability to the fullest extent permitted by law.
C. The Company has previously determined to indemnify the
Indemnitee to the fullest extent permitted by law in order to
retain the services of the Indemnitee and has entered into this
Agreement in order to memorialize such indemnification obligations.
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. 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.
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SECTION 2.MANDATORY INDEMNIFICATION IN PROCEEDINGS BY OR IN
THE RIGHT OF THE COMPANY. 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
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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) 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
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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.
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.
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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.
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;
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(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:
(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);
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
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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.
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.
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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.
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)
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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.
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
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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 ▇▇▇, 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.
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
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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.
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13.6 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.
13.7 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.
13.8 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.
13.9 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.
13.10 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.
13.11 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.
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first above written.
ADDRESS: THE COMPANY:
-------- ------------
_____________________________
By:
Name:
Title:
ADDRESS: THE INDEMNITEE:
-------- ---------------
_____________________________
By:
Name:
Title:
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