EXHIBIT 11.2
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made and entered
into EFFECTIVE as of the 18th day of December, 1996, by and between W. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ (the "Indemnitee"), and ECHELON INTERNATIONAL CORPORATION., a Florida
corporation (the "Corporation").
W I T N E S S E T H:
WHEREAS, it is essential to the Corporation to retain and attract as
Directors, officers and key employees the most capable persons available; and
WHEREAS, the substantial increase in corporate litigation subjects
directors and officers to expensive litigation risks at the same time that the
availability of directors' and officers' liability insurance is severely
limited; and
WHEREAS, in addition, the indemnification provisions of the Florida
Business Corporation Act (the "FBCA," as further defined below) expressly
provide that such provisions are non-exclusive; and
WHEREAS, the Indemnitee does not regard the protection available under
the Articles of Incorporation and Bylaws of the Corporation and insurance, if
any, as adequate in the present circumstances, and considers it necessary to
condition the Indemnitee's agreement to serve as a Director and/or officer of
the Corporation to have appropriate contractual rights to indemnification from
the Corporation, and the Corporation desires the Indemnitee to serve in such
capacity or capacities and to have such rights as set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained in this Agreement, it is hereby agreed as
follows:
1. DEFINITIONS.
For the purposes of this Agreement, the terms below shall have the
indicated meanings except where the context in which such a term is used in this
Agreement clearly indicates otherwise:
1. AFFILIATE means, as to any Person (the "first Person"), any other
Person that, either directly or indirectly, controls, is controlled by
or is under common control with the first Person.
2. AGREEMENT OF INDEMNITY means the agreement provided for by Section
3(e)(i) of this Agreement.
3. ASSOCIATE of a Person means a director, officer, employee, agent,
consultant, independent contractor, stockholder or partner of such
Person.
INDEMNIFICATION AGREEMENT
PAGE 2
4. BOARD means the Board of Directors of the Corporation.
5. EVALUATION DATE means, as to any Indemnification Notice, the date
thirty (30) calendar days after the date of receipt by the Board of
such Indemnification Notice.
6. EXPENSE means any cost or expense (other than a Liability),
including but not limited to Legal Fees, and including interest on any
of the foregoing, reasonably paid or required to be paid by the
Indemnitee on account of or in connection with any Proceeding.
7. EXPENSE ADVANCE REQUEST means the request provided for by Section
3(d)(ii) of this Agreement.
8. FBCA means a the Florida Business Corporation Act, Chapter 607,
Florida Statutes, and any successor statute.
9. INDEMNIFICATION NOTICE means the notice provided for by Section 3(a)
of this Agreement.
10. LEGAL FEES means the fees and disbursements of legal counsel, legal
assistants, experts, accountants, consultants and investigators, before
and at trial, in appellate or bankruptcy proceedings and otherwise.
11. LIABILITY means any amount (other than an Expense), including any
assessment, fine, penalty, excise or other tax, and including interest
on any of the foregoing, paid or required to be paid by the Indemnitee
on account of or in connection with any Proceeding.
12. NONINDEMNIFIABLE CONDUCT means any act or omission to act of the
Indemnitee material to a Proceeding as to which indemnification under
this Agreement is sought, which act or omission is determined to
involve:
1. a violation of criminal law, unless the Indemnitee had
reasonable cause to believe such conduct was lawful or had no
reasonable cause to believe such conduct was unlawful;
2. a transaction from which the Indemnitee derived an improper
personal benefit;
3. willful misconduct or a conscious disregard for the best
interests of the Corporation (when indemnification is sought in a
Proceeding by or in the right of the
INDEMNIFICATION AGREEMENT
PAGE 3
Corporation to procure a judgment in favor of the Corporation or
when indemnification is sought in a Proceeding by or in the right
of a stockholder); or 1.
4. conduct as to which then applicable law prohibits
indemnification.
13. PERSON means any natural person or individual, or any artificial
person, including any corporation, association, unincorporated
organization, partnership, joint venture, firm, company, business,
trust, business trust, limited liability company, government, public
body or authority, governmental agency or department, and any other
entity.
14. PROCEEDING means any threatened, pending or completed claim,
demand, inquiry, investigation, action, suit or proceeding, regarding
any matter (including but not limited to matters arising under or
relating to federal or state securities laws, laws relating to the
protection of the environment, the Employee Retirement Income Security
Act of 1974 ("ERISA") or other laws for the benefit or protection of
employees, federal or state tax laws, laws relating to discrimination
against persons or groups, or any other civil or criminal law), whether
formal or informal, or whether brought by or in the right of the
Corporation, whether brought by a governmental body, agency or
representative or by any other Person, and whether of a civil,
criminal, administrative or investigative nature, and includes any
Third Party Proceeding.
15. THIRD PARTY PROCEEDING means any Proceeding against the Indemnitee
by, or any Proceeding by the Indemnitee against, any third party.
2. GRANT OF INDEMNITY.
The Corporation shall indemnify and hold harmless the Indemnitee in respect of:
1. any and all Liabilities that may be incurred or suffered by the
Indemnitee as a result of or arising out of or in connection with
prosecuting, defending, settling or investigating any Proceeding in
which the Indemnitee may be or may have been involved as a party or
otherwise, arising out of the fact that the Indemnitee is or was an
Associate of the Corporation or any of its Affiliates, or served as an
Associate in or for any Person at the request of the Corporation
(including without limitation service as a trustee or in any fiduciary
or similar capacity for or in connection with any employee benefit plan
maintained by the Corporation or for the benefit of any of the
employees of the Corporation or any of its Affiliates, or service on
any trade association, civic, religious, educational or charitable
boards or committees);
2. any and all Liabilities that may be incurred or suffered by the
Indemnitee as a result of or arising out of or in connection with any
attempt (regardless of its success) by any
INDEMNIFICATION AGREEMENT
PAGE 4
Person to charge or cause the Indemnitee to be charged with wrongdoing
or with financial responsibility for damages arising out of or incurred
in connection with the matters indemnified against in this Agreement;
and 1.
3. any and all Expenses that may be incurred or suffered by the
Indemnitee as a result of or arising out of or in connection with any
matter referred to in the preceding two paragraphs.
3. CLAIMS FOR INDEMNIFICATION; PROCEDURES
1. SUBMISSION OF CLAIMS. Whenever any Proceeding shall occur as to
which indemnification under this Agreement may be sought by the
Indemnitee, the Indemnitee shall give the Corporation written notice
thereof as promptly as reasonably practicable after the Indemnitee has
actual knowledge of such Proceeding (an "Indemnification Notice"). The
Indemnification Notice shall specify in reasonable detail the facts
known to the Indemnitee giving rise to such Proceeding, the positions
and allegations of the parties to such Proceeding and the factual bases
therefor, and the amount or an estimate of the amount of Liabilities
and Expenses reasonably expected to arise therefrom. A delay by the
Indemnitee in providing such notice shall not relieve the Corporation
from its obligations under this Agreement unless and only to the extent
that the Corporation is materially and adversely affected by the delay.
If the Indemnitee desires to personally retain the services of an
attorney in connection with any Proceeding, the Indemnitee shall notify
the Corporation of such desire in Indemnification Notice relating
thereto, and such notice shall identify the counsel to be retained.
2. PRESUMPTION OF RIGHT TO INDEMNIFICATION. Upon submission of an
Indemnification Notice to the Corporation, the Board shall review such
Notice and endeavor to determine whether the Indemnitee is entitled to
indemnification under this Agreement with respect to the matters
described therein. As of the Evaluation Date, unless the Board has
reasonably determined that the Indemnitee is not entitled to
indemnification under this Agreement with respect to the matters
described in such Indemnification Notice, there shall be created a
presumption that the Indemnitee is entitled to such indemnification.
Such presumption shall continue, and indemnification and payment shall
be provided under this Agreement, unless and such time as the Board
shall reasonably determine that the Indemnitee is not entitled to
indemnification under this Agreement. This paragraph is procedural only
and shall not affect the right of the Indemnitee to indemnification
under this Agreement. Any determination by the Board that the
Indemnitee is not entitled to indemnification under this Agreement and
any failure to make any payments requested in an Indemnification Notice
or otherwise shall be subject to judicial review.
INDEMNIFICATION AGREEMENT
PAGE 5
3. LIMITATION ON ADVERSE DETERMINATIONS BY THE BOARD. Subject to
applicable law, no determination by the Board that the Indemnitee is
not entitled to indemnification or payment under this Agreement shall
be given effect under this Agreement unless (i) such determination is
based upon clear and convincing evidence, (ii) such determination is
made by a vote of a majority of the Corporation's Directors at a
meeting at which a quorum is present, and (iii) the Indemnitee is given
written notice of such meeting at least ten days in advance of such
meeting and given a meaningful opportunity to present at such meeting
information in support of the claim for indemnification or payment.
4. EXPENSES.
1. With respect to any Proceeding as to which the Indemnitee is
entitled (or presumed entitled) to indemnification under this
Agreement, Expenses incurred or required to be incurred by the
Indemnitee in connection with such Proceeding, but prior to the
final disposition of such Proceeding, shall be paid or caused to
be paid by the Corporation to or on behalf of the Indemnitee
notwithstanding that there has been no final disposition of such
Proceeding, to the extent provided in the following paragraph.
2. For purposes of determining whether to authorize advancement of
Expenses pursuant to the preceding paragraph, the Indemnitee shall
from time to time submit to the Board a statement requesting
advancement of Expenses (an "Expense Advance Request." Each
Expense Advance Request shall set forth (i) in reasonable detail,
all Expenses already incurred or required to be incurred by the
Indemnitee and the reason therefor, and (ii) an undertaking by the
Indemnitee, in form and substance reasonably satisfactory to the
Corporation, to repay all the Expenses set forth therein if it
shall ultimately be determined that the Indemnitee is not entitled
to be indemnified with respect to such Proceeding by the
Corporation under this Agreement or otherwise. Upon receipt of an
Expense Advance Request satisfying the foregoing requirements, as
to each Expense set forth therein, unless the Board reasonably
determines that the Indemnitee is not entitled to payment of such
Expense, the Corporation shall, within 10 business days thereafter
(or, if later as to any Expense yet to be incurred by the
Indemnitee, on or before the date three business days prior to the
date such Expense is required to be paid by the Indemnitee), pay
or cause to be paid by the Corporation the amount of such Expense
to or on behalf of the Indemnitee. No security shall be required
in connection with any Expense Advance Request, and the ability or
inability of the Indemnitee to make repayment shall not be
considered in any evaluation of an Expense Advance Request.
5. RIGHTS TO DEFEND OR SETTLE; THIRD PARTY PROCEEDINGS, ETC.
INDEMNIFICATION AGREEMENT
PAGE 6
1. If the Corporation at any time provides the Indemnitee with an
agreement in writing, in form and substance reasonably
satisfactory to the Indemnitee and the Indemnitee's counsel,
agreeing to indemnify, defend or prosecute and hold the Indemnitee
harmless from all Liabilities and Expenses arising from any Third
Party Proceeding (an "Agreement of Indemnity"), and demonstrating
to the reasonable satisfaction of the Indemnitee the Corporation's
financial wherewithal to accomplish such indemnification, the
Corporation may thereafter at its own expense undertake full
responsibility for and control of the defense or prosecution of
such Third Party Proceeding. The Corporation may contest or settle
any such Third Party Proceeding for money damages on such terms
and conditions as it deems appropriate but shall be obligated to
consult in good faith with the Indemnitee and not to contest or
settle any Third Party Proceeding involving injunctive or
equitable relief against or affecting the Indemnitee or the
Indemnitee's properties or assets without the prior written
consent of the Indemnitee, such consent not to be unreasonably
withheld. The Indemnitee may participate at the Indemnitee's own
expense and with the Indemnitee's own counsel in defense or
prosecution of a Third Party Proceeding controlled by the
Corporation. Such participation shall not relieve the Corporation
of its obligation to indemnify the Indemnitee with respect to such
Third Party Proceeding under this Agreement.
2. If, as of ten (10) business days after the receipt by the Board
of an Indemnification Notice, the Corporation has not delivered to
the Indemnitee a reasonably satisfactory Agreement of Indemnity
and evidence of financial wherewithal as contemplated by the
preceding paragraph, the Indemnitee may contest or settle the
Third Party Proceeding on such terms as it sees fit but shall not
reach a settlement with respect to the payment of money damages
without consulting in good faith with the Corporation. As to any
Third Party Proceeding as to which the Indemnitee is entitled (or
presumed entitled) to indemnification under this Agreement, unless
and until such time as the Corporation at its own expense
undertakes full responsibility for and control of the defense or
prosecution of such Third Party Proceeding, the Indemnitee shall
be entitled to indemnification under this Agreement with respect
any Expenses of the Indemnitee, including Legal Fees, relating to
such Third Party Proceeding. Notwithstanding the foregoing, the
Corporation may at any time deliver to the Indemnitee a reasonably
satisfactory Agreement of Indemnity and evidence of financial
wherewithal as contemplated by the preceding paragraph, and
thereafter at its own expense undertake full responsibility for
and control of the defense or prosecution of such Third Party
Proceeding.
INDEMNIFICATION AGREEMENT
PAGE 7
3. All Expenses incurred in defending or prosecuting any Third
Party Proceeding shall be paid in accordance with the procedure
set forth in Section 3(d) of this Agreement.
4. If, by reason of any Third Party Proceeding as to which the
Indemnitee is entitled (or presumed entitled) to indemnification
under this Agreement, a lien, attachment, garnishment or execution
is placed upon any of the property or assets of the Indemnitee,
the Corporation shall promptly furnish a reasonably satisfactory
indemnity bond to obtain the prompt release of such lien,
attachment, garnishment or execution.
5. The Corporation may participate at its own expense and with its
own counsel in defense or prosecution of any Third Party
Proceeding, but any such participation shall not relieve the
Corporation of its obligations to indemnify the Indemnitee under
this Agreement. Any election by the Corporation to at its own
expense undertake full responsibility for and control of the
defense or prosecution of a Third Party Proceeding shall not
affect the entitlement of the Indemnitee to indemnification under
this Agreement.
6. The Indemnitee shall cooperate in the defense or prosecution of
any Third Party Proceeding controlled by the Corporation.
7. The parties shall cooperate in good faith and use reasonable
efforts to mitigate and minimize any Expense or Liability.
6. CHOICE OF COUNSEL. In all matters as to which indemnification is or
may be available to the Indemnitee under this Agreement, the Indemnitee
shall be free to choose and retain counsel of the Indemnitee's choice,
provided that the Indemnitee shall secure the prior written consent of
the Corporation as to such selection, which consent shall not be
unreasonably withheld.
7. REPAYMENT. Notwithstanding anything to the contrary, if the
Corporation has paid or advanced any Liability or Expense under this
Agreement (including pursuant to an Expense Advance Request) to, on
behalf of or for the benefit of the Indemnitee and it is determined by
a court of competent jurisdiction, in a decision which the Indemnitee
does not properly appeal or which decision is affirmed on appeal, that
the Indemnitee's actions or omissions constitute Nonindemnifiable
Conduct or that the Indemnitee otherwise is not or was not entitled to
such payment or advance or that the Indemnitee is required to reimburse
or repay the Corporation for the amount thereof, the Indemnitee shall
and does hereby undertake in such circumstances to reimburse and repay
the Corporation for any and all such
INDEMNIFICATION AGREEMENT
PAGE 8
amounts paid, which thereupon shall be deemed and shall be and become
the legal, valid and enforceable debt and obligation of the Indemnitee
to the Corporation.
8. REPRESENTATIONS AND AGREEMENTS OF THE CORPORATION.
1. AUTHORITY. The Corporation represents, covenants and agrees
that it has the corporate power and authority to enter into this
Agreement and to carry out its obligations under this Agreement.
The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement
have been duly authorized by the Board. This Agreement is a valid
and binding obligation of the Corporation and is enforceable
against the Corporation in accordance with its terms.
2. NONCONTESTABILITY. The Corporation represents, covenants and
agrees that it will not initiate, and will use its best efforts to
cause each of its Affiliates not to initiate, any action, suit or
proceeding challenging the validity or enforceability of this
Agreement.
3. GOOD FAITH JUDGMENT. The Corporation represents, covenants and
agrees that it will exercise good faith and its best reasonable
judgment in determining the entitlement of the Indemnitee to
indemnification under this Agreement.
4. RELATIONSHIP OF THIS AGREEMENT TO OTHER INDEMNITIES.
1. NONEXCLUSIVITY.
1. This Agreement and all rights granted to the Indemnitee under
this Agreement are in addition to and are not deemed to be
exclusive with or of any other rights that may be available to the
Indemnitee under any Articles of Incorporation, bylaw, statute,
agreement, or otherwise.
2. The rights, duties and obligations of the Corporation and the
Indemnitee under this Agreement do not limit, diminish or
supersede the rights, duties and obligations of the Corporation
and the Indemnitee with respect to the indemnification afforded to
the Indemnitee under any liability insurance, the FBCA, or under
the Bylaws or the Articles of Incorporation of the Corporation. In
addition, the Indemnitee's rights under this Agreement will not be
limited or diminished in any respect by any amendment to the
Bylaws or the Articles of Incorporation of the Corporation.
2. AVAILABILITY, CONTRIBUTION, ETC.
INDEMNIFICATION AGREEMENT
PAGE 9
1. The availability or nonavailability of indemnification by way
of insurance policy, Articles of Incorporation, bylaw, vote of
stockholders, or otherwise from the Corporation to the Indemnitee
shall not affect the right of the Indemnitee to indemnification
under this Agreement, provided that all rights under this
Agreement shall be subject to applicable statutory provisions in
effect from time to time.
2. Any funds actually received by the Indemnitee by way of
indemnification or payment from any source other than from the
Corporation under this Agreement shall reduce any amount otherwise
payable to the Indemnitee under this Agreement.
3. If the Indemnitee is entitled under any provision of this
Agreement to indemnification by the Corporation for some
Liabilities or Expenses but not as to others, or for some or a
portion thereof actually incurred by the Indemnitee or amounts
actually paid in settlement by the Indemnitee in the
investigation, defense, appeal or settlement of any Proceeding for
which indemnification is sought under this Agreement but not for
the total amount thereof, the Corporation shall indemnify the
Indemnitee for the portion thereof to which the Indemnitee is
entitled.
4. If for any it is determined by a court of competent
jurisdiction, in a decision which neither party to this Agreement
properly appeals or which decision is affirmed on appeal, that the
indemnity provided under this Agreement is unavailable, or if for
any reason the indemnity under this Agreement is insufficient to
hold the Indemnitee harmless as provided in this Agreement, then,
in any such event, the Corporation shall contribute to the amounts
paid or payable by the Indemnitee in such proportion as equitably
reflects the relative benefits received by, and fault of, the
Indemnitee and the Corporation and its Affiliates and its and
their respective Associates.
3. COORDINATION WITH INSURANCE. The obligation of the Corporation under
this Agreement is not conditioned in any way on any attempt, whether or
not successful, by the Indemnitee or the Corporation to collect from an
insurer any amount under any insurance policy.
4. NO EFFECT ON SEPARATE OBLIGATIONS OF INDEMNITEE. Notwithstanding
anything to the contrary, nothing in this Agreement shall (i) relieve
the Indemnitee from, or otherwise affect, any liability or obligation
that the Indemnitee may have to or for the benefit of the Corporation
under any written or oral employment or other agreement that may now or
in the future exist between the Indemnitee and the Corporation
(collectively, "Other Corporation/Indemnitee Agreements"), (ii) cause
or require the Corporation to indemnify or make any payment or
reimbursement to, for or on behalf of or for the benefit of the
Indemnitee, or hold the Indemnitee harmless, for, from or with respect
to any breach or
INDEMNIFICATION AGREEMENT
PAGE 10
violation by the Indemnitee of any representation, warranty or
agreement of the Indemnitee in or under any Other
Corporation/Indemnitee Agreement, or (iii) cause or require the
Corporation to indemnify or make any payment or reimbursement to, for
or on behalf of or for the benefit of the Indemnitee, or hold the
Indemnitee harmless, for, from or with respect to any matter with
respect to which the Indemnitee is required by, under, pursuant to or
in accordance with any Other Corporation/Indemnitee Agreement or
applicable law to indemnify or make any payment or reimbursement to,
for or on behalf of or for the benefit of the Corporation or hold the
Corporation harmless.
5. LIMITATIONS.
In no case shall any indemnification or payment be provided or made under this
Agreement to or on behalf of or for the direct or indirect benefit of the
Indemnitee by the Corporation:
1. except as set forth in Section 6(g) of this Agreement, in any
Proceeding brought by or in the name or interest of the Indemnitee
against the Corporation;
2. except as set forth in Section 6(g) of this Agreement, in any
Proceeding brought by the Corporation against the Indemnitee, which
action is initiated at the direction of the Board; or
3. for any Nonindemnifiable Conduct.
6. MISCELLANEOUS.
1. COOPERATION. The parties to this Agreement shall execute such powers
of attorney as may be necessary or appropriate to permit participation
of counsel selected by any party hereto and, as may be reasonably
related to any such claim or action, shall provide to the counsel,
accountants and other representatives of each party access during
normal business hours to all properties, personnel, books, records,
contracts, commitments and all other business records of such other
party and will furnish to such other party copies of all such documents
as may be reasonably requested (certified, if requested).
2. FURTHER ASSURANCES. The parties to this Agreement will execute and
deliver, or cause to be executed and delivered, such additional or
further documents, agreements or instruments and shall cooperate with
one another in all respects for the purpose of carrying out the
transactions contemplated by this Agreement.
3. NOTICES. Any notice, request, demand or other communication required
or permitted to be given or made under this Agreement shall be in
writing and shall be deemed to have been duly given: upon receipt if
personally delivered; upon successful completion of
INDEMNIFICATION AGREEMENT
PAGE 11
transmission if transmitted by telecopy, electronic telephone line
facsimile transmission or other similar electronic or digital
transmission method; at the close of business on the next business day
after it is sent, if sent by recognized overnight delivery service with
all fees payable by the sender; or at the close of business on the
fifth business day after it is sent, if mailed, first class mail,
postage prepaid. In each case such notice, request, demand or other
communication shall be sent to:
if to the Indemnitee:
At the Indemnitee's address on file with the Corporation.
if to the Corporation:
At the Corporation's principal executive offices.
or to such other address as either party may have specified in writing
to the other using the procedures specified above in this Section 6(c).
4. GOVERNING LAW. This Agreement shall be construed pursuant to and
governed by the substantive laws of the State of Florida (but any
provision of Florida law shall not apply if the application of such
provision would result in the application of the law of a state or
jurisdiction other than Florida).
5. SEVERABILITY. Any provision of this Agreement that is determined by
a court of competent jurisdiction to be prohibited, unenforceable or
not authorized in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition, unenforceability or
non-authorization without invalidating the remaining provisions hereof
or affecting the validity, enforceability or legality of such provision
in any other jurisdiction. In any such case, such determination shall
not affect any other provision of this Agreement, and the remaining
provisions of this Agreement shall remain in full force and effect. If
any provision or term of this Agreement is susceptible to two or more
constructions or interpretations, one or more of which would render the
provision or term void or unenforceable, the parties agree that a
construction or interpretation which renders the term or provision
valid shall be favored.
6. SPECIFIC ENFORCEMENT; PRESUMPTION.
1. The parties agree and acknowledge that, in the event of a
breach by the Corporation of its obligation promptly to indemnify
the Indemnitee as provided in
INDEMNIFICATION AGREEMENT
PAGE
12
this Agreement, or breach of any other material provision of this
Agreement, damages at law will be an insufficient remedy to the
Indemnitee. Accordingly, the parties agree that, in addition to
any other remedies or rights that may be available to the
Indemnitee, the Indemnitee shall also be entitled, upon
application to a court of competent jurisdiction, to obtain
temporary or permanent injunctions to compel specific performance
of the obligations of the Corporation under this Agreement.
2. There shall exist in any action to enforce the rights of the
Indemnitee under this Agreement a rebuttable presumption that the
Indemnitee has met the applicable standard(s) of conduct and is
therefore entitled to indemnification pursuant to this Agreement,
and the burden of proving that the relevant standards have not
been met by the Indemnitee shall be on the Corporation. Neither
the failure of the Corporation (including the Board or independent
legal counsel) prior to the commencement of such action to have
made a determination that indemnification is proper in the
circumstances because the Indemnitee has met the applicable
standard of conduct, nor an actual determination by the
Corporation (including the Board or independent legal counsel)
that the Indemnitee has not met such applicable standard of
conduct, shall (X) constitute a defense to the action, (Y) create
a presumption that the Indemnitee has not met the applicable
standard of conduct, or (Z) otherwise alter the presumption in
favor of the Indemnitee referred to in the preceding sentence.
7. COST OF ENFORCEMENT; INTEREST.
1. If either party to this Agreement engages the services of an
attorney or any other third party or in any way initiates legal
action to enforce the party's rights under this Agreement,
including but not limited to the collection of monies due, the
prevailing party in such action shall be entitled to recover all
Expenses incurred in connection therewith. Should the Indemnitee
prevail, such Expenses shall be in addition to monies otherwise
due the Indemnitee under this Agreement.
2. If any amount shall be due or payable under this Agreement
(including under an Expense Advance Request) and shall not be paid
within 30 days from the date as of which the obligation to make
such payment arises, interest shall accrue on such unpaid amount
from the date when due until it is paid in full at the rate of 2%
per annum in excess of the prime rate published from time to time
in THE WALL STREET JOURNAL in its "Money Rates" column or any
similar or successor column or feature, or such lower rate as may
be required to comply with applicable law.
8. NO ASSIGNMENT. Any claim, right, title, benefit, remedy or interest
of the Indemnitee in, to or under or arising out of or in connection
with this Agreement is personal and may not be sold, assigned,
transferred, pledged or hypothecated, but the provisions of this
Agreement
INDEMNIFICATION AGREEMENT
PAGE 13
shall survive the death, disability or incapacity of the Indemnitee or
the termination of the Indemnitee's service as a Director or officer of
the Corporation and shall inure to the benefit of the Indemnitee's
heirs, executors and administrators. This Agreement shall inure to the
benefit of and shall be binding upon the successors in interest and
assigns of the Corporation, including any successor corporation
resulting from a merger, consolidation, recapitalization,
reorganization, sale of all or substantially all of the assets of the
Corporation, or any other transaction resulting in the successor
corporation assuming the liabilities of the Corporation under this
Agreement (by operation of law or otherwise).
9. NO THIRD PARTY BENEFICIARIES. This Agreement is not intended to
benefit or entered into for the benefit of any third parties and, other
than as set forth in the preceding paragraph as to heirs, assignees and
successors, nothing in this Agreement, whether express or implied, is
intended or should be construed to confer upon, or to grant to, any
person, except the Corporation and the Indemnitee, any claim, right,
benefit or remedy under or because of this Agreement or any provision
set forth in this Agreement.
10. CONSTRUCTION. As used in this Agreement, (1) the word "including"
is always without limitation, and (2) words in the singular number
include words of the plural number and vice versa.
11. VENUE; PROCESS. The parties to this Agreement agree that
jurisdiction and venue in any action brought pursuant to this Agreement
to enforce its terms or otherwise with respect to the relationships
between the parties shall properly lie in and only in the Circuit Court
of the Sixth Judicial Circuit of the State of Florida in and for
Pinellas County (the "Circuit Court") and the parties agree that
jurisdiction shall not properly lie in any other jurisdiction provided,
however, if jurisdiction does not properly lie with the Circuit Court,
the parties agree that jurisdiction and venue shall properly lie in and
only in the United States District Court for the Middle District of
Florida, Tampa Division. The parties hereby waive any objections which
they may now or hereafter have based on venue and/or forum non
conveniens and irrevocably submit to the jurisdiction of any such court
in any legal suit, action or proceeding arising out of or relating to
this Agreement. The parties further agree that the mailing by certified
or registered mail, return receipt requested, of any process required
by any such court shall constitute valid and lawful service of process
against them, without the necessity for service by any other means
provided by statute or rule of court.
12. WAIVER AND DELAY. No waiver or delay in enforcing the terms of this
Agreement or in taking any action with respect to any breach of this
Agreement shall be construed as a waiver of any subsequent breach. No
action taken by the Indemnitee shall constitute a waiver of the
Indemnitee's rights under this Agreement.
INDEMNIFICATION AGREEMENT
PAGE 14
13. MODIFICATION. This Agreement contains the entire agreement of the
parties, and supersedes any prior written or oral agreement of the
parties, with respect to the subject matter hereof. This Agreement may
be modified only by an instrument in writing signed by both parties
hereto.
14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be considered an original, but all of
which together shall constitute one and the same instrument.
15. HEADINGS. The headings of the various sections in this Agreement
are inserted for the convenience of the parties and shall not affect
the meaning, construction or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement EFFECTIVE
as of the date first above written.
INDEMNITEE
/s/ W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 11/12/97
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Signature Date
W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
ECHELON INTERNATIONAL CORPORATION
By: /s/ ILLEGIBLE 11/04/97
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Date