1
EXHIBIT 10.11
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made and entered
into EFFECTIVE as of the _____ day of ____ _________, 1997, by and between
________________________________________________ (the "Indemnitee"), and
LAMALIE ASSOCIATES, INC., 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:
a. 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.
b. Agreement of Indemnity means the agreement
provided for by Section 3(e)(i) of this Agreement.
c. Associate of a Person means a director,
officer, employee, agent, consultant, independent contractor,
stockholder or partner of such Person.
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d. Board means the Board of Directors of the
Corporation.
e. 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.
f. 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.
g. Expense Advance Request means the request
provided for by Section 3(d)(ii) of this Agreement.
h. FBCA means a the Florida Business Corporation
Act, Chapter 607, Florida Statutes, and any successor statute.
i. Indemnification Notice means the notice
provided for by Section 3(a) of this Agreement.
j. 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.
k. 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.
l. 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:
i. 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;
ii. a transaction from which the
Indemnitee derived an improper personal
benefit;
iii. 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 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
iv. conduct as to which then
applicable law prohibits indemnification.
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INDEMNIFICATION AGREEMENT
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m. 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.
n. Proceeding means any threatened, pending or
completed claim, demand, inquiry, investigation, action, suit
or proceeding, 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.
o. 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:
a. 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);
b. 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 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
c. 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.
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3. CLAIMS FOR INDEMNIFICATION; PROCEDURES
a. 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.
b. 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.
c. 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.
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INDEMNIFICATION AGREEMENT
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d. Expenses.
i. 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.
ii. 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.
e. Rights to Defend or Settle; Third Party
Proceedings, etc.
i. 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
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INDEMNIFICATION AGREEMENT
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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.
ii. 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.
iii. 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.
iv. 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.
v. 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
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INDEMNIFICATION AGREEMENT
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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.
vi. The Indemnitee shall
cooperate in the defense or prosecution of
any Third Party Proceeding controlled by the
Corporation.
vii. The parties shall cooperate
in good faith and use reasonable efforts to
mitigate and minimize any Expense or
Liability.
f. 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.
g. 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 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.
h. Representations and Agreements of the
Corporation.
i. 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.
ii. 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
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initiate, any action, suit or proceeding
challenging the validity or enforceability of
this Agreement.
iii. 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.
a. Nonexclusivity.
i. 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.
ii. 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.
b. Availability, Contribution, Etc.
i. 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.
ii. 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.
iii. 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
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Agreement but not for the total amount
thereof, the Corporation shall indemnify the
Indemnitee for the portion thereof to which
the Indemnitee is entitled.
iv. 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.
c. 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.
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:
a. 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;
b. 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
c. for any Nonindemnifiable Conduct.
6. MISCELLANEOUS.
a. 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).
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b. 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.
c. 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 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:
if to the Corporation:
With a copy to:
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).
d. 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).
e. 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
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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.
f. Specific Enforcement; Presumption.
i. 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 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.
ii. 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.
g. Cost of Enforcement; Interest.
i. 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.
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ii. 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.
h. 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 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).
i. 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.
j. 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.
k. 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
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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.
l. 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.
m. 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.
n. 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.
o. 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
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Signature Date
LAMALIE ASSOCIATES, INC.
By:
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Date