§17.112PROXY STATEMENTS: STRATEGY & FORMS
17-158 © 1990 Jefren Publishing Company, Inc.
EXHIBIT A
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is made this day of , 1989, by and between
DEVCON INTERNATIONAL CORP., a Florida corporation (the “Company”), and (the
“Indemnitee”).
Preliminary Statements
A. The Company desires to retain the services of the Indemnitee as a director and/or officer of the
Company.
B. Section 607.014 of the Florida General Corporation Act (the “Florida Statute”) provides a
nonexclusive statutory basis for the indemnification of directors and officers of a Florida corporation and
authorizes agreements between the Company and its officers and directors with respect to indemnification of
such individuals.
C. Recent developments with respect to the terms and availability of directors a nd officers insurance
(“D&O Insurance”) have raised questions concerning the adequacy and reliability of the protec tion afforded to
officers and directors by D&O Insurance.
D. Highly competent persons are becoming more reluctant to serve or to continue to serve publi cly
held corporations as directors or in other capacities unless they are provided with ade quate protection through
insurance and/or adequate indemnification against claims and actions against them arising out of their service to
and activities on behalf of such corporations.
E. It is reasonable, prudent and necessary for the Company contractually to obligate i tself to
indemnify such persons so that they will serve or continue to serve the Company free from undue concern that
they will not be so indemnified, and the Indemnitee is willing to serve, continue to serve and to take on
additional service for or on behalf of the Company on the condition that he be so indemnified.
Agreement
In order to induce the Indemnitee to serve or to continue to serve as a director and/or officer of the
Company and/or a subsidiary of the Company, the Company has determined and agreed to ente r into this
agreement with the Indemnitee, and the Company and the Indemnitee agree as follows:
1.Mandatory Indemnification in Actions, Suits or Proceedings Other Than Those by or in the
Right of the Company. Subject to Section 4 hereof, the Company shall indemnify and hold harmless the
Indemnitee from and against any claims, damages, expenses (including attorneys’ fees), judgm ents, fines
(including excise taxes assessed with respect to employee benefit plans), penalties a nd amounts paid in
settlement actually and reasonably incurred by the Indemnitee in connection with the investigation, defense,
settlement or appeal of any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the C ompany) 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 a director, officer, shareholder, employee or agent of the Company, or is or was serving at the request of the
Company as a director, officer, partner, trustee, employee or agent of another corporation, pa rtnership, 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 a cted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the Company, a nd, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.
INDEMNIFICATION§17.112
September 1990 17-159
2.Mandatory Indemnification in Actions or Suits by or in the Right of the Company. Subject to
Section 4 hereof, the Company shall indemnify and hold harmless the Indemnitee from and against any
expenses (including attorneys’ fees) and amounts paid in settlement not exceeding, in the judgment of the Board
of Directors of the Company, the estimated expenses of litigating the proceeding t o conclusion, actually and
reasonably incurred by him in connection with the investigation, defense, settlement or a ppeal of any
threatened, pending or completed action or suit by or in the right of the Company to proc ure a judgment in its
favor 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 a director, officer, shareholder, employee or agent of the Compa ny, or is or was
serving at the request of the Company as a director, officer, partner, trustee, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, or by rea son of anything
done or not done by the Indemnitee in such capacity or capacities, provided that the Inde mnitee acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best inte rests of the Company and
except that no indemnification shall be made in respect of any claim, issue or matter as to which the Indemnitee
shall have been adjudged to be liable to the Company unless and only to the exte nt that the court in which such
action or suit was brought (or any other court of competent jurisdiction) shall determine upon a pplication that,
despite the adjudication of liability but in view of all the circumstances of t he ease, the Indemnitee is fairly and
reasonably entitled to indemnity for such expenses which such court shall deem proper.
3.Reimbursement of Expenses Following Adjudication of Negligence. The Company shall
reimburse the Indemnitee for any expenses (including attorneys’ fees) or amounts paid in settle ment actually
and reasonably incurred by him in connection with the investigation, defense, settleme nt of appeal of any action
or suit described in Section 2 hereof that results in an adjudication that the Inde mnitee was liable for negligence
(including gross negligence and 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 reasonably believed to
be in the best interests of the Company.
4.Limitations on Additional Indemnification. No indemnification pursuant to Sections I and 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 t o the cause of action so adjudicated
and constitute:
(a) a violation of criminal law, unless the Indemnitee had reasonable cause to bel ieve his
conduct was lawful or had no reasonable cause to believe his conduct was unlawful;
(b) a transaction from which the Indemnitee received an improper personal benefit within the
meaning of Section 607.014(7) of the Florida Statute;
(c) a circumstance under which the liability provisions of Section 607.144 of the Florida
General 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 proceedi ng by or in the
right of a shareholder of the Company.
5.Disbursement/Repayment of Expenses. In addition to the prompt payment of any
indemnification to which the Indemnitee may be entitled, upon the demand of the Indem nitee, the Company
shall promptly (and in any event within 5 business days after written demand therefor) advanc e to or reimburse
the Indemnitee for all reasonable expenses (including, without limitation, trial, a ppellate and other attorneys’
fees, court costs, judgments, fines, penalties, amounts paid in settlement and other payments) that the
Indemnitee may incur in responding to, investigating, defending, settling or appealing any thre atened, pending
or completed claim, action, suit or proceeding for which it reasonably appears that t he Indemnitee may be
entitled to indemnification from the Company, either pursuant to this Agreement, the Florida Statute, the
Company’s Articles of Incorporation and Bylaws or otherwise. The Indemnitee hereby undertakes and a grees to
reimburse the Company for all such expenses in the event, and only to the extent, tha t it shall be ultimately
determined that the Indemnitee is not entitled to be indemnified by the Company for such expenses under the
provisions
§17.112PROXY STATEMENTS: STRATEGY & FORMS
17-160 © 1990 Jefren Publishing Company, Inc.
of Section 4 of this Agreement. Such undertaking to reimburse the Company for amounts advanced if it is
ultimately determined that the Indemnitee is not entitled to be indemnifi ed by the Company is an unlimited
general, unsecured and interest- free obligation of the Indemnitee. The Company shall m ake the advances
contemplated by this Section 5 regardless of whether a Determination (as hereinafter de fined) has been made
and regardless of the Indemnitee’s financial ability to make repayment.
6.Indemnification Procedures.
(a) Payment/Determination of Indemnification. Upon any request from the Indemnitee for
indemnification from the Company, whether pursuant to this Agreement, the Florida Statute , the Company’s
Articles and Bylaws or otherwise, the Company shall promptly pay the full amount of such re quested
indemnification. If the Company’s Board of Directors (the “Board”) reasonably believes that all or any portion
of such indemnification pursuant to this Agreement is prohibited by Section 4 hereof, the Com pany shall in any
event promptly pay the amount of such indemnification, if any, that may reasonably then be paid and shall
promptly make or cause to be made a determination of whether the payment of the balance is limited by Section
4 hereof (the “Determination”). Such Determination shall be made in the following order of preference.
(i) by the Board by majority vote or consent of a quorum consisting of directors who
are not, at the time of the Determination, named parties to such action, suit or proceeding (“Disinterested
Directors”); or
(ii) 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 di rectors, whether or not
Disinterested Directors, may participate) consisting solely of two or more Disinterested Directors; or
(iii) if such a committee cannot be established, by the opinion of the independent l egal
counsel (who may be the outside legal counsel regularly employed by the Company); or
(iv) if such legal opinion cannot be obtained, by vote or consent of the holders of a
majority of the Company’s capital stock present and entitled to vote at a m eeting called for such purpose (a
“Shareholder Determination”).
(b)Presumptions and Effect of Certain Proceedings. In making a Determination with respect
to entitlement to indemnification hereunder, the person or persons or entity making the De termination shall
presume that Indemnitee is entitled to indemnification under this Agreement and the Company shall have the
burden of proof to overcome that presumption in connection with the making by any person, persons or ent ity
of any Determination contrary to that presumption. The termination of any claim, action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equival ent, shall not, of itself,
be determinative of or create a presumption that the Indemnitee is not entitle d to indemnification or
reimbursement of expenses hereunder or otherwise.
(c)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) informa tion supplied to him
by the officers of the Company or another enterprise in the course of their duties, (iii) the advice of legal
counsel for the Company or another enterprise, or (iv) information or records given or reports made to the
Company or another enterprise by an independent certified public accountant or by an apprai ser or other expert
selected with reasonable care by the Company or another enterprise. The term “another enterprise” as used in
this Section 6(c) shall mean any other corporation or any partnership, joint venture, t rust, employee benefit plan
or other enterprise of which the Indemnitee is or was serving at the request of the Compa ny as a director,
officer, partner, trustee, employee or agent. The provisions of this Section 6(c) shall not be de emed to be
exclusive or to limit in any way the other circumstances in which the Indem nitee may be deemed to have met
the applicable standard of conduct set forth herein.
INDEMNIFICATION§17.112
September 199017-161A
(d)Success on Merits or Otherwise. Notwithstanding any other provision of
this Agreement, to the extent that the Indemnitee has been successful on the me rits or otherwise
in defense of any action, suit or proceeding described herein, or in defense of any clai m, issue or
matter therein, he shall be indemnified against all costs and expenses (incl uding trial, appellate
and other attorneys’ fees) actually and reasonably incurred by him in connection with the
investigation, defense, settlement or appeal thereof. For purposes of this Section 6(d), the term
“successful on the merits or otherwise” shall include, but not be limited to, (i) a ny termination,
withdrawal, or dismissal (with or without prejudice) of any claim, action, suit or procee ding
against the Indemnitee without any express finding of liability or guilt against him, (ii) the
expiration of 90 days after the making of any claim or threat of an action, suit or proc eeding
without the institution of the same and without any promise or payment made to induc e a
settlement, or (iii) the settlement of any action, suit or proceeding pursuant to whic h the
Indemnitee pays less than $15,000.
(e)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, costs and expenses (including trial, appellate and
other attorneys’ fees), judgments, fines, penalties or amounts paid in settlement by the
Indemnitee in connection with the investigation, defense, settlement or appeal of any action
specified herein, but not, however, for the total amount thereof, the Company shall neverthele ss
indemnify and/or reimburse the Indemnitee for the portion thereof to which the Indemnitee i s
entitled. The party or parties making the Determination shall determine the portion (if less than
all) of such claims, damages, expenses (including trial, appellate and other at torneys’ fees),
judgments, fines or amounts paid in settlement for which the Indemnitee is entitle d to
indemnification and/or reimbursement under this Agreement.
(f)Costs. All costs of making any Determination required by this Section 6
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-ordere d
indemnification, 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 including trial, appellate and other attorneys’ fees and costs.
(g)Timing of the Determination. The Company shall use its best efforts to
make the Determination contemplated by this Section 6 promptly, but in all events within the
following time periods:
(i) 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 writte n request for a
Determination (a “Request”) is delivered to the Company by the Indemnitee;
(ii) if the Determination is to be made by independent legal counsel
(who may be the outside legal counsel regularly employed by the Company), such Determination
shall be made not later than 30 days after a Request is delivered to the Company by the
Indemnitee; and
(iii) if the Determination is to be made by the Company’s shareholders,
such Determination shall be made not later than 90 days after a Request is de livered to the
Company by the Indemnitee.
The failure to make a Determination within the above-specified time period sha ll constitute a
Determination that full indemnification is not limited or prohibited by Section 4 he reof.
Notwithstanding anything herein to the contrary, a Determination may be made in advanc e of (i)
the Indemnitee’s payment (or incurring) of expenses with respect to which indemnification or
§17.112PROXY STATEMENTS: STRATEGY & FORMS
17-161B © 1990 Jefren Publishing Company, Inc.
reimbursement is sought, and/or (ii) final disposition of the action, suit or proceeding with
respect to which indemnification or reimbursement is sought.
INDEMNIFICATION§17.112
September 199017-161C
(h)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) in all events within the applicable ti me periods
following the Indemnitee’s delivery to the Company of a reasonable accounting of expenses
incurred (which may be part of the Request or delivered at any time before or afte r delivery of a
Request):
(a) within 15 days, if by the Board by a majority vote or consent of a
quorum consisting of Disinterested Directors; or
(b) within 15 days, if a quorum cannot be obtained under subdivision
(a), by majority vote or consent of a committee duly designated by the Board (in whi ch
designation all directors, whether or not Disinterested Directors, may participate), consisting
solely of two or more Disinterested Directors; or
(c) within 90 days, if by a Shareholder Determination because a
finding cannot be obtained under either subdivision (a) or (b).
All expenses shall be considered reasonable for purposes of this Agreement if the finding
contemplated by this Section 6(h) is not made within the prescribed time periods. The fi nding
required by this Section 6(h) may be made in advance of the payment (or incurring) of the
expenses for which indemnification or reimbursement is sought.
(i)Selection of Independent Legal Counsel. If the Determination required
under Section 6 is to be made by independent legal counsel, such counsel shall be selec ted 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 6(l) 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 its fees a nd expenses
and such other matters as may be reasonably requested by counsel.
(j)Shareholder Vote on Determination. In connection with each meeting at
which a Shareholder Determination will be made, the Company shall solicit proxies t hat
expressly include a proposal to indemnify or reimburse the Indemnitee. Subject to the fiducia ry
duties of its members under applicable law, the Board will not recommend against
indemnification or reimbursement in any proxy statement relating to the proposal to i ndemnify
or reimburse the Indemnitee.
(k)Right of Indemnitee to Appeal an Adverse Determination by Board,
Committee or Counsel. If a Determination is made by the Board, a committee thereof or by
independent legal counsel that all or any portion of a request for indemnification pursuant t o this
Agreement is prohibited by Section 4 hereof, then upon the written request of the Indemnite e,
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. Such Shareholder Determination shall be binding and conclusive for all
purposes of this Agreement, but shall not preclude the Indemnitee from seeking court-ordered
indemnification or reimbursement pursuant to any provision of the Florida Statute or otherwise.
(l)Right of Indemnitee to Select Method of Determination. If at any time
subsequent to the date of this Agreement, “Continuing Directors” (as defined below) 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 Securities and Exchange Commission
Regulation S-K), then upon the request of the Indemnitee, the Company shall cause the
Determination required by this Section 5 to be made by independent legal counsel desi gnated 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 Section 6(a)(iii) hereof. If none of
the legal counsel selected by the Indemnitee are willing and/or able to m ake the Determination,
§17.112PROXY STATEMENTS: STRATEGY & FORMS
17-161D © 1990 Jefren Publishing Company, Inc.
then the Company shall cause the Determination to be made by a majority vot e 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 Agree ment or a
person nominated to serve as a member of the Board by a majority of the then Continui ng
Directors.
INDEMNIFICATION§17.112
September 199017-161E
(m)Access by the 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 othe r
information relating to any requested Determination. The Company shall also afford t he
Indemnitee the reasonable opportunity to include such evidence and information in any
Company proxy statement relating to a Shareholder Determination.
7.Scope of Indemnity. The claims, actions, suits and proceedings described in
Sections 1 and 2 hereof shall include, for purposes of this Agreement, any actions that invol ve,
directly or indirectly, activities of the Indemnitee both in his official c apacities as a Company
director or officer and actions taken in another capacity while serving as director or offi cer,
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 Com pany,
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 atte mpt of
the Company, (v) transactions by the Indemnitee in Company securities, and (vi) the
Indemnitee’s preparation for and appearance (or potential appearance) as a witness in a ny
proceeding relating, directly or indirectly, to the Company. In addition, the Company a grees 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 Company or
partnership in which the Company or any subsidiary has a 5 percent ownership interest or any
other affiliate shall be deemed to be at the request of the Company.
8.Contribution.
(a) If the indemnification provided in Sections 1, 2 and 3 hereof is unavailable
and may not be paid to the Indemnitee for any reason other than those set forth in Se ction 4
hereof, then in respect of any threatened, pending or completed action, suit or proceeding i n
which the Company is jointly liable with the Indemnitee (or would be if joined i n such action,
suit or proceeding), the Company shall contribute to the amount of expenses, judgments, fine s
and settlements paid or payable by the Indemnitee in such proportion as is appropriate t o reflect
(i) the relative benefits received by the Company on the one hand and the Indemnitee on the
other hand from the transaction from which such action, suit or proceeding arose, and (ii) the
relative fault of the Company on the one hand and of the Indemnitee on the other in conne ction
with the events that resulted in such expenses, judgments, fines or settlement am ounts, as well as
any other relevant equitable considerations. The relative fault of the Company on t he one hand
and of the Indemnitee on the other shall be determined by reference to, among other things, the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
the circumstances resulting in such expenses, judgments, fines or settlement amounts. The
Company agrees that it would not be just and equitable if contribution pursuant to t his Section 8
were determined by pro rata allocation or any other method of allocation that does not take into
account the foregoing equitable considerations.
(b) The determination as to the amount of the contribution, if any, shall be
made by:
(i) a court of competent jurisdiction upon the application of both the
Indemnitee and the Company (if an action or suit had been brought in, and final det ermination
had been rendered by, such court);
(ii) the Board by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding; or
(iii) independent legal counsel (who may be the regular outside counsel
of the Company), if a quorum is not obtainable for purpose of (ii) above, or, even if obtainable, a
quorum of Disinterested Directors so directs.
§17.112PROXY STATEMENTS: STRATEGY & FORMS
17-161F © 1990 Jefren Publishing Company, Inc.
9.Notification and Defense of Claim. Promptly after receipt of notice of the
commencement of any action, suit or proceeding, the Indemnitee will, if a clai m in respect
thereof is to be made against the Company under this Agreement, notify the Company of the
commencement thereof, but the omission to so notify the Company will not relieve t he Company
from any liability that it may have to the Indemnitee otherwise than under thi s Agreement. With
respect to any such action, suit or proceeding as to which the Indemnitee so notifies the
Company:
(a) The Company will be entitled to participate therein at its own expense;
(b) Except as otherwise provided below, the Company may assume the
defense thereof, with counsel satisfactory to the Indemnitee. After notice from the Compa ny to
the Indemnitee of its election to assume the defense, the Company will not be liable to the
Indemnitee under this Agreement for any legal or other expenses subsequently incurred by the
Indemnitee in connection with the defense thereof, other than reasonable costs of invest igation or
as otherwise provided below. The Indemnitee shall have the right to employ his counsel in such
action, suit or proceeding, but the fees and expenses of such counsel incurred after notice from
the Company of its assumption of the defense thereof shall be at the expense of the Inde mnitee
unless: (i) the employment of counsel by the Indemnitee has been authorized by the Company;
(ii) the Indemnitee shall have reasonably con-eluded that there may be a conflict of interest
between the Company and the Indemnitee in the conduct of the defense of such action; or (iii)
the Company shall not in fact have employed counsel to assume the defense of such ac tion, in
each of which eases the fees and expenses of the Indemnitee’s counsel shall be at the expense of
the Company. The Company shall not be entitled to assume the defense of any act ion, suit or
proceeding brought by or on behalf of the Company or as to which the Indemnitee shall have
come to the conclusion provided for in (ii) above; and
(c) The Company shall not be liable to indemnify the Indemnitee under this
Agreement for any amounts paid in settlement of any action or claim effected without its written
consent. The Company shall not settle any action or claim in any manner tha t would impose any
penalty or limitation on the Indemnitee without the Indemnitee’s written consent. Nei ther the
Company nor the Indemnitee will unreasonably withhold its or his consent to any proposed
settlement.
10.Disclosure of Payments. Except as expressly required by Section 607.014(13)
of the Florida General Corporation Act and by Federal securities laws or Federal law, ne ither
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 expl ain
in such statement any mitigating circumstances regarding the events reported.
11.Covenant Not to Sue; Limitation of Actions; Release of Claims. Except for
actions by the Company seeking to require the Indemnitee to reimburse it for amounts adva nced
to the Indemnitee that are ultimately determined to be amounts that the Indemnitee was not
entitled, 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 from the date the
Indemnitee ceases (for any reason) to serve as either an officer or director of the Com pany, and
any claim or cause of action of the Company (or any of its subsidiaries) shall be exti nguished
and deemed released unless asserted by the filing of a legal action within such 2-year period.
INDEMNIFICATION§17.112
September 199017-161G
12.Continuation of Obligations. All agreements and obligations of the Company
contained herein shall continue during the period the Indemnitee is a director, officer, employee
or agent of the Company (or is serving at the request of the Company as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise),
and shall continue thereafter for so long as the Indemnitee shall be subject to any possi ble claim
or threatened, pending or completed action, suit or proceeding, whether civil, criminal or
investigative, by reason of the fact that the Indemnitee was an officer or director of the Company
or serving in any other capacity referred to herein, whether or not the Indemnitee has c eased to
serve in any such capacity due to his resignation, removal by vote of directors or sharehol ders,
termination, death, disability or otherwise.
13.Indemnification of Indemnitee’s Estate. Notwithstanding any other provision of
this Agreement, and regardless of whether indemnification of the Indemnitee would be permit ted
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), penalt ies,
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 appe al of any
action described in this Agreement. Indemnification of the Indemnitee’s Estate pursua nt to this
Section 13 shall be mandatory and not require a Determination or any other finding that the
Indemnitee’s conduct satisfied a particular standard of conduct.
14.Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this
Agreement and assumed the obligations imposed on it hereby in order to induce the Indem nitee
to serve or to continue to serve as a director and/or officer of the Company and/or a subsidia ry of
the Company, and acknowledges that the Indemnitee is relying upon this Agreement in agreeing
to serve or to continue to serve in such capacity.
(b) In the event the Indemnitee is required to bring any action to enforce his
rights or to collect monies due under this Agreement and is successful in such action, the
Company shall reimburse the Indemnitee for all of the Indemnitee’s reasonable fees and
expenses in bringing and pursuing such action, including reasonable attorneys’ fees (including
trial, appellate and other attorneys’ fees), court costs and other related expenses.
15.Miscellaneous.
(a) 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 a nd/or
reimbursed for expenses as described herein to the fullest extent permitted by law.
(b)Nonexclusivity; Subrogation; Entire Agreement. 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 the Florida Statute, the Articles, the
Bylaws, a vote of the Company’s
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17-161H © 1990 Jefren Publishing Company, Inc.
shareholders, or otherwise. In the event of any payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of recovery of the
Indemnitee, who shall execute all papers required and take all action necessary t o secure such
rights, including the execution of such documents as are necessary to enable the Company t o
bring suit to enforce such rights. The Company shall not be liable under this Agreement to make
any payment of amounts otherwise indemnifiable hereunder if and to the extent that the
Indemnitee has otherwise actually received such payment under any insurance policy, cont ract,
agreement or otherwise. This Agreement constitutes the entire agreement between the Company
and the Indemnitee with respect to the subject matter hereof and supersedes all pri or agreements,
understandings, negotiations and discussions, both written and oral, between the parties hereto
with respect to such subject matter (the “Prior Agreements”); provided, however, that if this
Agreement shall ever be held void or unenforceable for any reasons whatsoever, and is not
reformed pursuant to Section 16(d) hereof, then (i) this Agreement shall not be deemed to have
superseded any Prior Agreements; (ii) all of such Prior Agreements shall be deemed to be in full
force and effect notwithstanding the execution of this Agreement; and (iii) the Indemnit ee shall
be entitled to maximum indemnification benefits provided under the Florida Statute, t he Articles,
the Bylaws, a vote of Company’s shareholders, or any Prior Agreements.
(c)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 that heretofore have taken
place.
(d)Severability; Reformation. Each of the provisions of this Agreement is a
separate and distinct agreement and independent of the others, so that if any provisi on hereof
shall be held to be invalid or unenforceable in whole or in part for any reason, such inval idity or
unenforceability shall not affect the validity or enforceability of the other provisions here of. In
the event that all or any portion of this Agreement is ever held void or unenforcea ble by a court
of competent jurisdiction, then the parties hereto hereby expressly authorize such court t o modify
any provision(s) held void or unenforceable to the extent, and only to the extent, necessary to
render it valid and enforceable.
(e)Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if (i) de livered by
hand and receipted for by the party to whom said notice or other communication is direc ted, or
(ii) mailed by certified or registered mail, postage prepaid, on the third business day after the
date on which it is so mailed:
If to the Indemnitee: To the address set forth on the signature page hereof.
If to the Company: Devcon International Corp.1350 E. Newport Center Drive
Suite 201 Deerfield Beach, Florida 33443
Attn: Secretary
or to such other address as may have been furnished by either party to the other.
(f)Amendments or Modifications. This Agreement may not be amended or
modified in any way except by a written instrument executed by all of the parties.
(g)Governing Law. This Agreement shall be governed by, interpreted and
enforced in accordance with the laws of the State of Florida, without giving effect to the
principles of conflicts of law thereof.
(h)Successors and Assigns. This Agreement shall be binding upon the
Indemnitee and the Company, its successors and assigns, and shall inure to the benefit of t he
INDEMNIFICATION§17.112
September 1990 17-161I
Indemnitee, his heirs, personal representatives and assigns and to the benefit of the Company, its
successors and assigns.
§17.112PROXY STATEMENTS: STRATEGY & FORMS
17-161J © 1990 Jefren Publishing Company, Inc.
(i)Identical Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original but al l of which
together shall constitute one and the same agreement. Only one such counterpart signed by t he
party against whom enforceability is sought needs to be produced to evidence the exist ence of
this Agreement.
(j)Gender and Number. Whenever the context shall so require, all words
herein in the male gender shall be deemed to include the female or neuter ge nder, all singular
words shall include the plural words and all plural words shall include the singular.
(k)Headings. The headings of the sections of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or to a ffect the
construction thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of
the day and year first above written.
THE COMPANY:
DEVCON INTERNATIONAL CORP.
By:__________________________________
THE INDEMNITEE:
_____________________________________
Address:______________________________ ____________________________________________________________
EXHIBIT B
607.014 Indemnification of officers, directors, employees, and agents. (1) A corporation shall have power to indemnify any person who was or is a party to
any proceeding (other than an action by, or in the right of, the corporation), by reason of the fa ct
that he is or was a director, officer, employee, or agent of the corporation or is or was serving at
the request of the corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise against liability incurred in connect ion with
such proceeding, including any appeal thereof, if he acted in good faith and in a m anner he
reasonably believed to be in, or not opposed to, the best interests of the corporation and, wi th
respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any proceeding by judgment, order, settlement, or conviction or
upon a plea of nolo contendere or its equivalent shall not, of itself, create a pre sumption that the
person did not act in good faith and in a manner which he reasonably believed to be in, or not
opposed to, the best interests of the corporation or, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
