Item 6. Indemnification of Directors and Officers.
The
Florida Business Corporation Act (the “FBCA”) permits a
corporation to indemnify officers, directors, employees and agents
under specified circumstances. Under Section 607.0831 of the FBCA,
a director is not personally liable for monetary damages to the
corporation or any other person for any statement, vote, decision,
or failure to act, regarding corporate management or policy, unless
(1) the director breached or failed to perform his or her duties as
a director and (2) the director’s breach of, or failure to
perform, those duties constitutes: (a) a violation of the criminal
law, unless the director had reasonable cause to believe his or her
conduct was lawful or had no reasonable cause to believe his or her
conduct was unlawful, (b) a transaction from which the director
derived an improper personal benefit, either directly or
indirectly, (c) a circumstance under which the liability provisions
of Section 607.0834 of the FBCA are applicable, (d) in a proceeding
by or in the right of the corporation to procure a judgment in its
favor or by or in the right of a shareholder, conscious disregard
for the best interest of the corporation, or willful misconduct, or
(e) in a proceeding by or in the right of someone other than the
corporation or a shareholder, recklessness or an act or omission
which was committed in bad faith or with malicious purpose or in a
manner exhibiting wanton and willful disregard of human rights,
safety, or property. A judgment or other final adjudication against
a director in any criminal proceeding for a violation of the
criminal law estops that director from contesting the fact that his
or her breach, or failure to perform, constitutes a violation of
the criminal law, but does not estop the director from establishing
that he or she had reasonable cause to believe that his or her
conduct was lawful or had no reasonable cause to believe that his
or her conduct was unlawful.
Under
Section 607.0850(1) of the FBCA, a corporation has the 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 fact that he or she 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 connection with such
proceeding, including any appeal thereof, if he or she acted in
good faith and in a manner he or she reasonably believed to be in,
or not opposed to, the best interests of the corporation and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe his or her conduct was unlawful. The termination
of any proceeding by judgment, order, settlement or conviction or
upon a plea of nolo contendere or its equivalent does not, of
itself, create a presumption that the person did not act in good
faith and in a manner which he or she reasonably believed to be in,
or not opposed to, the best interests of the corporation or, with
respect to any criminal action or proceeding, has reasonable cause
to believe that his or her conduct was unlawful.
In
addition, Section 607.0850(2) of the FBCA allows a corporation to
indemnify any person, who was or is a party to any proceeding by or
in the right of the corporation to procure a judgment in its favor
by reason of the fact that the person 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 expenses and amounts paid in
settlement not exceeding, in the judgment of the board of
directors, the estimated expense of litigating the proceeding to
conclusion, actually and reasonably incurred in connection with the
defense or settlement of such proceeding, including any appeal
thereof. Such indemnification shall be authorized if such person
acted in good faith and in a manner he or she reasonably believed
to be in, or not opposed to, the best interests of the corporation,
except that no indemnification shall be made under Section
607.0850(2) of the FBCA in respect of any claim, issue, or matter
as to which such person shall have been adjudged to be liable
unless, and only to the extent that, the court in which such
proceeding was brought, or any other court of competent
jurisdiction, shall determine upon application that, despite the
adjudication of liability but in view of all circumstances of the
case, such person is fairly and reasonably entitled to indemnity
for such expenses which such court shall deem proper.
Further, under
Section 607.0850(3) of the FBCA, to the extent that a director,
officer, employee or agent of the corporation has been successful
on the merits or otherwise in defense of any proceeding referred to
in Sections 607.0850(1) or 607.0850(2) described above, or in
defense of any claim, issue or matter therein, he or she shall be
indemnified against expenses actually and reasonably incurred by
him or her in connection therewith.
Under
Section 607.0850(7) of the FBCA, the indemnification and
advancement of expenses provided pursuant thereto are not
exclusive, and a corporation may make any other or further
indemnification or advancement of expenses of any of its directors,
officers, employees, or agents, under any bylaw, agreement, vote of
shareholders or disinterested directors, or otherwise, both as to
action in his or her official capacity and as to action in another
capacity while holding such office. However, indemnification or
advancement of expenses shall not be made to or on behalf of any
director, officer, employee or agent if a judgment or other final
adjudication establishes that his or her actions, or omissions to
act, were material to the cause of action so adjudicated and
constitute: (a) a violation of the criminal law, unless the
director, officer, employee or agent had reasonable cause to
believe his or her conduct was lawful or had no reasonable cause to
believe his or her conduct was unlawful; (b) a transaction from
which the director, officer, employee or agent derived an improper
personal benefit; (c) in the case of a director, a circumstance
under which the above liability provisions of Section 607.0834 of
the FBCA are applicable; or (d) willful misconduct or a
conscious disregard for the best interests of the corporation in a
proceeding by or in the right of the corporation to procure a
judgment in its favor or in a proceeding by or in the right of a
stockholder.
Section
607.0850(12) of the FBCA also provides that a corporation has the
power to purchase and maintain insurance on behalf of any person
who 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 any
liability asserted against the person and incurred by him or her in
any such capacity or arising out of his or her status as such,
whether or not the corporation would have the power to indemnify
the person against such liability under the provisions of Section
607.0850 of the FBCA.
While
the Registrant’s Restated Articles of Incorporation and
Bylaws do not expressly provide for indemnification of the
Registrant’s directors, officers, employees and agents, the
Registrant intends to provide for such indemnification to the
fullest extent permitted by law. The Registrant maintains
directors’ and officers’ liability insurance for the
benefit of its officers and directors.