Exhibit 2
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT ("Agreement") is entered into on the 9th day of August
2001 between SITEWORKS BUILDING AND DEVELOPMENT CO.,, a Florida corporation (the
"Company"), and Carf M Nurse_(Indemnitee").
R E C I T A L
The Indemnitee currently is serving as a director or officer, or both, of the
Company and the Company wishes the Indemnitee to continue in such capacities. In
order to induce the Indemnitee to continue to serve in such capacities for the
Company and in consideration for his continued service, the Company wishes to
provide for indemnification of the Indemnitee upon the terms and conditions set
forth below.
A G R E E M E N T
It is agreed as follows:
1. The Company will pay on behalf of the Indemnitee, and his executors,
administrators or assigns, any amount which he is or becomes legally
obligated to pay because of any claim or claims made against him because
of any act or omission or neglect or breach of duty which he commits or
suffers while acting in his capacity as a director or officer of the
Company. The payments which the Company will be obligated to make
hereunder shall include, INTER ALIA, damages, judgments, settlements,
costs of investigation and costs of defense of legal, criminal or
equitable actions, claims or proceedings and appeals therefrom, including
attorneys' fees of Indemnitee, costs of attachment or similar bonds,
costs of establishing a right to indemnification under this Agreement,
and fines, penalties or other obligations or fees imposed by law.
2. If a claim under this Agreement is not paid by the Company within 60 days
after a written claim has been received by the Company, the claimant may
at any time thereafter bring suit against the Company to recover the
unpaid amount of the claim and if successful, in whole or in part, the
claimant also shall be entitled to receive from the Company claimant's
reasonable attorneys' fees and other expenses of prosecuting such claim.
3. In the event of 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 reasonably required and
shall do everything that may be necessary or appropriate to secure such
rights, including the execution of such documents necessary or
appropriate to enable the Company effectively to bring suit to enforce
such rights.
4. Notwithstanding anything contained herein to the contrary:
(a) The Company shall not be liable to Indemnitee for, nor obligated to
furnish advances in connection with, any loss, cost or expense of Indemnitee
resulting from his willful or negligent violation of Section 16(b) of the
Securities Exchange Act of 1934 or the Foreign Corrupt Practices Act of 1977.
(b) The Company shall not be liable to the Indemnitee for, and shall not
be obligated to furnish any advances except for repayable costs, charges and
expenses as stated below, in connection with, any loss, cost or expense of
Indemnitee as the direct result of a final judgment for money damages payable to
the Company or any affiliate for or on account of loss, cost or expense directly
or indirectly resulting form the Indemnitee's negligence or misconduct within
the meaning of Florida General Corporation Law.
(c) Unless otherwise allowed by a court of competent jurisdiction, the
Company shall not be liable to Indemnitee for, and Indemnitee undertakes to
repay the Company for all advances which may have been made of, expenses of
investigation, defense or appeal of any matter the judgment of which is excluded
under subsection 4(b) next above.
(d) Unless otherwise determined by a court of competent jurisdiction, a
settlement of any suit, action or proceeding shall be presumed to be an
"expense" in mitigation of the expenses of continued litigation and not the
compromise of a judgment on the merits of the action, suit or proceeding.
(e) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Securities Act") may be permitted to directors of
the Company pursuant to the foregoing provisions, or otherwise, the Board of
Directors has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director of the Company in the wholly or
partially successful defense of any action, suit or proceeding) is asserted by
the Indemnitee in connection with Company securities which have been registered,
the Company will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it hereunder is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue. In effect, therefore, absent a court decision in the
individual case or controlling precedent, the provisions of the Agreement will
not apply to liabilities of the Indemnitee arising under the Securities Act
unless and only to the extent that the Indemnitee is successful in the defense
of the action, suit or proceeding in question.
(f) The Company shall not be liable under this Agreement to make any
payment in connection with any claim made against the Indemnitee:
(i) based upon or attributable to the Indemnitee or any member of
his immediate family gaining in fact any personal profit or
advantage to which he was not legally entitled;
(ii)based upon or attributable to the dishonesty of the Indemnitee seeking
payment hereunder; provided that the Indemnitee shall be protected under this
Agreement as to any claims upon which suit may be brought against him by reason
of any alleged dishonesty on his part, unless a judgment or other final
adjudication thereof adverse to the Indemnitee shall establish that he committed
acts of active and deliberate dishonesty, with actual dishonest purpose and
intent, which acts were material to the cause of action so adjudicated;
(iii)for bodily injury, sickness, disease or death of any person, or damage to
or destruction of any tangible property, including loss of use thereof; or
(iv)for which indemnification under this Agreement is determined by a final
adjudication of a court of competent jurisdiction to be unlawful and violative
of public policy.
5. The Indemnitee, as a condition precedent to his right to be indemnified under
this Agreement, shall give to the Company notice in writing as soon as
practicable of any claim made against him for which indemnity will or could be
sought under this Agreement. Notice to the Company shall be directed to the
attention of the Corporate Secretary of the Company at the address of the
Company's executive offices (or such other address as the Company shall
designate in writing to the Indemnitee); notice shall be deemed received if sent
by prepaid mail properly addressed, the date of such notice being the date
postmarked. In addition, upon request made by the Corporation the Indemnitee
shall give the Company such information and cooperation as it may reasonably
require and as shall be within the Indemnitee's power.
6. Costs and expenses (including attorneys' fees) incurred by the Indemnitee in
defending or investigating any action, suit, proceeding or investigation shall
be paid by the Company in advance of the final disposition of such matter. The
Indemnitee agrees to repay any such advances in the event that it is ultimately
determined that the Indemnitee is not entitled to indemnification under the
terms of the Agreement. Notwithstanding the foregoing or any other provision of
this Agreement, no advance shall be made by the Company if a determination is
reasonably and promptly made by the board of directors by a majority vote of a
quorum of disinterested directors, or (if such a quorum is not obtainable or,
even if obtainable, a quorum of disinterested directors so directs) by
independent legal counsel, that, based upon the facts known to the board or
counsel at the time such determination is made, (a) the Indemnitee knowingly and
intentionally acted in bad faith, and (b) it is more likely than not that it
will ultimately be determined that the Indemnitee is not entitled to
indemnification under the terms of this Agreement.
7. Nothing contained herein
shall be deemed to diminish or otherwise restrict the Indemnitee's right to
indemnification under any provision of the articles of incorporation or bylaws
of the Company or under Florida law.
8. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
9. This Agreement
shall be binding upon all successors and assigns of the Company (including any
transferee of all or substantially all of its assets and any successor by merger
or operation of law) and shall inure to the benefit of the heirs, personal
representatives and estate of Indemnitee.
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed and signed as of the day and year
first above written.
"COMPANY"
SITEWORKS BUILDING AND DEVELOPMENT CO.,,
a Florida corporation
Xxxx M Nurse,
President
"INDEMNITEE
