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EXHIBIT 10.15
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is made and entered into this 1st day
of May, 1997, but effective as of October 10, 1996, by and between XXXXX X.
XXXXXXX (the "Indemnified Party") and DISCOUNT AUTO PARTS, 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 and/or Executive Officers 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 has been severely
limited; and
WHEREAS, in addition, the statutory indemnification provisions of the
Florida Business Corporations Act and Article VI of the bylaws of the
Corporation (the "Article") expressly provide that they are non-exclusive; and
WHEREAS, the Indemnified Party does not regard the protection
available under the Article and insurance, if any, as adequate in the present
circumstances, and considers it necessary and desirable to his service as a
Director and/or Executive Officer to have adequate protection, and the
Corporation desires the Indemnified Party to serve in such capacity have such
protection; and
WHEREAS, the Florida Business Corporations Act and the Article provide
that indemnification of Directors and Executive Officers of the Corporation may
be authorized by agreement, and thereby contemplates that contracts of this
nature may be entered into between the Corporation and the Indemnified Party
with respect to indemnification of the Indemnified Party as a Director and/or
Executive Officer of the Corporation.
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained in this Agreement, it is hereby agreed as
follows:
1. INDEMNIFICATION GENERALLY.
(a) Grant of Indemnity. Subject to and upon the terms and
conditions of this Agreement, the Corporation hereby agrees to indemnify the
Indemnified Party in respect of any and all claims, losses, damages and
expenses which may be incurred by the Indemnified Party as a result of or
arising out of:
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(1) any threatened, pending, or completed action,
suit or proceeding, whether brought by or in the right of the
Corporation or otherwise and whether of a civil, criminal,
administrative or investigative nature, in which the
Indemnified Party may be or may have been involved as a party
or otherwise, arising out of the fact that the Indemnified
Party is or was a director, officer, employee, agent or
stockholder of the Corporation or any of its "Affiliates" (as
such term is defined in the rules and regulations promulgated
by the Securities and Exchange Commission under the Securities
Act of 1933), or served as a director, officer, stockholder,
agent, employee, salesman, independent contractor, partner,
franchisor or joint venturer in or for any person, firm,
partnership, corporation or other entity at the request of the
Corporation (including without limitation service in any
capacity for or in connection with any employee benefit plan
maintained by the Corporation or on behalf of the
Corporation's employees).
(2) any attempt (regardless of its success) by any
person to charge or cause the Indemnified Party 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; or
(3) any expense, assessment, fine, tax, judgment or
settlement payment arising out of or incident to any of the
matters indemnified against in this Agreement including
reasonable fees and disbursements of counsel (before and at
trial and in appellate proceedings).
(b) Claims for Indemnification. (i) Whenever any claims
shall arise for indemnification under this Agreement, the Indemnified Party
shall notify the Corporation promptly and in any event within 30 days after the
Indemnified Party has actual knowledge of the facts constituting the basis for
such claim. The notice shall specify all facts known to the Indemnified Party
giving rise to such indemnification right and the amount or an estimate of the
amount of liability (including estimated expenses) arising therefrom.
(ii) Any indemnification under this Agreement shall
be made no later than 30 days after receipt by the Corporation of the written
notification specified in Section 1(b)(i), unless a determination is made
within such 30 day period by (X) the Board of Directors by a majority vote of a
quorum consisting of directors who were not parties to the matter described in
the notice or (Y) independent legal counsel, agreed to by the Corporation, in a
written opinion (which counsel shall be appointed if such a quorum is not
obtainable), that the Indemnified Party has not met the relevant standards for
indemnification under this Agreement.
(c) Rights to Defend or Settle; Third Party Claims, etc. (i)
If the facts giving rise to any indemnification right under this Agreement
shall involve any actual or threatened claim or demand against the Indemnified
Party, or any possible claim by the Indemnified Party against any third party,
such claim shall be referred to as a "Third Party Claim." If the Corporation
provides the Indemnified
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Party with an agreement in writing in form and substance satisfactory to the
Indemnified Party and his counsel, agreeing to indemnify and hold the
Indemnified Party harmless from all costs and liability arising from any Third
Party Claim (an "Agreement of Indemnity"), and demonstrating to the
satisfaction of the Indemnified Party the financial wherewithal to accomplish
such indemnification, the Corporation may at its own expense undertake full
responsibility for the defense or prosecution of such Third Party Claim. The
Corporation may contest or settle any such Third Party Claim for money damages
on such terms and conditions as it deems appropriate but shall be obligated to
consult in good faith with the Indemnified Party and not to contest or settle
any Third Party Claim involving injunctive or equitable relief against or
affecting the Indemnified Party or his properties or assets without the prior
written consent of the Indemnified Party, such consent not to be withheld
unreasonably. The Indemnified Party may participate at his own expense and
with his own counsel in defense or prosecution of a Third Party Claim pursuant
to this Section 1(c)(i), and such participation shall not relieve the
Corporation of its obligation to indemnify the Indemnified Party under this
Agreement.
(ii) If the Corporation fails to deliver a
satisfactory Agreement of Indemnity and evidence of financial wherewithal
within 10 days after receipt of notice pursuant to Section 1(b), the
Indemnified Party may contest or settle the Third Party Claim 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. The
Corporation may participate at its own expense and with its own counsel in
defense or prosecution of a Third Party Claim pursuant to this Section
1(c)(ii), but any such participation shall not relieve the Corporation of its
obligations to indemnify the Indemnified Party under this Agreement. All
expenses (including attorneys' fees) incurred in defending or prosecuting any
Third Party Claim shall be paid promptly by the Corporation as the suit or
other matter is proceeding, upon the submission of bills therefor or other
satisfactory evidence of such expenditures during the pendency of any matter as
to which indemnification is available under this Agreement. The failure to
make such payments within 30 days after submission shall constitute a breach of
a material obligation of the Corporation under this Agreement.
(iii) If by reason of any Third Party Claim a lien,
attachment, garnishment or execution is placed upon any of the property or
assets of the Indemnified Party, the Corporation shall promptly furnish a
satisfactory indemnity bond to obtain the prompt release of such lien,
attachment, garnishment or execution.
(iv) The Indemnified Party shall cooperate in the
defense of any Third Party Claim which is controlled by the Corporation, but
the Indemnified Party shall continue to be entitled to indemnification and
reimbursement for all costs and expenses incurred by him in connection
therewith as provided in this Agreement.
(d) 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,
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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).
(e) Choice of Counsel. In all matters as to which
indemnification is available to the Indemnified Party under this Agreement, the
Indemnified Party shall be free to choose and retain counsel, provided that the
Indemnified Party shall consult in good faith with the Corporation regarding
such choice.
(f) Consultation. If the Indemnified Party desires to retain
the services of an attorney prior to the determination by the Corporation as to
whether it will undertake the defense or prosecution of the Third Party Claim
as provided in Section 1(c), the Indemnified Party shall notify the Corporation
of such desire in the notice delivered pursuant to Section 1(b)(i), and such
notice shall identify the counsel to be retained. The Corporation shall then
have 10 days within which to advise the Indemnified Party whether it will
assume the defense or prosecution of the Third Party Claim in accordance with
Section 1(c)(i). If the Indemnified Party does not receive an affirmative
response within such 10 day period, he shall be free to retain counsel of his
choice, and the indemnity provided in Section 1(a) shall apply to the
reasonable fees and disbursements of such counsel incurred after the expiration
of such 10 day period. Any fees or disbursements incurred prior to the
expiration of such 10 day period shall not be covered by the indemnity of
Section 1(a).
(g) Repayment. (i) Notwithstanding the other provisions
of this Agreement to the contrary, if the Corporation has incurred any cost,
damage or expense under this Agreement paid to or for the benefit of the
Indemnified Party and it is determined by a court of competent jurisdiction
from which no appeal may be taken that the Indemnified Party has engaged in
"Nonindemnifiable Conduct" as that terms is defined in Section 1(g)(ii), the
Indemnified Party shall reimburse the Corporation for any and all such amounts
previously paid to or for the benefit of the Indemnified Party.
(ii) For these purposes, "Nonindemnifiable Conduct"
shall mean actions or omissions of the Indemnified Party material to the cause
of action to which the indemnification under this Agreement related determined
to involve:
(1) a violation of the criminal law, unless the
Indemnified Party had reasonable cause to believe his conduct
was lawful and no reasonable cause to believe his conduct was
unlawful;
(2) a transaction in which the Indemnified Party
derived an improper personal benefit;
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(3) if the Indemnified Party is a director of the
Corporation, a circumstance under which the liability
provisions of Section 607.0834 (or any successor or similar
statute) are applicable;
(4) 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 favor of
the Corporation or in a proceeding by or in the right of a
stockholder; or
(5) conduct pursuant to then applicable law that
prohibits such indemnification.
2. TERM.
This Agreement shall be effective upon its execution by all
parties and shall continue in full force and effect until the date five years
after the date of this Agreement, or five years after the termination of the
Indemnified Party's employment or term of office, whichever is later, provided
that such term shall be extended by any period of time during which the
Corporation is in breach of a material obligation to the Indemnified Party,
plus ninety days. Such term shall also be extended with respect to each Third
Party Claim then pending and as to which notice under Section 1(b) has
theretofore been given by the Indemnified Party to the Corporation, and this
Agreement shall continue to be applicable to each such Third Party Claim.
3. REPRESENTATIONS AND AGREEMENTS OF THE CORPORATION.
(a) 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 of Directors of the Corporation. This Agreement is a valid and
binding obligation of the Corporation and is enforceable against the
Corporation in accordance with its terms.
(b) The Corporation's Insurance and Indemnification. (i) The
Corporation represents, covenants and agrees that during the term of this
Agreement, it will use its best efforts to maintain a policy or policies of
officers' and directors' liability insurance providing coverage to the
Indemnified Party in respect of his service as an officer, director and/or
employee of the Corporation, which policy at all times shall be in an amount
and shall contain terms and conditions no less favorable than the policy in
effect at such time for the Corporation's other officers and directors.
(ii) During the term of this Agreement, to the
fullest extent permitted by law, the Corporation will cause those sections of
its bylaws regarding indemnification of directors and officers
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currently in effect to remain in full force and effect, and it and its
directors will act in good faith and in accordance with the procedures and
spirit of such bylaws.
(c) Noncontestability. The Corporation represents, covenants
and agrees that it will not initiate, and that it will use its best efforts to
cause any of its Affiliates not to initiate, any action, suit or proceeding
challenging the validity or enforceability of this Agreement.
(d) Good Faith Judgment. The Corporation represents,
covenants and agrees that it will exercise good faith judgment in determining
the entitlement of the Indemnified Party to indemnification under this
Agreement.
4. RELATIONSHIP OF THIS AGREEMENT TO OTHER INDEMNITIES.
(a) Nonexclusivity. This Agreement and all rights granted to
the Indemnified Party 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
Indemnified Party under any Articles of Incorporation, bylaw, statute,
agreement, or otherwise.
(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 Indemnified Party shall not affect the right of the Indemnified Party 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 received by the Indemnified Party 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 Indemnified Party under this Agreement.
(iii) If the Indemnified Party is entitled under any
provision of this Agreement to indemnification by the Corporation for some
claims, issues or matters, but not as to other claims, issues or matters, or
for some or a portion of the expenses, judgments, fines or penalties actually
and reasonably incurred by him or amounts actually and reasonably paid in
settlement by him in the investigation, defense, appeal or settlement of any
matter for which indemnification is sought under this Agreement, but not for
the total amount thereof, the Corporation shall nevertheless indemnify the
Indemnified Party for the portion of such claims, issues or matters or
expenses, judgments, fines, penalties or amounts paid in settlement to which
the Indemnified Party is entitled.
(iv) If for any reason a court of competent
jurisdiction from which no appeal can be taken rules that the indemnity
provided under this Agreement is unavailable, or if for any reason the
indemnity under this Agreement is insufficient to hold the Indemnified Party
harmless as provided in this Agreement, then in either event, the Corporation
shall contribute to the amounts paid or
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payable by the Indemnified Party in such proportion as equitably reflects the
relative benefits received by, and fault of the Indemnified Party and the
Corporation and its Affiliates.
(c) Allowance for Compliance with SEC Requirements. The
Indemnified Party acknowledges that the Securities and Exchange Commission
("SEC") has expressed the opinion that indemnification of directors and
officers from liabilities under the Securities Act of 1933 (the "1933 Act") is
against public policy as expressed in the 1933 Act and, is therefore,
unenforceable. The Indemnified Party hereby agrees that it will not be a
breach of this Agreement for the Corporation to undertake with the Commission
in connection with the registration for sale of any stock or other securities
of the Corporation from time to time that, in the event a claim for
indemnification against such liabilities (other than the payment by the
Corporation of expenses incurred or paid by a director or officer of the
Corporation in the successful defense of any action, suit or proceeding) is
asserted in connection with such stock or other securities being registered,
the Corporation will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of competent jurisdiction
on the question of whether or not such indemnification by it is against public
policy as expressed in the 1933 Act and will be governed by the final
adjudication of such issue. The Indemnified Party further agrees that such
submission to a court of competent jurisdiction shall not be a breach of this
Agreement.
5. MISCELLANEOUS.
(a) Notices. All notices, requests, demands and other
communications which are required or which may be given under this Agreement
shall be in writing and shall be deemed to have been duly given if personally
delivered or mailed, first class mail, postage prepaid to:
If to the Indemni-
fied Party: Xxxxx X. Xxxxxxx
0000 Xxxx Xxxxxxx
X. Xxxxxxxxxx, XX 00000
If to the
Corporation: Discount Auto Parts, Inc.
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
(b) Construction and Interpretation. (i) This Agreement
shall be construed pursuant to and governed by the substantive laws of the
State of Florida (and any provision of Florida law shall not apply if the law
of a state or jurisdiction other than Florida would otherwise apply).
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(ii) 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.
(iii) Any provision of this Agreement which 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.
(c) Entire Agreement. Except as otherwise expressly provided
herein, this Agreement constitutes the entire Agreement, and supersedes all
prior agreements and understandings, oral and written, among the parties to
this Agreement with respect to the subject matter hereof.
(d) Specific Enforcement. (i) The parties agree and
acknowledge that in the event of a breach by the Corporation of its obligation
promptly to indemnify the Indemnified Party 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 Indemnified Party. Accordingly, the parties
agree that, in addition to any other remedies or rights that may be available
to the Indemnified Party, the Indemnified Party 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 such action a rebuttable
presumption that the Indemnified Party 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 Indemnified Party shall be on the Corporation. Neither the failure
of the Corporation (including its Board of Directors 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 Indemnified
Party has met the applicable standard of conduct, nor an actual determination
by the Corporation (including its Board of Directors or independent legal
counsel) that the Indemnified Party has not met such applicable standard of
conduct, shall (X) constitute a defense to the action, (Y) create a presumption
that the Indemnified Party has not met the applicable standard of conduct, or
(Z) otherwise alter the presumption in favor of the Indemnified Party referred
to in the preceding sentence.
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(e) Cost of Enforcement; Interest. (i) If the Indemnified
Party engages the services of an attorney or any other third party or in any
way initiates legal action to enforce his rights under this Agreement,
including but not limited to the collection of monies due from the Corporation
to the Indemnified Party, the prevailing party shall be entitled to recover all
reasonable costs and expenses (including reasonable attorneys' fees before and
at trial and in appellate proceedings). Should the Indemnified Party prevail,
such costs and expenses shall be in addition to monies otherwise due him under
this Agreement.
(ii) If any monies shall be due the Indemnified
Party from the Corporation under this Agreement and shall not be paid within 30
days from the date of written request for payment, interest shall accrue on
such unpaid amount at the rate of 1% per annum in excess of the prime rate
announced from time to time by Sun Bank, National Association, Orlando,
Florida, or such lower rate as may be required to comply with applicable law.
(f) Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the successors in interest and assigns, heirs and
personal representatives, as the case may be, of the parties.
(g) 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.
(h) 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 the Circuit Court of the Tenth Judicial Circuit
of the State of Florida in and for Polk County or in the United States District
Court for the Middle District of Florida, Tampa Division. Such jurisdiction
and venue are merely permissive; jurisdiction and venue shall also continue to
lie in any court where jurisdiction and venue would otherwise be proper. The
parties agree that they will not object that any action commenced in the
foregoing jurisdictions is commenced in a forum non conveniens. 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.
(i) 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.
(j) Waiver and Delay. No waiver or delay in enforcing the
terms of this Agreement shall be construed as a waiver of any subsequent
breach. No action taken by the Indemnified Party shall constitute a waiver of
his rights under this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
DISCOUNT AUTO PARTS, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx, President
WITNESSES:
/s/ /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
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