EXHIBIT 10
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made and entered into
this _____ day of ____________, 2001, by and between
____________________________ (the "Indemnified Party") and PUBLIX SUPER MARKETS,
INC., a Florida corporation (the "Corporation").
W I T N E S S E T H:
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WHEREAS, it is essential to the Corporation to retain and attract as
directors and 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 is 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 Indemnified Party 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 Indemnified Party'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
Indemnified Party 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
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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; and the term "control" (including in
correlative meaning, the terms "controlled by" and "under common control with"),
as used with respect to any first Person, means the possession by any other
Person, either directly or indirectly, of the power to direct, or to cause the
direction of, the management and policies of the first Person, whether through
the ownership of voting securities, by contract or otherwise.
(b) Associate means, as to any Person, a director, officer, employee,
agent, consultant, independent contractor, stockholder or partner of such
Person.
(c) Board means the Board of Directors of the Corporation.
(d) Evaluation Date means, as to any Indemnification Notice, the date that
is thirty (30) calendar days after the date of receipt by the Board of such
Indemnification Notice.
(e) Expenses means any and all costs or expenses (other than Liabilities),
including but not limited to Legal Fees, and including interest on any of the
foregoing, actually and reasonably paid or incurred by the Indemnified Party on
account of or in connection with any Proceeding; and Expense means any one of
the Expenses.
(f) Expense Advance Request means the request provided for by Section
2(b)(iv) of this Agreement.
(g) FBCA means the Florida Business Corporation Act, Chapter 607, Florida
Statutes, and any successor statute.
(h) Final Judicial Determination means a determination by a Court of
competent jurisdiction as to which all rights of appeal therefrom have been
exhausted or have lapsed.
(i) Hold Harmless Agreement means the agreement provided for by Section
2(c)(i) of this Agreement.
(j) Indemnification Notice means the notice provided for by Section 2(b) of
this Agreement.
(k) 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 actually and
reasonably paid or incurred by the Indemnified Party on account of or in
connection with any Proceeding.
(l) Liabilities means any and all liabilities of every type whatsoever
(other than an Expense), including, but not limited to, judgments, assessments,
fines, penalties, excise or other taxes and amounts paid in settlement, and
including interest on any of the foregoing, actually and reasonably paid,
incurred or suffered by the Indemnified Party on account of or in connection
with any Proceeding; and Liability means any one of the Liabilities.
(m) Non-indemnifiable Conduct means any act or omission to act of the
Indemnified Party material to a Proceeding as to which indemnification is sought
under this Agreement, which act or omission to act is not subject to
indemnification by the Corporation under the provisions of Section 607.0850,
Florida Statutes, or any other then-applicable law.
(n) 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.
(o) Plan means any employee benefit or welfare benefit plan sponsored by
the Corporation or any of its Affiliates.
(p) Proceeding means any threatened, pending or completed claim, demand,
inquiry, investigation, action, suit or proceeding, regarding any matter
(including but not limited to matters arising under or relating to federal or
state securities laws, laws relating to the protection of the environment, the
Employee Retirement Income Security Act of 1974 ("ERISA") or other laws for the
benefit or protection of employees, federal or state tax laws, laws relating to
discrimination against persons or groups, or any other civil or criminal law),
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.
(q) Third Party Proceeding means any Proceeding against the Indemnified
Party by, or any Proceeding by the Indemnified Party against, any third party.
2. Indemnification Generally.
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(a) Extent of Indemnity.
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(i) Grant of Indemnity. The Corporation shall indemnify the Indemnified
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Party to the fullest extent permitted by applicable law in effect on the date
hereof as such law may from time to time be amended (but, in the case of any
such amendment, only to the extent such amendment permits the Corporation to
provide broader indemnification rights and protection than the law permitted the
Corporation to provide before such amendment). Without in any manner limiting
the generality of the immediately preceding sentence, but subject to and upon
the terms and conditions of this Agreement, the Corporation shall indemnify and
hold harmless the Indemnified Party in respect of:
(1) any and all Liabilities that may be incurred or suffered by
the Indemnified Party as a result of or arising out of prosecuting,
defending, settling, investigating or being a witness in any
Proceeding 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 an Associate of the Corporation or any of
its Affiliates, or serves 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 other fiduciary or similar capacity for
or in connection with any Plan maintained by the Corporation or any of
its Affiliates 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);
(2) any and all Liabilities that may be incurred or suffered by
the Indemnified Party 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 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; and
(3) any and all Expenses that may be incurred or suffered by the
Indemnified Party as a result of or arising out of, incident to or in
connection with any of the matters indemnified against in this
Agreement.
(ii) Coordination With Insurance. The obligations of the Corporation under
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this Agreement are not conditioned in any way on any attempt, whether or not
successful, by the Indemnified Party or by the Corporation to collect from an
insurer any amount under any insurance policy.
(iii) Limitations. In no case shall any indemnification or advancement or
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payment of Expenses be provided under this Agreement to or on behalf of or for
the direct or indirect benefit of the Indemnified Party by the Corporation:
(1) In any Proceeding brought by or in the name or interest of
the Indemnified Party against the Corporation, except as set forth in
Section 5(e) of this Agreement;
(2) In any Proceeding brought by the Corporation against the
Indemnified Party, which action is initiated at the direction of the
Board, except as set forth in Section 5(e) of this Agreement; or
(3) for any Non-indemnifiable Conduct, but no limitation
contained in this Section 2(a)(iii)(3) shall prohibit or otherwise
restrict, or provide the Corporation with a basis to withhold payments
with respect to, the indemnification of the Indemnified Party (subject
to the repayment provisions of Section 2(g) of this Agreement) unless
and until a determination is made pursuant to the provisions of this
Agreement that the Indemnified Party's actions or omissions to act
constitute such Non-indemnifiable Conduct.
(b) Claims for Indemnification.
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(i) Submission of Claims. Whenever any claims shall arise for
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indemnification under this Agreement, the Indemnified Party shall notify the
Corporation as promptly as reasonably practicable after the Indemnified Party
has actual knowledge of the facts constituting the basis for such claim (an
"Indemnification Notice"). The Indemnification Notice shall specify in
reasonable detail the facts known to the Indemnified Party giving rise to such
indemnification right, the positions and allegations of the parties to any
related Proceeding and the factual bases therefor, and the amount or an estimate
of the amount of Liabilities and Expenses reasonably expected to arise therefrom
(or a statement to the effect that such Liabilities and Expenses cannot be
reasonably estimated). A delay by the Indemnified Party in providing such notice
shall not relieve the Corporation from its obligations under this Agreement
unless and then only to the extent that the Corporation is materially and
adversely affected by the delay. If the Indemnified Party desires to personally
retain the services of an attorney in connection with any Proceeding, the
Indemnified Party shall notify the Corporation of such desire in the
Indemnification Notice relating thereto, and such notice shall identify the
counsel to be retained.
(ii) Presumption of Right to Indemnification. Upon submission of an
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Indemnification Notice to the Corporation, the Board shall review such
Indemnification Notice and endeavor to determine whether the Indemnified Party
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 Indemnified Party 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 Indemnified Party is
entitled to such indemnification. Such presumption shall continue, and
indemnification shall be provided under this Agreement, unless and until such
time as the Board shall reasonably determine that the Indemnified Party is not
entitled to indemnification under this Agreement. This paragraph is procedural
only and shall not affect the right of the Indemnified Party to indemnification
under this Agreement. Any determination by the Board that the Indemnified Party
is not entitled to indemnification under this Agreement and any failure to make
any advancements or payments requested in an Indemnification Notice or otherwise
shall be subject to judicial review.
(iii) Limitation on Adverse Determinations by the Board. Subject to
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applicable law, no determination by the Board that the Indemnified Party is not
entitled to indemnification under this Agreement shall be given effect under
this Agreement unless (i) such determination is made in good faith and 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 Indemnified Party is given written notice of such meeting
at least 10 days in advance of such meeting and is given a meaningful
opportunity to present at such meeting information in support of the claim for
indemnification.
(iv) Expenses.
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(1) With respect to any Proceeding as to which the Indemnified
Party is entitled (or is presumed to be entitled) to indemnification
under this Agreement, Expenses incurred or required to be incurred by
or on behalf of the Indemnified Party in connection with such
Proceeding, but prior to the final disposition of such Proceeding,
shall be advanced or paid or caused to be advanced or paid by the
Corporation to or on behalf of the Indemnified Party notwithstanding
that there has been no final disposition of such Proceeding, to the
extent provided in the immediately following paragraph.
(2) For purposes of determining whether to authorize advancement
or payment of Expenses pursuant to the immediately preceding
paragraph, the Indemnified Party 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 Indemnified Party and the reason therefor, and (ii) an
undertaking by the Indemnified Party, in form and substance reasonably
satisfactory to the Corporation, to repay all of the Expenses advanced
or paid by the Corporation if it shall ultimately be determined that
the Indemnified Party 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 Indemnified Party is not
entitled to advancement or 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 Indemnified Party, on or before the
date that is three business days prior to the date such Expense is
required to be paid by the Indemnified Party), pay or cause to be paid
by the Corporation the amount of such Expense to or on behalf of the
Indemnified Party. No security shall be required in connection with
any Expense Advance Request, and the ability or inability of the
Indemnified Party to make repayment shall not be considered in any
evaluation of an Expense Advance Request.
(c) Rights to Defend or Settle; Third Party Proceedings, etc.
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(i) Corporation's Right to Defend or Settle. If, at any time, the
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Corporation shall provide the Indemnified Party with an agreement in writing, in
form and substance reasonably satisfactory to the Indemnified Party and the
Indemnified Party's counsel, agreeing to indemnify, defend or prosecute and hold
the Indemnified Party harmless from all Liabilities and Expenses arising from
any Third Party Proceeding (a "Hold Harmless Agreement"), and demonstrating to
the reasonable satisfaction of the Indemnified Party the Corporation's financial
ability to accomplish such indemnification, the Corporation may thereafter at
its own expense undertake full responsibility for 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 obligated to consult in good faith with the
Indemnified Party and not to contest or settle any Third Party Proceeding
involving injunctive or equitable relief against or affecting the Indemnified
Party or the Indemnified Party's 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 the Indemnified Party's own expense and
with the Indemnified Party's own counsel in the 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 Indemnified Party
under this Agreement with respect to such Third Party Proceeding.
(ii) Indemnified Party's Rights to Settle or Defend. If the Corporation
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fails to deliver a reasonably satisfactory Hold Harmless Agreement and evidence
of financial ability as contemplated by the preceding paragraph within 10 days
after receipt by the Board of an Indemnification Notice, the Indemnified Party
may contest or settle the Third Party Proceeding on such terms as the
Indemnified Party 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 Proceeding pursuant to this Section
2(c)(ii), but any such participation shall not relieve the Corporation of its
obligations to indemnify the Indemnified Party under this Agreement. As to any
Third Party Proceeding as to which the Indemnified Party is entitled (or is
presumed to be 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 Indemnified Party shall be entitled to indemnification under
this Agreement with respect any Expenses of the Indemnified Party, including
Legal Fees, relating to such Third Party Proceeding. Notwithstanding the
foregoing, the Corporation may at any time deliver to the Indemnified Party a
reasonably satisfactory Agreement of Indemnity and evidence of financial ability
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) Expenses as to Third Party Proceeding. All Expenses incurred in
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defending or prosecuting any Third Party Proceeding shall be advanced or paid in
accordance with the procedure set forth in Section 2(b)(iv) of this Agreement.
(iv) Addressing Liens, Attachments, Etc. If by reason of any Third Party
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Proceeding as to which the Indemnified Party is entitled (or is presumed to be
entitled) to indemnification under this Agreement, 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 reasonably
satisfactory indemnity bond to obtain the prompt release of such lien,
attachment, garnishment or execution.
(v) Cooperation. The Indemnified Party shall cooperate in the prosecution
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or defense of any Third Party Proceeding that is controlled by the Corporation,
but the Indemnified Party shall continue to be entitled to advancement or
payment of Expenses incurred by him or her in connection therewith as provided
in this Agreement.
(d) Powers of Attorney; Access to Records. The parties to this Agreement
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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 proceeding, 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).
(e) Choice of Counsel. In all matters as to which indemnification is or may
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be 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 secure the prior written consent of the Corporation as to such
selection, which consent shall not be unreasonably withheld.
(f) Consultation. If the Indemnified Party desires to retain the services
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of an attorney prior to the determination by the Corporation as to whether it
will undertake the defense or prosecution of the Third Party Proceeding as
provided in Section 2(c) of this Agreement, the Indemnified Party shall notify
the Corporation of such desire in the Indemnification Notice delivered pursuant
to Section 2(b)(i), and such Indemnification 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 Proceeding in accordance with Section 2(c)(i) hereof. If the
Indemnified Party does not receive an affirmative response within such ten-day
period, he or she shall be free to retain counsel of his or her choice, and the
indemnity provided in Section 2(a) shall apply to the Expenses incurred by the
Indemnified Party after the expiration of such 10-day period. Expenses incurred
by the Indemnified Party prior to the expiration of such 10-day period shall be
covered by the indemnity of Section 2(a), to the extent that representation
prior to the expiration of the 10-day period is determined by the Board to be
necessary to protect any material interests of the Indemnified Party.
(g) Repayment. Notwithstanding the other provisions of this Agreement to
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the contrary, if the Corporation has paid or advanced any Liabilities or
Expenses under this Agreement (including pursuant to an Expense Advance Request)
to, on behalf of or for the benefit of the Indemnified Party and if it is
determined, by a Final Judicial Determination, that the Indemnified Party's
actions or omissions to act constituted Non-indemnifiable Conduct or that the
Indemnified Party otherwise is not or was not entitled to such payment or
advance or that the Indemnified Party is required to reimburse or repay the
Corporation for the amount thereof, the Indemnified Party shall and does hereby
undertake in such circumstances to reimburse the Corporation for any and all
such amounts previously paid to or for the benefit of the Indemnified Party.
Such reimbursement shall be without interest, except that interest calculated as
provided in Section 5(e)(ii) shall begin to accrue 20 days after the date of the
Final Judicial Determination.
3. Representations and Agreements of the Corporation.
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(a) Authority. The Corporation represents, covenants and agrees that it has
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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.
(b) Non-contestability. The Corporation represents, covenants and agrees
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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.
4. Good Faith Judgment. The Corporation represents, covenants and agrees
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that it will exercise good faith judgment in determining the entitlement of the
Indemnified Party to indemnification under this Agreement.
5. Relationship of this Agreement to Other Indemnities.
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(a) Non-exclusivity.
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(i) This Agreement and all rights granted to the Indemnified Party under
this Agreement are in addition to and shall not be 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. To the
extent that any change to applicable law (whether by statute or judicial
decision) shall permit any broader indemnification by agreement than would be
afforded under the provisions of this Agreement, it is the intent of the parties
to this Agreement that the Indemnified Party shall enjoy by this Agreement the
broader rights and protection so afforded by such change.
(ii) The rights, duties and obligations of the Corporation and the
Indemnified Party under this Agreement do not limit, diminish or supersede the
rights, duties and obligations of the Corporation and the Indemnified Party with
respect to the indemnification afforded to the Indemnified Party under any
liability insurance, the FBCA, or under the bylaws or the Articles of
Incorporation of the Corporation. In addition, the Indemnified Party'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, Subrogation, Etc.
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(i) The availability or non-availability of indemnification by way of any
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, except as otherwise expressly provided
by this Agreement.
(ii) Notwithstanding any contrary provisions contained in this Agreement,
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 Liabilities or the Expenses actually and reasonably incurred by him or her or
amounts actually and reasonably paid in settlement by him or her 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 indemnify the Indemnified Party for the portion
of such claims, issues or matters, or the portion of such Liabilities or
Expenses to which the Indemnified Party is entitled.
(iv) If for any reason 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 Indemnified Party harmless as
provided in this Agreement, then, in any such event, the Corporation shall
contribute to the amounts paid or 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 and its and
their respective Associates.
6. Miscellaneous.
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(a) Notices. All notices, requests, demands and other communications which
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are required or may be given under this Agreement shall be in writing and shall
be deemed to have been duly given when received 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 notice shall be
sent to:
If to the Indemnified Party:
the Indemnified Party's address on file with the Corporation
If to the Corporation:
the Corporation's principal executive offices, Attention Xxxx X.
Xxxxxxx, Xx. or to such other address as either party may have specified in
writing to the other using the procedures specified above in this Section 5(a).
(b) Governing Law. This Agreement shall be construed pursuant to and
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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).
(c) Severability. Any provision of this Agreement that is determined by a
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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.
(d) Specific Enforcement; Presumption.
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(i) The parties agree and acknowledge that in the event of a breach by the
Corporation of its obligations under this Agreement, or a 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 any action to enforce the rights of the
Indemnified Party under this Agreement a rebuttable presumption that the
Indemnified Party is entitled to indemnification under this Agreement, and the
burden of proving that the Indemnified Party is not entitled to indemnification
under this Agreement shall be on the Corporation. Neither the failure of the
Corporation (through the Board or independent legal counsel), prior to the
commencement of such action, to have made a determination that the Indemnified
Party is entitled to indemnification under this Agreement, nor an actual
determination by the Corporation (through the Board or independent legal
counsel) that the Indemnified Party is not entitled to indemnification under
this Agreement, shall (X) constitute a defense to the action, (Y) create a
presumption that the Indemnified Party is not entitled to indemnification under
this Agreement, or (Z) otherwise alter the presumption in favor of the
Indemnified Party referred to in the immediately preceding sentence.
(e) Cost of Enforcement; Interest.
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(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, in appellate proceedings and otherwise).
Should the Indemnified Party prevail, such costs and expenses shall be in
addition to monies otherwise due the Indemnified Party under this Agreement.
(ii) If any monies shall be due the Indemnified Party from the Corporation
under this Agreement (including under an Expense Advance Request) 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 2% per annum in excess of the
prime rate announced from time to time by Citibank, New York, New York, or such
lower rate as may be required to comply with applicable law from the date when
due until it is paid in full.
(f) No Assignment. Any claim, right, title, benefit, remedy or interest of
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the Indemnified Party 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 Indemnified Party or the termination of the
Indemnified Party's services as a director or officer of the Corporation, or in
any other capacity as to which indemnification is available under this
Agreement, and shall inure to the benefit of the Indemnified Party's heirs,
devisees, executors, administrators and other legal representatives. 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).
(g) No Third Party Beneficiaries. This Agreement is not intended to
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benefit, and has not been entered into for the benefit of, any third parties
and, other than as set forth in the preceding paragraph as to heirs, devisees,
assignees, executors, administrators, other legal representatives 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 Indemnified Party, any claim, right, benefit or remedy under
or because of this Agreement or any provision set forth in this Agreement.
(h) Construction. As used in this Agreement, (1) the word "including" is
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always without limitation; and (2) the words in the singular number include
words of the plural number and vice versa; and the use of any gender shall
include all genders where the context so permits.
(i) Further Assurances. The parties to this Agreement shall execute and
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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 intent of the parties as expressed
in this Agreement.
(j) Venue; Process. The parties to this Agreement agree that jurisdiction
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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 State of Florida in and for either
Hillsborough County or 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.
(k) Waiver and Delay. Any term or provision of this Agreement may be waived
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at any time by the party entitled to the benefit of such waived term or
provision by an instrument in writing duly executed by or on behalf of the party
entitled to the benefit of such waived term or provision. No waiver by any party
to this Agreement of any term or provision of this Agreement shall operate or be
construed as a waiver of any other term or provision of this Agreement, whether
or not similar. No delay on the part of any party in exercising any right, power
or privilege under this Agreement shall operate as a waiver of any such right,
power or privilege.
(l) Construction. Each party to this Agreement severally acknowledges and
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confirms that the normal rule of construction to the effect that any ambiguities
are to be resolved against the drafting party shall not be utilized in the
interpretation or construction of this Agreement.
(m) Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be considered an original, but all of which
together shall constitute one and the same instrument.
(n) Headings. The headings of the various sections in this Agreement are
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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 on the date
first above written.
PUBLIX SUPER MARKETS, INC.
By:
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Name:
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Title:
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INDEMNIFIED PARTY:
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(Signature)
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(Print Name)
