Exhibit 10p
INDEMNITY AGREEMENT
AGREEMENT, as of ____________ ___, 1991, (the
"Agreement"), between Tandy Corporation, a Delaware
corporation (the "Company"), and _________________________
(the "Indemnitee").
WHEREAS, it is essential to the Company to retain and
attract as directors and officers the most capable persons
available;
WHEREAS, Indemnitee is a director and/or an officer of
the Company;
WHEREAS, both the Company and Indemnitee recognize the
increased risk of litigation and other claims being asserted
against directors and officers of public companies in today's
environment;
WHEREAS, the Bylaws of the Company require the Company
to indemnify and advance expenses to its directors and
officers to the fullest extent permitted by law, and the
Indemnitee has been serving and continues to serve as a
director and/or an officer of the Company in part in reliance
on such Bylaws;
WHEREAS, in recognition of Indemnitee's need for
substantial protection against personal liability in order to
enhance Indemnitee's continued service to the Company in an
effective manner and Indemnitee's reliance on the aforesaid
Bylaws, and in part to provide Indemnitee with specific
contractual assurance that the protection promised by such
Bylaws will be available to Indemnitee (regardless of, among
other things, any amendment to or revocation of such Bylaws
or other things, any amendment to or revocation of such
Bylaws or any change in the composition of the Company's
Board of Directors or acquisition transaction relating to the
Company), the Company wishes to provide in this Agreement for
the indemnification of and the advancing of expenses to
Indemnitee to the fullest extent permitted by law and as set
forth in this Agreement, and, to the extent insurance is
maintained, for the continued coverage of Indemnitee under
the Company's directors' and officers' liability insurance
policies;
NOW, THEREFOR, in consideration of the premises and of
Indemnitee continuing to serve the Company directly or, at
its request, with another enterprise, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Certain Definitions:
(a) Change in Control: For purposes of this Agreement,
a "Change in Control" shall mean any of the following events:
(i) An acquisition (other than directly from the
Company) of any voting securities of the Company (the "Voting
Securities") by a "Person" (as the term person is used for
purposes of Section 13(d) or 14(d) of the Securities xchange
Act of 1934, as amended (the "1934 Act")) immediately after
which such Person has "Beneficial Ownership" (within the
meaning of Rule 13d-3 promulgated under the 1934 Act) of
fifteen percent (15%) or more of the combined voting power of
the Company's then outstanding Voting Securities; provided,
however, that in determining whether a Change in Control has
occurred, Voting Securities which are acquired in a
"Non-Control Acquisition" (as hereinafter defined) shall not
constitute an acquisition which would cause a Change in
Control. A "Non-Control Acquisition" shall mean an
acquisition by (1) an employee benefit plan (or a trust
forming a part thereof) maintained by (x) the Company or (y)
any corporation or other Person of which a majority of its
voting power or its equity securities or equity interest is
owned directly or indirectly by the Company (a "Subsidiary"),
(2) the Company or any Subsidiary, or (3) any Person in
connection with a "Non-Control Transaction" (as hereinafter
defined).
(ii) The individuals who, as of August 22, 1991,
are members of the Board (the "Incumbent Board"), cease for
any reason to constitute at least two-thirds of the Board;
provided, however, that if the election, or nomination for
election by the Company's stockholders, of any new director
was approved by a vote of at least two-thirds of the
Incumbent Board, such new director shall, for purposes of
this Agreement, be considered as a member of the Incumbent
Board; provided further, however, that no individual shall be
considered a member of the Incumbent Board if such individual
initially assumed office as a result of either an actual or
threatened "Election Contest" (as described in Rule 14a-11
promulgated under the 1934 Act) or other actual or threatened
solicitation of proxies or consents by or on behalf of a
Person other than the Board (a "Proxy Contest") including by
reason of any agreement intended to avoid or settle any
Election Contest or Proxy Contest; or
(iii) Approval by stockholders of the Company of:
(A) a merger or consolidation involving the
Company unless
(1) the stockholders of the Company,
immediately before such merger, consolidation or
reorganization, own, directly or indirectly immediately
following such merger, consolidation or reorganization, at
least sixty percent (60%) of the combined voting power of the
outstanding voting securities of the corporation resulting
from such merger or consolidation or reorganization (the
"Surviving Corporation") in substantially the same proportion
as their ownership of the Voting Securities immediately
before such merger, consolidation or reorganization,
(2) the individuals who were members of
the Incumbent Board immediately prior to the execution of the
agreement prior to the execution of the agreement providing
for such merger, consolidation or reorganization constitute
at least two-thirds of the members of the board of directors
of the Surviving Corporation,
(3) no Person (other than the Company,
any Subsidiary, any employee benefit plan (or any trust
forming a part thereof) maintained by the Company, the
Surviving Corporation or any Subsidiary, or any Person who,
immediately prior to such merger, consolidation or
reorganization had Beneficial Ownership of fifteen percent
(15%) or more of the then outstanding Voting Securities) has
Beneficial Ownership of fifteen percent (15%) or more of the
combined voting power of the Surviving Corporation's then
outstanding voting securities, and
(4) a transaction described in clauses
(1) through (3) shall herein be referred to as a "Non-Control
Transaction;"
(B) A complete liquidation or dissolution of
the Company; or
(C) An agreement for the sale or other
disposition of all or substantially all of the assets of the
Company to any Person (other than a transfer to a
Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not
be deemed to occur solely because any Person (the "Subject
Person") acquired Beneficial Ownership of more than the
permitted amount of the outstanding Voting Securities as a
result of the acquisition of Voting Securities by the Company
which, by reducing the number of Voting Securities
outstanding, increases the proportional number of shares
Beneficially Owned by the Subject Person, provided that if a
Change in Control would occur (but for the operation of this
sentence) as a result of the acquisition of Voting Securities
by the Company, and after such share acquisition by the
Company, the Subject Person becomes the Beneficial Owner of
any additional Voting Securities which increases the
percentage of the then outstanding Voting Securities
Beneficially Owned by the Subject Person, then a Change in
Control shall occur.
(b) Claim: any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative
or investigative or other, including, without limitation, an
action by or in the right of any other corporation of any
type or kind, domestic or foreign, or any partnership, joint
venture, trust, employee benefit plan or other enterprise,
whether predicated on foreign, federal, state or local law
and whether formal or informal.
(c) Expenses: include attorney's fees and all other
costs, charges and expenses paid or incurred in connection
with investigating, defending, being a witness in or
participating in (including on appeal), or preparing to
defend, be a witness in or participate in any Claim relating
to any Indemnifiable vent.
(d) Indemnifiable vent: any event or occurrence related
to the fact that Indemnitee is or was or has agreed to become
a director, officer, employee, agent or fiduciary of the
Company, or is or was serving or has agreed to serve in any
capacity, at the request of the Company, in any other
corporation, partnership, joint venture, employee benefit
plan, trust or other enterprise, or by reason of anything
done or not done by Indemnitee in any such capacity.
(e) Potential Change in Control: shall be deemed to
have occurred if (i) the Company enters into an agreement or
arrangement, the consummation of which would result in the
occurrence of a Change in Control; or (ii) the Board adopts a
resolution to the effect that, for purposes of this
Agreement, a Potential Change in Control has occurred.
(f) Voting Securities: any securities of the Company
which vote generally in the election of directors.
2. Basic Indemnification Arrangement:
(a) In the event Indemnitee was, is or becomes a party
to or witness or other participant in, or is threatened to be
made a party to or witness or other participant in, a Claim
by reason of (or arising in part out of) an Indemnifiable
vent, the Company shall indemnify Indemnitee (without regard
to the negligence or other fault of the Indemnitee) to the
fullest extent permitted by applicable law, as soon as
practicable but in no event later than thirty days after
written demand is presented to the Company, against any and
all Expenses, judgments, fines, penalties, excise taxes and
amounts paid or to be paid in settlement (including all
interest, assessments and other charges paid or payable in
connection with or in respect of such Expenses, judgments,
fines, penalties, excise taxes or amounts paid or to be paid
in settlement) of such Claim. If Indemnitee makes a request
to be indemnified under this Agreement, the Board of
Directors (acting by a quorum consisting of directors who are
not parties to the Claim with respect to an Indemnifiable
Event or, if such a quorum is not obtainable, acting upon an
opinion in writing of independent legal counsel ("Board
Action") shall, as soon as practicable but in no event later
than thirty days after such request, authorize such
indemnification. Notwithstanding anything in the Restated
Certificate of Incorporation of the Company (the "Certificate
of Incorporation"), the Bylaws of the Company or this
Agreement to the contrary, following a Change in Control,
Indemnitee shall, unless prohibited by law, be entitled to
indemnification pursuant to this Agreement in connection with
any Claim initiated by Indemnitee.
(b) Notwithstanding anything in the Certificate of
Incorporation, the Bylaws or this Agreement to the contrary,
if so requested by Indemnitee, the Company shall advance
(within two business days of such request) any and all
expenses relating to a Claim to Indemnitee (an "xpense
Advance"), upon the receipt of a written undertaking by or on
behalf of Indemnitee to repay such Expense Advance if a
judgment or other final adjudication adverse to Indemnitee
(as to which all rights or appeal therefrom have been
exhausted or lapsed) establishes that Indemnitee, with
respect to such Claim, is not eligible for indemnification.
(c) Notwithstanding anything in the Certificate of
Incorporation, the Bylaws or in this Agreement to the
contrary, if Indemnitee has commenced legal proceedings in a
court of competent jurisdiction to secure a determination
that Indemnitee should be indemnified under this Agreement,
the Bylaws of the Company or applicable law, any Board Action
or Arbitration (as defined in Section 3) that Indemnitee
would not be permitted to be indemnified in accordance with
Section 2(a) of this Agreement shall not be binding. If
there has been no Board Action or Arbitration, or if Board
Action or Arbitration determines that Indemnitee would not be
permitted to be indemnified, in any respect, in whole or in
part, in accordance with Section 2(a) of this Agreement,
Indemnitee shall have the right to commence litigation in the
court which is hearing the action or proceeding relating to
the Claim for which indemnification is sought or in any court
in the States of Delaware or Texas having subject matter
jurisdiction thereof and in which venue is proper seeking an
initial determination by the court or challenging any such
Board Action or Arbitration or any aspect thereof, and the
Company thereby consents to service of process and to appear
in any such proceeding. Any Board Action not followed by
Arbitration or such litigation, and any Arbitration not
followed by such litigation, shall be conclusive and binding
on the Company and Indemnitee.
3. Change in Control. The Company agrees that if there is a
Change in Control, Indemnitee, by giving written notice to
the Company and the American Arbitration Association (the
"Notice"), may require that any controversy or claim arising
out of or relating to this Agreement, or the breach thereof,
shall be settled by arbitration (the "Arbitration"), in Fort
Worth, Texas, in accordance with the Rules of the American
Arbitration Association (the "Rules"). The Arbitration shall
be conducted by a panel of three arbitrators selected in
accordance with the Rules within thirty days of delivery of
the Notice. The decision of the panel shall be made as soon
as practicable after the panel has been selected, and the
parties agree to use their reasonable efforts to cause the
panel to deliver its decision within ninety days of its
selection. The Company shall pay all fees and expenses of
the Arbitration. The Arbitration shall be conclusive and
binding on the Company and Indemnitee and Indemnitee may
cause judgment upon the award rendered by the arbitrators to
be entered in any court having jurisdiction thereof;
provided, however, that any Arbitration shall have no effect
on Indemnitee's right to commence litigation pursuant to
Section 2(c) of this Agreement, in which case, such
Arbitration shall not be conclusive and binding on Indemnitee
or the Company.
4. Establishment of Trust. In the event of a Potential
Change in Control or a Change in Control, the Company shall,
promptly upon written request by Indemnitee, create a Trust
for the benefit of Indemnitee and from time to time, upon
written request of Indemnitee to the Company, shall fund such
Trust in an amount, as set forth in such request, sufficient
to satisfy any and all Expenses reasonably anticipated at the
time of each such request to be incurred in connection with
investigating, preparing for and defending any claim relating
to an Indemnifiable Event, and any and all judgments, fines,
penalties and settlement amounts of any and all Claims
relating to an Indemnifiable vent from time to time actually
paid or claimed, reasonably anticipated or proposed to be
paid. The terms of the Trust shall provide that upon a
Change in Control (i) the Trust shall not be revoked or the
principal thereof invaded, without the written consent of
Indemnitee; (ii) the Trustee shall advance, within two
business days of a request by Indemnitee, any and all
Expenses to Indemnitee, not advanced directly by the Company
to Indemnitee (and Indemnitee hereby agrees to reimburse the
Trust under the circumstances under which Indemnitee would be
required to reimburse the Company under Section 2(b) of this
Agreement); (iii) the Trust shall continue to be funded by
the Company in accordance with the funding obligation set
forth above; (iv) the Trustee shall promptly pay to
Indemnitee all amounts for which Indemnitee shall be entitled
to indemnification pursuant to this Agreement or otherwise;
and (v) all unexpended funds in such Trust shall revert to
the Company upon a final determination by Board Action or
Arbitration or a court of competent jurisdiction, as the case
may be, that Indemnitee has been fully indemnified under the
terms of this Agreement. The Trustee shall be chosen by
Indemnitee. Nothing in this Section 4 shall relieve the
Company of any of its obligations under this Agreement.
5. Indemnification for Additional Expenses. The Company
shall indemnify Indemnitee against any and all expenses
(including attorneys' fees) and, if requested by Indemnitee,
shall (within two business days of such request) advance such
expenses to Indemnitee, which are incurred by Indemnitee in
connection with any claim asserted by or action brought by
Indemnitee for (i) indemnification or advance payment of
Expenses by the Company under this Agreement or any other
agreement or Company Bylaw now or hereafter in effect
relating to Claims for Indemnifiable Events and/or (ii)
recovery under any directors' and officers' liability
insurance policies maintained by the Company, regardless of
whether Indemnitee ultimately is determined to be entitled to
such indemnification, advance expense payment or insurance
recovery, as the case may be.
6. Partial Indemnity, Etc. If Indemnitee is entitled, under
any provisions of this Agreement to indemnification by the
Company for some or a portion of the Expenses, judgments,
fines, penalties, excise taxes and amounts paid or to be paid
in settlement of a Claim but not, however, for all of the
total amount thereof, the Company shall nevertheless
indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled. Moreover, notwithstanding any other
provision of this Agreement, to the extent that Indemnitee
has been successful on the merits or otherwise in defense of
any or all Claims relating in whole or in part to an
Indemnifiable Event or in defense of any issue or matter
therein, including, without limitation, dismissal without
prejudice, Indemnitee shall be indemnified against any and
all Expenses, judgments, fines, penalties, excise taxes and
amounts paid or to be paid in settlement of such Claim. In
connection with any determination by Board Action,
Arbitration or a court of competent jurisdiction that
Indemnitee is not entitled to be indemnified hereunder, the
burden of proof shall be on the Company to establish that
Indemnitee is not so entitled.
7. No Presumption. For purposes of this Agreement, the
termination of any claim, action, suit or proceeding, by
judgment, order, settlement (whether with or without court
approval) or conviction, or upon a plea of nolo contendere,
or its equivalent, shall not create a presumption that
Indemnitee did not meet any particular standard of conduct or
have any particular belief or that a court has determined
that indemnification is not permitted by applicable law or
this Agreement.
8. Contribution. In the event that the indemnification
provided for in this Agreement is unavailable to Indemnitee
for any reason whatsoever, the Company, in lieu of
indemnifying Indemnitee, shall contribute to the amount
incurred by Indemnitee, whether for judgments, fines,
penalties, excise taxes, amounts paid or to be paid in
settlement and/or for expenses, in connection with any Claim
relating to an Indemnifiable Event, in such proportion as is
deemed fair and reasonable in light of all of the
circumstances of such action by Board Action or Arbitration
or by the court before which such action was brought in order
to reflect (i) the relative benefits received by the Company
and Indemnitee as a result of the event(s) and/or
transaction(s) giving cause to such action; and/or (ii) the
relative fault of the Company (and its other directors,
officers, employees and agents) and Indemnitee in connection
with such event(s) and/or transaction(s). Indemnitee's right
to contribution under this Paragraph 8 shall be determined in
accordance with, pursuant to and in the same manner as, the
provisions in Paragraphs 2 and 3 hereof relating to
Indemnitee's right to indemnification under this Agreement.
9. Notice to the Company by Indemnitee. Indemnitee agrees
to promptly notify the Company in writing upon being served
with or having actual knowledge of any citation, summons,
complaint, indictment or any other similar document relating
to any action which may result in a claim of indemnification
or contribution hereunder.
10. Non-exclusivity, Etc. The rights of the Indemnitee
hereunder shall be in addition to any other rights Indemnitee
may have under the Company's Certificate of Incorporation or
Bylaws or the Delaware General Corporation Law or otherwise,
and nothing herein shall be deemed to diminish or otherwise
restrict Indemnitee's right to indemnification under any such
other provision. To the extent applicable law or the
Certificate of Incorporation or the Bylaws of Company, is in
effect on the date hereof or at any time in the future,
permit greater indemnification than as provided for in this
Agreement, the parties hereto agree that Indemnitee shall
enjoy by this Agreement the greater benefits so afforded by
such law or provision of the Certificate of Incorporation or
Bylaws and this Agreement shall be deemed amended without any
further action by the Company or Indemnitee to grant such
greater benefits. Indemnitee may elect to have Indemnitee's
rights hereunder interpreted on the basis of applicable law
in effect at the time of execution of this Agreement, at the
time of the occurrence of the Indemnifiable Event giving rise
to a Claim or at the time indemnification is sought.
11. Liability Insurance. To the extent the Company
maintains at any time an insurance policy or policies
providing directors' and officers' liability insurance,
Indemnitee shall be covered by such policy or policies, in
accordance with its or their terms, to the maximum extent of
the coverage available for any other Company director or
officer under such insurance policy. The purchase and
maintenance of such insurance shall not in any way limit or
affect the rights and obligations of the parties hereto, and
the execution and delivery of this Agreement shall not in any
way be construed to limit or affect the rights and
obligations of the Company and/or of the other parties under
any such insurance policy.
12. Period of Limitations. No legal action shall be brought
and no cause of action shall be asserted by or on behalf of
the Company or any affiliate of the Company against
Indemnitee, Indemnitee's spouse, heirs, executors or personal
or legal representatives after the expiration of two years
from the date of accrual of such cause of action, and any
claim or cause of action of the Company or its affiliate
shall be extinguished and deemed released unless asserted by
the timely filing of a legal action within such two-year
period; provided, however, that if any shorter period of
limitations is otherwise applicable to any such cause of
action such shorter period shall govern.
13. Amendments, Etc. No supplement, modification or
amendment of this Agreement shall be binding unless executed
in writing by both of the parties hereto. No waiver of any
of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provisions hereof (whether
or not similar) nor shall such waiver constitute a continuing
waiver.
14. Subrogation. 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 with respect to
such payment of Indemnitee, who shall execute all papers
required and shall do everything that may be necessary to
secure such rights, including the execution of such documents
necessary to enable to Company effectively to bring suit to
enforce such rights.
15. No-Duplication of Payments. The Company shall not be
liable under this Agreement to make any payment in connection
with any claim made against Indemnitee to the extent
Indemnitee has otherwise actually received payment (under any
insurance policy, Bylaw or otherwise) of the amounts
otherwise indemnifiable hereunder.
16. Binding Effect, tc. This Agreement shall be binding
upon and inure to the benefit of and be enforceable against
and by the parties hereto and their respective successors,
assigns (including any direct or indirect successor by
purchase, merger, consolidation or otherwise to all or
substantially all of the business and/or assets of the
Company), spouses, heirs and personal and legal
representatives. The Company shall require and cause any
successor (whether direct or indirect by purchase, merger,
consolidation or otherwise) to all, substantially all, or a
substantial part, of the business and/or assets of the
Company, by written agreement in form and substance
satisfactory to Indemnitee, expressly to assume and agree to
perform this Agreement in the same manner and to the same
extent that the company would be required to perform if no
such succession had taken place. This Agreement shall
continue in effect regardless of whether Indemnitee continues
to serve as a director and/or officer of the Company or of
any other enterprise at the Company's request.
17. Severability. The provisions of this Agreement shall be
severable in the event that any of the provisions thereof
(including any provision within a single section, paragraph
or sentence) are held by a court of competent jurisdiction to
be invalid, void or otherwise unenforceable, and the
remaining provisions shall remain enforceable to the fullest
extent permitted by law.
18. Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be in
writing and shall be deemed to have been duly given when
delivered by hand or when mailed by certified registered
mail, return receipt requested, with postage prepaid:
A. If to Indemnitee, to:
___________________________________
___________________________________
___________________________________
or to such other person or address which Indemnitee shall
furnish to the Company in writing pursuant to the above.
B. If to the Company, to:
Tandy Corporation
1800 One Tandy Center
Fort Worth, Texas 76102
or to such person or address as the Company shall furnish to
Indemnitee in writing pursuant to the above.
19. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the
State of Delaware applicable to contracts made and to be
performed in such State without giving effect to the
principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have duly
executed and delivered this Agreement as of the 26th day of
August, 1991.
TANDY CORPORATION
By:/s/ John V. Roach
John V. Roach
Chairman of the Board and
Chief Executive Officer