CompUSA 2011 Annual Report Download - page 74

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11. Indemnification; D&O Insurance
. The Employee shall be entitled to be indemnified and insured by the Company against liability and
expense relating his employment to the same extent and subject to the same conditions and limitations as all other executive officers of the Company
in accordance with and as authorized by the Company’s Certificate of Incorporation, by-laws, Board of Directors resolutions and applicable law.
12. Entire Agreement
. This Agreement sets forth the entire understanding of the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements, written or oral, between them as to such subject matter. This Agreement may not be amended, nor may any
provision hereof be modified or waived, except by an instrument in writing duly signed by the party to be charged.
13. Governing Law
. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the
State of Florida, without regard to the conflicts of law rules thereof. The Company and you agree that any action, suit or proceeding in respect of or
arising out of this Agreement shall be initiated and prosecuted in the federal courts located in Florida and the parties hereby consent to the jurisdiction
of such courts.
14. Validity
. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in full force and effect.
15. Counterparts
. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed to be an original but
all of which together will constitute one and the same agreement.
16. Waivers . No waiver by either party of any breach or non-
performance of any provision or obligation of this Agreement shall be
deemed to be a waiver of any preceding or succeeding breach of the same or any other provision of this Agreement.
17. Section 409A
. The Company makes no representations or warranties regarding the tax implications of the compensation and benefits
to be paid to you under this Agreement, including, without limitation, under Section 409A of the Internal Revenue Code of 1986, as amended (the “
Code ”), and applicable administrative guidance and regulations (“ Section 409A ”).
It is the intention of the parties hereto that payments under this
Agreement be interpreted to be exempt from or in compliance with Section 409A and accordingly, to the maximum extent permitted, this Agreement
shall be interpreted to be exempt from or in compliance with Section 409A. To the extent any payments of money or other benefits due to you under
this Agreement could cause the application of an acceleration or additional tax under Section 409A, such payments or other benefits shall be deferred
if deferral will make such payment or other benefits compliant under Section 409A, or otherwise such payments or other benefits shall be restructured,
to the extent possible, in a manner determined by the Company that does not cause such acceleration or additional tax.
All references in this
Agreement to the termination of your employment shall mean your separation from service within the meaning of Section 409A. With respect to any
payments due to you as a result of the termination of your employment, if necessary to comply with Section 409A, and if you are deemed on the date
of termination to be a “specified employee”
within the meaning of that term under Section 409A, such payments shall be made as follows: (i) no
payments shall be made for a six-
month period following the date of termination and (ii) an amount equal to the aggregate sum that would have been
otherwise payable during the initial six-
months period shall be paid in a lump sum six (6) months plus one (1) day following the date of termination.
With respect to any reimbursements under this Agreement, such reimbursement shall be made on or before the last day of your taxable year following
the taxable year in which the expense was incurred by you. The amount of any expenses eligible for reimbursement or the amount of any in-
kind
benefits provided, as the case may be, under this Agreement during any calendar year shall not affect the amount of expenses eligible for
reimbursement or the amount of any in-kind benefits provided during any other calendar year. The right to reimbursement or to any in-
kind benefit
pursuant to this Agreement shall not be subject to liquidation or exchange for any other benefit. For the avoidance of doubt, any payment due under
this Agreement within a period following the termination of your employment or other event shall be made on a date during such period as determined
by the Company in its sole discretion. Each payment made under this Agreement shall be designated as a “separate payment”
within the meaning of
Section 409A.
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