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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Date of Report (Date of earliest event reported):
October 30, 2023
PARTS ID, INC.
(Exact name of registrant as specified in its charter)
Delaware |
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001-38296 |
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81-3674868 |
(State or other jurisdiction |
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(Commission File Number) |
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(IRS Employer |
of incorporation) |
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Identification No.) |
1 Corporate Drive
Suite C
Cranbury, New Jersey 08512
(Address of principal executive offices, including
zip code)
609-642-4700
(Registrant’s telephone number, including
area code)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b)
of the Act:
Title of each class |
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Trading Symbol(s) |
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Name of each exchange on which registered |
Class A Common Stock |
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ID |
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NYSE American |
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange
Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 13(a) of the Exchange Act. ☐
Item 5.02 Departure of Directors or Certain Officers; Election of
Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On October 30, 2023, PARTS iD, Inc., a Delaware
corporation (the “Company”) entered into an interim officer engagement agreement (the “Engagement Agreement”)
with SRV Partners, LLC, a Delaware limited liability company (“SRVP”). Pursuant to the Engagement Agreement, Arkady A. Goldinstein
will be appointed as the interim Chief Financial Officer of the Company, effective November 1, 2023. Mr. Goldinstein will also assume
on an interim basis the duties of Principal Financial Officer and Principal Accounting Officer of the Company.
Mr. Goldinstein is the founder and Managing Director
at SRVP. Prior to founding SRVP, he was a senior associate in the restructuring practice of Alvarez & Marsal, a leading turnaround
and restructuring firm. Prior to that, Mr. Goldinstein practiced law at Weil Gotshal & Manges LLP and DLA Piper LLP (US), leading
global law firms. Mr. Goldinstein has extensive experience in guiding companies and other stakeholders through complex turnarounds and
restructurings in a broad range of industries, including retail, financial services, consumer products, oil & gas and construction.
Mr. Goldinstein received his J.D. from the University of Pennsylvania Carey Law School and his B.S. in Economics (with concentrations
in Finance and Information Systems) from The Wharton School at the University of Pennsylvania.
Under the terms of the Engagement Agreement, the
Company agreed to (i) pay SRVP a monthly rate of $50,000 per month (assuming Mr. Goldinstein’s engagement will be based on full-time
capacity), (ii) reimburse SVRP for reasonable out-of-pocket expenses incurred in connection with Mr. Goldinstein’s engagement and
(iii) remit to SRVP a retainer in the amount of $50,000, which shall be credited against any amounts due at the termination of the engagement.
The Engagement Agreement may be terminated by the Company or SRVP without cause by written notice to the other party. The Engagement Agreement
also includes customary representations, warranties and covenants (including indemnification provisions) that are standard for agreements
of this type.
Other than as described above, there are no arrangements
or understandings between Mr. Goldinstein and any other persons pursuant to which he was chosen as an interim officer of the Company.
There are no family relationships between Mr. Goldinstein and any of the Company’s directors, executive officers, or persons nominated
or chosen by the Company to become a director or executive officer. Mr. Goldinstein is not a party to any current or proposed transaction
with the Company for which disclosure is required under Item 404(a) of Regulation S-K.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits. The following
exhibits are filed as part of this report:
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: November 3, 2023
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PARTS ID, INC. |
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By: |
/s/ Lev Peker |
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Name: |
Lev Peker |
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Title: |
Chief Executive Officer |
Exhibit 10.1
INTERIM OFFICER ENGAGEMENT AGREEMENT
This agreement (the “Engagement Agreement”)
sets forth the terms and conditions of the engagement (the “Engagement”) between SRV Partners, LLC (“SRVP”),
a Delaware limited liability company, and PARTS iD, Inc., a Delaware corporation, (together with any affiliate and subsidiaries, successors,
and assigns, jointly and severally, the “Company”). SRVP and the Company are each referred herein as (a “Party,”
and together, the “Parties”).
WHEREAS, SRVP is a restructuring and turnaround
firm that provides interim management, restructuring advice, turnaround and performance improvement services, corporate crisis management,
and other related services.
WHEREAS, the Company is a technology-driven, digital
commerce company focused on creating custom infrastructure and unique user experiences within niche markets.
WHEREAS, the Company desires to engage SRVP to
make available to the Company the services of Arkady A. Goldinstein to serve as the interim Chief Financial Officer (“Interim
CFO”) subject to the terms and conditions of this Engagement Agreement, including the provisions of the Indemnification Rider
(as defined below), which is fully incorporated herein.
WHEREAS, upon the mutual agreement of the Parties,
SRVP may provide additional employees of SRVP or its affiliates (“Additional Personnel,” and together with the Interim
CFO, the “Engagement Personnel”) to carry out the Scope of Engagement, as defined herein.
The Engagement Personnel,
in cooperation with the management of the Company and at the direction of the Directing Parties (as defined below), will carry out the
following duties (together, and as may be amended from time to time, the “Scope of Engagement”):
| a) | undertake an evaluation of the Company’s current financial condition; |
| b) | oversee and assist in developing and managing cash flow forecast; |
| c) | participate in defining the Company’s strategic alternatives with respect to a balance sheet restructuring
and operational turnaround; |
| d) | participate in defining cost reduction and operations improvement opportunities; |
| e) | negotiate with creditors of the Company; and |
| f) | perform such other activities as the Directing Parties have determined are necessary and consistent with
the fiduciary duties of officers of the Company. |
SRVP agrees to provide
the services within the Scope of Engagement at the direction of the Company’s board of directors (the “Board”),
any special subcommittee of the Board, or any C-level executive designated by the Board (collectively, the “Directing Parties”).
The Engagement Personnel
providing services to the Company may concurrently perform services similar to those described herein for other clients of SRVP in conjunction
with unrelated matters.
Neither SRVP, nor the Engagement Personnel
make any representations or guarantees that, inter alia, (i) an appropriate restructuring proposal or strategic alternative
can be formulated for the Company, (ii) any restructuring proposal or strategic alternative presented to the Company’s management
or the Board will be more successful than all other possible restructuring proposals or strategic alternatives, (iii) restructuring
is the best course of action for the Company, or (iv) if formulated, that any proposed restructuring plan or strategic alternative
will be accepted by any of the Company’s creditors, shareholders and other constituents. Further, neither SRVP, nor the Engagement
Personnel, assume any responsibility for the Company’s decision to pursue, or not pursue, any business strategy, or to effect, or
not to effect, any transaction. The Engagement Personnel shall be responsible for implementation only of the restructuring proposal or
alternative approved by the Board and only to the extent and in the manner authorized and directed by the Board.
Depending on future developments the
spread of the COVID 19 virus has the potential to affect the services provided under this Engagement Agreement. Travel, workplace, and
mobility restrictions (which shall include measures reasonably mandated by SRVP with respect to its employees and personnel) may restrict
travel to the Company and other work sites as well as limit access to facilities, infrastructure, information and personnel of SRVP, the
Company or others. Such circumstances may adversely affect the timetable or content of SRVP’S deliverables and completion of the
scope of services included in this Engagement Agreement. SRVP will discuss with the Company if SRVP believes that the services may be
impacted in this way. The Company accepts and acknowledges that SRVP employees and personnel may attend at the Company’s locations
or physically interact with the Company’s employees and personnel in connection with the services, unless SRVP or the Company decide
that this should not be the case.
| a) | Monthly Rates. SRVP will charge a fixed monthly fee per each member of the Engagement Personnel
according to the following rate schedule: |
Managing Directors |
$60,000 – $80,000 |
Directors |
$45,000 – $60,000 |
Associates |
$30,000 – $45,000 |
Such monthly rates shall be subject
to adjustment annually at such time as SRVP adjusts its rates generally.
Initially, Arkady A. Goldinstein will
be the sole member of the Engagement Personnel. His rate on this Engagement will be based on 100% of full-time capacity (no less than
40 hours a week) at a monthly agreed-upon rate of $50,000 per month.
SRVP will notify the Company if Additional
Personnel are required to perform the tasks within the Scope of Engagement and may request the Company’s approval to add such Additional
Personnel to this Engagement, which approval shall not be unreasonably withheld.
Additional Personnel may be added to
this Engagement at 100%, 50%, or 25% of each SRVP’S professional’s full-time capacity, which percentages will be applied to
the fixed monthly fees above on a pro-rata basis. The Parties agree to discuss monthly rates for any Additional Personnel at the time
SRVP makes a request to add such Additional Personnel to this Engagement.
| b) | Expense Reimbursements. In addition to the monthly fee and any Success Fee, the Company agrees
to reimburse SRVP for SRVP’s reasonable out-of-pocket expenses incurred in connection with this Engagement. Such expenses may include
travel, lodging, meals, and office expenses. All expenses will be billed monthly in arrears and will be reimbursed in accordance with
Company policy. |
| c) | Evergreen Retainer. Contemporaneously with the execution of this Engagement Agreement, the Company
shall remit to SRVP a retainer in the amount of $50,000, which shall be credited against any amounts due at the termination of this Engagement
and, if not fully exhausted, returned upon the satisfaction of all obligations hereunder; provided however, that if the Company commences
a Chapter 11 Case (as defined below) the amount of such retainer shall be $175,000, and the Company shall fund the additional $25,000
portion of the retainer on the date immediately preceding the date of commencement of a Chapter 11 Case. At all times during the course
of the Engagement, such retainer must be equal to no less than the sum of one-month full-time rates of all the SRVP professionals that
comprise the Engagement Personnel and must be topped off if professionals are added to the Engagement Personnel within five (5) business
days upon such addition of the SRVP professionals. |
| d) | Right to Consult With Counsel. The Company acknowledges and agrees that from time to time legal
advice or opinions may be necessary or advisable in rendering the services provided for in this Engagement Agreement, and SRVP may consult
with the Company’s counsel or independent counsel, in each case, at the Company’s expense. SRVP shall have no liability for
anything done or omitted to be done by it in good faith on the advice or opinion of such counsel. |
| e) | Retention in Chapter 11. In the event the Company commences a case under chapter 11 of the Bankruptcy
Code (a “Chapter 11 Case”), the Company agrees to file with the court an application pursuant to sections 105(a) and
363(b) of the Bankruptcy Court seeking authority to retain SRVP to provide the Company an Interim CFO and Additional Personnel (a “Retention
Application”). Such Retention Application shall be filed on the date of commencement of a Chapter 11 Case. |
| f) | Inclusion in a Carve-Out. In any motion seeking approval of any interim and/or final debtor-in-possession
and/or cash collateral orders (collectively, the “DIP Financing Orders”) filed in a Chapter 11 Case, the Company shall
seek to include SRVP’s fees in any “Carve-Out” as such term, or a term reflecting an analogous concept, may be defined
in the DIP Financing Orders. |
SRVP invoices its clients in advance on the first
day of each calendar month; provided, however, that if the Company commences a Chapter 11 Case, SRVP will invoice the Company in arrears
based on the utilization of the Engagement Personnel during the immediately preceding calendar month. All SRVP’s invoices are payable
upon receipt and must be paid electronically by wire or ACH.
| a) | This Engagement Agreement will apply from the commencement of the services referred to in Section 1 and
may be terminated with immediate effect by either party without cause by written notice to the other party. |
| b) | SRVP will not withdraw from an engagement unless the Company misrepresents or fails to disclose material
facts, fails to pay fees or expenses, or makes it unethical or unreasonably difficult for SRVP to continue performance of this Engagement,
or other just cause exists. |
| c) | Upon termination of the Engagement Agreement, any fees and expenses due to SRVP shall be remitted promptly
(including fees and expenses that accrued prior to but are invoiced subsequent to such termination). |
| d) | Notwithstanding termination of this Engagement Agreement, if the Company consummates any Transaction during
the 12-month period following the termination of this agreement as to which the Success Fee would otherwise be payable under Section 3(b),
the Company will pay SRVP the same Success Fee which would have been earned if this Engagement Agreement had not been terminated. |
| e) | The provisions of this Engagement Agreement that give the Parties rights or obligations beyond its termination
(including the Indemnification and Limitation on Liability Agreement) shall survive and continue to bind the Parties. |
| 5. | Information Provided by the Company and Forward-Looking Statements |
The Company shall use all reasonable
efforts to: (i) provide SRVP with access to management and other representatives of the Company; and (ii) to furnish all data, material,
and other information concerning the business, assets, liabilities, operations, cash flows, properties, financial condition, and prospects
of the Company that SRVP reasonably requests in connection with the services to be provided under this Engagement Agreement. SRVP shall
rely, without further independent verification, on the accuracy and completeness of all publicly available information and information
that is furnished by or on behalf of the Company and otherwise reviewed by SRVP in connection with the services performed for the Company
under this Engagement Agreement. The Company acknowledges and agrees that SRVP is not responsible for the accuracy or completeness of
such information and that SRVP shall not be responsible for any inaccuracies or omissions therein. SRVP is under no obligation to update
data submitted to it or to review any other areas unless specifically requested by the Company to do so.
The Company understands that the services
to be rendered by SRVP under this Engagement Agreement may include the preparation of projections and other forward-looking statements,
and numerous factors can affect the actual results of the Company’s operations, which may materially and adversely differ from those
projections. In addition, SRVP will be relying on information provided by the Company in the preparation of those projections and other
forward-looking statements.
| 6. | Relationship of the Parties |
The Parties intend that an independent
contractor relationship will be created by this Engagement Agreement. Neither SRVP, nor any of its personnel or agents (including, without
limitation, the Engagement Personnel), is to be considered an employee or agent of the Company and the personnel and agents of SRVP (including,
without limitation, the Engagement Personnel) are not entitled to any of the benefits that the Company provides for the Company employees.
The Company acknowledges and agrees that services performed by SRVP under this Engagement Agreement shall not constitute an audit, review,
or compilation, or any other type of financial statement reporting engagement that is subject to the rules of the American Institute of
Certified Public Accountants,, the United States Securities and Exchange Commission, or any other state or national professional or regulatory
body.
| 7. | No Third-Party Beneficiary |
The Company acknowledges that all advice
(written or oral) provided by SRVP to the Company in connection with this Engagement is intended solely for the benefit and use of the
Company (limited to its Board and management) in considering the matters to which this Engagement relates. The Company agrees that no
such advice shall be used for any other purpose or reproduced, disseminated, quoted, or referred to at any time in any manner or for any
purpose other than accomplishing the tasks referred to herein without SRVP’S prior approval (which shall not be unreasonably withheld),
except as required by law.
SRVP is not currently aware of any relationship
that would create a conflict of interest with the Company or those parties-in-interest of which the Company has made SRVP aware. Because
SRVP and its affiliates and subsidiaries comprise an advisory firm that serves clients on a global basis in numerous cases, both in and
out of court, it is possible that SRVP may have rendered or will render services to or have business associations with other entities
or persons which had or have or may have relationships with the Company, including creditors of the Company. SRVP will not be prevented
or restricted by virtue of providing the services under this Engagement Agreement from providing services to other entities or individuals,
including entities or individuals whose interests may be in competition or conflict with the Company’s, provided SRVP makes appropriate
arrangements to ensure that the confidentiality of information is maintained. If applicable, each of the entities comprising the Company
(each, a “Company Entity”) acknowledges and agrees that the services being provided hereunder are being provided on
behalf of each of them and each of them hereby waives all conflicts of interest that may arise on account of the services being provided
on behalf of any other Company Entity. By its signature below, the Company represents and warrants that each Company Entity has taken
all corporate action necessary and is authorized to waive such potential conflicts of interest.
| 9. | Confidentiality; Non-Solicitation |
SRVP shall keep as confidential all
non-public information received from the Company in conjunction with this Engagement, except: (i) as requested by the Company or its legal
counsel; (ii) as required by law; or (iii) as reasonably required in the performance of this Engagement. All obligations as to non-disclosure
shall cease as to any part of such information to the extent that such information is or becomes public other than as a result of a breach
of this provision. The Company, on behalf of itself and its subsidiaries and affiliates and any person which may acquire all or substantially
all of its assets, agrees that, until two (2) years subsequent to the termination of this Engagement, it will not solicit, recruit, hire
or otherwise engage any employee of SRVP or any of its affiliates who worked on this Engagement while employed by SRVP or its affiliates
(“Solicited Person”) unless SRVP expressly waives this provision. Should the Company or any of its subsidiaries or
affiliates or any person who acquires all or substantially all of its assets extend an offer of employment to or otherwise engage any
Solicited Person and should such offer be accepted, SRVP shall be entitled to a fee from the Company equal to the Solicited Person’s
monthly billing rate at the time of the offer multiplied by twelve (12) for a Managing Director, nine (9) for a Director and six (6) for
any other SRVP employee. The Company acknowledges and agrees that this fee fairly represents the loss that SRVP will suffer if the Company
breaches this provision. The fee shall be payable at the time of the Solicited Person’s acceptance of employment or engagement.
| 10. | Indemnification and Limitations on Liability |
The attached indemnification and limitation
on liability agreement is incorporated herein by reference, shall be included in the definition of “Engagement Agreement,”
shall be executed upon the acceptance of this Engagement Agreement, and shall survive termination of this Engagement or this Engagement
Agreement and remain in full force and effect.
In addition to the indemnification provisions,
the Company shall obtain insurance coverage, similar in nature to Directors and Officers’ Liability coverage, but applicable to
and to provide coverage for, a Interim CFO, in the amount of at least [ten (10) million dollars], to be effective during the term of this
Agreement and for any claim made at least six (6) years after termination.
| 12. | Joint and Several Liability |
To the extent applicable, the Company,
on behalf of each Company Entity, agrees that each Company Entity shall be jointly and severally liable to SRVP and its affiliates for
all of the Company’s representations, warranties, covenants, liabilities and obligations set forth in this Engagement Agreement. Any beneficiary
of this Engagement Agreement may seek to enforce any of its rights and remedies hereunder against any or all Company Entities in any order
at any time in its sole discretion.
In the provision of services under this
Engagement Agreement, it is expected that the Company and third parties will provide to SRVP certain personally identifiable information
or other personal data regarding creditors, employees, and other constituents, the processing or transfer of which may be subject to Data
Protection Laws. “Data Protection Laws” means all applicable U.S. and foreign national, federal, state and local laws,
rules, regulations or other binding instruments in relation to the processing or protection of personal data, including, but not limited
to, the EU General Data Protection Regulation (GDPR). In furtherance thereof, the Company acknowledges and agrees that such information
(and work product containing such information) will be transferred by SRVP, on behalf of the Company, to third parties including other
agents and professionals of the Company acting within this matter (i.e., the Company’s counsel or other professionals) as well as,
at the Company’s direction, other constituents of the Company, including but not limited to creditors and their representatives
or professionals, as well as any applicable judicial, regulatory or governmental bodies. The Company acknowledges that such data transfer
by SRVP to any third party (rather than a transfer by the Company to any third party) is to be performed for the Company’s convenience
and such transfers shall always be deemed to be on the Company’s behalf. Without limiting the foregoing, each Party agrees to comply
with Data Protection Laws in connection with this Engagement Agreement.
This Engagement Agreement, including,
without limitation, the construction and interpretation thereof and all claims, controversies and disputes arising under or relating thereto,
shall be governed and construed in accordance with the laws of the State of New York, without regard to principles of conflict of law
that would require deference to the laws of another jurisdiction. The Company and SRVP agree to waive trial by jury in any action, proceeding,
or counterclaim brought by or on behalf of the Parties with respect to any matter relating to or arising out of this Engagement Agreement
or the performance or non-performance of SRVP hereunder. The Parties agree, to the extent permitted by applicable law, (i) that any Federal
Court within the Southern District of New York shall have exclusive jurisdiction over any litigation arising out of this Engagement Agreement;
(ii) to submit to the personal jurisdiction of the Courts of the United States District Court for the Southern District of New York; and
(iii) to waive any and all personal rights under the law of any jurisdiction to object on any basis. including, without limitation, forum
non conveniens, to jurisdiction or venue within the State of New York for any litigation arising in connection with this Engagement
Agreement.
This Engagement Agreement shall be binding
upon the Parties, their respective heirs, successors, and assigns, and any heir, successor, or assign of a substantial portion of SRVP’S
or the Company’s respective businesses or assets, including any chapter 11 trustee. This Engagement Agreement incorporates the entire
understanding of the Parties with respect to the subject matter hereof and may not be amended or modified except in writing executed by
the Company and SRVP. The Company agrees that SRVP may aggregate information provided by or on behalf of the Company during this Engagement
with information provided by or on behalf of others and use and disclose that information in de-identified form as part of research and
advice, including, without limitation, benchmarking services. Notwithstanding anything herein to the contrary, SRVP may reference or list
the Company’s name, logo, or a general description of the services in SRVP’S marketing materials, including, without limitation,
on SRVP’S website.
Agreed and accepted by:
PARTS iD, Inc. |
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(on behalf of itself and any of its subsidiaries) |
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By: |
/s/ John Pendleton |
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Name: |
John Pendleton |
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Title: |
EVP, Legal & Corporate Affairs |
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SRV Partners, LLC |
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By: |
Arkady A.
Goldinstein |
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Name: |
Arkady A. Goldinstein |
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Title: |
Managing Director |
INDEMNIFICATION AND LIMITATION ON LIABILITY
RIDER
This indemnification and limitation on liability
rider (the “Indemnification Rider”) is incorporated by reference into the Engagement Agreement, dated October 30, 2023,
by and between SRVP and PARTS iD, Inc..
A. The
Company agrees to indemnify and hold harmless each of SRVP, its affiliates and their respective shareholders, members, managers, employees,
agents, representatives and subcontractors (each, an “Indemnified Party” and collectively, the “Indemnified Parties”)
to the fullest extent permitted by law, including, but not limited to, against any and all losses, claims, damages, liabilities, penalties,
obligations and expenses, including the costs for counsel or others (including employees of SRVP, based on their then current monthly
or hourly billing rates) in investigating, preparing or defending any action or claim, whether or not in connection with litigation in
which any Indemnified Party is a party, or enforcing the Engagement Agreement (including this Indemnification Rider), as and when incurred,
caused by, relating to, based upon or arising out of (directly or indirectly) the Indemnified Parties’ acceptance of or the performance
or nonperformance of their obligations under the Engagement Agreement; provided, however, such indemnity shall not apply to any such loss,
claim, damage, liability or expense to the extent it is found in a final judgment by a court of competent jurisdiction (not subject to
further appeal) to have resulted primarily and directly from such Indemnified Party’s gross negligence or willful misconduct. The Company
also agrees that (a) no Indemnified Party shall have any liability (whether direct or indirect, in contract or tort or otherwise) to the
Company for or in connection with this Engagement, except to the extent that any such liability is found in a final judgment by a court
of competent jurisdiction (not subject to further appeal) to have resulted from such Indemnified Party’s gross negligence or willful misconduct
and (b) in no event whatsoever will any Indemnified Party have any liability to the Company for special, consequential, incidental or
exemplary damages, or loss (including any lost profits, savings, or business opportunity). The Company further agrees that it will not,
without the prior consent of an Indemnified Party, settle or compromise or consent to the entry of any judgment in any pending or threatened
claim, action, suit, or proceeding in respect of which such Indemnified Party seeks indemnification hereunder (whether or not such Indemnified
Party is an actual party to such claim, action, suit, or proceedings) unless such settlement, compromise, or consent includes an unconditional
release of such Indemnified Party from all liabilities arising out of such claim, action, suit, or proceeding.
B. These
indemnification provisions shall be in addition to any liability which the Company may otherwise have to the Indemnified Parties. If,
at any time whether before or after termination of this Engagements, as a result of or in connection with the Engagement Agreement, or
SRVP’S and its personnel’s role under the Engagement Agreement, any Indemnified Party is required to produce any of its personnel
(including former employees) for examination, deposition, or other written, recorded, or oral presentation, or any Indemnified Party is
required to produce or otherwise review, compile, submit, duplicate, search for, organize, or report on any material within such Indemnified
Party’s possession or control pursuant to a subpoena or other legal (including administrative) process, the Company will reimburse
the Indemnified Party for its out of pocket expenses, including the reasonable fees and expenses of its counsel, and will compensate the
Indemnified Party for the time expended by its personnel based on such personnel’s then current monthly or hourly rate.
C. If
any action, proceeding, or investigation, to which any Indemnified Party demands indemnification hereunder, is commenced such Indemnified
Party will notify the Company with reasonable promptness of the commencement of such an action, proceeding, or investigation; provided,
however, that any failure by such Indemnified Party to notify the Company will not relieve the Company from its obligations hereunder.
The Company shall promptly pay expenses reasonably incurred by any Indemnified Party in defending, participating in, or settling any action,
proceeding, or investigation in which such Indemnified Party is a party or is threatened to be made a party, or otherwise is participating
in as a result of or in connection with this Engagement, whether in advance of the final disposition of such action, proceeding, or investigation
or otherwise. If any such action, proceeding, or investigation, in which an Indemnified Party is a party, is also commenced against the
Company, the Company may, in lieu of advancing the expenses of separate counsel for such Indemnified Party, provide such Indemnified Party
with legal representation by the same counsel that represents the Company, at no cost to such Indemnified Party; provided, however, (i) such
counsel is reasonably satisfactory to such Indemnified Party and (ii) if the Indemnified Party determines in it is sole discretion
that due to the existence of actual or potential conflicts of interest between such Indemnified Party and the Company such counsel is
unable to represent both the Indemnified Party and the Company, then the Indemnified Party shall be entitled to use separate counsel of
its own choice, and the Company shall promptly reimburse the Indemnified Party for such counsel in accordance with this Indemnification
Rider. Nothing herein shall prevent an Indemnified Party from using separate counsel of its own choice at its own expense.
D. The
Company may settle any claim against an Indemnified Party by any third party only with the written consent of such Indemnified Party.
The Company will be liable for any settlement of any claim against an Indemnified Party by any third party made with the Company’s written
consent.
E. If
a claim for indemnification under this Engagement Agreement is made but it is found in a final judgment by a court of competent jurisdiction
(not subject to further appeal) that such indemnification may not be enforced in such case, then the relative fault of the Company, on
the one hand, and the Indemnified Parties, on the other hand, in connection with the statements, acts or omissions which resulted in the
losses, claims, damages, liabilities, or costs giving rise to the indemnification claim and other relevant equitable considerations shall
be considered; provided, that in no event will the Indemnified Parties’ aggregate contribution for all losses, claims, damages, liabilities
and expenses with respect to which contribution is available hereunder exceed the amount of fees actually received by the Indemnified
Parties pursuant to the Engagement Agreement. No Party found liable for a fraudulent misrepresentation shall be entitled to contribution
hereunder from any Party that is not found liable for such fraudulent misrepresentation.
E. In
the event the Company and SRVP seek judicial approval for the assumption of the Engagement Agreement or authorization to enter into a
new engagement agreement pursuant to which SRVP would continue to be engaged by the Company, the Company shall promptly pay expenses reasonably
incurred by the Indemnified Parties, including attorneys’ fees and expenses, in connection with any motion, action, or claim made either
in support of or in opposition to any such retention or authorization, whether in advance of or following any judicial disposition of
such motion, action, or claim, regardless of whether such retention or authorization is approved by any court. The Company will also promptly
reimburse the Indemnified Parties for any expenses, including attorneys’ fees and expenses, incurred in seeking payment of any amounts
owed to the Indemnified Parties under the Engagement Agreement (or any new engagement agreement) whether through submission of a fee application
or in any other manner, without offset, recoupment or counterclaim.
F. Neither
termination of the Engagement Agreement, nor termination of this Engagement, nor the filing by any Party of a petition under chapter 7
or chapter 11 of the Bankruptcy Code (nor the conversion of an existing case to one under a different chapter) shall affect this Indemnification
Agreement, which shall hereafter remain operative and in full force and effect.
G. The
rights provided herein shall not be deemed exclusive of any other rights to which the Indemnified Parties may be entitled under the certificate
of incorporation or bylaws of the Company, any other agreements, any vote of stockholders or disinterested directors of the Company, any
applicable law, or otherwise.
-10-
v3.23.3
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