OFFICER’S INDEMNIFICATION AGREEMENT
EXHIBIT 10.68
OFFICER’S
THIS AGREEMENT is made and entered into as of , 200 by and between (the “Officer”) and PTEK HOLDINGS, INC., a Georgia corporation (the “Corporation”).
WHEREAS, the Officer is an officer of the Corporation and in such capacity is performing a valuable service to the Corporation; and
WHEREAS, the Corporation’s Amended and Restated Bylaws (the “Bylaws”) provide for the indemnification of the officers of the Corporation as allowed by Part 5 of Article 8 of the Georgia Business Corporation Code, as amended to date (the “State Statute”); and
WHEREAS, the Bylaws and State Statute specifically contemplate that contracts may be entered into between the Corporation and its officers with respect to indemnification of such officers; and
WHEREAS, in order to provide to the Officer assurances with respect to the protection provided against liabilities that the Officer may incur in the performance of his or her duties to the Corporation, and to thereby induce the Officer to serve in such capacity, the Corporation has determined and agreed to enter into this Agreement with the Officer;
NOW, THEREFORE, in consideration of the premises and the Officer’s service as an officer after the date of this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Indemnification. Subject only to the exclusions set forth in Section 2 hereof, and in addition to any other indemnity to which the Officer may be entitled under the State Statute or any Bylaw, resolution or agreement, the Corporation hereby agrees to hold harmless and indemnify the Officer against any and all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the Officer in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative (including an action by or in the right of the Corporation), and whether formal or informal, to which the Officer is, was or at any time becomes a party, or is threatened to be made a party, by reason of the fact that the Officer is, was, or at any time becomes a director, officer, employee or agent of the Corporation, or is or was serving or at any time serves at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.
2. Limitations on Indemnification. No indemnity pursuant to Section 1 hereof shall be paid by the Corporation:
(a) With respect to any proceeding in which the Officer is adjudged, by final judgment not subject to further appeal, liable to the Corporation or is subjected to injunctive relief in favor of the Corporation:
(i) for any appropriation, in violation of the Officer’s duties, of any business opportunity of the Corporation;
(ii) for acts or omissions which involve intentional misconduct or a knowing violation of law;
(iii) for unlawful corporate distributions; and
(iv) for any transaction from which the Officer received an improper personal benefit;
(b) With respect to any suit in which final judgment is rendered against the Officer for an accounting of profits made from the purchase or sale by the Officer of securities of the Corporation, pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 or similar provisions of any federal, state, or local statutory, law, or on account of any payment by the Officer to the Corporation in respect of any claim for such an accounting; or
(c) If a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful.
3. Contribution. If the indemnification provided for in Section 1 hereof is unavailable and may not be paid to the Officer for any reason other than those set forth in Section 2(b) hereof, then in respect of any threatened, pending or completed action, suit or proceeding in which the Corporation is jointly liable with the Officer (or would be if joined in such action, suit or proceeding), the Corporation shall contribute, to the extent it is not lawfully prohibited from doing so, to the amount of expenses, judgments, fines and settlements paid or payable by the Officer in such proportion as is appropriate to reflect (a) the relative benefits received by the Corporation on the one hand and the Officer on the other hand from the transaction from which such action, suit or proceeding arose and (b) the relative fault of the Corporation on the one hand and of the Officer on the other hand in connection with the events which resulted in such expenses, judgments, fines or settlement amounts, as well as any other relevant equitable considerations. The relative fault of the Corporation on the one hand and of the Officer on the other hand shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such expenses, judgments, fines or settlement amounts. The Corporation agrees that it would not be just and equitable if contribution pursuant to this Section 3 were determined by pro rata allocation or any other method of allocation that does not take account of the foregoing equitable considerations.
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4. Continuation of Obligations. All agreements and obligations of the Corporation contained herein shall continue during the period the Officer is a director, officer, employee or agent of the Corporation (or is serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise) and shall continue thereafter for so long as the Officer shall be subject to any possible claim or threatened, pending or completed action, suit or proceeding, whether civil, criminal, arbitrative or investigative (including an action by or in the right of the Corporation) and, whether formal or informal, by reason of the fact that the Officer was an officer of the Corporation or serving in any other capacity referred to herein.
5. Notification and Defense of Claim.
(a) Promptly after receipt by the Officer of notice of the commencement of any action, suit or proceeding, the Officer will, if a claim in respect thereof is to be made against the Corporation under this Agreement, notify the Corporation of the commencement thereof, but the omission to so notify the Corporation will not relieve the Corporation from any liability which it may have to the Officer otherwise than under this Agreement.
(b) With respect to any such action, suit or proceeding as to which the Officer so notifies the Corporation:
(i) the Corporation will be entitled to participate therein at its own expense; and
(ii) the Corporation shall have the right to assume the defense thereof, provided that the Corporation may require, as a condition to such assumption, that the Officer provide written affirmation of his or her good faith belief that his or her conduct did not constitute behavior of the kind described in Section 2(a) hereof and that he or she is entitled to indemnification hereunder.
After notice from the Corporation to the Officer of its election so to assume such defense, the Corporation will not be liable to the Officer under this Agreement for any legal or other expenses subsequently incurred by the Officer in connection with the defense thereof, other than reasonable costs of investigation or as otherwise provided below. The Officer shall have the right to employ separate counsel in such action, suit or proceeding, but the fees and expenses of such counsel incurred after notice from the Corporation of its assumption of the defense thereof shall be at the expense of the Officer unless (iii) the employment of counsel by the Officer has been authorized by the Corporation, (iv) counsel designated by the Corporation to conduct such defense shall not be reasonably satisfactory to the Officer or (v) the Corporation shall not in fact have employed counsel to assume the defense of such action in each of which cases the fees and expenses of such counsel shall be at the expense of the Corporation. For the purposes of clause (iv) above, the Officer shall be entitled to determine that counsel designated by the Corporation is not reasonably satisfactory if, among other reasons, the Officer shall have been advised by
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qualified counsel that, because of actual or potential conflicts of interest in the matter between the Officer, other officers or directors similarly indemnified by the Corporation, and/or the Corporation, representation of the Officer by counsel designated by the Corporation is likely to materially and adversely affect the Officer’s interest or would not be permissible under applicable canons of legal ethics.
(c) The Corporation shall not be liable to indemnify the Officer under this Agreement for any amounts paid in settlement of any action or claim effected without the Corporation’s written consent. The Corporation shall not settle any action or claim in any manner which would impose any penalty or limitation on the Officer without the Officer’s written consent. Neither the Corporation nor the Officer will unreasonably withhold consent to any proposed settlement.
6. Advancement and Repayment of Expenses. Upon request therefor accompanied by reasonably itemized evidence of expenses incurred, and by the Officer’s written affirmation of his or her good faith belief that his or her conduct met the standard applicable to indemnification pursuant to Section 1 hereof and did not constitute behavior of the kind described in Section 2(a) hereof, and that he or she is entitled to indemnification hereunder, the Corporation shall advance to the Officer the reasonable expenses (including attorneys’ fees and costs of investigation and defense (including the fees of expert witnesses, other professional advisors, and private investigators)) incurred by him or her in defending any civil or criminal suit, action or proceeding for which the Officer is entitled (assuming an applicable standard of conduct is met) to indemnification pursuant to this Agreement. The Officer agrees to reimburse the Corporation for all reasonable expenses paid by the Corporation, whether pursuant to this Section or Section 5 hereof, in defending any, action, suit, or proceeding against the Officer in the event and to the extent that it shall ultimately be determined that the Officer is not entitled to be indemnified by the Corporation for such expenses under this Agreement. Any advances and the Officer’s agreement to repay shall be unsecured and interest-free.
7. Agreement to Serve. The Officer hereby agrees to continue to serve as an officer of the Corporation faithfully and to the best of his or her ability so long as the Officer is duly appointed by the Board of Directors or until such time as the Officer tenders his or her resignation in writing.
8. Enforcement.
(a) The Corporation expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce the Officer to serve as an officer of the Corporation and acknowledges that the Officer will in the future be relying, upon this Agreement in continuing to serve in such capacity. Any decision of the Officer not to continue in such capacity shall not, however, limit the scope of this Agreement.
(b) The Corporation shall reimburse the Officer for any and all expenses (including attorneys’ fees) actually and reasonably incurred by the Officer, when and as
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such expenses are incurred, in connection with any claim asserted or action brought by the Officer to enforce rights or to collect moneys due under this Agreement, regardless of whether the Officer ultimately is determined to be entitled to such indemnification or advance expense payment, unless a court of competent jurisdiction determines that the claim or action is frivolous or that assertions made therein were not made in good faith or were made with no reasonable basis.
9. Maintenance of Liability Insurance.
(a) Subject to Section 9(c), the Corporation hereby covenants and agrees that, so long as the Officer shall continue to serve as an officer of the Corporation and thereafter so long as the agreements and obligations of the Corporation shall continue in accordance with Section 4, the Corporation, in good faith, shall seek to obtain and maintain in full force and effect a policy of director’s and officer’s insurance (the “D&O Insurance”) in reasonable amounts from established and reputable insurers.
(b) In all policies of D&O Insurance, the Officer shall be named as an insured in such manner as to provide the Officer the same rights and benefits as are accorded to the most favorably insured of the Corporation’s directors or officers.
(c) Notwithstanding the foregoing, the Corporation shall have no obligation to obtain or maintain D&O Insurance if the Corporation determines in good faith that such insurance is not reasonably available, the premium costs for such insurance are disproportionate to the amount of coverage provided or the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance.
10. Non-Exclusivity. The Officer’s rights hereunder shall be in addition to, and not in lieu of, any other rights the Officer may have under the Corporation’s Bylaws, the Georgia Business Corporation Code or otherwise.
11. Vested Rights; Specific Performance. No amendment to the Articles of Incorporation or Bylaws of the Corporation or any other corporate action shall in any way limit the Officer’s rights under this Agreement. In any proceeding brought by or on behalf of the Officer to specifically enforce the provisions of this Agreement, the Corporation hereby waives the claim or defense therein that the plaintiff or claimant has an adequate remedy at law, and the Corporation shall not urge in any such proceeding the claim or defense that such remedy at law exists. The provisions of this Section 11, however, shall not prevent the Officer from seeking a remedy at law in connection with any breach of this Agreement.
12. Witness Fees. Nothing in this Agreement shall limit the Corporation’s power to pay or reimburse expenses incurred by the Officer in connection with his or her appearance as a witness in a proceeding or action at a time when he or she has not been made a named defendant or respondent in such proceeding or action.
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13. Security For Indemnification Obligations. The Corporation may at any time and in any manner, at the discretion of the Board of Directors, secure the Corporation’s obligations to indemnify or advance expenses to the Officer pursuant to this Agreement.
14. Subrogation. In the event of payment under this Agreement, the Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of the Officer, who shall execute all papers required and shall do everything that may be necessary to enable the Corporation effectively to bring suit to enforce such rights.
15. No Duplication of Payments. The Corporation shall not be liable under this Agreement to make any payment to the Officer hereunder to the extent the Officer has otherwise actually received payment (under any insurance policy, Bylaw or otherwise) of the amounts otherwise payable hereunder.
16. Severability. Each of the provisions of this Agreement is a separate and distinct agreement and independent of the others, so that if any provision hereof shall be held to be invalid or unenforceable in whole or in part for any reason, such invalidity or unenforceability shall not affect the validity or enforceability of the other provisions hereof.
17. Governing Law; Successors; Amendment and Termination.
(a) This Agreement shall be interpreted and enforced in accordance with the laws of the State of Georgia, without regard to any applicable conflict of laws principles.
(b) This Agreement shall be binding upon the Officer and the Corporation and its successors and assigns, and shall inure to the benefit of the Officer, Officer’s heirs, personal representatives and assigns and to the benefit of the Corporation and its successors and assigns.
(c) No amendment, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by both parties hereto.
18. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.
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19. Notices. All notices, requests and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given and received when delivered in person, when delivered by overnight delivery service or three business days after being mailed by registered or certified mail, postage prepaid, return receipt requested, to the Officer at the address that appears on the signature page hereof, and to the Corporation at the following addresses (or to such other address as one party may from time to time designate in writing to the other party hereto):
| If to the Corporation: |
PTEK Holdings, Inc. | |
| ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. | ||
| ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ | ||
| ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| Attn: Chief Executive Officer | ||
| with a copy to: |
PTEK Holdings, Inc. | |
| ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. | ||
| ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ | ||
| ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| Attn: General Counsel | ||
| and a copy to: |
▇▇▇▇▇▇ & Bird, LLP | |
| One Atlantic Center | ||
| ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| Attn: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq. | ||
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
| PTEK HOLDINGS, INC. | ||
| By: |
| |
| [Name] | ||
| OFFICER | ||
| Address: | ||
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