EXHIBIT 99.7
DIRECTOR INDEMNIFICATION AGREEMENT
This Director Indemnification Agreement (the "Agreement") made and entered
into this ____ day of ___________, 200__ by and between Fidelity
National Information Services, Inc., a Delaware corporation (the "Company"), and
_____________ (the "Indemnitee").
WHEREAS, it is essential that the Company be able to retain and attract as
directors the most capable persons available;
WHEREAS, the Company's Bylaws permit it to enter into indemnification
arrangements and agreements;
WHEREAS, the Company desires to provide the Indemnitee with specific
contractual assurances of the Indemnitee's rights to full indemnification
against litigation risks and reasonable expenses (regardless, among other
things, of any amendment to or revocation of the Company's Bylaws or any change
in the ownership of the Company or the composition of its Board of Directors)
and, to the extent insurance is available, the coverage of the Indemnitee under
the Company's directors and officers liability insurance policies; and
WHEREAS, the Indemnitee is relying upon the rights afforded under this
Agreement in accepting Indemnitee's position as a director of the Company.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. Definitions.
(a) "Corporate Status" describes the status of a person who is
serving or has served (i) as a director, officer or employee of the Company,
(ii) in any capacity with respect to any employee benefit plan of the Company,
or (iii) as a director, partner, member, trustee, officer, employee, or agent of
any other Entity at the request of the Company. For purposes of subsection (iii)
of this Section 1(a), if Indemnitee is serving or has served as a director,
partner, trustee, officer, employee or agent of a Subsidiary, Indemnitee shall
be deemed to be serving at the request of the Company.
(b) "Entity" shall mean any corporation, partnership, limited
liability company, joint venture, trust, foundation, association, organization
or other legal entity and any group or division of the Company or any of its
subsidiaries.
(c) "Expenses" shall mean all reasonable fees, costs and expenses
actually and reasonably incurred in connection with any Proceeding (as defined
below), including, without limitation, reasonable attorneys' fees, disbursements
and retainers (including, without limitation, any such fees, disbursements and
retainers incurred by Indemnitee pursuant to Section 11 of this Agreement), fees
and disbursements of expert witnesses, private investigators and professional
advisors (including, without limitation, accountants), court costs, transcript
costs, fees of experts, travel expenses, duplicating, printing and binding
costs, telephone and fax
transmission charges, postage, delivery services, secretarial services, and
other disbursements and expenses, but excluding Liabilities.
(d) "Indemnifiable Expenses," "Indemnifiable Liabilities" and
"Indemnifiable Amounts" shall have the meanings ascribed to those terms in
Section 3(a) below.
(e) "Liabilities" shall mean judgments, damages, liabilities,
losses, penalties, excise taxes, fines and amounts paid in settlement.
(f) "Proceeding" shall mean any threatened, pending or completed
claim, action, suit, arbitration, alternate dispute resolution process,
investigation, administrative hearing, appeal, or any other proceeding, whether
civil, criminal, administrative or investigative, whether formal or informal,
including a proceeding initiated by Indemnitee pursuant to Section 11 of this
Agreement to enforce Indemnitee's rights hereunder.
(g) "Subsidiary" shall mean any Entity of which the Company owns
(either directly or through or together with another Subsidiary of the Company)
either (i) a general partner, managing member or other similar interest or (ii)
(A) 50% or more of the voting power of the voting capital equity interests of
such Entity, or (B) 50% or more of the outstanding voting capital stock or other
voting equity interests of such Entity.
2. Services of Indemnitee. In consideration of the Company's covenants and
commitments hereunder, Indemnitee agrees to serve as a director of the Company;
provided, that this Agreement shall not impose any obligation on Indemnitee or
the Company to continue Indemnitee's service to the Company at any particular
rate or for any particular period of time, unless otherwise required by law or
by other agreements or commitments of the parties, if any.
3. Agreement to Indemnify
The Company agrees to indemnify Indemnitee as follows:
(a) Subject to the exceptions contained in this Agreement, if
Indemnitee was or is a party or is threatened to be made a party to any
Proceeding (other than an action by or in the right of the Company) by reason of
Indemnitee's Corporate Status, Indemnitee shall be indemnified by the Company
against all Expenses and Liabilities actually incurred by Indemnitee in
connection with such Proceeding (referred to herein as "Indemnifiable Expenses"
and "Indemnifiable Liabilities," respectively, and collectively as
"Indemnifiable Amounts").
(b) Subject to the exceptions contained in this Agreement, including
Section 4(b) below, if Indemnitee was or is a party or is threatened to be made
a party to any Proceeding by or in the right of the Company to procure a
judgment in its favor by reason of Indemnitee's Corporate Status, Indemnitee
shall be indemnified by the Company against all Indemnifiable Expenses.
4. Exceptions to Indemnification. Indemnitee shall be entitled to
indemnification under Sections 3(a) and 3(b) above in all circumstances other
than the following:
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(a) If indemnification is requested under Section 3(a) and it has
been adjudicated finally by a court of competent jurisdiction that, in
connection with the subject of the Proceeding out of which the claim for
indemnification has arisen, Indemnitee failed to act in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company or, with respect to any criminal action or proceeding,
Indemnitee had reasonable cause to believe that Indemnitee's conduct was
unlawful, Indemnitee shall not be entitled to payment of Indemnifiable Amounts
hereunder.
(b) If indemnification is requested under Section 3(b) and
(i) it has been adjudicated finally by a court of competent
jurisdiction that, in connection with the subject of the Proceeding out of which
the claim for indemnification has arisen, Indemnitee failed to act in good faith
and in a manner Indemnitee reasonably believed to be in or not opposed to the
best interests of the Company, Indemnitee shall not be entitled to payment of
Indemnifiable Expenses hereunder;
(ii) it has been adjudicated finally by a court of competent
jurisdiction that Indemnitee is liable to the Company with respect to any claim,
issue or matter involved in the Proceeding out of which the claim for
indemnification has arisen, including, without limitation, a claim that
Indemnitee received an improper personal benefit or improperly took advantage of
a corporate opportunity, Indemnitee shall not be entitled to payment of
Indemnifiable Expenses hereunder with respect to such claim, issue or matter
unless the court in which such Proceeding was brought shall determine upon
application that, despite the adjudication of liability, but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity for such Indemnifiable Expenses which such court shall deem proper; or
(iii) it has been finally adjudicated by a court of competent
jurisdiction that Indemnitee is liable to the Company for an accounting of
profits made from the purchase or sale by the Indemnitee of securities of the
Company pursuant to the provisions of Section 16(b) of the Securities Exchange
Act of 1934, the rules and regulations promulgated thereunder and amendments
thereto or similar provisions of any federal, state or local statutory law.
5. Notification and Defense of Claim. As a condition precedent to the
right of indemnification, Indemnitee agrees notify the Company in writing as
soon as practicable of any Proceeding for which indemnification will or could be
sought by Indemnitee and provide the Company with a copy of any summons,
citation, subpoena, complaint, indictment, information or other document
relating to such Proceeding with which Indemnitee is served; provided that the
failure of Indemnitee to give notice as provided herein shall not relieve the
Company of its obligations under this Agreement, except to the extent that the
Company is adversely affected by such failure. With respect to any Proceeding of
which the Company is so notified, the Company will be entitled to participate
therein at its own expense and/or to assume the defense thereof at its own
expense, with legal counsel reasonably acceptable to Indemnitee. After notice
from the Company to Indemnitee of its election so to assume such defense, the
Company shall not be liable to Indemnitee for any legal or other expenses
subsequently incurred by Indemnitee in connection with such claim, other than as
provided below in this Section 5. Indemnitee shall
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have the right to employ Indemnitee's own counsel in connection with such claim,
but the fees and expenses of such counsel incurred after notice from the Company
of its assumption of the defense thereof shall be at the expense of Indemnitee
unless (i) the employment of counsel by Indemnitee has been authorized by the
Company, (ii) counsel to Indemnitee shall have reasonably concluded that there
may be a conflict of interest or position on any significant issue between the
Company and Indemnitee in the conduct of the defense of such action, (iii)
counsel to Indemnitee reasonably concludes that Indemnitee may have separate
defenses or counterclaims to assert with respect to any issue which may not be
consistent with the position of other defendants in such Proceeding or (iv) the
Company shall not in fact have employed counsel to assume the defense of such
action, in each of which cases the fees and expenses of counsel for Indemnitee
shall be at the expense of the Company, except as otherwise expressly provided
by this Agreement. The Company shall not be entitled, without the consent of
Indemnitee, to assume the defense of any claim brought by or in the right of the
Company or as to which counsel for Indemnitee shall have reasonably made the
conclusion provided for in clauses (ii) or (iii) above. The Company shall not
settle any Proceeding in any manner, without Indemnitee's written consent, which
would (i) impose any penalty or limitation on Indemnitee, (ii) includes an
admission of fault of Indemnitee, or (iii) does not include, as an unconditional
term thereof, the full release of Indemnitee from all liability in respect of
such Proceeding, which release shall be in form and substance reasonably
satisfactory to Indemnitee. The Indemnitee will not unreasonably withhold his
consent to any proposed settlement. In making the determination required to be
made under Delaware law with respect to entitlement to indemnification
hereunder, the person, persons or entity making such determination shall presume
that the Indemnitee is entitled to indemnification under this Agreement if
Indemnitee has submitted a request therefor in accordance with Section 5 of this
Agreement, and the Company shall have the burden of proof to overcome that
presumption in connection with the making by any person, persons or entity of
any determination contrary to that presumption.
6. Procedure for Payment of Indemnifiable Amounts. As a condition
precedent to the right of indemnification, Indemnitee shall submit to the
Company a written request, including such documentation and information as are
reasonably available to Indemnitee and necessary to establish that Indemnitee is
entitled to indemnification hereunder, specifying the Indemnifiable Amounts for
which Indemnitee seeks payment under Section 3 or Section 9 of this Agreement
and the basis for the claim. Subject to Section 4, the Company shall pay such
Indemnifiable Amounts to Indemnitee within twenty (20) calendar days of receipt
of the request. At the request of the Company, Indemnitee shall furnish such
documentation and information as are reasonably available to Indemnitee and
necessary to establish that Indemnitee is entitled to indemnification hereunder.
7. Indemnification for Expenses of a Party Who is Wholly or Partly
Successful. Notwithstanding any other provision of this Agreement, and without
limiting any such provision, to the extent that Indemnitee is, by reason of
Indemnitee's Corporate Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, Indemnitee shall be indemnified against all
Expenses reasonably incurred by Indemnitee or on Indemnitee's behalf in
connection therewith. If Indemnitee is not wholly successful in such Proceeding
but is successful, on the merits or otherwise, as to one or more but less than
all claims, issues or matters in such Proceeding, the Company shall indemnify
Indemnitee against all Expenses reasonably incurred by Indemnitee or on
Indemnitee's behalf in connection with each successfully resolved claim,
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issue or matter. For purposes of this Agreement, the termination of any claim,
issue or matter in such a Proceeding by dismissal, with or without prejudice,
shall be deemed to be a successful result as to such claim, issue or matter.
8. Effect of Certain Resolutions. Neither the settlement nor termination
of any Proceeding nor the failure of the Company to award indemnification or to
determine that indemnification is payable shall create an adverse presumption
that Indemnitee is not entitled to indemnification hereunder. In addition, the
termination of any proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent shall not create a presumption
that Indemnitee did not act in good faith and in a manner which Indemnitee
reasonably believed to be in or not opposed to the best interests of the Company
or, with respect to any criminal action or proceeding, had reasonable cause to
believe that Indemnitee's action was unlawful.
9. Agreement to Advance Interim Expenses. The Company shall pay to
Indemnitee all Indemnifiable Expenses incurred by Indemnitee in connection with
any Proceeding, including a Proceeding by or in the right of the Company, in
advance of the final disposition of such Proceeding, if Indemnitee furnishes the
Company with a written undertaking to repay the amount of such Indemnifiable
Expenses advanced to Indemnitee if it is finally determined by a court of
competent jurisdiction that Indemnitee is not entitled under this Agreement to
indemnification with respect to such Indemnifiable Expenses, which undertaking
shall be an unsecured general obligation of the Indemnitee. The terms and
conditions of such undertaking shall be determined by a quorum of the
disinterested members of the Board of Directors, if any, acting in good faith
and as required by the proper exercise of their fiduciary duties or, if not
available, then by the written opinion of independent legal counsel or by the
Company's shareholders.
10. Procedure for Payment of Interim Expenses. Indemnitee shall submit to
the Company a written request specifying the Indemnifiable Expenses for which
Indemnitee seeks an advancement under Section 9 of this Agreement, together with
documentation evidencing that Indemnitee has incurred such Indemnifiable
Expenses. Payment of Indemnifiable Expenses under Section 9 shall be made no
later than twenty (20) calendar days after the Company's receipt of such request
and the undertaking required by Section 9.
11. Remedies of Indemnitee.
(a) Right to Petition Court. In the event that Indemnitee makes a
request for payment of Indemnifiable Amounts under Sections 3 and 6 above or a
request for an advancement of Indemnifiable Expenses under Sections 9 and 10
above and the Company fails to make such payment or advancement in a timely
manner pursuant to the terms of this Agreement, Indemnitee may petition the
appropriate judicial authority to enforce the Company's obligations under this
Agreement.
(b) Burden of Proof. In any judicial proceeding brought under
Section 11(a) above, the Company shall have the burden of proving that
Indemnitee is not entitled to payment of Indemnifiable Amounts hereunder.
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(c) Expenses. The Company agrees to reimburse Indemnitee in full for
any Expenses incurred by Indemnitee in connection with investigating, preparing
for, litigating, defending or settling any action brought by Indemnitee under
Section 11(a) above, or in connection with any claim or counterclaim brought by
the Company in connection therewith.
(d) Validity of Agreement. The Company shall be precluded from
asserting in any Proceeding, including, without limitation, an action under
Section 11(a) above, that the provisions of this Agreement are not valid,
binding and enforceable or that there is insufficient consideration for this
Agreement and shall stipulate in court that the Company is bound by all the
provisions of this Agreement.
(e) Failure to Act Not a Defense. The failure of the Company
(including its Board of Directors or any committee thereof, independent legal
counsel, or shareholders) to make a determination concerning the permissibility
of the payment of Indemnifiable Amounts or the advancement of Indemnifiable
Expenses under this Agreement shall not be a defense in any action brought under
Section 11(a) above, and shall not create a presumption that such payment or
advancement is not permissible.
12. Mutual Acknowledgement. Both the Company and Indemnitee acknowledge
that in certain instances, Federal law or applicable public policy may prohibit
the Company from indemnifying its directors and officers under the Agreement or
otherwise. Indemnitee understands and acknowledges that the Company may be
required in the future to undertake with the Securities and Exchange Commission
to submit the question of indemnification to a court in certain circumstances
for a determination of the Company's right under public policy to indemnify
Indemnitee.
13. Representations and Warranties of the Company. The Company hereby
represents and warrants to Indemnitee that it has all necessary corporate power
and authority to enter into, and be bound by the terms of, this Agreement, and
the execution, delivery and performance of the undertakings contemplated by this
Agreement have been duly authorized by the Company. This Agreement, when
executed and delivered by the Company in accordance with the provisions hereof,
shall be a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, moratorium, reorganization
or similar laws affecting the enforcement of creditors' rights generally.
14. Insurance. The Company will use commercially reasonable efforts to
obtain and maintain a policy or policies of director's liability insurance
customary for similarly situated companies in an amount not less than [ ] with
reputable insurance companies providing the members of the Board of Directors
with coverage for losses from wrongful acts, and to ensure the Company's
performance of its indemnification obligations under this Agreement. In all
policies of director and officer liability insurance, Indemnitee shall be named
as an insured in such a manner as to provide Indemnitee at least the same rights
and benefits as are accorded to the most favorably insured of the Company's
officers and directors. Notwithstanding the foregoing, if the Company, after
employing commercially reasonable efforts as provided in this Section,
determines in good faith that such insurance is not reasonably available, if the
premium costs for such insurance are disproportionate to the amount of coverage
provided, or if
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the coverage provided by such insurance is limited by exclusions so as to
provide an insufficient benefit, the Company shall use its commercially
reasonable efforts to obtain and maintain a policy or policies of insurance with
coverage having features as similar as practicable to those described above.
Notwithstanding anything to the contrary in this Agreement, the Company shall
not indemnify the Indemnitee to the extent the Indemnitee is actually reimbursed
from the proceeds of insurance, and in the event the Company makes any
indemnification payments to the Indemnitee and the Indemnitee is subsequently
reimbursed from the proceeds of insurance, the Indemnitee shall promptly refund
such indemnification payments to the Company to the extent of such insurance
reimbursement.
15. Fees and Expenses. During the term of the Indemnitee's service as a
director, the Company shall promptly reimburse the Indemnitee for all reasonable
and documented expenses incurred by him in connection with his service as a
director or member of any board committee or otherwise in connection with the
Company's business.
16. Contract Rights Not Exclusive. The rights to payment of Indemnifiable
Amounts and advancement of Indemnifiable Expenses provided by this Agreement
shall be in addition to, but not exclusive of, any other rights which Indemnitee
may have at any time under applicable law, the Company's Bylaws, as amended, the
Company's Certificate of Incorporation, as amended, or any other agreement, vote
of shareholders or directors, or otherwise, both as to action in Indemnitee's
official capacity and as to action in any other capacity as a result of
Indemnitees's serving as a director of the Company.
17. Successors. This Agreement shall be (a) binding upon all successors
and assigns of the Company (including any transferee of all or a substantial
portion of the business, stock and/or assets of the Company and any direct or
indirect successor by merger or consolidation or otherwise by operation of law)
and (b) binding on and shall inure to the benefit of the heirs, personal
representatives, executors and administrators of Indemnitee. This Agreement
shall continue for the benefit of Indemnitee and such heirs, personal
representatives, executors and administrators after Indemnitee has ceased to
have Corporate Status.
18. Subrogation. In the event of any payment of Indemnifiable Amounts
under this Agreement, the Company shall be subrogated to the extent of such
payment to all of the rights of contribution or recovery of Indemnitee against
other persons, and Indemnitee shall take, at the request of the Company, all
reasonable action necessary to secure such rights, including the execution of
such documents as are necessary to enable the Company to bring suit to enforce
such rights.
19. Change in Law. To the extent that a change in applicable law (whether
by statute or judicial decision) shall permit broader indemnification than is
provided under the terms of the Certificate of Incorporation or Bylaws of the
Company, as amended, and this Agreement, Indemnitee shall be entitled to such
broader indemnification and this Agreement shall be deemed to be amended to such
extent.
20. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement, or any clause thereof,
shall be determined by a court of competent
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jurisdiction to be illegal, invalid or unenforceable, in whole or in part, such
provision or clause shall be limited or modified in its application to the
minimum extent necessary to make such provision or clause valid, legal and
enforceable, and the remaining provisions and clauses of this Agreement shall
remain fully enforceable and binding on the parties.
21. Indemnitee as Plaintiff. Except as provided in Section 11 of this
Agreement and in the next sentence, Indemnitee shall not be entitled to payment
of Indemnifiable Amounts or advancement of Indemnifiable Expenses with respect
to any Proceeding brought by Indemnitee against the Company, any Entity which it
controls, any director or officer thereof, or any third party, unless the
Company has consented to the initiation of such Proceeding. This Section shall
not apply to affirmative defenses asserted by Indemnitee in an action brought
against Indemnitee.
22. Modifications and Waiver. Except as provided in Section 19 above with
respect to changes in applicable law which broaden the right of Indemnitee to be
indemnified by the Company, no supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by each 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 of this Agreement (whether or
not similar), nor shall such waiver constitute a continuing waiver.
23. Term of Agreement. This Agreement shall continue until and terminate
upon the later of (a) six years after the date that Indemnitee shall have ceased
to serve as an officer or director of the Company or (b) the final termination
of all Proceedings pending on the date set forth in clause (a) in respect of
which Indemnitee is granted rights of indemnification or advancement of Expenses
hereunder.
24. General Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (a) when delivered by hand, (b) when transmitted by facsimile and
receipt is acknowledged, or (c) if mailed by certified or registered mail with
postage prepaid, on the third business day after the date on which it is so
mailed, or if mailed by certified overnight delivery, on the first business day
after the date on which it is so mailed:
(i) If to Indemnitee, to:
with copies to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Cleary, Gottlieb, Sheen & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) If to the Company, to:
Fidelity National Information Services, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇
Facsimile No.: [_______________]
or to such other address as may have been furnished in the same manner by any
party to the others.
25. Governing Law. This Agreement shall be governed by and construed and
enforced under the laws of the State of Delaware without giving effect to the
provisions thereof relating to conflicts of law.
26. Agreement Governs. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and
supercedes all prior agreements, whether oral or written, by any officer,
employee or representative of any party hereto in respect of the subject matter
contained herein; and any prior agreement of the parties hereto in respect of
the subject matter contained herein is hereby terminated and cancelled. For
avoidance of doubt, the parties confirm that the foregoing does not apply to or
limit the Indemnitee's rights under Delaware law or the Company's Certificate of
Incorporation or Bylaws. This Agreement is to be deemed consistent wherever
possible with relevant provisions of the Company's Bylaws and Certificate of
Incorporation; however, in the event of a conflict between this Agreement and
such provisions, the provisions of this Agreement shall control.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Director
Indemnification Agreement as of the day and year first above written.
COMPANY:
FIDELITY NATIONAL INFORMATION
SERVICES, INC.
By: ____________________________
Name:
Title:
INDEMNITEE:
[SIGNATURE PAGE TO DIRECTOR INDEMNIFICATION AGREEMENT]