EXHIBIT 10.11
THE INTERCEPT GROUP, INC.
DIRECTOR'S AND OFFICER'S
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made as of __________, 1998, by and between The InterCept
Group, Inc., a Georgia corporation (the "Corporation"), and
_____________________________ (the "Executive").
WHEREAS, the Executive is a member of the Board of Directors and/or an
executive officer of the Corporation and in such capacity is performing a
valuable service to the Corporation; and
WHEREAS, the Corporation's Bylaws (the "Bylaws") provide for the
indemnification of the directors and executive officers of the Corporation
pursuant to Sections 14-2-850 through 14-2-856 of the Georgia Business
Corporation Code, as amended to date (the "State Statute"); and
WHEREAS, the Bylaws and the State Statute specifically contemplate that
contracts may be entered into between the Corporation and its executive officers
and members of its Board of Directors with respect to indemnification of such
individuals; and
WHEREAS, in order to provide to the Executive assurances with respect to
the protection provided against liabilities that he may incur in the performance
of his duties to the Corporation, and to thereby induce the Executive to serve
as a member of the Board of Directors or as an executive officer, the
Corporation has determined and agreed to enter into this contract with the
Executive.
NOW, THEREFORE, in consideration of the premises and the Executive's
continued service as a director and/or an executive officer of the Corporation
after the date hereof, the parties hereto agree as follows:
1. BOARD-AUTHORIZED INDEMNIFICATION. The Corporation hereby agrees to hold
harmless and indemnify the Executive to the full extent that the State Statute,
or any amendment thereof or other statutory provision adopted after the date
hereof, authorizes such indemnification by action of the Board of Directors
without shareholder approval. Such indemnification, and the conditions and
limitations thereon set forth in the State Statute, shall not in any respect
limit, condition or otherwise restrict the indemnification set forth in Section
2 hereof.
2. SHAREHOLDER-AUTHORIZED INDEMNIFICATION. Subject only to the exclusions set
forth in Section 3 hereof, and in addition to the indemnity specified in Section
1 hereof (but without
duplication of payments with respect to indemnified amounts), the Corporation
hereby further agrees to hold harmless and indemnify the Executive against any
and all expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by the Executive in connection
with any threatened, pending, or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (including an action by or in
the right of the Corporation), to which the Executive is, was, or at any time
becomes a party, or is threatened to be made a party, by reason of the fact that
the Executive 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.
3. LIMITATIONS ON SHAREHOLDER-AUTHORIZED INDEMNITY. No indemnity pursuant to
Section 2 hereof shall be paid by the Corporation:
(a) With respect to any proceeding in which the Executive 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 his 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 the types of liabilities set forth in Section 14-2-832 of
the Georgia Business Corporation Code; or
(iv) for any transaction from which the Executive received an improper
personal benefit;
(b) With respect to any suit in which final judgment is rendered against
the Executive for an accounting of profits, made from the purchase or sale
by the Executive 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 Executive 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.
4. CONTRIBUTION. If the indemnification provided in Sections 1 and 2 is
unavailable and may not be paid to the Executive for any reason other than those
set forth in paragraph (a) or (b) of Section 3, then in respect of any
threatened, pending, or completed action, suit or proceeding in which the
Corporation is jointly liable with the Executive (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 Executive in such proportion as is
appropriate to reflect (i) the relative benefits received by the Corporation on
the one hand and the Executive on the other hand from the transaction from which
such action, suit or proceeding arose, and (ii) the relative fault of the
Corporation on the one hand and of the Executive on the other 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 Executive on the other 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 4 were determined by pro rata allocation
or any other method of allocation that does not take account of the foregoing
equitable considerations.
5. CONTINUATION OF OBLIGATIONS. All agreements and obligations of the
Corporation contained herein shall continue during the period the Executive 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 Executive shall be subject to any
possible claim or threatened, pending, or completed action, suit or proceeding,
whether civil, criminal or investigative, by reason of the fact that the
Executive was a director of the Corporation or serving in any other capacity
referred to herein.
6. NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt by the Executive
of notice of the commencement of any action, suit or proceeding, the Executive
will, if a claim in respect thereof is to be made against the Corporation under
this Agreement (other than under Section 2 hereof), 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 Executive
otherwise than under this Agreement. With respect to any such action, suit or
proceeding as to which the Executive so notifies the Corporation:
(a) The Corporation will be entitled to participate therein at its own
expense; and
(b) Subject to Section 7 hereof, and if the Executive shall have provided
his written affirmation of his good faith belief that his conduct did not
constitute behavior of the kind described in paragraph 3(a) hereof and that
he is entitled to indemnification hereunder, the Corporation may assume the
defense thereof.
After notice from the Corporation to the Executive of its election so to
assume such defense, the Corporation will not be liable to the Executive under
this Agreement for any legal or other expenses subsequently incurred by the
Executive in connection with the defense thereof, other than reasonable costs of
investigation or as otherwise provided below. The Executive shall have the
right to employ its 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 Executive
unless (i) the employment of counsel by the Executive has been authorized by the
Corporation, (ii) counsel designated by the Corporation to conduct such defense
shall not be reasonably satisfactory to the Executive or (iii) 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 (ii) above, the Executive
shall be entitled to determine that counsel designated by the Corporation is not
reasonably satisfactory if, among other reasons, the Executive shall have been
advised by qualified counsel that, because of actual or potential conflicts of
interest in the matter between the Executive, other officers or directors
similarly indemnified by the Corporation, and/or the Corporation, representation
of the Executive by counsel designated by the Corporation is likely to
materially and adversely affect the Executive's interest or would not be
permissible under applicable canons of legal ethics.
The Corporation shall not be liable to indemnify the Executive 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 Executive without the Executive's written consent. Neither the Corporation
nor the Executive will unreasonably withhold consent to any proposed settlement.
7. ADVANCEMENT AND REPAYMENT OF EXPENSES. Upon request therefor accompanied
by reasonably itemized evidence of expenses incurred, and by the Executive's
written affirmation of his good faith belief that his conduct met the standard
applicable to Board-authorized indemnification pursuant to Section 1 hereof or
did not constitute behavior of the kind described in paragraph 3(a) hereof and
that he is entitled to indemnification hereunder, the Corporation shall advance
to the Executive 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 in defending
any civil or criminal suit, action or proceeding for which the Executive is
entitled (assuming an applicable standard of conduct is met) to indemnification
pursuant to this Agreement. The Executive agrees to reimburse the Corporation
for all reasonable expenses paid by the Corporation, whether pursuant to this
Section or Section 6 hereof, in defending any action, suit, or proceeding
against the Executive in the event and to the extent that it shall ultimately be
determined that the Executive is not entitled to be indemnified by the
Corporation for such expenses under either Section 1 or Section 2 of this
Agreement. Any advances and the Executive's agreement to repay shall be
unsecured and interest-free.
8. AGREEMENT TO SERVE. The Executive hereby agrees to continue to serve as a
director and/or an executive officer of the Corporation faithfully and to the
best of his ability so long as he is duly elected and qualified in accordance
with the provisions of the Corporation's bylaws or until such time as he tenders
his resignation in writing.
9. 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 Executive to serve as a director and/or an executive officer of
the Corporation and acknowledges that the Executive will in the future be
relying upon this Agreement in continuing to serve in such capacity.
(b) In the event the Executive is required to bring any action to enforce
rights or to collect money due under this Agreement and is successful in
such action, the Corporation shall reimburse the Executive for all of the
Executive's reasonable fees and expenses in bringing and pursuing such
action.
10. MAINTENANCE OF LIABILITY INSURANCE.
(a) Subject to Section 10(c), the Corporation hereby covenants and agrees
that, so long as Executive shall continue to serve as a director and/or an
executive officer of the Corporation and thereafter so long as the
agreements and obligations of the Corporation shall continue in accordance
with Section 5, the Corporation, in good faith, shall seek to obtain and
maintain in full force and effect a policy of director's and officer's
liability insurance (the "D&O Insurance") in reasonable amounts from an
established and reputable insurer.
(b) In all policies of D&O Insurance, Executive shall be named as an
insured in such manner as to provide Executive the same rights and benefits
as are accorded to the most favorably insured of the Corporation's officers
or directors.
(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.
11. SEPARABILITY. 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.
12. 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 Executive's rights under this Agreement. In any proceeding
brought by or on behalf of the Executive 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 12, however, shall not prevent the Executive from
seeking a remedy at law in connection with any breach of this Agreement.
13. LIABILITY INSURANCE. In the event that the Corporation maintains D&O
Insurance, the Executive shall be covered by such policy or policies, in
accordance with its or their terms, to the maximum extent of the coverage
provided under such policy or policies in effect. Copies of all correspondence
between the Corporation and the company or companies providing such insurance
shall be promptly delivered to the Executive by the Corporation.
14. NON-EXCLUSIVITY, ETC. The rights of the Executive hereunder shall be in
addition to any other rights with respect to indemnification, advancement of
expenses or otherwise that the Executive may have under the Corporation's bylaws
or the Georgia Business Corporation Code or otherwise.
15. 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 Executive, 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 the Corporation effectively to bring suit
to enforce such rights.
16. NO DUPLICATION OF PAYMENTS. The Corporation shall not be liable under this
Agreement to make any payment to the Executive hereunder to the extent the
Executive has otherwise actually received payment (under insurance policy, bylaw
or otherwise) of the amounts otherwise payable hereunder.
17. APPLICABILITY OF AGREEMENT. This Agreement shall apply only with respect
to acts or omissions of the Executive occurring on or after the effective date
hereof, and this Agreement shall continue in effect regardless of whether the
Executive continues to serve in such capacity, but only in respect of acts or
omissions occurring prior to the termination of the Executive's service in such
capacity.
18. GOVERNING LAW; SUCCESSORS; AMENDMENT AND TERMINATION.
(a) This Agreement shall be interpreted and enforced in accordance with the
laws of the State of Georgia.
(b) This Agreement shall be binding upon the Executive and the Corporation
and its successors and assigns (including any transferee of all or
substantially all of its assets and any successor by merger or otherwise by
operation of law), and shall inure to the benefit of the Executive, his
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.
19. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
EXECUTIVE THE INTERCEPT GROUP, INC.
________________________ By:____________________________
Name: Its: __________________________