Exhibit 10.24
DIRECTOR INDEMNIFICATION
AGREEMENT
Indemnification Agreement (this
“ Agreement ”), dated as of
, 2005 between First Data Corporation, a Delaware corporation (the
“ Company ”), and
(“ Indemnitee ”).
W I T N E S S E T H:
WHEREAS, highly competent persons
have become more reluctant to serve as directors of publicly-held
corporations unless they are provided with adequate protection
through insurance and indemnification against risks of claims and
actions against them arising out of their service to and activities
on behalf of the corporation.
WHEREAS, directors are increasingly
being subjected to expensive and time-consuming litigation relating
to, among other things, matters that traditionally would have been
brought only against the corporation itself.
WHEREAS, the Board of Directors of
the Company (the “ Board ”) has determined that,
in order to attract and retain qualified individuals, the Company
will attempt to maintain on an ongoing basis, at its sole expense,
liability insurance to protect persons serving the Company and its
subsidiaries from certain liabilities. Nevertheless, the Board
recognizes the limitations on the protection provided by liability
insurance and the uncertainties as to the scope and level of such
coverage that may be available in the future.
WHEREAS, the Company’s
directors have certain existing indemnification arrangements
pursuant to the Company’s certificate of incorporation and
bylaws and may be entitled to indemnification pursuant to the
General Corporation Law of the State of Delaware (“
DGCL ”). Nevertheless, the Board recognizes the
limitations on the protection provided by such indemnification and
the uncertainties as to its availability in any particular
situation.
WHEREAS, the Board believes that in
light of the limitations and uncertainties about the protection
provided by the Company’s liability insurance and existing
indemnification arrangements and the impact these uncertainties may
have on the Company’s ability to attract and retain qualified
individuals to serve as directors, the Company should act to assure
such persons that there will be increased certainty of such
protection in the future.
WHEREAS, it is reasonable, prudent
and necessary for the Company contractually to obligate itself to
indemnify, and to advance expenses on behalf of, such persons to
the fullest extent permitted by applicable law so that they will
serve or continue to serve the Company free from undue concern that
they will not be adequately protected.
WHEREAS, Indemnitee is concerned
that the protection provided under the Company’s liability
insurance and existing indemnification arrangements may not be
adequate and may not be willing to serve as a director of the
Company without greater certainty concerning such protection, and
the Company desires Indemnitee to serve in such capacity and is
willing to provide such greater certainty.
NOW, THEREFORE, in consideration of
the premises and the covenants contained herein, the Company and
Indemnitee do hereby covenant and agree as follows:
ARTICLE 1
C ERTAIN D EFINITIONS
(a) As used in this
Agreement:
“ Change in Control
” shall be deemed to have occurred in any one of the
following circumstances occurring after the date hereof:
(i) there shall have occurred an event required to be reported
with respect to the Company in response to Item 6(e) of
Schedule 14A of Regulation 14A (or in response to any similar item
on any similar schedule or form) under the Exchange Act, regardless
of
whether the Company is then subject to such
reporting requirement; (ii) any “person” or
“group” (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act) shall have become, without prior
approval of the Company’s Board, the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing
15% or more of the combined voting power of the Company’s
then outstanding voting securities (provided that as used in this
clause (ii), the term “person” shall exclude a trustee
or other fiduciary holding securities under an employee benefit
plan of the Company); (iii) there occurs a merger or
consolidation of the Company with any other entity, other than a
merger or consolidation which would result in the voting securities
of the Company outstanding immediately prior to such merger or
consolidation continuing to represent (either by remaining
outstanding or by being converted into voting securities of the
surviving or resulting entity) more than 51% of the combined voting
power of the voting securities of the surviving or resulting entity
outstanding immediately after such merger or consolidation and with
the power to elect at least a majority of the board of directors or
other governing body of such surviving or resulting entity;
(iv) all or substantially all the assets of the Company are
sold or otherwise disposed of in a transaction or series of related
transactions; (v) the approval by the stockholders of the
Company of a complete liquidation of the Company or the sale or
other disposition of all or substantially all of the assets of the
Company; or (vi) the individuals who on the date hereof
constitute the Board (including, for this purpose, any new director
whose election or nomination for election by the Company’s
stockholders was approved by a vote of at least a majority of the
directors then still in office who were directors on the date
hereof or whose election or nomination was so approved) cease for
any reason to constitute at least a majority of the members of the
Board.
“ Corporate Status
” means the status of a person who is or was a director,
officer, employee or agent of the Company or who is or was serving
at the request of the Company as a director, officer, employee or
agent of any other Enterprise.
“ Disinterested
Director ” means a director of the Company who is not and
was not a party to the Proceeding in respect of which
indemnification or advancement of expenses is sought by
Indemnitee.
“ Enterprise ”
means any corporation, limited liability company, partnership,
joint venture, trust, employee benefit plan or other person or
enterprise.
“ Exchange Act ”
means the Securities Exchange Act of 1934, as amended.
“ Expenses ”
means all costs and expenses (including, without limitation, fees
and expenses of counsel, retainers, court costs, transcript costs,
fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage and delivery
service fees) incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, being or preparing
to be a witness in, or otherwise participating in, a Proceeding.
Expenses shall include expenses incurred in connection with any
appeal resulting from any Proceeding including, without limitation,
the premium, security for and other costs relating to any cost
bond, supersedeas bond or other appeal bond or its
equivalent.
“ Independent Counsel
” means a law firm, or a member of a law firm, that is
experienced in matters of corporate law and neither currently is,
nor in the five years previous to its selection or appointment has
been, retained to represent (i) the Company or Indemnitee in
any matter material to either such party (provided that acting as
an Independent Counsel under this Agreement or in a similar
capacity with respect to any other indemnification arrangements
between the Company and its present or former directors shall not
be deemed a representation of the Company or Indemnitee) or
(ii) any other party to the Proceeding giving rise to a claim
for indemnification or advancement of expenses hereunder.
Notwithstanding the foregoing, the term “Independent
Counsel” shall not include any person who, under the
applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or
Indemnitee in an action to determine Indemnitee’s rights
under this Agreement.
“ Liabilities ”
means all judgments, fines (including any excise taxes assessed
with respect to any employee benefit plan), penalties and amounts
paid in settlement and other liabilities (including all interest,
assessments and other charges paid or payable in connection with or
in respect of any such amounts) arising out of or in connection
with any Proceeding; provided that Liabilities shall not
include any Expenses.
“ person ” means
an individual, corporation, partnership, limited liability company,
association, trust or other entity or organization.
“Proceeding” includes any threatened, pending or completed
action, suit or other proceeding (which shall include an
arbitration or other alternate dispute resolution mechanism or an
inquiry, investigation or administrative hearing), whether civil,
criminal, administrative or investigative in nature (including any
appeal therefrom) and whether instituted by or on behalf of
the
Company or any other party, in any such case, in
which Indemnitee was, is or may be involved as a party or otherwise
by reason of any Corporate Status of Indemnitee or by reason of any
action taken (or failure to act) by him or on his part while
serving in any Corporate Status (in each case, whether or not
serving in such capacity at the time any liability or expense is
incurred for which indemnification or advancement of expenses can
be provided under this Agreement), or any inquiry or investigation
that Indemnitee in good faith believes might lead to the
institution of any such action, suit or other proceeding;
provided that Proceeding shall not include an action, suit
or other proceeding contemplated by
Section 8.06(b).
(b) For the purposes of this
Agreement:
References to the “
Company ” shall include, in addition to the surviving
or resulting corporation in any merger or consolidation, any
constituent corporation (including any constituent of a
constituent) absorbed in a merger or consolidation which, if its
separate existence had continued, would have had power and
authority to indemnify its directors, officers, employees or
agents, so that if Indemnitee is or was a director, officer,
employee or agent of such constituent corporation or is or was
serving at the request of such constituent corporation as a
director, officer, employee or agent of another Enterprise, then
Indemnitee shall stand in the same position under the provisions of
this Agreement with respect to the surviving or resulting
corporation as Indemnitee would have with respect to such
constituent corporation if its separate existence had
continued.
References to “ director,
officer, employee or agent ” shall include a trustee,
general partner, managing member, fiduciary or board of
directors’ committee member.
References to “ serving at
the request of the Company ” shall include any service as
a director, officer, employee or agent of the Company or any other
Enterprise which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee
benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner such person reasonably believed
to be in the best interests of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a
manner “not opposed to the best interests of the
Company”.
ARTICLE 2
S ERVICES B Y
I NDEMNITEE
Section 2.01 . Services By
Indemnitee. Indemnitee hereby agrees to serve or continue to
serve as a director of the Company, for so long as Indemnitee is
duly elected or appointed or until Indemnitee tenders his
resignation or is removed.
ARTICLE 3
I NDEMNIFICATION
Section 3.01 . General.
(a) The Company hereby agrees to and shall indemnify
Indemnitee and hold him harmless, to the fullest extent permitted
by applicable law, from and against any and all Expenses and
Liabilities actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with a Proceeding. The
phrase “to the fullest extent permitted by applicable
law” shall include:
(i) to the fullest extent permitted
by the DGCL as in effect on the date of this Agreement,
and
(ii) to the fullest extent
authorized or permitted by any amendments to or replacements of the
DGCL adopted after the date of this Agreement that increase the
extent to which a corporation may indemnify its officers and
directors.
(b) To the extent that Indemnitee is
a party to (or a participant in) and is successful, on the merits
or otherwise, in the defense of any Proceeding or any claim, issue
or matter therein, the Company shall indemnify Indemnitee against
all Expenses actually and reasonably incurred by him or on his
behalf in connection therewith. If Indemnitee is successful, on the
merits or otherwise, as to one or more but less than all claims,
issues or matters in any Proceeding, the Company shall indemnify
Indemnitee against all Expenses actually and reasonably incurred by
him or on his behalf in connection with each successfully resolved
claim, issue or matter and any claim, issue or matter related to
each such successfully resolved claim, issue or matter. For
purposes of this Section 3.01(b) and without limitation, the
termination of any Proceeding or any claim, issue or matter in a
Proceeding by dismissal, with or without prejudice, shall be deemed
to be a successful result as to such Proceeding, claim, issue or
matter.
(c) To the extent that Indemnitee
is, by reason of his Corporate Status, a witness in any Proceeding
to which Indemnitee is not a party, he shall be indemnified against
all Expenses actually and reasonably incurred by him or on his
behalf in connection therewith.
Section 3.02 .
Exclusions. Notwithstanding any provision of this Agreement to
the contrary (including Section 3.01 and Section 4.01),
the Company shall not be obligated under this Agreement to
indemnify (or advance expenses) in connection with:
(a) any claim made against
Indemnitee (i) for an accounting of profits made from the
purchase and sale (or sale and purchase) by Indemnitee of
securities of the Company pursuant to Section 16(b) of the
Exchange Act or similar provisions of state statutory law or common
law or (ii) for reimbursement to the Company of any bonus or
other incentive-based or equity-based compensation or of any
profits realized by Indemnitee from the sale of securities of the
Company in each case as required under the Exchange Act;
(b) except for an action, suit or
other proceeding contemplated by Section 8.06(b), any action,
suit or other proceeding (or part thereof) initiated by Indemnitee
(including any such action, suit or other proceeding (or part
thereof) initiated by Indemnitee against the Company or its
directors, officers, employees, agents or other indemnitees),
unless (i) the Board authorized the action, suit or other
proceeding (or part thereof) prior to its initiation or
(ii) the Company provides the indemnification, in its sole
discretion, pursuant to the powers vested in the Company under
applicable law; or
(c) any claim, issue or matter in a
Proceeding by or in the right of the Company to procure a judgment
in its favor as to which Indemnitee shall have been adjudged to be
liable to the Company unless and only to the extent the Delaware
Chancery Court or the court in which such Proceeding was brought
shall determine upon application that, despite the adjudication of
liability but in view of all circumstances of the case, Indemnitee
is fairly and reasonably entitled to indemnity for such expenses
which the Delaware Chancery Court or such other court shall deem
proper.
ARTICLE 4
A DVANCEMENT O F
E XPENSES ;
D EFENSE OF C
LAIMS
Section 4.01 . Advances.
The Company shall advance any Expenses incurred by Indemnitee or on
his behalf in connection with a Proceeding within 20 days after
receipt by the Company of a written request for advancement of
expenses, which request may be delivered to the Company at such
time and from time to time as Indemnitee deems appropriate in his
sole discretion (whether prior to or after final disposition of any
such Proceeding). Advances shall be made without regard to
Indemnitee’s ability to repay such amounts and without regard
to Indemnitee’s ultimate entitlement to indemnification under
this Agreement or otherwise. Any such advances shall be made on an
unsecured basis and be interest free.
Section 4.02 . Repayment of
Advances or Other Expenses. Indemnitee agrees that Indemnitee
shall reimburse the Company for all amounts advanced by the Company
pursuant to Section 4.01 if it is ultimately determined that
Indemnitee is not entitled to be indemnified by the Company for
such Expenses. Notwithstanding the foregoing, if Indemnitee seeks a
judicial adjudication or an arbitration pursuant to
Section 6.01(a), Indemnitee shall not be required to reimburse
the Company pursuant to this Section 4.02 until a final
determination (as to which all rights of appeal have been exhausted
or lapsed) has been made.
Section 4.03 . Defense Of
Claims. The Company will be entitled to participate in any
Proceeding at its own expense. The Company shall not settle
any
