EXHIBIT 10.67
DIRECTOR’S
INDEMNIFICATION
AGREEMENT
THIS AGREEMENT
is made and entered into as of
, 200 , by and between
(the
“Director”) and PTEK HOLDINGS, INC., a Georgia
corporation (the “Corporation”).
WHEREAS , the Director is a member of the Board of
Directors 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 directors 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 the members of the Board of Directors with respect
to indemnification of such directors; and
WHEREAS , in order to provide to the Director assurances
with respect to the protection provided against liabilities that
the Director may incur in the performance of his or her duties to
the Corporation, and to thereby induce the Director to serve in
such capacity, the Corporation has determined and agreed to enter
into this Agreement with the Director;
NOW, THEREFORE
, in consideration of the premises
and the Director’s service as an executive officer after the
date hereof, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. Board-Authorized
Indemnification. The
Corporation hereby agrees to hold harmless and indemnify Director
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 agrees to hold harmless and
indemnify the Director against any and all expenses (including
attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by the Director 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 Director
is, was or at any time becomes a party, or is threatened to be made
a party, by reason of
the fact that the Director 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
Indemnification. No
indemnity pursuant to Section 2 hereof shall be paid by the
Corporation:
(a) With respect to any proceeding
in which the Director 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 Director’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) the types of liabilities set
forth in Section 14-2-832 of the State Statute; and
(iv) for any transaction from which
the Director received an improper personal benefit;
(b) With respect to any suit in
which final judgment is rendered against the Director for an
accounting of profits made from the purchase or sale by the
Director 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 Director 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 for
in Sections 1 and 2 hereof is unavailable and may not be paid to
the Director for any reason other than those set forth in Section
3(b) hereof, then in respect of any threatened, pending or
completed action, suit or proceeding in which the Corporation is
jointly liable with the Director (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 Director in such proportion as is appropriate to
reflect (a) the relative benefits received by the Corporation on
the one hand and the Director 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 Director on the other hand in connection with the events which
resulted in such expenses, judgments, fines or settlement amounts,
as well as any other
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relevant equitable considerations. The relative
fault of the Corporation on the one hand and of the Director 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 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 Director 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
Director 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 Director was an officer of the
Corporation or serving in any other capacity referred to
herein.
6. Notification and Defense of
Claim.
(a) Promptly after receipt by the
Director of notice of the commencement of any action, suit or
proceeding, the Director 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 Director otherwise than under
this Agreement.
(b) With respect to any such action,
suit or proceeding as to which the Director 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
