EXHIBIT 10.68
OFFICER’S
INDEMNIFICATION
AGREEMENT
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
