Exhibit 10.3
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement,
dated as of April , 2006, is made
by and between MasterCard Incorporated, a Delaware corporation (the
“Corporation”) and
(“Indemnitee”).
WHEREAS, the Corporation desires and
has requested Indemnitee to serve as a director of the Corporation
and to consent to be named by the Corporation in its Registration
Statement on Form S-1 (Registration No. 333-128337) and in all
subsequent amendments and post-effective amendments or supplements
thereto and in any registration statement for the same offering
that is to be effective upon filing pursuant to Rule 462(b) under
the Securities Act of 1933, as amended (the “Registration
Statement”); and
WHEREAS, Indemnitee is willing to be
named in the Registration Statement as about to become a director
of the Corporation on the condition that Indemnitee is furnished
the indemnity provided for herein.
NOW, THEREFORE, in consideration of
the mutual covenants and agreements set forth below, and other good
and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
Section 1.
Indemnification .
To the fullest extent permitted by
the law of the State of Delaware:
(a) The Corporation shall indemnify
Indemnitee if Indemnitee was or is made or is threatened to be made
a party or is otherwise involved in any threatened, pending or
completed action, suit or proceeding (brought in the right of the
Corporation or otherwise), whether civil, criminal, administrative
or investigative and whether formal or informal, including appeals,
by reason of the fact that Indemnitee is or was or has agreed to be
named in the Registration Statement as about to become a director
of the Corporation, or by reason of any action alleged to have been
taken or omitted in such capacity.
(b) The indemnification provided by
this Section 1 shall be from and against all loss and
liability suffered and expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement reasonably incurred
by or on behalf of Indemnitee in connection with such action, suit
or proceeding, including any appeals.
Section 2. Advance Payment
of Expenses; Notification and Defense of Claim .
To the fullest extent permitted by
the law of the State of Delaware:
(a) Expenses (including
attorneys’ fees) incurred by Indemnitee in appearing at,
participating in or defending any action, suit or proceeding or in
connection with an enforcement action pursuant to
Section 3(b), shall be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding, upon
receipt by the Corporation of an undertaking by or on behalf of
Indemnitee to repay such advance or advances if it shall ultimately
be determined that Indemnitee was not entitled thereto, within
thirty (30) days after receipt by the Corporation of a
statement or statements from Indemnitee requesting such advance or
advances from time to time. In the event that Indemnitee shall
ultimately be determined by a court of competent jurisdiction not
to be entitled to indemnification hereunder, the Corporation shall,
to the extent consistent with the law of the State of Delaware,
remain obligated to bear the expenses (including attorneys’
fees) reasonably incurred by or on behalf of Indemnitee in
connection with such action, suit or proceeding, including any
appeals, provided that such expenses were previously incurred by or
on behalf of Indemnitee in good faith and the Indemnitee’s
claim for indemnification was not frivolous.
(b) Promptly after receipt by
Indemnitee of notice of the commencement of any action, suit or
proceeding, Indemnitee shall, if a claim thereof is to be made
against the Corporation hereunder, notify the Corporation of the
commencement thereof. The failure to promptly notify the
Corporation of the commencement of the action, suit or proceeding,
or Indemnitee’s request for indemnification, will not relieve
the Corporation from any liability that it may have to Indemnitee
hereunder, except to the extent the Corporation is materially
prejudiced in its defense of such action, suit or proceeding as a
result of such failure.
(c) In the event the Corporation
shall be obligated to pay the expenses of Indemnitee with respect
to an action, suit or proceeding, as provided in this Agreement,
the Corporation, if appropriate, shall be entitled to assume the
defense of such action, suit or proceeding, with counsel reasonably
acceptable to Indemnitee, upon the delivery to
Indemnitee of written notice of its
election to do so. After delivery of such notice, approval of such
counsel by Indemnitee (such approval not to be unreasonably
withheld) and the retention of such counsel by the Corporation, the
Corporation will not be liable to Indemnitee under this Agreement
for any fees of counsel subsequently incurred by Indemnitee with
respect to the same action, suit or proceeding, provided that
(1) Indemnitee shall have the right to employ
Indemnitee’s own counsel in such action, suit or proceeding
at Indemnitee’s expense and (2) if (i) the
employment of counsel by Indemnitee has been previously authorized
in writing by the Corporation, (ii) counsel to the Corporation
or Indemnitee shall have reasonably concluded that there may be a
conflict of interest or position, or reasonably believes that a
conflict is likely to arise, on any significant issue between the
Corporation and Indemnitee in the conduct of any such defense or
(iii) the Corporation shall not, in fact, have employed
counsel to assume the defense of such action, suit or proceeding,
then the fees and expenses of Indemnitee’s counsel shall be
at the expense of the Corporation, except as otherwise expressly
provided by this Agreement. The Corporation shall not be entitled,
without the consent of Indemnitee, to assume the defense of any
claim brought by or in the right of the Corporation or as to which
counsel for the Corporation or Indemnitee shall have reasonably
made the conclusion provided for in clause
(ii) above.
Section 3. Procedure for
Indemnification
(a) To obtain indemnification,
Indemnitee shall submit to the Corporation a written request,
including therein or therewith such documentation and information
as is reasonably available to Indemnitee and is reasonably
necessary to determine whether and to what extent Indemnitee is
entitled to indemnification.
(b) The Corporation’s
determination whether to grant Indemnitee’s indemnification
request shall be made promptly and in any event within thirty
(30) days following receipt of a request for indemnification
pursuant to Section 3(a). The right to indemnification as
granted by Section 1 of this Agreement shall be enforceable by
Indemnitee in any court of competent jurisdiction if the
Corporation denies such request, in whole or in part, or fails to
respond within such 30-day period. Indemnitee’s expenses
(including attorneys’ fees) incurred in connection with
successfully establishing Indemnitee’s right to
indemnification, in whole or in part, in any such proceeding or
otherwise shall also be indemnified by the Corporation.
(c) Indemnitee shall be presumed to
be entitled to indemnification under this Agreement upon submission
of a request for indemnification pursuant to this Section 3,
and the Corporation shall have the burden of proof in overcoming
that presumption in reaching a determination contrary to that
presumption. Such presumption shall be used as a basis for a
determination of entitlement to indemnification unless the
Corporation overcomes such presumption by clear and convincing
evidence.
Section 4. Insurance and
Subrogation .
(a) The Corporation may purchase and
maintain insurance on behalf of Indemnitee against any liability
asserted against, and incurred by, Indemnitee or on
Indemnitee’s behalf by reason of the fact that Indemnitee is
or was or has agreed to be named in the Registration Statement as
about to become a director of the Corporation, or arising out of
Indemnitee’s status as such, whether or not the Corporation
would have the power to indemnify Indemnitee against such liability
under the provisions of this Agreement. If the Corporation has such
insurance in effect at the time the Corporation receives from
Indemnitee any notice of the commencement of a proceeding, the
Corporation shall give prompt notice of the commencement of such
proceeding to the insurers in accordance with the procedures set
forth in the policy. The Corporation shall thereafter take all
necessary or desirable action to cause such insurers to pay, on
behalf of Indemnitee, all amounts payable as a result of such
proceed
