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Exhibit 10.64
INDEMNIFICATION AGREEMENT
This
Indemnification Agreement (this
“Agreement” ) is made as
of this ____ day of _______, 200_, by and between Electronic
Clearing House, Inc., a Nevada corporation (the
“Company” ), and
____________, an individual (
“Indemnitee”
).
RECITALS
WHEREAS, the Articles of Incorporation (the
“Articles ”) and the bylaws
(the “Bylaws” ) of the
Company provide for the indemnification of the officers and
directors of the Company to the maximum extent permitted by Chapter
78 of the Nevada Revised Statutes, as amended (
“Nevada Law” );
WHEREAS, the Articles, the Bylaws and Nevada Law permit
contracts between the Company and the officers and directors of the
Company with respect to indemnification of such officers and
directors;
WHEREAS, in accordance with Nevada Law, the Company may
purchase and maintain a policy or policies of directors’ and
officers’ liability insurance covering certain liabilities
that may be incurred by its officers or directors in the
performance of their obligations to the Company;
WHEREAS, the Company recognizes that corporate litigation
against, and the difficulty of obtaining liability insurance for,
the Company’s directors and officers impede the
Company’s ability to attract and retain the most capable and
qualified persons available for such positions; and
WHEREAS, in order to induce Indemnitee to serve or
continue to serve as an officer and/or director of the Company, the
Company desires that the Indemnitee shall be indemnified and
advanced expenses as set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of Indemnitee’s
service as an officer and/or director of the Company after the date
hereof, the Company and Indemnitee hereby agree as
follows:
1.
Certain Definitions. Capitalized terms
used but not otherwise defined in this Agreement shall have the
meanings set forth below:
“Corporate Status” means the fact
that a person (i) is or was a director, officer, employee or agent
of the Company, or (ii) is or was serving at the request of the
Company as a director, officer, employee or agent of another
Enterprise. A Proceeding shall be deemed to have been
brought by reason of a person’s “Corporate
Status” if it is brought because of the status described in
the preceding sentence or because of any action or inaction on the
part of such person in connection with such status.
“Disinterested Director” means a
director of the Company who is not and was not a party to the
Proceeding in respect of which indemnification is sought by
Indemnitee.
“Enterprise” shall mean the Company
and any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in which Indemnitee is or
was serving at the request of the Company as a director, officer,
employee, agent or fiduciary.
“Expenses” shall include all
reasonable attorney’s fees, disbursements and retainers,
court costs, transcript costs, fees of experts, witness fees,
travel and deposition costs, printing and binding costs, telephone
charges, postage, delivery service fees and all other disbursements
or expenses of the types customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend,
investigating, participating or being prepared to be a witness in a
Proceeding.
“Independent Counsel” means a law
firm, or a member of a law firm, that is experienced in matters of
corporation law and neither currently is, nor in the past five (5)
years has been, retained to represent: (i) the Company or
Indemnitee in any matter material to either such party (other than
with respect to matters concerning the Indemnitee under this
Agreement, or of other indemnitees under similar indemnification
agreements), or (ii) any other party to the Proceeding giving rise
to a claim for indemnification 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.
“Proceeding” includes any threatened,
pending or completed action, suit, arbitration, alternate dispute
resolution mechanism, investigation, inquiry, administrative
hearing or any other actual, threatened or completed proceeding,
whether brought by or in the right of the Company or otherwise and
whether civil, criminal, administrative or investigative, in which
Indemnitee was, is or will be involved as a party or otherwise,
including one pending on or before the date of this Agreement; and
excluding one initiated by an Indemnitee pursuant to Section
8 of this Agreement to enforce his rights under this
Agreement.
“Reviewing Party” means the person or
persons selected to make the determination of the availability of
indemnification pursuant to Section 6.3
hereof.
2. Indemnification.
2.1
Proceedings Not By or In The Right Of the
Company . The Company hereby agrees to
hold harmless and indemnify Indemnitee to the full extent
authorized or permitted by the provisions of Nevada Law, the
Articles and the Bylaws, as such may be amended from time to
time, if Indemnitee was or is a party or is threatened to be
made a party to any Proceeding, other than a Proceeding by or
in the right of the Company, by reason of Indemnitee’s
Corporate Status, against all Expenses, judgments, penalties,
fines and amounts paid in settlement actually and reasonably
incurred by Indemnitee or on his/her behalf in connection with
such Proceeding if Indemnitee (i) is not liable pursuant to
Section 78.138 of Nevada Law or (ii) acted in good faith and
in a manner he/she reasonably believed to be in or not opposed
to the best interests of the Company and, with respect to any
criminal Proceeding, had no reasonable cause to believe
his/her conduct was unlawful.
2.2
Proceedings By or In Right of the Company
. The Company hereby agrees to hold harmless and
indemnify Indemnitee to the full extent authorized or
permitted by the provisions of Nevada Law, the Articles and
the Bylaws, as such may be amended from time to time, if
Indemnitee was or is a party or is threatened to be made a
party to any Proceeding by or in the right of the Company, by
reason of Indemnitee’s Corporate Status, against all
Expenses (including amounts paid in settlement and
attorneys’ fees), actually and reasonably incurred by
Indemnitee or on his/her behalf in connection with such
Proceeding if Indemnitee (i) is not liable pursuant to Section
138 of Nevada Law or (ii) acted in good faith and in a manner
he/she reasonably believed to be in or not opposed to the best
interests of the Company; provided ,
however , that, if applicable law so
provides, no indemnification against such Expenses shall be in
respect of any claim, issue or matter in such Proceeding as to
which Indemnitee shall have been adjudged by a court of
competent jurisdiction, after exhaustion of all appeals
therefrom, to be liable to the Company or for amounts paid in
settlement to the corporation unless and only to the extent
that the court in which the Proceeding was brought or other
court of competent jurisdiction determines upon application
that in view of all the circumstances of the case, Indemnitee
is fairly and reasonably entitled to indemnity for such
Expenses as the court shall deem proper.
2.3
Partial Indemnification . If Indemnitee is
entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of the
Expenses, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by Indemnitee or
on his/her behalf in connection with a Proceeding, but not,
however, for the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion of the
foregoing to which Indemnitee is entitled.
2.4
Additional Indemnification Rights
. The Company hereby agrees to indemnify the
Indemnitee to the fullest extent from time to time permitted
by law, notwithstanding that such indemnification is not
specifically authorized by the other provisions of this
Agreement, the Articles, the Bylaws or by
statute.
3. Advances
of Expenses.
3.1 The
Company shall advance all Expenses as they are incurred by or
on behalf of Indemnitee in connection with the investigation,
defense, settlement or appeal of any Proceeding, and prior to
the final disposition of such Proceeding, upon receipt of an
undertaking by or on behalf of Indemnitee to repay such amount
if it is ultimately determined by a court of competent
jurisdiction that such person is not entitled to be
indemnified by the Company. Any advances and undertakings to
repay pursuant to this Section 3.1 shall be
unsecured and interest free
and shall provide that, if Indemnitee has commenced or
thereafter commences legal proceedings in a court of competent
jurisdiction to secure a determination that Indemnitee should
be indemnified under applicable law, Indemnitee shall not be
required to reimburse the Company for any advance of Expenses
until a final judicial determination is made with respect
thereto (as to which all rights of appeal therefrom have been
exhausted or lapsed).
3.2 Advances
of Expenses pursuant to Section 3 hereof shall
be made within ten (10) days after the receipt by the Company
of a written statement or statements from Indemnitee
requesting such advance or advances from time to time, whether
prior to or after final disposition of such Proceeding, and
accompanied by or preceded by the undertaking referred to in
Section 3.1 above.
4.
Contribution in the Event of Joint Liability.
4.1 Whether
or not the indemnification provided in Section 2
hereof is available, in respect of any threatened, pending or
completed action, suit or proceeding in which Company is
jointly liable with Indemnitee (or would be if joined in such
action, suit or proceeding), Company shall pay, in the first
instance, the entire amount of any judgment or settlement of
such action, suit or proceeding without requiring Indemnitee
to contribute to such payment and Company hereby waives and
relinquishes any right of contribution it may have against
Indemnitee. Company shall not enter into any settlement of any
action, suit or proceeding in which Company is jointly liable
with Indemnitee (or would be if joined in such action, suit or
proceeding) unless such settlement provides for a full and
final release of all claims asserted against
Indemnitee.
4.2 Without
diminishing or impairing the obligations of the Company set
forth in the preceding subparagraph, if, for any reason,
Indemnitee shall elect or be required to pay all or any
portion of any judgment or settlement in any threatened,
pending or completed action, suit or proceeding in which
Company is jointly liable with Indemnitee (or would be if
joined in such action, suit or proceeding), Company shall
contribute to the amount of expenses (including
attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred and paid or
payable by Indemnitee in proportion to the relative benefits
received by the Company and all officers, directors or
employees of the Company other than Indemnitee who are jointly
liable with Indemnitee (or would be if joined in such action,
suit or proceeding), on the one hand, and Indemnitee, on the
other hand, from the transaction from which such action, suit
or proceeding arose; provided , however , that
the proportion determined on the basis of relative benefit
may, to the extent necessary to conform to law, be further
adjusted by reference to the relative fault of Company and all
officers, directors or employees of the Company other than
Indemnitee who are jointly liable with Indemnitee (or would be
if joined in such action, suit or proceeding), on the one
hand, and Indemnitee, on the other hand, in connection with
the events that resulted in such expenses, judgments, fines or
settlement amounts, as well as any other equitable
considerations which applicable law may require to be
considered. The relative fault of Company and all officers,
directors or employees of the Company other than Indemnitee
who are jointly liable with Indemnitee (or would be if joined
in such action, suit or proceeding), on the one hand, and
Indemnitee, on the other hand, shall be determined by
reference to, among other things, the degree to which their
actions were motivated by intent to gain personal profit or
advantage, the degree to which their liability is primary or
secondary, and the degree to which their conduct is active or
passive.
4.3 Company
hereby agrees to fully indemnify and hold Indemnitee harmless
from any claims of contribution which may be brought by other
officers, directors or employees of the Company who may be
jointly liable with Indemnitee.
5.
Indemnification for Expenses as a Witness. In
addition to the rights of Indemnitee under, and without limiting,
the other provision of this Agreement, to the extent that
Indemnitee is, by reason of his/her Corporate Status, a witness in
any action, suit or proceeding to which Indemnitee is not a party,
Indemnitee shall be indemnified by the Company against all Expenses
actually and reasonably incurred by him/her or on his/her behalf in
connection therewith.
6. Procedures
and Presumptions for Determination of Entitlement to
Indemnification.
6.1
Timing of Payments . All payments of
Expenses, judgments, penalties, fines and other amounts by the
Company to the Indemnitee pursuant to this Agreement shall be
made to the fullest extent permitted by applicable law as soon
as practicable after written demand therefor by Indemnitee is
presented to the Company, but in no event later than (i)
thirty (30) days after such demand is presented or (ii) such
later date as may be permitted for the determination of
entitlement to indemnification pursuant to Section
6.7 hereof, if applicable; provided ,
however , that advances of Expenses shall be made
within the time provided in Section 3.2
.
6.2
Request for Indemnification
. Indemnitee shall submit to the Company 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. The Secretary of
the Company shall, promptly upon receipt of such a request for
indemnification, advise the board of directors of the Company
(the “Board of
Directors” ) in writing that Indemnitee
has requested indemnification.
6.3
Reviewing Party . Upon written
request by Indemnitee for indemnification pursuant to the
first sentence of Section 6.2 hereof, a
determination, if required by applicable law, with respect to
Indemni
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