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Exhibit 10.1 INDEMNIFICATION AGREEMENT
This
Indemnification Agreement, dated as of ___, 200_, is made by and
between Euronet Worldwide, Inc., a Delaware corporation (the
"Corporation"), and
(the "Indemnitee"). RECITALS
A. The
Corporation recognizes that competent and experienced persons are
increasingly reluctant to serve or to continue to serve as
directors or officers of corporations unless they are protected by
comprehensive liability insurance or indemnification, or both, due
to increased exposure to litigation costs and risks resulting from
their service to such corporations, and due to the fact that the
exposure frequently bears no reasonable relationship to the
compensation of such directors and officers;
B. The
statutes and judicial decisions regarding the duties of directors
and officers are often difficult to apply, ambiguous, or
conflicting, and therefore fail to provide such directors and
officers with adequate, reliable knowledge of legal risks to which
they are exposed or information regarding the proper course of
action to take;
C. The
Corporation and Indemnitee recognize that plaintiffs often seek
damages in such large amounts and the costs of litigation may be so
enormous (whether or not the case is meritorious), that the defense
and/or settlement of such litigation is often beyond the personal
resources of directors and officers and the exposure from such
litigation frequently bears no reasonable relationship to the
compensation of such directors and officers;
D. The
Corporation believes that it is unfair for its directors and
officers to assume the risk of huge judgments and other expenses
which may occur in cases in which the director or officer received
no personal profit and in cases where the director or officer was
not culpable;
E. The
Corporation, after reasonable investigation, has determined that
the liability insurance coverage presently available to the
Corporation may be inadequate in certain circumstances to cover all
possible exposure for which Indemnitee should be protected. The
Corporation believes that the interests of the Corporation and its
stockholders would best be served by a combination of such
insurance and the indemnification by the Corporation of the
directors and officers of the Corporation;
F. The
Corporation’s ByLaws require the Corporation to indemnify its
directors and officers to the fullest extent permitted by the
Delaware General Corporation Law (the "DGCL"). The ByLaws expressly
provide that the indemnification provisions set forth therein are
not exclusive, and contemplate that contracts may be entered into
between the Corporation and its directors and officers with respect
to indemnification;
G.
Section 145 of the DGCL ("Section 145"), under which the
Corporation is organized, empowers the Corporation to indemnify its
officers, directors, employees and agents
by agreement and to indemnify persons who serve, at the request
of the Corporation, as the directors, officers, employees or agents
of other corporations or enterprises, and expressly provides that
the indemnification provided by Section 145 is not exclusive;
H.
Section 102(b)(7) of the DGCL allows a corporation to include
in its certificate of incorporation a provision limiting or
eliminating the personal liability of a director for monetary
damages in respect of claims by shareholders and corporations for
breach of certain fiduciary duties, and the Corporation has so
provided in its Certificate of Incorporation that each Director
shall be exculpated from such liability to the maximum extent
permitted by law;
I. The
Corporation desires to provide the Indemnitee with specific
contractual assurances of the Indemnitee’s rights to full
indemnification against litigation risks and reasonable expenses
(regardless, among other things, of any amendment to or revocation
of the Certificate of Incorporation and ByLaws or any change in the
ownership of the Corporation or the composition of its Board of
Directors) and, to the extent insurance is available, the coverage
of the Indemnitee under the Corporation’s directors’
and officers’ liability insurance policies;
J. The
Board of Directors has determined that contractual indemnification
as set forth herein is not only reasonable and prudent but also
promotes the best interests of the Corporation and its
stockholders;
K. The
Corporation desires and has requested Indemnitee to serve or
continue to serve as a director or officer of the Corporation free
from undue concern for unwarranted claims for damages arising out
of or related to such services to the Corporation; and
L.
Indemnitee is willing to serve, continue to serve or to provide
additional service for or on behalf of the Corporation on the
condition that he is furnished the indemnity provided for herein.
AGREEMENT
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. Certain
Definitions . For purposes of this Agreement, the following
definitions shall apply:
(a) The
term "Proceeding" shall be broadly construed and shall include,
without limitation, the investigation, preparation, prosecution,
defense, settlement, arbitration and appeal of, and the giving of
testimony in, any threatened, pending or completed claim, action,
suit, proceeding, or arbitration, whether civil, criminal,
administrative, investigative, appellate or arbitral, and whether
formal or informal.
(b) The
phrase "by reason of the fact that Indemnitee is or was a director
or officer of the Corporation, or is or was serving at the
Corporation’s request as a director, officer,
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employee or agent of any Other Enterprise", or any substantially
similar phrase, shall be broadly construed and shall include,
without limitation, any actual or alleged act or omission to act.
(c) The
term "Expenses" shall be broadly and reasonably construed and shall
include, without limitation, all direct and indirect expenses,
costs or charges of any type or nature whatsoever (including,
without limitation, all attorneys’ fees and related
disbursements, appeal bonds, other out-of-pocket costs and
reasonable compensation for time spent by Indemnitee for which
Indemnitee is not otherwise compensated by the Corporation or any
third party, provided that the rate of compensation and estimated
time involved is approved by the Corporation’s Board of
Directors, which approval shall not be unreasonably withheld,
conditioned or delayed), actually and reasonably incurred by
Indemnitee in connection with the investigation, preparation,
prosecution, defense, settlement, arbitration or appeal of, or the
giving of testimony in, a Proceeding or establishing or enforcing a
right to indemnification under this Agreement, the
Corporation’s Certificate of Incorporation or ByLaws,
Section 145 of the General Corporation Law of the State of
Delaware or otherwise.
(d) The
terms "judgments, fines and amounts paid in settlement" shall be
broadly construed and shall include, without limitation, all direct
and indirect payments of any type or nature whatsoever (including,
without limitation, all penalties and amounts required to be
forfeited or reimbursed to the Corporation), as well as any
penalties or excise taxes assessed on a person with respect to an
employee benefit plan.
(e) The
term "Corporation" shall include, without limitation and in
addition to the resulting corporation, any constituent corporation
or any Other Enterprise (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or
agents, so that any person who is or was a director or officer of
such constituent corporation or Other Enterprise, or is or was
serving at the request of such constituent corporation as a
director, officer, employee or agent of any Other Enterprise, shall
stand in the same position under the provisions of this Agreement
with respect to the resulting or surviving corporation as he or she
would have with respect to such constituent corporation or Other
Enterprise as if its separate existence had continued.
(f) The
term "Other Enterprise" shall include, without limitation, any
other corporation, partnership, joint venture, trust or employee
benefit plan.
(g) The
phrase "serving at the request of the Corporation", or any
substantially similar phrase, shall include, without limitation,
any service as a director or officer of the Corporation which
involves services as a director, officer, employee or agent with
respect to any Other Enterprise, including any employee benefit
plan.
(h) A
person who acted in good faith and in a manner such person
reasonably believed to be in the interest 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
Corporation" as referred to in this Agreement.
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(i) The
term "defense" shall include investigations of any Proceeding,
appeals of any Proceeding and defensive assertion of any cross
-claim or counterclaim.
(j) The
term "Independent Counsel" means a law firm, or a member of a law
firm, that is experienced in matters of corporation law and neither
presently is, nor in the past five years has been, retained to
represent: (i) the Corporation or Indemnitee in any matter
material to either such party (other than with respect to matters
concerning 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 Corporation or
Indemnitee in an action to determine Indemnitee’s rights
under this Agreement. The Corporation agrees to pay the reasonable
fees of the Independent Counsel arising out of or relating to this
Agreement or its engagement pursuant hereto.
(k) The
term "Change of Control" means (i) an acquisition by any
person (within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) of beneficial ownership of twenty percent (20%) or more of
the combined voting power of the Corporation’s then
outstanding voting securities; (ii) during any period of two
consecutive years, individuals who at the beginning of such period
constitute the Board of Directors of the Corporation and any new
director whose election by the Board of Directors or nomination for
election by the Corporation’s stockholders was approved by a
vote of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the period or
whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation of a merger or consolidation involving
the Corporation if the stockholders of the Corporation, immediately
before such merger or consolidation, do not own, immediately
following such merger or consolidation, more than eighty percent
(80%) of the combined voting power of the outstanding voting
securities of the resulting entity in substantially the same
proportion as their ownership of voting securities immediately
before such merger or consolidation, (iv) the consummation of
the sale or other disposition of all or substantially all of the
assets of the Corporation, (v) approval by the stockholders of
the Corporation of a complete liquidation or dissolution of the
Corporation or (vi) the occurrence of any other event of a
nature that would be required to be reported in response to either
Item 5.01 of Form 8-K or Item 6(e) of Schedule 14A of
Regulation 14A (or a response to any similar item on any
similar schedule or form promulgated under the Exchange Act),
whether or not the Corporation is then subject to such reporting
requirement. Notwithstanding the foregoing, a Change of Control
shall not be deemed to occur solely because twenty percent (20%) or
more of the then outstanding voting securities is acquired by
(i) a trustee or other fiduciary holding securities under one
or more employee benefit plans maintained by the Corporation or any
of its subsidiaries or (ii) any entity that, immediately prior
to such acquisition, is owned directly or indirectly by the
stockholders of the Corporation in the same proportion as their
ownership of shares in the Corporation immediately prior to such
acquisition.
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Section 2.
Indemnification .
(a) Subject
to Sections 4, 6 and 8 of this Agreement, to the fullest
extent not prohibited by the laws of the State of Delaware, as the
same now exists or may hereafter be amended (but only to the extent
any such amendment permits the Corporation to provide broader
indemnification rights than such law permitted the Corporation to
provide prior to such amendment), the Corporation shall indemnify,
defend and hold harmless, Indemnitee if Indemnitee was or is a
party or is threatened to be made a party to, or a witness of, or
is otherwise involved in, any Proceeding by reason of the fact that
Indemnitee is or was or has agreed to serve as a director or
officer of the Corporation, or is or was serving at the
Corporation’s request as a director, officer, employee or
agent of any Other Enterprise, or by reason of any action taken or
alleged to have been taken, or omitted to be taken or alleged to be
omitted to be taken, in such capacity.
(b) The
indemnification provided by this Section 2 shall be from and
against Expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with such Proceeding, but
shall only be provided if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any
criminal Proceeding, had no reasonable cause to believe
Indemnitee’s conduct was unlawful.
(c) Notwithstanding
the foregoing provisions of this Section 2, in the case of any
Proceeding by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that Indemnitee is or
was a director or officer of the Corporation, or is or was serving
at the Corporation’s request as a director, officer, employee
or agent of any Other Enterprise, no indemnification shall be made
in respect of any claim, issue or matter as to which Indemnitee
shall have been adjudged to be liable to the Corporation unless,
and only to the extent that, the Delaware Court of Chancery or the
court in which such Proceeding was brought shall determine upon
application that, despite the adjudication of liability but in view
of all the circumstances of the case, Indemnitee is fairly and
reasonably entitled to indemnity for such Expenses which the
Delaware Court of Chancery or such other court shall deem proper.
(d) The
termination of any Proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that Indemnitee did not
act in good faith and in a manner which Indemnitee reasonably
believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal Proceeding, had
reasonable cause to believe that Indemnitee’s conduct was
unlawful. Section 3.
Successful Defense; Partial Indemnification . To the extent
that Indemnitee has been successful on the merits or otherwise in
defense of any Proceeding referred to in Section 2 hereof or in
defense of any claim, issue or matter therein, Indemnitee shall be
indemnified against Expenses actually and reasonably incurred in
connection therewith. For purposes of this Agreement and without
limiting the foregoing, if any Proceeding is disposed of, on the
merits or otherwise (including a disposition without prejudice),
without (i) the disposition being adverse to Indemnitee,
(ii) an adjudication that Indemnitee was liable to the
Corporation, (iii) a plea of guilty or nolo contendere by
Indemnitee, (iv) an adjudication that Indemnitee did
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not act in good faith and in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the
Corporation, and (v) with respect to any criminal Proceeding,
an adjudication that Indemnitee had reasonable cause to believe
Indemnitee’s conduct was unlawful, Indemnitee shall be
considered for the purposes hereof to have been wholly successful
with respect thereto.
If
Indemnitee is entitled under any provision of this Agreement to
indemnification by the Corporation for some or a portion of the
Expenses, judgments, fines or amounts paid in settlement actually
and reasonably incurred by Indemnitee or on Indemnitee’s
behalf in connection with any Proceeding, or in defense of any
claim, issue or matter therein, and any appeal therefrom but not,
however, for the total amount thereof, the Corporation shall
nevertheless indemnify Indemnitee for the portion of such Expenses,
judgments, fines or amounts paid in settlement to which Indemnitee
is entitled. Any necessary determination regarding allocation or
apportionment of Expenses between successful and unsuccessful
claims, issues or matters shall be made by the person, persons or
entity empowered or selected under Section 4(a) to determine
whether Indemnitee is entitled to indemnification.
Section 4. Determination That
Indemnification Is Proper .
(a) Any
indemnification hereunder shall (unless otherwise ordered by a
court) be made by the Corporation unless a determination is made
that indemnification of such person is not proper in the
circumstances because he or she has not met the applicable standard
of conduct set forth in Section 2(b) hereof. Any such determination
shall be made (i) by a majority vote of the directors who are
not parties to the Proceeding in question ("disinterested
directors"), even if less than a quorum, (ii) by a majority
vote of a committee of disinterested directors designated by
majority vote of disinterested directors, even if less than a
quorum, (iii) by a majority vote of a quorum of the
outstanding shares of stock of all classes entitled to vote on the
matter, voting as a single class, which quorum shall consist of
stockholders who are not at that time parties to the Proceeding in
question, (iv) by Independent Counsel, or (v) by a court
of competent jurisdiction; provided , however , that
following a Change of Control of the Corporation, any
determinations, whether arising out of acts, omissions or events
occurring prior to or after the Change of Control of the
Corporation, shall be made by Independent Counsel selected in the
manner described in Section 4(b). Such Independent Counsel
shall determine as promptly as practicable whether and to what
extent Indemnitee would be permitted to be indemnified under
applicable law and shall render a written opinion to the
Corporation and to Indemnitee to such effect.
(b) If
the determination of entitlement to indemnification is to be made
by Independent Counsel pursuant to Section 4(a) hereof, the
Independent Counsel shall be selected as provided in this
Section 4(b). The Independent Counsel shall be selected by the
Board of Directors. Indemnitee may, within ten (10) days after
such written notice of selection shall have been given, deliver to
the Corporation, as the case may be, a written objection to such
selection; pr
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