INDEMNIFICATION AGREEMENT
Exhibit 10
This Indemnification Agreement, dated as of ___, 2006, is entered into by and between S1
Corporation, 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;
B. The Corporation believes that the interests of the Corporation and its stockholders would
best be served by a combination of liability insurance presently available to the Corporation and
the indemnification by the Corporation of the directors and officers of the Corporation;
C. 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;
D. The Corporation desires and has requested Indemnitee to serve or continue to serve as a
director or officer of the Corporation, or a Subsidiary of the Corporation, free from undue concern
for unwarranted claims for damages arising out of or related to such services to the Corporation;
and
E. 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 Indemnitee continuing to serve the Corporation and 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 Generally.
To the fullest extent permitted by the laws of the State of Delaware:
(a) The Corporation shall indemnify Indemnitee if Indemnitee was or is a party to or witness
or other participant or is threatened to be made a party to or witness or other participant to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (including an action by or in the right of the Corporation), by
reason of the fact that Indemnitee is or was or has agreed to serve at the request of the
Corporation as a director, officer, employee or agent of the Corporation, or any Subsidiary, by
reason of any action or inaction on the part of the Indemnitee while serving as a director or
officer of the Corporation, or was serving or has agreed to serve at the request of the Corporation
as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee,
partner or manager or similar capacity) of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise against expenses (including
attorneys’ fees
and costs), judgments, fines, any interest, assessments, and other charges and
amounts paid in settlement (if such settlement is approved by the Corporation, which approval shall
not be unreasonably withheld) actually and reasonably incurred by Indemnitee in connection with
such action, suit or proceeding 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 a criminal action or proceeding, had no reasonable cause to believe Indemnitee’s conduct
was unlawful. For the avoidance of doubt, the foregoing indemnification obligation includes,
without limitation, claims for monetary damages against Indemnitee in respect of an alleged breach
of fiduciary duties, to the fullest extent permitted under Section 102(b)(7) of the Delaware
General Corporation Law (“DGCL”) as in existence on the date hereof.
(b) Notwithstanding the foregoing provisions of this Section 1, in the case of any threatened,
pending or completed action or suit 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, officer, employee or agent of
the Corporation, or while serving as a director or officer of the Corporation, is or was serving or
has agreed to serve at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or 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 action or suit 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.
(c) The termination of any action, suit or 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 action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was
unlawful.
Section 2 Successful Defense; Partial Indemnification. To the extent that Indemnitee
has been successful on the merits or otherwise in defense of any action, suit or proceeding
referred to in Section 1 hereof or in defense of any claim, issue or matter therein, Indemnitee
shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred
in connection therewith. For purposes of this Agreement and without limiting the foregoing, to the
fullest extent permitted by law, if any action, suit or 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 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 (including attorneys’ fees), judgments, fines or
amounts paid in settlement actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf
in connection with any action, suit, proceeding or investigation, 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 (including attorneys’ fees), judgments,
fines or amounts paid in settlement to which Indemnitee is entitled.
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Section 3 Determination That Indemnification Is Proper. 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 1(a) hereof. Any such determination
shall be made (i) by a majority vote of the directors who are not parties to the action, suit or
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 action, suit or
proceeding in question, (iv) by independent legal counsel, or (v) by a court of competent
jurisdiction.
Section 4 Advance Payment of Expenses; Notification and Defense of Claim.
(a) Expenses (including attorneys’ fees) incurred by Indemnitee in defending a threatened or
pending civil, criminal, administrative or investigative action, suit or proceeding, or in
connection with an enforcement action pursuant to Section 5(b), shall be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding within twenty (20) days after
receipt by the Corporation of (i) a statement or statements from Indemnitee requesting such advance
or advances from time to time, and (ii) an undertaking by or on behalf of Indemnitee to repay such
amount or amounts, only if, and to the extent that, it shall ultimately be determined that
Indemnitee is not entitled to be indemnified by the Corporation as authorized by this Agreement or
otherwise. Such undertaking shall be accepted without reference to the financial ability of
Indemnitee to make such repayment. Advances shall be unsecured and interest-free.
(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 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 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.
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(d) Notwithstanding any other provision of this Agreement to the contrary, to the extent that
Indemnitee is, by reason of Indemnitee’s corporate status with respect to the Corporation or any
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which
Indemnitee is or was serving or has agreed to serve at the request of the Corporation, a witness or
otherwise participates in any action, suit or proceeding at a time when Indemnitee is not a party
in the action, suit or proceeding, the Corporation shall indemnify Indemnitee against all expenses
(including attorneys’ fees) actually and reasonably incurred by Indemnitee or on Indemnitee’s
behalf in connection therewith.
Section 5 Procedure for Indemnification.
(a) To obtain indemnification, Indemnitee shall promptly 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. The Corporation shall, promptly upon receipt of such a
request for indemnification, advise the Board of Directors in writing that Indemnitee has requested
indemnification.
(b) The Corporation’s determination whether to grant Indemnitee’s indemnification request
shall be made promptly, and in any event within 30 calendar days following receipt of a request for
indemnification pursuant to Section 5(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-calendar
day period. It shall be a defense to any such action (other than an action brought to enforce a
claim for the advance of costs, charges and expenses under Section 4 hereof where the required
undertaking, if any, has been received by the Corporation) that Indemnitee has not met the standard
of conduct set forth in Section 1 hereof, but the burden of proving such defense by clear and
convincing evidence shall be on the Corporation. Neither the failure of the Corporation (including
its Board of Directors or one of its committees, its independent legal counsel, and its
stockholders) to have made a determination prior to the commencement of such action that
indemnification of Indemnitee is proper in the circumstances because Indemnitee has met the
applicable standard of conduct set forth in Section 1 hereof, nor the fact that there has been an
actual determination by the Corporation (including its Board of Directors or one of its committees,
its independent legal counsel, and its stockholders) that Indemnitee has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has
or has not met the applicable standard of conduct. The 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) To the fullest extent permitted by law, the Indemnitee shall be presumed to be entitled to
indemnification under this Agreement upon submission of a request for indemnification pursuant to
this Section 5, and to the fullest extent permitted by law, the Corporation shall have the burden
of proof in overcoming that presumption in reaching a determination contrary to that presumption.
To the fullest
extent permitted by law, 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. It is the intent of the Corporation that the Indemnitee not be required to
incur legal fees or other expenses associated with the interpretation, enforcement or defense of
Indemnitee’s rights under this Agreement, by litigation or otherwise, because the cost and expense
thereof would substantially detract from the benefits intended to be extended to the Indemnitee
hereunder.
(d) If the person, persons or entity empowered or selected under this Agreement to determine
whether Indemnitee is entitled to indemnification shall not have made a determination within the 30
calendar days set forth above in Section 5(b), the requisite determination of entitlement to
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indemnification shall, to the fullest extent not prohibited by law, be deemed to have been made and
Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a
material fact, or an omission of a material fact necessary to make Indemnitee’s statement not
materially misleading, in connection with the request for indemnification, or (ii) a prohibition of
such indemnification under applicable law; provided, however, that such 30-calendar day period may
be extended for a reasonable time, not to exceed an additional 20 days, if the person, persons or
entity making the determination with respect to entitlement to indemnification in good faith
requires such additional time for the obtaining or evaluating of documentation and/or information
relating thereto; and provided, further, that the foregoing provisions of this Section 5(d) shall
not apply if the determination of entitlement to indemnification is to be made by the stockholders
pursuant to Section 3 of this Agreement and if (A) within 15 days after receipt by the Corporation
of the request for such determination the Board of Directors has resolved to submit such
determination to the stockholders for their consideration at an annual meeting thereof to be held
within 75 days after such receipt and such determination is made thereat, or (B) a special meeting
of stockholders is called within 15 days after such receipt for the purpose of making such
determination, such meeting is held for such purpose within 60 days after having been so called and
such determination is made thereat.
(e) The Corporation shall, to the fullest extent not prohibited by law, be precluded
from asserting in any judicial proceeding or arbitration that the procedures and presumptions of
this Agreement are not valid, binding and enforceable and shall stipulate in any such court or
before any such arbitrator that the Corporation is bound by all the provisions of this Agreement.
Section 6 Insurance and Subrogation.
(a) The Corporation may purchase and maintain insurance on behalf of Indemnitee who is or was
or has agreed to serve at the request of the Corporation as a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against, and incurred by, Indemnitee or on
Indemnitee’s behalf in any such capacity, 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 the Indemnitee, all
amounts payable as a result of such proceeding in accordance with the terms of such policy.
(b) In the event of any payment by the Corporation under this Agreement, the Corporation shall
be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with
respect to any insurance policy, who shall execute all papers required and take all action
necessary to secure such rights, including execution of such documents as are necessary to enable
the Corporation to bring suit to enforce such rights in accordance with the terms of such insurance
policy. The Corporation shall pay or reimburse all expenses actually and reasonably incurred by
Indemnitee in connection with such subrogation.
(c) The Corporation shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder (including, but not limited to, judgments, fines, ERISA excise
taxes or penalties, and amounts paid in settlement) if and to the extent that Indemnitee has
otherwise actually received such payment under this Agreement or any insurance policy, contract,
agreement or otherwise.
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Section 7 Change of Control. The Corporation agrees that if there is a Change in
Control of the Corporation (other than a Change in Control which has been approved by a majority of
the Corporation’s Board of Directors who were directors immediately prior to such Change in
Control), then with respect to all matters thereafter arising concerning the rights of Indemnitee
to indemnity payments and advance of expenses under this Agreement, the Corporation shall seek
legal advice only from independent legal counsel selected by Indemnitee and approved by the
Corporation (which approval shall not be unreasonably withheld), and who has not otherwise
performed services for the Corporation or the Indemnitee (other than in connection with such
matters) within the last five (5) years. Such independent legal 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. Such counsel, among other things, shall render its
written opinion to the Corporation and Indemnitee as to whether and to what extent Indemnitee would
be permitted to be indemnified under applicable law. The Corporation agrees to pay the reasonable
fees of the special, independent legal counsel referred to above and to indemnify fully such
counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages
arising out of or relating to this Agreement or the engagement of special, independent legal
counsel pursuant hereto, except with respect to intentional acts and gross negligence of such
special independent legal counsel, and professional malpractice claims related thereto.
Section 8 Certain Definitions. For purposes of this Agreement, the following
definitions shall apply:
(a) The term “action, suit or 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 or proceeding, whether civil, criminal, administrative or investigative.
(b) A “Change in Control” shall be deemed to have occurred if (i) any “person” (as such term
is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than
a trustee or other fiduciary holding securities under an employee benefit plan of the Corporation
or a corporation owned directly or indirectly by the stockholders of the Corporation in
substantially the same proportions as their ownership of stock of the Corporation, is or becomes
the “beneficial owner” (as defined in Rule 13d-3 under said Act), directly or indirectly, of
securities of the Corporation representing 20% or more of the total voting power represented by the
Corporation’s then outstanding Voting
Securities, or (ii) during any period of two consecutive years (not including any period prior
to the execution of this Agreement), 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 stockholders of the Corporation approve a
merger or consolidation of the Corporation with any other corporation, other than a merger or
consolidation which would result in the Voting Securities of the Corporation outstanding
immediately prior thereto continuing to represent (either by remaining outstanding or by being
converted into Voting Securities of the surviving entity) at least 80% of the total voting power
represented by the Voting Securities of the Corporation or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders of the Corporation approve a
plan of complete liquidation of the Corporation or an agreement for the sale or disposition by the
Corporation (in one transaction or a series of transactions) of all or substantially all of the
Corporation’s assets.
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(c) The term “by reason of the fact that Indemnitee is or was a director, officer, employee or
agent of the Corporation, or while serving as a director or officer of the Corporation, is or was
serving or has agreed to serve at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise” shall be broadly construed and shall include, without limitation, any actual or alleged
act or omission to act.
(d) The term “expenses” shall be broadly and reasonably construed and shall include, without
limitation, all direct and indirect costs of any type or nature whatsoever (including, without
limitation, all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees of
experts, witness fees, travel expenses, duplicating 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, being or preparing to be a witness in, or otherwise participating in an action, suit
or proceeding. Expenses shall also include (i) expenses incurred in connection with any appeal
resulting from any action, suit or proceeding, including without limitation the premium, security
for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its
equivalent, and (ii) 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 Board of Directors, which approval
shall not be unreasonably withheld, and expenses actually and reasonably incurred by Indemnitee in
connection with the interpretation, enforcement or defense of Indemnitee’s rights under this
Agreement, Section 145 of the DGCL or otherwise, by litigation or otherwise. Expenses, however,
shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines
against Indemnitee.
(e) The term “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.
(f) The term “Corporation” shall include, without limitation and in addition to the resulting
corporation, any constituent corporation (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, officer, employee or agent of such constituent corporation, or is or was serving at
the request of such constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or 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 if its
separate existence had continued.
(g) The term “other enterprises” shall include, without limitation, employee benefit plans.
(h) The term “serving at the request of the Corporation” shall include, without limitation,
any service as a director, officer, employee or agent of the Corporation which imposes duties on,
or involves services by, such director, officer, employee or agent with respect to an employee
benefit plan, its participants or beneficiaries.
(i) 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
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this Agreement. Indemnitee shall further be deemed to have acted in good faith if Indemnitee’s
action is based on the records or books of account of the Corporation, including financial
statements, or on information supplied to Indemnitee by the officers of the Corporation in the
course of their duties, or on the advice of legal counsel for the Corporation or on information or
records given or reports made to the Corporation by an independent certified public accountant or
by an appraiser or other expert selected with reasonable care by the Corporation.
(j) The term “Voting Securities” shall mean any securities of the Corporation which vote
generally in the election of directors.
(k) The term “Subsidiary” means any corporation, partnership or other organization, whether
incorporated or unincorporated, which is consolidated with the Corporation for financial reporting
purposes.
Section 9 Limitation on Indemnification. Notwithstanding any other provision herein
to the contrary, the Corporation shall not be obligated pursuant to this Agreement:
(a) Claims Initiated By Indemnitee. To indemnify or advance expenses to Indemnitee with
respect to proceedings or claims initiated or brought voluntarily by Indemnitee and not by way of
defense, except with respect to proceedings brought to establish or enforce a right to
indemnification under this Agreement or any other statute or law or otherwise as required under
Section 145 of the DGCL, but such indemnification or advancement of expenses may be provided by the
Corporation in specific cases if the Board of Directors has approved the initiation or bringing of
such suit.
(b) Lack of Good Faith. To indemnify Indemnitee for any expenses incurred by the Indemnitee
with respect to any proceeding instituted by Indemnitee to enforce or interpret this Agreement, if
a court of competent jurisdiction determines that each of the material assertions made by the
Indemnitee in such proceeding was not made in good faith or was frivolous.
(c) Insured Claims. To indemnify Indemnitee for expenses or liabilities of any type
whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes or penalties, and
amounts
paid in settlement) to the extent such expenses or liabilities have been paid directly to
Indemnitee by an insurance carrier under a policy of officers’ and directors’ liability insurance
maintained by the Corporation.
(d) Claims Under Section 16(b). To indemnify Indemnitee for expenses and the payment of
profits arising from the purchase and sale by Indemnitee of securities in violation of Section
16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor statute.
Section 10 Savings Clause. If any provision or provisions of this Agreement shall be
invalidated on any ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify Indemnitee as to costs, charges and expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative, including an action by or in the right of
the Corporation, to the full extent permitted by any applicable portion of this Agreement that
shall not have been invalidated and to the full extent permitted by applicable law.
Section 11 Notice. Any notice, request or other communication required or permitted
to be given to the parties under this Agreement shall be in writing and either delivered in person
or sent by telex, telegram, overnight mail or courier service, or certified or registered mail,
return receipt requested,
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postage prepaid, to the parties at the following addresses (or at such
other addresses for a party as shall be specified by like notice):
If to the Corporation:
S1 Corporation
0000 Xxxxx Xxxx, XX
Xxxxxxx, XX 00000
Attn:
0000 Xxxxx Xxxx, XX
Xxxxxxx, XX 00000
Attn:
If to Indemnitee:
Section 12 Subsequent Legislation. If the DGCL is amended after adoption of this
Agreement to expand further the indemnification permitted to directors or officers, then the
Corporation shall indemnify Indemnitee to the fullest extent permitted by the DGCL, as so amended.
Section 13 Nonexclusivity. The provisions for indemnification and advancement of
expenses set forth in this Agreement shall not be deemed exclusive of any other rights which
Indemnitee may have under any provision of law, the Corporation’s Certificate of Incorporation, in
any court in which a proceeding is brought, the vote of the Corporation’s stockholders or
disinterested directors, other agreements or otherwise, and Indemnitee’s rights hereunder shall
continue after Indemnitee has ceased acting as an agent of the Corporation and shall inure to the
benefit of the heirs, executors and administrators of Indemnitee. However, no amendment or
alteration of the Corporation’s Certificate of Incorporation or By-Laws or any other agreement
shall adversely affect the rights provided to Indemnitee under this Agreement.
Section 14 Enforcement. The Corporation shall be precluded from asserting in any
judicial proceeding that the procedures and presumptions of this Agreement are not valid, binding
and enforceable.
The Corporation agrees that its execution of this Agreement shall constitute a stipulation by
which it shall be irrevocably bound in any court of competent jurisdiction in which a proceeding by
Indemnitee for enforcement of his rights hereunder shall have been commenced, continued or
appealed, that its obligations set forth in this Agreement are unique and special, and that failure
of the Corporation to comply with the provisions of this Agreement will cause irreparable and
irremediable injury to Indemnitee, for which a remedy at law will be inadequate. As a result, in
addition to any other right or remedy Indemnitee may have at law or in equity with respect to
breach of this Agreement, Indemnitee shall be entitled to injunctive or mandatory relief directing
specific performance by the Corporation of its obligations under this Agreement.
Section 15 Interpretation of Agreement. It is understood that the parties hereto
intend this Agreement to be interpreted and enforced so as to provide indemnification to Indemnitee
to the fullest extent now or hereafter permitted by law.
Section 16 Modification. This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof. All prior negotiations, agreements and
understandings between parties with respect thereto are superseded hereby. This Agreement may not
be modified or amended except by an instrument in writing signed by or on behalf of the parties
hereto.
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Section 17 Successor and Assigns. This Agreement shall be binding upon the
Corporation and its successors and assigns, and shall inure to the benefit of Indemnitee and
Indemnitee’s estate, heirs, legal representatives and assigns.
Section 18 Duration of Agreement. This Agreement shall continue until and terminate
upon the later of: (a) 10 years after the date that Indemnitee shall have ceased to serve as a
director or officer of the Corporation or any Subsidiary or (b) 1 year after the final termination
of any action, suit or proceeding then pending in respect of which Indemnitee is granted rights of
indemnification or advancement of expenses hereunder and of any proceeding commenced by Indemnitee
pursuant to this Agreement relating thereto.
Section 19 Governing Law. This Agreement shall be governed exclusively by and
construed according to the laws of the State of Delaware, as applied to contracts between Delaware
residents entered into and to be performed entirely within Delaware. If a court of competent
jurisdiction shall make a final determination that the provisions of the law of any state other
than Delaware govern indemnification by the Corporation of its officers and directors, then the
indemnification provided under this Agreement shall in all instances be enforceable to the fullest
extent permitted under such law, notwithstanding any provision of this Agreement to the contrary.
Section 20 Employment Rights. Nothing in this Agreement is intended to create in
Indemnitee any right to employment or continued employment.
Section 21 Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original and all of which together shall be deemed to be one
and the same instrument, notwithstanding that both parties are not signatories to the original or
same counterpart.
Section 22 Headings. The section and subsection headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
[Signatures on Next Page]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered to be effective as of
the date first above written.
S1 CORPORATION | ||||||
By | ||||||
Title: |
||||||
INDEMNITEE: | ||||||
By | ||||||
Name: Title: |
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