DIRECTOR INDEMNIFICATION AGREEMENT
Exhibit
10.24
This Director Indemnification Agreement (the “Agreement”) is made and entered into as of the
10th day of February, 2005, by and between CARDTRONICS, INC., a Delaware corporation (the
“Company,” which term shall include, where appropriate, any Entity (as hereinafter defined)
controlled directly or indirectly by the Company and any successor to the Company), and
___(“Indemnitee”).
WHEREAS, it is essential to the Company that it be able to retain and attract as directors the
most capable persons available;
WHEREAS, increased corporate litigation has subjected directors to litigation risks and
expenses, and the limitations on the availability of directors and officers liability insurance
have made it increasingly difficult for the Company to attract and retain such persons;
WHEREAS, the Company’s Amended and Restated Certificate of Incorporation (as amended from time
to time, the “Charter”) and/or bylaws (as in effect from time to time) provide for the
indemnification of its directors and permits it to make other indemnification arrangements and
agreements;
WHEREAS, the Company desires to provide Indemnitee with specific contractual assurance of
Indemnitee’s rights to full indemnification against litigation risks and expenses (regardless,
among other things, of any change in the ownership of the Company or the composition of its Board
of Directors); and
WHEREAS, Indemnitee is relying upon the rights afforded under this Agreement in accepting
Indemnitee’s position as a director of the Company:
NOW, THEREFORE, in consideration of the promises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:
1. Definitions.
(a) “Corporate Status” describes the status of a person who is serving or has served
(i) as a director of the Company, (ii) in any capacity with respect to any employee benefit plan of
the Company, or (iii) as a director, partner, trustee, officer, employee, or agent of any other
Entity at the request of the Company. For purposes of subsection (iii) of this Section 1(a), a
director of the Company who is serving or has served as a director, partner, trustee, officer,
employee or agent of a Subsidiary shall be deemed to be serving at the request of the Company.
(b) “Entity” shall mean any corporation, partnership, limited liability company, joint
venture, trust, foundation, association, organization or other legal entity.
(c) “Expenses” shall mean all reasonable fees, costs and expenses incurred in
connection with any Proceeding (as defined below), including, without limitation, reasonable
attorneys’ fees, disbursements and retainers (including, without limitation, any such fees,
disbursements and retainers incurred by Indemnitee pursuant to Sections 9 and 11(c) of this
Agreement), fees and disbursements of expert witnesses, private investigators and professional
advisors (including, without limitation, accountants and investment bankers), court costs,
transcript costs, fees of experts, travel expenses, duplicating, printing and binding costs,
telephone and fax transmission charges, postage, delivery services, secretarial services, and other
disbursements and expenses.
(d) “Liabilities” shall mean judgments, damages, liabilities, losses, penalties,
excise taxes, fines and amounts paid in settlement.
(e) “Proceeding” shall mean any threatened, pending or completed claim, action, suit,
arbitration, alternate dispute resolution process, investigation, administrative hearing, appeal,
or any other proceeding, whether civil, criminal, administrative, arbitrative or investigative,
whether formal or informal, including a proceeding initiated by Indemnitee pursuant to Section 11
of this Agreement to enforce Indemnitee’s rights hereunder.
(f) “Subsidiary” shall mean any corporation, partnership, limited liability company,
joint venture, trust or other Entity of which the Company owns (either directly or through or
together with another Subsidiary of the Company) either (i) a general partner, managing member or
other similar interest or (ii) (A) 50% or more of the voting power of the voting capital equity
interests of such corporation, partnership, limited liability company, joint venture or other
Entity, or (B) 50% or more of the outstanding voting capital stock or other voting equity interests
of such corporation, partnership, limited liability company, joint venture or other Entity.
2. Services of Indemnitee. In consideration of the Company’s covenants and
commitments hereunder, Indemnitee agrees to serve or continue to serve as a director of the
Company. However, this Agreement shall not impose any obligation on Indemnitee or the Company to
continue Indemnitee’s service to the Company beyond any period otherwise required by law or by
other agreements or commitments of the parties, if any.
3. Agreement to Indemnify. The Company agrees to indemnify Indemnitee as follows:
(a) Subject to the exceptions contained in Section 4(a) below, if Indemnitee was or is a party
or is threatened to be made a party to any Proceeding (other than an action by or in the right of
the Company) by reason of Indemnitee’s Corporate Status, Indemnitee shall, to the extent permitted
by applicable law, be indemnified by the Company against all Expenses and Liabilities incurred or
paid by Indemnitee in connection with such Proceeding (referred to herein as “Indemnifiable
Expenses” and “Indemnifiable Liabilities,” respectively, and collectively as
“Indemnifiable Amounts”).
(b) To the extent permitted by applicable law and subject to the exceptions contained in
Section 4(b) below, 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 to procure a judgment in its favor by reason of
Indemnitee’s Corporate Status, Indemnitee shall be indemnified by the Company against all
Indemnifiable Expenses.
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4. Exceptions to Indemnification. Indemnitee shall be entitled to the indemnification
provided in Sections 3(a) and 3(b) above in all circumstances permitted by applicable law other
than the following:
(a) If indemnification is requested under Section 3(a) and it has been adjudicated finally by
a court of competent jurisdiction that, in connection with the subject of the Proceeding out of
which the claim for indemnification has arisen, Indemnitee failed to act in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company,
or with respect to any criminal action or proceeding, Indemnitee had reasonable cause to believe
that Indemnitee’s conduct was unlawful, Indemnitee shall not be entitled to payment of
Indemnifiable Amounts hereunder.
(b) If indemnification is requested under Section 3(b) and:
(i) it has been adjudicated finally by a court of competent jurisdiction that, in
connection with the subject of the Proceeding out of which the claim for indemnification has
arisen, Indemnitee failed to act in good faith and in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the Company, Indemnitee shall not
be entitled to payment of Indemnifiable Expenses hereunder; or
(ii) it has been adjudicated finally by a court of competent jurisdiction that
Indemnitee is liable to the Company with respect to any claim, issue or matter involved in
the Proceeding out of which the claim for indemnification has arisen, including, without
limitation, a claim that Indemnitee received an improper personal benefit, no Indemnifiable
Expenses shall be paid with respect to such claim, issue or matter unless 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 Indemnifiable Expenses which such court shall deem
proper.
5. Procedure for Payment of Indemnifiable Amounts. Indemnitee shall submit to the
Company a written request specifying the Indemnifiable Amounts for which Indemnitee seeks payment
under Section 3 of this Agreement and the basis for the claim. The Company shall pay such
Indemnifiable Amounts to Indemnitee within thirty (30) calendar days (or earlier if reasonably
requested by Indemnitee) of receipt of the request, unless a determination is made within such
period by (1) a majority vote of the directors of the Company who are or were not parties to the
Proceeding giving rise to the claim, even though less than a quorum, (2) a committee of such
directors designated by majority vote of such directors, even though less than a quorum, (3) if
there are no such directors, or if such directors so direct, independent legal counsel in a written
opinion, or (4) by the stockholders, that Indemnitee has not met the relevant standards for
indemnification set forth in Section 3 hereof or under Delaware law. At the request of the
Company, Indemnitee shall furnish such documentation and information as are reasonably available to
Indemnitee and necessary to establish that Indemnitee is entitled to indemnification hereunder.
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6. Indemnification for Expenses of a Witness. Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a witness in
any Proceeding to which Indemnitee is not a party, the Indemnitee shall be indemnified against all
Expenses actually and reasonably incurred by him or on his behalf in connection therewith
7. Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, and without limiting any such provision, to
the extent that Indemnitee is, by reason of Indemnitee’s Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding, Indemnitee shall be indemnified against
all Expenses reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith.
If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the
Company shall indemnify Indemnitee against all Expenses reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with each successfully resolved claim, issue or matter. For
purposes of this Agreement, and, without limiting the generality of the foregoing, the termination
of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall
be deemed to be a successful result as to such claim, issue or matter.
8. Effect of Certain Resolutions. Neither the settlement or termination of any
Proceeding nor the failure of the Company to award indemnification or to determine that
indemnification is payable shall create an adverse presumption that Indemnitee is not entitled to
indemnification hereunder. In addition, the termination of any Proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not 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 Company or, with respect to any
criminal action or proceeding, had reasonable cause to believe that Indemnitee’s action was
unlawful.
9. Agreement to Advance Expenses; Conditions. The Company shall pay to Indemnitee all
Indemnifiable Expenses incurred by Indemnitee in connection with any Proceeding, including a
Proceeding by or in the right of the Company, in advance of the final disposition of such
Proceeding, if Indemnitee furnishes the Company with a written undertaking to repay the amount of
such Indemnifiable Expenses advanced to Indemnitee if it is finally determined by a court of
competent jurisdiction that Indemnitee is not entitled under this Agreement to indemnification with
respect to such Expenses. This undertaking is an unlimited general obligation of Indemnitee, shall
be accepted by the Company without regard to the financial ability of Indemnitee to make repayment,
and in no event shall be required to be secured.
10. Procedure for Advance Payment of Expenses. Indemnitee shall submit to the Company
a written request specifying the Indemnifiable Expenses for which Indemnitee seeks an advancement
under Section 9 of this Agreement, together with the undertaking required by Section 9,
documentation evidencing that Indemnitee has incurred such Indemnifiable Expenses and written
affirmation that Indemnitee has met the requisite standard or conduct for indemnification. Payment
of Indemnifiable Expenses under Section 9 shall be made no later than thirty (30) calendar days
after the Company’s receipt of such request.
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11. Remedies of Indemnitee.
(a) Right to Petition Court. In the event that Indemnitee makes a request for payment
of Indemnifiable Amounts under Sections 3 and 5 above or a request for an advancement of
Indemnifiable Expenses under Sections 9 and 10 above and the Company fails to make such payment or
advancement in a timely manner pursuant to the terms of this Agreement, Indemnitee may petition any
court which has jurisdiction to enforce the Company’s obligations under this Agreement.
(b) Burden of Proof. In any judicial proceeding brought under Section 11(a) above,
the Company shall have the burden of proving that Indemnitee is not entitled to payment of
Indemnifiable Amounts hereunder.
(c) Expenses. The Company agrees to reimburse Indemnitee in full for any Expenses
incurred by Indemnitee in connection with investigating, preparing for, litigating, defending or
settling any action brought by Indemnitee under Section 11(a) above, except where such action is
dismissed or resolved in favor of the Company or any claim or counterclaim brought by the Company
in connection therewith is resolved in favor of the Company.
(d) Validity of Agreement. The Company shall be precluded from asserting in any
Proceeding, including, without limitation, an action under Section 11(a) above, that the provisions
of this Agreement are not valid, binding and enforceable or that there is insufficient
consideration for this Agreement and shall stipulate in court that the Company is bound by all the
provisions of this Agreement.
(e) Failure to Act Not a Defense. The failure of the Company (including its Board of
Directors or any committee thereof, independent legal counsel, or stockholders) to make a
determination concerning the permissibility of the payment of Indemnifiable Amounts or the
advancement of Indemnifiable Expenses under this Agreement shall not be a defense in any action
brought under Section 11(a) above, and shall not create a presumption that such payment or
advancement is not permissible.
12. Defense of the Underlying Proceeding.
(a) Notice by Indemnitee. Indemnitee agrees to notify the Company promptly upon being
served with any summons, citation, subpoena, complaint, indictment, information, or other document
relating to any Proceeding which may result in the payment of Indemnifiable Amounts or the
advancement of Indemnifiable Expenses hereunder; provided, however, that the failure to give any
such notice shall not disqualify Indemnitee from the right, or otherwise affect in any manner any
right of Indemnitee, to receive payments of Indemnifiable Amounts or advancements of Indemnifiable
Expenses except to the extent the Company’s ability to defend in such Proceeding is prejudiced
thereby.
(b) Defense by Company. Subject to the provisions of the last sentence of this
Section 12(b) and of Section 12(c) below, the Company shall have the right to defend Indemnitee in
any Proceeding which may give rise to the payment of Indemnifiable Amounts hereunder; provided,
however that the Company shall notify Indemnitee of any such decision to defend within ten (10)
calendar days of receipt of notice of any such Proceeding under Section 12(a)
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above. The Company shall not, without the prior written consent of Indemnitee, consent to the
entry of any judgment against Indemnitee or enter into any settlement or compromise which (i)
includes an admission of fault of Indemnitee, or (ii) does not include, as an unconditional term
thereof, the full release of Indemnitee from all liability in respect of such Proceeding, which
release shall be in form and substance reasonably satisfactory to Indemnitee. Indemnitee shall
not, without the prior written consent of the Company, consent to the entry of any judgment against
Indemnitee or enter into any settlement or compromise with respect to which the Company has
indemnification obligations to Indemnitee. This Section 12(b) shall not apply to a Proceeding
brought by Indemnitee under Section 11(a) above or pursuant to Section 20 below.
(c) Indemnitee’s Right to Counsel. Notwithstanding the provisions of Section 12(b)
above, (i) if in a Proceeding to which Indemnitee is a party by reason of Indemnitee’s Corporate
Status, (A) Indemnitee reasonably concludes that he or she may have separate defenses or
counterclaims to assert with respect to any issue which are inconsistent with the position of other
defendants in such Proceeding, or (B) a conflict of interest or potential conflict of interest
exists between Indemnitee and the Company, or (ii) if the Company fails to assume the defense of
such proceeding in a timely manner, Indemnitee shall be entitled to be represented by separate
legal counsel, which shall represent other persons’ similarly situated, of Indemnitee’s and such
other persons’ choice and reasonably acceptable to the Company at the expense of the Company. In
addition, if the Company fails to comply with any of its obligations under this Agreement or in the
event that the Company or any other person takes any action to declare this Agreement void or
unenforceable, or institutes any action, suit or proceeding to deny or to recover from Indemnitee
the benefits intended to be provided to Indemnitee hereunder, except with respect to such actions
suits or proceedings brought by the Company that are resolved in favor of the Company, Indemnitee
shall have the right to retain counsel of Indemnitee’s choice, at the expense of the Company, to
represent Indemnitee in connection with any such matter.
13. Representations and Warranties of the Company. The Company hereby represents and
warrants to Indemnitee as follows:
(a) Authority. The Company has all necessary power and authority to enter into, and
be bound by the terms of, this Agreement, and the execution, delivery and performance of the
undertakings contemplated by this Agreement have been duly authorized by the Company.
(b) Enforceability. This Agreement, when executed and delivered by the Company in
accordance with the provisions hereof, shall be a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws affecting the enforcement of creditors’ rights generally or equitable principles.
14. Fees and Expenses. During the term of the Indemnitee’s service as a director, the
Company shall promptly reimburse the Indemnitee for all reasonable out-of-pocket expenses incurred
by him in connection with his service as a director or member of any board committee.
15. Contract Rights Not Exclusive. The rights to payment of Indemnifiable Amounts and
advancement of Indemnifiable Expenses provided by this Agreement shall be in
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addition to, but not
exclusive of, any other rights which Indemnitee may have at any time under applicable law, the Company’s bylaws or the Charter, as each may be amended and/or amended and
restated from time to time (collectively, the “Organization Documents”), or any other agreement,
vote of stockholders or directors (or a committee of directors), or otherwise, both as to action in
Indemnitee’s official capacity and as to action in any other capacity as a result of Indemnitee’s
serving as a director of the Company.
16. Successors. This Agreement shall be (a) binding upon all successors and assigns
of the Company (including any transferee of all or a substantial portion of the business, stock
and/or assets of the Company and any direct or indirect successor by merger or consolidation or
otherwise by operation of law), and (b) binding on and shall inure to the benefit of the heirs,
personal representatives, executors and administrators of Indemnitee. This Agreement shall
continue for the benefit of Indemnitee and such heirs, personal representatives, executors and
administrators after Indemnitee has ceased to have Corporate Status.
17. Subrogation. In the event of any payment of Indemnifiable Amounts under this
Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of
contribution or recovery of Indemnitee against other persons, and Indemnitee shall take, at the
request of the Company, all reasonable action necessary to secure such rights, including the
execution of such documents as are necessary to enable the Company to bring suit to enforce such
rights.
18. Governing Law; Change in Law. This Agreement shall be governed by and construed
and enforced under the laws of the State of Delaware, without giving effect to the provisions
thereof relating to conflicts of law (the “Governing Law”). To the extent that a change in
the Governing Law (whether by statute or judicial decision) shall permit broader indemnification or
advancement of expenses than is provided under the terms of the Organization Documents and this
Agreement, Indemnitee shall be entitled to such broader indemnification and advancements, and this
Agreement shall be deemed to be amended to such extent.
19. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law, but if any
provision of this Agreement, or any clause thereof, shall be determined by a court of competent
jurisdiction to be illegal, invalid or unenforceable, in whole or in part, such provision or clause
shall be limited or modified in its application to the minimum extent necessary to make such
provision or clause valid, legal and enforceable, and the remaining provisions and clauses of this
Agreement shall remain fully enforceable and binding on the parties.
20. Indemnitee as Plaintiff. Except as provided in Section 11 of this Agreement and
in the next sentence, Indemnitee shall not be entitled to payment of Indemnifiable Amounts or
advancement of Indemnifiable Expenses with respect to any Proceeding brought by Indemnitee against
the Company, any Entity which it controls, or any director or officer thereof, unless the Company
has consented to the initiation of such Proceeding. This Section shall not apply to affirmative
defenses asserted by Indemnitee or any counterclaims by Indemnitee which are resolved successfully
(from the Company’s point of view) in an action brought against Indemnitee.
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21. Modifications and Waiver. Except as provided in Section 18 above with respect to
changes in the Governing Law which broaden the right of Indemnitee to be indemnified by the
Company, no supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by each of the parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provisions of this Agreement
(whether or not similar), nor shall such waiver constitute a continuing waiver.
22. General Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given (a) when delivered by
hand, (b) when transmitted by facsimile and receipt is acknowledged, or (c) if mailed by certified
or registered mail with postage prepaid, on the third business day after the date on which it is so
mailed to such address as may have been furnished by any party to the others.
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IN WITNESS WHEREOF, the parties hereto have executed this Director Indemnification Agreement
as of the day and year first above written.
| THE COMPANY | ||||
| CARDTRONICS, INC. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| INDEMNITEE: | ||||
| Name: | ||||
[Signature Page to Director Indemnification Agreement]
