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Form of Indemnification And Insurance Matters Agreement

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Sectors: Banking
Governing Law: Georgia, View Georgia State Laws
Effective Date: January 01, 2007
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Exhibit 10.4 EXHIBIT F FORM OF INDEMNIFICATION AND INSURANCE MATTERS AGREEMENT This Indemnification and Insurance Matters Agreement (this " Agreement" ) is entered into on _________, 2007 by and between Synovus Financial Corp., a Georgia corporation (" Synovus" ), and Total System Services, Inc., a Georgia corporation (" TSYS" ). Synovus and TSYS are sometimes individually referred to herein as a " Party" and collectively as the " Parties ." Capitalized terms used herein and not otherwise defined in Article IV below shall have the meanings ascribed to such terms in the Distribution Agreement (as defined below). RECITALS WHEREAS, Synovus has agreed, subject to the terms and conditions set forth in the Agreement and Plan of Distribution, dated October 25, 2007, between the Parties (" Distribution Agreement" ) to distribute to the holders of the issued and outstanding shares of common stock, $1.00 par value, of Synovus as of the Second Distribution Record Date (as defined in the Distribution Agreement) all of the shares of TSYS Common Stock (as defined in the Distribution Agreement) owned by Synovus, in accordance with the Distribution Agreement; WHEREAS, in furtherance of the Distribution Agreement the Parties desire to set forth certain agreements regarding indemnification and insurance. NOW, THEREFORE, in consideration of the foregoing and the covenants and agreements set forth below, the Parties hereto agree as follows: ARTICLE I MUTUAL RELEASES AND INDEMNIFICATION Section 1.1. Release of Pre-Distribution Claims . (a) TSYS Release . Except as provided in Section 1.1(d), as of the Effective Time, TSYS (on its behalf and on behalf of the members of its Group) does hereby remise, release and forever discharge the Synovus Indemnitees from any and all Liabilities whatsoever, whether at law or in equity (including any right of contribution), whether arising under any contract or agreement, by operation of law or otherwise, existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed on or before the Effective Time, including in connection with the transactions contemplated by the Distribution Agreement or any Ancillary Agreement and all other activities to implement any of the Distributions. (b) Synovus Release . Except as provided in Section 1.1(d), as of the Effective Time, Synovus (on its behalf and on behalf of the members of its Group) does hereby remise, release and forever discharge the TSYS Indemnitees from any and all Liabilities whatsoever, whether at


law or in equity (including any right of contribution), whether arising under any contract or agreement, by operation of law or otherwise, existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed on or before the Effective Time, including in connection with the transactions contemplated by the Distribution Agreement or any Ancillary Agreement and all other activities to implement any of the Distributions. (c) Notwithstanding anything to the contrary in the foregoing, nothing in this Agreement shall remise, release or discharge any rights or claims that any member of one Group may have against any shareholder, director, officer, agent or employee of any member of the other Group (in their respective capacities as such) as a result of any fraudulent conduct or intentional violation of law by such shareholder, director, officer, agent or employee. (d) No Impairment . Nothing contained in Section 1.1(a) or (b) shall impair any right of any Person to exercise any right (including any right to indemnification) or power under, or enforce, the Distribution Agreement, any Ancillary Agreements (including this Agreement), or any of the agreements set forth on Schedule 1, which agreements on Schedule 1 are expressly excluded from the releases in Section 1.1(a) and (b). In addition, nothing contained in Section 1.1(a) or Section 1.1(b) shall release any Person from: (i) any Liability for the sale, lease, construction or receipt of goods, property or services purchased, obtained or used in the ordinary course of business by a member of one Group from a member of the other Group prior to the Effective Time; (ii) any Liability for unpaid amounts for products or services or refunds owing on products or services due on a value-received basis for work done by a member of one Group at the request or on behalf of a member of another Group; and (iii) any Liability provided in or resulting from any other contract or understanding that is entered into after the Effective Time between any Party (and/or a member of such Party' s Group), on the one hand, and any other Party (and/or a member of such Party' s Group), on the other hand. (e) No Actions as to Released Claims . TSYS (on its behalf and on behalf of the members of its Group) agrees not to make any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or any indemnification, against Synovus, or any other Person released pursuant to Section 1.1(a), with respect to any Liabilities released pursuant to Section 1.1(a). Synovus (on its behalf and on behalf of the members of its Group) agrees not to make any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or any indemnification, against TSYS or any other Person released pursuant to Section 1.1(b), with respect to any Liabilities released pursuant to Section 1.1(b). If either Party (including any director, officer, or employee of a Party) initiates any Action with respect to claims released under Section 1.1, the Party must indemnify the other Party (or the relevant Indemnitee) in accordance with Section 1.2 or 1.3, as applicable.

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(f) Further Instruments . At any time, at the request of any other Party, each Party shall execute and deliver releases reflecting the provisions hereof. Section 1.2. Indemnification by TSYS . Except as otherwise provided in this Agreement, TSYS shall indemnify, defend (or, where applicable, pay the defense costs for) and hold harmless the Synovus Indemnitees from and against any and all Liabilities suffered or incurred by a Synovus Indemnitee that relate to, arise out of or result from any of the following items (without duplication): (i) the TSYS Business; and (ii) any breach by TSYS or a member of the TSYS Group of the Distribution Agreement or any of the Ancillary Agreements (unless such Ancillary Agreement expressly provides for separate indemnification therein, in which case any such indemnification claims shall be made thereunder). Section 1.3. Indemnification by Synovus . Except as otherwise provided in this Agreement, Synovus shall indemnify, defend (or, where applicable, pay the defense costs for) and hold harmless the TSYS Indemnitees from and against any and all Liabilities suffered or incurred by a TSYS Indemnitee that relate to, arise out of or result from any of the following items (without duplication): (i) the Synovus Business; and (ii) any breach by Synovus or a member of the Synovus Group of the Distribution Agreement or any of the Ancillary Agreements (unless such Ancillary Agreement expressly provides for separate indemnification therein, in which case any such indemnification claims shall be made thereunder). Section 1.4. Procedures for Defense, Settlement and Indemnification (a) Notice of Claims . An Indemnitee shall give the Indemnifying Party notice of any matter that an Indemnitee has determined has given or could give rise to a right of indemnification under this Agreement (other than a Third Party Claim which shall be governed by Section 1.4(b)), within twenty-one (21) calendar days of such determination. Any such notice shall describe in reasonable detail the Liability alleged to give rise, or giving rise, to the indemnification, including stating the amount of the Liability claimed as then-known or reasonably estimated, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed by such Indemnitee or arises. Notwithstanding the foregoing, the delay or failure of any Indemnitee or other Person to give notice as provided in this Section 1.4(a) shall not relieve the related Indemnifying Party of its obligations under this Article I, except to the extent that such Indemnifying Party is actually and substantially prejudiced by such delay or failure to give notice. (b) Third Party Claims . If a Synovus Indemnitee or a TSYS Indemnitee (as applicable) (an " Indemnitee" ) shall receive notice or otherwise learn of the assertion by a Person (including any Governmental Authority) of any claim or of the commencement by any such Person of any Action against it (collectively, a " Third Party Claim" ) with respect to which a party hereunder (an

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" Indemnifying Party" ) may be obligated to provide indemnification to such Indemnitee pursuant to Section 1.2 or 1.3, such Indemnitee shall give such Indemnifying Party written notice thereof within twenty-one (21) calendar days after becoming aware of such Third Party Claim. Any such notice shall describe the Third Party Claim in reasonable detail, including the amount of the Liability claimed as then-known or reasonably estimated, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed by such Indemnitee or arises. Notwithstanding the foregoing, the delay or failure of any Indemnitee or other Person to give notice as provided in this Section 1.4(b) shall not relieve the related Indemnifying Party of its obligations under this Article I, except to the extent that such Indemnifying Party is actually and substantially prejudiced by such delay or failure to give notice. (c) Defense By Indemnifying Party . Except in the case of a Third Party Claim which seeks injunctive relief, declaratory judgment or other nonmonetary relief against an Indemnitee, an Indemnifying Party may elect, at its cost, risk and expense, to assume the defense of such Third Party Claim, with counsel reasonably satisfactory to the Indemnitee seeking indemnification. After timely notice in writing from the Indemnifying Party (which notice shall specify any reservations or exceptions) to the Indemnitee of such election to assume the defense of a Third Party Claim, such Indemnitee shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise, or settlement thereof, but the Indemnifying Party shall not be liable to such Indemnitee for any legal or other expenses incurred by Indemnitee in connection with the defense thereof. The Indemnitee agrees to cooperate in all reasonable respects with the Indemnifying Party and its counsel in the defense against any Third Party Claim. The Indemnifying Party, the Indemnitee and their respective counsels shall cooperate in good faith with any insurance carriers which are providing, or may provide, them with coverage with respect to such Third Party Claim. The Indemnifying Party shall be entitled to compromise or settle any Third Party Claim as to which it is providing indemnification and which includes a full release of the Indemnitee, which compromise or settlement shall be made only with the written consent of the Indemnitee, such consent not to be unreasonably withheld or delayed. (d) Defense by Indemnitee. If an Indemnifying Party does not elect to assume the defense of a Third Party Claim within twenty-one (21) calendar days after receipt of notice of such claim or if the Indemnifying Party does not have the right to assume the defense of such claim because the claim seeks injunctive relief, declaratory judgment or other nonmonetary relief or otherwise against the Indemnitee and the Indemnitee has provided written notice to that effect to the Indemnifying Party, the Indemnitee will, upon delivering notice to such effect to the Indemnifying Party, have the right to undertake the defense, compromise or settlement of such Third Party Claim on behalf of and for the account of the Indemnifying Party subject to the limitations as set forth in this Section 1.4; provided , however , that no Third Party Claim shall be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. If the Indemnitee assumes the defense of any Third Party Claim, it shall keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall reimburse all such costs and expenses of the Indemnitee in the event it is ultimately determined that the Indemnifying Party is obligated to indemnify the Indemnitee with respect to such Third Party Claim.

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Section 1.5. Additional Matters . (a) Cooperation in Defense and Settlement . With respect to any Third Party Claim that implicates both TSYS and Synovus (or any members of their respective Groups) in a material fashion due to the allocation of any Liabilities, responsibilities for management of defense and related indemnities set forth in the Distribution Agreement, this Agreement or any of the Ancillary Agreements, the Parties agree to cooperate fully and maintain a joint defense (in a manner that will preserve the attorney-client and other privileges with respect thereto) so as to minimize such Liabilities and defense costs associated therewith. The Party that is not responsible for managing the defense of such Third Party Claims shall, upon reasonable request, be consulted with respect to significant matters relating thereto and may retain counsel to monitor or assist in the defense of such claims at its own cost. (b) Substitution . In the event of an Action in which the Indemnifying Party is not a named defendant, if either the Indemnitee or the Indemnifying Party shall so request, the Parties shall endeavor to substitute the Indemnifying Party for the named defendant. If such substitution or addition cannot be achieved for any reason or is not requested, the rights and obligations of the Parties regarding indemnification and the management of the defense of claims as set forth in this Article I shall not be altered. (c) Subrogation . In the event of payment by or on behalf of any Indemnifying Party to or on behalf of any Indemnitee in connection with any Third Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee, in whole or in part based upon whether the Indemnifying Party has paid all or only part of the Indemnitee' s Liability, as to any events or circumstances in respect of which such Indemnitee may have any right, defense or claim relating to such Third Party Claim against any claimant or plaintiff asserting such Third Party Claim or against any other person. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right, defense or claim. (d) Restriction on Access . Nothing in Section 1.5(a) requires TSYS, Synovus or any of their respective Group members (each acting reasonably) to allow another Party to have access to anything that (i) is the subject of any attorney-client, joint defense or other privilege, except where the privilege is shared by TSYS and Synovus, as set forth in the Distribution Agreementand in which case will be governed by the terms of the Distribution Agreement, or (ii) has been prepared for the purpose of, or in contemplation of, TSYS, Synovus or any of their respective Group members, as the case may be, making a claim against another Party under this Agreement, the Distribution Agreement or any other Ancillary Agreement. (e) Not Applicable to Taxes . This Agreement shall not apply to Taxes (which are covered by the Tax Sharing Agreement). (f) Indemnification Payment. Any payment required to be made under this Agreement shall be made promptly (and without any right of set-off), and in any event, not later than ten (10) calendar days after the date on which the amount due is determined or agreed pursuant to this Agreement.

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(g) Transition Services Agreement. No Synovus Indemnitee or TSYS Indemnitee, as applicable, may make any claim with respect to any Liability for indemnification or contribution under this Agreement to the extent that Section 5.2 of the Transition Services Agreement operates to exclude indemnification or contribution for such Liability. Section 1.6. Indemnification Obligations Net of Insurance Proceeds and Other Amounts on a Net-Tax Basis . (a) Any Liability subject to indemnification or contribution pursuant to this Agreement will (i) be net of Insurance Proceeds that actually reduce the amount of the Liability, (ii) be net of any proceeds received by the Indemnitee from any third party for indemnification for such Liability that actually reduce the amount of the Liability (" Third Party Proceeds" ) and (iii) will be determined on a Net-Tax Basis. Accordingly, the amount which any Indemnifying Party is required to pay pursuant to this Agreement to any Indemnitee pursuant to this Agreement will be reduced by any Insurance Proceeds or Third Party Proceeds theretofore actually recovered by or on behalf of the Indemnitee in respect of the related Liability. If an Indemnitee receives a payment required by this Agreement from an Indemnifying Party in respect of any Liability (an " Indemnity Payment" ) and subsequently receives Insurance Proceeds or Third Party Proceeds, then the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payment received over the amount of the Indemnity Payment that would have been due if the Insurance Proceeds or Third Party Proceeds had been received, realized or recovered before the Indemnity Payment was made. (b) An insurer who w
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