Exhibit 10.12


 


INDEMNIFICATION AGREEMENT


 


This
Indemnification Agreement (“Agreement”) is entered into as of the
       day of
                ,
2010 by and between NetSpend Holdings, Inc., a Delaware corporation (the “Company”),
and
                    
(“Indemnitee”).


 


RECITALS


 


WHEREAS,
highly competent persons have become more reluctant to serve corporations as
directors or in other capacities unless they are provided with adequate
protection through insurance and indemnification against risks of claims and
actions against them arising out of their service to and activities on behalf
of the corporation.


 


WHEREAS,
the Board of Directors of the Company (the “Board”) has determined that,
in order to attract and retain qualified individuals, the Company will attempt
to maintain on an ongoing basis, at its sole expense, liability insurance to
protect persons serving the Company and its subsidiaries from certain
liabilities.  Although the furnishing of
such insurance has been a customary and widespread practice among United
States-based corporations and other business enterprises, the Company believes
that, given current market conditions and trends, such insurance may be
available to it in the future only at higher premiums and with more exclusions.  At the same time, directors, officers, and
other persons in service to corporations or business enterprises are being
increasingly subjected to expensive and time-consuming litigation relating to,
among other things, matters that traditionally would have been brought only
against the Company or business enterprise itself.


 


WHEREAS,
the Amended and Restated Bylaws of the Company (the “Bylaws”) provide
that the Company shall indemnify and advance expenses to all directors and
officers of the Company in the manner set forth therein and to the fullest
extent permitted by applicable law, and the Company’s Third Amended and
Restated Certificate of Incorporation (the “Certificate of Incorporation”)
provides for limitation of liability for directors.  In addition, Indemnitee may be entitled
to indemnification pursuant to the General Corporation Law of the State of
Delaware (“DGCL”).  The
Certificate of Incorporation and the DGCL expressly provide that the
indemnification provisions set forth therein are not exclusive, and thereby
contemplate that contracts may be entered into between the Company and members
of the Board, officers and other persons with respect to indemnification.


 


WHEREAS,
the uncertainties relating to such insurance and to indemnification have
increased the difficulty of attracting and retaining such persons.


 


WHEREAS, Indemnitee
is concerned that the protection available under the Company’s Certificate of
Incorporation and Bylaws and insurance may not be adequate, and may not be
willing to continue to serve as an officer or director of the Company,
especially in the context of the possible sale of the Company, without greater
certainty concerning such protection, and the Company desires Indemnitee to
serve in such capacity and is willing to provide such greater certainty.


 

















 


WHEREAS,
it is reasonable, prudent and necessary for the Company contractually to
obligate itself to indemnify, and to advance expenses on behalf of, such
persons to the fullest extent permitted by applicable law so that they will
serve or continue to serve the Company free from undue concern that they will
not be so indemnified.


 


WHEREAS,
this Agreement is a supplement to and in furtherance of the Bylaws and any
resolutions adopted pursuant thereto and shall not be deemed a substitute therefor,
nor to diminish or abrogate any rights of Indemnitee thereunder.


 


WHEREAS,
the Board has determined that the increased difficulty in attracting and
retaining such persons is detrimental to the best interests of the Company’s
stockholders and that the Company should act to assure such persons that there
will be increased certainty of such protection in the future.


 


NOW,
THEREFORE, in consideration of the premises and the covenants contained herein,
the Company and Indemnitee do hereby covenant and agree as follows:


 


1.             Indemnification.


 


1.1           Indemnification
of Expenses.  If
Indemnitee is, by reason of his Corporate Status, a party to and is successful,
on the merits or otherwise, in any Proceeding, he shall be indemnified against
all Expenses actually and reasonably incurred by him or on his behalf in
connection therewith.  If Indemnitee is
not wholly successful in such Proceeding but is successful, on the merits or
otherwise, as to any Matter in such Proceeding, the Company shall indemnify
Indemnitee against all Expenses actually and reasonably incurred by him or on
his behalf relating to such Matter.  The
termination of any Matter in such a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such Matter.  To the extent that the Indemnitee is, by
reason of his Corporate Status, a witness in any Proceeding, he shall be
indemnified against all Expenses actually and reasonably incurred by him or on
his behalf in connection therewith.


 


1.2           Advances.  In the event of any threatened or pending
Proceeding in which Indemnitee is a party or is involved and that may give rise
to a right of indemnification under this Agreement, following written request
to the Company by Indemnitee, the Company shall promptly pay to Indemnitee
amounts to cover Expenses reasonably incurred by Indemnitee in connection with
such Proceeding in advance of its final disposition upon the receipt by the
Company of (i) a written undertaking executed by or on behalf of
Indemnitee providing that Indemnitee will repay the advance if it shall
ultimately be determined that Indemnitee is not entitled to be indemnified by
the Company as provided in this Agreement and (ii) reasonably satisfactory
evidence as to the amount of such Expenses.


 


1.3           Request
for Indemnification.  To obtain
indemnification, Indemnitee shall submit to the Secretary of the Company a
written claim or request.  Such written
claim or request shall contain sufficient information to reasonably inform the
Company about the nature and extent of the indemnification or advance sought by
Indemnitee.  The Secretary of the Company
shall promptly advise the Board of Directors of such request.


 


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1.4           Determination
of Entitlement; No Change of Control.  If there has been no Change of Control at the
time the request for indemnification is submitted, Indemnitee’s
entitlement to indemnification shall be determined in accordance with Section 145(d) of
the DGCL.  If entitlement to
indemnification is to be determined by Independent Counsel, the Company shall
furnish notice to Indemnitee within ten days after receipt of the request for
indemnification notice specifying the identity and address of Independent
Counsel.  The Indemnitee may, within 14
days after receipt of such written notice, deliver to the Company a written
objection to such selection.  Such
objection may be asserted only on the ground that the Independent Counsel so
selected does not meet the requirements of Independent Counsel and the objection
shall set forth with particularity the factual basis for such assertion.  If there is an objection to the selection of
Independent Counsel, either the Company or Indemnitee may petition the Court
for a determination that the objection is without a reasonable basis or for the
appointment of Independent Counsel selected by the Court.


 


1.5           Determination
of Entitlement; Change of Control.  If there has been a Change of Control at the
time the request for indemnification is submitted, Indemnitee’s entitlement
to indemnification shall be determined in a written opinion by Independent
Counsel selected by Indemnitee. 
Indemnitee shall give the Company written notice advising of the
identity and address of the Independent Counsel so selected.  The Company may, within 14 days after receipt
of such written notice of selection, deliver to the Indemnitee a written
objection to such selection.  Indemnitee
may, within 14 days after the receipt of such objection from the Company, submit
the name of another Independent Counsel and the Company may, within seven days
after receipt of such written notice, deliver to the Indemnitee a written
objection to such selection.  Any
objections referred to in this Section 1.5 may be asserted only on
the ground that the Independent Counsel so selected does not meet the
requirements of Independent Counsel and such objection shall set forth with
particularity the factual basis for such assertion.  Indemnitee may petition the Court for a
determination that the Company’s objection to the first or second selection of
Independent Counsel is without a reasonable basis or for the appointment as
Independent Counsel selected by the Court.


 


1.6           Procedures
of Independent Counsel.  If a
Change of Control shall have occurred before the request for indemnification is
sent by Indemnitee, Indemnitee shall be presumed (except as otherwise
expressly provided in this Agreement) to be entitled to indemnification upon
submission of a request for indemnification in accordance with Section 1.3
hereof, and thereafter the Company shall have the burden of proof to overcome
the presumption in reaching a determination contrary to the presumption.  The presumption shall be used by Independent
Counsel as a basis for a determination of entitlement to indemnification unless
the Company provides information sufficient to overcome such presumption by
clear and convincing evidence or the investigation, review and analysis of
Independent Counsel convinces him by clear and convincing evidence that the
presumption should not apply.


 


Except
in the event that the determination of entitlement to indemnification is to be
made by Independent Counsel, if the person or persons empowered under Section 1.4
or 1.5 hereof to determine entitlement to indemnification shall not have
made and furnished to Indemnitee in writing a determination within 60 days
after receipt by the Company of the request therefor, the requisite
determination of entitlement to indemnification shall be deemed to have been
made and 


 


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Indemnitee
shall be entitled to such indemnification unless Indemnitee knowingly
misrepresented a material fact in connection with the request for
indemnification or such indemnification is prohibited by applicable law.  The termination of any Proceeding or of any
Matter therein, by judgment, order, settlement or conviction, or upon a plea of
nolo contendere or its equivalent, shall not (except as otherwise expressly
provided in this Agreement) of itself adversely affect the right of Indemnitee
to indemnification or create a presumption that Indemnitee did not act in good
faith and in a manner that he reasonably believed to be in or not opposed to
the best interests of the Company, or with respect to any criminal Proceeding,
that Indemnitee had reasonable cause to believe that his conduct was
unlawful.  A person who acted in good
faith and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan of the Company shall
be deemed to have acted in a manner not opposed to the best interests of the
Company.


 


For
purposes of any determination hereunder, a person shall be deemed to have acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Company, or, with respect to any criminal Proceeding,
to have had no reasonable cause to believe his conduct was unlawful, if his
action is based on the records or books of account of the Company or another
enterprise or on information, opinions, reports or statements presented to him
or to the Company by any of the Company’s officers, employees or directors, or
by any other person as to matters the person reasonably believes are in such
other person’s professional or expert competence and who has been selected with
reasonable care by or on behalf of the Company or another enterprise in the
course of their duties or on the advice of legal counsel for the Company or
another enterprise or on information or records given or reports made to the
Company or another enterprise by an independent certified public accountant or
by an appraiser or other expert selected with reasonable care by the Company or
another enterprise.  The term “another
enterprise” as used in this Section 1.6 shall mean any other corporation
or any partnership, limited liability company, association, joint venture,
trust, employee benefit plan or other enterprise for which such person is or
was serving at the request of the Company as a director, officer, employee or
agent.  The provisions of this paragraph
shall not be deemed to be exclusive or to limit in any way the circumstances in
which an Indemnitee may be deemed to have met the applicable standards of
conduct for determining entitlement to rights under this Agreement.


 


1.7           Independent
Counsel Expenses.  The Company
shall pay any and all reasonable fees and expenses of Independent Counsel
incurred acting pursuant to this Agreement and in any Proceeding to which it is
a party or witness in respect of its investigation and written report and shall
pay all reasonable fees and expenses incident to the procedures in which such
Independent Counsel was selected or appointed. 
No Independent Counsel may serve if a timely objection has been made to
his selection until a court has determined that such objection is without a
reasonable basis.


 


1.8           Adjudication.  In the event that (i) a determination is
made pursuant to Section 1.4 or 1.5 hereof that Indemnitee
is not entitled to indemnification under this Agreement; (ii) advancement
of Expenses is not timely made pursuant to Section 1.2 hereof; (iii) Independent
Counsel has not made and delivered a written opinion determining the request
for indemnification (a) within 90 days after being appointed by the Court,
(b) within 90 days after 


 


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objections
to his selection have been overruled by the Court or (c) within 90 days
after the time for the Company or Indemnitee to object to his selection; or (iv) payment
of indemnification is not made within five days after a determination of
entitlement to indemnification has been made or is deemed to have been made
pursuant to Section 1.4, 1.5 or 1.6 hereof, Indemnitee
shall be entitled to an adjudication by the Court of his entitlement to such
indemnification or advancement of Expenses. 
In the event that a determination shall have been made that Indemnitee
is not entitled to indemnification, any judicial proceeding or arbitration
commenced pursuant to this Section 1.8 shall be conducted in all
respects as a de novo trial on the merits and Indemnitee shall not be
prejudiced by reason of that adverse determination.  If a Change of Control shall have occurred,
in any judicial proceeding commenced pursuant to this Section 1.8,
the Company shall have the burden of proving that Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.  If a determination shall have been made or is
deemed to have been made that Indemnitee is entitled to indemnification, the
Company shall be bound by such determination in any judicial proceeding
commenced pursuant to this Section 1.8, or otherwise, unless
Indemnitee knowingly misrepresented a material fact in connection with the
request for indemnification, or such indemnification is prohibited by law.


 


The
Company shall be precluded from asserting in any judicial proceeding commenced
pursuant to this Section 1.8 that the procedures and presumptions
of this Agreement are not valid, binding and enforceable.  If Indemnitee, pursuant to this Section 1.8,
seeks a judicial adjudication to enforce his rights under, or to recover
damages for breach of, this Agreement, and if he prevails therein, then
Indemnitee shall be entitled to recover from the Company, and shall be
indemnified by the Company against, any and all Expenses actually and
reasonably incurred by him in such judicial adjudication.  If it shall be determined in such judicial
adjudication that Indemnitee is entitled to receive part but not all of the
indemnification or advancement of Expenses sought, then the Expenses incurred
by Indemnitee in connection with such judicial adjudication or arbitration
shall be prorated.


 


1.9           Participation
by the Company.  With
respect to any Proceeding: (a) the Company will be entitled to participate
therein at its own expense; (b) except as otherwise provided below, to the
extent that it may wish, the Company (jointly with any other indemnifying party
similarly notified) will be entitled to assume the defense thereof, with
counsel reasonably satisfactory to Indemnitee; and (c) the Company shall
not be liable to indemnify Indemnitee under this Agreement for any amounts paid
in settlement of any action or claim effected without its written consent,
which consent shall not be unreasonably withheld.  After receipt of notice from the Company to
Indemnitee of the Company’s election to assume the defense thereof, the Company
will not be liable to Indemnitee under this Agreement for any legal or other
expenses subsequently incurred by Indemnitee in connection with the defense thereof
other than as otherwise provided below. 
Indemnitee shall have the right to employ his own counsel in such
action, suit, proceeding or investigation but the fees and expenses of such
counsel incurred after notice from the Company of its assumption of the defense
thereof shall be at the expense of Indemnitee unless the employment of counsel
by Indemnitee has been authorized by the Company, or Indemnitee shall have
reasonably concluded that there is a conflict of interest between the Company
and Indemnitee in the conduct of the defense of such action, or the Company
shall not in fact have employed counsel to assume the defense of such action,
in each of which cases the fees and expenses of counsel employed by Indemnitee
shall be 


 


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subject
to indemnification pursuant to the terms of this Agreement.  The Company shall not be entitled to assume
the defense of any Proceeding brought in the name of or on behalf of the
Company or as to which Indemnitee shall have reasonably concluded that there is
a conflict of interest between the Company and Indemnitee in the conduct of the
defense of such action.  The Company
shall not settle any action or claim in any manner which would impose any
limitation or un-indemnified penalty on Indemnitee without Indemnitee’s written
consent, which consent shall not be unreasonably withheld.


 


1.10         Insurance
and Subrogation.  If, at the
time of the receipt by the Company of a notice of a Claim pursuant to this
Agreement, the Company has liability insurance in effect which may cover such
Claim, the Company shall give prompt notice of the commencement of such Claim
to the insurers in accordance with the procedures set forth in the respective
policies.  The Company shall thereafter
take all reasonably necessary or desirable action to cause such insurers to
pay, on behalf of Indemnitee, all amounts payable as a result of such action,
suit, proceeding, inquiry or investigation in accordance with the terms of such
policies.


 


Except
as provided in Section 1.11, the Company shall not be liable under
this Agreement to make any payment of amounts otherwise indemnifiable hereunder
if, but only to the extent that, Indemnitee has otherwise actually
received such payment under any insurance policy, contract, agreement or
otherwise.  Except as provided in Section 1.11,
in the event of any payment hereunder, the Company shall be subrogated to the
extent of such payment to all the rights of recovery of Indemnitee (other than
against the Fund Indemnitors), who shall execute all papers required and take
all action reasonably requested by the Company to secure such rights, including
execution of such documents as are necessary to enable the Company to bring
suit to enforce such rights.


 


1.11         Primacy
of Indemnification.  The Company
hereby acknowledges that Indemnitee has certain rights to indemnification,
advancement of expenses and/or insurance provided by third parties
(collectively, the “Fund Indemnitors”).  The Company hereby agrees (a) that the
Company is the indemnitor of first resort with respect to the Corporate Status
of the Indemnitee (i.e., the Company’s obligations to the Indemnitee are
primary, and any obligation of the Fund Indemnitors to advance expenses or to
provide indemnification for the same expenses or liabilities incurred by
Indemnitee in connection with the Corporate Status of such Indemnitee are
secondary), (b) that the Company shall be required to advance the full
amount of expenses incurred by the Indemnitee and shall be liable for the full
amount of all Expenses, judgments, penalties, fines and amounts paid in
settlement to the extent legally permitted and as required by the terms of this
Agreement or the Company’s certificate of incorporation or bylaws, without
regard to any rights the Indemnitee may have against the Fund Indemnitors, and,
(c) that the Company irrevocably waives, relinquishes and releases the
Fund Indemnitors from any and all claims against the Fund Indemnitors for
contribution, subrogation or any other recovery of any kind in respect
thereof.  The Company further agrees that
no advancement or payment by the Fund Indemnitors on behalf of the Indemnitee
with respect to any claim for which the Indemnitee has sought indemnification
from the Company shall affect the foregoing, and the Fund Indemnitors shall
have a right of contribution and/or be subrogated to the extent of such
advancement or payment to all of the rights of recovery of the Indemnitee
against the Company.  


 


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The
Company and the Indemnitee agree that the Fund Indemnitors are express third
party beneficiaries of the terms of this Section 1.11.


 


1.12         Selection
of Counsel.  In the
event the Company shall be obligated hereunder to pay the Expenses of any
Claim, the Company shall be entitled to assume the defense of such Claim with
counsel approved by Indemnitee, which approval shall not be unreasonably
withheld, delayed or conditioned, upon the delivery to Indemnitee of written
notice of its election so to do.  After
delivery of such notice, approval of such counsel by Indemnitee and the
retention of such counsel by the Company, the Company will not be liable to
Indemnitee under this Agreement for any fees of counsel subsequently incurred
by Indemnitee with respect to the same Claim; provided that,
(i) Indemnitee shall have the right to employ Indemnitee’s counsel in any
such Claim at Indemnitee expense and (ii) if (A) the employment of
counsel by Indemnitee has been previously authorized by the Company,
(B) Indemnitee shall have reasonably concluded that there is a conflict of
interest between the Company and Indemnitee in the conduct of any such defense,
or (C) the Company shall not continue to retain such counsel to defend
such Claim, then the fees and expenses of Indemnitee’s counsel shall be at the
expense of the Company.  The Company
shall have the right to conduct such defense as it sees fit in its sole
discretion; provided, however, that the Company shall not be entitled to settle
any claim against Indemnitee without the consent of the Indemnitee, which
consent shall not be unreasonably withheld, conditioned or delayed, unless the
settlement involves only the payment of monetary relief for which the
Indemnitee will be indemnified and does not include a statement or an admission
of fault or culpability by or on behalf of the Indemnitee.


 


2.             Additional
Indemnification Rights; Nonexclusivity.


 


2.1           Scope.  The Company hereby agrees to indemnify
Indemnitee to the fullest extent permitted by law, notwithstanding that such
indemnification is not specifically authorized by the other provisions of this
Agreement, the Company’s Certificate of Incorporation or the Company’s
Bylaws.  In the event of any change after
the date of this Agreement in any applicable law, statute or rule which
expands the right of a Delaware corporation to indemnify a member of its Board
or an officer, employee, agent or fiduciary, it is the intent of the parties
hereto that Indemnitee shall enjoy by this Agreement the greater benefits
afforded by such change.  In the event of
any change in any applicable law, statute or rule which narrows the right
of a Delaware corporation to indemnify a member of its Board or an officer,
employee, agent or fiduciary, such change, to the extent not otherwise required
by such law, statute or rule to be applied to this Agreement, shall have
no effect on this Agreement or the parties’ rights and obligations hereunder
except as set forth in Section 6.1 hereof.


 


2.2           Nonexclusivity.  The rights of indemnification and advancement
of Expenses as provided by this Agreement shall not be deemed exclusive of any
other rights to which Indemnitee may at any time be entitled to under
applicable law, the Certificate of Incorporation, the Bylaws, any agreement, a
vote of stockholders or a resolution of directors, or otherwise.  The rights to indemnification and advancement
of Expenses provided by, or granted pursuant to, this Agreement shall be deemed
vested at the time a person becomes a director or officer of the Company and no
subsequent amendment, alteration or repeal of this Agreement or any other
provision of the Certificate of Incorporation or the Bylaws shall adversely
affect the rights of any person that is or was a director or officer with
respect to events, actions or


 


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circumstances
occurring, in whole or in part, prior to such amendment, alteration or
repeal.  The provisions of this Agreement
shall continue as to an Indemnitee whose Corporate Status has ceased for any
reason and shall inure to the benefit of his or its heirs, executors,
administrators, successors or assigns. 
Neither the provisions of this Agreement nor those of any agreement to
which the Company is a party shall be deemed to preclude the indemnification of
any person who is not specified in this Agreement as having the right to
receive indemnification or is not a party to any such agreement, but whom the
Company has the power or obligation to indemnify under the provisions of the
DGCL.


 


3.             Partial
Indemnification.  If
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of Expenses incurred in connection with
any Claim, but not, however, for all of the total amount thereof, the Company
shall nevertheless indemnify Indemnitee for the portion of such Expenses to
which Indemnitee is entitled.


 


4.             Mutual
Acknowledgement.  Both the
Company and Indemnitee acknowledge that in certain instances, federal law or
applicable public policy may prohibit the Company from indemnifying its
directors, officers, employees, agents or fiduciaries under this Agreement or
otherwise.  Indemnitee understands and
acknowledges that the Company has undertaken or may be required in the future
to undertake with the Securities and Exchange Commission to submit the question
of indemnification to a court in certain circumstances for a determination of
the Company’s right under public policy to indemnify Indemnitee; provided,
however, that such determination shall in no event affect Indemnitee’s right to
recovery under any insurance policy contemplated by Section 5 hereof.


 


5.             Liability
Insurance.  To the
extent the Company maintains liability insurance applicable to directors,
officers, employees, agents or fiduciaries, Indemnitee shall be covered by such
policies in such a manner as to provide Indemnitee the same rights and benefits
as are accorded to the most favorably insured of the Company’s directors, if
Indemnitee is a director; or of the Company’s officers, if Indemnitee is not a
director of the Company but is an officer; or of the Company’s key employees,
agents or fiduciaries, if Indemnitee is not an officer or director but is a key
employee, agent or fiduciary.


 


6.             Exceptions.  Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:


 


6.1           Excluded Action or Omissions.  To indemnify Indemnitee for Indemnitee’s
acts, omissions or transactions from which Indemnitee or the Indemnitee may not
be relieved of liability under applicable law;


 


6.2           Claims Initiated by Indemnitee.  To indemnify or advance expenses to
Indemnitee with respect to Claims initiated or brought voluntarily by
Indemnitee and not by way of defense, except (i) with respect to actions or
proceedings brought to establish or enforce a right to indemnification under
this Agreement or any other agreement or insurance policy or under the Company’s
Certificate of Incorporation or Bylaws now or hereafter in effect relating to
Claims for Indemnifiable Events, (ii) in specific cases if the Board has
approved the initiation or bringing of such Claim, or (iii) as otherwise
required under Section 145 of the DGCL, regardless 


 


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of
whether Indemnitee ultimately is determined to be entitled to such
indemnification, advance expense payment or insurance recovery, as the case may
be;


 


6.3           Lack of Good Faith.  To indemnify Indemnitee for any expenses
incurred by 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 Indemnitee in such
proceeding was not made in good faith or was frivolous;


 


6.4           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 (the “Exchange Act”),
or any similar successor statute;


 


6.5           Proceeding
by or in the Right of the Company.  To indemnify for judgments, fines and
penalties incurred in connection with the defense or settlement of any Claim by
or in the right of the Company to procure a judgment in its favor (except to
the extent indemnification is permitted under Section 145(b) of the DGCL);


 


6.6           Fraudulent
Conduct.  To indemnify Indemnitee for any Expenses,
judgments, fines or penalties resulting from Indemnitee’s conduct which is
finally adjudged to have been willful misconduct, knowingly fraudulent or deliberately
dishonest; or


 


6.7           Unlawful
Payment.  If a court of competent
jurisdiction finally determines that such payment hereunder is unlawful.


 


7.             Construction
of Certain Phrases.


 


7.1           Company.  References to “Company” shall include, 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, employees, agents or fiduciaries, so that if
Indemnitee is or was a director, officer, employee, agent or fiduciary of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee, agent or fiduciary of
another corporation, partnership, joint venture, employee benefit plan, trust
or other enterprise, Indemnitee shall stand in the same position under the
provisions of this Agreement with respect to the resulting or surviving
corporation as Indemnitee would have with respect to such constituent
corporation if its separate existence had continued.


 


7.2           Definitions.  For purposes of this Agreement:


 


“Change of Control” means a change in control of the Company
after the date Indemnitee acquired his Corporate Status, which shall be deemed
to have occurred in any one of the following circumstances occurring after such
date: (i) there shall have occurred an event that is or would be required to be
reported with respect to the Company in response to Item 6(e) of Schedule 14A
of Regulation 14A (or in response to any similar item on any similar schedule
or form) promulgated under the Exchange Act, if the Company is or were subject
to such reporting requirement; (ii) any “person” (as such 


 


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term
is used in Sections 13(d) and 14(d) of the Exchange Act) shall have become the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 40% or more of the
combined voting power of the Company’s then outstanding voting securities
without prior approval of at least two-thirds of the members of the Board of
Directors in office immediately prior to such person’s attaining such
percentage interest; (iii) the Company is a party to a merger, consolidation,
sale of assets or other reorganization, or a proxy contest, as a consequence of
which members of the Board of Directors in office immediately prior to such
transaction or event constitute less than a majority of the Board of Directors
thereafter; or (iv) during any period of two consecutive years, individuals who
at the beginning of such period constituted the Board of Directors (including,
for this purpose, any new director whose election or nomination for election by
the Company’s stockholders was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of such
period) cease for any reason to constitute at least a majority of the Board of
Directors.


 


“Claim” any threatened, pending or completed action, suit,
proceeding, arbitration or alternative dispute resolution mechanism, or any
inquiry or investigation, whether conducted by the Company or any other party,
that Indemnitee in good faith believes might lead to the institution of any
such action, suit or proceeding, whether civil, criminal, administrative,
investigative or other.


 


“Corporate Status” describes the status of an individual as a
present or former director or officer of the Company, or as a director, officer
or other designated legal representative of any other corporation, partnership,
limited liability company, association, joint venture, trust, employee benefit
plan or other enterprise for which an individual is or was serving as a
director, officer or other designated legal representative at the request of
the Company.


 


“Court” means the Court of Chancery of the State of Delaware or
any other court of competent jurisdiction.


 


“Expenses” shall include 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, or being or preparing to be a witness in
a Proceeding.


 


“Indemnifiable Event” any event or occurrence related to the
fact that Indemnitee is or was a director, officer, employee, agent or
fiduciary of the Company, or is or was serving at the request (express or
implied) of the Company as a director, officer, employee, trustee, agent or
fiduciary of another corporation, partnership, joint venture, employee benefit
plan, trust or other enterprise, or by reason of anything done or not done by
Indemnitee in any such capacity.


 


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“Indemnitee” includes any person who is, or is threatened to be
made, a witness in or a party to any Proceeding by reason of his Corporate
Status.


 


“Independent Counsel” means a law firm, or a member of a law
firm, that is experienced in matters of corporate law and neither presently is,
nor in the five years previous to his selection or appointment has been,
retained to represent: (i) the Company or Indemnitee in any matter material to
either such party or (ii) any other party to the Proceeding giving rise to a
claim for indemnification hereunder.


 


“Matter” is a claim, a material issue or a substantial request
for relief.


 


“Proceeding” includes any action, suit, arbitration, alternate
dispute resolution mechanism, investigation, administrative hearing or any
other proceeding, whether civil, criminal, administrative or investigative, except
one initiated by an Indemnitee pursuant to Section 1.8 hereof to enforce
his rights under this Agreement.


 


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8.             Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.


 


9.             Binding
Effect; Successors and Assigns.  This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors, assigns, including any direct or indirect successor by
purchase, merger, consolidation or otherwise to all or substantially all of the
business and/or assets of the Company, spouses, heirs, and personal and legal
representatives.  The Company shall
require and cause any successor (whether direct or indirect by purchase,
merger, consolidation or otherwise) to all, substantially all, or a substantial
part, of the business and/or assets of the Company, by written agreement in
form and substance satisfactory to Indemnitee, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform if no such succession had taken
place.  This Agreement shall continue in
effect with respect to Claims relating to Indemnifiable Events regardless of
whether Indemnitee continues to serve as a director, officer, employee, agent
or fiduciary of the Company or of any other enterprise at the Company’s
request.


 


10.          Attorneys’
Fees.  In the event
that any action is instituted by Indemnitee under this Agreement or under any
liability insurance policies maintained by the Company to enforce or interpret
any of the terms hereof or thereof, Indemnitee shall be entitled to be paid all
Expenses incurred by Indemnitee with respect to such action, and shall be
entitled to the advancement of Expenses with respect to such action, unless, as
a part of such action, a court of competent jurisdiction over such action
determines that each of the material assertions made by Indemnitee as a basis
for such action was not made in good faith or was frivolous.  In the event of an action instituted by or in
the name of the Company under this Agreement to enforce or interpret any of the
terms of this Agreement, Indemnitee shall be entitled to be paid all Expenses
incurred by Indemnitee in defense of such action (including costs and expenses
incurred with respect to Indemnitee counterclaims and cross-claims made in such
action), and shall be entitled to the advancement of Expenses with respect to
such action, unless, as a part of such action, a court having jurisdiction over
such action determines that each of Indemnitee material defenses to such action
was made in bad faith or was frivolous.


 


11.          Notice.  Promptly after receipt by Indemnitee of
notice of the commencement of any Proceeding, Indemnitee shall, if he
anticipates or contemplates making a claim for indemnification or advancement
of Expenses pursuant to the terms of this Agreement, notify the Company of the
commencement of such Proceeding; provided, however, that any delay in so
notifying the Company shall not constitute a waiver or release by Indemnitee of
rights hereunder and that any omission by Indemnitee to so notify the Company
shall not relieve the Company from any liability that it may have to Indemnitee
otherwise than under this Agreement.  All
notices and other communications required or permitted hereunder shall be in
writing, shall be effective when given, and shall in any event be deemed to be
given (a) five (5) days after deposit with the U.S. Postal Service or other
applicable postal service, if delivered by first class mail, postage prepaid,
(b) upon delivery, if delivered by hand, (c) one business day after the
business day of deposit with Federal Express or similar overnight courier,
freight prepaid, or (d) one day after the business day of delivery by
facsimile transmission, if delivered by facsimile transmission, with copy by
first class mail, postage prepaid, and shall be addressed if to Indemnitee, at
the Indemnitee address as set forth on the Company’s records and if to the 


 


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Company at the address of its principal corporate
offices (attention:  Secretary) or at
such other address as such party may designate by ten (10) days’ advance
written notice to the other party hereto.


 


12.          Consent
to Jurisdiction.  The Company
and Indemnitee each hereby irrevocably consents to the jurisdiction of the
courts of Delaware for all purposes in connection with any action or proceeding
which arises out of or relates to this Agreement.


 


13.          Severability.  The provisions of this Agreement shall be
severable in the event that any of the provisions hereof (including any
provision within a single section, paragraph or sentence) are held by a court
of competent jurisdiction to be invalid, void or otherwise unenforceable, and
the remaining provisions shall remain enforceable to the fullest extent
permitted by law.  Furthermore, to the
fullest extent possible, the provisions of this Agreement (including, without
limitations, each portion of this Agreement containing any provision held to be
invalid, void or otherwise unenforceable, that is not itself invalid, void or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.


 


14.          Choice
of Law.  This
Agreement shall be governed by and its provisions construed and enforced in
accordance with the laws of the State of Delaware, as applied to contracts
between Delaware residents, entered into and to be performed entirely within
the State of Delaware, without regard to the conflict of laws principles
thereof.


 


15.          Amendment
and Termination.  No
amendment, modification, termination or cancellation of this Agreement shall be
effective unless it is in writing signed by both 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
hereof (whether or not similar) nor shall such waiver constitute a continuing
waiver.


 


16.          Integration
and Entire Agreement.  This
Agreement sets forth the entire understanding between the parties hereto and
supersedes and merges all previous written and oral negotiations, commitments,
understandings and agreements relating to the subject matter hereof between the
parties hereto.


 


17.          No
Construction as Employment Agreement.  Nothing contained in this Agreement shall be
construed as giving Indemnitee any right to be retained in the employ of the
Company or any of its subsidiaries.


 


[Signature Page Follows]


 


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IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the date first above written.


 


 


	
  NETSPEND
  HOLDINGS, INC.:

  	
   

  	
  INDEMNITEE:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Name:

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  701
  Brazos Street

  	
   

  	
  Address:

  
	
   

  	
  Suite
  1300

  	
   

  	
   

  
	
   

  	
  Austin,
  TX 78701

  	
   

  	
   

  
					



 


SIGNATURE
PAGE TO INDEMNIFICATION AGREEMENT