Exhibit 4.12
____________
Dear ________,
SUBJECT: INDEMNIFICATION
Top Image Systems Ltd. (the
“Company”) has decided that it is in its best interests to retain and
attract as directors and officers the most capable persons available, and such persons are
becoming more reluctant to serve companies unless they are provided with adequate
protection through insurance and indemnification in connection with such service.
You are a director and/or an officer
of the Company serving as an “office holder” as such term is defined in the
Israeli Companies Law, 1999 (“Office Holder”) and in order to enhance
your continued service to the Company in an effective manner, the Company desires to
provide hereunder for your indemnification to the fullest extent permitted by law.
The audit committee of the Company
(the “Audit Committee”) board of directors of the Company (the
“Board”) and the shareholders of the Company (the
“Shareholders”) have resolved that the Company shall indemnify you as
detailed below.
NOW, THEREFORE, in
consideration of you continuing to serve the Company, the Company hereby undertakes to
indemnify you as follows:
| 1. |
Indemnification. The Company hereby undertakes to indemnify
you, to the maximum extent permitted by applicable law and the Company’s
Articles of Association, for all liabilities, losses, damages, costs and
expenses (all referred to as “Damages”) incurred by or asserted
against you relating to one or more of the events set out in Annex A to
this letter (hereinafter: “Indemnifiable Events”), up to
the amount determined in Section 5 below, and provided that the Damages result
from one of the following: |
| 1.1. |
any financial obligation imposed on you in favor of another person by a court
judgment, including a compromise judgment or an arbitrator’s award approved
by a court, or to the extent permitted by law and subject to approval by the
necessary organs of the company a settlement approval by the Company with regard
to a claim against you, in respect of any act or omission (“action”)
taken by you in your capacity as a director, officer, and/or employee of the
Company; and, |
| 1.2. |
all reasonable litigation expenses, including attorney’s fees, expended by
you or charged to you by a court in a proceeding or investigation instituted
against you by an authority authorized to conduct an investigation or
proceeding, which concluded without criminal charges being filed or without a
fine being imposed in lieu of criminal prosecution, or which concluded without
charges being filed but with a fine imposed regarding a crime which does not
require proof of criminal intent, all in respect of actions taken by you in your
capacity as a director, officer, and/or employee of the Company. |
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| |
The
above indemnification will also apply to any action (or omission) taken by you in your
capacity as a director, officer and/or employee of any other company controlled, directly
or indirectly, by the Company (a “Subsidiary”) or in your capacity as a
director, or observer at board of directors’ meetings, of a company not controlled
by the Company but where your appointment as a director or observer results directly from
the Company’s holdings in such company (“Affiliate”). |
| 2. |
Without derogating from the aforesaid, the said indemnity shall not apply
with respect to: |
| |
2.1. |
Breach
of your fiduciary duty to the Company except where you acted in good faith and
with a reasonable basis to assume that the action in question would not harm
the interests of the Company; |
| |
2.2. |
Breach
of your duty of care that is either intentional or reckless but excluding a
breach of your duty of care that was committed negligently; |
| |
2.3. |
An
action (or omission) taken (or not taken) by you with the intent of unlawfully
realizing personal gain; |
| |
2.4. |
A
fine or penalty imposed upon you; |
| |
2.5. |
A
counterclaim made by the Company or in its name in connection with a claim
against the Company filed by you. |
| |
2.6. |
Any
other action and/or circumstances for which the law does not allow
indemnification. |
| 3. |
The Company will make available all amounts needed in accordance with paragraph
1 above on the date on which such amounts are first payable by you (“Time
of Indebtness”), and with respect to items referred to in paragraph 1.2
above, even prior to a court decision. Advances given to cover legal expenses in
criminal proceedings will be repaid by you to the Company if you are found
guilty (other than with respect to criminal proceedings regarding a crime which
does not require mens rea). Other advances will be repaid by you to the Company
if it is determined that you are not lawfully entitled to such indemnification. |
| |
As
part of the aforementioned undertaking, the Company will make available to you any
security or guarantee that you may be required to post in accordance with an interim
decision given by a court or an arbitrator, including for the purpose of substituting
liens imposed on your assets. |
| 4. |
The
Company will indemnify you even if at the relevant Time of Indebtness you no
longer hold the position leading to the liability for which indemnification is
sought hereunder, provided that the obligations are in respect of actions taken
by you while you were a director, officer, employee and/or board observer, as
aforesaid, and in such capacity, including if taken prior to the above
resolutions. |
| 5. |
The total amount of indemnification that the Company undertakes towards you for
the matters and in the circumstances described herein, in the aggregate, shall
not exceed an amount equal to five million US Dollars (US$5,000,000). |
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| |
In
the event that the Company is required to extend indemnification to any of its Office
Holders, the Maximum Amount (or the balance thereof, if already partly disbursed) shall
be divided among the Office Holders entitled to indemnification, pro rata, in
accordance with the Damages incurred by each Office Holder and indemnifiable hereunder
and the total amount of Damages incurred by all Office Holders and indemnifiable
hereunder, all with respect to the same Indemnifiable Event(s). |
| 6. |
The
Company will not indemnify you for any liability with respect to which you
have received payment by virtue of an insurance policy or another
indemnification agreement other that for amounts, which are in excess of
the amounts actually paid by you pursuant to any such insurance policy or
other indemnity agreement (including deductible amounts not covered by
insurance policies) to which you are entitled to indemnification
hereunder. |
| 7. |
Subject
to the provisions of paragraphs 5 and 6 above, the indemnification will,
in each case, cover all sums of money (100%) that you will be obligated to
pay, in circumstances for which indemnification is permitted under the law
and the Articles of Association and which is covered by this undertaking. |
| 8. |
The
Company will be entitled to any amount collected from a third party in
connection with liabilities indemnified hereunder. |
| 9. |
In
all Indemnification Events indemnification will be subject to the following: |
| |
9.1. |
You
shall promptly notify the Company of any legal proceedings initiated against
you and of all possible and/or threatened and/or circumstances that you
suspect give rise to the initiation of legal proceedings without delay
following your first becoming aware thereof, and that you deliver to the
Company, or to such person as it shall advise you, without delay all
documents you receive in connection with these proceedings. Failure to
timely notify the Company of any proceedings shall not relieve the Company
of its indemnification obligations except to the extent the Company or its
ability to defend the action or mitigate the liabilities related thereto
are affected by such delay. |
| |
9.2. |
Other
that with respect to proceedings that have been initiated against you by
the Company or in its name, the Company shall be entitled to undertake the
conduct of your defense in respect of such legal proceedings and/or to
hand over the conduct thereof to any attorney which the Company may choose
for that purpose, except to an attorney who is not, upon reasonable
grounds, acceptable to you. |
| |
The
Company and/or the attorney as aforesaid shall be entitled, within the context of the
conduct as aforesaid, to conclude such proceedings, as it shall see fit, including by way
of compromise. At the request of the Company, you shall execute all documents required to
enable the Company and/or its attorney as aforesaid to conduct your defense in your name,
and to represent you in all matters connected therewith, in accordance with the aforesaid. |
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| |
For
the avoidance of doubt, in the case of criminal proceedings the Company and/or its
attorney as aforesaid will not have the right to plead guilty in your name or to agree to
a plea-bargain in your name without your consent. Furthermore, in a civil proceeding
(whether before a court or as a part of a compromise arrangement), the Company and/or its
attorney will not have the right to admit to any occurrences that are not indemnifiable
pursuant to this Letter of Indemnification and/or pursuant to law, or to settle any claim
that contains any admission on your behalf or does not contain an unconditional release
of all claims against you without your consent, which consent cannot be unreasonably
withheld. However, the aforesaid will not prevent the Company and/or its attorneys as
aforesaid, to come to a financial arrangement with a plaintiff in a civil proceeding
without your consent so long as such arrangement will not be an admittance of an
occurrence not indemnifiable pursuant to this Letter of Indemnification and/or pursuant
to law. |
| |
9.3. |
You
will fully cooperate with the Company and/or any attorney as aforesaid in
every reasonable way as may be required of you within the context of their
conduct of such legal proceedings, including but not limited to the
execution of power(s) of attorney and other documents, provided that the
Company shall cover all costs incidental thereto such that you will not be
required to pay the same or to finance the same yourself. |
| |
9.4. |
If,
in accordance with paragraph 9.2, the Company has taken upon itself the
conduct of your defense, the Company will have no liability or obligation
pursuant to this Letter of Indemnification or the above resolutions to
indemnify you for any legal expenses, including any legal fees, that you
may expend in connection with your defense, except to which the Company in
its absolute discretion shall agree, unless, in the reasonable judgment of
counsel for the Company, an actual or potential conflict of interests
exists in the representation by a single counsel of you and the Company,
in which case, the indemnification provided for hereunder shall cover the
reasonable fees and expenses of a single counsel (in addition to the
counsel for the Company) reasonably acceptable to the Company. |
| |
9.5. |
The
Company will have no liability or obligation pursuant to this Letter of
Indemnification or above resolutions to indemnify you for any amount
expended by you pursuant to any compromise or settlement agreement reached
in any suit, demand or other proceeding as aforesaid without the Company’s
consent to such compromise or settlement. The Company’s consent to
any compromise or settlement shall not be unreasonably withheld. |
| |
9.6. |
That,
if required by law, the Company’s authorized organs will consider a
specific request for indemnification and the amount thereof and will
determine if the event entitles you for indemnification and the amount
thereof in accordance with the requirements of the law. |
| 10. |
This
letter is issued after receipt by the Company of all required approvals
under the law and the Articles of Association of the Company. Should any
additional approval be required, the Company will exert its best effort to
obtain such approval. |
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| 11. |
For
the avoidance of doubt, it is hereby clarified that nothing contained in
this Letter of Indemnification or in the above resolutions derogate from
the Company’s right to indemnify you post factum for any amounts
which you may be obligated to pay as set forth in paragraph 1 above
without the limitations set forth in paragraphs 5 and 6 above. The
aforesaid shall however not be construed as an obligation of the Company
to indemnify you after the fact. |
| 12. |
If
any undertaking included in this Letter of Indemnification is held invalid or
unenforceable, such invalidity or unenforceability will not affect any of
the other undertakings, which will remain in full force and effect.
Furthermore, if such invalid or unenforceable undertaking may be modified
or amended so as to be valid and enforceable as a matter of law, such
undertakings will be deemed to have been modified or amended, and any
competent court or arbitrator are hereby authorized to modify or amend
such undertaking, so as to be valid and enforceable to the maximum extent
permitted by law. |
| 13. |
This
Letter of Indemnification and the agreement herein shall be governed by,
and construed and enforced in accordance with the laws of the State of
Israel, unless in contradiction with the Company’s undertakings
according to any other law including the Securities law of the United
States of America. |
Signature:
________________
Recipient’s Name:
_________________
Position:_________________________
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Annex A
Subject to applicable law, following
is a list of acts and omissions, which the Company has deemed to be foreseen liabilities
for the purposes of the Letter of Indemnification:
| 1. |
Participation
and/or non participation at the Company’s and subsidiaries’ board
meetings and at the meetings of any of the committees of the Board of the
Company or any subsidiary, including bona fide expression of opinion
and/or voting and/or abstention from voting at the Company’s board or
committees meetings. |
| 2. |
The
Company’s interaction with the tax authorities, the Company’s and
the subsidiaries’ shareholders, employees, creditors and other third
parties, including, but not limited to: |
| |
2.1. |
failure
to remit tax withheld in connection with the Company’s and its
subsidiaries’ employees’ compensation and benefits. |
| |
2.2. |
failure
to remit to third parties any amount deducted from the payments due to the
Company’s employees. |
| |
2.3. |
failure
to pay royalties due to third parties in compliance with the agreement(s)
entered into between the Company and such third parties. |
| |
2.4. |
failure
to pay monetary liabilities to third parties relating to loans received by
the Company. |
| 3. |
Breach
or infringement of intellectual property rights, including, but not
limited to confidential information, patents, copyrights, design rights,
service marks, trade secrets, copyrights, misappropriation of ideas. |
| 4. |
Actions
taken in connection with the Intellectual Property of the Company and its
protection, including the registration or assertion of rights to
intellectual property and the defense of claims relating thereof. |
| 5. |
Actions
in connection with the conduct of clinical trials and/or testing of
products and/or in connection with the sale, license or use of such
products. |
| 6. |
Actions
relating to an offer or issuance of securities of the Company or of an
affiliated company to the public by prospectus or privately by private
placement (as applicable), in Israel or abroad, including the details that
shall be set forth in the documents in connection with execution thereof. |
| 7. |
Actions
and/or reports required by law, regulations or exchange rule, due to the
public sale of the Company’s shares or its quotation on the NASDAQ
SmallCap market. |
| 8. |
Resolutions
and/or actions and/or reports made in the ordinary course of business and
relating to the management of the Company’s business and/or the
business of an affiliated company. |
| 9. |
Resolutions
and/or actions relating to environmental and public health matters of the
Company and/or of an affiliated company. |
| 10. |
Resolutions
and/or actions relating to patents, trademarks, copyrights and other
intellectual property and/or in regard to the violation of the same. |
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| 11. |
Acts
or omissions not covered by product liability insurance. |
| 12. |
Acts
or omissions in connection with the review of financial statements and
accounting policies. |
| 13. |
Resolutions
and/or actions relating to investments in the Company and/or its
subsidiaries and/or affiliated companies and/or the purchase or sale of
assets, including the purchase or sale of companies and/or businesses,
and/or investments in corporate or other entities and/or investments in
traded securities and/or any other form of investment. |
| 14. |
Resolutions
and/or actions relating to employment matters of the Company and/or of an
affiliated company, including but not limited to any claim related to the
approval of compensation to any officer and/or director of the Company. |
| 15. |
Resolutions
and/or actions relating to transactions of the Company and/or of an
affiliated company with others including inter-company transactions, and
clients, contractors, suppliers etc. |
| 16. |
Resolutions
and/or actions relating to the distribution of dividends and/or repurchase
of shares or returns of capital or loans of the Company and/or of an
affiliated company. |
| 17. |
Resolutions
and/or actions relating to tender offers, including actions relating to
delivery of opinions in relation thereto, of the Company and/or of an
affiliated company. |
| 18. |
Resolutions
and/or actions relating to a merger of the company and/or of an affiliated
company, the issuance of shares or securities exercisable into shares of
the Company, changing the share capital of the Company, formation of
subsidiaries, reorganization, liquidation, winding up or sale of all or
part of the business, operations or shares the Company. |
| 19. |
Resolutions
and/or actions relating to the approval of transactions with officers
and/or shareholders of the Company and/or of an affiliated company. |
| 20. |
Acts
or omissions in connection with bodily injury or property damage attributed
to the Company and/or to the Office Holder operating on the Company’s
behalf. |
| 21. |
Act
or omission resulting in the failure to maintain appropriate insurance
and/or inadequate safety measures. |
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