Contract
Exhibit
4.24
INDEMNITY
AND EXCULPATION
agreement
THIS
AGREEMENT, dated as of August 1, 2005, is between XTL Biopharmaceuticals
Ltd.,
an Israeli company with its principal offices in Kiryat Xxxxxxxx Xxxxxxx
Xx,
Xxxx 0, xxxxx xxxxx, Xxx Xxxxx, Xxxxxx (the “Company”),
and
_______________________, and individual whose address is
_____________________________________________________________ (the “Indemnitee”).
WHEREAS,
the
Indemnitee is an Office Holder of the Company (as defined below);
WHEREAS,
both
the
Company and Indemnitee recognize the increased risk of litigation and other
claims being asserted against Office Holders of a public company;
WHEREAS,
the
Articles of Association of the Company authorize the Company to indemnify
Office
Holders; and
WHEREAS,
in
recognition of Indemnitee’s need for substantial protection against personal
liability in order to assure Indemnitee’s continued service to the Company in an
effective manner and Indemnitee’s reliance on the aforesaid Articles of
Association and, in part, to provide Indemnitee with specific contractual
assurance that the protection promised by the Articles of Association will
be
available to Indemnitee (regardless of, among other things, any amendment
to or
revocation or any change in the composition of the Company’s Board of Directors
or the Company’s management or acquisition of the Company), the Company wishes
to provide in this Agreement for the indemnification of and the advancing
of
expenses (whether partial or complete) to Indemnitee to the fullest extent
permitted by law and as set forth in this Agreement.
NOW,
THEREFORE,
in
consideration of the foregoing premises and intending to be legally bound
hereby, the parties hereto agree as follows:
1. CERTAIN
DEFINITIONS
1.1
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Expenses:
includes reasonable costs of litigation, including attorney’s fees,
expended by the Indemnitee or for which the Indemnitee has been
charged by
a court. Expenses shall also include, without limitation and to
the
fullest extent permitted by applicable law, all expenses reasonably
incurred in defending any claim (including investigation and
pre-litigation negotiations) and any security or bond that the
Indemnitee
may be required to post in connection with an Indemnifiable Event
(as
defined below).
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1.2
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Office
Holder:
as such term is defined in the Israeli Companies Law,
5759-1999.
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2. INDEMNIFICATION
AND ADVANCEMENT OF EXPENSES
2.1
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The
Company hereby undertakes to indemnify the Indemnitee to the fullest
extent permitted by applicable law, for any liability and Expense
that may
be imposed on Indemnitee, up to an aggregate of $4million, due
to an act
performed or failure to act by him in his capacity as an Office
Holder of
the Company or any subsidiary of the Company or any entity in which
Indemnitee serves as an Office Holder at the request of the Company
either
prior to or after the date hereof for (the following shall be hereinafter
referred to as “Indemnifiable
Events”):
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2.1.1
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monetary
liability imposed on the
Indemnitee
in
favour of a third party in a judgment (which third parties include,
without limitation and to the fullest extent permitted by applicable
law,
any governmental entity), including a settlement or an arbitration
award
confirmed by a court, for an act that the
Indemnitee
performed by virtue of being an Office Holder of the Company;
and
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2.1.2
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reasonable
costs of litigation, including attorneys’ fees, expended by the
Indemnitee
or
for which the Indemnitee has been charged by a court, in an action
brought
against the Indemnitee by or on behalf of the Company or a third
party, or
in a criminal action in which the Indemnitee was found innocent,
or in a
criminal offence in which the Indemnitee was convicted and in which
a
proof of criminal intent is not required.
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2.2.
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The
indemnification undertaking made by the Company shall be only with
respect
to such events as are described in Schedule A attached hereto.
The maximum
amount payable by the Company under all indemnification agreements
with
all the non-Executive Directors of the Company shall not exceed
four
million dollars measured promptly after receipt by the Indemnitee
of
notice of the commencement of any action, suit or proceeding to
be made
against the Company.
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2.3
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If
so requested by the Indemnitee, the Company shall advance an amount
(or
amounts) estimated by it to cover Indemnitee’s reasonable litigation
Expenses with respect to which the Indemnitee is entitled to be
indemnified under Sections 2.1 and 2.2
above.
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2.4
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The
Company’s obligation to indemnify the Indemnitee and advance Expenses in
accordance with this Agreement shall be for such period as the
Indemnitee
shall be subject to any possible claim or threatened, pending or
completed
action, suit or proceeding or any inquiry or investigation, whether
civil,
criminal or investigative, arising out of the Indemnitee’s service in the
foregoing positions, whether or not the Indemnitee is still serving
in
such positions.
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3. GENERAL
LIMITATIONS ON INDEMNIFICATION
If,
when
and to the extent that the Indemnitee would not be permitted to be so
indemnified under applicable law, the Company shall be entitled to be reimbursed
by the Indemnitee (who hereby agrees to reimburse the Company) for all such
amounts theretofore paid (unless the Indemnitee has commenced legal proceedings
in a court of competent jurisdiction to secure a determination that the
Indemnitee should be indemnified under applicable law, in which event the
Indemnitee shall not be required to so reimburse the Company until a final
judicial determination is made with respect thereto as to which all rights
of
appeal therefrom have been exhausted or lapsed) and shall not be obligated
to
indemnify or advance any additional amounts to the Indemnitee (unless there
has
been a determination by a court or competent jurisdiction that the Indemnitee
would be permitted to be so indemnified under this Agreement).
2
The
Company undertakes that in the event of a Change in Control, the Company’s
obligations under this Agreement shall continue to be in effect following
such
Change in Control, and the Company shall take all necessary actions to ensure
that the party acquiring control of the Company shall independently undertake
to
continue in effect this Agreement, to maintain the provisions of the Articles
of
Association allowing indemnification and to indemnify Indemnitee in the event
that the Company shall not have sufficient funds or otherwise shall not be
able
to fulfil its obligations hereunder.
“Change
of Control” means any merger or consolidation of the Company with or into
another entity, other corporate reorganization, sale of control, or any
transaction in which all or substantially all of the assets or shares of
the
Company are sold.
4. NO
WAIVER
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. Any waiver shall be in
writing.
5. SUBROGATION
In
the
event of payment under this Agreement, the Company shall be subrogated to
the
extent of such payment to all of the rights of recovery of Indemnitee, who
shall
execute all papers required and shall do everything that may be necessary
to
secure such rights, including the execution of such documents necessary to
enable the Company effectively to bring suit to enforce such
rights.
6. REIMBURSEMENT
The
Company shall not be liable under this Agreement to make any payment in
connection with any claim made against the Indemnitee to the extent the
Indemnitee has otherwise actually received payment (under any insurance policy
or otherwise) of the amounts otherwise indemnifiable hereunder. Any amounts
paid
to the Indemnitee under such insurance policy or otherwise after the Company
has
indemnified the Indemnitee for such liability or Expense shall be repaid
to the
Company promptly upon receipt by Indemnitee.
7. EFFECTIVENESS
SUBJECT
TO THE RECEIPT OF ALL THE REQUIRED APPROVALS IN ACCORDANCE WITH THE ISRAELI
LAW,
INCLUDING THE APPROVALS OF THE BOARD OF DIRECTORS AND THE SHAREHOLDERS OF
THE
COMPANY, THIS AGREEMENT SHALL BE IN FULL FORCE AND EFFECT AS OF THE DATE
HEREOF.
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8. NOTIFICATION
AND DEFENSE OF CLAIM
Promptly
after receipt by the Indemnitee of notice of the commencement of any action,
suit or proceeding, the Indemnitee will, if a claim in respect thereof is
to be
made against the Company under this Agreement, notify the Company of the
commencement hereof; but the omission so to notify the Company will not relieve
the Company from any liability which it may have to the Indemnitee otherwise
than under this Agreement. With respect to any such action, suit or proceeding
as to which the Indemnitee notifies the Company of the commencement thereof
and
without derogating from Section 2.1:
The
Company will be entitled to participate therein at its own expense;
8.1
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To
the extent that it may wish, the Company jointly with any other
indemnifying party similarly notified will be entitled to assume
the
defence thereof, with counsel reasonably satisfactory to the Indemnitee,
provided, however, that the Company will not be entitled to do
so if
Indemnitee shall have reasonably concluded that there may be a
conflict of
interest between the Company and the Indemnitee in the conduct
of the
defence of such action.
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8.2
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The
Indemnitee shall have the right to employ his or her own counsel
in such
action, suit or proceeding at the expense of the
Company.
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8.3
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The
Company shall not be liable to indemnify the Indemnitee under this
Agreement for any amounts paid in settlement of any action or claim
effected without its prior written consent - not to be unreasonably
withheld. The Company shall not settle any action or claim in any
manner
that would impose any penalty, liability or limitation on the Indemnitee
without the Indemnitee’s prior written consent. Neither the Company nor
the Indemnitee will unreasonably withhold their consent to any
proposed
settlement.
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9. EXCULPATION
The
Company hereby exempts the Indemnitee, to the fullest extent permitted by
law,
from any liability for damages caused as a result of the Indemnitee’s breach of
the duty of care to the Company, provided that the Indemnitee shall not be
exempt with respect to any action or omission as to which, under applicable
law,
the Company is not entitled to exculpate the Indemnitee.
10. NON-EXCLUSIVITY
The
rights of the Indemnitee hereunder shall not be deemed exclusive of any other
rights the Indemnitee may have under the Company’s Articles of Association or
applicable law or otherwise, and to the extent that during the indemnification
period the rights of the then existing Office Holders are more favourable
to
such Office Holders than the rights provided thereunder or under this Agreement
to the Indemnitee, the Indemnitee shall be entitled to the full benefits
of such
more favourable rights.
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11. BINDING
EFFECT
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 or assets of the Company, spouses,
heirs and personal and legal representatives. This Agreement shall continue
in
effect regardless of whether Indemnitee continues to serve as an Office Holder
of the Company or of any other enterprise at the Company’s request, provided
that the claim for indemnification relates to an Indemnifiable
Event.
12. SEVERABILITY
The
provisions of this Agreement shall be severable in the event that any provision
hereof (including any provision within a single section, paragraph or sentence)
is 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.
13. GOVERNING
LAW
This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of Israel.
14. ENTIRE
AGREEMENT AND TERMINATION
This
Agreement represents the entire agreement between the parties and supersedes
any
other agreements, contracts or understandings between the parties, whether
written or oral, with respect to the subject matter of this Agreement. No
supplement, modification, amendment, termination or cancellation of this
Agreement shall be effective unless in writing and signed by both parties
hereto.
Name:
_________________________________
Date:
_________________________________
Signature:
______________________________
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Non-Executive
Director
Name:
_________________________________
Date:
__________________________________
Signature:
______________________________
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Schedule
A
1.
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Negotiations,
execution, delivery and performance of agreements on behalf of
the
Company
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2.
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Anti-competitive
acts and acts of commercial wrongdoing
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3.
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Acts
in regard to invasion of privacy including with respect to databases
and
acts in regard of slander
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4.
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Acts
in regard to copyrights, patents, designs and any other intellectual
property rights, and acts in regard to defects in the Company’s products
or services
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5.
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Approval
of corporate actions including the approval of the acts of the
Company’s
management, their guidance and their supervision
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6.
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Claims
of failure to exercise business judgment and a reasonable level
of
proficiency, expertise and care in regard to the Company’s business
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7.
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Claims
relating to the offering of securities, claims relating to violations
of
securities laws of any jurisdiction and claims arising out of the
Company’s status as a publicly-traded company, including, without
limitation, fraudulent disclosure claims, failure to comply with
SEC
disclosure rules and other claims relating to relationships with
investors
and the investment community
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8.
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Violations
of securities laws of any jurisdiction, including without limitation,
fraudulent disclosure claims and other claims relating to relationships
with investors and the investment community
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9.
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Violations
of laws requiring the Company to obtain regulatory and governmental
licenses, permits and authorizations in any
jurisdiction
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10.
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Claims
in connection with publishing or providing any information, including
any
filings with governmental authorities, on behalf of the Company
in the
circumstances required under applicable laws
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11.
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Violations
of any law or regulation governing domestic and international
telecommunications in any
jurisdiction
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