DIRECTOR HOLD HARMLESS INDEMNIFICATION AGREEMENT
Exhibit 4.24
This Hold
Harmless and Indemnification Agreement (the “Agreement”) is made as of the
15th day
of January, 2010, by and between DJSP ENTERPRISES, INC., a company incorporated
under the laws of the British Virgin Islands (the “Company”), and
_______________ (the “Director”).
W I T N E S S E T H
WHEREAS,
it is essential to the Company to retain and attract persons qualified to act as
directors; and
WHEREAS,
in order for the Company to attract persons qualified to act as directors, it is
reasonable, prudent and necessary for the Company to contractually obligate
itself (regardless of, among other things, after the date hereof, any amendment
to or revocation of the Company’s organizational documents, any change in the
composition of the Board of Directors of the Company or any transaction,
acquisition related or otherwise, relating to the Company) to hold harmless,
defend and indemnify directors to the fullest extent permitted by the British
Virgin Islands Business Companies Act, 2004 (as amended) (the “Act”) so that
capable persons will serve or continue to serve the Company; and
WHEREAS,
the Director is willing to serve or continue to serve on the condition that the
Director be so treated.
NOW,
THEREFORE, in consideration of the premises and the covenants contained herein,
the Company and the Director do hereby agree as follows:
1. Definitions. The
following terms as used in this Agreement shall have the following respective
meanings:
“Expenses”
means any and all cost, damage, damages, expenses, liabilities, losses,
including actual attorneys’ fees, judgments, penalties, fines, and amounts paid
or to be paid in settlement of any or all Proceedings.
“Proceeding”
means any claim, action, suit or proceeding (or part thereof), whether
arbitration, civil, criminal, administrative or investigative.
2. Services by
Director. The Director agrees to serve as a director of the
Company for so long as the Director is duly elected or appointed or until the
Director’s death, resignation or removal and in all events only for so long as
this Agreement shall be in force and effect.
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3. Indemnification. Subject
to the terms and conditions of this Agreement and to the Act, the Company shall
defend, indemnify and hold harmless the Director to the fullest extent
authorized by any law, as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits
the Company to provide broader indemnification rights than said law permitted
the Company to provide on the date of the execution of this Agreement), against
all Expenses incurred or suffered by the Director in connection with or in any
way relating to any Proceeding in which the Director is or was a party or is
threatened to be made a party or is involved by reason of the fact that the
Director is or was a director, officer or employee of the Company or is or was
serving at the request of the Company as a director, officer, partner, trustee,
administrator, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, including service on the Board of Managers of DAL Group,
LLC, whether the basis of the Proceeding is alleged action in an official
capacity as a director, officer, partner, trustee, administrator, employee or
agent or in any other capacity while serving as a director, officer, partner,
trustee, administrator, employee or agent. Notwithstanding the
foregoing, except as provided in Section 5 hereof with respect to Proceedings to
enforce rights to indemnification, the Company shall indemnify the Director
seeking indemnification in connection with a Proceeding (or part thereof)
initiated by the Director only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Company.
4. Expenses. Subject
to the Act, the right to indemnification conferred under Section 3 hereof shall
include the right to be paid by the Company Expenses incurred in defending any
such Proceeding in advance of its final disposition; provided however, that the
payment of such Expenses incurred by the Director in advance of the final
disposition of a Proceeding shall be made only upon delivery to the Company of
an undertaking, by or on behalf of the Director, to repay all advances if it
shall ultimately be determined by final judicial decision that the Director is
not entitled to indemnification under applicable law under the circumstances
(such undertaking shall be by unlimited general obligation of the Director but
need not be secured).
5. Right of the Director to
Bring Suit. (a) If a claim under Section 3 hereof is not paid
in full by the Company within ten (10) days after written request by the
Director to the Company for payment thereof, the Director may at any time
thereafter bring suit against the Company in any court of competent jurisdiction
to recover the unpaid amount of the claim, and if successful in whole or in
part, the Director shall be entitled to be paid also the expense (inclusive of
attorneys fees and costs, at all levels – pretrial, trial and appellate) of
prosecuting such claim.
(b) In
any action brought by the Director to enforce a right hereunder, or by the
Company to recover payments by the Company of advances, the burden of proof
shall be on the Company.
(c) The
Director shall receive interim payments of expenses pursuant to Section 4 until
it is determined by final judicial decision that the Director is not entitled to
such payments.
(d) It
is the parties’ intention that the Director shall be presumed to be entitled to
indemnification hereunder until it is determined by final judicial decision that
the Director is not entitled to indemnification hereunder and no determination
other than by such a judicial decision to the contrary (including any
determination by its Board of Directors, any committee or subgroup of the Board
of Directors, independent legal counsel, or its shareholders.) shall create a
presumption that Director has not met the applicable standard of
conduct.
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6. Assumption of
Claim. The Company shall assume the defense of any Proceeding
with respect to which indemnification is sought, with counsel satisfactory to
the Director. After such assumption, the Company will not be liable
to the Director under this Agreement for any expenses (including legal expenses)
subsequently incurred by the Director in defending such Proceeding; provided
however, that the Director shall have the right to employ his or her own counsel
in any Proceeding but the fees and expenses of such counsel incurred after
delivery of notice from the Company of its assumption of such defense shall be
at the Director’s expense; and provided however that if (i) the employment of
such counsel by the Director has been previously authorized by the Company, (ii)
the Director shall have reasonably concluded that there may be a conflict of
interest between (A) the Company and the Director or (B) the Director and other
Directors named in the Proceeding in the conduct of any such defense or (iii)
the Company shall not, in fact, have employed counsel to assume the defense of
such action, the fees and expenses of such counsel shall be at the expense of
the Company.
7. Mutual
Acknowledgment. Both the Company and Director acknowledge that
in certain instances, United States law or public policy may override applicable
British Virgin Islands law and prohibit the Company from indemnifying its
directors and officers under this Agreement or otherwise. For
example, the Company and Director acknowledge that the Securities and Exchange
Commission (the “SEC”) has taken the position that indemnification is not
permissible for liabilities arising under certain federal securities laws, and
federal legislation prohibits indemnification for certain ERISA
violations. Director understands and acknowledges that the Company
has undertaken or may be required in the future to undertake with the SEC 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
Director.
8. Non-Exclusivity of
Rights. The rights provided hereunder shall not be deemed
exclusive of any other rights which the Director may be entitled under any
statute, agreement, provision of the Memorandum and Articles of Association of
the Company, or otherwise, and such rights shall continue after the Director
ceases to serve the Company as a director.
9. Severability. In
the event that any provision of this Agreement is determined by a court to
require the Company to do or to fail to do an act which is in violation of
applicable law, such provision shall be limited or modified in its application
to the minimum extent necessary to avoid a violation of law, and, as so limited
or modified, such provision and the balance of this Agreement shall be
enforceable in accordance with their terms.
10. Choice of
Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the British Virgin Islands.
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11. Successors and
Assigns. This Agreement shall be (i) binding upon all
successors and assigns of the Company (including any transferee of all or
substantially all of its assets, any successor by merger or otherwise by
operation of law or any successor pursuant to a migratory merger or other
similar transaction changing the Company’s place of organization (a “Migratory
Merger”)) and (ii) shall be binding on and inure to the benefit of the heirs,
personal representatives, executors and administrators of the
Director. If the Company should engage in a Migratory Merger, the
term “Act” as used in this Agreement shall refer to the laws of the jurisdiction
in which the Company is then organized, but only if said laws permit the Company
to provide broader indemnification rights than the Company was permitted to
provide under this Agreement prior to the Migratory Merger.
12. Amendment. No
amendment, modification, termination or cancellation of this Agreement shall be
effective unless made in writing and signed by each of the parties
hereto. No amendment to or revocation of the Company’s organizational
documents, change in the composition of the Board of Directors of the Company or
any transaction, acquisition related or otherwise, relating to the Company shall
result in or permit the amendment, modification, termination or cancellation of
this Agreement except with the consent of the Director made in writing and
signed by each of the parties hereto.
13. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one
instrument.
IN
WITNESS WHEREOF, the Company and the Director have executed this Agreement as of
the ___ day of ________________, 2010.
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