Exhibit 4.19
Form of Indemnification Letter
To: _______________,
______________ 200_
Re: Indemnification
Agreement
Dear Mr/s. ____________,
WHEREAS, it is in the best interest
of ECtel Ltd. (the “Company”) to retain and attract as directors, officers
and/or employees the most capable persons available, and such persons are becoming more
reluctant to serve publicly-held companies unless they are provided with adequate
protection through insurance and indemnification in connection with such service; and
WHEREAS, you are a director, officer
and/or employee of the Company, 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;
NOW, THEREFORE, in consideration of
your continuing to serve the Company, the parties agree as follows:
| |
The Company
hereby undertakes to indemnify you to the maximum extent permitted by applicable law in
respect 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 court, in
respect of any act or omission (“action”) taken or made by you in your capacity
as a director, officer and/or employee of the Company; and |
| |
1.2 |
all
reasonable litigation expenses, including attorneys’ fees, expended by you or
charged to you by a court, in a proceeding instituted against you by the Company or on
its behalf or by another person, or in any criminal proceedings in which you are
acquitted, or in any criminal proceedings regarding a crime which does not require proof
of mens rea (criminal intent) in which you are convicted, all in respect of actions taken
by you in your capacity as an a director, officer and/or employee of the Company. |
| |
The
above indemnification will also apply to any action 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 director meetings, of a company not controlled by the Company but
where your appointment as a director or observer results from the Company’s holdings
in such company (“Affiliate”). |
| 2. |
The
Company will not indemnify you for any amount you may be obligated to pay in
respect of: |
| |
2.1 |
a
breach of fiduciary duty, except for a breach of a fiduciary duty to the Company, a
Subsidiary or an Affiliate while acting in good faith and having reasonable cause to
assume that such act would not prejudice the interests of the Company; |
| |
2.2 |
a
willful breach of the duty of care or reckless disregard for the circumstances or to the
consequences of a breach of the duty of care; |
| |
2.3 |
an
action taken with the intent of unlawfully realizing personal gain; |
| |
2.4 |
a
fine or penalty imposed upon you for an offense; |
| |
2.5 |
a
counterclaim made by the Company or in its name in connection with a claim against the
Company filed by you. |
| 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
Indebtedness”), 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 criminal intent). 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 Indebtedness you are
no longer a director, officer or employee of the Company or of a Subsidiary or
a director or board observer of an Affiliate, 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
indemnification will be limited to the expenses mentioned in paragraph 1.2
(pursuant and subject to paragraph 3 and insofar as indemnification with
respect thereto is not restricted by law or by the provisions of paragraph 2
above) and to the matters mentioned in paragraph 1.1 above insofar as they
result from your actions in the following matters or in connection therewith: |
| |
5.1 |
The
offering of securities by the Company and/or by a shareholder to the public and/or to
private investors or the offer by the Company to purchase securities from the public
and/or from private investors pursuant to a prospectus, agreements, notices, reports,
tenders and/or other proceedings; |
| |
5.2 |
Occurrences
resulting from the Company’s status as a public company, and/or from the fact that
the Company’s securities were offered to the public and/or are traded on a stock
exchange, whether in Israel or abroad; |
| |
5.3 |
Occurrences
in connection with investments the Company and/or Subsidiaries and/or Affiliates make in
other corporations whether before and/or after the investment is made, entering into the
transaction, the execution, development and monitoring thereof, including actions taken
by you in the name of the Company and/or a Subsidiary and/or an Affiliate as a director,
officer, employee and/or board observer of the corporation the subject of the transaction
and the like; |
| |
5.4 |
The
sale, purchase and holding of negotiable securities or other investments for or in the
name of the Company, a Subsidiary and/or an Affiliate; |
| |
5.5 |
Actions
in connection with the merger of the Company, a Subsidiary and/or an Affiliate with or
into another entity; |
| |
5.6 |
Actions
in connection with the sale of the operations and/or business, or part thereof, of the
Company, a Subsidiary and/or an Affiliate; |
| |
5.7 |
Without
derogating from the generality of the above, actions in connection with the purchase or
sale of companies, legal entities or assets, and the division or consolidation thereof; |
| |
5.8 |
Actions
taken in connection with labor relations and/or employment matters in the Company
Subsidiaries and/or Affiliates and trade relations of the Company, Subsidiaries and/or
Affiliates, including with employees, independent contractors, customers, suppliers and
various service providers; |
| |
5.9 |
Actions
in connection with the testing of products developed by the Company, Subsidiaries and/or
Affiliates or in connection with the distribution, sale, license or use of such products; |
| |
5.10 |
Actions
taken in connection with the intellectual property of the Company, Subsidiaries and/or
Affiliates, and its protection, including the registration or assertion of rights to
intellectual property and the defense of claims related to intellectual property; |
| |
5.11 |
Actions
taken pursuant to or in accordance with the policies and procedures of the Company,
Subsidiaries and/or Affiliates, whether such policies and procedures are published or
not. |
| 6. |
The
total amount of Indemnification that the Company undertakes towards all persons
whom it has resolved to indemnify for the matters and in the circumstances
described herein, jointly and in the aggregate, shall not exceed an amount
equal to US$35 million. |
| 7. |
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 than for amounts which are in excess of the amounts actually
paid to you pursuant to any such insurance policy or other indemnity agreement
(including deductible amounts not covered by insurance policies), within the
limits set forth in paragraph 6 above. |
| 8. |
Subject
to the provisions of paragraphs 6 and 7 above, the indemnification will, in
each case, cover all sums of money (100%) that you will be obligated to pay, in
those circumstances for which indemnification is permitted under the law. |
| 9. |
The
Company will be entitled to any amount collected from a third party in
connection with liabilities indemnified hereunder. |
| 10. |
In
all indemnifiable circumstances indemnification will be subject to the
following: |
| |
10.1 |
You
shall promptly notify the Company of any legal proceedings initiated against you and of
all possible or threatened 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. |
| |
Similarly,
you must advise the Company on an ongoing and current basis concerning all events which
you suspect may give rise to the initiation of legal proceedings against you. |
| |
10.2 |
Other
than 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, all 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. |
| |
For
the avoidance of doubt, in the case of criminal proceedings the Company and/or the
attorneys 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
attorneys 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, without your consent.
However, the aforesaid will not prevent the Company and/or its attorneys as aforesaid,
with the approval of the Company, 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. |
| |
10.3 |
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. |
| |
10.4 |
If,
in accordance to paragraph 10.2, 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. |
| |
10.5 |
The
Company will have no liability or obligation pursuant to this Letter of Indemnification
or the 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. |
| |
10.6 |
That,
if required by law, the Company’s authorized organs will consider the request for
indemnification and the amount thereof and will determine if you are entitled to
indemnification and the amount thereof. |
| 11. |
If
for the validation of any of the undertakings in this Letter of
Indemnification any act, resolution, approval or other procedure is
required the Company undertakes to cause them to be done or adopted in a
manner which will enable the Company to fulfill all its undertakings as
aforesaid. |
| 12. |
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. |
| 13. |
If
any undertaking included in this Letter of Undertaking 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. |
| 14. |
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. |
| 15. |
This
Letter of Indemnification cancels any preceding letter of indemnification
that may have been issued to you. |
|
|
Very truly yours,
ECtel Ltd.
Xxxx Xxxxx
Chairman of the Board |
ACKNOWLEDGMENT OF AGREEMENT:
Signature:
____________________________________
Date: _______________________________
