XFONE
Exhibit
10.78
XFONE
__________,
2006
[name]
[address]
[address]
Dear
Mr.
________:
In
order
to induce you to serve as an officer and/or director of XFONE, Inc. (the
“Corporation”) or one of its subsidiaries and in consideration of your
acceptance and execution hereof, the Corporation hereby agrees to indemnify
you,
your heirs and your executor or administrator according to the terms and
conditions set forth below:
1.
Indemnification.
(a) The
Corporation hereby agrees to indemnify you, to the full extent permitted by
law,
in connection with any threatened, pending or completed action, suit or
proceeding, whether past, present or future, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the
Corporation), to which you were or are a party or to which you were or are
threatened to be made a party by reason of the fact that you were or are a
director, officer, employee or agent of the Corporation, or were or are serving
at the request of the Corporation as a director, officer, employee or agent
of
another corporation, partnership, joint venture, trust, employee benefit plan
or
other enterprise, or by reason of anything done or not done by you in any such
capacity, against any and all reasonable expenses (including fees and expenses
of counsel), judgments, fines and amounts paid in settlement actually incurred
by you in connection with the investigation, defense, appeal or settlement
of
any such action, suit or proceeding if you acted in good faith and in a manner
you believed to be in or not opposed to the best interests of the Corporation,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe your conduct was unlawful.
(b) The
Corporation hereby agrees to indemnify you, to the full extent permitted by
law,
in connection with any threatened, pending or completed action, suit or
proceeding, whether past, present or future, by or in the right of the
Corporation to procure a judgment in its favor to which you were or are a party
by reason of the fact that you were or are a director, officer, employee or
agent of the Corporation, or were or are serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
or
by reason of anything done or not done by you in any such capacity, against
any
and all reasonable expenses (including fees and expenses of counsel), judgments,
fines and amounts paid in settlement actually incurred by you in connection
with
the investigation, defense, appeal or settlement of any such action, suit or
proceeding if you acted in good faith and in a manner you believed to be in
or
not opposed to the best interests of the Corporation; provided that no such
indemnification shall be made in respect of any claim, issue or matter as to
which you shall have been adjudged to be liable for gross negligence or willful
misconduct in the performance of your duties to the Corporation unless and
only
to the extent that the Court of Chancery or the court in which such suit, action
or proceeding was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
you
are fairly and reasonably entitled to indemnification for such amounts which
the
Court of Chancery or such other court shall deem proper.
(c) For
purposes hereof, the termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that you did not act
in
good faith and in a manner which you believed to be in or not opposed to the
best interests of the Corporation, and with respect to any criminal action
or
proceeding, that you had reasonable cause to believe your conduct was
unlawful.
(d) If
you
are entitled to indemnification under this Agreement to only a portion of the
amounts actually incurred by you in the investigation, defense, appeal or
settlement of any action, suit or proceeding but not for the total amount
thereof, the Corporation shall nevertheless indemnify you for the portion
thereof to which you are entitled.
2.
Method
of Payment.
(a) Except
as
otherwise provided in (b) below, you shall, upon making a written request to
the
Corporation accompanied by supporting documentation as described below, be
entitled to receive promptly from the Corporation, and the Corporation agrees
to
pay to you, by check payable in next day funds, the amount you are entitled
to
receive from the Corporation pursuant to Section 1 (the “Indemnified Amounts”).
In making any such written request, you shall submit to the Corporation a
schedule setting forth in reasonable detail the amount expended (or incurred
and
expected to the expended) for each Indemnified Amount, accompanied by a copy
of
the relevant bill, agreement or other documentation.
(b) In
the
event you are unsuccessful on the merits or otherwise in the defense of any
action, suit or proceeding referred to in Section 1, you shall be similarly
entitled to receive promptly from the Corporation, upon making a written request
to the Corporation accompanied by the supporting documentation described above,
payment of Indemnified Amounts, but your written request to the Corporation
shall also include a written certificate by you stating that (i) you acted
in
good faith and in a manner you believed to be in or not opposed to the best
interests of the Corporation, (ii) with respect to Indemnified Amounts incurred
in connection with a criminal action or proceeding, you had no reasonable cause
to believe your conduct was unlawful and (iii) in the case of Indemnified
Amounts sought pursuant to Section 1(b), you have received a written opinion
of
independent legal counsel to the effect that you have not been adjudged liable
for gross negligence or willful misconduct in the performance of your duties
to
the Corporation or that a court has determined that indemnification is
proper.
3.
Advancement
of Indemnified Amounts.
(a) Indemnified
Amounts incurred by you or reasonably expected to be incurred by you within
the
three months next succeeding a request by you as described below shall be paid
by the Corporation in advance of the final resolution of any suit, action or
proceeding (an “Advanced Amount”) upon your written request, which shall include
a schedule setting forth in reasonable detail the amount expended, or reasonably
expected to be expended within the next three months, by you for any Indemnified
Amount, accompanied by a copy of the relevant bill, agreement or other
documentation. You may make as many requests for an Advanced Amount under this
Section as you deem reasonably necessary to cover Indemnified Amounts expended
or reasonably expected to be expended, provided that each request shall be
at
least for the sum of $1,000.
(b) You
hereby agree to repay all Advanced Amounts to the Corporation by check payable
in next day funds promptly following the final resolution of any action, suit
or
proceeding to which such Advanced Amounts relate if you are not entitled to
indemnification with respect thereto pursuant to Section 1.
(c) In
the
event that you are entitled to the indemnification pursuant to Section 1, you
shall have the right to request (and thereupon receive promptly) payment for
the
portion of Indemnified Amounts which is in excess of Advanced Amounts received
by you (the “Unadvanced Indemnified Amounts”) by following the procedures set
forth in Section 2; provided that the schedule of Indemnified Amounts shall
in
addition set forth each and every Advanced Amount received as of the date of
such listing in order to calculate the net Unadvanced Indemnified Amounts.
Alternatively, if you are entitled to indemnification pursuant to Section 1
and
the total of the Advanced Amounts theretofore received by you exceeds the total
amount of Indemnified Amounts, you shall pay by a check payable in next day
funds the amount of the difference to the Corporation promptly upon the
determination of the amount of such excess.
4.
Enforcement
of Rights under this Agreement.
(a) The
rights to indemnification or advances pursuant to this Agreement shall be
enforceable by you in any court of competent jurisdiction and your expenses
incurred in connection with successfully establishing your right to
indemnification or advances, in whole or in part, in any such proceeding shall
be paid by the Corporation. Neither the failure of the Corporation (including
its Board of Directors, independent legal counsel or stockholders) to have
made
a determination that you are entitled to indemnification or advances in the
circumstances nor an actual determination by the Corporation (including its
Board of Directors, independent legal counsel or stockholders) that you are
not
so entitled shall be a defense to an action or create a presumption that you
have not met the applicable standard for being entitled to indemnification
or
advances, and the burden of proving that you have not met such standard shall
be
upon the Corporation.
(b) The
Corporation hereby acknowledges that time is of the essence with respect to
your
rights to receive payments as indemnification and/or advances pursuant to this
Agreement; that any failure of the Corporation to comply immediately with its
obligations to provide such indemnification and/or advances as set forth herein
would cause you irreparable injury not compensable by an eventual award of
damages; and that accordingly, should the Corporation fail to comply immediately
with such obligations, you shall be entitled to immediate adjudication with
respect to your entitlement and shall be authorized to seek and receive a
preliminary injunction in any court of competent jurisdiction enjoining the
Corporation from continuing to fail to do so.
(c) The
Corporation also acknowledges that its failure to comply on a timely basis
with
its obligations to provide indemnification and/or advances as set forth herein
will cause additional damage to you that is not readily calculable at this
time
(including, for example but without limitation, the costs of enforcing your
rights, satisfying your obligations to any third parties for which you are
entitled to indemnification under the provisions herein, and lost interest
and
earnings on such sums), but which the parties hereby estimate, as liquidated
damages and not as a penalty, to amount to $1,500 per day (for each day after
payment is due that it is not made). The Corporation therefore agrees that
you
shall be entitled to receive such accumulated sums at any time, independent
of
any other of your rights and remedies afforded by this Agreement and by
applicable law, including but not limited to those set forth in the preceding
subparagraph, and further hereby consents to the entry of judgment for such
accumulated sums on your behalf at any time.
5.
Rights
to Indemnification Not Exclusive; Subrogation Rights, etc.
(a)The
Indemnification rights hereunder shall not be deemed exclusive of any other
rights to which you may be entitled under any law, agreement, charter or
bylaw
provision, vote of stockholders or disinterested directors or otherwise,
both as
to action in your official capacity and as to action in another capacity
while
holding such office, and shall continue as to you after you have ceased
to be a
director, officer, employee or agent and shall inure to the benefit of
your
heirs, executors and administrators.
(b) In
the
event you shall receive payment from any insurance carrier or from the plaintiff
in any action, suit or proceeding against you in respect of Indemnified Amounts
after payments on account of all or part of such Indemnified Amounts have been
made by the Corporation pursuant hereto, you shall reimburse to the Corporation
the amount, if any, by which the sum of such payment by such insurance carrier
or such plaintiff and payments by the Corporation to you exceeds such
Indemnified Amounts; provided that such portions, if any, of any such insurance
proceeds that are required to be reimbursed to the insurance carrier under
the
terms of its insurance policy shall not be deemed to be payments to you
hereunder. In addition, upon payment of Indemnified Amounts hereunder, the
Corporation shall be subrogated to your rights (to the extent thereof) against
any insurance carrier in respect of such Indemnified Amounts (to the extent
permitted under such insurance policies). Such rights of subrogation shall
be
terminated upon receipt by the Corporation of the amount to be reimbursed by
you
pursuant to the first sentence of this Section.
6.
Successors;
Binding Agreement.
(a) The
Corporation shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of
the
business and/or assets of the Corporation, by agreement in form and substance
reasonably satisfactory to you, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the Corporation would
be required to perform if no such succession had taken place.
(b) This
Agreement shall inure to the benefit of and be enforceable by your personal
or
legal representatives, executors, administrators, successors, heirs,
distributees, devises and legatees. If you should die while any amounts would
still be payable to you hereunder if you had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with
the
terms of this Agreement to your devisee, legatee, or other designee, or if
there
be no such designee, to your estate.
7.
Notice.
For the
purposes of this Agreement, notices and all other communications provided for
in
this Agreement shall be in writing and shall be deemed to have been duly given
when delivered or mailed by [Israel] [United States] registered mail, return
receipt requested, postage prepaid, as follows:
If
to
you: Mr.______________
[Address]
[Address]
[Address]
[Address]
If
to the
Corporation: XFONE,
INC.
c/o
Xfone
018 Ltd.
POB
7616
Petach
Tikva 49170
Israel
or
to
such other address as either party may have furnished to the other in writing
in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
8.
Miscellaneous.
No
provision of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing signed by you and
either the Corporation’s [President] [Chairman] or another officer of the
Corporation specifically designated by the Board of Directors. No waiver by
either party hereto at any time of any breach by the other party hereto of,
or
compliance with, any condition or provision of this Agreement to be performed
by
such other party shall be deemed a waiver of similar or dissimilar provisions
or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement. This Agreement shall be governed by and construed
in accordance with the laws of the State of Nevada, without giving effect to
the
principles of conflicts of laws thereof.
9.
Severability.
The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.
10.
Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original but all of which together shall constitute one and
the
same instrument.
If
this
letter correctly sets forth our agreement on the subject matter hereof, kindly
sign and return to the Corporation the enclosed copy of this letter, which
shall
then constitute our agreement on this matter.
This
Agreement is entered into and is effective as of __________,
2006.
XFONE,
Inc.
By:______________________________
Accepted
and Agreed:
_____________________________
[name]
