OFFICER HOLD HARMLESS INDEMNIFICATION AGREEMENT
Exhibit 4.25
OFFICER
HOLD HARMLESS INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the
“Agreement”) is made effective 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
“Officer”).
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 officers; and
WHEREAS, in order for the Company to
attract persons qualified to act as officers, 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
officers 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 Officer is willing to
serve or continue to serve on the condition that the Officer be so
treated.
NOW, THEREFORE, in consideration of the
premises and the covenants contained herein, the Company and the Officer 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
Officer. The Officer agrees to serve as a officer of the
Company for so long as the Officer is duly elected or appointed or until the
Officer’s death, resignation or removal and in all events only for so long as
this Agreement shall be in force and effect.
3. Indemnification. Subject
to the terms and conditions of this Agreement and to the Act, the Company shall
defend, indemnify and hold harmless the Officer 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 Officer in connection with or in any way relating to
any Proceeding in which the Officer is or was a party or is threatened to be
made a party or is involved by reason of the fact that the Officer 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 Officer seeking indemnification
in connection with a Proceeding (or part thereof) initiated by the Officer 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 Officer 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 Officer, to repay all advances if it
shall ultimately be determined by final judicial decision that the Officer is
not entitled to indemnification under applicable law under the circumstances
(such undertaking shall be by unlimited general obligation of the Officer but
need not be secured).
5. Right of the Officer 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 Officer
to the Company for payment thereof, the Officer 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 Officer
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 Officer 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 Officer shall
receive interim payments of expenses pursuant to Section 4 until it is
determined by final judicial decision that the Officer is not entitled to such
payments.
(d) It
is the parties’ intention that the Officer shall be presumed to be entitled to
indemnification hereunder until it is determined by final judicial decision that
the Officer 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 Officer has not met the applicable standard of
conduct.
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 Officer. After such assumption, the Company will not be liable to
the Officer under this Agreement for any expenses (including legal expenses)
subsequently incurred by the Officer in defending such Proceeding; provided
however, that the Officer 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 Officer’s expense; and provided however that if (i) the employment of
such counsel by the Officer has been previously authorized by the Company, (ii)
the Officer shall have reasonably concluded that there may be a conflict of
interest between (A) the Company and the Officer or (B) the Officer and other
Officers or 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 Officer 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 Officer 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. Officer 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 Officer.
8. Non-Exclusivity of
Rights. The rights provided hereunder shall not be deemed
exclusive of any other rights which the Officer 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 Officer
ceases to serve the Company as a officer.
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.
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
Officer. 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 Officer 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 Officer have executed this Agreement as of
the date set forth below.
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By:
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Dated:
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____________________,
2010
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OFFICER
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Dated:
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____________________,
2010
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