Exhibit 99.1(f)
APPENDIX
F
INDEMNIFICATION AGREEMENT
Date: [________]
To: [________]
It
is in the best interest of Retalix Ltd. (the “Company”) to retain and attract as
directors, officers and/or employees the most capable persons available, and such persons
are becoming increasingly reluctant to serve high growth companies or publicly-held
companies unless they are provided with adequate protection in connection with such
service.
You
are or have been appointed a director, officer and/or employee of the Company, and in
order to enhance your service to the Company in an effective manner, the Company desires
to provide hereunder for your indemnification to the fullest extent permitted by law.
Accordingly,
in consideration of your continuing to serve the Company, the Company agrees as follows:
| 1. |
Subject to the terms of this letter, and the Company’s Articles of
Association, the Company hereby undertakes to fully indemnify you for the
following items in respect of any act or omission taken or omitted by you in
your capacity as a director, officer and/or employee of the Company: |
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1.1 |
any financial obligation imposed on or incurred by you in favor of another person by a
judgment, including a settlement or an arbitrator’s award approved by court; |
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1.2 |
all reasonable litigation expenses, including attorney’s fees, expended by you as a
result of an investigation or proceeding instituted against you by a competent authority,
provided that such investigation or proceeding concluded without the filing of an
indictment against you and either (A) concluded without the imposition of any
financial liability in lieu of criminal proceedings or (B) concluded with the imposition
of a financial liability in lieu of criminal proceedings but relates to a criminal offense
that does not require proof of criminal intent; and |
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1.3 |
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 charge in which you are acquitted, or in
any criminal proceedings in which you are convicted of a crime which does not require
proof of criminal intent. |
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The
wording in clauses 1.1, 1.2 and 1.3 above is based on the Hebrew-language provisions of
the Israeli Companies Law, 1999 (the “Companies Law”) and shall not be construed
to limit the amount or scope of indemnification payable to you hereunder to the extent
permitted by applicable law, provided that your underlying payment obligation arises in
respect of any act or omission taken or omitted by you in your capacity as a director,
officer and/or employee of the Company. |
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The
indemnification payable to you under this letter 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 directors’ 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”). |
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Without
diminishing or impairing the obligations of the Company set forth in the preceding
subparagraphs, if, for any reason, you shall elect or be required to pay all or any
portion of any judgment or settlement in any proceeding in which the Company is jointly
liable with you (or would be if joined in such proceeding), the Company shall contribute
to the amount of expenses (including attorneys’ fees), judgments, fines and amounts
paid in settlement actually incurred and paid or payable by you in proportion to the
relative benefits received by the Company and all other officers, directors or employees
of the Company who are jointly liable with you (or would be if joined in such proceeding),
on the one hand, and you, on the other hand, from the transaction from which such
proceeding arose; provided, however, that the proportion determined on the basis of
relative benefit may, to the extent necessary to conform to law, be further adjusted by
reference to the relative fault of the Company and all officers, directors or employees of
the Company other than you who are jointly liable with you (or would be if joined in such
proceeding), on the one hand, and you, on the other hand, in connection with the events
that resulted in such expenses, judgments, fines or amounts paid in settlement, as well as
any other equitable considerations. The relative fault of the Company and all other
officers, directors or employees of the Company who are jointly liable with you (or would
be if joined in such proceeding), on the one hand, and you, on the other hand, shall be
determined by reference to, among other things, the degree to which their actions were
motivated by intent to gain personal profit or advantage, the degree to which their
liability is primary or secondary, and the degree to which their conduct is active or
passive. For the avoidance of doubt, the obligations of the Company to indemnify you
hereunder apply to any claims for contribution which may be brought against you by
officers, directors or employees of the Company who may be jointly liable with you. |
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For
the avoidance of doubt, indemnifiable expenses relating to proceedings shall include,
without limitation, expenses reasonably incurred in preparing to defend threatened
proceedings and expenses reasonably incurred as a witness in connection with any such
proceedings. |
| 2. |
Notwithstanding anything to the contrary herein, the Company will not indemnify
you to the extent prohibited under Section 263 of the Companies Law, as
determined by final court decision. |
| 3. |
The Company will make available to you all amounts payable in accordance with
paragraph 1.1 above on or prior to the date on which such amounts are required
to be paid by you. To the fullest extent permitted by applicable law, the
Company will advance the expenses incurred by you in connection with any
applicable proceeding within 14 days after the receipt by the Company of a
statement or statements requesting such advances from time to time, whether
prior to or after final disposition of such proceeding. Advances shall be
unsecured and interest free. Advances shall be made without regard to your
ability to repay them (should repayment be required). You shall qualify for
advances only upon the execution and delivery to the Company of an undertaking
to repay the advance to the extent that it is ultimately determined by a court
of competent jurisdiction, in a final and non-appealable order that you are not
entitled to be indemnified by the Company under the provisions of this letter,
the Company’s articles of association, the Companies Law or otherwise. |
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As
part of the aforementioned undertaking, the Company will make available to you upon
request 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 (i) at the relevant time of such
indemnification 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 or omissions taken or omitted by
you while you were a director, officer, employee and/or board observer, as
aforesaid, and in such capacity, or (ii) such actions or omissions were taken or
omitted by you in such capacity prior to the date hereof. |
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| 5. |
The indemnification covered in paragraph 1.1 shall apply only insofar as it
results from your actions or omissions in the following matters or in connection
therewith or in relation thereto, which the Company’s Board of Directors
has resolved are foreseeable in light of the actual activities of the Company: |
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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 or other holders pursuant to a prospectus, agreements,
notices, reports, tenders and/or other proceedings; |
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5.2 |
Occurrences resulting from the Company’s status as a public company, and/or from the
fact that the Company’s securities were issued to the public and/or are traded on a
stock exchange, whether in Israel, the United States or any other jurisdiction; |
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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; |
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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; |
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5.5 |
Actions in connection with the merger or proposed merger of the Company, a Subsidiary
and/or an Affiliate with or into another entity; |
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5.6 |
Actions in connection with the sale or proposed sale of the operations and/or business, or
part thereof, of the Company, a Subsidiary and/or an Affiliate; |
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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; |
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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, including stock options granted or promised (or allegedly
promised) thereto or exchanges of such options with other securities; |
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5.9 |
Actions in connection with the development, testing or sale of products developed by the
Company, Subsidiaries and/or Affiliates or in connection with the distribution, sale,
license or use of such products; |
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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 any type of intellectual
property; |
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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, including but not limited to, internal control policies and procedures; |
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5.12 |
Actions taken in connection with the accounting policies or financial reporting of the
Company or any of its Subsidiaries or Affiliates, and in providing guidance to the public
regarding future performance thereof; |
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5.13 |
Any
action or decision in relation to work safety and/or working conditions; |
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5.14 |
Negotiation for, signing and performance of insurance policies, and any actions or
omissions resulting in inadequate safety measures and/or malpractice of risk management
and/or the failure to maintain appropriate insurance; |
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5.15 |
Any claim or demand made by a customer, supplier, contractor or other third party
transacting any form of business with the Company, a Subsidiary and/or an Affiliate, in
the ordinary course of their business, relating to the negotiations or performance of such
transactions, representations or inducements provided in connection thereto or otherwise; |
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5.16 |
Any claim or demand made by any third party suffering any personal injury and/or bodily
injury and/or property damage to business or personal property through any act or omission
attributed to the Company, a Subsidiary and/or an Affiliate, or their respective
directors, officers, employees, agents or other persons acting or allegedly acting on
their behalf; |
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5.17 |
Any claim or demand made directly or indirectly in connection with complete or partial
failure by the Company, a Subsidiary and/or an Affiliate, or their respective directors,
officers, employees or agents, to pay, report or maintain applicable records regarding,
any foreign, federal, state, country, local, municipal or city taxes or other compulsory
payments of any nature whatsoever, including without limitation, income, sales, use,
transfer, excise, value added, registration, severance, stamp, occupation, customs,
duties, real property, personal property, capital stock, social security, unemployment,
disability, payroll or employee withholding or other withholding, including any interest,
penalty or addition thereto, whether disputed or not; |
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5.18 |
Anti-competitive
acts and acts of commercial wrongdoing; |
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5.19 |
Acts in regard of invasion of privacy including, without limitation, with respect to
databases and acts in regard of slander; and |
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5.20 |
Violations of laws requiring the Company to obtain regulatory and governmental licenses,
permits and authorizations in any jurisdiction. |
| 6. |
The total amount of indemnification under paragraph 1.1 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 one quarter (25%) of the Company’s total
shareholders equity at the time of the actual indemnification. No other
categories of indemnification shall be limited by this paragraph 6. |
| 7. |
The rights of indemnification and to receive advancement of expenses as provided
by this letter shall not be deemed exclusive of any other rights to which you
may at any time be entitled under applicable law or otherwise. To the extent
that a change in Israeli law, whether by statute, regulation or judicial
decision, permits greater rights to indemnification or advancement of expenses
than would be afforded on the date of this letter, it is the intent of the
parties hereto that you shall enjoy by this letter the greater benefits so
afforded by such change. |
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To
the extent that the Company maintains an insurance policy or policies providing liability
insurance for directors, officers, employees or agents of the Company or of any Subsidiary
or Affiliate thereof, you shall be covered by such policy or policies in accordance with
its or their terms to the maximum extent of the coverage available under such policy or
policies. If, at the time the Company receives notice from any source of a proceeding as
to which you are a party or a participant (as a witness or otherwise), the Company has
director and officer liability insurance in effect, the Company shall give prompt notice
of such proceeding to the insurers in accordance with the procedures set forth in the
respective policies. The Company shall thereafter take all necessary or desirable action
to cause such insurers to pay, on your behalf, all amounts payable as a result of such
proceeding in accordance with the terms of such policies. |
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In
the event of any payment under this letter, the Company shall be subrogated to the extent
of such payment to all of your rights of recovery, and you shall execute all papers
reasonably required and take all reasonable action necessary to secure such rights. |
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In
order to avoid any doubt, it is hereby clarified that the indemnification payable pursuant
to this letter shall be payable regardless of any obligations arising under an insurance
policy and/or any other indemnification agreement to cover any payment of any type
incurred by you, provided, however, that any payment made hereunder by the Company shall
be returned to the Company to the extent that the same obligation is ultimately covered
and actually paid directly to you, free of any deductions or the like, pursuant to such
insurance policy and/or other indemnification agreement and up to that amount that is
actually paid to you. Similarly, the Company will not indemnify you for any liability to
the extent you have received payment by virtue of an insurance policy or another
indemnification agreement. |
| 8. |
Subject to the provisions of paragraphs 6 and 7 above, the indemnification
hereunder 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 applicable law. |
| 9. |
In all indemnifiable circumstances, indemnification will be subject to the
following: |
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9.1 |
You shall promptly notify the Company of any applicable proceedings initiated against you
without delay following your first becoming aware thereof, and you shall deliver to the
Company, or to such person as it shall advise you, without delay, all documents you
receive in connection with these proceedings. |
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9.2 |
Other than with respect to proceedings that have been initiated against you by the Company
or in its name, the retention of your counsel shall be with the consent of the Company,
which shall not be unreasonably withheld. The Company will indemnify you for the
reasonable fees and expenses of only one counsel in each applicable jurisdiction. If a
claim or proceeding is brought against you and other persons entitled to indemnification
from the Company, then the Company will indemnify all such persons collectively for the
reasonable fees and expenses of one counsel in each applicable jurisdiction, except to the
extent that doing so would prejudice any of such persons. |
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Alternatively,
with your consent, you shall execute all documents required to enable the Company and/or
its attorney to conduct your defense in your name, and to represent you in all matters
connected therewith, in accordance with the aforesaid. |
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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 settlement 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 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 and/or pursuant to law. |
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9.3 |
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. |
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9.4 |
Any compromise or settlement agreement reached by you with respect to any suit, demand or
other proceeding subject to indemnification under this letter shall require the
Company’s prior written consent. |
| 10. |
If for the validation of any of the undertakings in this letter any act,
resolution, approval or other procedure is required, the Company represents that
it has caused them to be done or adopted in a manner which will enable the
Company to fulfill all its undertakings as aforesaid. |
| 11. |
For the avoidance of doubt, it is hereby clarified that nothing contained in
this letter 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. |
| 12. |
Any re-organization, change of control, merger or acquisition or the like of the
Company, including without limitation, a change of the Board of Directors or
change of management, will not derogate from the Company’s obligations
under this letter. This letter shall be binding upon the Company and its
successors (including the surviving company in a merger with the Company) and
assigns, and shall inure to your benefit and your estate, heirs, legal
representatives and assigns. |
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The
Company agrees that if there is a change of control of the Company (other than a change in
control which has been approved by a majority of the Company’s Board of Directors who
were directors immediately prior to such change in control), then with respect to all
matters thereafter arising concerning your rights to payments under this letter of
indemnification, the Company shall seek legal advice only from Independent Legal Counsel
(as defined below) selected by you and approved by the Company, which approval shall not
be unreasonably withheld. Such counsel, among other things, shall render its written
opinion to the Company and to you as to whether and to what extent you would be permitted
to be indemnified under applicable law, and the Company will abide by such opinion. The
Company will pay the reasonable fees for the Independent Legal Counsel referred to above
and to fully indemnify such counsel for damages arising in connection with such
representation. For purposes of this letter, “Independent Legal Counsel” shall
mean an attorney or firm of attorneys, selected in accordance with this provision, who
shall not have otherwise performed services for the Company or for you within the last
three years (other than with respect to matters concerning your rights under this letter
or of other beneficiaries under similar indemnity agreements). |
| 13. |
In making a determination with respect to entitlement to indemnification
hereunder, the person or persons or entity making such determination shall
presume that you are entitled to indemnification under this letter if you have
submitted a proper request for indemnification under this letter, and the
Company shall have the burden of proof to overcome that presumption in
connection with the making by any person, persons or entity of any determination
contrary to that presumption. |
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| 14. |
The ability of the Company to indemnify its “office holders” (as
defined in the Companies Law) is limited under the Companies Law. If any
undertaking included in this letter 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. |
| 15. |
This letter and the agreement herein shall be governed by and construed and
enforced in accordance with the laws of the State of Israel. All disputes shall
be resolved exclusively by the District Court of Tel Aviv. If the Company denies
your request for indemnification (including expense advances) provided for in
this letter, in whole or in part, and the court rules in your favor in an action
against the Company for such indemnification, the Company shall reimburse you
for all your expenses incurred in connection with such action. |
| 16. |
This letter shall continue until and terminate upon the later of: (i) seven
years after the date that you shall have ceased to serve as a director, officer,
employee or agent of the Company or of any Subsidiary or Affiliate thereof, and
(ii) one year after the final termination of any proceeding (including any
rights of appeal thereto) in respect of which you are granted rights of
indemnification or advancement of expenses hereunder; provided, however, that
with respect to subparagraph (ii) hereof, this letter shall in such event
terminate only with respect to the proceeding in question and not with respect
to any other proceeding. |
Kindly sign and return the enclosed
copy of this letter to acknowledge your agreement to the contents hereof.
|
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Very truly yours,
RETALIX LTD.
By:
——————————————
Name:
Title: |
Accepted and agreed to as of the date
first above written:
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