Exhibit
4.3


 


AMENDED
& RESTATED INTERCOMPANY SERVICES AGREEMENT


 


This
Intercompany Services Agreement (this “Agreement”) is made effective as of April 20, 2020 (the “Effective
Date”), by and between Medigus Ltd., a company incorporated under the laws of the State of Israel (“Parent”)
and ScoutCam Ltd., a subsidiary of Parent, incorporated under the laws of the State of Israel (“Company”).


 


R
E C I T A L S


 


WHEREAS,
the Company is a subsidiary of Parent;


 


WHEREAS,
Parent desires to hire and retain Company to perform certain services as described in this Agreement and Company desires to perform
such services for the consideration set forth herein; and


 


WHEREAS,
Company and Parent have previously entered into an Intercompany Services Agreement, and both parties wish to amend and restate
such agreement in accordance with the terms contained herein.


 


NOW,
THEREFORE, in consideration of the terms and conditions and mutual agreements contained herein, it is agreed as follows;


 


		1.	The
                                         Services 



 


		1.1.	During
                                         the term of this Agreement, Company shall provide Parent with such services as set forth
                                         in Exhibit A and such other services as may be requested by the Parent
                                         and agreed upon by the Company from time to time (all such services shall be referred
                                         to herein as the “Services”). Exhibit A shall be updated
                                         from time to time by a mutual consent of the parties.



 


		1.2.	Company
                                         shall provide the Services through its employees and/or independent contractors who have
                                         contracted with the Company (at Company’s discretion).



 


		1.3.	In
                                         connection with the Services, neither the Parent nor the Company shall be authorized
                                         to negotiate or enter into any agreement on behalf of the other party hereto, nor shall
                                         it be authorized to undertake any obligations, commitments or liabilities on behalf of
                                         any other party hereto. Without limiting the foregoing, neither the Parent nor the Company
                                         shall have, or hold itself out or otherwise transact business in such as a way as to
                                         create the impression to unrelated third parties that it has, the authority to enter
                                         into contracts with or on behalf of any other Party hereto.



 


		1.4.	During
                                         the term of this Agreement, Company shall use commercially reasonable efforts to perform
                                         the Services as Parent may reasonably request. Notwithstanding the foregoing, Company
                                         does not warrant or guarantee that any Services will be successful or accomplished in
                                         a timely manner or that any Service will be commercially viable. Company shall hot be
                                         liable to Parent for the failure to perform any Service in accordance with this Agreement.



 


		1.5.	All
                                         intangibles rights resulting from or in connection with the Services, shall be the sole
                                         property of the Company, including without limitation: (i) patents and patent applications,
                                         including without limitation any extensions, divisions, continuations, continuations-inpart
                                         thereof and any applications or patents that claim priority from such patents and applications,
                                         and any foreign counterparts of any of the foregoing; (ii) trade secrets, ideas, processes,
                                         inventions (whether patentable or not), discoveries, concepts, methods, formulas, other
                                         proprietary information and associated intellectual and industrial property rights; and
                                         (iii) copyrights, software, designs, documentation, lab notes, and other works subject
                                         to protection under copyright law, whether or not registered; and (iv) trademarks, trade
                                         names, brand names, designs, packaging, service marks, logos, and any similar assets,
                                         rights or property, whether or not registered; and (v) marketing strategies, customer
                                         lists, surveys, studies, forecasts, estimates and other marketing information.



 






     


     


    

 


		2.	Relationship
                                         of the Parties 



 


		2.1.	Independent
                                         Contractors. Nothing contained in this Agreement is intended or is to be construed
                                         to constitute Company and Parent as partners or joint ventures, or Parent as an employee
                                         or agent of Company, or the employees or agents of Parent as employees or agents of Company.
                                         Neither party hereto shall have any express or implied right or authority to assume or
                                         create any obligation on behalf of or in the name of the other party or to bind the other
                                         party to, any contract, agreement or undertaking with any third party.



 


		2.2.	Indemnity.
                                         Parent hereby agrees to indemnify and hold Company harmless from any and all claims demands,
                                         actions, suits, liabilities and losses, costs and expenses of any kind or character on
                                         account of direct damages or losses to persons or property from any cause arising out
                                         of or in connection with the performance of Services under this Agreement.



 


		3.	Consideration



 


		3.1.	Compensation.
                                         In consideration for the Company’s performance of the Services, Company shall be
                                         entitled to arm’s length service fees based on the most recent transfer pricing
                                         analysis as performed by an external expert, as may be adjusted from time to time and
                                         as initially set forth in Exhibit A (the “Consideration”). The Parent agrees
                                         to pay the amounts due under this Agreement in accordance with the terms set forth in
                                         this Section 3.



 


		3.2.	Review
                                         of Services Fees. The Consideration set out in Section 3.1 above shall be reviewed
                                         by the Company and Parent, and modified prospectively as required to conform to the “arm’s
                                         length” requirements of applicable tax rules. If either the Company or Parent considers
                                         that the Consideration is not equate to arm’s length pricing, either party may
                                         give notice for the pricing to be reviewed. If any change is agreed to, based on this
                                         review, such change may be made effective the date the notice to review was given.



 


		3.3.	Manner
                                         of Payment. Payment of the Consideration shall be made directly to Company or
                                         to such bank or in any other manner as is designated by Company. All payments made by
                                         the Parent to Company shall be in U.S. Dollars, unless otherwise agreed to by both parties.
                                         In addition the Parent may cause third parties investing or owing money to the Company
                                         to transfer such payments directly to the Company and such amounts shall be deemed as
                                         transferred from the Parent to the Company as payment of the Consideration.



 


		3.4.	Billing.
                                         Unless otherwise agreed upon by the parties, at the end of each calendar quarter, Company
                                         shall send an invoice to the Parent with respect to the payments due. The invoiced amount
                                         shall be due and payable within thirty (30) days following the receipt of such invoice.



 


		3.5.	Taxes.
                                         The Parent shall withhold from payments such taxes as required to be withheld under applicable
                                         law. If any tax is withheld by the Parent, it shall provide the Company with receipts
                                         or other evidence of such withholding and payment to the appropriate tax authorities.
                                         The Company agrees to not withhold any taxes, or to withhold at a reduced rate, to the
                                         extent that the Company is entitled to an exemption from, or reduction in the rate of,
                                         withholding under an applicable income tax treaty. VAT shall be added against tax invoice.



 


		4.	Reporting
                                         Requirements



 


		4.1.	Books
                                         and Records. Company shall keep and maintain adequate books, records and files
                                         of the transactions underlying the payments of the Consideration to be made hereunder,
                                         in order to enable it to furnish complete and accurate information to Parent regarding
                                         all aspects of the Services and expenditures fund Parent shall have the right, upon reasonable
                                         notice and at its expense to inspect, audit, or have an audit performed of, Company’s
                                         books and records relating to the expenditure of funds under this Agreement.



 






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		4.2.	Reports.
                                         Company shall from time to time, and as often as reasonably requested by Parent, provide
                                         written reports to Parent regarding its performance of the Services, describing a detailed
                                         report of costs incurred. Company shall promptly notify the Parent of any significant
                                         problems that may occur during the course of the Services.



 


		5.	Confidentiality



 


		5.1.	As
                                         a result of its performance of Services under this Agreement, Company and its employees,
                                         agents, and subcontractors will become uniquely knowledgeable with respect to the technology.
                                         Company hereby agrees not to disclose to others or to use for its own benefit, without
                                         Parent’s prior written consent, any of Company confidential information to which
                                         it had access to during the course of providing the Services.



 


		5.2.	Company
                                         shall use its best efforts to assure that its employees, agents, and subcontractor do
                                         not make any such unauthorized disclosures. Company further agrees that its employees,
                                         agents, and subcontractors who are hired or retained by it to perform any of the Services
                                         shall have executed agreements, acceptable to Parent, whereby they agree to hold in confidence
                                         all proprietary, trade secret and any other confidential information to which they have
                                         access during the course of their duties as employees, agents, or subcontractors of Company
                                         and to assign to Parent any and all rights they may have or may acquire respecting the
                                         improvements in the course of performing the Services.



 


		6.	Term
                                         and Termination



 


		6.1.	Term.
                                         This Agreement shall continue in force for a fixed term of one (1) year’ from the
                                         Effective Date unless terminated earlier under the provisions of this Section 6. At the
                                         end of the fixed term, this Agreement shall renew automatically for additional one (1)
                                         year terms (subject to earlier termination under the provisions of this Section 6), without
                                         notice, unless prior to that time one party provides a 60 days prior written notice of
                                         nonrenewal to the other party.



 


		6.2.	Termination
                                         for Convenience. This Agreement may be terminated by either party for any reason
                                         or no reason, whether or not extended beyond the first year by giving the other party
                                         60 days prior written notice.



 


		6.3.	Termination
                                         for Insolvency. This Agreement shall terminate immediately without notice: (i)
                                         upon the institution by or against Company or Parent of insolvency, receivership by or
                                         bankruptcy proceedings for the settlement of Company’s or Parent’s debts;
                                         (ii) upon Company’s or Parent’s making an assignment for the benefit of creditors;
                                         or (iii) upon Company’s or Parent’s dissolution or liquidation,



 


		6.4.	Transition.
                                         Upon termination or expiration of this Agreement, each party shall diligently cooperate
                                         with the other to effect a smooth and orderly transition. From the time that a notice
                                         of termination is received by either party until the effective termination date, each
                                         party shall fully cooperate with any newly appointed party performing the duties contemplated
                                         hereunder.



 


		6.5.	Limitation
                                         on Liability. In the event of termination by either party in accordance with
                                         any of the provisions of this Agreement, neither party shall be liable to the other because
                                         of such termination for compensation, reimbursement or damages on account of the loss
                                         of prospective profits or anticipated sales or on account of expenditures investments,
                                         leases or commitments in connection with the business or goodwill of Parent or Company.



 


		6.6.	Survival
                                         of Certain Terms. The provisions of Sections 2, 5, 6.4, 6.5,
                                         and 7 shall survive the termination or expiration of this Agreement for any reason.
                                         All other rights and obligations of the parties shall cease upon termination or expiration
                                         of this Agreement.



 



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		7.	Miscellaneous



 


		7.1.	Governing
                                         Law and Jurisdiction. All questions, concerning this Agreement, including but
                                         not limited to, the validity, operation, interpretation and construction thereof, shall
                                         be governed by and determined in accordance with the laws of the State of Israel. The
                                         parties hereto agree that all actions and proceedings arising out of or relating directly
                                         or indirectly to this Agreement shall be brought exclusively to the courts located in
                                         the District of Tel Aviv Yafo.



 


		7.2.	Entire
                                         Agreement. This Agreement sets forth the entire agreement and understanding of
                                         the parties relating to the subject matter herein and merges all prior discussions between
                                         them. No modification of or amendment to this Agreement, nor any waiver of any rights
                                         under this Agreement shall be effective unless in writing and signed by the party to
                                         be charged.



 


		7.3.	Notices.
                                         Any notice required or permitted by this Agreement shall be in writing and shall be deemed
                                         given if sent by prepaid registered or certified airmail, return receipt requested (if
                                         available), or sent by telex, facsimile or similar communication, and confirmed by such
                                         airmail, postage prepaid, addressed to each respective party at its principal address.



 


		7.4.	Force
                                         Majeure. Nonperformance of either party shall be excused to the extent that performance
                                         is rendered impossible by Strike, fire, flood, governmental acts, orders or restrictions,
                                         or any other reason where failure to perform is beyond the control and not caused by
                                         the negligence of the non-performing party, provided that the non-performing party uses
                                         its reasonable best efforts to promptly resume performance once it is possible to do
                                         so.



 


		7.5.	Non-Assignability
                                         and Binding Effect. This agreement may not be assigned by any party without the
                                         prior written consent of the other party.



 


		7.6.	Counterparts.
                                         This Agreement may be executed in two or more counterparts; each of which shall be deemed
                                         an original.



 


[Signature
page to follow]


 




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IN
WITNESS HEREOF the parties hereto have executed this Amended and Restated Intercompany Services Agreement as of the day and
year first written above.


 


	ScoutCam
    Ltd.	 	Medigus
    Ltd. 
	 	 	 	 	 
	By:	/s/
    Yaron Silberman /s/ Tanya Yosef	 	By:	/s/
    Liron Carmel /s/ Tanya Yosef
	Name:	Yaron
    Silberman / Tanya Yosef	 	Name:	Liron
    Carmel / Tanya Yosef
	Title:	CEO /
    CFO	 	Title:	CEO /
    CFO


 







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Exhibit
A


 


Services


 





	Service  	 	Consideration  
	Lease
    – lease of office space and clean room from Parent, located at Omer Industrial Park No. 7A, P.O. Box 3030, 8496500,
    Israel	 	Based
                                         on actual space utilized by Parent

        Shared
        space - According to Parent-Company space usage ratio.

	 	 	 
	Utilities
    - electricity water, IT and communication services (including internet and telephone), etc.	 	Based
    on Parent-Company employee ratio and actual costs incurred
	 	 	 
	Car
    Services - Car services, including car rental, gas usage, payment for toll roads, etc.	 	100%
    of expense incurred from a Company employee car   
	 	 	 
	Insurance
    - directors and officers insurance	 	Parent
    shall pay $150,000 of the annual premium.
	 	 	 
	CFO
    Services – CFO service services	 	50%
    of Parent CFO employer cost
	 	 	 
	Direct
    Expense - every direct expense of the Company that is paid by Parent in its entirety  	 	100%
                                         of the Direct Expense

        The
        Parent and the Company shall approve Direct Expenses in advance.

	 	 	 
	Mutual
    Expense - any other mutual expense that is borne by the parties  	 	Respective
                                         portion of the Mutual Expense

        The
        Parent and the Company shall approve Mutual Expenses in advance.



 


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