FORM OF INDEMNIFICATION AND RELEASE AGREEMENT
EXHIBIT
10.1
FORM OF
INDEMNIFICATION AND RELEASE
AGREEMENT
To
Mr./Ms. ______________
It is in
the best interest of SodaStream International Ltd. (the “Company”) and its affiliated
companies and subsidiaries, whether held directly or indirectly, (the “SodaStream Group”) to retain
and attract as directors and/or officers the most capable persons available and
such persons are becoming increasingly reluctant to serve as directors and
officers unless they are provided with adequate protection through insurance,
release and indemnification in connection with such service.
You are
or have been appointed to be a director and/or officer of the Company or any
other company within the SodaStream Group, and in order to enable you to provide
your services to the SodaStream Group in an effective manner, the Company, as
the parent company of the SodaStream Group, desires to provide hereunder for
your indemnification and release to the fullest extent permitted by
law.
In
consideration of you continuing to serve the Company and/or another Company
within the SodaStream Group, and subject to the provisions of the applicable
law, the Company hereby agrees as follows:
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1.
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Without
derogating from the Company’s right to indemnify you post factum, the
Company hereby undertakes to indemnify you to the maximum extent permitted
by applicable law for any and all liabilities or expenses, as set forth in
Sections 1.1 to 1.4 hereto, imposed on or incurred by you in respect of
any act or omission or alleged act or omission (each,
an “action”) taken
or made by you in your capacity as an Office Holder (as defined in the
Israeli Companies Law, 5759-1999 (the “Companies Law”)) of the
Company or of any other company within the SodaStream
Group:
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1.1.
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any
financial obligation imposed on or incurred by you in favor of another
person by a court judgment, including a settlement or an arbitrator’s
award approved by court; and
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1.2.
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reasonable
litigation expenses, including without limitation attorneys’ fees and, to
the extent permitted by applicable law, including also the fees and
expenses of investigators, accountants and other experts, expended by you
as a result of an investigation or proceeding instituted against you by an
authority authorized to conduct such investigation or proceeding, which:
(i) is Concluded Without The Filing Of An Indictment (as defined in the
Companies Law) against you and without the imposition on you of any
Financial Obligation In Lieu of Criminal Proceedings (as defined in the
Companies Law), or (ii) which is Concluded Without The Filing Of An
Indictment against you, but with the imposition on you of a Financial
Obligation In Lieu of Criminal Proceedings in respect of an offense that
does not require proof of criminal intent;
and
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1.3.
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reasonable
litigation expenses, including without limitation attorneys’ fees and, to
the extent permitted by applicable law, including also the fees and
expenses of investigators, accountants and other experts, expended by you
or charged to you by a court, (i) in a proceeding instituted against you
by the Company or on its behalf or by another person, or (ii) in any
criminal proceeding in which you are acquitted, or (iii) in any criminal
proceeding for an offense which does not require proof of criminal intent
of which you are convicted; and
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1.4.
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any
other liability or expense for which the Company is, or will be, permitted
to indemnify you in accordance with applicable
law.
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If you
are employed by the Company, the above indemnification will also apply to any
action taken by you in your capacity as an Office Holder of any other company
controlled, directly or indirectly, by the Company (a “Subsidiary”) or in your
capacity as an officer, director, or observer at board of directors’ meetings,
of a company not controlled by the Company but where your appointment as such is
at the request of the Company (“Affiliate”). If
you are employed by a Subsidiary and do not hold the position of an Office
Holder with the Company, the above indemnification will also apply to any action
taken by you in your capacity as an Office Holder of any such Subsidiary or in
your capacity as an officer, director, or observer at board of directors’
meetings, of an Affiliate.
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2.
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The
Company will not indemnify you for, and will not waive, any amount you may
be obligated to pay in respect of any of the
following:
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2.1.
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a
breach of your duty of loyalty, except, to the extent permitted by law,
for a breach of a duty of loyalty 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, the
Subsidiary or the Affiliate, as
applicable;
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2.2.
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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 other
than a breach arising solely out of
negligence;
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2.3.
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an
action, taken or not taken, with the intent of unlawfully realizing
personal gain;
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2.4.
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a
fine or penalty imposed upon you for an offense;
and
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2.5.
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a
counterclaim made by the Company or a Subsidiary or in its name in
connection with a claim against the Company or such Subsidiary filed by
you, other than for indemnification
hereunder.
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3.
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The
indemnification undertaking in paragraph 1.1 will be limited to the
matters mentioned therein insofar as they result from your actions in the
following matters or in connection therewith (which have been determined
by the Board of Directors of the Company as foreseeable in view of the
Company’s current and expected activity), and whether such actions are in
the ordinary course of business or
not:
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3.1.
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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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3.2.
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Occurrences
resulting from the Company’s becoming, or its 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;
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3.3.
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Occurrences
in connection with investments that 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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3.4.
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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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3.5.
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Actions
in connection with any sale or acquisition of assets by the Company, a
Subsidiary and/or an Affiliate or the merger of the Company, a Subsidiary
and/or an Affiliate with or into another
entity;
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3.6.
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Actions
in connection with the sale of the operations and/or business, or part
thereof, of the Company, a Subsidiary and/or an
Affiliate;
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3.7.
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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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3.8.
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Actions
taken in connection with labor relations and/or employment matters in, and
agreements, transactions and trade relations of, the Company, its
Subsidiaries and/or Affiliates with third parties, including without
limitation with employees, consultants, independent contractors,
customers, suppliers and various service
providers;
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3.9.
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Actions
concerning the approval of transactions of the Company, its Subsidiaries
and/or Affiliates with officers and/or directors and/or holders of
controlling interests in the Company, its Subsidiaries and/or Affiliates,
and/or transactions in which any of the persons mentioned above has
personal interest;
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3.10.
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Actions
taken in connection with the approval and execution of financial
statements and business reports and the representations made in connection
therewith;
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3.11.
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Actions
in connection with the testing of products developed by the Company, its
Subsidiaries and/or Affiliates or in connection with the distribution,
sale, license or use of products;
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3.12.
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Actions
taken in connection with the intellectual property of the Company, its
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;
and
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3.13.
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Actions
taken pursuant to or in accordance with the policies and procedures of the
Company, its Subsidiaries and/or Affiliates, whether such policies and
procedures are published or not.
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3.14.
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Occurrences
resulting from any claim or demand made by any third party suffering any
personal injury and/or bodily injury and/or property damage and/or
monetary damage to business or personal property through any act or
omission attributed to the Company, its subsidiaries or affiliates, or
their respective employees, agents or other persons acting or allegedly
acting on their behalf.
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3.15.
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Any
claim or demand made by purchasers, holders, lessors or other users of
products of the SodaStream Group, or individuals using such products, for
damages, losses or personal injuries related to such use or
treatment.
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3.16.
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Occurrences
resulting from any claim or demand made directly or indirectly in
connection with complete or partial failure, by the Company, its
Subsidiaries and/or Affiliates or their directors, officers and employees,
to pay, report, keep applicable records or otherwise, any state, municipal
or foreign taxes or other mandatory 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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3.17.
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Any
violation of laws requiring the Company and/or its Subsidiaries and/or
Affiliates to obtain regulatory and governmental licenses, permits and
authorizations in any jurisdiction.
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3.18.
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Actions
taken in connection with the approval of corporate actions including the
approval of the acts of the Company’s management, their guidance and their
supervision.
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3.19.
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Actions
relating to environmental and public health matters of the Company and/or
its Subsidiaries and/or Affiliates.
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3.20.
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Actions
relating to the failure to maintain appropriate insurance and or
inadequate safety measures and or a malpractice of risk
management.
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3.21.
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Any
claim or demand, not covered by any of the categories of events above,
which, pursuant to any applicable law, a director or officer of the
SodaStream Group, my be held liable to any government or agency thereof,
or any person or entity, in connection with actions taken by such director
or officer in such capacity.
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4.
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The
Company will make available to you or will procure that the relevant
company within the SodaStream Group 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 paragraphs 1.2 and 1.3 above,
even prior to a court decision. Advances given to cover legal expenses in
a criminal proceeding or in administrative or investigative proceeding
that result in a criminal proceeding will be repaid by you to the Company
if you are found guilty of a crime which requires proof of 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.
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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.
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All
amounts paid as indemnification pursuant hereto will be grossed-up to
cover any tax payments you may be required to make if the indemnification
payments are taxable to you.
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5.
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The
Company, or the relevant company within the SodaStream Group, will
indemnify you even if at the relevant Time of Indebtedness you are no
longer an Office Holder of the Company or of a Subsidiary or an officer,
director or board observer of an Affiliate, provided that the obligations
are in respect of actions taken by you while you were an Office Holder,
director, officer, and/or board observer, as aforesaid, and in such
capacity, including if taken prior to the date of this Indemnification and
Release Agreement and the indemnity will extend to your heirs, executors,
administrators and legal
representatives.
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6.
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The
Company, or the relevant company within the SodaStream Group, 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 another
indemnity agreement (including deductible amounts not covered by insurance
policies).
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7.
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Subject
to the provisions of paragraph 6 above, the indemnification under
paragraph 1.1 above with respect to all Office Holders in the aggregate
will be limited to an aggregate amount (which has been determined by the
Board of Directors of the Company to be reasonable under the
circumstances) per case for which indemnification is sought, which is the
greatest of: (i) with respect to indemnification in connection with a
public offering of the Company’s securities, the gross proceeds raised by
the Company and/or any Selling Shareholder in such public offering, (ii)
with respect to any and all matters mentioned in paragraph 3 above
(including a public offering of the Company’s securities), an amount equal
to 50% of the Company’s shareholders equity (on a consolidated basis),
based on the Company’s most recent financial statements made publicly
available before the date on which the indemnity payment is made and (iii)
$50 million. If the aforesaid amount is insufficient to cover all amounts
to which all Office Holders are entitled, such amount shall be allocated
among such persons pro rata to the amounts to which they are so
entitled.
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8.
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The
Company, or the relevant company within the SodaStream Group, will be
entitled to reimbursement of amounts collected from a third party in
connection with liabilities for which you were indemnified hereunder, such
reimbursement not to exceed the amounts for which you were indemnified by
the SodaStream Group.
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9.
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In
all indemnifiable circumstances indemnification will be subject to the
following:
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9.1.
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You
shall promptly notify the Company of any legal proceedings initiated
against you and of all possible or threatened legal proceedings and, to
the extent permitted by law, all administrative or investigative
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 and provide such other information and
cooperation as the Company shall reasonably
request.
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Similarly,
you shall 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.
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Failure
to notify the Company as aforesaid will not relieve the Company of its
indemnification obligations pursuant hereto except to the extent that it
has been actually prejudiced as a result of such
failure.
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9.2.
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Other
than with respect to proceedings that have been initiated against you by a
company within the SodaStream Group, or in its name, the Company shall be
entitled to assume the conduct of your defense in respect of such
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.
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Notwithstanding
the foregoing you will be entitled to appoint separate counsel of your own who
shall accompany you in such proceeding, but the expenses associated with the
employment of such counsel incurred after notice from the Company of its
assumption of the defense thereof shall be at your expense unless (i) the
employment of counsel by you has been authorized by the Company, (ii) you shall
have reasonably concluded in good faith that there is reasonably likely to be a
conflict of interest between the Company and you in the conduct of the defense
of such proceeding or (iii) the Company shall not in fact have employed counsel
to assume the defense of such proceeding, in each of which cases the expenses of
your separate counsel shall be at the expense of the Company. The Company shall
not be entitled to assume the defense of any proceeding brought by or on behalf
of the Company or as to which you shall have made the conclusion provided for in
(ii) above.
The
Company and/or its attorney appointed by it 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 settlement. At the request of the
Company, you shall execute all documents reasonably 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 its
attorney 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 written consent. Furthermore,
in a civil proceeding (whether before a court or as a part of a compromise
arrangement), the Company and/or its attorney will not have the right to admit
to any occurrences that are not fully indemnifiable pursuant to this
Indemnification and Release Agreement (including together with insurance
payments actually received or other amounts actually collected or received from
third parties), or to enter into any settlement, or compromise or consent to any
judgment unless such settlement, compromise or consent includes an unconditional
release of you from all liability arising out of the proceeding, without your
written consent, which will not be unreasonably withheld. However, the aforesaid
will not prevent the Company and/or its attorney 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 fully indemnifiable pursuant to this
Indemnification and Release Agreement (including together with insurance
payments actually received or other amounts actually collected or received from
third parties) and so long as it includes an unconditional release as
aforesaid.
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9.3.
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You
will fully cooperate with the Company and/or its 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; and provided,
further, that you shall not be required to take any action that would in
any way prejudice your defense or waive any defense or position available
to you in connection with any
proceeding.
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9.4.
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You
will do all things reasonably requested by the Board of Directors of the
Company to subrogate to the Company any rights of recovery (including
rights to insurance or indemnification from persons other than the
Company) which you may have with respect to any
proceeding.
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9.5.
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If,
in accordance with paragraph 9.2 above, the Company has assumed the
conduct of your defense, the Company will have no liability or obligation
pursuant to this Indemnification and Release Agreement or the resolutions
referred to below to indemnify you for any legal expenses, including any
legal fees, that you may expend in connection with your defense following
such assumption of defense, except in the event that you are entitled to
retain separate counsel pursuant to the terms of such
paragraph.
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9.6.
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The
Company will have no liability or obligation pursuant to this
Indemnification and Release Agreement or the resolutions referred to below
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 prior consent to such compromise or
settlement.
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9.7.
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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.
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10.
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Subject
to paragraph 2 above, the Company and any relevant company within the
SodaStream Group, hereby exempts and releases you, to the fullest extent
permitted by law, from any liability for damages caused as a result of a
breach of your duty of care to the Company in your capacity as an Office
Holder of the Company, whether such breach occurred or occurs prior or
subsequent to the resolutions referred to below, provided that no such
exemption shall apply to a breach of your duty of care in connection with
a Distribution (as defined in the Companies
Law).
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11.
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If
for the validation of any of the undertakings in this Indemnification and
Release Agreement any act, resolution, approval or other procedure is
required, the Company undertakes to initiate and make its best efforts to
cause them to be done or adopted in a manner which will enable the Company
to fulfill all its undertakings as
aforesaid.
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12.
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For
the avoidance of doubt, it is hereby clarified that nothing contained in
this Indemnification and Release Agreement or in the above resolutions
derogates 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 3 and 7
above.
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13.
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If
any undertaking included in this Indemnification and Release Agreement is
held invalid or unenforceable, such invalidity or unenforceability will
not affect any of the other undertakings, exemptions or releases, which
will remain in full force and effect. Furthermore, if such invalid or
unenforceable undertaking exemption or release may be modified or amended
so as to be valid and enforceable as a matter of law, such undertakings
exemptions or releases will be deemed to have been modified or amended,
and any competent court or arbitrator are hereby authorized to modify or
amend such undertaking exemption or release, so as to be valid and
enforceable to the maximum extent permitted by
law.
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14.
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This
Indemnification and Release Agreement and the agreement herein shall be
governed by and construed and enforced in accordance with the laws of the
State of Israel, as such laws are applied to contracts entered into and to
be performed entirely within the State of Israel, without regard to its
conflict of laws rules.
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15.
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This
Indemnification and Release Agreement contains the entire agreement and
understanding between the Company and yourself in respect of the subject
matter hereof and terminates and replaces any previous agreement in such
respect any previous indemnification agreement with
you.
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16.
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Subject
to all indemnification limitations set herein, the Company shall reimburse
you for all of your reasonable out-of-pocket expenses, including legal
expenses, in enforcing this Indemnification and Release Agreement against
the Company in the event that you prevail in such
enforcement.
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This
letter is being issued to you pursuant to the resolutions adopted by the board
of directors and shareholders of the Company.
Please
sign and return the enclosed copy of this letter to acknowledge your agreement
to the contents hereof.
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Sincerely,
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By:
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Name:
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Title:
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Date:
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Acknowledged
and agreed:
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Name:
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Title:
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Date:
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