Form of Revised Director Indemnity Agreement
Form
of Revised Director Indemnity Agreement
[Marked
to reflect additions to the Director Indemnity Agreement previously approved
by
the Shareholders Meeting]
AGREEMENT,
dated as of ___________________, between RadwareLtd., an Israeli company (the
“Company”),
and
________, a director and Office Holder of the Company (the “Indemnitee”).
| WHEREAS, |
Indemnitee
is a director and/or Office Holder of the Company;
|
| WHEREAS, |
both
the Company and Indemnitee recognize the risk of litigation and other
claims being asserted against Office Holders of public companies;
|
| WHEREAS, |
the
Articles of Association of the Company authorize the Company to indemnify
directors; and
|
| WHEREAS, |
in
recognition of Indemnitee’s need for substantial protection against
personal liability in order to assure Indemnitee’s continued service to
the Company in an effective manner and Indemnitee’s reliance on the
aforesaid Articles of Association and, in part, to provide Indemnitee
with
specific contractual assurance that the protection promised by the
Articles of Association will be available to Indemnitee (regardless
of,
among other things, any amendment to or revocation or any change
in the
composition of the Company’s Board of Directors or acquisition of the
Company), the Company wishes to provide in this Agreement for the
indemnification of and the advancing of expenses to Indemnitee to
the full
extent (whether partial or complete) permitted by law and as set
forth in
this Agreement.
|
NOW,
THEREFORE,
in
consideration of the foregoing premises and of Indemnitee continuing to serve
the Company directly or, at its request, with another enterprise, and intending
to be legally bound hereby, the parties hereto agree as follows:
1.
CERTAIN
DEFINITIONS
|
1.1
|
Change
in Control:
shall be deemed to have occurred if: (i) any “person” (as such term is
used in Section 13(d) and 14(d) of the Securities Exchange Act of
1934, as
amended), other than a trustee or other fiduciary holding securities
under
an employee benefit plan of the Company or a corporation owned directly
or
indirectly by the shareholders of the Company in substantially the
same
proportions as their ownership of shares of the Company, is or becomes
the
“beneficial owner” (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing 20% or more
of the
total voting power represented by the Company’s then outstanding voting
securities; or (ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board
of
Directors of the Company and any new director whose election by the
Board
of Directors or nomination for election by the Company’s shareholders was
approved by a majority of the directors then still in office who
either
were directors at the beginning of the period of whose election or
nomination for election was previously so approved, cease for any
reason
to constitute a majority thereof; or (iii) the shareholders of the
Company
approve a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would result
in
the voting securities of the Company outstanding immediately prior
thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least
80% of
the total voting power represented by the voting securities of the
Company
or such surviving entity outstanding immediately after such merger
or
consolidation, or the shareholders of the Company approve a plan
of
complete liquidation of the Company or an agreement for the sale
or
disposition by the Company of all or substantially all the Company’s
assets.
|
| 1.2 |
Company:
means
Radware Ltd., and for the purpose of section 2 and the Events listed
in
Schedule A shall include subsidiaries, affiliates, local branches
and
representative offices or Radware Ltd.
|
| 1.3 |
Office
Holder:
as such term is defined in the Companies Law - 5759-1999.
|
| 1.4 |
Events:
mean events which the Company’s Board of Directors determined, in light of
the Company’s actual operations, to be foreseeable events which may expose
the Indemnitee to liability or expense, as detailed in Schedule A
to this
Agreement.
|
| 1.5 |
Position:
means the position of an Office Holder in the Company or any subsidiary
of
the Company or any entity in which Indemnitee serves as an Office
Holder
at the request of the Company either prior to or after the date
hereof
|
2
|
2.
|
INDEMNIFICATION
AND ADVANCEMENT OF
EXPENSES
|
|
2.1
|
The
Company hereby undertakes to indemnify the Indemnitee to the fullest
extent permitted by applicable law, for any liability and expense
that may
be imposed on him/her with respect to the
following:
|
|
2.1.1
|
monetary
liability imposed on the Indemnitee in favor of a third party in
a
judgment, including a settlement or an arbitral award confirmed by
a
court, for an act that the Indemnitee performed by virtue of being
an
Office Holder of the Company and/or holding any Position;
and
|
| 2.1.2 |
reasonable
litigation expenses, including attorney’s fees, expended by the Indemnitee
as a result of an investigation or proceeding instituted against
him or
her by a competent authority, provided that such investigation or
proceeding concluded without the filing of an indictment against
him or
her 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
|
| 2.1.3 |
reasonable
costs of litigation, including attorneys’ fees, expended by the Indemnitee
or for which the Indemnitee has been charged by a court, in an action
brought against the Indemnitee by or on behalf of the Company or
a third
party, or in a criminal action in which the Indemnitee was acquitted,
or
in a criminal offense for which the Indemnitee was convicted and
for which
a proof of criminal intent is not
required.
|
| The above indemnification shall apply to any act performed or failure to act by the Indemnitee in his/her capacity as an Office Holder of the Company or as the holder of any Position. |
|
2.2
|
The
Company’s indemnification undertaking pursuant
to Section 2.1.1
shall cover the Events described in Schedule A hereto, and the
indemnification amount payable by the Company under Section
2.1.1
for each Event shall be limited to the amounts set forth in Schedule
A.
The Company’s
board of directors determined that
the amounts set forth in Schedule A are reasonable considering the
nature
of the event.
|
|
2.3
|
If
so requested by Indemnitee, the Company shall advance an amount (or
amounts) estimated by it to cover Indemnitee’s reasonable litigation
expenses, including attorneys’ fees, with respect to which Indemnitee is
entitled to be indemnified under Section 2.1 above.
|
|
2.4
|
The
Company’s obligation to indemnify Indemnitee and advance expenses in
accordance with this Agreement shall be for such period as Indemnitee
shall be subject to any possible claim or threatened, pending or
completed
action, suit or proceeding or any inquiry or investigation, whether
civil,
criminal or investigative, arising out of the Indemnitee’s service in the
foregoing positions, whether or not Indemnitee is still an
Office Holder of the Company
or
serving in any Position (the “Indemnification
Period”).
|
| 3. |
GENERAL
LIMITATIONS ON
INDEMNIFICATION
|
|
3.1
|
If,
when and to the extent that the Indemnitee would not be permitted
to be so
indemnified under applicable law, the Company shall be entitled to
be
reimbursed by Indemnitee (who hereby agrees to reimburse the Company)
for
all such amounts theretofore paid, unless Indemnitee has commenced
legal
proceedings in a court of competent jurisdiction to secure a determination
that Indemnitee should be indemnified under applicable law, in which
event
Indemnitee shall not be required to so reimburse the Company until
a final
judicial determination is made with respect thereto as to which all
rights
of appeal therefrom have been exhausted or lapsed. In addition, in
such
event the Company shall not be obligated to indemnify or advance
any
additional amounts to Indemnitee, unless there has been a determination
by
a court or competent jurisdiction that the Indemnitee would be permitted
to be so indemnified under this Agreement.
|
|
3.2
|
The
Company undertakes that in the event of a Change in Control of the
Company, the Company’s obligations under this Agreement shall continue to
be in effect following such Change in Control, such as by ensuring
that
the party acquiring control of the Company shall independently undertake
to continue in effect this Agreement or, if not applicable, enter
into a
similar agreement with Indemnitee on terms and conditions at least
as
favorable to Indemnitee as this Agreement, to maintain the provisions
of
the Articles of Association allowing indemnification, if applicable,
and,
in any event, to indemnify Indemnitee in the event that the Company
shall
not have sufficient funds or otherwise shall not be able to fulfill
its
obligations hereunder.
|
| 4. | NO MODIFICATION. |
|
No
supplement, modification or amendment of this Agreement shall be
binding
unless executed in writing by both of the parties hereto. No waiver
of any
of the provisions of this Agreement shall be deemed or shall constitute
a
waiver of any other provisions hereof (whether or not similar) nor
shall
such waiver constitute a continuing waiver. Any waiver shall be in
writing.
|
3
| 5. |
SUBROGATION.
|
|
In
the event of payment under this Agreement, the Company shall be
subrogated
to the extent of such payment to all of the rights of recovery
of
Indemnitee, who shall execute all documents required and take any
actions
which may be necessary to secure such rights, including the execution
of
such documents necessary to enable the Company to effectively bring
suit
to enforce such rights.
|
| 6. | REIMBURSEMENT. |
|
The
Company shall not be liable under this Agreement to make any payment
in
connection with any claim made against Indemnitee to the extent
Indemnitee
has otherwise received payment (under any insurance policy or otherwise)
of the amounts indemnified hereunder. Any amounts paid to Indemnitee
under
such insurance policy or otherwise after the Company has indemnified
the
Indemnitee for such liability or expense shall be repaid to the
Company
promptly upon receipt by Indemnitee.
|
| 7. | EFFECTIVENESS. |
|
Subject
to the receipt of all the required approvals in accordance with
the
Israeli Law, including the approvals of the audit committee, the
Board of
Directors and to the extent required, by the shareholders of the
Company,
this Agreement shall be in full force and effect as of the date
hereof.
|
| 8. |
NOTIFICATION
AND DEFENSE OF CLAIM.
|
|
8.1
|
Promptly
after receipt by Indemnitee of notice of the commencement of any
action,
suit or proceeding which may give rise to an indemnity claim by
Indemnitee
under this Agreement, Indemnitee will promptly notify the Company
in
writing of the commencement hereof; but the omission so to notify
the
Company will not release the Company from any liability which it
may have
under this Agreement. With respect to any such action, suit or
proceeding
of which Indemnitee notifies the Company, and without derogating
from
Clause 2.1:
|
| 8.1.1 The Company will be entitled to participate therein at its own expense; and |
| 8.1.2 Except as otherwise provided below, the Company (jointly with any other indemnifying party) will be entitled (but is not obligated) to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Company to Indemnitee of its election to assume the defense thereof, the Company will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. In the event the Company has assumed the defense as provided herein, Indemnitee shall have the right to engage a separate counsel in such action, suit or proceeding at his/her expense. The Company, however, will bear the expense or indemnify the Indemnitee for the fees of such separate counsel in the following events: (i) the engagement of counsel by Indemnitee has been authorized by the Company in writing and in advance; or (ii) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of the defense of such action. |
|
8.2
|
The
Company shall not be liable to indemnify the Indemnitee under this
Agreement for any amounts paid in settlement of any action or claim
effected without its written consent. The Company shall not settle
any
action or claim in any manner which would impose any penalty or limitation
on the Indemnitee without the Indemnitee’s written consent. Neither the
Company nor the Indemnitee will unreasonably withhold their consent
to any
proposed settlement.
|
| 9. | NON-EXCLUSIVITY. |
|
The
rights of the Indemnitee hereunder shall not be deemed exclusive
of any
other rights he/she may have under the Company’s Articles of Association
or applicable law or otherwise, and to the extent that during the
Indemnification Period the rights of the then existing directors
and
Office Holders are more favorable to such directors or Office Holders
than
the rights currently provided thereunder or under this Agreement
to
Indemnitee, Indemnitee shall be entitled to the full benefits of
such more
favorable rights.
|
| 10. | BINDING EFFECT. |
|
This
Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors,
assigns, including any direct or indirect successor by purchase,
merger,
consolidation or otherwise to all or substantially all of the business
and/or assets of the Company, spouses, heirs and personal and legal
representatives. This Agreement shall continue in effect during the
Indemnification Period, regardless of whether Indemnitee continues
to
serve as an Office Holder or director of the Company or of any other
enterprise at the Company’s request.
|
4
| 11. | SEVERABILITY. |
|
The
provisions of this Agreement shall be severable in the event that
any
provision hereof (including any provision within a single section,
paragraph or sentence) is held by a court of competent jurisdiction
to be
invalid, void or otherwise unenforceable, and the remaining provisions
shall remain enforceable to the fullest extent permitted by law.
|
| 12. |
GOVERNING
LAW, JURISDICTION.
|
|
This
Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of Israel. The parties hereto irrevocably
submit to the exclusive jurisdiction of the courts of Tel-Aviv in
any
action related to this Agreement.
|
| 13. |
ENTIRE
AGREEMENT AND TERMINATION.
|
|
This
Agreement represents the entire agreement between the parties; and
there
are no other agreements, contracts or understandings between the
parties
with respect to the subject matter of this Agreement. No termination
or
cancellation of this Agreement shall be effective unless in writing
and
signed by both parties hereto.
|
RADWARE
LTD.
Name:
________________
By:
Signature:
_____________
5
Schedule
A
|
1.
|
Negotiations,
execution, delivery and performance of agreements on behalf of the
Company, including, without derogating from the generality of the
foregoing, claims for breach of contract, breach of warranty or false
representations
|
$20,000,000
|
||
|
2.
|
Without
derogating from the above, acts and omissions in connection with
the sale
and/or purchase of assets, shares and/or legal entities, including
any
investments, mergers and acquisitions
|
$20,000,000
|
||
|
3.
|
Anti-competitive
acts and acts of commercial wrongdoing
|
$20,000,000
|
||
|
4.
|
Acts
in regard of invasion of privacy including, without limitation, with
respect to databases and acts in regard of slander
|
$20,000,000
|
||
|
5.
|
Acts
in regard of violation of copyrights, patents, trademarks, service
marks,
designs and any other intellectual property rights; Acts in connection
with the intellectual property of the Company 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
|
$20,000,000
|
||
|
6.
|
Acts
in regard of “Y2K” malfunctions
|
$5,000,000
|
||
|
7.
|
Approval
of corporate actions including the approval of the
acts
of the Company’s management, their guidance and their
supervision
|
$20,000,000
|
||
|
8.
|
Claims
of failure to exercise business judgment and a reasonable level of
proficiency, expertise and care in regard of the Company’s business
|
$20,000,000
|
||
|
9.
|
Violations
of securities laws of any jurisdiction, including without limitation,
fraudulent disclosure claims, failure to comply with SEC and/or Nasdaq
rules and other claims relating to relationships with investors and
the
investment community
|
$30,000,000
|
||
|
10.
|
Without
derogating from the above, any claim in connection with the offering
of
the Company’s securities to the public and/or based on a prospectus any
other public filings made by the Company
|
$20,000,000
|
6
|
11.
|
Violations
of laws requiring the Company to obtain regulatory and governmental
licenses, permits and authorizations in any jurisdiction
|
$20,000,000
|
||
|
12.
|
Claims
in connection with publishing or providing any information, including
any
filings with governmental authorities, on behalf of the Company in
the
circumstances required under applicable laws
|
$20,000,000
|
||
|
13.
|
Violations
of any law or regulation governing domestic and international trade
in any
jurisdiction, including, without limitation, export laws.
|
$10,000,000
|
||
|
14.
|
Claims
in connection with employment relationships with Company’s or its
subsidiaries’ employees, including, without limitations, claims for
severance, unfair dismissal, harassment and discrimination
|
$10,000,000
per case
|
||
|
15.
|
Acts
or omissions in connection with the management and operation of the
Company, including, without limitation, claims in connection with
the
Company’s relationship with suppliers, customers, distributors, resellers,
subcontractors, lessors and lessees
|
$10,000,000
|
||
|
16.
|
Without
derogating from the above, acts and omissions in connection with
the
management and monitoring of the Company’s funds and assets
|
$20,000,000
|
||
|
17.
|
Actions
taken pursuant to or in accordance with the policies and procedures
of the
Company, whether such policies and procedures are published or
not.
|
$10,000,000
|
||
|
18.
|
Actions
in connection with product liability, including, without limitation,
the
testing of products developed by the Company and/or in connection
with the
distribution, sale, license or use of such products;
|
$10,000,000
|
