ASSET PURCHASE AGREEMENT
This
Asset Purchase Agreement (the “Agreement”), made and entered this 28th
day of
November 2005 (the “Effective Date”) by and between V-Secure Technologies (US)
Inc., a Delaware corporation, having its principal place of business at Park
00
Xxxx, Xxxxx XX, Xxxxx 000, Xxxxxx Xxxxx, XX 00000 (hereinafter referred to
as
“V-Secure”) and V-Secure (2000) Ltd., a wholly-owned subsidiary of V-Secure
(“V-Secure Ltd.”); and Radware Ltd., a company registered in Israel, having its
principal place of business at 00 Xxxxx Xxxxxxxxxx Xx., Xxx Xxxx 00000 Israel
(hereinafter referred to as “Radware");
W
I T N E
S S E T H :
WHEREAS,
V-Secure develops, manufactures, markets and sells Intrusion Prevention
Solutions, sold under the name/s V-10,
V-100 and V-1000,
which
incorporate V-Secure’s proprietary hardware and software (the “Products”);
and
WHEREAS,
V-Secure desires to sell to Radware, and Radware desires to purchase from
V-Secure, certain of the business assets of V-Secure utilized in the
development, manufacturing and sale of the Products, including all rights in
the
Products and any software and hardware incorporated therein, designs, customers
lists and contracts, together with V-Secure's intellectual property rights
pertaining thereto all as described below, upon the terms and subject to the
conditions set forth in this Agreement; and
NOW,
THEREFORE, in consideration of the mutual benefits to be
derived
and the representations and warranties, conditions and promises
herein
contained,
and intending to be legally bound hereby, V-Secure, V-Secure Ltd. and Radware
hereby agree as follows:
1.
Definitions
1.1 For
purposes of this Agreement (including any and all Exhibits and amendments made
to or incorporated herein now or in the future), the following capitalized
terms
shall have the following meaning:
“Closing”
means
the
consummation of
the
transactions contemplated under this Agreement, as defined in Section 8
herein.
“Closing
Date”
means
the time and date on which the Closing is actually held.
“Confidential
Information”
shall
mean all information relating to a party’s commercial and business information,
including, without limitation, relating to products, activity, plans, employees,
customers and suppliers, including, without derogating from the foregoing,
all
or any portion or phase of any scientific, technical or non-technical data,
documents, computer programs and related documentation, products, prototypes,
patents, ideas, codes, designs, patterns, processes, methods, schematics,
configurations, specifications, techniques, compilations, drawings, prices,
computations, financial plans, advertising
and marketing concepts, technical concepts,
customers, suppliers and/or distributors lists and including any such
information relating to such party’s subsidiaries and affiliates.
“DefensePro”
means
Radware’s DefensePro product, including any existing and future
version.
“End-users”
means
the
end-customers using the Products.
“Escrow
Account”
means
the account referred to in Section 8.4 herein, holding funds for the purpose
of
payment of bonuses pursuant to the provisions of section 7.4 herein and for
the
purpose of payment of indemnification for breach of warranties pursuant to
section 10.2 herein or for the benefit of V-Secure, all as provided in the
Escrow Agreement.
“Escrow
Agreement” means
an
agreement entered into between Radware, V-Secure and an escrow agent designated
by the parties, which shall be negotiated in good faith by V-Secure and Radware,
and which shall govern the management and withdrawal from the Escrow Account.
However, it is agreed that the Escrow Agreement will include the terms
stipulated in Exhibit
A
herein.
“Intellectual
Property”
means
all
works protectible by copyright, trademark, patent and trade secret laws or
by
any other statutory protection obtained or obtainable, and any Confidential
Information that meets one of the foregoing criteria relating to the Products,
including without limitation, models; drawings; designs, programs and any
inventions including the Patent Applications, the Trademark Application/s and
any Confidential Information pertaining to the Products.
“Integrated
Product”
means a
generally available version of the DefensePro which integrates the Owned
Intellectual Property and provides a behavioral intrusion prevention module
based on V-Secure’s Products’ functionality.
“Knowledge”
with
respect to V-Secure means matters actually known by any executive officer or
Director of V-Secure.
“Licensed
Intellectual Property”
means
the Intellectual Property which is licensed, or otherwise made available for
use, to V-Secure as of the date hereof as listed on Exhibit
B.
“Liens”
means
liens, mortgages, pledges, security interests, restrictions, prior assignments,
encumbrances and claims of every kind, nature or character.
“NSS
Approval”
means
written notification by The NSS Group Ltd. that a product was tested by them
and
obtained the “NSS Approved” certification with multi-gigabit
performance.
“Owned
Intellectual Property”
means
the Intellectual Property owned by V-Secure as set forth on Exhibit
C
as of
the date hereof, and excluding, for the avoidance of doubt, any Licensed
Intellectual Property and excluding the patent application originally developed
by V-secure Technologies Ltd. (an Israeli company formed prior to the formation
of V-Secure and not owned by V-Secure and whose technology has not been
implemented in the Products or used for any other purpose by V-Secure).
“Partners”
means
V-Secure’s distributors, resellers, partners and customers, as well as
prospective customers evaluating the Products or negotiating the purchase of
Products from V-Secure.
“Partner
Agreements” means
the
agreements between V-Secure and its Partners.
“Patent
Applications” means
the
patent applications filed with the U.S. Patent and Trademark Office listed
in
Exhibit
C,
attached hereto.
“Products”
shall
mean the V-10, V-100 and V-1000 and including, without limitation, all goodwill
associated with the products, all software, hardware and technology incorporated
therein, source codes, specifications and design documents.
“Products’
Associated Rights”
means
all rights associated with the Products, their development, manufacturing,
marketing and sale, including, without limitation, the sole and exclusive right
(except as otherwise provided in this Agreement) to develop, integrate, create
derivative works, manufacture, sell, market and distribute the Products and
any
Owned Intellectual Property.
“Products’
Intellectual Property”
means
the Owned Intellectual Property and the Licensed Intellectual
Property.”
“Product
Inventory” means
the
Product inventory owned by V-Secure listed in Exhibit
D attached
hereto to be transferred to Radware.
“Purchase
Orders” means
any
and all purchase orders for Products received by V-Secure and not yet delivered,
as well as any additional purchase orders for Products which shall be received
by V-Secure following the Effective Date.
“Purchased
Assets”
means
all the rights and assets purchased under this Agreement, including the
Products’ Associated Rights, the Owned Intellectual Property, the Product
Inventory, Customer lists and information and any right assigned to Radware
in
connection with the Partners.
“Service
Agreements”
means
the service agreements entered between V-Secure and certain
End-Users.
“Trademark
Applications”
means
the trademark applications listed in Exhibit
C.
“V-Secure
Employees” means
the
employees of V-Secure and V-Secure Ltd.
| 1.2 |
The
Preamble to this Agreement and the Exhibits attached hereto shall form
an
integral part of this Agreement.
|
2
| 1.3 |
List
of Exhibits and Schedules
|
|
Exhibits
|
||
|
Exhibit
A
|
-
|
Escrow
Terms
|
|
Exhibit
B
|
-
|
Licensed
IP
|
|
Exhibit
C
|
-
|
Owned
IP
|
|
Exhibit
D
|
-
|
Product
Inventory
|
|
Exhibit
E
|
-
|
Service
Agreement Migration and Termination procedure
|
|
Exhibit
F
|
-
|
Confidentiality
and Non-Disclosure Agreement
|
|
Schedules
|
||
|
Schedule
4
|
Form
of Warrants
|
|
|
Schedule
7.3 -
|
List
of V-Secure Employees required by Radware
|
|
|
Schedule
8.3(b)
|
List
of approvals and certifications required for Closing.
|
|
|
Schedule
8.3(e)
|
Form
of consent by V-Secure’s external auditors.
|
|
|
Schedule
8.3(f)
|
Consent
by V-Secure’s external auditors in connection with additional
filings.
|
|
|
Schedule
9.1(e)-
|
List
of Agreements provided to Radware
|
|
|
Schedule
9.1(f)-
|
List
of Financial Information provided to Radware
|
|
|
Schedule
9.1(g)-
|
List
of Licenses and Certifications
|
|
2.
Sale
and Purchase of Assets
| 2.1 |
Purchased
Assets.
|
| (a) |
Upon
the terms and subject to the conditions set forth in this Agreement,
on
the Closing Date, V-Secure shall sell, convey, assign, grant, transfer
and
deliver to Radware, and Radware shall purchase, acquire and receive
from
V-Secure (i) the Owned Intellectual Property, (ii) the Product Inventory,
(iii) the Products Associated Rights and (iv) any right or asset granted
or assigned to Radware pursuant to this Agreement, free and clear of
all
Liens.
|
| (b) |
From
and after the Effective Date, V-Secure shall give to Radware and its
representatives free and unrestricted access to the books, files, e-mails
and records of V-Secure relating to the Products. Prior to destroying
or
disposing of such books, files and records, V-Secure shall give 30-days
notice to Radware of the intended destruction or disposition, and Radware
shall have the right to take possession of the same or to make copies
of
the same at its expense.
|
| (c) |
On
the Closing Date, V-Secure shall deliver to Radware and Radware shall
accept the Purchased Assets.
|
| (d) |
For
the avoidance of doubt, any Owned Intellectual Property, which was
developed by V-Secure or any of its employees or subcontractors, shall
be
deemed to be included within the Purchased Assets and to be the property
of Radware.
|
|
2.2
|
Excluded
Assets. For
the avoidance of doubt, the assets being sold to Radware shall not
include
any right, title, interest and claims of V-Secure as the same may exist
on
the Closing Date, and that are not specifically included as part of
the
Purchased Assets, including without limitation any of the following
assets: cash and cash equivalents; tax returns; articles of incorporation
and by-laws of V-Secure; corporate minutes; seals and stock books of
V-Secure; bank deposits or accounts of V-Secure; refunds or claims
for
refunds of taxes; security or similar deposits, insurance policies,
advance payments, all accounts receivable, inventory not included in
Product Inventory, any contracts that V-Secure does not have the right
to
assign, and any contracts and any other assets tangible or intangible,
which do not relate to the Products, the Products’ Associated Rights or
the Products’ Intellectual Property.
|
4
| 2.3 |
No
Liabilities Assumed by Radware. Radware
shall not assume any liabilities, payments or obligations of V-Secure
or
V-Secure Ltd. (absolute, contingent or otherwise) arising out of
V-Secure’s ownership or V-Secure’s or V-Secure Ltd’s operation of any of
the Purchased Assets, or the consummation of the transactions under
this
Agreement or otherwise, including, but not limited to, any purchase
order,
frame agreement, sale agreement, agreements with suppliers and
consultants, support agreement or joint development
agreement.
|
3.
Purchase
of Owned Intellectual Property and Products’ Associated
Rights
| 3.1 |
V-Secure
agrees to sell, assign and transfer to Radware all rights and title
in the
Product Inventory, the
Owned Intellectual Property, and
Products’ Associated Rights. As of the Closing Date, Radware shall have
the sole and exclusive right (except as otherwise provided in this
Agreement) to manufacture, market, sell, license and distribute the
Products, the Owned Intellectual Property and the Products’ Associated
Rights.
|
| 3.2 |
On
the Closing Date V-Secure will assign and transfer to Radware all
Trademark Applications.
|
| 3.3 |
On
the Closing Date V-Secure will assign and transfer to Radware all Patent
Applications.
|
| 3.4 |
V-Secure
agrees to provide Radware by Closing with all Product information,
including, without limitation, Product design documents, Product release
notes, bug-fixes, Product documentation, installation guides, marketing
materials, presentations, road maps, Patent Applications files and
any
additional documentation reasonably requested by Radware in order to
execute the rights purchased under this
Agreement.
|
| 3.5 |
V-Secure
agrees to request approval from The NSS Group Ltd. for the transfer
and
assignment of its approval of V-Secure’s Products to Radware’s name, and
cooperate with NSS and Radware as required for obtaining such approval.
|
4.
Consideration
In
consideration of the sale, conveyance, transfer, assignment and delivery of
the
Purchased Assets, Radware shall (i) pay V-Secure an
aggregate purchase price (the Purchase Price”) of $15,000,000 , of which, (a)
$300,000 has been previously advanced to V-Secure, $300,000 will be payable
within 2 business days of execution of this Agreement and $8,400,000 will be
payable at the Closing (together, the “Base Consideration”), (b) an amount of
$6,000,000 will be payable upon achievement of the milestone set forth in (A)
below (the “Milestone Consideration”) and (ii) deliver to V-Secure, subject to
Closing, warrants to purchase 45,454 Ordinary Shares of Radware (in the form
attached hereto as Schedule 4) (the “Warrants”).
| (A) |
The
Parties agree that they will use their best efforts to obtain NSS Approval
within 3 months from the Closing. The Milestone Consideration will
be paid
to V-Secure in the event that Radware obtains NSS Approval for the
Integrated Product within a maximum of 6 months from the Closing Date
(the
“Milestone Period”). If NSS approval is obtained within the Milestone
Period, within 5 business days of such approval Radware shall transfer
90%
of the Milestone Consideration ($5,400,000) to V-Secure and 10% of
the
Milestone Consideration ($600,000) to the Escrow Account to be used
in
accordance with the Escrow Agreement. It is agreed that that if within
the
Milestone Period, the test is concluded successfully and Radware receives
a draft report from NSS confirming that the Integrated Product passed
the
test and will receive “NSS Approved” status, the Milestone Consideration
will be paid even if the formal Approval Certificate is received after
the
Milestone Period, however, payment shall be made within 5 business
days of
receipt of the formal certificate. Radware undertakes that it will
act in
good faith with the intention to obtain the NSS Approval within the
Milestone Period .
It
is agreed that if NSS discontinues its business for testing and approvals
for intrusion prevention products, or if NSS advises Radware that there
is
no available testing slot any time during the Milestone Period, the
Parties will agree
in good faith on alternative comparable
certification.
|
5
| (B) |
In
the event Radware enters into a binding agreement for the acquisition
of
Radware by a third party (the “Acquisition Agreement”), during the
Milestone Period, and prior to obtaining the NSS Approval, Radware
shall
pay V-Secure the Milestone Consideration as part of the purchase
price for
the Purchased Assets and subsection 4(A) will be
cancelled.
|
All
cash
amounts payable to V-Secure pursuant to this Agreement shall be paid by wire
transfer of immediately available funds to the account or accounts designated
in
writing by V-Secure and to the escrow account/s as detailed in Section 8.4
herein.
5.
Distributors
and End-Users
5.1
V-Secure
agrees to assist Radware with respect to any of its Partners, by:
| (a) |
Participating
with an introduction meeting or conference call and/or sending a letter
(per Radware’s choice) with/to each Partner at a date agreed upon by the
parties which shall be within the 90 days following
Closing;
|
| (b) |
Providing
Radware with each Partner’s full contact details (name and title of
contact person, telephone and fax numbers, office address and e-mail
address) on the Closing Date;
|
| (c) |
On
the Closing Date, assigning to Radware of the Partners Agreements,
to the
extent that such agreements are assignable and to the extent Radware
requests their assignment.
|
| (d) |
V-Secure
will keep personnel as necessary for the performance of its obligations
under this subsection 5.1 and bear the costs related
thereto.
|
|
5.2
|
It
is Agreed and understood that Radware assumes no liability under
any of
the Service Agreements and that V-Secure shall continue to be responsible
for its obligations under the Service Agreements. However, V-Secure
undertakes and Radware agrees that V-Secure shall contact all Partners
under Service Agreements with the intention to have the Partners
agree to
terminate the Service Agreements, by trading-in the Products for
Radware
products, by being compensated for early termination of the Service
Agreement or in another manner acceptable to V-Secure and the Partner,
all
in accordance with the procedure attached hereto as
Exhibit E.
|
|
5.3
|
As
of the Closing Date, V-Secure will assign to Radware the Products
Inventory. For the avoidance of doubt, the Product Inventory excludes
all
units of inventory not listed in Exhibit
D,
which are intended to be used by V-Secure in the negotiation of
termination of the Service Agreements, as well as for customer support,
both pursuant to section 5.2 and Exhibit E
herein.
|
| 6. | Intentionally omitted. |
| 7. | Employees |
| 7.1 |
Radware
may hire any employee of V-Secure. However, any employment of V-Secure
employees shall be subject to an agreement between Radware and the
respective employee regarding the scope of work and terms and conditions
of employment.
|
| 7.2 |
V-Secure
and its CEO shall use reasonable efforts to convince V-Secure Employees
who receive an offer from Radware to take the
offer.
|
| 7.3 |
It
is agreed that in order to preserve and develop the Products’ Intellectual
Property Radware must be able to hire at least 5 out of the V-Secure
Employees listed in Schedule
7.3
herein, and therefore, in the event that at or prior to the Closing
at
least such five (5) employees have not agreed to join Radware, Radware
shall have the right (but no obligation) to terminate this agreement
without any penalty, and in such case V-Secure shall return to Radware
the
advance payment of $300,000 within 20 business days.
|
6
|
7.4
|
In order to encourage such V-Secure Employees to join Radware V-Secure agrees that out of the Base Consideration the sum of US$400,000 (four hundred thousand dollars) will be used for providing such employees with incentive bonuses if they remain with Radware for no less than 12 to 24 months. The above sum will be deposited in the Escrow Account and will be used by Radware for payment of such incentive bonuses as per a pre-determined bonus plan concluded with the V-Secure Employees who will join Radware. Any amount not used for bonus payments to the V-Secure Employees (as a result of termination of employment prior to the lapse of 24 months, under the terms of the bonus plan) will be returned to V-Secure or any third party designated by V-Secure immediately after it becomes known that such amount will not be paid to the designated V-Secure Employees, as will be set forth in the Escrow Agreement. Radware will provide written notice (certified by its CFO) to V-Secure (or its designee) every six months of the status of the amounts deposited with respect to this Escrow Account and of V-Secure’s right of return of unused amounts. . |
| 7.5 | V-Secure and/or V-Secure Ltd., respectively, will terminate the employment of all V-Secure Employees hired by Radware by November 6, 2005 and be solely responsible for payment of their severance, notice, salary, social charges and any payments resulting from an employer-employee relationship up to the date of termination. |
| 8. | Closing |
|
8.1
|
The
Closing.
The Closing shall be held at the offices of Radware Ltd. within 60
days
from the Effective Date, unless required otherwise by law or tax
concerns
or such other place, time and date as Radware and V-Secure may mutually
select.
|
| 8.2 |
Documents
to be delivered at Closing. On
the Closing Date, subject to the terms and conditions of this Agreement,
V-Secure shall deliver to Radware such bills of sale, assignments,
endorsements and other recordable instruments of assignment, transfer
and
conveyance, in form and substance reasonably satisfactory to Radware
and
its counsel, as shall be effective to vest in Radware all of the
right,
title and interest of V-Secure in and to the Purchased Assets free
and
clear of all Liens.
|
| 8.3 |
Conditions
to Closing.
Radware’s obligation to consummate the purchase of the Purchased Assets
hereunder and to transfer the consideration specified above at the
Closing
is subject to the fulfillment at or prior to the Closing of the following
conditions precedent (any of which, except for the execution of the
Escrow
Agreement (which is also a condition of V-Secure’s obligations), may be
waived by Radware):
|
| (a) |
Delivery
by V-Secure of all the Purchased Assets and all associated documents,
materials, consents and permits detailed in Section
8.2.
|
| (b) |
Delivery
by V-Secure of any other permit, consent and/or authorization required
for
the transfer and assignment of the Purchased Assets to Radware, if
required, and as specified in schedule 8.3(b), including any approval
of
the Israeli Ministry of Defense and the US National Security Authority
relating to encryption technology, if such approvals are required.
|
| (c) |
Delivery
by V-Secure of the contact details required under section 5.1(b)
above.
|
| (d) |
Delivery
by V-Secure of confirmation from the Israeli Chief Scientist in a form
that establishes that the Purchased Assets are not subject to any
limitation under the Law for the Encouragement of Research and Development
in the Industry, 1984, and the regulations promulgated thereunder,
as a
result of requests for grants submitted by V-Secure or V-Secure Ltd.
to
the Office of the Chief Scientist.
|
| (e) |
Delivery
by V-Secure of SEC compliant financial statements for the year 2004
(including comparable figures for 2003) accompanied by the consent
of
V-Secure’s external auditors, in the form attached hereto as Schedule
8.3(e).
|
| (f) |
Delivery
by V-Secure of the consent of their external auditors in the form
attached
hereto as Schedule 8.3(f).
|
7
| (g) |
Execution
of the Escrow Agreement.
|
| (h) |
Resolution
of the majority shareholders of V-Secure approving this Agreement.
|
| (i) |
Delivery
by V-Secure and V-Secure Ltd. of written confirmation attesting that
all
of the representations, warranties and undertakings provided by it
this
Agreement are true, correct and effective in all material respects
on and
as of the Closing Date.
|
| 8.4 |
Transfer
of Consideration. Upon
Closing, Radware will transfer $7,100,000 to V-Secure, $400,000 to
an
escrow account to be used for payment of incentive bonuses to the Radware
Employees, in accordance with the terms and conditions of section 7.4
above, the Warrants, and $900,000 to an escrow account to secure
V-Secure’s indemnity obligations in accordance with sections 9 and 10.2.
herein and Schedule 8.3(h) herein, to be used in accordance with the
Escrow Agreement. Additional amounts will be transferred to the Escrow
Account to secure V-Secure’s indemnity obligations in accordance with
Sections 9 and 10.2 and Schedule 8.3(h) herein (in accordance with
the
terms of the Escrow Agreement), in accordance with the terms of Section
4.
For the avoidance of doubt, the above cash consideration totaling
$8,400,000 is in addition to the aggregate advance payments of $600,000
paid prior to signing this Agreement and pursuant to section 4
herein.
|
| 8.5 |
Termination.
This Agreement may be terminated at any time prior to the Closing (by
written notice by the terminating party to the other party)
by
either party if the Closing shall not have occurred within 120 days
from
the Effective Date; provided,
however,
that the right to terminate this Agreement under this Section 8.5 shall
not be available to any party whose breach of any obligation under
this
Agreement or whose failure to effect the Closing when the other party
has
complied with all of its obligations has been the cause of, or resulted
in, the failure of the Closing to occur on or before such
date.
|
| 8.6 |
Effect
of Termination/Failure to Close.
|
| (a) |
In
the event of the termination and abandonment of this Agreement pursuant
to
Section 8.5 of this Agreement, this Agreement shall become void and
have
no effect and no party shall have any obligation to the other parties
hereto with respect to this Agreement, except that (i) V-Secure shall
return the advance payment of $300,000 to Radware within 20 business
days
of such termination, (ii) the provisions of this Section 8.6 shall
survive any termination and abandonment, and (iii) a termination
pursuant
to Sections 8.5 of this Agreement shall not relieve or release the
breaching party from liability for an uncured willful breach of a
representation, warranty, covenant, or agreement giving rise to such
termination, of this Agreement.
|
| (b) |
Upon
any termination of this Agreement prior to closing, Radware shall
promptly
return to V-Secure all property and documentation delivered to Radware
in
connection with this Agreement, destroy any copies and/or summaries
of the
Products’ Intellectual Property and shall refrain from using any of the
Products’ Intellectual Property and or derivatives thereto and V-Secure
shall remain with full ownership of the Products’ Intellectual Property.
|
| 8.6 |
Effect
of Termination/Failure to Close.
|
| 9. |
Representations
and Warranties
|
| 9.1 |
Representations
and Warranties of V-Secure
and V-Secure Ltd. V-Secure and V-Secure Ltd. represent and warrant
to
Radware, jointly and severally, as follows, and acknowledge and confirm
that Radware is relying upon such representations and warranties
in
connection with the execution, delivery and performance of this
Agreement:
|
8
| (a) |
Organization
and Good Standing.
Each of V-Secure and V-Secure Ltd. are corporations duly organized,
validly existing and in good standing under the laws of the State of
Delaware and the State of Israel,
respectively.
|
| (b) |
Consents,
Authorizations, Binding Effect, Etc.
V-Secure and V-Secure Ltd. may execute, deliver and perform this Agreement
without the necessity of any consent, approval, authorization or waiver
or
giving any notice or otherwise, except for the approval of V-Secure’s
stockholders and such consents, approvals, authorizations, waivers
and
notices which have been obtained and are unconditional and remain in
full
force and effect and such notices which have been given. Upon approval
of
V-Secure’s stockholders, which shall be provided prior to Closing, this
Agreement has been duly authorized, executed and delivered by V-Secure
and
V-Secure Ltd. and this Agreement constitutes the legal, valid and binding
obligation of V-Secure and V-Secure Ltd., enforceable against V-Secure
and
V-Secure Ltd. in accordance with its terms. The execution, delivery
and
performance of this Agreement by V-Secure and V-Secure Ltd. will not
(i)
constitute a violation of the respective Certificate of Incorporation
and/or Articles of Incorporation and/or bylaws of V-Secure and V-Secure
Ltd., as amended and in effect on the date hereof (ii) conflict with,
result in the breach of or constitute a default under any contract,
lease,
agreement, license, commitment or order of, or binding upon, V-Secure
or
V-Secure Ltd., to which the Purchased Assets are subject except for
those
that will not have a material adverse effect on the transfer of the
Purchased Assets and Radware’s right to be obtained under this Agreement,
(iii) constitute a violation of any statute, judgment, order, decree
or
regulation or rule of any court, governmental authority or arbitrator
applicable or relating to V-Secure or V-Secure Ltd. or the Purchased
Assets, or (iv) result in the creation of any Lien upon any of the
Purchased Assets pursuant to the provisions of any of the foregoing.
Each
Purchased Asset will be owned or available for use by Radware immediately
subsequent to the Closing, on the same basis as V-Secure used such
asset
or right, free and clear of any Lien.
|
| (c) |
Litigation
and Compliance.
There are no actions, suits, claims or proceedings, whether in equity
or
at law, pending or threatened, and there are no governmental or
administrative investigations pending or threatened, against V-Secure
or
V-Secure Ltd. with respect to the Purchased Assets and/or the Products’
Intellectual Property rights or any other rights associated therewith.
To
V-Secure’s Knowledge, there are no actions, suits, claims or proceedings,
whether in equity or at law, pending or
threatened.
|
| (d) |
Intellectual
Property.
V-Secure owns or has the right to use pursuant to written license,
sublicense, agreement or permission all Products Intellectual Property
and
any additional proprietary rights necessary for the use, sale,
implementation and operation of the Purchased Assets. Each of V-Secure
and
V-Secure Ltd. is not aware of any basis for any claim by any third
party
that the Products or the development, sale, marketing or distribution
thereof, infringes the patents, trademarks, copyrights, trade secrets
or
other intellectual property rights of any third party. V-Secure has
made
no claims that a third party has violated or infringed any of V-Secure’s
trademarks, copyrights, trade secrets or other proprietary
rights.
|
Exhibits
B and C and schedule 9.1(e) set forth all patent applications, copyright
registrations and license agreements or other rights related to the foregoing
and any rights or causes of action resulting from any infringement or violation
of any of the foregoing. Except as disclosed in Exhibit B V-Secure has not
made
any registration or application with respect to any of the Owned Intellectual
Property transferred to Radware hereunder. V-Secure is the applicant of record
in all Patent Applications, and no opposition, extension of time to oppose,
interference, rejection, or refusal to register has been received in connection
with any such Patent Applications. No order, holding, decision or judgment
has
been rendered by any governmental authority, and no agreement, consent or
stipulation exists, which would limit V-Secure’s use of any intellectual
property included in the Purchased Assets. V-Secure is and always has been
the
sole owner of the Intellectual Property included in the Purchased Assets. For
the avoidance of doubt V-Secure Ltd. warrants and confirms that it was never
the
owner of any Intellectual Property included in the Purchased Assets, and any
development work performed, if any, with respect to the Purchased Assets was
performed solely on the basis of works made for hire to the benefit of V-Secure,
and V-Secure Ltd. hereby waives any right it may have in connection with the
Purchased Assets and/or any Intellectual Property associated with the Purchased
Assets.
9
Exhibit
B
identifies each item of intellectual property that any third party owns and
that
V-Secure uses pursuant to license, sublicense, agreement or permission. V-Secure
has made available to representatives of Radware correct and complete copies
of
all such licenses, sublicenses, agreements and permissions (as amended to date),
a list of which is annexed hereto as Exhibit B. With respect to each such item
of intellectual property that is part of the Purchased Assets, the license,
sublicense, agreement or permission covering the item is legal, valid, binding,
enforceable and in full force and effect and will continue to be legal, valid,
binding, enforceable and in full force and effect following the consummation
of
the transactions contemplated by this Agreement.
| (e) |
Contracts.
All
contracts, leases, instruments, licenses, commitments, orders and other
agreements relating to the Purchased Assets are listed on Schedule
9.1(e) hereto
(the “Agreements”). V-Secure warrants and certifies that Radware has been
provided with full, true and correct copies of all such Agreements
and
there are no existing material defaults by V-Secure under any of such
Agreements, other than defaults under Service Agreement that may arise
as
a result of this Agreement or the transaction contemplated
hereby.
|
| (f) |
Financial
Information. V-Secure
and V-Secure Ltd. warrant and certify that the financial information
listed in Schedule
9.1(f) (the
“Financial Information”) has
been provided to Radware, that the Financial Information provided is
true,
accurate and complete; that financial statements, listed in Schedule
9.1(f) (“Financial Statements”) have been prepared in accordance with the
requirements of US GAAP, that there are no liabilities that are required
to be disclosed in such Financial Statements (as of the date of such
Financial Statements) that are not disclosed therein, other than
liabilities incurred in the ordinary course of business and that Radware
has been provided with any and all financial information in connection
with the Products, Products sales, Products pricing and Product
COGs.
|
| (g) |
Licenses
and certifications.
V-Secure warrants and certifies that, the Products carry any licenses
and
certifications required for their sale and export where they have been
sold by V-Secure. A list of such licenses and certifications is attached
hereto as Schedule
9.1(g).
|
| (h) |
No
Other Representations.
Neither V-Secure or V-Secure Ltd. are providing any representations
to
Radware other than the representations contained in this Agreement.
|
| 9.2 |
Representations
and Warranties of Radware.
Radware represents and warrants to V-Secure as follows, and acknowledges
and confirms that V-Secure is relying upon such representations and
warranties in connection with the execution, delivery and performance
of
this Agreement:
|
10
| (a) |
Organization
and Good Standing.
Radware is a corporation duly organized, validly existing and in good
standing under the laws of the State of
Israel.
|
| (b) |
Consents,
Authorizations, Binding Effect, Etc.
Radware may execute, deliver and perform this Agreement without the
necessity of any consent, approval, authorization or waiver or giving
any
notice or otherwise, except for such consents, approvals, authorizations,
waivers and notices which have been obtained and are unconditional
and
remain in full force and effect and such notices which have been given.
This Agreement has been duly authorized, executed and delivered by
Radware
and this Agreement constitutes legal, valid and binding obligation
of
Radware, enforceable against Radware in accordance with its terms.
The
execution, delivery and performance of this Agreement by Radware will
not
(i) constitute a violation of the Articles of Association of Radware,
as
amended and in effect on the date hereof (ii) conflict with, result
in the
breach of or constitute a default under any contract, lease, agreement,
license, commitment or order of, or binding upon, Radware, or (iii)
constitute a violation of any statute, judgment, order, decree or
regulation or rule of any court, governmental authority or arbitrator
applicable or relating to Radware.
|
| 10. |
Additional
Agreements
|
| 10.1 |
Confidentiality.
Each party hereto shall hold in confidence and have
all of its respective employees, agents, representatives and affiliated
companies hold in confidence all documents and other written material
containing information of a confidential nature belonging to the
other
party. The parties shall enter into the Non-Disclosure Agreement
attached
hereto as Exhibit
F.
|
| 10.2 |
Indemnity.
V-Secure and V-Secure Ltd. shall indemnify and hold Radware harmless
from
any liability, claims, suits, expenses (including reasonable attorney’s
fees) and damages (“Claims”) resulting from any actions or omissions or
misrepresentations of V-Secure or V-Secure Ltd. under this Agreement,
or
resulting from infringement, or alleged infringement of any third
party’s
patents or copyrights or misappropriation of any third party’s trade
secrets, in any case where the infringement claim by such third party
is
attributable to the Purchased Assets sold hereunder provided that
: (i)
Radware shall provide V-Secure / V-Secure Ltd. written notice of
such
claim, loss, expense, damage, liability or lawsuit, as soon as
practicable; (ii) Radware shall reasonably cooperate with V-Secure
/
V-Secure Ltd. in the defense and/or settlement thereof, V-Secure
/
V-Secure Ltd. shall indemnify Radware for reasonable out-of pocket
expenses incurred as a result of such cooperation; and (iii) V-Secure
or
V-secure Ltd. shall have an opportunity to assume control of such
defense
and/or settlement negotiations, provided Radware may hire a separate
legal
counsel at its own expense. V-Secure or V-Secure Ltd. shall not enter
into
any settlement, which imposes any liability on Radware or requires
any
admission by Radware without Radware’s written consent, which will not be
unreasonably delayed or withheld. Radware shall not enter into any
settlement, which imposes any liability on V-Secure or requires any
admission by V-Secure without V-Secure’s written consent, which will not
be unreasonably delayed or withheld. V-Secure’s obligations for Claims,
and Radware’s sole remedy, shall be governed by the terms of the Escrow
Agreement and be limited to the amounts specified
therein.
|
|
Notwithstanding
the foregoing, any Claim by an indemnified party against any indemnifying
party pursuant to this Agreement shall be payable by the indemnifying
party only in the event that the accumulated amount of the Claims
in
respect of such indemnifying party’s obligations to indemnify under this
Agreement shall exceed $20,000 in the aggregate (the “Indemnification
Threshold”),
and only for amounts in excess of the Indemnification Threshold.
The
amount of any loss otherwise recoverable under this Section 10.2
by an
indemnified party shall be reduced (i) by any amounts recovered by
the
indemnified party under insurance policies (net of any costs incurred
in
connection with the collection thereof), (ii) by any indemnity,
contribution or similar payment actually received from third parties,
and
(iii) to take account of any net tax benefit actually realized by
the
indemnified party, in respect of the taxable year in which such loss
is
incurred or paid and, with respect to a tax benefit arising in a
year
subsequent to the year in which the loss is paid or incurred, the
indemnified party shall pay to the indemnifying party the amount
of such
tax benefit when such tax benefit is actually realized.
|
11
| 10.3 |
Taxes.
Except as expressly provided otherwise herein, all transfer, sales,
use
and similar taxes, if any, payable by reason of this transaction
or the
sale, transfer or delivery of the Purchased Assets pursuant to this
Agreement shall be paid and borne by Vsecure. Radware will withhold
applicable taxes required by law (if any) and transfer such amounts
to the
appropriate authorities.
|
| 10.4 |
Employees.
Radware
may hire any employee of V-Secure, but is under no obligation to
do so. No
additional consideration will be paid to V-Secure with respect to
the hire
of any V-Secure employees.
|
| 10.5 |
Non-compete.
Upon Closing, V-Secure, V-Secure Ltd. undertake, for a period of
5 years,
not to develop, integrate, market, distribute and/or sell any products
competing with the Products, meaning, any Intrusion Prevention solutions
(“IPS”), and not to consult or provide services, or own any interest,
directly or indirectly, to or in any third party offering competing
solutions. However, the above does not preclude V-Secure from the
right to
continue to support Partners under Service Agreements that remain
in force
after Closing. Xxxxx Xxxx will commit to abide by the existing non-compete
provisions of his employment agreement as applied to Radware.
.
|
| 10.6 |
Further
Assurances.
V-Secure, at any time after the Closing, at the request of Radware,
shall
execute, acknowledge and deliver any further assignments, conveyances
and
other assurances, documents and instruments of transfer, and will
take any
other action consistent with the terms of this Agreement, that may
reasonably be necessary for the purpose of assigning, granting and
confirming to Radware all Purchased Assets to be conveyed pursuant
to this
Agreement.
|
| 11. |
Miscellaneous
|
| 11.1 |
Expenses.
Whether
or not the transactions contemplated by this Agreement are consummated
and, except as otherwise may be expressly provided herein, each party
shall pay its own fees, expenses and disbursements and those of its
respective agents, representatives, consultants, accountants and
counsel
incurred in connection with this Agreement and all other costs and
expenses incurred in the performance and compliance with all conditions
to
be performed by such party under this
Agreement.
|
| 11.2 |
No
Third Party Beneficiaries. Unless
otherwise expressly provided, no provisions of this Agreement are
intended
or shall be construed to confer upon or give to any person or entity
other
than Radware and V-Secure any rights, remedies or other benefits
under or
by reason of this Agreement. For the avoidance of doubt, the V-Secure
Employees shall not be considered third party beneficiaries under
this
Agreement.
|
| 11.3 |
Broker's
Fees.
Except for a fee owed by V-Secure to XX Xxxxxxxxx Towbin, V-Secure
and
Radware represent and warrant to the other that each has no obligation
or
liability to any broker or finder by reason of the transactions which
are
the subject of this Agreement.
|
12
| 11.4 |
Survival
of Representations and Warranties. All
representations and warranties contained herein or made pursuant
hereto,
and any right to seek indemnification pursuant to Section 10.2 above,
shall survive the Closing of the transactions hereunder until June
30,
2007, or for 18 months after Closing, whichever occurs later (limited
to
the amounts specified in the Escrow Agreement and Exhibit
A).
|
| 11.5 |
Notices.
Any notice required or permitted to be given by either party under
this
Agreement shall be in writing and shall be personally delivered or sent by
a reputable overnight mail service, or by first class mail (certified
or
registered), or by facsimile confirmed by first class mail (registered
or
certified). Notices will be deemed effective: (a) three (3) working
days
after deposit, postage prepaid, if mailed; (b) the next day if sent
by
overnight mail; or (c) the same day if sent by facsimile and confirmed
as
set forth above. A copy of any notice shall be sent to the
following:
|
|
to
Radware:
Radware,
Ltd.
00
Xxxxx Xxxxxxxxxx Xx.
Xxx-Xxxx
00000
Xxxxxx
Fax
: 000-0-0000000
Attention:
Xxx Xxxxxxx, CEO
With
CC: Legal Department
|
| to: V-Secure: |
|
c/o
Sharir, Shiv, Xxxxxxxx & Co. Law Offices
3
Azreili Center, Xxxxxxxxxx Xxxxx, 00xx
Xxxxx
Xxx
Xxxx 00000 Xxxxxx
Fax:
000-0-0000000
Attention:
Xxxx Xxxxxx, Adv.
|
| 11.6 |
Waiver
and Modification.
Failure by either party to enforce any provision of this Agreement
will
not be deemed a waiver of future enforcement of that or any other
provision. Any waiver, amendment or other modification of any provision
of
this Agreement will be effective only if in writing and signed by
the
parties.
|
| 11.7 |
No
assignment of Liabilities. Notwithstanding
anything in this Agreement to the contrary, Radware shall not assume,
pay,
perform, or discharge, and V-Secure shall solely retain, pay, perform
and
discharge, all obligations and liabilities of V-Secure, and V-Secure
shall
not assume, pay, perform, or discharge, and Radware shall solely
retain,
pay, perform and discharge, all obligations and liabilities of Radware,
whether disclosed, undisclosed, direct, indirect, fixed or contingent,
known or unknown, incurred in the ordinary course of business or
otherwise.
|
| 11.8 |
Severability.
If for any reason a court of competent jurisdiction finds any provision
of
this Agreement to be unenforceable, that provision of the Agreement
will
be enforced to the maximum extent permissible so as to affect the
intent
of the parties, and the remainder of this Agreement will continue
in full
force and effect.
|
| 11.9 |
Governing
Law.
This Agreement and any action related thereto shall be governed,
controlled, interpreted and defined by and under the laws of the
State of
Israel, without regard to the conflicts of laws provisions
thereof.
|
| 11.10 |
Entire
Agreement.
This Agreement, including all exhibits and schedules which are
incorporated herein by reference, constitutes the entire agreement
between
the parties with respect to the subject matter hereof, and supersedes
and
replaces all prior and contemporaneous understandings or agreements,
written or oral, regarding such subject matter.
|
13
IN
WITNESS WHEREOF, the undersigned have executed this Agreement on and as of
the
date first above written.
| Radware: | V-Secure: | |
| ___________________ | __________________ | |
| Radware Ltd V-Secure | Technologies (US) Inc. | |
|
______________
|
||
|
V-Secure
(2000) Ltd.
|
14
Exhibit
A - Escrow
Terms
Exhibit
B - Licensed
IP
Exhibit
C - Owned
IP
Exhibit
D - Product
Inventory
Exhibit
E -
Service
Agreement migration and termination procedure
Exhibit
F
- Confidentiality and Non-Disclosure Agreement
15
Exhibit
A
Escrow
Agreement
The
Escrow Agreement will be negotiated in good faith by the Parties and signed
prior to Closing. However, it is agreed that the Escrow Agreement will include
the following terms:
| a. |
The
Escrow Agreement will refer to two separate amounts in
escrow:
|
| i. |
$400,000,
which will be used for providing certain V-Secure Employees with incentive
bonuses if they remain with Radware for no less than 12 to 24 months,
in
accordance with the provisions of Section 7.4 of this Agreement (the
“Bonus Deposit”).
|
| ii. |
An
amount between $900,000 and $1,500,000 (pursuant to Sections 4 and
8.4)
which will be used to secure V-Secure’s and V-Secure Ltd.’s indemnity
obligations under the agreement, including their obligations, warranties
and representations under Sections 9, 10.2 and this Schedule 8.3 (h)
of
the Agreement (the “Indemnity Deposit”).
|
| b. |
Any
amounts remaining in the Bonus Deposit after payment of all the bonuses
pursuant to a pre-determined bonus plan to be attached to the Escrow
agreement, will be returned to V-Secure or its designee(s) immediately
after it becomes known that such amount will not be paid to the designated
V-Secure Employees under such bonus plan.
|
| c. |
With
respect to the Indemnity Deposit, it is agreed that on January 1, 2007
or
12 months following closing, whichever occurs later, the Indemnity
Deposit
will be reduced to $500,000 and that the remaining deposit will be
released to V-Secure or its designee(s) within an additional 6 months,
all
subject to any claims made by Radware pursuant to the terms of the
Escrow
Agreement prior to such date.
|
16
EXHIBIT
B
Licensed
Intellectual Property
| 1. |
IP
licensed under Windriver Agreement as supplied to Radware in
hardcopy
|
| 2. |
IP
licensed under MySQL Agreement as supplied to Radware in
hardcopy
|
17
EXHIBIT
C
Owned
Intellectual Property
A.
Patents
Patent
Application Name: “Stateful
Attack Protection”
|
Serial
No: 11/018,255.
|
|
Filed:
Dec 22,2004
|
|
Projected
Publication date: Jun, 22 2006
|
|
First
Inventor: Avi Xxxxxx
|
Patent
Application Name: “Dynamic
Network Protection”
|
Serial
No: 10/441,971
|
|
Filed:
May 19, 2003
|
|
Publication
date: Dec 9, 2004
|
B.
Trademarks
| 1. |
Israeli
trademark application 157235 (NetProtect) (US corresponding case
-
76/464,313)
|
| 2. |
Israeli
trademark application 157236 (NetProtect Enterprise) (US corresponding
case - 76/464,312).
|
Trade xxxx application (NetProtect Enterprise) was issued in the European
community as well.
| 3. |
Israeli
trademark application 157237 (NetProtect Provider) (US corresponding
case
- 76/464,311)
|
| 4. | Israeli trademark application 157238 (NetProtect Infrastructure) (US corresponding case - 76/464,310) |
C. Intellectual
Property
Know-how,
inventions, research records, trade secrets, confidential information, product
designs, engineering specifications and drawings, technical information, or
formulas relating to the Products, including source code (supplied on CD),
bug
list for Products (supplied on CD), design documents and release notes (supplied
on CD), other documentation for Products (supplied on CD), and all of Company’s
rights in white papers and articles related to the Products.
18
EXHIBIT
E
Termination
of Service Agreements for US customers
Exhibit
E of the Asset Purchase Agreement
Within
90
days from signing of the Asset Purchase Agreement V-Secure will:
| · |
V-Secure
will send a letter to V-Secure Partners and Customers, with the text
shown
in the bottom of this document
|
| · |
V-Secure
will contact each of the Partners and/or Customers under existing
valid
warranty and offer them the
following:
|
| o |
V-Secure’s
tech support will continue to fulfill its obligations until 28 February
2006
|
| o |
V-Secure
will offer customers a V-Secure “box” (V-10, V-100, V-1000) per each box
under warranty
|
| o |
In
exchange for the box, V-Secure will ask for a signed form releasing
it
from its further obligations to this
customer
|
| o |
Where
needed, V-Secure will offer to give back a pro-rated share of the
customer
warranty payments, in exchange for a signed form releasing it from
its
further obligations to this
customer
|
| · |
V-Secure
will maintain its customer support line and emails during this
period
|
| · |
V-Secure
will strongly recommend that its existing customers migrate to Radware’s
DefensePRo IPS and DoS solution.
|
| · |
V-Secure
will advise its customers that Radware has been given V-Secure’s customer
contacts and that Radware will be contacting them to discuss a special
V-Secure customer migration program that will provide V-Secure customers
with a limited time offer to purchase DefensePro at a special low
price,
subject to Radware’s agreement to such a plan and
incentives
|
19
Letter
to Partners and Customers:
Dear
V-Secure Customer / Partner,
As
you
may have heard, V-Secure has recently sold its Assets to Radware (Nasdaq: RDWR)
the global leader in integrated application delivery solutions. Radware’s
products deliver
full availability, maximum performance
and
complete
security
of all
business critical networked applications while dramatically cutting operating
and scaling costs.
Upon
completion of Radware’s acquisition of V-Secure’s innovative Intrusion
Prevention technology, Radware will integrate our unique behavioral analysis
capabilities into Radware’s multi-gigabit enterprise scale APSolute™ application
delivery solutions. The integration of V-Secure’s technology into Radware’s
DefensePro security switch creates a leading unique IPS and DoS security
offering.
We
will
be contacting you shortly to discuss how this acquisition may affect you. You
are a valued partner/customer and we want to ensure that we offer you the right
path to migrate your V-Secure intrusion prevention products to Radware’s
platforms. Radware has designed a special migration offer, with a limited time
frame, available only to V-Secure customers under current service agreements.
We
strongly recommend that you take advantage of this offer. It will provide you
with a superior solution, and most importantly, provide a smooth transition
to
ensure business continuity.
Please
feel free to contact us with any questions or comments that you may
have.
Sincerely,
Xxxxx
Xxxx
CEO,
V-Secure Technologies
20
Exhibit
F
CONFIDENTIALITY
AND NON DISCLOSURE AGREEMENT
THIS
CONFIDENTIALITY AND NON DISCLOSURE AGREEMENT(hereinafter referred to as the
“Agreement”) is made and entered into effective as of the 28th
day of
November 2005 by and between RADWARE LTD., an Israeli company with its principle
place of business at 00 Xxxxx Xxxxxxxxxx Xx., Xxx Xxxx, Xxxxxx (hereinafter
referred to as “RADWARE”) and---- between V-Secure Technologies (US) Inc., a
Delaware corporation, having its principal place of business at Park 00 Xxxx,
Xxxxx XX, Xxxxx 000, Xxxxxx Xxxxx, XX 00000 (hereinafter referred to as
“V-Secure”) and V-Secure (2000) Ltd., a wholly-owned subsidiary of V-Secure
(“V-Secure Ltd.”);
WITNESSETH:
| WHEREAS |
Radware,
V-Secure and V-Secure Ltd. entered into an Asset Purchase Agreement
(the
“Asset Purchase Agreement”), pursuant to which Radware shall purchase,
subject to certain terms and conditions assets of V-Secure;
and
|
| WHEREAS |
Each
of Radware and V-Secure is willing to disclose confidential and
proprietary information and data to the other party, pursuant to
the terms
and subject to the conditions hereinafter set forth, and for the
purposes
stated herein; and
|
NOW
THEREFORE, for and in consideration of the premises, and the mutual covenants,
representations and warranties hereinafter set forth, the adequacy and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
1.
Each
party may disclose to the other party certain confidential and proprietary
information and data, relating to its products and/or its business activity.
All
such information and data which may furnished to by one party to the other
is
for the sole purpose of performing the parties’ obligations pursuant to the
Asset Purchase Agreement. Except as expressly provided herein, terms defined
in
the Asset Purchase Agreement shall bear the same meaning in the
Agreement.
All
confidential and proprietary information disclosed by the parties relating
to
the whole or any portion or phase of any scientific, technical or non-technical
data, commercial information, design, pattern, process, formula, device, method,
technique, compilation, program, drawing, financial plans, product plans or
list
of actual or potential customers or suppliers shall hereinafter be referred
to
as “Trade Secrets”. Upon
Closing - the Owned Intellectual Property included in the Purchased Assets
and
any confidential information relating to the Purchased Assets shall be
considered Radware’s Trade Secrets for the purposes of this
Agreement.
2.
Each
party (hereinafter: the “Receiving Party”) hereby acknowledges that all such
Trade Secrets furnished by the other party and/or its agents and/or its officers
and employees (hereinafter: the “Disclosing Party”) is proprietary to the
Disclosing Party and the Receiving Party agrees that all such Trade Secrets
will
remain the property of the Disclosing Party and will be kept
confidential.
3.
The
Receiving Party shall, for a Period of 7 years:
|
(a)
|
make
no use of any of the Trade Secrets except for the purpose stated
in the
foregoing paragraph 1 or as permitted pursuant to the terms of the
Asset
Purchase Agreement;
|
| (b) |
shall
not disclose, implement, or use the Trade Secrets or to make all
or any
part of the Trade Secrets available to any other person or group
for any
other purpose;
|
|
(c)
|
limit
its officers, employees, agents and representatives who are provided
with
the Trade Secrets only to those required to be aware of it for the
purpose
stated in the foregoing paragraph 1 and who are bound to it by obligations
of confidentiality; and
|
21
|
(d)
|
take
such other precautions as it takes with its own confidential and
proprietary information to prevent disclosure of the Trade Secrets
to
third parties.
|
4.
Notwithstanding
any of the foregoing, the obligations of non-use and non-disclosure hereunder
shall not apply to any Trade Secrets that the Receiving Party can show by
competent proof:
| (a) |
was
generally known to the public at the time of disclosure by the Disclosing
Party;
|
| (b) |
becomes
generally known to the public after disclosure by the Disclosing
Party
through no act or omission of the Receiving Party or its officers,
employees, agents, or
representatives;
|
| (c) |
was
disclosed to Receiving Party, prior to the time of disclosure by
the
Disclosing Party by a third party having a bona fide right both to
possess
the information and to disclose the information to the Receiving
Party.
|
| (d) |
is
independently developed by the Receiving Party, as can be evidenced
by
written records.
|
| (e) |
Is
disclosed pursuant to enforceable governmental or legal requirements
provided that the Receiving Party informs the Disclosing Party prior
to
such disclosure and abides by the reasonable requirements of the
Disclosing Party in respect of such
disclosure.
|
However,
the above exclusions shall not apply the Owned Intellectual Property included
in
the Purchased Assets and any confidential information relating to the Purchased
Assets.
22
5.
Each
Receiving Party shall deliver to the Disclosing Party or destroy at Disclosing
Party’s option promptly upon its request, all originals, copies and excerpts of
the Trade Secrets. Upon completion of the delivery or destruction, as the case
may be, of all the Trade Secrets, Receiving Party shall deliver to Disclosing
Party written certification of same signed by a duly authorized
representative.
6.
Each
party shall not, without the other party’s express prior written consent,
disclose in any form to any third parties the substantive content of this
Agreement or of any discussions between the parties to this
Agreement.
7.
The
provisions of this Agreement shall be construed and enforced in accordance
with
the internal law of the State of Israel. If a judicial determination is made
that any of the provisions contained in this Agreement constitute an
unreasonable or otherwise unenforceable restriction against either party, such
provision or provisions shall be rendered void or invalid only to the extent
that such judicial determination finds such provisions to be unreasonable or
otherwise unenforceable, and the remainder of this Agreement shall remain
operative and in full force and effect.
8.
In
any
event the Receiving Party breach or threaten to commit a breach of this
Agreement, the Disclosing Party will, in addition to any other remedies
available to, be entitle to injunction relief.
9.
It
is
agreed and understood that in the event of any litigation between the parties
to
this Agreement to enforce any rights hereunder, the unsuccessful party to such
litigation will pay to the prevailing party therein all cost and expenses
including, but not limited to, reasonable attorney’s fees and cost, actually
incurred by the prevailing party.
10.
No
right
or license to use any Information disclosed hereunder, either express or
implied, is granted by the Disclosing Party.
11.
This
Agreement shall be binding upon and shall inure to the benefit of the parties
and their respective successors, assigns and legal representatives.
12.
This
Agreement constitutes the entire agreement between the parties hereto and
supersedes all prior agreements between the parties hereto with respect to
the
subject matter hereof. No change or modification of the Agreement shall be
valid
or binding on the parties hereto unless made in writing, signed by authorized
representatives of the parties hereto.
13.
The
failure of any party hereto to require the performance of any provisions of
this
Agreement shall in no manner affect the right to enforce the same. No waiver
by
any party hereto of any provisions or of any breach of any provisions of this
Agreement shall be deemed or construed either as a further or continuing waiver
of any such provisions or breach waiver or as a waiver of any other provision
or
breach of any other provision of this Agreement. No waiver of any provision
or
any breach of any provision of this Agreement shall be valid or binding on
the
parties hereto unless made in writing signed by an authorized representative
of
the party against whom the same is sought to be enforced.
IN
WITTNESS WHEREOF, the parties hereto by their authorized representative have
executed this Agreement as of the date first above written.
| RADWARE LTD. | V-SECURE TECHNOLOGIES (US) INC. | |
| By: ___________________ | By: ____________________ | |
| Name: _________________ |
Name:
___________________
|
|
| Title: __________________ |
Title:
___________________
|
|
|
V-SECURE
(2000) LTD.
|
||
|
By:
________________
|
||
|
Name:
______________
|
||
|
Title:
_______________
|
23
Schedule
4
Form
of Warrants
24
Schedule
7.3
List
of V-Secure Employees required by Radware
Avi
Xxxxxx
Xxxxx
Tadir
Xxxx
Xxxxxxx
Xxxx
Xxxxxxxx
Xxxx
Xxxxxx
25
Schedule
8.3(b)
List
of approvals and certifications required for Closing.
Stockholder
Approval of V-Secure
Whether
MOD (relating to encryption) or NSA (relating to encryption) approval is
required to be confirmed prior to Closing
26
Schedule
8.3(e)
Form
of consent by V-Secure’s external auditors.
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the reference to our firm under the caption "Experts" and to the
use
of our reports dated XXX, 0000, with respect to the financial statement
schedules of V-secure Technologies (US) Inc. for the years ended December
31, 2004 and 2003, included in the Annual Report (Form 20-F No. XX) of Radware
Ltd. for 2005 filed with the Securities and Exchange Commission.
27
Schedule
8.3(f)
Consent
by V-Secure’s external auditors in connection with additional
filings
E&Y
understands that Radware Ltd. may be required to file the financial statements
of V-Secure Inc, and related schedules, as well as our report with respect
thereto, with the U.S. Securities and Exchange Commission in future filings
under the Securities Exchange Act of 1934 or Securities Act of 1933 and E&Y
agrees not to unreasonably withhold its consent thereto.
28
Schedule
9.1(e)-
List
of contracts, leases, instruments, licenses, commitments, orders and other
agreements relating to the Purchased Assets
29
Schedule
9.1(f)-
List
of Financial Information provided to Radware
Financial
Information
| 1. |
V-Secure’s Financial Statements under US GAAP for the years 2002, 2003,
2004.
|
| 2. |
V-Secure’s Financial Statements for the periods Q1/05 and
Q2/05.
|
| 3. |
Solo Statements of V-Secure (2000) Ltd and V-secure Technologies
Inc. as
of December 31st,
2004.
|
| 4. |
Solo Statements of V-Secure (2000) Ltd and V-secure Technologies
Inc. as
of June 30th,
2005.
|
| 5. |
Fixed Assets Report
|
| 6. |
Inventory Report
|
| 7. |
Units Allocation Report
|
| 8. |
All the Financial Entries from January 2004 until October
2005.
|
| 9. |
Service Agreements Payment Summary
|
| 10. |
Deferred Maintenance report as of December 31st,
2004 and June 30th
2005
|
Financial
Statements
V-Secure’s
Financial Statements for the year ended 2004.
V-Secure’s
Financial Statements for the periods Q1/05 and Q2/0
30
Schedule
9.1(g)-
List
of Licenses and Certifications required for the production, sale and export
of
the Products
Encryption
license from Israeli Ministry of Defense
