Indemnification Agreement - Comverse Technology Inc.
INDEMNIFICATION AGREEMENT
-------------------------
AGREEMENT, dated as of ___________ __, 2003, between Comverse
Technology, Inc., a New York corporation (the "Company"), and ____________ (the
"Indemnitee").
WHEREAS, it is essential to the Company to attract and retain as
directors and officers the most capable persons available;
WHEREAS, Indemnitee is a director or officer of the Company;
WHEREAS, both the Company and Indemnitee recognize the risk of
litigation and other claims being asserted against directors and officers of
public companies;
WHEREAS, the By-laws of the Company require the Company to
indemnify and advance expenses to its directors and officers to the fullest
extent permitted by law and the Indemnitee has been serving and continues to
serve as a director or officer of the Company in part in reliance on such
By-laws;
WHEREAS, in recognition of Indemnitee's need for substantial
protection against personal liability in order to enhance Indemnitee's continued
service to the Company in an effective manner, and Indemnitee's reliance on the
aforesaid By-laws, and in part to provide Indemnitee with specific contractual
assurance that the protection promised by such By-laws will be available to
Indemnitee, regardless of, among other things, any amendment to or revocation of
such By-laws or any change in the composition of the Board of Directors of the
Company (the "Board of Directors") or acquisition transaction relating to the
Company, the Company wishes to provide in this Agreement for the indemnification
of and the advancing of expenses to Indemnitee to the fullest extent (whether
partial or complete) permitted by law and as set forth in this Agreement, and,
to the extent insurance is maintained, for the continued coverage of Indemnitee
under the Company's directors' and officers' liability insurance policies;
NOW, THEREFORE, in consideration of the premises and of
Indemnitee continuing to serve the Company directly or, at its request, another
enterprise, and intending to be legally bound hereby, the parties hereto agree
as follows:
1. Certain Definitions:
--------------------
(a) Change in Control: shall be deemed to have occurred if (i) any
"person" (as such term is used in Sections 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 an entity owned directly or indirectly by the
shareholders of the Company in substantially the same proportions as
<PAGE>
their ownership of stock 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 10% or more of
the total voting power represented by the Company's then outstanding
Voting Securities (or 20% if such person is eligible to report such
ownership on Schedule 13G), or (ii) during any period of two
consecutive years, individuals who at the beginning of such period
constitute the Board of Directors and any new director whose election
by the Board of Directors or nomination for election by the Company's
shareholders was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors at the
beginning of the period or 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 (x)
a merger or consolidation of the Company with any other entity, 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 (y) a plan of complete liquidation of the
Company or (z) an agreement for the sale or disposition by the Company
of (in one transaction or a series of transactions) all or
substantially all the Company's assets.
(b) Claim: any threatened, pending or completed action, suit, arbitration
or proceeding, or any inquiry or investigation, and any appeal
thereof, whether instituted by the Company or any other party
(including, without limitation, any governmental entity), that
Indemnitee in good faith believes might lead to the institution of any
such action, suit, arbitration or proceeding, whether civil, criminal,
administrative, investigative or other.
(c) Expenses: include all attorneys' and experts' fees, expenses and
charges and all other costs, expenses and obligations paid or incurred
in connection with investigating, defending, being a witness in or
participating in (including on appeal), or preparing to defend, be a
witness in or participate in, any Claim relating to any Indemnifiable
Event (it being understood that Indemnitee shall have the right to
choose counsel to represent Indemnitee in any matter for which an
indemnification or Expense Advance might be sought under this
Agreement).
(d) Indemnifiable Event: any event or occurrence, occurring prior to or
after the date of this Agreement, related to the fact that Indemnitee
is, was or agreed to serve as, a director, officer, employee,
consultant, trustee, agent or fiduciary of the Company, or is or was
serving or agreed to serve, at the request of the Company, as a
director, officer, employee, consultant, trustee, agent or fiduciary
of another corporation, partnership, limited liability company, joint
2
<PAGE>
venture, employee benefit plan, trust or other entity or enterprise,
or by reason of anything done or not done by Indemnitee in any such
capacity.
(e) Independent Legal Counsel: an attorney or firm of attorneys, selected
in accordance with the provisions of Section 3, who shall not have
otherwise performed services for the Company or any affiliate of the
Company or Indemnitee within the preceding five years (other than with
respect to matters concerning the rights of Indemnitee under this
Agreement, or of other indemnitees under similar indemnity
agreements).
(f) Potential Change in Control: shall be deemed to have occurred if (i)
the Company enters into an agreement the consummation of which would
result in the occurrence of a Change in Control; (ii) any person
(including the Company) publicly announces an intention to take or to
consider taking actions which, if consummated, would constitute a
Change in Control; (iii) any person, other than a trustee or other
fiduciary holding securities under an employee benefit plan of the
Company or an entity owned, directly or indirectly, by the
shareholders of the Company in substantially the same proportions as
their ownership of stock of the Company, who is or becomes the
beneficial owner, directly or indirectly, of securities of the Company
representing 9.5% or more of the combined voting power of the
Company's then outstanding Voting Securities, increases such person's
beneficial ownership of such securities by five percentage points (5%)
or more over the percentage so owned by such person; or (iv) the Board
of Directors adopts a resolution to the effect that, for purposes of
this Agreement, a Potential Change in Control has occurred.
(g) Reviewing Party: any appropriate person or body consisting of a member
or members of the Board of Directors or any other person or body
appointed by the Board of Directors who is not a party to the
particular Claim for which Indemnitee is seeking indemnification, or
Independent Legal Counsel.
(h) Voting Securities: any securities of the Company which vote generally
in the election of directors.
2. Basic Indemnification Arrangement. (a) In the event Indemnitee was, is or
becomes a party to or witness or other participant in, or is threatened to
be made a party to or witness or other participant in, a Claim by reason of
(or arising all or in part out of) an Indemnifiable Event, the Company
shall indemnify Indemnitee to the fullest extent permitted by law as soon
as practicable, but in any event no later than thirty days after written
demand is presented to the Company, against any and all Expenses,
judgments, fines (including excise taxes assessed on the Indemnitee with
respect to an employee benefit plan), penalties and amounts paid in
settlement (including all interest, assessments and other charges paid or
3
<PAGE>
payable in connection with or in respect of such Expenses, judgments,
fines, penalties or amounts paid in settlement) of such Claim. If so
requested by Indemnitee, the Company shall advance (within two business
days of such request) any and all Expenses to Indemnitee (an "Expense
Advance") to the extent permitted by law. Notwithstanding anything in this
Agreement to the contrary, prior to a Change in Control, Indemnitee shall
not be entitled to indemnification pursuant to this Agreement in connection
with any Claim initiated by Indemnitee, other than pursuant to Sections 5
or 20, unless the Board of Directors has authorized or consented to the
initiation of such Claim.
(b) Notwithstanding the foregoing, (i) the obligations of the Company
under Section 2(a) shall be subject to the condition that the
Reviewing Party shall not have determined (in a written opinion, in
any case in which the Independent Legal Counsel referred to in Section
3 hereof is involved) that Indemnitee would not be permitted to be
indemnified under applicable law, and (ii) the obligation of the
Company to make an Expense Advance pursuant to Section 2(a) shall be
subject to the condition that, if, when and to the extent that the
Reviewing Party determines that Indemnitee would not be permitted to
be 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; provided, however,
that if Indemnitee has commenced or thereafter commences legal
proceedings in a court of competent jurisdiction to secure a
determination that Indemnitee should be indemnified under applicable
law, any determination made by the Reviewing Party that Indemnitee
would not be permitted to be indemnified under applicable law shall
not be binding and Indemnitee shall not be required to reimburse the
Company for any Expense Advance until a final judicial determination
is made with respect thereto (as to which all rights of appeal
therefrom have been exhausted or lapsed). If there has not been a
Change in Control, the Reviewing Party shall be selected by the Board
of Directors and, if there has been a Change in Control (other than a
Change in Control which has been approved by a majority of the Board
of Directors who were directors immediately prior to such Change in
Control), the Reviewing Party shall be the Independent Legal Counsel
referred to in Section 3 hereof. If there has been no determination by
the Reviewing Party within thirty days or if the Reviewing Party
determines that Indemnitee would not be permitted to be indemnified in
whole or in part under applicable law, Indemnitee shall have the right
to commence litigation in any court of competent jurisdiction seeking
an initial determination by the court or challenging any such
determination by the Reviewing Party or any aspect thereof, including
the legal or factual bases therefor, and the Company hereby consents
to service of process and to appear in any such proceeding. Any
determination by the Reviewing Party otherwise shall be conclusive and
binding on the Company and Indemnitee.
4
<PAGE>
3. Change in Control. The Company agrees that, if there is a Change in Control
of the Company (other than a Change in Control which has been approved by a
majority of the Board of Directors who were directors immediately prior to
such Change in Control), then, with respect to all matters thereafter
arising concerning the rights of Indemnitee to indemnity payments and
Expense Advances under this Agreement or any other agreement or the
Company's By-laws now or hereafter in effect relating to Claims for
Indemnifiable Events, the Company shall seek legal advice only from
Independent Legal Counsel selected by Indemnitee and approved by the
Company (which approval shall not be unreasonably withheld or delayed).
Such counsel, among other things, shall render its written opinion to the
Company and Indemnitee as to whether and to what extent the Indemnitee
would be permitted to be indemnified under applicable law. The Company
agrees to promptly pay the reasonable fees of the Independent Legal Counsel
and to indemnify fully such counsel against any and all expenses (including
attorneys' fees), claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto.
4. Establishment of Trust. In the event of a Potential Change in Control, to
the extent permitted by law, the Company shall, upon written request by
Indemnitee, create a trust for the benefit of Indemnitee and, from time to
time upon written request of Indemnitee, shall fund such trust in an amount
sufficient to satisfy any and all Expenses reasonably anticipated at the
time of each such request to be incurred in connection with investigating,
preparing for and defending any Claim relating to an Indemnifiable Event,
and any and all judgments, fines, penalties and settlement amounts of any
and all Claims relating to an Indemnifiable Event from time to time
actually paid or claimed, reasonably anticipated or proposed to be paid,
provided that in no event shall more than $[Trust Limit in Dollars] be
required to be deposited in any trust created hereunder in excess of
amounts deposited in respect of reasonably anticipated Expenses. The amount
or amounts to be deposited in the trust pursuant to the foregoing funding
obligation shall be determined by the Reviewing Party, in any case in which
the Independent Legal Counsel referred to above is involved. The terms of
the trust shall provide that upon a Change in Control (i) the trust shall
not be revoked or the principal thereof invaded, without the written
consent of the Indemnitee, (ii) the trustee shall advance, within two
business days of a request by the Indemnitee, any and all Expenses to the
Indemnitee (and the Indemnitee hereby agrees to reimburse the trust under
the circumstances under which the Indemnitee would be required to reimburse
the Company under Section 2(b) of this Agreement), (iii) the trust shall
continue to be funded by the Company in accordance with the funding
obligation set forth above, (iv) the trustee shall promptly pay to
Indemnitee all amounts for which Indemnitee shall be entitled to
indemnification pursuant to this Agreement or otherwise, and (v) all
unexpended funds in such trust shall revert to the Company upon a final
determination by the Reviewing Party or a court of competent jurisdiction,
as the case may be, that Indemnitee has been fully indemnified under the
terms of this Agreement. The trustee shall be a bank, trust company or
5
<PAGE>
other financial institution chosen by Indemnitee. Nothing in this Section 4
shall relieve the Company of any of its obligations under this Agreement.
5. Indemnification for Additional Expenses. The Company shall indemnify
Indemnitee against any and all expenses (including attorneys' fees) and, if
requested by Indemnitee, shall (within two business days of such request)
advance such expenses to Indemnitee, which are incurred by Indemnitee in
connection with any action brought by Indemnitee for (i) indemnification or
advance payment of Expenses by the Company under this Agreement or any
other agreement or the Company's By-laws now or hereafter in effect
relating to Claims for Indemnifiable Events and/or (ii) recovery under any
directors' and officers' liability insurance policies maintained by the
Company, regardless of whether Indemnitee ultimately is determined to be
entitled to such indemnification, advance expense payment or insurance
recovery, as the case may be.
6. Partial Indemnity, Etc. If Indemnitee is entitled under any provision of
this Agreement to indemnification by the Company for some or a portion of
the Expenses, judgments, fines, penalties and amounts paid in settlement of
a Claim but not, however, for all of the total amount thereof, the Company
shall nevertheless indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled. Moreover, notwithstanding any other provision of
this Agreement, to the extent that Indemnitee has been successful on the
merits or otherwise in defense of any or all Claims relating in whole or in
part to an Indemnifiable Event or in defense of any issue or matter
therein, including dismissal without prejudice, Indemnitee shall be
indemnified against all Expenses incurred in connection therewith.
7. Burden of Proof. In connection with any determination by the Reviewing
Party or otherwise as to whether Indemnitee is entitled to be indemnified
hereunder the burden of proof shall be on the Company to establish that
Indemnitee is not so entitled.
8. Settlement. The Company shall not, without the prior written consent of
Indemnitee, effect any settlement of any threatened or pending Claim to
which Indemnitee is or could have been a party, unless such settlement
solely involves the payment of money and includes an unconditional release
of Indemnitee from all liability on any claims that are the subject matter
of such Claim.
9. No Presumptions. For purposes of this Agreement, the termination of any
claim, action, suit or proceeding, by judgment, order, settlement (whether
with or without court approval) or conviction, or upon a plea of nolo
contendere, or its equivalent, shall not create a presumption that
Indemnitee did not meet any particular standard of conduct or have any
particular belief or that a court has determined that indemnification is
not permitted by applicable law. In addition, neither the failure of the
Reviewing Party to have made a determination as to whether Indemnitee has
met any particular standard of conduct or had any particular belief, nor an
actual determination by the Reviewing Party that Indemnitee has not met
6
<PAGE>
such standard of conduct or did not have such belief, prior to the
commencement of legal proceedings by Indemnitee to secure a judicial
determination that Indemnitee should be indemnified under applicable law
shall be a defense to Indemnitee's claim or create a presumption that
Indemnitee has not met any particular standard of conduct or did not have
any particular belief.
10. Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be in
addition to any other rights Indemnitee may have under the Company's
By-laws, the New York Business Corporation Law, any vote of shareholders or
disinterested directors or otherwise. To the extent that a change in the
New York Business Corporation Law (whether by statute or judicial decision)
permits greater indemnification by agreement than would be afforded
currently under the Company's By-laws and this Agreement, it is the intent
of the parties hereto that Indemnitee shall enjoy by this Agreement the
greater benefits so afforded by such change. To the extent that a change in
the New York Business Corporation Law (whether by statute or judicial
decision) narrows the right of the Company to indemnify its directors and
officers, such changes, to the extent not otherwise required by law, shall
have no effect on this Agreement or the parties' rights and obligations
hereunder. No repeal or modification of the Company's Certificate of
Incorporation or By-laws shall in any way diminish or adversely affect the
rights of the Indemnitee under this Agreement.
11. Liability Insurance. To the extent the Company maintains an insurance
policy or policies providing directors' and officers' liability insurance,
Indemnitee shall be covered by such policy or policies, in accordance with
its or their terms, to the maximum extent of the coverage available for any
Company director or officer. If, at the time of the receipt of a demand for
indemnification or Expense Advance, the Company maintains directors' and
officers' liability insurance, the Company shall give prompt notice of the
commencement of such proceeding to the insurers in accordance with the
procedures set forth in the insurance policies. The Company shall
thereafter take all necessary or desirable action to cause such insurers to
pay, on behalf of the Indemnitee, all amounts payable as a result of such
proceeding in accordance with the terms of such policies.
12. Period of Limitations. No legal action shall be brought and no cause of
action shall be asserted by or in the right of the Company against
Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal
representatives after the expiration of two years from the date of accrual
of such cause of action, and any claim or cause of action of the Company
shall be extinguished and deemed released unless asserted by the timely
filing of a legal action within such two-year period; provided, however,
that if any shorter period of limitations is otherwise applicable to any
such cause of action, such shorter period shall govern.
13. Amendments, Etc. 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 effective
unless in writing executed by party sought to be charged, and no waiver
7
<PAGE>
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.
14. 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 papers required and shall do
everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Company effectively to
bring suit to enforce such rights.
15. No Duplication of Payments. 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 actually received payment
(under any insurance policy or otherwise) of the amounts otherwise
indemnifiable hereunder.
16. Successors; 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, executors and
personal and legal representatives. This Agreement shall continue in effect
regardless of whether Indemnitee continues to serve as an officer or
director of the Company or of any other enterprise at the Company's
request.
17. Severability. The provisions of this Agreement shall be severable in the
event that any of the provisions hereof (including any provision within a
single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable in any respect,
and the validity and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way
impaired and shall remain enforceable to the fullest extent permitted by
law. Furthermore, if such invalid or unenforceable undertaking may be
modified or amended so as to be valid and enforceable as a matter of law,
such undertaking will be deemed to have been modified or amended, and any
competent court or arbitrator are hereby authorized to modify or amend such
undertaking, so as to be valid and enforceable to the maximum extent
permitted by law.
18. Notices. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand to, and received by, the party addressee, on the date of
such receipt or (ii) if mailed by domestic certified or registered mail
with postage prepaid, upon actual receipt. Addresses for notice to any
party are shown on the signature page of this Agreement, or as subsequently
modified by written notice.
19. Additional Acts, Etc. If for the validation of any of the undertakings in
this Agreement any act, resolution, approval or other procedure is
8
<PAGE>
required, the Company undertakes to cause such act, resolution, approval or
other procedure to be affected or adopted in a manner that will enable the
Company to fulfill its obligations under this Agreement.
20. Fees and Expenses of Enforcement. It is the intent of the Company that
Indemnitee not be required to incur legal fees and or other Expenses
associated with the interpretation, enforcement or defense of Indemnitee's
rights under this Agreement by litigation or otherwise because the cost and
expense thereof would substantially detract from the benefits intended to
be extended to the Indemnitee hereunder. Accordingly, without limiting the
generality or effect of any other provision hereof, if it should appear to
Indemnitee that the Company has failed to comply with any of its
obligations under this Agreement or in the event that the Company or any
other person takes or threatens to take any action to declare this
Agreement void or unenforceable, or institutes any litigation or other
action or proceeding designed to deny, or to recover from, the Indemnitee
the benefits provided or intended to be provided to the Indemnitee
hereunder, the Company irrevocably authorizes the Indemnitee from time to
time to retain counsel of Indemnitee's choice, at the expense of the
Company, to advise and represent the Indemnitee in connection with any such
interpretation, enforcement or defense, including without limitation the
initiation or defense of any litigation or other legal action, whether by
or against the Company or any director, officer, shareholder or other
person affiliated with the Company. Without respect to whether the
Indemnitee prevails, in whole or in part, in connection with any of the
foregoing, the Company will pay and be solely financially responsible for
any and all attorneys' and related fees and expenses incurred by the
Indemnitee in connection with any of the foregoing.
21. Specific Performance. The parties recognize that if any provision of this
Agreement is violated by the Company, Indemnitee may be without an adequate
remedy at law. Accordingly, in the event of any such violation, Indemnitee
shall be entitled, if Indemnitee so elects, to institute proceedings,
either in law or at equity, to obtain damages, to enforce specific
performance, to enjoin such violation, or to obtain any relief or any
combination of the foregoing as Indemnitee may elect to pursue.
22. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
contracts made and to be performed in such state without giving effect to
the principles of conflicts of laws.
[Execution Page Follows]
9
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement this __ day of ________________, 2003.
Comverse Technology, Inc.
By
------------------------------
Name:
Title:
Address:
------------------------------
[Indemnitee]
Name:
Address:
10