This Indemnity
Agreement (the “Agreement”) is made and
entered into this ___day of
, 2006 by and between Veraz Networks, Inc., a
Delaware corporation (the “Corporation”), and
(“Agent”).
Whereas, Agent
has performed and performs a valuable service to the Corporation in
his capacity as
of the Corporation;
Whereas, the
stockholders of the Corporation have adopted bylaws (the
“Bylaws”) providing for the indemnification of the
directors, officers, employees and other agents of the Corporation,
including persons serving at the request of the Corporation in such
capacities with other corporations or enterprises, as authorized by
the Delaware General Corporation Law, as amended (the
“Code”);
Whereas, the
Bylaws and the Code, by their non-exclusive nature, permit
contracts between the Corporation and its agents, officers,
employees and other agents with respect to indemnification of such
persons;
Whereas , the
Corporation believes that it is reasonable, prudent and necessary
for the Corporation contractually to obligate itself to indemnify,
and to advance expenses on behalf of, such persons to the fullest
extent permitted by applicable law so that they will serve or
continue to serve the Corporation free from undue concern that they
will not be so indemnified; and
Whereas, in
consideration for Agent’s past service and in order to induce
Agent to continue to serve as
of the Corporation, the Corporation has determined and agreed to
enter into this Agreement with Agent.
Now,
Therefore, in consideration of Agent’s past
service and/or continued service as
after the date hereof, the parties hereto agree as
follows:
1. Services to the Corporation. Agent will serve, at
the will of the Corporation or under separate contract, if any such
contract exists, as
of the Corporation or as a director, officer or other fiduciary of
an affiliate of the Corporation (including any employee benefit
plan of the Corporation) faithfully and to the best of his ability
so long as he is duly elected and qualified in accordance with the
provisions of the Bylaws or other applicable charter documents of
the Corporation or such affiliate; provided, however, that
Agent may at any time and for any reason resign from such position
(subject to any contractual obligation that Agent may have assumed
apart from this Agreement) and that the Corporation or any
affiliate shall have no obligation under this Agreement to continue
Agent in any such position.
2. Indemnity of Agent. The Corporation hereby agrees to
hold harmless and indemnify Agent to the fullest extent authorized
or permitted by the provisions of the Bylaws and
1.
the Code, as
the same may be amended from time to time (but, only to the extent
that such amendment permits the Corporation to provide broader
indemnification rights than the Bylaws or the Code permitted prior
to adoption of such amendment).
3. Additional Indemnity. In addition to and not in
limitation of the indemnification otherwise provided for herein,
and subject only to the exclusions set forth in Section 4
hereof, the Corporation hereby further agrees to hold harmless and
indemnify Agent:
(a) against any and all expenses (including
attorneys’ fees); witness fees; damages; judgments; fines;
premiums and security for, and other costs relating to, any costs
bond, supersedes bond, or other appeal bond or its equivalent; any
amounts paid in settlement and any other amounts that Agent becomes
legally obligated to pay because of any claim or claims made
against or by him in connection with any threatened, pending or
completed action, suit, proceeding, or any appeal of the foregoing,
whether civil, criminal, arbitrational, administrative or
investigative (including an action by or in the right of the
Corporation or in any instance that Agent is asked to give or
forced to give witness testimony where neither Agent nor the
Corporation is a party but in which the request is being made by
virtue of Agent’s affiliation to the Corporation), whether
formal or informal, to which Agent is, was or at any time becomes a
party, or is threatened to be made a party, by reason of the fact
that Agent is, was or at any time becomes a director, officer,
employee or other agent of Corporation, or is or was serving or at
any time serves at the request of the Corporation as a director,
officer, employee or other agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise; and
(b) otherwise to the fullest extent as may be provided
to Agent by the Corporation under the non-exclusivity provisions of
the Code and the Bylaws.
4. Limitations on Additional Indemnity. No indemnity
pursuant to Section 3 hereof shall be paid by the
Corporation:
(a) on account of any claim against Agent solely for
an accounting of profits made from the purchase or sale by Agent of
securities of the Corporation pursuant to the provisions of Section
16(b) of the Securities Exchange Act of 1934 and amendments thereto
or similar provisions of any federal, state or local statutory
law;
(b) on account of Agent’s conduct that is
established by a final judgment as knowingly fraudulent or
deliberately dishonest or that constituted willful
misconduct;
(c) on account of Agent’s conduct that is
established by a final judgment as constituting a breach of
Agent’s duty of loyalty to the Corporation or resulting in
any personal profit or advantage to which Agent was not legally
entitled;
(d) for which payment is actually made to Agent under
a valid and collectible insurance policy or under a valid and
enforceable indemnity clause, bylaw or agreement, except in respect
of any excess beyond payment under such insurance, clause, bylaw or
agreement;
2.
(e) if indemnification is not lawful (and, in this
respect, both the Corporation and Agent have been advised that the
Securities and Exchange Commission believes that indemnification
for liabilities arising under the federal securities laws is
against public policy and is, therefore, unenforceable and that
claims for indemnification should be submitted to appropriate
courts for adjudication); or
(f) in connection with any proceeding (or part
thereof) initiated by Agent, or any proceeding by Agent against the
Corporation or its directors, officers, employees or other agents,
unless (i) such indemnification is expressly required to be made by
law, (ii) the proceeding was authorized by the Board of
Directors of the Corporation, (iii) such indemnification is
provided by the Corporation, in its sole discretion, pursuant to
the powers vested in the Corporation under the Code, or
(iv) the proceeding is initiated pursuant to Section 11
hereof.
5. Liability Insurance. For the duration of
Agent’s service as a director and/or officer of the
Corporation, and thereafter for so long as Agent shall be subject
to any pending or possible claim (as set forth in Section 3),
the Corporation shall use commercially reasonable efforts (taking
into account the scope and amount of coverage available relative to
the cost thereof) to cause to be maintained in effect policies of
directors’ and officers’ liability insurance providing
coverage for directors and/or officers of the Corporation that is
at least substantially comparable in scope and amount to that
provided by the Corporation’s current policies of
directors’ and officers’ liability insurance. The
minimum AM Best rating for the insurance carriers of such insurance
carrier shall be not less than A- VI.
6. Continuation of Indemnity.
(a) All agreements and obligations of the Corporation
contained herein shall continue during the period Agent is a
director, officer, employee or other agent of the Corporation (or
is or was serving at the request of the Corporation as a director,
officer, employee or other agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise) and shall continue thereafter so long as Agent shall be
subject to any possible claim or threatened, pending or completed
action, suit or proceeding, whether civil, criminal, arbitrational,
administrative or investigative, by reason of the fact that Agent
was serving in the capacity referred to herein.
(b) The Corporation shall require any successor to the
Corporation (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all, substantially all, or a
substantial part of the business or assets of the Corporation, by
written agreement in form and substance reasonably satisfactory to
the Corporation, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the
Corporation would be required to perform if no such succession had
taken place.
7. Partial Indemnification. Agent shall be entitled
under this Agreement to indemnification by the Corporation for a
portion of the expenses (including attorneys’ fees), witness
fees, damages, judgments, fines and amounts paid in settlement and
any other amounts that Agent be
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