As filed with the Securities and Exchange Commission on June 10, 2003
Registration No. 333-13818
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Post-Effective Amendment No. 1 to
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
RADWARE LTD.
(Exact name of registrant as specified in its charter)
Israel None
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
22 Raoul Wallenberg St.,
Tel Aviv 69710, Israel
011-972-3-766-8666
(Address of principal executive offices) (Zip Code)
RADWARE LTD. AMENDED AND RESTATED 2001 EMPLOYEE STOCK PURCHASE PLAN
RADWARE LTD. - APPENDIX A TO THE 1997 KEY EMPLOYEE SHARE INCENTIVE PLAN
(Full title of the Plans)
Roy Zisapel
Radware Inc.
575 Corporate Drive, Suite 205
Mahwah, New Jersey 07430
(Name and address of agent for service)
(201) 512-9771
(Telephone Number, including area code, of agent for service)
PART II
Information Required in the Registration Statement
Item 8. Exhibits
Exhibit Number Exhibit
4.1 Memorandum of Association of the Registrant, as
amended, filed as Exhibit 3.1 to the Registrant's
Registration Statement on Form F-1, as amended
(Registration No. 333-10752), and
incorporated herein by reference.
4.2 Articles of Association of the Registrant, filed
as Exhibit 3.2 to the Registrant's Registration
Statement on Form F-1, as amended (Registration No.
333-10752), and incorporated herein by reference.
5 Opinion of Goldfarb, Levy, Eran & Co., filed as Exhibit
5 to the Registrant's Registration Statement on Form S-8
(Registration No. 333-13818), and incorporated herein by
reference.
23(a) Consent of Luboshitz Kasierer, filed as Exhibit 23(a) to
the Registrant's Registration Statement on Form S-8
(Registration No. 333-13818), and incorporated herein by
reference.
23(b) Consent of Goldfarb, Levy, Eran & Co., filed as Exhibit
23(b) to the Registrant's Registration Statement on Form
S-8 (Registration No. 333-13818), and incorporated herein
by reference.
24 Power of Attorney, filed as Exhibit 5 to the Registrant's
Registration Statement on Form S-8 (Registration No.
333-13818), and incorporated herein by reference.
99(a) Radware Ltd. Key Employee Share Incentive Plan (1997),
filed as Exhibit 99(b) to the Registrant's Registration
Statement on Form S-8 (Registration No. 333-13818), and
incorporated herein by reference.
99(b) Radware Ltd. Amended and Restated 2001 Employee Stock
Purchase Plan.
99(c) Appendix A to the Key Employee Share Incentive Plan (1997).
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8, and has duly caused
this Amendment to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Tel Aviv, State of Israel on this 10th day of June,
2003.
RADWARE LTD.
By: /s/Yehuda Zisapel
----------------------------
Yehuda Zisapel
Chairman of the Board of Directors
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
RADWARE LTD.
EXHIBIT INDEX
Exhibit Number Exhibit
4.1 Memorandum of Association of the Registrant, as
amended, filed as Exhibit 3.1 to the Registrant's
Registration Statement on Form F-1, as amended
(Registration No. 333-10752), and incorporated herein by
reference.
4.2 Articles of Association of the Registrant, filed as
Exhibit 3.2 to the Registrant's Registration Statement
on Form F-1, as amended (Registration No. 333-10752), and
incorporated herein by reference.
5 Opinion of Goldfarb, Levy, Eran & Co., filed as Exhibit
5 to the Registrant's Registration Statement on Form S-8
(Registration No. 333-13818), and incorporated herein by
reference.
23(a) Consent of Luboshitz Kasierer, filed as Exhibit 23(a) to
the Registrant's Registration Statement on Form S-8
(Registration No. 333-13818), and incorporated herein by
reference.
23(b) Consent of Goldfarb, Levy, Eran & Co., filed as Exhibit
23(b) to the Registrant's Registration Statement on Form
S-8 (Registration No. 333-13818), and incorporated herein
by reference.
24 Power of Attorney, filed as Exhibit 5 to the Registrant's
Registration Statement on Form S-8 (Registration No.
333-13818), and incorporated herein by reference.
99(a) Radware Ltd. Key Employee Share Incentive Plan (1997),
filed as Exhibit 99(b) to the Registrant's Registration
Statement on Form S-8 (Registration No. 333-13818), and
incorporated herein by reference.
99(b) Radware Ltd. Amended and Restated 2001 Employee Stock
Purchase Plan.
99(c) Appendix A to the Key Employee Share Incentive Plan (1997).
EXHIBIT 99(b)
RADWARE LTD.
2001 EMPLOYEE STOCK PURCHASE PLAN
(As Amended and Restated November 21, 2002)
1. Purpose.
The purpose of this Plan is to provide employees of the Company's
Subsidiaries with an opportunity to purchase Ordinary Shares of the
Company through accumulated payroll deductions. It is the intention of
the Company to have this Plan qualify as an "Employee Stock Purchase
Plan" under Section 423 of the Internal Revenue Code of 1986, as
amended. The provisions of this Plan shall, accordingly, be construed
so as to extend and limit participation in a manner consistent with the
requirements of that section of the Code.
2. Definitions.
A. "1999 Plan" means the Company's 1999 Employee Stock Purchase Plan, as
amended from time to time.
B. "Board" means the Board of Directors of the Company.
C. "Code" means the U.S. Internal Revenue Code of 1986, as amended.
D. "Ordinary Shares" means the ordinary shares, NIS 0.1 par value, of the
Company.
E. "Company" means RADWARE Ltd., an Israeli company whose registered
office is at Tel Aviv, Israel, or any successor company.
F. "Compensation" means the fixed salary or wage paid by the Company
to an Employee as reported to the United States government for
Federal income tax purposes, including an Employee's portion of
salary deferral contributions pursuant to section 401(k) of the
Code and any amount excludable pursuant to section 125 of the Code,
but excluding payments for overtime, shift premium, incentive
compensation, incentive payments, bonuses, commissions, severance
pay, foreign service pay, expense reimbursements, any credit or
benefit under any employee plan and any other compensation.
G. "Designated Subsidiary" means any Subsidiary that has been
designated by the Board from time to time in its sole discretion as
eligible to participate in this Plan, and shall in any event include
Radware Inc..
H. "Employee" means any individual who is an employee of a Designated
Subsidiary for purposes of U.S. income tax withholding under the
Code whose customary employment with the Subsidiary is at least
twenty (20) hours per week and more than five (5) months in any
calendar year except (i) any such person who is prohibited by
applicable foreign law from participating in this Plan and (ii) any
employee who is "highly compensated" within the meaning of section
414(q) of the Code. For purposes of this Plan, the employment
relationship shall be treated as continuing intact while the employed
is on sick leave or other leave of absence approved by the Company or
Subsidiary. Where the period of leave exceeds ninety (90)days and
the individual's right to reemployment is not guaranteed either
by statute or by contract, the employment relationship will be deemed
to have terminated on the 91st day of such leave.
I. "Exercise Date" means the Trading Day prior to the date six (6)
months, twelve (12) months, eighteen (18) months or twenty-four
(24) months after the Offering Date on each Offering Period.
J. "Exercise Period" means a period commencing on an Offering Date or on
the Trading Day after an Exercise Date and terminating on the Trading
Day prior to the date six (6) months later.
K. "Fair Market Value" per Ordinary Share as of a particular date shall
mean the closing price per Ordinary Share on such date as reported on
the National Association of Securities Dealers Automated Quotation
National Market System (or on such other recognized market or quotation
system on which the trading prices of the Ordinary Shares are traded or
quoted at the relevant time).
L. "Offering Date" means the first Trading Day of each Offering Period
of this Plan.
M. "Offering Period" means, subject to Section 4 of this Plan, a period of
twenty-four (24) months consisting of four (4) six-month Exercise
Periods during which options granted pursuant to this Plan may be
exercised.
N. "Parent" means a corporation, domestic or foreign, which holds,
directly or indirectly, not less than fifty percent (50%) of the
voting shares of all classes of capital stock of the Company.
O. "Participant" means any Employee subscribing to this Plan in accordance
with Section 5 of this Plan.
P. "Plan" means this 2001 Employee Stock Purchase Plan, as amended from
time to time.
Q. "Radware" means Radware Inc., a wholly owned subsidiary of RADWARE Ltd.
incorporated in the State of New Jersey USA.
R. "Subsidiary" means a corporation, domestic or foreign, of which not
less than fifty percent (50%) of the voting shares of all classes
of capital stock are held, directly or indirectly, by the Company at the
time of granting an option hereunder, whether or not such corporation
now exists or is hereafter organized or acquired by the Company.
S. "Trading Day" means a day on which national stock exchanges and the
National Association of Securities Dealers Automated Quotation
(NASDAQ) System are open for trading.
3. Eligibility.
A. Any Employee who shall be employed on the date his or her
participation in this Plan is effective shall be eligible to
participate in this Plan, subject to limitations imposed by Section
423(b) of the Code. Employees who participate in the 1999 Plan may
also participate in this Plan.
B. Any provisions of this Plan to the contrary notwithstanding, no
Employee shall be granted an option under this Plan or the 1999 Plan
(i) if, immediately after the grant, such Employee (or any other person
whose stock would be attributed to such Employee pursuant to Section
424(d) of the Code) would own stock and/or hold outstanding options
to purchase stock possessing five percent (5%) or more of the total
combined voting power or value of all classes of stock of the Company
or of any Subsidiary or Parent of the Company, or (ii) which permits
his or her rights to purchase stock under all employee stock purchase
plans of the Company and its Subsidiaries and Parent (including the
1999 Plan) to accrue at a rate which exceeds twenty-five thousand
dollars ($25,000) of Fair Market Value of such stock (determined at the
time any such option is granted) for each calendar year in which such
option is outstanding at any time. Any amounts received from an
Employee which cannot be used to purchase Ordinary Shares as a result of
this limitation will be returned as soon as practicable to the Employee
without interest.
4. Offering Periods.
The Plan shall be implemented by overlapping twenty-four (24) month
Offering Periods with a new Offering Period commencing on the first
Trading Date following the first Exercise Date of each previous Offering
Period and ending on the last Trading Day on or prior to the second
anniversary of such commencement date. This Plan shall continue thereafter
until terminated in accordance with Section 20 hereof. Subject to he
requirements of Section 20, the Board shall have the power to change the
duration and/or frequency of Offering Periods with respect to future
offerings and shall use its best efforts to notify Employees of any such
change at least fifteen (15) days prior to the scheduled beginning of the
first Offering Period to be affected. For these purposes, the automatic
transfer to a "Low Price Offering Period" described in Section 10 of this
Plan shall not be a change in the duration of an Offering Period.
Furthermore, the Board may adjust the duration of the first Offering
Period (up to but not exceeding 27 months) to reflect the timing of this
Plan's implementation, provided that such adjustment is announced to
Participants prior to the first Exercise Date under this Plan.
5. Participation.
A. An eligible Employee may become a Participant by completing a
subscription agreement authorizing payroll deductions on a form
provided by the Company and filing it with the Company's payroll
office at least ten (10) business days prior to the applicable
Offering Date, unless a later time for filing the subscription
agreement is set by the Board for all eligible Employees with
respect to a given Offering Period.
B. Payroll deductions for a Participant shall commence on the first
payroll following the Offering Date and shall end on the Exercise
Date of the offering to which such authorization is applicable,
unless sooner terminated by the Participant as provided in Section
11.
6. Payroll Deductions.
A. At the time a Participant files his or her subscription agreement,
he or she shall elect to have payroll deductions made on each payday
during the Offering Period in an amount no less than one percent (1%) of
his or her Compensation, and subject to the limitations of 6(d) hereto,
may amount to ten percent (10%) of his or her aggregate Compensation
during said Offering Period. However, a Participant may not elect a
payroll deduction amount greater than ten percent (10%) in the aggregate
to be applied to the purchase of Ordinary Shares under this Plan and the
1999 Plan.
B. All payroll deductions made by a Participant shall be credited to his or
her account under this Plan and will be withheld in whole percentages
only. A Participant may not make any additional payments into such account
C. A Participant may discontinue his or her participation in this Plan
as provided in Section 11, or may decrease (but not increase) the rate
or amount of his or her payroll deductions during the Offering Period
(within the limitations of Section 6(a)) by competing and filing with
the Company a new subscription agreement authorizing a decrease in the
rate or amount of payroll deductions; provided, however, that a
Participant may not decrease the rate or amount of his or her payroll
deductions more than once in any one month. Provided that the new
authorization is received by the Company more than five (5) business
days in advance of the start of the next payroll period, (the next
payday) the change in rate shall be effective at the next payroll only as
to Compensation accrued following such effectiveness. Subject to the
limitations of Section 6(d), a Participant's subscription agreement
shall remain in effect for successive Offering Periods unless revised as
provided herein or terminated as provided in Section 11.
D. Notwithstanding the foregoing, to the extent necessary to comply with
Section 423(b)(8) of the Code and Section 3(b) herein, a Participant's
payroll deductions may be decreased to zero percent (0%) at such time
during any Exercise Period which is scheduled to end during the current
calendar year that the aggregate of all of such Participant's payroll
deductions accumulated with respect to such Exercise Period and any other
Exercise Period ending within the same calendar year under this Plan or
the 1999 Plan exceed twenty-five thousand dollars ($25,000). Payroll
deductions shall recommence at the rate provided in such Participant's
subscription agreement at the beginning of the first Exercise Period which
is scheduled to end in the following calendar year, unless terminated
by the Participant as provided in Section 11.
E. At the time the option is exercised, in whole or in part, or at the time
some or all of the Company's Ordinary Shares issued under this Plan is
disposed of, the Participant must make adequate provision for the
Company's federal, state or other tax withholding obligations, if any,
which arise upon the exercise of the option or the dispositions, if any,
which arise upon the exercise of the option or the disposition of the
Ordinary Shares. At any time, the Company may, but will not be obligated
to, withhold from the Participant's Compensation the amount necessary for
the Company to meet applicable withholding obligations, including any
withholding required to make available to the Company any tax deductions
or benefits attributable to sale or early disposition of Ordinary
Shares by the Employee.
7. Grant of Option.
On the Offering Date of each Offering Period, each eligible Employee
participating in such Offering Period shall be granted an option to
purchase on each Exercise Date during such Offering Period (at the per
share option price) up to a number of shares of the Company's Ordinary
Shares determined by dividing such Employee's payroll deductions
accumulated prior to such Exercise Date and retained in the Participant's
account as of the Exercise Date by the lower of (i) eighty-five percent
(85%) of the Fair Market Value of a share of the Company's Ordinary Shares
on the Offering Date or (ii) eighty-five percent (85%) of the Fair Market
Value of a share of the Company's Ordinary Shares on the Exercise Date.
Exercise of each option during the Offering Period shall occur as provided
in Section 8, unless the Participant has withdrawn pursuant to Section 11,
and each option shall expire at midnight on the last day of the applicable
Exercise Period.
8. Exercise of Option.
A. Unless a Participant withdraws from this Plan as provided in Section
11, his or her option for the purchase of shares will be exercised
automatically on each Exercise Date of the Offering Period, and the
maximum number of full shares subject to option shall be purchased for
such Participant at the applicable option price with the accumulated
payroll deductions in his or her account. No fractional shares will be
purchased and any amount remaining in the Participant's account after
an Exercise Date shall be held in the account until the next Exercise
Date of the Offering Period, unless the Offering Period has been
oversubscribed or has terminated with such Exercise Date, in which case
such amount shall be refunded to the participant. During a Participant's
lifetime, a Participant's option to purchase shares hereunder is
exercisable only by him or her.
B. For all Offering Periods beginning after November 1, 2002, the
maximum number of shares of the Company's Ordinary Shares
purchasable per Participant on any Exercise Date shall not exceed
10,000 shares, subject to period adjustments in the event of certain
changes in the Company's capitalization. In addition, for all
Offering Periods beginning after November 1, 2002, the maximum number of
shares of the Company's Ordinary Shares purchasable in total by all
Participants on any one Exercise Date shall not exceed 40,000 shares,
subject to period adjustments in the event of certain changes in the
Company's capitalization. However, the Board shall have the
discretionary authority, exercisable prior to the start of any offering
Period under the Plan, to increase or decrease the limitations to be
in effect for the number of shares purchasable per Participant and in
total by all Participants enrolled in that particular Offering Period on
each Exercise Date which occurs during that Offering Period.
9. Delivery.
As promptly as practicable after the Exercise Date of each Exercise
Period, the Company shall arrange the delivery to each Participant, as
appropriate, of a certificate representing the shares purchased upon
exercise of his or her option. Any cash remaining to the credit of a
Participant's account under this Plan after a purchase by him or her of
shares at the termination of each Exercise Period which is insufficient to
purchase a full share of Ordinary Shares of the Company shall be applied
to the Participant's account for the next Exercise Period.
10. Automatic Transfer to Low Price Offering Period.
In the event that the Fair Market Value of the Company's Ordinary Shares
is lower on an Exercise Date than it was on the first Offering Date for
that Offering Period, all Employees participating in this Plan on the
Exercise Date shall be deemed to have withdrawn from the Offering Period 5
business days after the exercise of their option on such Exercise Date and
to have enrolled as participants in a new Offering Period which begins on
or about the day following such Exercise Date. A Participant may elect to
remain in the previous short Offering Period by filling a written
statement declaring such election with the Company no more than 5 business
days prior to the time of the automatic change to the new Offering Period.
11. Withdrawal; Termination of Employment.
A. A Participant may withdraw all, but not less than all, the payroll
deductions credited to his or her account and not yet used to exercise
his or her option under this Plan at any time by giving written notice to
the Company pursuant to a form to be provided by the Company. All of the
Participant's payroll deductions credited to his or her account will be
paid to such Participant as promptly as practicable after receipt of
notice of withdrawal and such Participant's remaining option or options
for the Offering Period will be automatically terminated, and no
further payroll deductions for the purchase of shares will be made
during the Offering Period. If a Participant withdraws from an Offering
Period, payroll deductions will not resume at the beginning of the
succeeding Offering Period unless the Participant delivers to the
Company a new subscription agreement.
B. Upon a Participant's ceasing to be an Employee prior to an Exercise
Date for any reason, including retirement or death, or upon
termination of a Participant's employment relationship (as
described in Section 2(g)), the payroll deductions credited to such
Participant's account during the Exercise Period but not yet used
to exercise the option will be returned to such Participant or, in
the case of his or her death, to the person or persons entitled
thereto under Section 16 of this Plan, and such Participant's
remaining option or options will be automatically terminated. Such
termination shall be deemed a withdrawal from this Plan.
C. A Participant's withdrawal from an Offering Period will not have
any effect upon his or her eligibility to participate in any
similar plan which may hereafter be adopted by the Company or in
succeeding Offering Periods which commence after the Participant
withdraws.
12. Interest.
No interest shall accrue on or be payable with respect to the payroll
deductions of a Participant in this Plan or any assets held in the
Participant's account.
13. Stock.
A. The maximum number of Ordinary Shares of the Company's Ordinary
Shares which shall be made available for sale under this Plan shall be
200,000 Ordinary Shares subject to adjustment upon changes in
capitalization of the Company as provided in Section 19 of this Plan.
If on a given Exercise Date the number of Ordinary Shares with respect
to which options are to be exercised exceeds the number of Ordinary
Shares then available under this Plan (after deduction of all Ordinary
Shares for which options have been exercised or are then outstanding),
the Company shall make a pro rata allocation of the Ordinary Shares
remaining available for option grant in as uniform a manner as shall be
practicable and as it shall determined to be equitable. In such event,
the Company shall give written notice of such reduction of the number
of Ordinary Shares subject to the option to each Employee affected
thereby and shall similarly reduce the rate of payroll deductions, if
necessary. Any amounts remaining in an Employee's account which have not
been applied to the purchase of Ordinary Shares pursuant to this Section
13 shall be refunded on or promptly after the applicable Exercise Date.
B. A Participant will have no interest or voting right in Ordinary
Shares covered by his or her option until such option has been
exercised.
C. Ordinary Shares to be delivered to a Participant under this Plan
will be registered in the name of the Participant or in the name of
the Participant and his or her spouse.
14. Administration.
A. The Plan shall be administered by the Board or a committee
appointed by the Board. The Board or its committee shall have full
and exclusive discretionary authority to construe, interpret and
apply the terms of this Plan, to determine eligibility and to
adjudicate all disputed claims filed under this Plan. Every
finding, decision and determination made by the Board or its
committee shall, to the full extent permitted by law, be final and
binding upon all parties. Members of the Board who are eligible
Employees are permitted to participate in this Plan, provided that:
B. Members of the Board who are eligible to participate in this Plan
may not vote on any matter affecting the administration of this
Plan or the grant of any option pursuant to this Plan.
C. If a committee is established to administer this Plan, no member of
the Board who is eligible to participate in this Plan may be a
member of the committee.
15. Designation of Beneficiary.
A. A Participant may file a written designation of a beneficiary who
is to receive any shares and cash, if any, from the Participant's
account under this Plan in the event of such Participant's death
subsequent to the end of the Offering Period but prior to delivery
to him or her of such shares and cash. In addition, a Participant
may file a written designation of a beneficiary who is to receive
any cash from the Participant's account under this Plan in the
event of such Participant's death prior to the Exercise Date of the
Offering Period.
B. Such designation of beneficiary may be changed by the Participant
at anytime by written notice. In the event of the death of a
Participant and in the absence of a beneficiary validly designated
under this Plan who is living at the time of such Participant's
death, the Company shall deliver such shares and/or cash to the
executor or administrator of the estate of the Participant, or if
no such executor or administrator has been appointed (to the
knowledge of the Company), the Company, in its discretion, may
deliver such shares and/or cash to the spouse or to any one or more
dependents or relatives of the Participant, or if no spouse,
dependent or relative is known to the Company, then to such other
person as the Company may designate.
16. Transferability.
Neither payroll deductions credited to a Participant's account nor
any rights with regard to the exercise of an option or to receive
shares under this Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will, the laws of
descent and distribution or as provided in Section 15 hereof) by
the Participant. Any such attempt at assignment, transfer, pledge
or other disposition shall be without effect, except that the
Company may treat such act as an election to withdraw funds from an
Offering Period in accordance with Section 11.
17. Use of Funds.
All payroll deductions received or held by the Company under this
Plan may be used by the Company for any corporate purpose, and the
Company shall not be obligated to segregate such payroll deductions
18. Reports.
Individual accounts will be maintained for each Participant in this Plan.
Statements of account will be given to participating Employees annually,
which statements will set forth the amounts of payroll deductions, the per
share purchase price, the number of shares purchased and the remaining
cash balance, if any.
19. Adjustments Upon Changes in Capitalization.
Subject to any required action by the shareholders of the Company, (i) the
number of shares of Ordinary Shares covered by each option under this Plan
which has not yet been exercised and the number of shares of Ordinary
Shares which have been authorized for issuance under this Plan but have
not yet been placed under option (collectively, the "Reserves"), (ii) the
price per share of Ordinary Shares covered by each option under this Plan
which has not yet been exercised, (iii) the maximum number and class of
securities purchasable per Participant on any one Exercise Date, and [(iv)
the maximum number and class of securities purchasable in total by all
Participants on any one Exercise Date,] shall be proportionately adjusted
for any increase or decrease in the number of issued Ordinary Shares
resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Ordinary Shares, or any other
increase or decrease in the number of shares of Ordinary Shares effected
without receipt of any conversion of any convertible securities of the
Company shall not be deemed to have been "effected without receipt of
consideration." Such adjustment shall be made by the Board, whose
determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issue by the Company of shares of
stock of any class, or securities convertible into shares of stock of any
class, shall affect, and no adjustment by reason thereof shall be made
with respect to, the number or price of shares of Ordinary Shares subject
to an option.
In the event of the proposed dissolution or liquidation of the Company,
the Offering Period will terminate immediately prior to the consummation
of such proposed action, unless otherwise provided by the Board. In the
event a proposed sale of all or substantially all of the assets of the
Company, or the merger of the Company with or into another corporation,
each option under this Plan shall be assumed or an equivalent option shall
be substituted by such successor corporation or a parent or subsidiary of
such successor corporation, unless the Board determines, in the exercise
of its sole discretion and in lieu of such assumption or substitution, to
shorten the Offering Period then in progress by setting a new Exercise
Date (the "New Exercise Date"). If the Board shortens the Offering Period
then in progress in lieu of assumption or substitution in the event of a
merger or sale of assets, the Board shall notify each Participant in
writing, at least thirty (30) days prior to the New Exercise Date, that
the Exercise Date for his or her option has been changed to the New
Exercise Date and that his or her option has been changed to the New
Exercise Date and that his or her option will be exercised automatically
on the New Exercise Date, unless prior to such date he or she has
withdrawn from the Offering Period as provided in Section 11. For purposes
of this paragraph, an option granted under this Plan shall be deemed to be
assumed if, following the sale of assets or merger the option confers the
right to purchase, for each share of option stock subject to the option
immediately prior to the sale of assets or merger the consideration
(whether stock, cash or other securities or property) received in the sale
of assets or merger by holders of Ordinary Shares for each share of
Ordinary Shares held on the effective date of the transaction (and if such
holders were offered a choice of consideration, the type of consideration
chosen by the holders of a majority of the outstanding shares of Ordinary
Shares); provided, however, that if such consideration received in the
sale of assets or merger was not solely common stock of the successor
corporation or its parent (as defined in Section 424(e) of the Code), the
Board may, with the consent of the successor corporation and the
participant, provide for the consideration to be received upon exercise of
the option to be solely common stock of the successor corporation or its
parent equal in fair market value to the per share consideration received
by holders of Ordinary Shares in the sale of assets or merger.
The Board may, if it so determines in the exercise of its sole discretion,
also make provision for adjusting the reserves, as well as the price per
share of Ordinary Shares covered by each outstanding option, in the event
that the Company effects one or more reorganizations, recapitalizations,
rights offerings or other increases or reductions of shares of its
outstanding Ordinary Shares, and in the event of the Company being
consolidated with or merged into any other corporation.
20. Amendment or Termination.
A. The Board may at any time and for any reason terminate or amend
this Plan. Except as provided in Section 19, no such termination
can affect options previously granted, provided that an Offering
Period may be terminated by the Board on any Exercise Date if the Board
determines that the termination of this Plan is in the best interests
of the Company and its shareholders. Except as provided in Section 19,
no amendment may make any change in any option theretofore granted
which adversely affects the rights of any Participant. To the extent
necessary to comply with Section 423 of the Code (or any successor rule
or provision or any other applicable law or regulation), the Company
shall obtain shareholder approval in such a manner and to such a
degree as required. In the event that this Plan is not duly approved
by the shareholders of the Company by the end of the first Exercise
Period of the first Offering Period, this Plan shall terminate.
B. Without shareholder consent and without regard to whether any
Participant rights may be considered to have been "adversely affected,
" the Board (or its committee) shall be entitled to change the
Offering Periods, limit the frequency and/or number of changes in the
amount withheld during an Offering Period, establish the exchange
ratio applicable to amounts withheld in a currency other than U.S.
dollars, permit payroll withholding in excess of the amount designated
by a Participant in order to adjust for delays or mistakes in the
Company's processing of properly completed withholding elections,
establish reasonable waiting and adjustment periods and/or accounting
and crediting procedures to ensure that amounts applied toward the
purchase of Ordinary Shares for each Participant properly correspond
with amounts withheld from the Participant's Compensation, and
establish such other limitations or procedures as the Board (or its
committee)determines in its sole discretion advisable which are
consistent with this Plan.
21. Notices.
All notices or other communications by a Participant to the Company under
or in connection with this Plan shall be deemed to have been duly given
when received in the form specified by the Company at the location, or by
the person, designated by the Company for the receipt thereof.
22. Conditions Upon Issuance of Shares.
Shares shall not be issued with respect to an option unless the exercise
of such option and the issuance and delivery of such shares pursuant
thereto shall comply with all applicable provisions of law, domestic or
foreign, including, without limitation, the Securities Act of 1933, as
amended, the Securities Exchange Act of 1934, as amended, the rules and
regulations promulgated thereunder, and the requirements of any stock
exchange upon which the shares may then be listed, and shall be further
subject to the approval of counsel for the Company with respect to such
compliance.
As a condition to the exercise of an option, the Company may require the
person exercising such option to represent and warrant at the time of any
such exercise that the shares are being purchased only for investment and
without any present intention to sell or distribute such shares if, in the
opinion of counsel for the Company, such a representation is required by
any of the aforementioned applicable provisions of law.
23. Term of Plan.
The Plan shall become effective upon the earlier to occur of its adoption
by the Board or its approval by the shareholders of the Company. It shall
continue for a term of ten (10) years unless sooner terminated under
Section 20.
EXHIBIT A
RADWARE LTD.
2001 EMPLOYEE STOCK PURCHASE PLAN
SUBSCRIPTION AGREEMENT
Original Application Offering Date: ________________
Decrease in Payroll Deduction Rate
1. __________________________ hereby elects to participate in the Radware
Ltd. 2001 Employee Stock Purchase Plan (the "Stock Purchase Plan") and
subscribes to purchase shares of the Company's Ordinary Shares in
accordance with this Subscription Agreement and the Stock Purchase
Plan.
2. I hereby authorize payroll deductions from each paycheck in the amount
of ___% of my Compensation on each payday (not to be less than 1% and
not to exceed 10%) during the Offering Period in accordance with the
Stock Purchase Plan. (Please note that no fractional percentages are
permitted). Such deductions are to continue for succeeding Offering
Periods under the Stock Purchase Plan until I give written instructions
for a decrease in or termination of such deductions.
3. I understand that said payroll deductions shall be accumulated for the
purchase of shares of Ordinary Shares at the applicable purchase price
determined in accordance with the Stock Purchase Plan. I further
understand that, except as otherwise set forth in the Stock Purchase
Plan, shares will be purchased for me automatically on each Exercise
Date of the Offering Period unless I otherwise withdraw from the Stock
Purchase Plan by giving written notice to the Company for such purpose.
4. Shares purchased for me under the Stock Purchase Plan should be issued
in the name(s) of: __
______________________________________________________________________
______________________________________________________________________
5. I acknowledge that, under the Internal Revenue Code, there are special
tax "holding period" rules that govern the tax consequences of buying
and selling shares under the Stock Purchase Plan. I understand that if
I dispose of shares purchased under the Stock Purchase Plan within two
years of the Offering Date (i.e., the first day of the Offering Period)
or within one year of the Exercise Date (i.e., the date the shares are
purchased), I will be treated for federal income tax purposes as having
received ordinary income at the time of the sale equal to the
difference between my purchase price and the market value of the stock
on the Exercise Date. Any amount in excess of that difference will be
treated as capital gain. I hereby agree to notify the Company in
writing within 30 days after the date of any such disposition.
I further understand that if I hold the shares for both the two-year
and one-year holding periods described above, at the time I dispose of
the shares I will be treated for federal income tax purposes as having
received ordinary income in any amount equal only to the lesser of (1)
the difference between my purchase price and the market value of the
stock on the Offering Date or (2) the difference between my purchase
price and the actual sale price for my stock. Any additional gain I
receive on the sale will be treated as capital gain.
6. I have received a copy of the complete "Radware Ltd. 2001 Employee
Stock Purchase Plan." I understand that my participation in the Stock
Purchase Plan is in all respects subject to the terms of the Stock
Purchase Plan.
Employee's Social Security Number: ____________________________________________
Employee's Address: ___________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
I UNDERSTAND THAT THIS SUBSCRIPTION AGREEMENT SHALL REMAIN IN EFFECT THROUGHOUT
SUCCESSIVE OFFERING PERIODS UNLESS TERMINATED BY ME.
Dated:________________________________________________________________________
Signature of Employee
EXHIBIT B
RADWARE LTD.
2001 EMPLOYEE STOCK PURCHASE PLAN
NOTICE OF WITHDRAWAL
The undersigned Participant in the Offering Period of the Radware Ltd. 2001
Employee Stock Purchase Plan which began on _________ __, [____] (the "Offering
Date") hereby notifies the Company that he or she hereby withdraws from the
Offering Period. He or she hereby directs the Company to pay to the undersigned
as promptly as possible all the payroll deductions credited to his or her
account with respect to such Offering Period. The undersigned understands and
agrees that his or her remaining option or options for such Offering Period will
be automatically terminated. The undersigned understands further that no further
payroll deductions will be made for the purchase of shares in the current
Offering Period and the undersigned shall be eligible to participate in
succeeding Offering Periods only by delivering to the Company a new Subscription
Agreement.
Name and Address of Participa
--------------------------------
--------------------------------
--------------------------------
Signature
--------------------------------
Date: _________________________
EXHIBIT C
RADWARE LTD.
2001 EMPLOYEE STOCK PURCHASE PLAN
NOTICE OF SALE OR OTHER DISPOSITION
To: RADWARE Ltd.
____________________________
____________________________
____________________________
Attn:_______________________
This notice is to inform the Company of sales or other dispositions of stock
acquired under the 2001 Employee Stock Purchase Plan (the "Plan"), so that the
Company can fulfill its tax reporting obligations. This form must be completed
and submitted to the Company whenever you sell stock acquired under the Plan,
even if you no longer are employed by the Company. If you need assistance in
completing this form, contact Ann Sullivan, Human Resources Director.
1. Employee Name:___________________________________________________________
2. Number of Shares Sold or Disposed of:_____________________________________
3. Date(s) these Shares were purchased under the Plan:_______________________
__________________________________________________________________________
4. Date of Sale or other Disposition:_________________________________________
5. Type of Disposition: Sale __ Gift __ Other (describe) __
__________________________________________________________________________
6. Stock Price per Share at Sale or Disposition:$____________________________
7. Amount Received on Sale or Disposition:$___________________________________
_______________________________
Employee Signature.
RADWARE LTD.
APPENDIX A - ISRAEL
TO THE 1997 KEY EMPLOYEE SHARE INCENTIVE PLAN
1. GENERAL
1.1. This Appendix is effective with respect to Options granted as of
January 1, 2003 and shall comply with Amendment no. 132 of the
Ordinance (as defined below).
1.2 This appendix (the "Appendix" shall apply only to Grantees who are
residents of the state of Israel or those who are deemed to be
residents of the state of Israel for the payment of tax. The provisions
specified hereunder shall form an integral part of the 1997 Share
Incentive Plan of Radware Ltd. (hereinafter: the "Plan"), which applies
to the issuance of options to purchase Ordinary Shares of Radware Ltd.
(hereinafter: the "Company"). Options to purchase the Company's
Ordinary Shares may be issued to employees, directors, consultants and
service providers of the Company or its Affiliates
1.3. This Appendix is to be read as a continuation of the Plan and only
modifies options granted to Israeli Grantees so that they comply with
the requirements set by the Israeli law in general, and in particular
with the provisions of Section 102 (as specified herein), as may be
amended or replaced from time to time For the avoidance of doubt, this
Appendix does not add to or modify the Plan in respect of any other
category of Grantees.
1.4. The Plan and this Appendix are complimentary to each other and shall be
deemed as one. In any case of contradiction, whether explicit or
implied, between the provisions of this Appendix and the Plan, the
provisions set out in the Appendix shall prevail.
1.5. Any capitalized terms not specifically defined in this Appendix shall
be construed according to the interpretation given to it in the Plan.
2. DEFINITIONS
2.1 "Affiliate" means any "employing company" within the meaning of Section
102(a) of the Ordinance.
2.2 "Approved 102 Option" means an Option granted pursuant to Section
102(b) of the Ordinance and held in trust by a Trustee for the benefit
of the Grantee.
2.3 "Capital Gain Option (CGO)" means an Approved 102 Option elected and
designated by the Company to qualify under the capital gain tax
treatment in accordance with the provisions of Section 102(b)(2) of the
Ordinance.
2.4 "Controlling Shareholder" shall have the meaning ascribed to it in
Section 32(9) of the Ordinance.
2.5 "Employee" means a person who is employed by the Company or its
Affiliates, including an individual who is serving as a director or an
office holder, but excluding any Controlling Shareholder.
2.6 "Grantee" means the persons to whom options shall be granted.
2.7 "ITA" means the Israeli Tax Authorities.
2.8 "Non-Employee" means a consultant, adviser, service provider,
Controlling Shareholder or any other person who is not an Employee.
2.9 "Ordinary Income Option (OIO)" means an Approved 102 Option elected and
designated by the Company to qualify under the ordinary income tax
treatment in accordance with the provisions of Section 102(b)(1)of the
Ordinance.
2.10 "Option" means an option to purchase one or more Ordinary Shares of the
Company pursuant to the Plan.
2.11 "102 Option" means any Option granted to Employees pursuant to Section
102 of the Ordinance.
2.12 "3(i) Option" means an Option granted pursuant to Section 3(i) of the
Ordinance to any person who is a Non- Employee.
2.13 "Option Agreement" means the share option agreement between the
Company and a Grantee that sets out the terms and conditions of an
Option.
2.14 "Ordinance" means the 1961 Israeli Income Tax Ordinance [New Version]
1961 as now in effect or as hereafter amended.
2.15 "Section 102" means section 102 of the Ordinance and any regulations,
rules, orders or procedures promulgated thereunder as now in effect or
as hereafter amended.
2.16 "Trustee" means any individual appointed by the Company to serve as a
trustee and approved by the ITA, all in accordance with the provisions
of Section 102(a) of the Ordinance.
2.17 "Unapproved 102 Option" means an Option granted pursuant to
Section 102(c) of the Ordinance and not held in trust by a
Trustee.
3. ISSUANCE OF OPTIONS
3.1 The persons eligible for participation in the Plan as Grantees shall
include any Employees and/or Non-Employees of the Company or of any
Affiliate; provided, however, that (i) Employees may only be granted
102 Options; and (ii) Non-Employees and/or Controlling Shareholders may
only be granted 3(i) Options
3.2 The Company may designate Options granted to Employees pursuant to
Section 102 as Unapproved 102 Options or Approved 102 Options.
3.3 The grant of Approved 102 Options shall be made under this Appendix
adopted by the Board , and shall be conditioned upon the approval of
this Appendix by the ITA.
3.4 Approved 102 Options may either be classified as Capital Gain Options
("CGOs") or Ordinary Income Options ("OIOs"), as per the Board's
decision.
3.5 No Approved 102 Options may be granted under this Appendix to any
eligible Employee, unless and until, the Company's election of the type
of Approved 102 Options as CGI or OIO granted to Employees (the
"Election"), is appropriately filed with the ITA. Such Election shall
become effective beginning the first date of grant of an Approved 102
Option under this Appendix and shall remain in effect until the end of
the year following the year during which the Company first granted
Approved 102 Options. The Election shall obligate the Company to grant
only the type of Approved 102 Option it has elected, and shall apply to
all Grantees who were granted Approved 102 Options during the period
indicated herein, all in accordance with the provisions of Section
102(g) of the Ordinance. For the avoidance of doubt, such Election
shall not prevent the Company from granting Unapproved 102 Options
simultaneously.
3.6 All Approved 102 Options must be held in trust by a Trustee, as
described in Section 4_below.
3.7 For the avoidance of doubt, the designation of Unapproved 102 Options
and Approved 102 Options shall be subject to the terms and conditions
set forth in Section 102.
4. TRUSTEE
4.1 Notwithstanding the provisions of the Plan, including without
limitation Section 5 of the Plan, Approved 102 Options which shall be
granted under this Appendix and/or any Ordinary Shares allocated or
issued upon exercise of such Approved 102 Options and/or other shares
received subsequently following any realization of rights, including
bonus shares, shall be allocated or issued to the Trustee and held for
the benefit of the Grantees for such period of time as required by
Section 102 or any regulations, rules or orders or procedures
promulgated thereunder (the "Holding Period") In the case the
requirements for Approved 102 Options are not met, then the Approved
102 Options shall be regarded as Unapproved 102 Options, all in
accordance with the provisions of Section 102.
4.2 Notwithstanding anything to the contrary, the Trustee shall not release
any Ordinary Shares allocated or issued upon exercise of Approved 102
Options prior to the full payment of the Grantee's tax liabilities
arising from Approved 102 Options which were granted to him and/or any
Ordinary Shares allocated or issued upon exercise of such Options.
4.3 With respect to any Approved 102 Option, subject to the provisions of
Section 102 and any rules or regulation or orders or procedures
promulgated thereunder, an Grantee shall not be entitled to sell or
release from trust any Share received upon the exercise of an Approved
102 Option and/or any share received subsequently following any
realization of rights, including without limitation, bonus shares,
until the lapse of the Holding Period required under Section 102 of the
Ordinance
4.4 Upon receipt of Approved 102 Option, the Grantee will sign an
undertaking to release the Trustee from any liability in respect of any
action or decision duly taken and bona fide executed in relation with
this Appendix, or any Approved 102 Option or Ordinary Share granted to
him thereunder.
4.5 Notwithstanding the provisions of the Plan, including without
limitation Section 5 of the Plan, the Trustee shall empower Yehuda
Zisapel with all the voting rights of the shares held by him under this
Appendix and Plan and shall not exercise the voting rights in any other
way whatsoever.
5. THE OPTIONS
The terms and conditions upon which the Options shall be issued and
exercised, shall be as specified in the Option Agreement to be executed pursuant
to the Plan and to this Appendix. Each Option Agreement shall state, inter alia,
the number of Ordinary Shares to which the Option relates, the type of Option
granted thereunder (whether a CGI, OIO, Unapproved 102 Option or a 3(i) Option),
the vesting provisions and the exercise price.
6. FAIR MARKET VALUE FOR TAX PURPOSES
Solely for the purpose of determining the tax liability pursuant to Section
102(b)(3) of the Ordinance, if at the date of grant the Company's shares are
listed on any established stock exchange or a national market system, the fair
market value of the Ordinary Shares at the date of grant shall be determined in
accordance with the average value of the Company's shares on the thirty (30)
trading days preceding the date of grant
7. EXERCISE OF OPTIONS
An Option, or any part thereof, shall be exercisable by the Grantee's signing
and returning to the Company at its principal office, with a copy to the
Trustee, a "Notice of Exercise" in such form and substance as may be prescribed
by the Committee from time to time. The exercise shall be effective upon receipt
of such notice by the Company and the payment of the exercise price for the
number of shares with respect to which the Option is being exercised, at the
Company's principal office.
8. ASSIGNABILITY AND SALE OF OPTIONS
8.1. Notwithstanding any other provision of the Plan no Option and no shares
purchasable hereunder, whether fully paid or not, shall be assignable,
transferable or given as collateral or any right to them given to any
third party whatsoever, and during the lifetime of the Grantee each and
all of his rights to purchase shares hereunder shall be exercisable
only by him.
8.2. As long as Options or Ordinary Shares purchased pursuant to thereto are
held by the Trustee on behalf of the Grantee, all rights of the Grantee
over the shares are personal, can not be transferred, assigned, pledged
or mortgaged, other than by will or laws of descent and distribution.
9. INTEGRATION OF SECTION 102 AND TAX ASSESSING OFFICER 'S PERMIT
9.1. With regards to Approved 102 Options, the provisions of the Plan and/or
the Appendix and/or the Option Agreement shall be subject to the
provisions of Section 102 and the Tax Assessing Officer's permit, and
the said provisions and permit shall be deemed an integral part of the
Plan and of the Appendix and of the Option Agreement.
9.2. Any provision of Section 102 and/or the said permit which is necessary
in order to receive and/or to keep any tax benefit pursuant to Section
102, which is not expressly specified in the Plan or the Appendix or
the Option Agreement, shall be considered binding upon the Company and
the Grantees.
10. DIVIDEND
With respect to all Shares (but excluding, for avoidance of any doubt,
any unexercised Options) allocated or issued upon the exercise of
Options purchased by the Grantee and held by the Grantee or by the
Trustee, as the case may be, the Grantee shall be entitled to receive
dividends in accordance with the quantity of such Shares, subject to
the provisions of the Company's Articles of Association (and all
amendments thereto) and subject to any applicable taxation on
distribution of dividends, and when applicable subject to the
provisions of Section 102 and the rules, regulations or orders
promulgated thereunder.
11. TAX CONSEQUENCES
11.1 Any tax consequences arising from the grant or exercise of any Option,
from the payment for shares covered thereby or from any other event or
act (of the Company or the Grantee) hereunder, shall be borne solely by
the Grantee. Furthermore, the Grantee shall agree to indemnify the
Company and the Trustee and hold them harmless against and from any and
all liability for any such tax or interest or penalty thereon,
including without limitation, liabilities relating to the necessity to
withhold, or to have withheld, any such tax from any payment made to
the Grantee.
11.2 The Company and/or, when applicable, the Trustee shall not be
required to release any share certificate to an Grantee until all
required payments have been fully made.