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EXHIBIT 10.8
AGREEMENT FOR THE ALLOTMENT OF OPTIONS
GIVING ENTITLEMENT TO SHARES AND TRUST AGREEMENT
Made in Tel Aviv this 10th day of October 1998
BETWEEN: I.E.T. INTELLIGENT ELECTRONICS LTD
(hereinafter referred to as "the Company")
of the first part
AND: CERTAIN MEMBERS OF THE COMPANY WHO SHALL BE INVITED BY THE COMPANY
TO PARTICIPATE IN THE AGREEMENT AND SIGN THE PARTICIPATION DOCUMENT
(such an employee is hereinafter referred to as "a Participating
Employee")
of the second part
AND: Y.S.M.A. TRUST COMPANY
(hereinafter referred to as "the Trustee")
of the third part
WHEREAS the Company wishes to allot to certain Participating Employees,
save for control owners, and up to 40 of such Participating
Employees, within the context of a trust, options for shares of
the Company in the first stage and thereafter to enable the
Participating Employees, upon certain terms and conditions, to
receive an actual allotment of shares;
AND WHEREAS the Company wishes to allot the options, such that they shall be
held by the Trustee on behalf of the Participating Employees,
whether existing employees or employees who shall commence
working for the Company;
AND WHEREAS the Company wishes to appoint the Trustee, and the provisions of
this agreement shall serve as an instrument of trust and
instructions to the Trustee;
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AND WHEREAS the Trustee agrees to accept such position;
AND WHEREAS the parties wish to define, determinate and particularize the
method of the allotment, the stages thereof and all matters
relating thereto or connected therewith or deriving therefrom,
all as particularized below in this agreement;
ACCORDINGLY, IT IS WARRANTED, PROVIDED AND AGREED BETWEEN THE PARTIES AS
FOLLOWS:
1. RECITALS
1.1 The recitals in this agreement constitute an integral part hereof.
1.2 The clause headings in this agreement are for convenience and
orientation purposes only, they do not constitute part hereof and
shall not be used for the interpretation hereof.
1.3 The provisions of this agreement do not prejudice the rights or
holdings or shares of any of the holders of any classes of the
Company's shares at the time of the making hereof or thereafter,
unless otherwise expressly stated and provided herein.
2. THE TRUST
The parties hereby establish and create a trust and shall procure that the
Company shall allot to the Trustee the shares in respect whereof the
options for ordinary "A" shares of the Company shall be allotted.
The provisions of this agreement constitute an instrument of trust and
instructions to the Trustee.
3. THE OBJECT OF THE TRUST
The object of the trust is for options to shares to be held by the Trustee
for the benefit of employees of the Company whose names appear in list 1
annexed hereto, as may be amended from time to time by the Company in
written notices to the Trustee detailing the names of the beneficiaries,
stating alongside the name of each beneficiary the number of options which
the Trustee holds or shall hold on trust for him.
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3.1 The Trustee shall maintain and manage list 1 and shall attend to
updating it from time to time as required, including adding new
beneficiaries, recording options that have been allotted to the
Trustee on behalf of the beneficiaries according to the ratio of
their rights at the determining date, and he shall also record the
options that shall be added to the beneficiaries from such allotment
in list 1 to the credit of such beneficiaries.
3.2 The shares the subject of the options that shall be allotted to the
Trustee or that shall be held by it pursuant to the provisions hereof
shall be registered in the Trustee's name in the Company's register
of shareholders.
3.3 The Trustee shall act in all matters relating to adding new employees
to list 1 and to determine the terms and conditions of their
entitlement pursuant to resolutions of the Company as shall be passed
from time to time. Nonetheless, the Trustee shall not be entitled to
detract from the rights and conditions prescribed and/or that shall
be prescribed for the beneficiaries pursuant to this agreement or
with the written consent of the Company and of the beneficiary or
beneficiaries as the case may be.
3.4 The beneficiaries included or that shall be included in list 1 at any
time whatsoever do not and shall not have any right or plea against
others joining list 1 or against the adding of rights or shares to
those included in list 1, in whole or in part.
3.5 Upon the fulfillment of the terms and conditions or upon the times
falling due, all pursuant to the terms and conditions hereof, the
Trustee shall transfer to the beneficiaries the shares allotted to it,
all subject to the provisions hereof, the provisions of the Ordinance
and the provisions of the Rules.
4. The Trustee's Duties and Powers
The Company and the beneficiaries hereby instruct the Trustee to act with
the options which it holds and with the rights deriving from the holding
thereof in the following manner:
4.1 The Trustee shall submit an application to the authorities to approve
the trust as obliged from the Rules.
4.2 If the Company shall distribute bonus shares during the term of the
trust, the bonus shares that shall be distributed to the Trustee in
respect of the options pursuant to this agreement shall be those of
the beneficiaries and they shall be credited to them pro rata to
their entitlement to the options as particularized in list 1, and at
the date of the end of the trust and the transfer of the shares to
the beneficiaries, the Trustee and the Company shall act to allot the
bonus shares to them simultaneously with the allotment of the shares
due pursuant to the options.
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4.3 If rights in respect of the options are distributed at the end of the
trust, the Trustee shall give prior written notice thereof to the
beneficiaries in sufficient time to receive their response and it
shall act in accordance with the beneficiaries' instructions. If the
beneficiaries wish to register the rights and they transfer the
amount required therefor to the Trustee, it shall purchase the rights
on their behalf or on behalf of some of them and they shall be added
to their rights at the end of the trust. If the beneficiaries do not
give notice or if the beneficiaries do not reply to the Trustee at
the time prescribed therefor, the Trustee shall deem the
beneficiaries who did not reply or who did not pay the fixed
consideration on due date as having waived the offered rights.
4.4 The Trustee shall act in its exclusive discretion regarding all the
other subjects or rights conferred pursuant to the options or the
shares upon exercise of the options. However, if the Trustee receives
rights or monies in respect of the options, save for bonus shares, it
shall transfer them to the beneficiaries pursuant to list 1 and their
proportionate part therein.
5. THE BENEFICIARIES' PARTICIPATION
Each Participating Employee pursuant to this agreement shall sign a trust
participation document in the form of wording set forth below:
INSTRUMENT OF PARTICIPATION
Employee's name (hereinafter referred to as "the Participating
Employee")
1. I hereby participate as a beneficiary pursuant to the option
agreement dated ____________________________________ (hereinafter
referred to as "the agreement") and undertake all the
obligations and rights of a beneficiary pursuant to the
agreement.
2. I sign this instrument of participation having read the
agreement and having understood the provisions hereof.
3. I confirm my rights in the options held on my behalf by the
Trustee, including quo options, both pursuant to the agreement
and also pursuant to the conditions of participating in the
trust dated October 10, 1998 and also pursuant to the Ordinance
and the Rules.
_______________ __________________________________________
Date Signature of Participating Employee
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Name of Participating Employee Employee Name
Identity No. of Participating Employee
Address of Participating Employee
Witness' signature: I certify the signature of the Participating Employee
__________________________________________
Moshe Ben-Bassat
Director of the Company
We the undersigned hereby confirm you participation as a beneficiary
pursuant to the agreement.
_______________ __________________________________________
Date The Trustee
6. THE OPTIONS
The employee participating in this agreement, the trust and the option
entitlement arrangement is hereby granted and given options upon the terms
and conditions and at the times set forth below:
6.1 A conditional and suspensory right upon the cumulative fulfillment of
the terms and conditions particularized below to receive by way of an
actual allotment at the end of the option term ordinary "A" shares of
the Company, as a right to benefit from the trust arrangement at the
time of participating in the agreement until the end of the trust term,
and during the course whereof the Participating Employee is granted the
right that his name shall be registered in list 1 together with a
notation of the option for the specific number of shares specified above.
6.2 The terms and conditions:
The Participating Employee's right to convert the options held on trust
on his behalf by the Trustee into shares that shall be actually allotted
in his name is conditional and suspensory upon the fulfillment of all
the following terms and conditions:
6.2.1 After actual period of employment with the Company of at least 12
months from the participation date shall confer the right to
convert 1/4 (a fourth) of the number of shares specified in the
option into shares that shall be actually allotted.
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6.2.2 Every month of continuous and cumulative period of work
thereafter shall confer the right to convert a further 1/36
of the total number of shares specified in the option into
shares that shall be actually allotted.
6.2.3 After a continuous and cumulative actual period of work of 48
months, the beneficiary will have the right to convert the
total number of shares specified in the option into shares
that shall be actually allotted. The validity of the trust in
relation to him shall expire.
6.2.4 The exercise of the right to an actual allotment is further
conditional and suspensory upon the payment of $0.35
(thirty-five cents) per share.
(The periods specified in this clause above are hereinafter
referred to as "the entitling period").
6.3 If the employee ceases to be an actual employee of the Company at
any stage whatsoever until the conversion of the options or part
thereof into shares and prior to the actual allotment of shares,
regardless of the reason for the termination of employment with the
Company, his right to an allotment of shares or to exercise the
balance of the allotment pursuant to this agreement shall after 60
days of termination expire, be cancelled and nullified
automatically and the trust in respect of such employee shall
expire.
6.4 If the options are cancelled because the terms and conditions of
this clause have not been fulfilled, the employee shall not be
entitled to consideration, refund of a payment or compensation or
indemnity whatsoever in respect of the cancellation.
7. The Beneficiaries' Liability
7.1 The beneficiaries acknowledge that the Trustee is likely to hold
non-paid up options on their behalf, whether as options upon the
terms and conditions of this agreement or for additional rights as
specified in clause 4 above, and if there shall be a demand for
payment in respect of the conversion of the options into shares or
other rights given for payment, the beneficiaries shall pay the
amounts required immediately upon receiving the Trustee's demand
therefor.
Failure to comply with the demand as aforesaid is likely to lead
to the same results as if the beneficiaries had ceased to work for
the Company.
7.2 Every liability and every amount that a holder of the options is
under a duty to pay and all the obligations applicable pursuant to
the Companies Ordinance and the Company's documents of incorporation
to a holder of options or shares or a member of the Company, shall
be passed on from the Trustee to the beneficiaries
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pursuant to the rate of the options or the shares held by the
Trustee for the benefit of the beneficiaries.
7.3 The beneficiaries hereby confirm that they acknowledge that if
payment demands of them are not complied with, the Company may
forfeit the options held on their behalf by the Trustee pursuant to
the Company's articles of association and the results of the
forfeiture shall apply to each beneficiary in accordance with the
option for shares held on trust on his behalf by the Trustee.
7.4 If the Trustee receives demands, requests, notices and claims,
including payment calls, demands for payments at the time of the
Company's winding up, notices in respect of forfeiting the options
or any other demand, the Trustee shall, immediately upon the
receipt thereof, send them to each of the beneficiaries in respect
of whose options held on his behalf by the Trustee the said demands
were received, to the beneficiary's address as appearing in his
participation notice or to another address which the beneficiary
sent the Trustee, provided that they shall be sent in writing and
the liability deriving from the said demands shall apply to the
beneficiary alone.
7.5 The beneficiaries' liability pursuant to this clause shall apply in
accordance with the options held on their behalf. If any charge or
payment demand whatsoever shall relate to options held for a
number of beneficiaries, each beneficiary shall be liable for the
charge or the payment demand pro rata to the options held on his
behalf.
8. Termination of the Trust
8.1 If the Trustee holds options for any beneficiary, including his
successors and assigns, during the entitling period, the shares
shall be transferred to the beneficiary's possession either on its
own initiative or on the beneficiary's initiative, upon the
following terms and conditions:
8.1.1 The Company has given notice to the Trustee that an employee
engaged by it continuously throughout the entitling period
continues to be employed by it and has requested to exercise
the option and has paid the option monies to the Company.
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8.2 If a Participating Employee ceases working for the Company at any
time whatsoever and for any reason whatsoever, the trust for him
shall expire at the time of the termination of employee-employer
relations. The expiry of the trust at the time of the termination
of the employer-employee relations shall be pro rata to the
balance of the beneficiary's right at such time.
8.3 If a Participating Employee exercises a right as a beneficiary by way
of exercising the conversion of an option into a share that shall be
actually allotted, subject to all the terms and conditions of this
agreement, the trust shall expire in respect of the part of the option
converted and actually allotted at such time.
9. ISSUE TO THE PUBLIC
9.1 If the Company notifies the Trustee that for the purposes of an issue
of shares to the public an undertaking by the beneficiary option
holders is required, pursuant whereto they undertake a restriction on
the transfer of the shares of which they are beneficiaries or to which
they are entitled pursuant to the options or the trading of such
shares, the Trustee shall be entitled to assume the undertaking as
aforesaid, provided that such an undertaking shall not prevent it
transferring options to the beneficiaries, subject to the
beneficiaries assuming the said undertaking.
9.2 If as a condition for the issue of shares to the public the option
holders shall be required to undertake not to sell them during a
specific period (hereinafter referred to as "the restriction period"),
the Company is entitled to make demand of the Trustee to join in
giving an undertaking as aforesaid, and in the event of a demand as
aforesaid the Trustee shall accede thereto, even if the entitling
period, or part thereof, mentioned in clause 6 above, has not yet
terminated, and in such case the trust period shall be extended by the
restriction period and the beneficiaries shall have no complaint in
consequence thereof.
9.3 The beneficiaries are aware that the Company is considering an issue
to the public with the intention of listing the Company's shares for
trading on a stock exchange either in Israel or abroad. The
beneficiaries empower the Trustee to sign any document which, in the
opinion of the Company's board of directors, is required to enable an
issue as aforesaid, including changes to the Company's documents of
incorporation and including changes in its capital structure for so
long as the changes shall not result in the shares the subject of the
options held on trust by the Trustee having inferior rights (save for
voting rights) compared with the rights which other shares of the
Company confer.
If the shares are listed for trading as aforesaid, the employees shall
be entitled to apply to the Income Tax Commissioner for his shares to
be deemed as having been sold at the average stock exchange price in
the first three days of trading.
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10. NON-TRANSFERABILITY
The rights to the options pursuant to this agreement and the shares that
shall be allotted to the Participating Employee pursuant thereto and upon
the terms and conditions thereof are granted to the Participating
Employee as a beneficiary and to him alone.
The beneficiaries' rights may not be transferred to assigned in any
manner whatsoever, including by way of pledge, charge, attachment,
assignment and the like.
Without derogating from the aforegoing, rights to options may only be
transferred by way of implementing a will of an employee or his
inheritance.
11. REPLACEMENT TRUSTEE
If the Trustee is unable to perform its duties or does not wish to
perform its duties, the Company is entitled to appoint a replacement
trustee and in such event the Trustee shall transfer the options it is
holding to the replacement trustee and the replacement trustee shall
replace the Trustee for all intents and purposes.
12. THE COMPANY'S OTHER SHARES
12.1 The provisions of this agreement do not prejudice the rights of
other holders of options or shares of the Company to which the
trust arrangement does not apply.
12.2 The parties are aware that additional employees of the Company own
rights in shares or to receive shares in other arrangements, and it
is hereby expressly agreed that this agreement does not apply to
and does not affect or howsoever impair rights of other
shareholders of the Company or persons entitled to shares of the
Company, including entitled employees as aforesaid.
13. PAYMENT AND INDEMNITY
13.1 An action by the Trustee and any outcome of an action by the
Trustee, directly or indirectly, shall not render the Trustee
liable for any payment whatsoever. In any event in which the
Trustee is directly or indirectly ordered to make any payment in
connection with its actions as trustee, the Company undertakes to
directly effect and make the payment which shall be required, for
so long as it is a payment relating to the trust, or to indemnify
the Trustee for a payment as aforesaid upon demand received from
it.
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13.2 Save in regard to the subjects particularized in clause 7 above, if
the Trustee is ordered to make any payment by a court or tribunal
or arbitrator in consequence of its operations as trustee, whether
directly or indirectly, the Company shall bear the payment in its
stead and shall effect the payment on the required date, and the
Trustee shall not be liable to indemnify the Company for such
payment.
13.3 The beneficiaries and the Company release the Trustee from any
liability for a negligent act or omission, and the Company shall
indemnify the Trustee for any payment which it is required to pay
in order to compensate any person or corporation for such an act of
omission.
The Trustee shall not be exempt from liability for an act or
omission committed willfully or other than in good faith.
14. GENERAL PROVISIONS
14.1 If the law so obliges or if the Company or any of its shareholders
so requests, the Company shall procure that the Trustee shall be
registered in the Company's register of shareholders as the owner
of the options for shares held by it on trust.
14.2 The Company shall bear the Trustee's remuneration.
14.3 If the Company resolves to issue any of its shares in consequence
of additional investors joining the Company or for any other
reason, the Trustee's part of the options convertible into shares
of the Company shall be diluted respectively and the beneficiaries'
right shall also be diluted in accordance therewith, and the
beneficiaries shall not have any complaint or claim in such regard.
14.4 In a case where the beneficiaries have been actually allotted part
of the shares at the time of a dilution as aforesaid or any other
time thereafter, their shares shall be diluted in respect of the
joining of investors or other shareholders, and the beneficiaries
shall not, even as shareholders, have any complaint or demand in
such regard.
14.5 The Trustee is empowered to determine the terms and conditions for
beneficiaries participating in the trust, in its discretion.
14.6 The parties undertake to sign all the documents required to give
validity and effect to this agreement.
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14.7 If income tax or capital gains tax or any other tax applies in
respect of the options or in respect of the allotment of the shares
or in respect of the holding of the shares or the transfer thereof,
or for another reason, the tax shall be borne by the beneficiary in
respect of the options or the shares held for his benefit by the
Trustee. If tax as aforesaid is imposed, the Trustee shall be
entitled to make demand of the beneficiary to pay the tax upon demand
pursuant to this agreement or to deduct the imposed tax from the
amounts due or that shall be due to the beneficiary, and such being
in addition to any other remedy available to the Trustee at law. If
the tax as aforesaid is imposed upon the Company, the Trustee shall
be under a duty, upon the Company's demand, to deduct the said tax
and to remit the amount collected to the Company, as the case may be.
The beneficiary authorizes and empowers the Company and the Trustee
to deduct or collect tax as aforesaid.
AS WITNESS THE HANDS OF THE PARTIES:
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L.E.T. INTELLIGENT ELECTRONICS LTD Y.S.M.A. TRUST COMPANY
"THE COMPANY" "THE TRUSTEE"
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APPENDIX TO TRUST AGREEMENT -
CONDITIONS FOR PARTICIPATING IN THE TRUST
Made in Tel-Aviv this 10th day of October 1998.
BETWEEN: IET Intelligent Electronics Ltd.
AND: The Participating Employee, Mr.
WHEREAS IET Intelligent Electronics Ltd. (hereinafter referred to as "the
Company") shall allot options convertible into shares in favor of
the Participating Employee;
AND WHEREAS the employee wishes to participate in an agreement dated __________
(hereinafter referred to as "the agreement"), including the
Trustee's trust and its holding of the options until they mature;
ACCORDINGLY, IT IS WARRANTED AND AGREED AS FOLLOWS:
1. The recitals to this appendix constitute an integral part hereof.
2. The Participating Employee is entitled to be a beneficiary pursuant to the
agreement from the date of the signing of this conditions for participation
appendix.
3. The Participating Employee's entitlement shall confer upon him the
following rights:
3.1 The right to be registered as a beneficiary of options to receive
ordinary "A" shares of NIS 0.001 each of the Company, according to the
following schedule: one fourth being after 12 months have elapsed of
continuous work for the Company. The balance of shares would vest
monthly at a rate of 1/36 of the total for the remainder three years
of the vesting period, and such being subject to payment of the sum of
$0.35 (thirty five cents), at the representative rate known at such
time, prior to the allotment of shares of the Company into his name.
3.2 The said right is conditional and suspensory upon the fulfillment of
all the terms and conditions specified in the agreement.
3.3 If the employee ceases to be an actual employee of the Company at any
stage whatsoever until the conversion of the options or part thereof
into shares and prior to the actual allotment of the shares,
regardless of the reason for the termination of the employment with
the Company, his rights to an allotment or to exercise the balance of
the allotment shall expire, be cancelled and nullified.
3.4 The provisions set forth in this clause are in addition to the
provisions set forth in the agreement.
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3.5 The ancillary right upon the terms and conditions of the agreement
distribution of additional rights or benefits, and also those shall
be granted in the future to holders of shares or at the time of
winding up, all pro rata to his entitlement to options.
4. The option convertible into shares upon the terms and conditions of the
agreement and the terms and conditions of this instrument of participation
shall be recorded in list 1 by the Trustee together with the Participating
Employee's name and his proportionate share of the number of the shares as
specified above.
5. The options that shall be recorded for the Participating Employee are in
addition to his other employment terms and conditions, and are not in lieu
thereof, but the Company's management may consider them a benefit or other
right conferred upon the employee in respect of and in consequence of his
employment.
6. The Participating Employee hereby agrees and confirms that if there shall
be a dilution of the Company's shares at any stage or in any manner,
whether during the course of the entitling period, or upon the exercise of
the conversion of the shares into an actual allotment of shares, whether
in stages or at the end of the entire entitling period, his part shall
also be diluted respectively.
In an event in which additional conditions would be required by the
relevant authorities for the approval to implement this agreement, the
beneficiaries shall and they do agree to such conditions.
7. The Participating Employee accepts and agrees to all the terms and
conditions of the agreement and confirms his express consent that in any
event of a contradiction between the provisions of this appendix and the
provisions of the agreement, the provisions of the agreement shall prevail.
8. The Participating Employee hereby confirms his consent that all the
payment of taxes, official fees, levies and the like of whatsoever
description applicable now or that shall be applicable in the future in
respect of the agreement, in respect of this instrument of participation
and in respect of the realization thereof shall be borne by him alone.
9. This appendix constitutes an internal part of the instrument of
participation in the agreement and the signing of the instrument of
participation constitutes the signing of this appendix.
The instrument of participation is annexed hereto.
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Signature of the Participating Employee
We agree to the aforegoing:
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IET Intelligent Electronics Ltd.
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INSTRUMENT OF PARTICIPATION
Employee's name: Amit Ben-Dov
(hereinafter referred to as "the Participating Employee")
1. I hereby participate as a beneficiary pursuant to the option agreement
dated Jan. 1, 1997 (hereinafter referred to as "the agreement") and
undertake all the obligations and rights of a beneficiary pursuant to the
agreement.
2. I sign this instrument of participation having read the agreement and
having understood the provisions hereof.
3. I confirm my rights in the options held on my behalf by the Trustee,
including qua options, both pursuant to the agreement and also pursuant to
the conditions of participating in the trust dated ____________ and also
pursuant to the Ordinance and the Rules.
1/1/ 1997
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Date Signature of Participating Employee
Name of Participating Employee
Social Security No. of Participating Employee
Address of Participating Employee:
Witness' signature: I certify the signature of the Participating Employee
---------------------------------
Moshe Ben-Bassat
Director of the Company
We the undersigned hereby confirm your participation as a beneficiary pursuant
to the agreement.
January 1, 1997
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Date The Trustee