M-WISE, INC.
INTERNATIONAL SHARE OPTION PLAN (2003)
1. PURPOSES OF THE PLAN. The purposes of this Share Option Plan are to
attract and retain the best available personnel for positions of substantial
responsibility, to provide additional incentive to Employees, Directors and
Consultants of the Company and its subsidiaries, including, inter alia, m-Wise,
Ltd. (the "Israeli Subsidiary") and m-Wise Limited (the "UK Subsidiary") and to
promote the success of the Company's business. Options granted under the Plan
may be Incentive Stock Options, Nonstatutory Stock Options or otherwise, as
determined by the Administrator at the time of grant.
2. DEFINITIONS. As used herein, the following definitions shall apply:
(i) "ADMINISTRATOR" means the Board or any of its Committees
as shall be administering the Plan, in accordance with Section 4 hereof.
(ii) "APPLICABLE LAWS" means the requirements relating to the
administration of share option plans under the applicable laws of the United
States (except for matters with respect to the employees or consultants of the
Israeli Subsidiary, and, in such cases, the laws of the state of Israel shall
apply).
(iii) "ARTICLES" means the By-Laws and Certificate of
Incorporation (as amended from time to time) of the Company.
(iv) "BOARD" means the Board of Directors of the Company or
any Parent or Subsidiary.
(v) "CODE" means the U.S. Internal Revenue Code of 1986, as
amended.
(vi) "COMMITTEE" means a committee of Directors appointed by
the Board in accordance with Section 4 hereof and the Articles.
(vii) "COMPANY" means m-Wise, Inc., a corporation incorporated
under the laws of the State of Delaware, USA.
(viii) "CONSULTANT" means any person who is engaged by the
Company or any Subsidiary of the Company to render consulting or advisory
services to such entity.
(ix) "DIRECTOR" means a member of the Board of Directors of
the Company or any Parent or Subsidiary.
(x) "EMPLOYEE" means any person, including Officers and
Directors, employed by the Company or any Parent or Subsidiary of the Company.
An Employee shall not cease to be an Employee in the case of (i) any leave of
absence approved by the Company or (ii) transfers between locations of the
Company or between the Company, its Parent, any Subsidiary, or any successor.
For purposes of Incentive Stock Options, no such leave may exceed ninety days,
unless reemployment upon expiration of such leave is guaranteed by statute or
contract. If reemployment upon expiration of a leave of absence approved by the
Company is not so guaranteed, on the 181st day of such leave any Incentive Stock
Option held by the Optionee shall cease to be treated as an Incentive Stock
Option and shall be treated for tax purposes as a Nonstatutory Stock Option.
Neither service as a Director nor payment of a director's fee by the Company
shall be sufficient to constitute "employment" by the Company.
(xi) "EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended.
(xii) "FAIR MARKET VALUE" means, as of any date, the value of
a Share determined as follows:
(a) If the Shares are listed on the Nasdaq
National Market or The Nasdaq SmallCap
Market of The Nasdaq Stock Market, their Fair Market Value shall be the closing
sales price for such Shares (or the closing bid, if no sales were reported) as
quoted on such system for the last market trading day prior to the time of
determination, as reported in THE WALL STREET JOURNAL or such other source as
the Administrator deems reliable;
(b) If the Shares are listed on the Tel Aviv
Stock Exchange, but are not traded on
the Nasdaq National Market or The Nasdaq Small Cap Market, their Fair Market
Value shall be the closing sales price for such Shares (or the closing bid if no
sales were reported) as quoted on such exchange for the last market trading day
prior to the time of determination, as reported in GLOBES, HAARETZ or such other
source as the Administrator deems reliable;
(c) If the Shares are regularly quoted by a
recognized securities dealer but
selling prices are not reported, their Fair Market Value shall be the mean
between the high bid and low asked prices for the Shares on the last market
trading day prior to the day of determination, or;
(d) In the absence of an established market for
the Shares, the Fair Market Value
thereof shall be determined in good faith by the Board.
(xiii) "INCENTIVE STOCK OPTION" means an Option intended to
qualify as an incentive stock option within the meaning of Section 422 of the
Code.
(xiv) "NONSTATUTORY STOCK OPTION" means an Option not intended
to qualify as an Incentive Stock Option.
(xv) "OFFICER" means a person who is an officer of the Company
within the meaning of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.
(xvi) "OPTION" means a share option granted pursuant to the
Plan.
(xvii) "OPTION AGREEMENT" means a written agreement between
the Company and an Optionee evidencing the terms and conditions of an individual
Option grant. The Option Agreement is subject to the terms and conditions of the
Plan, unless and to the extent otherwise stated in such Option Agreement.
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(xviii) "OPTIONED SHARES" means the Shares subject to an
Option.
(xix) "OPTIONEE" means the holder of an outstanding Option
granted under the Plan.
(xx) "PARENT" means a "parent corporation," whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(xxi) "PLAN" means this International Share Option Plan
(2003).
(xxii) "SERVICE PROVIDER" means an Employee, Director or
Consultant.
(xxiii) "SHARE" means a share of the Company's Common Stock,
having a nominal value of US$0.0017, as adjusted in accordance with Section 11
below.
(xxiv) "SUBSIDIARY" means a "subsidiary corporation," whether
now or hereafter existing, as defined in Section 424(f) of the Code.
3. SHARES SUBJECT TO THE PLAN. Subject to the provisions of Section 11
of the Plan, the maximum aggregate number of Shares that may be subject to
option and sold under the Plan is 25,061,094 shares of the Corporation's Common
Stock. The Shares may be authorized, but unissued, or reacquired.
If an Option expires or becomes unexercisable without having
been exercised in full, the unpurchased Shares which were subject thereto shall
become available for future grant or sale under the Plan (unless the Plan has
terminated); PROVIDED, HOWEVER, that Shares that have actually been issued under
the Plan shall not be returned to the Plan and shall not become available for
future distribution under the Plan.
4. ADMINISTRATION OF THE PLAN.
(i) PROCEDURE. The Plan shall be administered by the Board or
a Committee appointed by the Board, subject to the Articles, which Committee
shall be constituted to comply with Applicable Laws.
(ii) POWERS OF THE ADMINISTRATOR. Subject to the provisions of
the Plan and, in the case of a Committee, the specific duties delegated by the
Board to such Committee, and subject to the approval of any relevant
authorities, the Administrator shall have the authority, in its discretion:
(a) to recommend to the Board to update the Fair
Market Value;
(b) to grant Options and to select the Service
Providers to whom Options may from time to time be granted hereunder;
(c) to determine the number of Shares to be
covered by each such award granted hereunder;
(d) to approve forms of agreement for use under
the Plan;
(e) to determine the terms and conditions of any
Option granted hereunder;
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(f) to recommend to the Board to reduce the
exercise price of any Option to the then current Fair Market Value, if the Fair
Market Value of the Shares covered by such Option has declined since the date of
grant of the Option as defined in Section 12 below (the "Date of Grant");
(g) to prescribe, amend and rescind rules and
regulations under the Plan;
(h) to construe and interpret the terms of the
Plan and awards granted pursuant to
the Plan.
(iii) PLENARY AUTHORITY OF BOARD. Without derogating from the
powers of the Administrator or the Board set forth herein, but notwithstanding
any other limitation hereof, the Board shall have plenary authority to determine
any and all terms and conditions of the grant of options to Optionees hereunder,
including without limitation, whether Options shall be Nonstatutory Stock
Options, Incentive Stock Options or options which do not comply with the legal
requirements of the foregoing; the exercise price and method of exercise of such
Options; the identity of individuals or entities who are Optionees; and the
number of shares of the Company's stock which are subject to each option.
(iv) EFFECT OF ADMINISTRATOR'S DECISION. All decisions,
determinations and interpretations of the Administrator shall be final and
binding on all Optionees.
5. ELIGIBILITY.
(i) Nonstatutory Stock Options may be granted to Service
Providers. Incentive Stock Options may be granted only to Employees.
(ii) Each Option shall be designated in the Option Agreement
as either an Incentive Stock Option or a Nonstatutory Stock Option, or
otherwise. However, notwithstanding any designation of Incentive Stock Options,
to the extent that the aggregate Fair Market Value of the Shares with respect to
which Incentive Stock Options are exercisable for the first time by the Optionee
during any calendar year (under all plans of the Company and any Parent or
Subsidiary) exceeds $100,000, such Options shall be treated as Nonstatutory
Stock Options. For purposes of this Section 5(b), Incentive Stock Options shall
be taken into account in the order in which they were granted. The Fair Market
Value of the Shares shall be determined as of the time the Option with respect
to such Shares is granted.
(iii) The Plan shall not confer upon any Optionee any right
with respect to continuing the Optionee's relationship as a Service Provider
with the Company, nor shall it interfere in any way with his or her right or the
Company's right to terminate such relationship at any time, with or without
cause.
6. TERM OF PLAN. The Plan shall become effective upon its adoption by
the Board. It shall continue in effect for a term of ten (10) years unless
sooner terminated under Section 13 of the Plan.
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7. TERM OF OPTION. The term of each Option shall be stated in the
Option Agreement; provided, however, that the term shall be no more than ten
(10) years from the Date of Grant thereof. In the case of an Incentive Stock
Option granted to an Optionee who, at the time the Option is granted, owns
shares representing more than ten percent (10%) of the voting power of all
classes of issued and outstanding share capital of the Company or any Parent or
Subsidiary, notwithstanding the Option Agreement, the term of the Option shall
be five (5) years from the date of grant or such shorter term as may be provided
in the Option Agreement.
8. OPTION EXERCISE PRICE AND CONSIDERATION.
(i) The per share exercise price for the Shares to be issued
pursuant to exercise of an Option shall be such price as is determined by the
Administrator, but shall be subject to the following:
(a) In the case of an Incentive Stock Option
(I) granted to an Employee who, at the time
of the grant of such Incentive Stock Option, owns shares representing more than
ten percent (10%) of the voting power of all classes of issued and outstanding
share capital of the Company or any Parent or Subsidiary, the exercise price
shall be no less than 110% of the Fair Market Value per Share on the Date of
Grant.
(II) granted to any Employee other than an
Employee described in the preceding subparagraph, the per Share exercise price
shall be no less than 100% of the Fair Market Value per Share on the Date of
Grant.
(b) In the case of a Nonstatutory Stock Option
(I) granted to an Employee who, at the time
of grant of such Option, owns shares representing more than ten percent (10%) of
the voting power of all classes of issued and outstanding share capital of the
Company or any Parent or Subsidiary, the exercise price shall be no less than
110% of the Fair Market Value per Share on the Date of Grant.
(II) granted to any other Employee, the per
Share exercise price shall be no less than 85% of the Fair Market Value per
Share on the Date of Grant.
(c) Notwithstanding the foregoing, pursuant to a
merger or other corporate transaction, Options may be granted in substitution
for options held by service providers of another corporation with per Share
exercise prices (other than as required above) of less than 100% of Fair Market
Value on the Date of Grant.
(ii) The consideration to be paid for the Shares to be issued
upon exercise of an Option, including the method of payment, shall be determined
by the Administrator (and, in the case of an Incentive Stock Option, shall be
determined at the Date of Grant) and may consist entirely of (1) cash, (2)
check, (3) promissory note, (4) consideration received by the Company by
cashless exercise, or (5) any combination of the foregoing methods of payment.
To the extent that the consideration paid for the Shares is denominated in US
Dollars, the exchange rate to be used to obtain a New Israeli Shekel value of
such consideration shall be the noon buying rate as reported by the Federal
Reserve Bank of New York (expressed in shekels per unit of US Dollar) on the
date of exercise of the Option. The Administrator shall determine, at its own
discretion, the type of consideration to be accepted by the Company. Unless
determined otherwise the consideration shall be paid to the Company in US
Dollars.
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9. EXERCISE OF OPTION.
(i) PROCEDURE FOR EXERCISE; RIGHTS AS A SHAREHOLDER. Any
Option granted hereunder shall be exercisable according to the terms of the Plan
and the Option Agreement, and at such times and under such conditions as
determined by the Administrator and set forth in the Option Agreement. Except in
the case of Options granted to Officers, Directors, and Consultants, Options
shall become exercisable at a rate of no less than 20% per year over five (5)
years from the Date of Grant. An Option may not be exercised for a fraction of a
Share.
An Option shall be deemed exercised when the Company
receives: (i) written notice of exercise (in accordance with the Option
Agreement) from the person entitled to exercise the Option, and (ii) full
payment for the Shares with respect to which the Option is exercised. Full
payment may consist of any consideration and method of payment authorized by the
Administrator and permitted by the Option Agreement and the Plan. Unless
otherwise determined by the Administrator, Shares issued upon exercise of an
Option shall be issued to the Optionee or in the name of the Optionee to a
trustee appointed by the Administrator (the "Trustee"), to be held by the
Trustee on behalf of the Optionee, unless otherwise determined, until the
consummation of the initial underwritten public offering of the Company's
shares, pursuant to an effective registration statement, prospectus or similar
document in the USA or such other jurisdiction as is determined by the Board.
Until the Shares are issued, transferred to the Optionee and registered in its
name (as evidenced by the appropriate entry on the books of the Company or of a
duly authorized transfer agent of the Company), no right to vote or any other
rights as a shareholder shall exist with respect to the Shares, notwithstanding
the exercise of the Option. Shares registered in the Trustee's name shall be
represented at all meetings of shareholders but shall either abstain or be voted
in the same manner and proportion as the other shares or capital stock
represented at the meeting. The Company shall issue (or cause to be issued) such
Shares promptly after the Option is exercised. No adjustment will be made for a
dividend or other right for which the record date is prior to the date the
Shares are issued, except as provided in Section 11 of the Plan.
In the event that the Board grants an option to be
held by the Optionee, upon the exercise thereof, unless otherwise provided for
in the Option Agreement or by the Board, all rights conveyed to the Trustee
according to this Plan with respect to shares issued upon the exercise of an
option shall be awarded to said Optionee.
Exercise of an Option in any manner shall result in a
decrease in the number of Shares thereafter available, both for purposes of the
Plan and for sale under the Option, by the number of Shares as to which the
Option is exercised.
(ii) TERMINATION OF RELATIONSHIP AS A SERVICE PROVIDER. If an
Optionee ceases to be a Service Provider, other than upon the Optionee's death
or Disability, the Optionee may exercise his or her Options within such period
of time (of at least thirty (30) days) as is specified in the Option Agreement
to the extent that the Option is vested on the date of termination (but in no
event later than the expiration of the term of such Option as set forth in the
Option Agreement). In the absence of a specified time in the Option Agreement,
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the Option shall remain exercisable for three (3) months following the
Optionee's termination. If, on the date of termination, the Optionee is not
vested as to his or her entire Option, the Shares covered by the unvested
portion of the Option shall revert to the Plan. If, after termination, the
Optionee does not exercise his or her Option within the time specified by the
Administrator, the Option shall terminate, and the Shares covered by such Option
shall revert to the Plan.
(iii) DISABILITY OF OPTIONEE. If an Optionee ceases to be a
Service Provider as a result of the Optionee's disability, the Optionee may
exercise his or her Option within such period of time as is specified in the
Option Agreement (of at least six (6) months) to the extent the Option is vested
on the date of termination, but in no event later than the expiration date of
the term of such Option as set forth in the Option Agreement. In the absence of
a specified time in the Option Agreement, the Option shall remain exercisable
for twelve (12) months following the Optionee's termination. If, on the date of
termination, the Optionee is not vested as to the entire Option, the Shares
covered by the unvested portion of the Option shall revert to the Plan. If,
after termination, the Option is not exercised within the time specified herein,
the Option shall terminate, and the Shares covered by such Option shall revert
to the Plan. If such disability is not a "disability" as such term is defined in
Section 22(e)(3) of the Code, in the case of an Incentive Stock Option such
Incentive Stock Option shall automatically cease to be treated as an Incentive
Stock Option and shall be treated for tax purposes as a Nonstatutory Stock
Option on the day three months and one day following such termination.
(iv) DEATH OF OPTIONEE. If an Optionee dies while a Service
Provider, the Option may be exercised within such period of time as is specified
in the Option Agreement (of at least six (6) months) to the extent that the
Option is vested on the date of death (but in no event later than the expiration
of the term of such Option as set forth in the Option Agreement) by the
Optionee's estate or by a person who acquires the right to exercise the Option
by bequest or inheritance. In the absence of a specified time in the Option
Agreement, the Option shall remain exercisable for twelve (12) months following
the Optionee's termination. If, at the time of death, the Optionee is not vested
as to the entire Option, the Shares covered by the unvested portion of the
Option shall revert to the Plan. If the Option is not so exercised within the
time specified herein, the Option shall terminate, and the Shares covered by
such Option shall revert to the Plan.
10. NON-TRANSFERABILITY OF OPTIONS. Options may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent and may be exercised, during the lifetime of the
Optionee, only by the Optionee.
11. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER.
(i) CHANGES IN CAPITALIZATION. In the event the Shares shall
be subdivided or combined into a greater or smaller number of Shares or if, upon
a reorganization, recapitalization or the like, the Shares shall be exchanged
for other securities of the Company, each Optionee shall be entitled, subject to
the conditions herein stated, to purchase such number of Shares or amount of
other securities of the Company as were exchangeable for the number of Shares of
the Company which such Optionee would have been entitled to purchase except for
such action, and appropriate adjustments shall be made in the purchase price per
share to reflect such subdivision, combination or exchange.
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In the event that the Company shall issue any of its
Shares or other securities as bonus shares or a stock dividend upon or with
respect to any Shares which shall at the time be subject to an Option hereunder,
each Optionee upon exercising such Option shall be entitled to receive (for the
purchase price payable upon such exercise), the Shares as to which he or she is
exercising such Option and, in addition thereto (at no additional cost), such
number of shares of the class or classes in which such bonus shares or stock
dividend were declared, and such amount of Shares (and the amount in lieu of
fractional Shares) as is equal to the Shares which he would have received had he
been the holder of the Shares as to which he is exercising his Option at all
times between the Date of Grant of such Option and the date of its exercise.
Upon the occurrence of any of the foregoing events,
the class and aggregate number of Shares or other securities issuable pursuant
to the Plan, in respect of which Options have not yet been granted, shall also
be appropriately adjusted to reflect the events specified above.
(ii) DISSOLUTION OR LIQUIDATION. In the event of the proposed
dissolution or liquidation of the Company, the Administrator shall notify each
Optionee as soon as practicable prior to the effective date of such proposed
transaction. The Administrator in its discretion may provide for an Optionee to
have the right to exercise his or her Option until fifteen (15) days prior to
such transaction as to all of the Optioned Shares, including Shares as to which
the Option would not otherwise be exercisable. To the extent it has not been
previously exercised, an Option will terminate immediately prior to the
consummation of such proposed action.
(iii) MERGER OR ASSET SALE. In the event of a merger of the
Company with or into another corporation, or the sale of substantially all of
the assets of the Company, each outstanding Option shall be assumed or an
equivalent option substituted by the successor corporation or a Parent or
Subsidiary of the successor corporation. In the event that the successor
corporation refuses to assume or substitute for the Option, the Optionee shall
fully vest in and have the right to exercise the Option as to all of the
Optioned Stock, including Shares as to which it would not otherwise be vested or
exercisable. If an Option becomes fully vested and exercisable in lieu of
assumption or substitution in the event of a merger or sale of assets, the
Administrator shall notify the Optionee in writing or electronically that the
Option shall be fully exercisable for a period of fifteen (15) days from the
date of such notice, and the Option shall terminate upon the expiration of such
period. For the purposes of this paragraph, the Option shall be considered
assumed if, following the merger or sale of assets, the option confers the right
to purchase or receive, for each Share of Optioned Shares immediately prior to
the merger or sale of assets, the consideration (whether shares, cash, or other
securities or property) received in the merger or sale of assets by holders of
Shares for each Share 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); provided, however, that
if such consideration received in the merger or sale of assets is not solely
ordinary shares (or their equivalent) of the successor corporation or its
Parent, the Administrator may, with the consent of the successor corporation,
provide for the consideration to be received upon the exercise of the Option,
for each Share of Optioned Shares, to be solely ordinary shares (or their
equivalent) of the successor corporation or its Parent equal in fair market
value to the per Share consideration received by holders of in the merger or
sale of assets.
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12. DATE OF GRANT. The date of grant of an Option shall, for all
purposes, be the date on which the Administrator makes the determination
granting such Option, or such other date as is determined by the Board. Notice
of the determination shall be given to each Service Provider to whom an Option
is so granted within a reasonable time after the date of such grant.
13. AMENDMENT AND TERMINATION OF THE PLAN.
(i) AMENDMENT AND TERMINATION. The Board may at any time
amend, alter, suspend or terminate the Plan.
(ii) SHAREHOLDER APPROVAL. The Board shall obtain shareholder
approval of any Plan amendment only if required under Applicable Laws.
(iii) EFFECT OF AMENDMENT OR TERMINATION. No amendment,
alteration, suspension or termination of the Plan shall adversely affect the
rights of any Optionee, unless mutually agreed otherwise between the Optionee
and the Administrator, which agreement must be in writing and signed by the
Optionee and the Company. Termination of the Plan shall not affect the
Administrator's ability to exercise the powers granted to it hereunder with
respect to Options granted under the Plan prior to the date of such termination.
14. CONDITIONS UPON ISSUANCE OF SHARES.
(i) LEGAL COMPLIANCE. Shares shall not be issued pursuant to
the exercise of an Option unless the exercise of such Option and the issuance
and delivery of such Shares shall comply with Applicable Laws and shall be
further subject to the approval of counsel for the Company with respect to such
compliance.
(ii) INVESTMENT REPRESENTATIONS. As a condition to the
exercise of an Option, the Administrator 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.
15. INABILITY TO OBTAIN AUTHORITY. The inability of the Company to
obtain authority from any regulatory body having jurisdiction, which authority
is deemed by the Company's counsel to be necessary to the lawful issue and sale
of any Shares hereunder, shall relieve the Company of any liability in respect
of the failure to issue or sell such Shares as to which such requisite authority
shall not have been obtained.
16. RESERVATION OF SHARES. The Company, during the term of this Plan,
shall at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
17. SHAREHOLDER APPROVAL. The Plan shall be subject to approval by the
shareholders of the Company within twelve (12) months after the date the Plan is
adopted. Such shareholder approval shall be obtained in the manner and to the
degree required under Applicable Laws.
18. INFORMATION TO OPTIONEES AND PURCHASERS. The Company shall provide
to each Optionee and to each individual who acquires Shares pursuant to the
Plan, not less frequently than annually during the period such Optionee or
purchaser has one or more Options outstanding, and, in the case of an individual
who acquires Shares pursuant to the Plan, during the period such individual owns
such Shares, copies of annual financial statements. The Company shall not be
required to provide such statements to key employees whose duties in connection
with the Company assure their access to equivalent information.
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