Exhibit 10.3
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MER TELEMANAGEMENT SOLUTIONS LTD.
2003 ISRAELI SHARE OPTION PLAN
(*In compliance with Amendment No. 132 of the Israeli Tax Ordinance, 2002)
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TABLE OF CONTENTS
1. PURPOSE OF THE ISOP........................................................3
2. DEFINITIONS................................................................3
3. ADMINISTRATION OF THE ISOP.................................................6
4. DESIGNATION OF PARTICIPANTS................................................7
5. DESIGNATION OF OPTIONS PURSUANT TO SECTION 102 ............................7
6. TRUSTEE....................................................................8
7. SHARES RESERVED FOR THE ISOP...............................................9
8. PURCHASE PRICE.............................................................9
9. ADJUSTMENTS...............................................................10
10. TERM AND EXERCISE OF OPTIONS.............................................11
11. VESTING OF OPTIONS.......................................................12
12. PURCHASE FOR INVESTMENT..................................................12
13. DIVIDENDS................................................................13
14. RESTRICTIONS ON ASSIGNABILITY AND SALE OF OPTIONS........................13
15. EFFECTIVE DATE AND DURATION OF THE ISOP..................................13
16. AMENDMENTS OR TERMINATION................................................14
17. GOVERNMENT REGULATIONS...................................................14
18. CONTINUANCE OF EMPLOYMENT................................................13
19. GOVERNING LAW & JURISDICTION.............................................14
20. TAX CONSEQUENCES.........................................................14
21. NON-EXCLUSIVITY OF THE ISOP..............................................15
22. MULTIPLE AGREEMENTS......................................................15
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This plan, as amended from time to time, shall be known as MER
Telemanagement Solutions Ltd. 2003 Israeli Share Option Plan (the "ISOP").
1. PURPOSE OF THE ISOP
The ISOP is intended to provide an incentive to retain, in the employ of
the Company and its Affiliates (as defined below), persons of training,
experience, and ability, to attract new employees, directors, consultants,
service providers and any other entity which the Board shall decide their
services are considered valuable to the Company, to encourage the sense of
proprietorship of such persons, and to stimulate the active interest of
such persons in the development and financial success of the Company by
providing them with opportunities to purchase shares in the Company,
pursuant to the ISOP.
2. DEFINITIONS
For purposes of the ISOP and related documents, including the Option
Agreement, the following definitions shall apply:
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 Optionee.
2.3 "Board" means the Board of Directors of the Company.
2.4 "Capital Gain Option" as defined in Section 5.4 below.
2.5 "Cause" means, (i) conviction of any felony involving moral turpitude
or affecting the Company; (ii) any refusal to carry out a reasonable
directive of the chief executive officer, the Board or the Optionee's
direct supervisor, which involves the business of the Company or its
Affiliates and was capable of being lawfully performed; (iii)
embezzlement of funds of the Company or its Affiliates; (iv) any
breach of the Optionee's fiduciary duties or duties of care of the
Company; including without limitation disclosure of confidential
information of the Company; and (v) any conduct (other than conduct in
good faith) reasonably determined by the Board to be materially
detrimental to the Company.
2.6 "Chairman" means the chairman of the Committee.
2.7 "Committee" means a stock option committee of the Board, designated
from time to time by the resolution of the Board, which shall consist
of no fewer than two members of the Board.
2.8 "Company" means MER Telemanagement Solutions Ltd, an Israeli company.
2.9 "Companies Law" means the Israeli Companies Law 5759-1999.
2.10 "Controlling Shareholder" shall have the meaning ascribed to it in
Section 32(9) of the
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Ordinance.
2.11 "Date of Grant" means, the date of grant of an Option, as determined
by the Board or authorized Committee and set forth in the Optionee's
Option Agreement.
2.12 "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 Controlling Shareholder.
2.13 "Expiration date" means the date upon which an Option shall expire, as
set forth in Section 10.2 of the ISOP.
2.14 "Fair Market Value" means as of any date, the value of a Share
determined as follows:
(i) If the Shares are listed on any established stock exchange or a
national market system, including without limitation the Nasdaq
National Market, or the Nasdaq SmallCap Market of the Nasdaq Stock
Market, the 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 or system for the last market trading day prior to
time of determination, as reported in the Wall Street Journal, or such
other source as the Board deems reliable.
Without derogating from the above, 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 or if the
Company's shares will be registered for trading within ninety (90)
days following the Date of Grant, the Fair Market Value of a Share 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 or on the thirty (30) trading days
following the date of registration for trading, as the case may be;
(ii) If the Shares are regularly quoted by a recognized securities
dealer but selling prices are not reported, the 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;
(iii) In the absence of an established market for the Shares, the Fair
Market Value thereof shall be determined in good faith by the Board.
2.15 "ISOP" means this 2003 Israeli Share Option Plan.
2.16 "ITA" means the Israeli Tax Authorities.
2.17 "Non-Employee" means a consultant, adviser, service provider,
Controlling Shareholder or any other person who is not an Employee.
2.18 "Ordinary Income Option" as defined in Section 5.5 below.
2.19 "Option" means an option to purchase one or more Shares of the Company
pursuant to the
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ISOP.
2.20 "102 Option" means any Option granted to Employees pursuant to Section
102 of the Ordinance.
2.21 "3(i) Option" means an Option granted pursuant to Section 3(i) of the
Ordinance to any person who is Non-Employee.
2.22 "Optionee" means a person who receives or holds an Option under the
ISOP.
2.23 "Option Agreement" means the share option agreement between the
Company and an Optionee that sets out the terms and conditions of an
Option.
2.24 "Ordinance" means the Israeli Income Tax Ordinance [New Version] 1961
as now in effect or as hereafter amended.
2.25 "Purchase Price" means the price for each Share subject to an Option.
2.26 "Section 102" means section 102 of the Ordinance as now in effect or
as hereafter amended.
2.27 "Share" means the ordinary shares, NIS 0.01 par value each, of the
Company.
2.28 "Successor Company" means any entity the Company is merged to or is
acquired by, in which the Company is not the surviving entity.
2.31 "Transaction" means (i) merger, acquisition or reorganization of the
Company with one or more other entities in which the Company is not
the surviving entity, (ii) a sale of all or substantially all of the
assets of the Company.
2.30 "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.
2.31 "Unapproved 102 Option" means an Option granted pursuant to Section
102(c) of the Ordinance and not held in trust by a Trustee.
2.32 "Vested Option" means any Option, which has already been vested
according to the Vesting Dates.
2.33 "Vesting Dates" means, as determined by the Board or by the Committee,
the date as of which the Optionee shall be entitled to exercise the
Options or part of the Options, as set forth in section 11 of the
ISOP.
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3. ADMINISTRATION OF THE ISOP
3.1 The Board shall have the power to administer the ISOP either directly
or upon the recommendation of the Committee, all as provided by
applicable law and in the Company's Articles of Association.
Notwithstanding the above, the Board shall automatically have residual
authority: (i) if no Committee shall be constituted or; (ii) if such
Committee shall cease to operate for any reason or; (iii) with respect
to the rights not delegated by the Board to the Committee. In the
event that no Committee shall be appointed, any reference to the
Committee in the ISOP or in the Option Agreement shall refer to the
Board.
3.2 The Committee shall select one of its members as its Chairman and
shall hold its meetings at such times and places as the Chairman shall
determine. The Committee shall keep records of its meetings and shall
make such rules and regulations for the conduct of its business, as it
shall deem advisable. Subject to applicable law, any member of such
Committee shall be eligible to receive Options under this ISOP while
serving on the Committee, unless otherwise specified herein.
3.3 The Committee shall have the full power to and authority to, subject
to limitation under the terms and provisions of any applicable law and
subject to changes according to the Board's decisions: (i) designate
participants; (ii) determine the terms and provisions of the
respective Option Agreements (which need not be identical), including,
but not limited to, provisions concerning the time and the extent to
which the Options may be exercised and the nature and duration of
restrictions as to the transferability or restrictions constituting
substantial risk of forfeiture and to cancel or suspend awards, as
necessary; (iii) determine the Fair Market Value of the Shares covered
by each Option; (iv) make an election as to the type of Approved 102
Option; (v) designate the type of Options; (vi) alter any restrictions
and conditions of any Options or Shares subject to any Options (vii)
interpret the provisions and supervise the administration of the ISOP;
(viii) accelerate the right of an Optionee to exercise in whole or in
part, any previously granted Option; (ix) determine the Purchase Price
of the Option; (x) prescribe, amend and rescind rules and regulations
relating to the ISOP; and (xi) make all other determinations deemed
necessary or advisable for the administration of the ISOP.
3.4 Notwithstanding the above, the Committee shall not be entitled to
grant Options to the Optionees, however, it will be authorized to
issue Shares underlying Options which have been granted by the Board
and duly exercised pursuant to the provisions herein in accordance
with section 112(a)(5) of the Companies Law.
3.5 The Board or the Committee shall have the authority to grant, at its
discretion, to the holder of an outstanding Option, in exchange for
the surrender and cancellation of such Option, a new Option having a
purchase price equal to, lower than or higher than the Purchase Price
of the original Option so surrendered and canceled and containing such
other terms and conditions as the Board or the Committee may prescribe
in accordance with the provisions of the ISOP.
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3.6 Subject to the Company's Articles of Association, all decisions and
selections made by the Board or the Committee pursuant to the
provisions of the ISOP shall be made by a majority of its members
except that no member of the Board or the Committee shall vote on, or
be counted for quorum purposes, with respect to any proposed action of
the Board or the Committee relating to any Option to be granted to
that member. Any decision reduced to writing shall be executed in
accordance with the provisions of the Company's Articles of
Association, as the same may be in effect from time to time.
3.7 The interpretation and construction by the Committee of any provision
of the ISOP or of any Option Agreement thereunder shall be final and
conclusive unless otherwise determined by the Board.
3.8 Subject to the Company's Articles of Association and the Company's
determination to provide indemnification to a member of the board or
the Committee, and to all approvals legally required, including, but
not limited to the provisions of the Companies Law, each member of the
Board or the Committee shall be indemnified and held harmless by the
Company against any cost or expense (including counsel fees)
reasonably incurred by him, or any liability (including any sum paid
in settlement of a claim with the approval of the Company) arising out
of any act or omission to act in connection with the ISOP unless
arising out of such member's own fraud or bad faith, to the extent
permitted by applicable law. Such indemnification shall be in addition
to any rights of indemnification the member may have as a director or
otherwise under the Company's Articles of Association, any agreement,
any vote of shareholders or disinterested directors, insurance policy
or otherwise.
4. DESIGNATION OF PARTICIPANTS
4.1 The persons eligible for participation in the ISOP as Optionees 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; (ii) Non-Employees may only be granted 3(i) Options; and
(iii) Controlling Shareholders may only be granted 3(i) Options.
4.2 The grant of an Option hereunder shall neither entitle the Optionee to
participate nor disqualify the Optionee from participating in, any
other grant of Options pursuant to the ISOP or any other option or
share plan of the Company or any of its Affiliates.
4.3 Anything in the ISOP to the contrary notwithstanding, all grants of
Options to directors and office holders shall be authorized and
implemented in accordance with the provisions of the Companies Law or
any successor act or regulation, as in effect from time to time.
5. DESIGNATION OF OPTIONS PURSUANT TO SECTION 102
5.1 The Company may designate Options granted to Employees pursuant to
Section 102 as Unapproved 102 Options or Approved 102 Options.
5.2 The grant of Approved 102 Options shall be made under this ISOP
adopted by the Board as described in Section 15 below, and shall be
conditioned upon the approval of this ISOP by the ITA as required by
Section 102.
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5.3 Approved 102 Option may either be classified as a Capital Gain Option
("CGO") or an Ordinary Income Option ("OIO").
5.4 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) shall be referred to herein as CGO.
5.5 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) shall be referred to herein as OIO.
5.6 The Company's election of the type of Approved 102 Options as CGO or
OIO granted to Employees (the "Election"), shall be appropriately
filed with the ITA before the Date of Grant of an Approved 102 Option.
Such Election shall become effective beginning the first Date of Grant
of an Approved 102 Option under this ISOP and shall remain in effect
at least 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 Optionees 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.
5.7 All Approved 102 Options must be held in trust by a Trustee, as
described in Section 6 below.
5.8 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 of the Ordinance and the regulations
promulgated thereunder.
5.9 With regards to Approved 102 Options, the provisions of the ISOP
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 ISOP and
of the Option Agreement. 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 ISOP or the Option Agreement, shall be considered binding upon the
Company and the Optionees.
6. TRUSTEE
6.1 Approved 102 Options which shall be granted under the ISOP and/or any
Shares allocated or issued upon exercise of such Approved 102 Options
and/or other shares received subsequently following any realization of
rights, including without limitation bonus shares, shall be allocated
or issued to the Trustee and held for the benefit of the Optionees 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 may be treated as Unapproved
102 Options, all in accordance with the provisions of Section 102 and
regulations promulgated thereunder.
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6.2 Notwithstanding anything to the contrary, the Trustee shall not
release any Shares allocated or issued upon exercise of Approved 102
Options prior to the full payment of the Optionee's tax liabilities
arising from Approved 102 Options which were granted to him and/or any
Shares allocated or issued upon exercise of such Options.
6.3 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 Optionee shall not 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.
Notwithstanding the above, if any such sale or release occurs during
the Holding Period, the sanctions under Section 102 of the Ordinance
and under any rules or regulation or orders or procedures promulgated
thereunder shall apply to and shall be borne by such Optionee.
6.4 Upon receipt of Approved 102 Option, the Optionee 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 the ISOP, or any Approved 102 Option or Share granted to him
thereunder.
7. SHARES RESERVED FOR THE ISOP; RESTRICTION THEREON
7.1 The Company has reserved 893,915 (eight hundred and ninety three
thousand and nine hundred and fifteen) authorized but unissued Shares,
for the purposes of the ISOP and for the purposes of any other share
option plans which may be adopted by the Company in the future,
subject to adjustment as set forth in Section 9 below. Any Shares
which remain unissued and which are not subject to the outstanding
Options at the termination of the ISOP shall cease to be reserved for
the purpose of the ISOP, but until termination of the ISOP the Company
shall at all times reserve sufficient number of Shares to meet the
requirements of the ISOP. Should any Option for any reason expire or
be canceled prior to its exercise or relinquishment in full, the
Shares subject to such Option may again be subjected to an Option
under the ISOP or under the Company's other share option plans.
7.2 Each Option granted pursuant to the ISOP, shall be evidenced by a
written Option Agreement between the Company and the Optionee, in such
form as the Board or the Committee shall from time to time approve.
Each Option Agreement shall state, among other matters, the number of
Shares to which the Option relates, the type of Option granted
thereunder (whether a CGO, OIO, Unapproved 102 Option or a 3(i)
Option), the Vesting Dates, the Purchase Price per share, the
Expiration Date and such other terms and conditions as the Committee
or the Board in its discretion may prescribe, provided that they are
consistent with this ISOP.
8. PURCHASE PRICE
8.1 The Purchase Price of each Share subject to an Option shall be
determined by the Committee in its sole and absolute discretion in
accordance with applicable law, subject to any guidelines as may be
determined by the Board from time to time. Each Option Agreement will
contain the Purchase Price determined for each Optionee.
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8.2 The Purchase Price shall be payable upon the exercise of the Option in
a form satisfactory to the Committee. The Committee shall have the
authority to postpone the date of payment on such terms as it may
determine.
8.3 The Purchase Price shall be denominated in the currency of the primary
economic environment of, either the Company or the Optionee (that is
the functional currency of the Company or the currency in which the
Option is paid) as determined by the Company.
9. ADJUSTMENTS
Upon the occurrence of any of the following described events, an Optionee's
rights to purchase Shares under the ISOP shall be adjusted as hereafter
provided:
9.1 In the event of Transaction, the unexercised Options then outstanding
under the ISOP may be assumed or substituted for an appropriate number
of shares of each class of shares or other securities of the Successor
Company (or a parent or subsidiary of the Successor Company) as were
distributed to the shareholders of the Company in connection with the
Transaction. In the case of such assumption and/or substitution of
Options, appropriate adjustments shall be made to the Purchase Price
so as to reflect such action, all as subject to the determination of
the Committee or the Board, which determination shall be in their sole
discretion and final. In the event the Successor Company does not
agree to assume or substitute as described in this Section 9.1, the
Options shall terminate as of the date of the closing of the
Transaction.
9.2 Notwithstanding the above and subject to any applicable law, the Board
or the Committee shall have full power and authority to determine that
in certain Option Agreements there shall be a clause instructing that,
if in any such Transaction as described in section 9.1 above, the
Successor Company (or parent or subsidiary of the Successor Company)
does not agree to assume or substitute for the Options, the Vesting
Dates shall be accelerated so that any unvested Option or any portion
thereof shall be immediately vested as of the date which is ten (10)
days prior to the effective date of the Transaction.
9.3 For the purposes of section 9.1 above, an Option shall be considered
assumed or substituted if, following the Transaction, the Option
confers the right to purchase or receive, for each Share underlying an
Option immediately prior to the Transaction, the consideration
(whether shares, options, cash, or other securities or property)
received in the Transaction by holders of 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); provided, however, that if such
consideration received in the Transaction is not solely ordinary
shares (or their equivalent) of the Successor Company or its parent or
subsidiary, the Committee may, with the consent of the Successor
Company, provide for the consideration to be received upon the
exercise of the Option to be solely ordinary shares (or their
equivalent) of the Successor Company or its parent or subsidiary equal
in Fair Market Value to the per Share consideration received by
holders of a majority of the outstanding shares in the Transaction;
and provided further that the Committee may determine, in its
discretion, that in lieu of such assumption or substitution of Options
for options of the Successor Company or its parent or subsidiary, such
Options will be substituted for any other type of asset or property
including cash which is fair under the circumstances.
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9.4 If the Company is voluntarily liquidated or dissolved while
unexercised Options remain outstanding under the ISOP, the Company
shall immediately notify all unexercised Option holders of such
liquidation, and the Option holders shall then have ten (10) days to
exercise any unexercised Vested Option held by them at that time, in
accordance with the exercise procedure set forth herein. Upon the
expiration of such ten-days period, all remaining outstanding Options
will terminate immediately.
9.5 If the outstanding shares of the Company shall at any time be changed
or exchanged by declaration of a share dividend (bonus shares), share
split, combination or exchange of shares, recapitalization, or any
other like event by or of the Company, and as often as the same shall
occur, then the number, class and kind of the Shares subject to the
ISOP or subject to any Options therefore granted, and the Purchase
Prices, shall be appropriately and equitably adjusted so as to
maintain the proportionate number of Shares without changing the
aggregate Purchase Price, provided, however, that no adjustment shall
be made by reason of the distribution of subscription rights (rights
offering) on outstanding shares. Upon happening of any of the
foregoing, the class and aggregate number of Shares issuable pursuant
to the ISOP (as set forth in Section 7 hereof), in respect of which
Options have not yet been exercised, shall be appropriately adjusted,
all as will be determined by the Board whose determination shall be
final.
10. TERM AND EXERCISE OF OPTIONS
10.1 Options shall be exercised by the Optionee by giving written notice to
the Company and/or to any third party designated by the Company (the
"Representative"), in such form and method as may be determined by the
Company and when applicable, by the Trustee in accordance with the
requirements of Section 102, which exercise shall be effective upon
receipt of such notice by the Company and/or the Representative and
the payment of the Purchase Price at the Company's or the
Representative's principal office. The notice shall specify the number
of Shares with respect to which the Option is being exercised.
10.2 Each Option granted under this ISOP shall be exercisable following the
Vesting Dates and for the number of Shares as shall be provided in
Exhibit B to the Option Agreement. Options, to the extent not
previously exercised, shall terminate forthwith upon the earlier of:
(i) the date set forth in the Option Agreement; and (ii) the
expiration of any extended period in any of the events set forth in
Section 10.5 below.
10.3 The Options may be exercised by the Optionee in whole at any time or
in part from time to time, to the extent that the Options become
vested and exercisable, prior to the Expiration Date, and provided
that, subject to the provisions of section 10.5 below, the Optionee is
employed by or providing services to the Company or any of its
Affiliates, at all times during the period beginning with the granting
of the Option and ending upon the date of exercise.
10.4 Subject to the provisions of section 10.5 below, in the event of
termination of Optionee's employment or services, with the Company or
any of its Affiliates, all Options granted to such Optionee will
immediately expire. A notice of termination of employment or service
shall be deemed to constitute termination of employment or service.
For the avoidance of doubt, in case of such termination of employment
or service, the unvested portion of the Optionee's Option
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shall not vest and shall not become exercisable.
10.5 Notwithstanding anything to the contrary hereinabove and unless
otherwise determined in the Optionee's Option Agreement, an Option may
be exercised after the date of termination of Optionee's employment or
service with the Company or any Affiliates during an additional period
of time beyond the date of such termination, but only with respect to
the number of Vested Options at the time of such termination according
to the Vesting Dates, if:
(i) termination is without Cause, including termination as a result
of death or disability, in which event any Vested Option still in
force and unexpired may be exercised within a period of ninety
(90) days after the date of such termination; or-
(ii) prior to the date of termination the Committee shall authorize an
extension of the terms of all or part of the Vested Options
beyond the date of such termination for a period not to exceed
the period during which the Options by their terms would
otherwise have been exercisable.
For avoidance of any doubt, if termination of employment or service is
for Cause, any outstanding unexercised Option (whether vested or
non-vested), will immediately expire and terminate, and the Optionee
shall not have any right in connection to such outstanding Options.
10.6 To avoid doubt, an Optionees shall not have any of the rights or
privileges of a shareholders of the Company in respect of any Shares
purchasable upon the exercise of an Option, nor shall an Optionee be
deemed to be a shareholder or creditor of the Company for purpose of
the operation of Sections 350 and 351 of the Companies Law or any
successor to such section, until registration of the Optionee as the
holder of such Shares in the Company's register of shareholders upon
exercise of the Option in accordance with the provisions of the ISOP,
but in case of Options and Shares held by the Trustee, subject to the
provisions of Section 6 of the ISOP.
10.7 Any form of Option Agreement authorized by the ISOP may contain such
other provisions as the Committee may, from time to time, deem
advisable.
10.8 With respect to an Unapproved 102 Option, if the Optionee ceases to be
employed by the Company or any Affiliate, the Optionee shall extend to
the Company and/or its Affiliate a security or guarantee for the
payment of tax due at the time of sale of Shares, all in accordance
with the provisions of Section 102 and the rules, regulation or orders
promulgated thereunder.
11. VESTING OF OPTIONS
11.1 Subject to the provisions of the ISOP, each Option shall vest
following the Vesting Dates and for the number of Shares as shall be
provided in the Option Agreement. However, no Option shall be
exercisable after the Expiration Date.
11.2 An Option may be subject to such other terms and conditions on the
time or times when it may be exercised, as the Committee may deem
appropriate. The vesting provisions of individual Options may vary.
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12. PURCHASE FOR INVESTMENT
The Company's obligation to issue or allocate Shares upon exercise of an
Option granted under the ISOP is expressly conditioned upon: (a) the
Company's completion of any registration or other qualifications of such
Shares under all applicable laws, rules and regulations or (b)
representations and undertakings by the Optionee (or his legal
representative, heir or legatee, in the event of the Optionee's death) to
assure that the sale of the Shares complies with any registration exemption
requirements which the Company in its sole discretion shall deem
appropriate. Such required representations and undertakings may include
representations and agreements that such Optionee (or his legal
representative, heir, or legatee): (a) is purchasing such Shares for
investment and not with any present intention of selling or otherwise
disposing thereof; and (b) agrees to have placed upon the face and reverse
of any certificates evidencing such Shares a legend setting forth (i) any
representations and undertakings which such Optionee has given to the
Company or a reference thereto and (ii) that, prior to effecting any sale
or other disposition of any such Shares, the Optionee must furnish to the
Company an opinion of counsel, satisfactory to the Company, that such sale
or disposition will not violate the applicable laws, rules, and
regulations, whether of the State of Israel or of the United States or any
other State having jurisdiction over the Company and the Optionee.
13. DIVIDENDS
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 Optionee and held by the Optionee or by the Trustee, as
the case may be, the Optionee 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.
14. RESTRICTIONS ON ASSIGNABILITY AND SALE OF OPTIONS
14.1 No Option or any right with respect thereto, purchasable hereunder,
whether fully paid or not, shall be assignable, transferable or given
as collateral or any right with respect to it given to any third party
whatsoever, other than by will or the laws of descent and distribution
or as specifically otherwise allowed under the ISOP, and during the
lifetime of the Optionee each and all of such Optionee's rights to
purchase Shares hereunder shall be exercisable only by the Optionee.
Any action made directly or indirectly in violation of the Section
shall be void for all purposes.
14.2 As long as Options and/or Shares are held by the Trustee on behalf of
the Optionee, all rights of the Optionee over the Shares are personal,
can not be transferred, assigned, pledged or mortgaged, other than by
will or pursuant to the laws of descent and distribution.
15. EFFECTIVE DATE AND DURATION OF THE ISOP
The ISOP shall be effective as of the day it was adopted by the Board and
shall terminate at the end of ten (10) years from such day of adoption.
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The Company shall obtain the approval of the Company's shareholders for the
adoption of this ISOP or for any amendment to this ISOP, if shareholders'
approval is necessary or desirable to comply with any applicable law
including without limitation the US securities law or the securities laws
of other jurisdiction applicable to Options granted to Optionees under this
ISOP, or if shareholders' approval is required by any authority or by any
governmental agencies or national securities exchanges including without
limitation the US Securities and Exchange Commission.
16. AMENDMENTS OR TERMINATION
The Board may at any time, but when applicable, after consultation with the
Trustee, amend, alter, suspend or terminate the ISOP. No amendment,
alteration, suspension or termination of the ISOP shall impair the rights
of any Optionee, unless mutually agreed otherwise between the Optionee and
the Company, which agreement must be in writing and signed by the Optionee
and the Company. Termination of the ISOP shall not affect the Committee's
ability to exercise the powers granted to it hereunder with respect to
Options granted under the ISOP prior to the date of such termination.
17. GOVERNMENT REGULATIONS
The ISOP, and the granting and exercise of Options hereunder, and the
obligation of the Company to sell and deliver Shares under such Options,
shall be subject to all applicable laws, rules, and regulations, whether of
the State of Israel or of the United States or any other State having
jurisdiction over the Company and the Optionee, including the registration
of the Shares under the United States Securities Act of 1933, and the
Ordinance and to such approvals by any governmental agencies or national
securities exchanges as may be required. Nothing herein shall be deemed to
require the Company to register the Shares under the securities laws of any
jurisdiction.
18. CONTINUANCE OF EMPLOYMENT OR HIRED SERVICES
Neither the ISOP nor the Option Agreement with the Optionee shall impose
any obligation on the Company or an Affiliate thereof, to continue any
Optionee in its employ or service, and nothing in the ISOP or in any Option
granted pursuant thereto shall confer upon any Optionee any right to
continue in the employ or service of the Company or an Affiliate thereof or
restrict the right of the Company or an Affiliate thereof to terminate such
employment or service at any time.
19. GOVERNING LAW & JURISDICTION
The ISOP shall be governed by and construed and enforced in accordance with
the laws of the State of Israel applicable to contracts made and to be
performed therein, without giving effect to the principles of conflict of
laws. The competent courts of Tel-Aviv, Israel shall have sole jurisdiction
in any matters pertaining to the ISOP.
20. TAX CONSEQUENCES
20.1 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 and/or its Affiliates, the Trustee or the
Optionee), hereunder, shall be borne solely by the Optionee. The
Company and/or its Affiliates and/or the Trustee shall withhold taxes
according to the requirements under the applicable laws, rules, and
regulations, including withholding taxes at source. Furthermore,
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the Optionee shall agree to indemnify the Company and/or its
Affiliates and/or 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 Optionee.
20.2 The Company and/or, when applicable, the Trustee shall not be required
to release any Share certificate to an Optionee until all required
payments have been fully made.
21. NON-EXCLUSIVITY OF THE ISOP
The adoption of the ISOP by the Board shall not be construed as amending,
modifying or rescinding any previously approved incentive arrangements or
as creating any limitations on the power of the Board to adopt such other
incentive arrangements as it may deem desirable, including, without
limitation, the granting of Options otherwise than under the ISOP, and such
arrangements may be either applicable generally or only in specific cases.
22. MULTIPLE AGREEMENTS
The terms of each Option may differ from other Options granted under the
ISOP at the same time, or at any other time. The Board may also grant more
than one Option to a given Optionee during the term of the ISOP, either in
addition to, or in substitution for, one or more Options previously granted
to that Optionee.
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