Exhibit 4.9
ISG INTERNATIONAL SOFTWARE GROUP LTD.
1998 STOCK OPTION PLAN
1. Purpose of the Plan. ISG International Software Group Ltd. 1998 Stock
Option Plan (the "Plan") is intended to advance the interests of ISG
International Software Group Ltd. (the "Company") by inducing individuals or
entities of outstanding ability and potential to join and remain with, or
provide consulting or advisory services to, the Company, by encouraging and
enabling employees, Directors, consultants and advisors to acquire proprietary
interests in the Company, and by providing those employees, Directors,
consultants and advisors with an additional incentive to promote the success of
the Company. This is accomplished by providing for the granting of "Options,"
which term, as used herein, includes both "Incentive Stock Options" and
"Nonstatutory Stock Options," as later defined, to employees and "Nonstatutory
Stock Options" to non-employee Directors, consultants and advisors.
2. Administration. The Plan shall be administered by the Board of
Directors of the Company (the "Board"). Except as herein specifically provided,
the interpretation and construction by the Board of any provision of the Plan or
of any Option granted under it, shall be final and conclusive. The receipt of
Options by Directors shall not preclude their vote on any matters in connection
with the administration or interpretation of the Plan.
3. Shares Subject to the Plan. The stock subject to Options granted
under the Plan shall be ordinary shares of the Company, par value NIS 0.1 per
share (the "Ordinary Shares") authorized but unissued. The maximum number of
Ordinary Shares which may be issued pursuant to Options granted under the Plan
shall not exceed five hundred
thousand (500,000) shares, subject to adjustment in accordance with the
provisions of Section 12 hereof The Company shall at all times while the Plan is
in force reserve such number of Ordinary Shares as will be sufficient to satisfy
the requirements of all outstanding Options granted under the Plan. In the event
any Option granted under the Plan shall expire or terminate for any reason
without having been exercised in full or shall cease for any reason to be
exercisable in whole or in part, the unpurchased Ordinary Shares subject thereto
shall again be available for Options under the Plan.
4. Participation. The class of persons which shall be eligible to
receive Options under the Plan shall be (a) with respect to Incentive Stock
Options described in Section 6 hereof, all employees of either the Company or
any subsidiary corporation of the Company; and (b) with respect to Nonstatutory
Stock Options described in Section 7 hereof, all employees and non-employee
Directors of, or consultants and advisors to, either the Company or any
subsidiary corporation of the Company; provided, however, that Nonstatutory
Stock Options shall not be granted to any such consultants and advisors unless
(i) bona fide services have been or are to be rendered by such consultant or
advisor; and (ii) such services are not in connection with the offer or sale of
securities in a capital raising transaction. The Board, in its sole discretion,
but subject to the provisions of the Plan, shall determine the employees and
non-employee Directors of, and the consultants and advisors to, the Company and
its subsidiary corporations to whom Options shall be granted (the "Optionees"),
the time or times when they shall be granted, the type of Option to be granted
and the number of shares to be covered by each Option, taking into account the
nature of the employment or services rendered by the individuals being
considered, their annual compensation, their present and potential contributions
to the
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success of the Company and such other factors as the Board may deem relevant.
5 Stock Option Agreement. Each Option granted under the Plan shall be
authorized by the Board and shall be evidenced by a Stock Option Agreement which
shall be executed by the Company and by the Optionee to whom such Option is
granted. The Stock Option Agreement shall specify the number of Ordinary Shares
as to which any Option is granted, the period during which the Option is
exercisable and the option price per share thereof. All Options shall comply
with and be subject to the provisions of Section 6 or 7, whichever is applicable
as determined by the type of Option to be granted, as well as all other
provisions of this Plan and such other terms and conditions not inconsistent
with the Plan as the Board may deem desirable.
6 Incentive Stock Options. The Board may grant Options under the Plan
which are intended to meet the requirements of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code") (referred to herein as an
"Incentive Stock Option"), and which are subject to the following terms and
conditions and any other terms and conditions as may at any time be required by
Code Section 422:
a. An Incentive Stock Option may be granted to any individual eligible
to receive an Option under the Plan pursuant to Section 4(a) hereof.
b. Each Incentive Stock Option under the Plan must be granted prior to
[ , 2008].
c. The option price of the shares subject to any Incentive Stock Option
shall not be less than the fair market value of the Ordinary Shares at the time
such Incentive Stock Option is granted; provided, however, if an Incentive Stock
Option is granted to an Optionee who owns, at the time the Incentive Stock
Option is granted, more than ten
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percent (10%) of the total combined voting power of all classes of stock of the
Company or of a parent corporation or subsidiary corporation of the Company, the
option price of the shares subject to the Incentive Stock Option shall be at
least one hundred ten percent (110%) of the fair market value of the Ordinary
Share at the time the Incentive Stock Option is granted.
d. No Incentive Stock Option granted under the Plan shall be exercisable
after the expiration of ten (10) years from the date of its grant. However, if
an Incentive Stock Option is granted to an Optionee who owns, at the time the
Incentive Stock Option is granted, more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or of a parent
corporation or subsidiary corporation of the Company, such Incentive Stock
Option shall not be exercisable after the expiration of five (5) years from the
date of its grant. Every Incentive Stock Option granted under the Plan shall be
subject to earlier termination as expressly provided in Section 10 hereof.
e. For purposes of determining share ownership under this Section 6, the
attribution rules of Code Section 424(d) shall apply.
f. For purposes of the Plan, fair market value shall be determined by
the Board. If the Ordinary Shares are listed on a national securities exchange
or traded on the Over-the-Counter market, fair market value shall be the closing
selling price or, if not available, the mean of the closing bid and asked prices
of the Ordinary Share, or, if not available, of the high bid and low asked
prices of the Ordinary Share quoted on such exchange, or on the Over-the-Counter
market as reported by the National Association of Securities Dealers Automated
Quotation (NASDAQ) system, or if the Ordinary Shares are not listed on NASDAQ,
then by the National Quotation Bureau, Incorporated, as the case
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may be, on the day on which the Option is granted, or, if there is no trading or
bid or asked price on that day, the closing selling price or the mean of the
closing bid and asked prices or of the high bid and low asked prices on the
nearest trading date before that day and for which such prices are available,
and if the Ordinary Shares are not listed on such an exchange or traded in such
a market, then the fair market value shall be determined by taking into
consideration all relevant factors, including but not limited to the Company's
net worth, prospective earning power and dividend paying capacity.
7. Nonstatutory Stock Options. The Board may grant Options under the
Plan which are not intended to meet the requirements of Code Section 422, as
well as Options which are intended to meet the requirements of Code Section 422
but the terms of which provide that they will not be treated as Incentive Stock
Options (referred to herein as a "Nonstatutory Stock Option"). Nonstatutory
Stock Options shall be subject to the following terms and conditions:
a. A Nonstatutory Stock Option may be granted to any individual or
entity eligible to receive an Option under the Plan pursuant to Section 4(b)
hereof.
b. The option price of the shares subject to a Nonstatutory Stock Option
shall be determined by the Board, in its sole discretion, at the time of the
grant of the Nonstatutory Stock Option; provided, however, that the option price
of the shares subject to a Nonstatutory Stock Option granted to a person subject
to Section 16(b) of the Securities Exchange Act of 1934, as amended (an
"Insider"), shall not be less than the fair market value of the Ordinary Share
at the time such Nonstatutory Stock Option is granted.
c. A Nonstatutory Stock Option granted under the Plan may be of such
duration as shall be determined by the Board (subject to earlier termination as
expressly
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provided in Section 10 hereof); provided, however, that no Nonstatutory Stock
Option granted under the Plan to an Insider shall be exercisable after the
expiration of ten (10) years from the date of its grant.
8. Transferability. No Incentive Stock Option granted under the Plan
shall be transferable by the Optionee otherwise than by will or the laws of
descent and distribution, and, during the lifetime of the Optionee shall not be
exercisable by any other person. [A Nonstatutory Stock Option may be transferred
(i) to one or more members of the Optionee's Immediate Family, (ii) to a trust
solely for the benefit of the Optionee and/or one or more members of his or her
Immediate Family, or (iii) to a partnership or limited liability company whose
only partners or members are the Optionee and/or persons referred to in clauses
(i) and (ii). For this purpose, members of an Optionee's "Immediate Family"
shall include his or her spouse, children or grandchildren (including adopted
children and grandchildren and step-children and step-grandchildren). Any such
transfer shall not be effective unless and until the Optionee has furnished the
Company with a written notice of the transfer and copies of all documents
evidencing the transfer. Any Option or portion thereof so transferred may be
exercised by the transferee to the same extent as the Optionee would have been
entitled to exercise it, and shall remain subject to all of the terms and
conditions that would have applied to such Option under the provisions thereof
and this Plan, if the Optionee had not transferred the Option or portion
thereof.]
9. Rights of Option Holders. An Option Holder shall have none of the
rights of a shareholder with respect to the Ordinary Shares covered by his
Option until such Ordinary Shares shall be transferred to him upon the exercise
of his Option. For purposes
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of this Plan, "Option Holder" shall mean (i) an Optionee; or (ii) with respect
to any Option held by an Optionee at the date of his death, the Optionee's
Beneficiary, as determined pursuant to Section 19.
10. Termination of Employment or Death.
a. If the employment of an employee by, or the services of a
non-employee Director for, or consultant or advisor to, the Company or a
subsidiary corporation of the Company shall be terminated for cause or, subject
to the terms of the Stock Option Agreement, voluntarily by the employee,
non-employee Director, consultant or advisor, then his or its Option shall
expire forthwith. Subject to the terms of the Stock Option Agreement, and except
as provided in subsections (b) and (c) of this Section 10, if such employment or
services shall terminate for any other reason, then such Option may be exercised
at any time within three (3) months after such termination, subject to the
provisions of subsection (d) of this Section 10. For purposes of the Plan, the
retirement of an individual either pursuant to a pension or retirement plan
adopted by the Company or at the normal retirement date prescribed from time to
time by the Company shall be deemed to be termination of such individual's
employment other than voluntarily or for cause. For purposes of this subsection
(a), an employee, non-employee Director, consultant or advisor who leaves the
employ or services of the Company to become an employee or a non-employee
Director of, or a consultant or advisor to, a subsidiary corporation of the
Company or a corporation (or subsidiary corporation or parent corporation of the
corporation) which has assumed the Options of the Company as a result of a
corporate reorganization, etc., shall not be considered to have terminated his
employment or services.
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b. Subject to the terms of the Stock Option Agreement, if an Optionee
dies (i) while employed by, or while serving as a non-employee Director for or
consultant or advisor to, the Company or a subsidiary corporation of the Company
or (ii) within three (3) months after the termination of his employment or
services other than voluntarily by the employee or non-employee Director, or for
cause, then such Option may, subject to the provisions of subsection (d) of this
Section 10, be exercised by the Optionee's Beneficiary at any time within one
(1) year after such death.
c. Subject to the terms of the Stock Option Agreement, if an Optionee
ceases employment or services because of permanent and total disability (within
the meaning of Code Section 22(e)(3)) while employed by, or while serving as a
non-employee Director for or consultant or advisor to, the Company or a
subsidiary corporation of the Company, then such Option may, subject to the
provisions of subsection (d) of this Section 10, be exercised at any time within
one (1) year after his termination of employment, termination of Directorship or
termination of consulting or advisory services, as the case may be, due to the
disability.
d. An Option may not be exercised pursuant to this Section 10 except to
the extent that the Option Holder was entitled to exercise the Option at the
time of termination of employment, termination of Directorship, termination of
consulting or advisory services, or death, and in any event may not be exercised
after the expiration of the Option.
e. For purposes of this Section 10, the employment relationship of an
employee of the Company or of a subsidiary corporation of the Company will be
treated as continuing intact while he is on military or sick leave or other bona
fide leave of
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absence (such as temporary employment by the Government) if such leave does not
exceed ninety (90) days, or, if longer, so long as his right to reemployment is
guaranteed either by statute or by contract.
11. Exercise of Options.
a. Unless otherwise provided in the Stock Option Agreement, any Option
granted under the Plan shall be exercisable in whole at any time, or in part
from time to time, prior to expiration. The Board, in its absolute discretion,
may provide in any Stock Option Agreement that the exercise of any Option
granted under the Plan shall be subject: (i) to such condition or conditions as
it may impose, including, but not limited to, a condition that the Optionee
remain in the employ or service of, or continue to provide consulting or
advisory services to, the Company or a subsidiary corporation of the Company for
such period or periods from the date of grant of the Option as the Board, in its
absolute discretion, shall determine; and (ii) to such limitations as it may
impose, including, but not limited to, a limitation that the aggregate fair
market value of the Ordinary Shares with respect to which Incentive Stock
Options are exercisable for the first time by any Optionee during any calendar
year (under all plans of the Company and its parent corporation and subsidiary
corporations) shall not exceed one hundred thousand dollars ($100,000). In
addition, in the event that under any Stock Option Agreement the aggregate fair
market value of the Ordinary Shares with respect to which Incentive Stock
Options are exercisable for the first time by any Optionee during any calendar
year (under all plans of the Company and its parent corporation and subsidiary
corporations) exceeds one hundred thousand dollars ($100,000), the Board may,
when shares are transferred upon exercise of such Options, designate those
shares which shall be treated as transferred
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upon exercise of an Incentive Stock Option and those shares which shall be
treated as transferred upon exercise of a Nonstatutory Stock Option.
b. An Option granted under the Plan shall be exercised by the delivery
by the Option Holder to the Company at its principal office (attention of the
Secretary) of written notice of the number of Ordinary Shares with respect to
which the Option is being exercised. Such notice shall be accompanied by payment
of the full option price of such shares, and payment of such option price shall
be made by the Option Holder's delivery of his check payable to the order of the
Company in such amount.
12. Adjustment Upon Change in Capitalization.
a. In the event that the outstanding Ordinary Shares is hereafter
changed by reason of reorganization, merger, consolidation, recapitalization,
reclassification, stock split-up, combination of shares, reverse split, stock
dividend or the like, an appropriate adjustment shall be made by the Board in
the aggregate number of shares available under the Plan, in the number of shares
and option price per share subject to outstanding Options, and in any limitation
on exercisability referred to in Section 11(a) (ii) hereof which is set forth in
outstanding Incentive Stock Options. If the Company shall be reorganized,
consolidated or merged with another corporation, an Option Holder shall be
entitled to receive upon the exercise of his Option the same number and kind of
shares of stock or the same amount of property, cash or securities as he would
have been entitled to receive upon the happening of any such corporate event as
if he had been, immediately prior to such event, the holder of the number of
shares covered by his Option; provided, however, that in such event the Board
shall have the discretionary power to take any action necessary or appropriate
to prevent any Incentive Stock Option granted hereunder
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from being disqualified as such under the then existing provisions of the Code
or any law amendatory thereof or supplemental thereto.
b. Any adjustment in the number of shares shall apply proportionately to
only the unexercised portion of the Option granted hereunder. If fractions of a
share would result from any such adjustment, the adjustment shall be revised to
the next lower whole number of shares.
13. Further Conditions of Exercise.
a. Unless prior to the exercise of the Option the shares issuable upon
such exercise have been registered with the Securities and Exchange Commission
pursuant to the Securities Act of 1933, as amended, the notice of exercise shall
be accompanied by a representation or agreement of the Option Holder to the
Company to the effect that such shares are being acquired for investment and not
with a view to the resale or distribution thereof, or such other documentation
as may be required by the Company, unless in the opinion of counsel to the
Company such representation, agreement or documentation is not necessary to
comply with such Act.
b. The Company shall not be obligated to deliver any Ordinary Shares
until it has been listed on each securities exchange on which the Ordinary
Shares may then be listed or until there has been qualification under or
compliance with such federal or state laws, rules or regulations as the Company
may deem applicable. The Company shall use reasonable efforts to obtain such
listing, qualification and compliance.
14. Effectiveness of the Plan. The plan was adopted by the Board on [ ,
1998] and approved by the shareholders of the Company on [ , 1998].
15. Termination, Modification and Amendment.
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a. The Plan shall terminate on [ , 2008], which is ten (10) years from
the date of the earlier of its adoption by the Board or its approval by the
Company's shareholders, or sooner as hereinafter provided, and no Option shall
be granted after termination of the Plan.
b. The Plan may from time to time be terminated, modified or amended by
the affirmative vote of the holders of a majority of the outstanding Ordinary
Shares of the Company present in person or by proxy at a meeting of shareholders
of the Company convened for such purpose.
c. The Board may at any time, on or before the termination date referred
to in Section 15 (a) hereof, terminate the Plan, or from time to time make such
modifications or amendments to the Plan as it may deem advisable; provided,
however, that the Board shall not, without approval by the affirmative vote of
the holders of a majority of the outstanding Ordinary Shares of the Company
present in person or by proxy at a meeting of shareholders of the Company
convened for such purpose, increase (except as provided by Section 12 hereof)
the maximum number of shares as to which Options may be granted hereunder,
change the designation of the employees or class of employees to receive
Options, or make any other change which would prevent any Incentive Stock Option
granted hereunder which is intended to be an "incentive stock option" from
qualifying as such under the then existing provisions of the Code or any law
amendatory thereof or supplemental thereto.
d. No termination, modification or amendment of the Plan may, without
the consent of the Option Holder, adversely affect the rights conferred by such
Option.
16. Not a Contract of Employment. Nothing contained in the Plan or in
any
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Stock Option Agreement executed pursuant hereto shall be deemed to confer upon
any Option Holder any right to remain in the employ or service of the Company or
a subsidiary corporation of the Company or any entitlement to any remuneration
or other benefit pursuant to any consulting or advisory arrangement.
17. Use of Proceeds. The proceeds from the sale of shares pursuant to
Options granted under the Plan shall constitute general funds of the Company.
18. Taxes. The Company may make such provisions and take such steps as
it may deem necessary or appropriate for the withholding of all taxes required
by law to be withheld with respect to Options granted under the Plan and the
exercise thereof including, but not limited to (i) deducting the amount so
required to be withheld from any other amount then or thereafter payable to an
Option Holder; or (ii) requiring an Option Holder to pay to the Company the
amount so required to be withheld as a condition of the issuance, delivery,
distribution or release of any Ordinary Shares.
19. Designation and Change of Beneficiary. Each Optionee shall file with
the Board a written designation of one or more persons (the "Beneficiary") as
the individual who shall be entitled to exercise any Options, or to receive any
amount payable, under the Plan upon his death. An Optionee may, from time to
time, revoke or change his Beneficiary designation without the consent of any
previously designated Beneficiary by filing a new designation with the Board.
The last such designation received by the Board shall be controlling; provided,
however, that no designation, or change or revocation thereof, shall be
effective unless received by the Board prior to the Optionee's death, and in no
event shall it be effective as of a date prior to such receipt. If at the date
of an Optionee's death, there is no designation of a Beneficiary in effect for
the Optionee
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pursuant to the provisions of this Section 19, or if no Beneficiary designated
by the Optionee in accordance with the provisions hereof survives to exercise
any Options that become exercisable, or to receive any amount that becomes
payable, under the Plan by reason of the Optionee's death, the Optionee's estate
shall be treated as the Optionee's Beneficiary for all purposes.
20. Payments to Persons Other Than Optionee. If the Board shall find
that any Option Holder to whom any amount, or any Ordinary Shares, is payable
under the Plan is unable to care for his affairs because of illness, accident or
legal incapacity, then if the Board so directs, such amount, or such Ordinary
Shares, may be paid to such Option Holder's spouse, child or other relative, an
institution maintaining or having custody of such person, or any other person
deemed by the Board to be a proper recipient on behalf of such Option Holder,
unless a prior claim therefor has been made by a duly appointed legal
representative of the Option Holder. Any payment made under this Section 20
shall be a complete discharge of the liability of the Company with respect to
such payment.
21. Indemnification of the Board. In addition to such other rights of
indemnification as they may have, the members of the Board shall be indemnified
by the Company to the extent permitted under applicable law against all costs
and expenses reasonably incurred by them in connection with any action, suit or
proceeding to which they or any of them may be a party by reason of any action
taken or failure to act under or in connection with the Plan or any rights
granted hereunder and against all amounts paid by them in settlement thereof or
paid by them in satisfaction of a judgment of any such action, suit or
proceeding, except a judgment based upon a finding of bad faith. Upon the
institution of any such action, suit or proceeding, the member or members of the
Board
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shall notify the Company in writing, giving the Company an opportunity at its
own cost to defend the same before such member or members undertake to defend
the same on their own behalf.
22. Definitions. For purposes of the Plan, the terms "parent
corporation" and "subsidiary corporation" shall have the meaning set forth in
Code Sections 424(e) and 424(f), respectively, and the masculine shall include
the feminine and the neuter as the context requires.
23. Governing Law. The Plan shall be governed by, and all questions
arising hereunder shall be determined in accordance with, the laws of the State
of Israel.
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