Exhibit 4.10
ORCKIT COMMUNICATIONS LTD.
2003 SUBSIDIARY EMPLOYEE SHARE INCENTIVE PLAN
A. NAME, PURPOSE AND DEFINITIONS
1. Name: This plan, as amended from time to time, shall be known as the
"Orckit Communications Ltd. 2003 Subsidiary Employee Share Incentive Plan" (the
"Plan").
2. Purpose: The purpose of the Plan is to provide incentives to employees,
consultants and contractors of Subsidiaries (as defined below) of Orckit
Communications Ltd. (the "Company") by granting them Ordinary Shares, no par
value, of the Company ("Shares"), pursuant to a plan approved by the Board of
Directors of the Company (the "Board").
3. Definitions: The following definitions shall be in effect under the
Plan:
"Corporate Transaction" means the occurrence, in a single transaction or in
a series of related transactions, of any one or more of the following events:
(i) a sale or other disposition of at least seventy five percent (75%)
of the outstanding shares of the Company; or
(ii) a merger, consolidation or similar transaction of the Company.
"Parent" shall mean a company (other than the Company) that owns, at the
time of the determination, securities possessing more than fifty percent (50%)
of the total combined voting power of all classes of securities in a Subsidiary.
"Subsidiary Sale" shall mean the sale of the Company's holdings in a Parent
or a Subsidiary, whether directly or indirectly, to a third party for cash or
securities of a public company, in any one or more transactions, pursuant to a
share sale, merger, consolidation or other transaction.
"Subsidiary" shall mean any company of which, at the time of the
determination, securities possessing more than fifty percent (50%) of the total
outstanding voting power are owned by the Company or by a company, which, within
the meaning of this definition, is a Subsidiary of the Company.
B. GENERAL TERMS AND CONDITIONS OF THE PLAN
3. Administration:
3.1 The Board of Directors of the Company may appoint a Share Incentive
Committee which will consist of such number of Directors of the Company, as may
be fixed from time to time by the Board of Directors of the Company. The Board
of Directors shall appoint the members of the committee, may from time to time
remove members from, or add members to, the committee and shall fill vacancies
in the Committee however caused. The Plan will be administered by the Share
Incentive Committee, and until the Board delegates administration to such
committee or where not permitted according to any applicable law, by the Board
of Directors of the Company (collectively - the "Committee").
3.2 The Committee shall select one of its members as its Chairman and shall
hold its meetings at such times and places as it shall determine. Actions taken
by a majority of the members of the Committee, at a meeting at which a majority
of its members is present, or acts reduced to, or approved in, writing by all
members of the Committee, shall be the valid acts of the Committee. The
Committee may appoint a Secretary, who shall keep records of its meetings and
shall make such rules and regulations for the conduct of its business, as it
shall deem advisable.
3.3 Subject to the general terms and conditions of this Plan, the Committee
shall have the full authority in its discretion, from time to time and at any
time, to determine the terms under which grants shall be made pursuant to the
Plan, including (i) the persons to whom Shares shall be granted, (ii) the number
of Shares to be granted and the vesting schedule thereof, if any, (iii) the time
or times at which the same shall be granted, (iv) the timing of an Exchange (as
defined below), type and number of the Exchange Securities (as defined below),
vesting and other Exchange terms, (v) other parameters, with respect to Shares
granted to Israeli Grantees, related to the Ordinance and/or (vi) any other
matter which is necessary or desirable for, or incidental to, the administration
of the Plan.
3.4 The Committee may, from time to time, adopt such rules and regulations
for carrying out the Plan, as it may deem necessary. No member of the Board or
of the Committee shall be liable for any act or determination made in good faith
with respect to the Plan or any Shares granted thereunder.
3.5 The interpretation and construction by the Committee of any provision
of the Plan shall be final and conclusive unless otherwise determined by the
Board of Directors.
4. Eligible Grantees:
4.1 The Committee, at its discretion, may grant Shares to any employee,
consultant or contractor of a Subsidiary who is not a director of the Company
(collectively "Grantee"). Anything in this Plan to the contrary notwithstanding,
any grants of Shares to Grantees who are office holders (excluding directors) of
the Company shall be authorized and implemented only in accordance with the
provisions of applicable law.
4.2 The grant of Shares to a Grantee hereunder, shall neither entitle such
Grantee to participate, nor disqualify him from participating, in any other
grant pursuant to this Plan or any other incentive plan of the Company or any
Subsidiary.
5. Grant of Shares and Issuance in Trust:
5.1 The Company may issue a total of 600,000 Shares pursuant to the Plan,
subject to adjustment for share splits, consolidations or other capital
adjustments such as the distribution of bonus shares (i.e., stock dividends).
Any Shares reacquired pursuant to the Plan shall be available for reissuance
under the Plan. Subject to Section 7.1 hereof, the effective date of the grant
of Shares (the "Date of Grant") shall be the date the Committee resolves to
grant such Shares or a later date specified by the Committee in its
determination relating to the award of such Shares.
5.2 Anything herein to the contrary notwithstanding, unless otherwise
determined by the Committee and Grantee, unvested Shares granted under the Plan
may be granted to a trustee (the "Trustee"), and the Trustee shall hold each
such Share in trust (the "Trust") for the benefit of the Grantee in respect of
whom such Share was granted (the "Beneficial Grantee").
5.3 Exchange. The Board may, at any time and at its discretion, resolve to
reacquire all or a portion of the unvested Shares granted to a Grantee under the
Plan, in exchange (the "Exchange") for a number of ordinary shares, or options
to receive ordinary shares (or common stock, or options to receive common stock,
as the case may be) in the Subsidiary employing such Grantee, in the applicable
Parent or in another entity then affiliated with such Subsidiary or Parent (the
"Exchange Securities"). The terms of the Exchange shall be determined by the
Board in good faith.
6. Reacquisition of Shares:
6.1 The Company, upon the resolution of the Board, in its sole and absolute
discretion, subject only to applicable law, shall be entitled to reacquire all
or a portion of the unvested Shares pursuant to Section 6.2 below.
6.2 Unless otherwise determined by the Committee, unvested Shares shall be
subject to reacquisition by the Company, for no consideration, upon any of the
following events:
(a) Cessation of Grantee's employment with the applicable Subsidiary,
at any time, for any reason or for no reason, with or without cause
("Cessation of Employment"). For the purpose of this Plan, the date of a
Grantee's Cessation of Employment shall be the date on which the
employee-employer relationship between the Grantee and the applicable
Subsidiary ceases to exist (the "Date of Cessation");or
(b) Any event occurring during the applicable vesting period as a
result of which the financial statements of the applicable Subsidiary or
Parent thereof (or such other applicable affiliated entity resulting from a
reorganization of Subsidiary and/or Parent) are no longer eligible for
consolidation with the financial statements of the Company.
6.3 Unless otherwise determined by the Committee, the transfer of a Grantee
from the employ of a Subsidiary to the employ of the Company or another
Subsidiary or affiliate thereof, shall not be deemed a Cessation of Employment
for purposes hereof. Whether an authorized leave of absence on military,
governmental or public service or otherwise, or Cessation of Employment under
certain conditions, shall constitute Cessation of Employment for the purposes
hereof shall be conclusively determined by the Committee.
6.4 Unless otherwise determined by the Committee, in the event that a
Grantee who is not an employee of a Subsidiary, ceases, for any reason, to serve
as such prior to the vesting of any of his Shares, all Shares theretofore
granted to such Grantee which are not yet so vested in such Grantee shall be
subject to reacquisition by the Company for no consideration on such date of
cessation of service retention period.
7. Adjustment Upon Changes in Capitalization:
7.1 Simultaneously with the closing of a Corporate Transaction, unvested
Shares shall be reacquired in an Exchange pursuant to Section 5.3 above.
7.2 In the event of a Subsidiary Sale, provided an Exchange occurs prior to
the Subsidiary Sale, unvested Exchange Securities of the entity involved in the
Subsidiary Sale shall fully vest upon such Subsidiary Sale and shall be sold in
the Subsidiary Sale, all on the same terms, on a pro rata basis, as the other
securities of the same type are so sold.
8. Amendment and Termination of the Plan: Subject to applicable laws, the
Board may, at any time and from time to time, terminate or amend the Plan in any
respect. The Plan shall terminate on December 31, 2007, unless earlier
terminated by the Board. Upon termination of the Plan, all outstanding unvested
Shares shall continue to be governed in accordance with the provisions of the
Plan and other documents relating to the issuance thereof.
9. Tax Consequences: All tax consequences and obligations regarding any
other compulsory payments arising from the grant of Shares or Exchange
Securities, from the payment for, or the subsequent disposition of, Shares or
Exchange Securities covered thereby or from any other event or act (of the
Company or the Grantee or the applicable Subsidiary) hereunder, shall be borne
solely by the Grantee, and the Grantee shall indemnify the Company, the
Subsidiary and the Trustee and hold them harmless against and from any and all
liability for any such tax or other compulsory payment, or interest or penalty
thereon, including without limitation, liabilities relating to the necessity to
withhold, or to have withheld, any such tax or other compulsory payment from any
payment made to the Grantee.
10. Miscellaneous:
10.1 Continuance of Employment. Neither the Plan nor the grant of Shares
thereunder shall impose any obligation on any Subsidiary to continue the
employment of any Grantee, and nothing in the Plan or in any Share granted
pursuant thereto shall confer upon any Grantee any right to continue in the
employ of the applicable Subsidiary, or restrict the right of the Subsidiary to
terminate such employment at any time.
10.2 Governing Law. The Plan and all instruments issued thereunder or in
connection therewith, shall be governed by, and interpreted in accordance with,
the laws of the State of Israel.
10.3 Multiple Agreements. Certain terms of each Share grant may differ from
other Shares granted under the Plan at the same time, or at any other time. The
Committee may also grant Shares on more than one occasion to a given Grantee
during the term of the Plan, either in addition to, or in substitution for, a
previous grant of Shares to that Grantee.
10.4 Non-Exclusivity of the Plan. The adoption of the Plan by the Board
shall not be construed as amending, modifying or rescinding any previously
approved incentive arrangement 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 Shares otherwise than under the
Plan, and such arrangements may be either applicable generally or only in
specific cases.
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