EXHIBIT 99.8
Tdsoft Ltd.'s Employee Share Option Plan (2000)
1. NAME.
This plan, as amended from time to time, shall be known as the TDSoft Ltd.
Employee Share Option Plan (2000)(the "Plan").
2. PURPOSE.
The purposes of this Plan are to attract and retain the best available
personnel for positions of substantial responsibility, to provide additional
incentive to employees (collectively, "Employees") of TDSoft Ltd. (the
"Company") and of the Company's parent, subsidiaries and affiliates, and to
promote the Company's business by providing such individuals with opportunities
to receive options ("Options") to purchase Ordinary Shares in the Company
("Shares) pursuant to the Plan. The Plan is intended to benefit from and is made
pursuant to the provisions of Section 102 of the Income Tax Ordinance (New
Version) 1961 (the "Ordinance"), and the rules promulgated thereunder ("Section
102").
3. ADMINISTRATION.
3.1 The Plan will be administered by the Board of Directors of the Company,
either directly or upon the recommendation of a Share Option Advisory Committee
(the "Committee") appointed and maintained by the Board for such purpose. The
Committee will consist of such number of Directors of the Company (not less than
two (2) in number), as may be determined 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. For purposes
of clarification, in the event that no Committee is appointed the Board of
Directors will perform all functions set forth herein, including those which are
delegated to 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 at a
meeting of the Committee at which a majority of its members are present or acts
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 full authority in its discretion, from time to time and at any time,
to recommend to the Board (i) the persons to whom Options shall be granted
("Grantees"), (ii) the number of Shares to be covered by each Option, (iii) the
time or times at which the same shall be granted, (iv) the schedule and
conditions on which such Options may be exercised and on which such Shares shall
be paid for; provided, however, that all Options granted by the Committee to
employees of the Company pursuant to Section 102 of the Ordinance shall be held
by a trustee for a period of no less than two years from the date that such
Options are granted, and (v) any other matter which is necessary or desirable
for, or incidental to, the administration of the Plan. In recommending the
number of Shares covered by the Options to be granted to each Grantee, the
Committee shall consider, among other things, the Grantee's salary and the
employee's potential to contribute to the success of the Company. Grants of
Options shall be made pursuant to written notification to Grantees setting out
the terms of the grant, as set forth in Sub-section 7.2 below.
3.4 The Committee shall not be entitled to grant Options to the Grantees;
however, it is authorized to issue Shares underlying Options, which have been
granted by the Board and duly exercised pursuant to the provisions hereof in
accordance with Section 112(a)(5) of the Israeli Companies Law 5759-1999 (the
"Companies Law").
3.5 The Committee and/or the Board may from time to time adopt such rules
and regulations for carrying out the Plan as it may deem best.
3.6 The interpretation and construction by the Committee of any provision
of the Plan or of any Option thereunder shall be final and conclusive unless
otherwise determined by the Board of Directors.
3.7 No member of the Board of Directors or of the Committee shall be liable
for any action or determination made in good faith with respect to the Plan or
any Options granted thereunder. Subject to the provisions of applicable law,
each member of the Board or Committee shall be indemnified and held harmless by
the Company against any cost or expense (including counsel fees) reasonably
incurred by such member, or any liability (including any sum paid in settlement
of a claim with the approval the Company) arising out of any act or omission to
act in connection with the Plan to the extent permitted by applicable law,
unless arising out of such member's own fraud or bad faith. 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, or otherwise.
4. ELIGIBLE GRANTEES.
4.1 No Option may be granted pursuant to this Plan to any person serving as
an office holder of the Company at the time of the grant, unless such grant is
approved in the manner prescribed under Section 273 of the Companies Law.
4.2 Subject to the limitation set forth in Sub-section 4.1 above and any
restriction imposed by applicable law, Options may be granted to any officer,
key employee or other employee of the Company and its subsidiaries. The grant of
an Option to a Grantee hereunder shall neither entitle such Grantee to
participate, nor disqualify him from participating, in any other grant of
Options pursuant to this Plan or any other share incentive or share option plan
of the Company or any of its related companies.
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4.3 An Employee shall not cease to be considered an employee in the case of
(i) any leave of absence approved by the Company (or by the parent or subsidiary
or affiliate that employs the person) or (ii) transfers between locations of the
Company (or the parent or subsidiary or affiliate that employs the person) or
between the Company, its parent, any subsidiary, any affiliate, or any
successor.
5. TRUSTEE.
5.1 GRANTS MADE UNDER SECTION 102 OF THE ORDINANCE. Options which shall be
granted under the Plan pursuant to Section 102 of the Ordinance and/or any
Shares issued upon exercise of such Options and/or other shares received
subsequently following any realization of rights, shall be issued to a trustee
nominated by the Committee and approved in accordance with the provisions of
Section 102 by the Income Tax Authorities (the "Trustee") and shall be held for
the benefit of the Grantees. Options under Section 102 of the Ordinance ("102
Options") and any Shares received subsequently following exercise of 102
Options, shall be held by the Trustee for a period of not less than two years
(24 months) from the date of grant.
(a) Anything to the contrary notwithstanding, the Trustee shall not
release any Options which were not already exercised into Shares by the
Grantee or release any Shares issued upon exercise of Options, prior to the
full payment of the Grantee's tax liabilities arising from Options which
were granted to the Grantee, and/or any Shares issued upon exercise of such
Options.
(b) Upon receipt of the Option, the Grantee 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 Plan, or
any Option or Share granted to the Grantee thereunder.
(c) The Trustee shall hold the unexercised Options or Shares issued
upon exercise of Options pursuant to the Company's instructions from time
to time. The Trustee shall sign a proxy, in the form attached hereto, with
respect to the exercise of the voting rights vested in such Shares prior to
the consummation of a public offering of the securities of the Company
pursuant to a registration statement filed with and declared effective
under the Israeli Securities Law, 1968, under the U.S. Securities Act of
1933, as amended, or under any similar law of any other jurisdiction (an
"IPO").
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6. RESERVED SHARES.
The Company has reserved 600,000 authorized but unissued Ordinary Shares,
nominal value NIS 0.10 per share, of the Company for purposes of the Plan and
the TDSoft Ltd. U.S. Employee Stock Option Plan (2000) (the "U.S. Plan"),
subject to adjustment as provided in Section 11 hereof. Any Shares under the
Plan, in respect of which the right hereunder of a Grantee to purchase the same
shall for any reason terminate, expire or otherwise cease to exist, shall again
be available for grant through Options under the Plan or under the U.S. Plan.
Any Shares which remain unissued and which are not subject to Options at the
termination of the Plan shall cease to be reserved for purposes of the Plan, but
until termination of the Plan the Company shall at all times reserve a
sufficient number of Shares to meet the requirements of the Plan.
7. OPTIONS.
7.1 The Board of Directors in its discretion may award to Grantees options
to purchase Shares in the Company available under the Plan ("Options"). Options
may be granted at any time after this Plan has been approved by the Board of
Directors of the Company and submitted to the Income Tax Authority (or prior to
this Plan being so approved, provided that the grant of such Options is made
subject to such approvals) and the Shares reserved for the Plan have been
effectively created. The date of grant of each Option shall be the date
specified by the Committee at the time such award is made.
7.2 The instrument granting an Option shall state, inter alia, the number
of Shares covered thereby, pursuant to which Section of the Ordinance it is
granted, the dates when it may be exercised (subject to Sub-section 9.1), the
exercise price, the schedule on which such Shares may be paid for and such other
terms and conditions as the Committee in its discretion may prescribe, provided
that they are consistent with this Plan.
8. OPTION PRICES. The price per share covered by each award of Options
shall be approved by the Board and may be more than, less than or equal to the
fair market value of each share, as determined by the Board, on the date of
grant, provided that the price per share is not less than the nominal value of
each share.
9. EXERCISE OF OPTION.
9.1 Options shall be exercisable pursuant to the terms under which they
were awarded and subject to the terms and conditions of this Plan.
9.2 An Option, or any part thereof, shall be exercisable by the Grantee's
signing and returning to the Company at its principal office (and to the
Trustee, where applicable), a "Notice of Exercise" in such form and substance as
may be prescribed by the Committee from time to time, together with full payment
for the Shares underlying such Option.
9.3 Each payment for Shares under an Option shall be in respect of a whole
number of Shares, shall be effected in cash or by check payable to the order of
the Company, or such other method of payment acceptable to the Company as
determined by the Committee, and shall be accompanied by a notice stating the
number of Shares being paid for thereby.
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9.4 Rights of a Shareholder. To avoid doubt, the holders of Options shall
not have any of the rights or privileges of shareholders of the Company in
respect of any Shares purchasable upon the exercise of any part of an Option,
including, without limitation, the right to vote or receive dividends, nor shall
they be deemed to be a class of shareholders or creditors 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 holder of such
Shares in the Company's register of members upon exercise of the Option in
accordance with the provisions of this Plan. 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.
9.5 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.
10. TERMINATION OF RELATIONSHIP AS EMPLOYEE.
10.1 TERMINATION OF RELATIONSHIP AS AN EMPLOYEE. If a Grantee ceases to be
an Employee, such Grantee may exercise his or her Option within such period of
time 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 the Option as set forth in the Option Agreement). In the absence of
a specified time in the Option Agreement, then (A) in the event that Grantee
ceases to be an Employee for any reason other than for Cause (as hereinafter
defined), death, disability or retirement, the Option shall remain exercisable
for ninety (90) days following the Grantee's termination and (B) in the event
that Grantee ceases to be an Employee for Cause, the Option shall terminate
immediately upon the date of such termination for Cause such that the unvested
portion of the Option will not vest, and the vested portion of the Option shall
no longer be exercisable. If, on the date of termination, the Grantee 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
Grantee does not exercise his or her Option within the time specified in the
Option Agreement or this Plan, the Option shall terminate, and the Shares
covered by such Option shall revert to the Plan. For purposes of this Plan and
any Option or Option Agreement, the date of termination (whether for Cause or
otherwise) shall be deemed to be the earlier of the date on which the Company or
the Grantee, as the case may be, gives notice of the Grantee's cessation as an
Employee (regardless of the effective date of such notice) or the date on which
the Grantee actually ceases to be an Employee.
(i) The term "Cause" shall mean (a) conviction of any felony involving
moral turpitude or affecting the Company; (b) any refusal to carry out
a reasonable directive of the CEO which involves the business of the
Company or its affiliates and was capable of being lawfully performed;
(c) embezzlement of funds of the Company or its affiliates; (d) any
breach of the Grantee's fiduciary duties or duties of care to the
Company, including without limitation disclosure of confidential
information of the Company; and (e) any conduct (other than conduct in
good faith) reasonably determined by the Board of Directors to be
materially detrimental to the Company.
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10.2 DISABILITY OF GRANTEE. If a Grantee ceases to be an Employee as a
result of the Grantee's disability, the Grantee may exercise his or her Option
within such period of time as is specified in the Option Agreement to the extent
the Option is vested on the date of disability (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, the Option shall remain
exercisable for twelve (12) months following the Grantee's date of disability.
If, on the date of disability, the Grantee 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 the date of disability, the Grantee does not exercise his or
her Option within the time specified in the Option Agreement or this Plan, the
Option shall terminate, and the Shares covered by such Option shall revert to
the Plan.
10.3 DEATH. If a Grantee dies while an Employee, the Option may be
exercised within such period of time as is specified in the Option Agreement 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 Grantee'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 Grantee's date of death. If, at the time of death, the
Grantee is not vested as to the entire Option, the Shares covered by the
unvested portion of the Option shall immediately revert to the Plan. If after
the date of death the Option is not so exercised within the time specified in
the Option Agreement or this Plan, the Option shall terminate, and the Shares
covered by such Option shall revert to the Plan.
10.4 RETIREMENT. If a Grantee ceases to be an Employee as a result of the
Grantee's retirement under any deferred compensation agreement or retirement
plan of the Company or any subsidiary or after age 60, the Board or the
Committee shall have the discretion but not the obligation to permit any
unvested portion of the Option to be accelerated as of the later of the date of
retirement or a date one year following the date of grant, and the Option shall
thereupon be exercisable in full. Grantee may then exercise his or her Option
within such period of time as is specified in the Option Agreement or by the
Board or the Committee (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, the Option shall remain exercisable for ninety
(90) days following the Grantee's retirement.
10.5 DEEMED CESSATION. Unless the Board or the Committee provide otherwise,
vesting of Options granted hereunder shall be tolled during any unpaid leave of
absence.
11. ADJUSTMENTS.
Upon the occurrence of any of the following described events, a Grantee's
rights to purchase Shares under the Plan shall be adjusted as hereinafter
provided:
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11.1 CHANGES IN CAPITALIZATION. Subject to any required action by the
shareholders of the Company, the number of shares covered by each outstanding
unexercised award of Options, and the number of shares which are held in trust
under the Plan but as to which no award of Options have yet been granted or
which have been returned to the Plan upon cancellation or expiration of Options,
as well as the exercise price per share of each such outstanding award of
Options, shall be proportionately adjusted for any increase or decrease in the
number of issued shares resulting from a share split, reverse share split, share
dividend, recapitalization, combination or reclassification of the Shares, or
any other increase or decrease in the number of issued shares effected without
receipt of consideration by the Company; provided, however, that conversion of
any convertible securities of the Company shall not be deemed to have been
"effected without receipt of consideration." Without derogating from the
foregoing, in the event that the Company shall issue any shares or other
securities as bonus shares (share dividend) upon or with respect to any shares
which shall at the time be subject to a right of purchase by any Grantees
hereunder, the Grantees upon exercising such right shall be entitled to receive
(for the purchase price payable upon such exercise) the shares as to which such
Grantees are exercising such right and, in addition thereto (at no additional
cost), such number of shares of the class or classes in which such bonus shares
(stock dividend) were declared, and such amount of shares and the amount of cash
in lieu of fractional shares, as is equal to the shares which such Grantees
would have received had they been the holders of the shares as to which they are
exercising their right at all times between the date of the granting of such
right and the date of its exercise. Except as expressly provided herein, no
issuance by the Company of shares of any class, or securities convertible into
shares of any class, shall affect, and no adjustment by reason thereof shall be
made with respect to, the number or price of shares subject to an award of
Options.
11.2 MERGER OR SALE OF SHARES FOR STOCK. In the event of a merger or
consolidation of the Company with or into another corporation or a sale of all
or substantially all of the shares of the Company in exchange for shares of the
acquiring corporation, the unexercised portion of each outstanding award of
Options shall be substituted by an equivalent option of the successor
corporation or the parent company of such successor corporation, or in the event
of sale of the Company's shares, substituted by an equivalent option of the
acquiring corporation. For the purposes of this paragraph, the Options shall be
considered substituted if, following the merger or sale, the option confers the
right to purchase or receive, for each share subject to the Options immediately
prior to the merger or sale, the shares of the successor corporation or
acquiring corporation, as the case may be, shares received in the merger or sale
by holders of shares of the Company, provided, however, that the Committee shall
determine, in its discretion, the proper exchange ratio of Options and the fair
value of such Options for purpose of such substitution, shall be authorized to
accelerate the vesting dates of any or all Options and shall be authorized to
make all necessary adjustments in the terms of the Options and the substituted
options (including, without limitation, adjustments in the exercise price) which
are fair under the circumstances.
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11.3 SALE OF SHARES FOR CASH OR OTHER CONSIDERATION. In the event of the
acquisition of all or substantially all of the shares of the Company in
consideration for cash or any other type of consideration, except for shares of
the acquiring corporation and in the event of the acquisition of all or
substantially all of or assets of the Company, each outstanding Option shall be
substituted by an option of the acquiring corporation or its parent to purchase
such number of shares of the acquiring corporation or its parent which reflects
the fair value the shares of the Company into which such Options would have been
exercisable. The Committee shall determine, in its discretion, the proper
exchange ratio of Options and the fair value of such Options for purpose of such
substitution, shall be authorized to accelerate the vesting dates of any or all
Options and shall be authorized to make all necessary adjustments in the terms
of the Options and the substituted options (including, without limitation,
adjustments in the exercise price) which are fair under the circumstances.
Notwithstanding the foregoing, the Committee may determine, in its discretion,
that in lieu of substitution of Options for options of the acquiring
corporation, such Options will be substituted for any other type of asset or
property including cash which is fair under the circumstances.
11.4 LIQUIDATION OR DISSOLUTION. In the event of the proposed dissolution
or liquidation of the Company, the Committee shall notify each Grantee of
outstanding Options as soon as practicable prior to the effective date of such
proposed transaction. The Committee in its discretion may provide for a Grantee
to have the right to exercise his or her Options until fifteen (15) days prior
to such transaction as to all of the shares subject to the award of Options,
including shares as to which the Options would not otherwise be exercisable. To
the extent it has not been previously exercised, an award of Options will
terminate immediately prior to the consummation of such proposed action.
11.5 The Committee shall determine the specific adjustments to be made
under this paragraph 10, and its determination shall be subject to the approval
of the Board of Directors.
12. NON-TRANSFERABILITY OF OPTIONS AND SHARES.
12.1 No Option may be transferred other than by will or by the laws of
descent and distribution, and during the Grantee's lifetime an Option may be
exercised only by such Grantee.
12.2 Shares for which full payment has not been made, shall not be
assignable or transferable by the Grantee. For avoidance of doubt, the foregoing
shall not be deemed to restrict the transfer of a Grantee's rights in respect of
Options or Shares purchasable pursuant to the exercise thereof upon the death of
such Grantee to such Grantee's estate or other successors by operation of law or
will, whose rights therein shall be governed by Sub-section 10.2 hereof, and as
may otherwise be determined by the Committee. In addition, prior to the
consummation of an IPO, no shares purchasable hereunder upon the exercise of any
Option may be transferred without the consent of the Board of Directors, such
consent not to be unreasonably withheld.
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13. TERM AND AMENDMENT OF THE PLAN.
13.1 The Plan shall be effective as of the day it is adopted by the Board
and shall terminate at the end of seven (7) years from such day of adoption. No
Options may be granted pursuant to the Plan after the termination of the Plan;
however, Options outstanding on that date may still be exercised in accordance
with the terms of their grant. Notwithstanding the foregoing, no Option shall be
exercised unless and until the U.S. Plan has been approved by the shareholders
of the Company, which approval shall be within twelve (12) months before or
after the date the U.S. Plan is adopted by the Board.
13.2 The Board of Directors may, at any time and from time to time,
terminate or amend the Plan in any respect. In no event may any action of the
Company alter or impair the rights of a Grantee, without such Grantee's consent,
under any Option previously granted to such Grantee.
13.3 No amendment, alteration, suspension or termination of the Plan shall
impair the rights of any Grantee, unless mutually agreed otherwise between the
Grantee and the Company, which agreement must be in writing and signed by the
Grantee and the Company. Termination of the Plan shall not affect the Board'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. TERM OF OPTION.
Anything herein to the contrary notwithstanding, but without derogating
from the provisions of Section 10 hereof, if any Option, or any part thereof,
has not been exercised and the Shares covered thereby not paid for within seven
(7) years after the date on which the Option was granted (or any other period
set forth in the instrument granting such Option pursuant to Section 7), such
Option, or such part thereof, and the right to acquire such Shares shall
terminate, all interests and rights of the Grantee in and to the same shall
expire, and, in the event that in connection therewith any Shares are held in
trust as aforesaid, such trust shall expire and the Trustee shall thereafter
hold such Shares in an unallocated pool until instructed by the Company that
some or all of such Shares are again to be held in trust for one or more
Grantees. An award of Options is exercisable in installments, and may be
exercisable in whole or in part, with the unexercised portion of the awarded
Options remaining exercisable pursuant to the terms under which it was awarded
and subject to the terms and conditions of this Plan.
15. CONTINUANCE OF EMPLOYMENT.
Neither this Plan nor any offer of Shares or Options to a Grantee shall
impose any obligation on the Company or a related company thereof, to continue
the employment of any Grantee, and nothing in the Plan or in any Option granted
pursuant thereto shall confer upon any Grantee any right to continue in the
employ of the Company or a related company thereof or restrict the right of the
Company or a related company thereof to terminate such employment at any time.
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16. 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. In the event of a conflict between the provisions of the Plan and the
instrument granting Options, the provisions of this Plan shall govern.
17. TAXES.
All tax liability regarding the grant or exercise of the Options, and the
issue, holding and disposition of the Option Shares shall be borne by the
Grantee. Furthermore, such Grantee shall agree to indemnify the Company or any
subsidiary that employs the Grantee and the Trustee, if applicable, 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 Grantee. Except as otherwise required by law, the Company shall not
be obligated to issue Shares upon the exercise of any Options until all
withholding tax obligations arising from the exercise of such Options are
satisfied in a manner reasonably acceptable to the Company. The Company or any
of its subsidiaries 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 a Grantee, and/or
(ii) requiring a Grantee to pay to the Company or any of its subsidiaries the
amount so required to be withheld as a condition of the issuance, delivery,
distribution or release of any Option Shares. EACH GRANTEE SHOULD CONSULT WITH
HIS/HER INDIVIDUAL TAX ADVISERS TO DETERMINE THE POSSIBLE TAX CONSEQUENCES OF
THE GRANT AND/OR EXERCISE OF AN AWARD OF OPTIONS GRANTED UNDER THE PLAN AND THE
DISPOSITION OF SHARES ACQUIRED PURSUANT TO THE EXERCISE OF AN AWARD OF OPTIONS.
All expenses incurred by the Company directly in connection with the exercise of
any options or meeting the tax obligations of a Grantee may be charged by the
Company to the Grantee.
18. PROXY.
The Grantee may be required to grant an irrevocable proxy to the CEO of the
Company, as appointed from time to time by the Board of Directors of the
Company, to vote all Shares obtained by the Grantee upon the exercise of Options
at all meetings of shareholders of the Company, and to sign all written
resolutions of the shareholders of the Company on behalf of the Grantee,
including the right to waive on behalf of the Grantee all minimum notice
requirements for meetings of shareholders of the Company. The proxy shall remain
in effect until the Company's IPO. Such proxy shall be irrevocable as the rights
of third parties, including investors in the Company, depend upon such proxy.
Such proxy shall be personal to the Grantee and shall not survive the transfer
of the Grantee's shares to a third-party transferee; provided, however, that
upon a transfer of the Grantee's shares to such a transferee (subject to the
terms and conditions of this Plan concerning any such transfer), the transferee
may be required to grant an irrevocable proxy to the CEO of the Company in the
event that the Board of Directors, in giving its approval to the transfer, so
requires. The proxy shall be contained in the Option Agreement of each Grantee.
No further document shall be required to implement such proxy, and the signature
of the Grantee on the Option Agreement shall indicate approval of the proxy
thereby granted.
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19. COMPANY'S RIGHT OF FIRST REFUSAL.
19.1 In addition to all other restrictions on transfer, should the Grantee
at any time prior to the Public Offering of the Company's securities wish to
sell or transfer any shares obtained upon exercise of an Award of Options, the
Grantee shall first give notice ("Notice of Sale") to the Company in order to
offer the shares to the "Repurchaser", as hereinafter defined. The Notice of
Sale shall specify the name of each proposed purchaser or other transferee
("Proposed Transferee"); the number of shares to be transferred to each Proposed
Transferee; and price per share and the payment terms. "Repurchaser" shall mean
the Company, if permitted by law, and if not, to such party or parties
designated by unanimous decision of the Company's Board of Directors, and if no
such decision can be reached, to all holders of 1.9% or more of the outstanding
securities of the Company, pro rata in accordance with their shareholding.
19.2 The Repurchaser will be entitled for 30 days from the date of receipt
of the Notice of Sale (the "Option Period") to purchase all, or in the case of
more than one Repurchaser part of, the offered shares. If by the end of the
Option Period not all of the offered shares have been purchased by the
Repurchaser, the Grantee will be entitled to sell such shares to the Proposed
Transferee at any time during the 90 days following the end of the Option Period
on terms not more favorable than those set out in the Notice of Sale, provided
that the Proposed Transferee agrees in writing that the provisions of this
Section shall continue to apply to the shares in the hands of such Proposed
Transferee.
20. BRING-ALONG. Shares acquired upon exercise of this Option may be
subject to "bring-along" provisions in the Company's Articles of Association. In
the event that the Shares acquired upon exercise of this Option are not subject
to "bring-along" provisions in the Company's Articles of Association, then at
any time prior to the Company's IPO, in the event that (i) one or more bona fide
offers (the "Offeror") is made to purchase shares comprising at least eighty
percent (80%) of the Company's issued and outstanding ordinary shares on an
as-converted basis (the "Threshold Percent"), (ii) such sale is conditioned upon
the sale of all of the remaining issued shares of the Company to the Offeror,
and (iii) shareholders holding the Threshold Percent (the "Proposing
Shareholders") propose to sell all of their shares to such Offeror, then the
Grantee shall be required, if so demanded by the Proposing Shareholders, to sell
all Shares acquired by the Grantee pursuant to this Option Agreement to such
Offeror at the same price and upon the same terms and conditions as in the offer
made to the Proposing Shareholders. In the event that the Threshold Percent is
met, any sale, assignment, transfer, pledge, hypothecation, mortgage, disposal
or encumbrance of shares by the Grantee other than in connection with the
proposed acquisition shall be absolutely prohibited.
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21. APPLICATION OF SECTION 102 OF THE ORDINANCE.
With respect to Grantees who are employees, and whose Options are granted
pursuant to Section 102 of the Ordinance, the Trustee and each Grantee shall
comply with the Ordinance and with the trust agreement to be entered into
between the Company and the Trustee. The Options and the Option Shares, as the
case may be, shall be issued to and held by the Trustee for the benefit of the
employee for at least two years from the date of the grant of the Option. After
the two-year holding period and subject to any further period included in this
Plan or the agreement with the Employee, the Trustee may release the Options or
Option Shares to the Employee only after the Trustee is satisfied that the
Employee has paid any applicable tax due pursuant to the Ordinance. The Company
may, in its discretion, require that a Grantee pay to the Company, at the time
of exercise, such amount as the Company deems necessary to satisfy its
obligation to withhold income or other taxes incurred by reason of the exercise
or the transfer of shares thereupon.
22. CONDITIONS UPON ISSUANCE OF SHARES.
22.1 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.
22.2 Investment Representations. As a condition to the exercise of an
Option, the Company 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. The certificates for such Shares may include any legend which the
Company deems appropriate to reflect any restrictions on transfer or any other
restrictions required by applicable law or this Plan. All certificates for
Shares issued pursuant to the Plan shall be subject to such stop transfer orders
and other restrictions as the Board may deem advisable under the rules,
regulations and other requirements of the Securities and Exchange Commission,
any stock exchange or interdealer quotation system upon which the Ordinary
Shares are then listed or quoted, and any applicable federal or state securities
laws.
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22.3 Inability to Obtain Authority. The inability of the Company to obtain
authority from or comply with the rules and regulations of any regulatory body
having jurisdiction or any applicable laws, which authority or compliance is
deemed by the Company's counsel to be necessary to the lawful issuance 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
or compliance shall not have been obtained.
22.4 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 degree and manner
required under applicable law.
23. MULTIPLE AWARD OF OPTIONS AGREEMENTS. The terms of each Option
Agreement may differ from other Options Agreements granted under the Plan at the
same time or at any other time. The Committee may also grant more than one award
of Options to a given Grantee during the term of the Plan, either in addition
to, or in substitution for, one or more award of Options previously granted to
that Grantee.
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IRREVOCABLE PROXY
The undersigned, as trustee pursuant to Section 102 of the Israeli Income Tax
Ordinance (New Version) 1961, for shareholders of Tdsoft Ltd., a company
incorporated under the laws of the State of Israel (the "Company"), pursuant to
that certain Trust Agreement, dated __________, hereby irrevocably appoints the
CEO of the Company (the "CEO"), as appointed by the Board of Directors from time
to time, as the proxy of the undersigned and hereby authorizes the said proxy
with full power of substitution, agent and proxy of the undersigned, to vote, to
represent and to waive or grant or withhold approvals and written consents in
respect of, those shares of the Company now or hereafter registered in the name
of the undersigned on the books of the Company (the "Shares") with respect to
any matters which may properly come before any general meeting, extraordinary
general meeting or special meeting of shareholders of the Company, or any
adjournment of any such meeting, and every action or approval by written consent
of shareholders of the Company with respect to any matters, as he deems
appropriate at his absolute discretion, and the undersigned hereby waives any
claim he may have against the CEO with regard to the exercise of the powers
granted by this proxy by the CEO.
The undersigned also waives notice of any general meeting, extraordinary general
meeting or special meeting of shareholders of the Company, or any adjournment of
any such meeting.
The undersigned hereby undertakes to ratify and confirm all that the said proxy
may do by virtue hereof provided the proxy acts within the authority hereby
conferred.
The appointment made hereby is irrevocable and shall be valid and remain in
force until the initial public offering of the Company's stock.
The undersigned hereby revokes any proxy or proxies heretobefore given to
vote upon or act with respect to the undersigned's shares.
IN WITNESS WHEREOF, the undersigned has duly executed this Proxy this __ day of
____ 2000.
_________________________, as Trustee
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