Exhibit 10.4
Form of Stock Option Agreement under
the Amended and Restated 2005 Stock Option Plan
Pluristem Therapeutics
Inc.
STOCK OPTION AGREEMENT
Made as of the
_______________
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A
company incorporated in Nevada, USA |
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(hereinafter
the "Company") |
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(hereinafter
the "Optionee") |
| WHEREAS |
On
November 10, 2005, the Company duly adopted and the Board approved the 2005 Stock Option
Plan. On January 21, 2009, the Company’s stockholders approved the adoption of the
Amended and Restated 2005 Stock Option Plan, a copy of which has been made available to
the Optionee, forming an integral part hereof (the “ISOP”); and – |
| WHEREAS |
Pursuant
to the ISOP, the Company has decided to grant Options to purchase Shares of the Company
to the Optionee, and the Optionee has agreed to such grant, subject to all the terms and
conditions as set forth in the ISOP and as provided herein; |
NOW, THEREFORE, it is agreed as
follows:
| 1. |
Preamble
and Definitions |
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1.1 |
The
preamble to this Agreement constitutes an integral part of this Agreement, as do the
terms of the ISOP. |
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1.2 |
Unless
otherwise defined herein, capitalized terms used herein shall have the meaning ascribed
to them in the ISOP. |
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2.1 |
The
Company hereby grants to the Optionee the number of Options as set forth in Exhibit A
hereto, each Option shall be exercisable for one Share, upon payment of the Purchase
Price as set forth in Exhibit A, subject to the terms and the conditions as set forth in
the ISOP and as provided herein. |
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2.2 |
The
Optionee is aware that the Company intends in the future to issue additional shares and
to grant additional options to various entities and individuals, as the Company in its
sole discretion shall determine. |
| 3. |
Period
of Option and Conditions of Exercise |
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3.1 |
The
terms of this Option Agreement shall commence on the Date of Grant and terminate at the
Expiration Date as set out on Exhibit A, or at the time at which the Option expires
pursuant to the terms of the ISOP or pursuant to this Option Agreement. |
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3.2 |
Options
may be exercised only to purchase whole Shares, and in no case may a fraction of a Share
be purchased. If any fractional Share would be deliverable upon exercise, such fraction
shall be rounded up one-half or less, or otherwise rounded down, to the nearest whole
number. |
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Notwithstanding
anything to the contrary in Section 7.1 (m) of the ISOP and in addition thereto, if in
any such Transaction as described in Section 7.1 (m) of the ISOP, 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 shall
be immediately vested in full as of the date which is ten (10) days prior to the
effective date of the Transaction, and the Committee shall notify the Optionee that the
unexercised Options are fully exercisable for a period of ten (10) days from the date of
such notice, and that any unexercised Options shall terminate upon the expiration of such
period. |
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If
the successor Company (or parent or subsidiary of the Successor Company) agrees to assume
or substitute for the Options and Optionee’s employment with the Successor Company
is terminated by the Successor Company without “Cause” within one year of the
closing of such Transaction, the Vesting Dates shall be accelerated so that any unvested
portion of the substituted Option shall be immediately vested in full as of the date of
such termination without Cause. |
| 5. |
Vesting;
Period of Exercise |
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Subject
to the provisions of the ISOP, Options shall vest and become exercisable according to the
Vesting Dates set forth in Exhibit A hereto, provided that the Optionee is an Employee of
or providing services to the Company and/or its Affiliates on the applicable Vesting
Date. Where there is a discrepancy between the terms of Exhibit A and the terms of the
ISOP, Exhibit A shall govern. |
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All
unexercised Options granted to the Optionee shall terminate and shall no longer be
exercisable on the Expiration Date. |
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6.1 |
Options
may be exercised in accordance with the provisions of Section 7.1(h) of the ISOP. |
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6.2 |
In
order for the Company to issue Shares upon the exercise of any of the Options, the
Optionee hereby agrees to sign any and all documents required by any applicable law
and/or by the Company’s Articles of Association or Bylaws. |
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6.3 |
The
Company shall not be obligated to issue any Shares upon the exercise of an Option if such
issuance, in the opinion of the Company, might constitute a violation by the Company of
any provision of law. |
| 7. |
Restrictions
on Transfer of Options and Shares |
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7.1 |
The
transfer of Options and the transfer of Shares to be issued upon exercise of the Options
shall be subject to the limitations set forth in the ISOP and in the Company’s
Articles of Association and any shareholders’ agreement to which the holders of
ordinary shares of the Company are bound. |
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7.2 |
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. |
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7.3 |
With
respect to 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. |
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7.4 |
The
Optionee shall not dispose of any Shares in transactions which violate, in the opinion of
the Company, any applicable laws, rules and regulations. |
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7.6 |
The
Optionee agrees that the Company shall have the authority to endorse upon the certificate
or certificates representing the Shares such legends referring to the foregoing
restrictions, and any other applicable restrictions as it may deem appropriate (which do
not violate the Optionee’s rights according to this Option Agreement). |
| 8. |
Taxes;
Indemnification |
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8.1 |
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, the Optionee hereby agrees 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. |
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8.2 |
The
Optionee will not be entitled to receive from the Company and/or the Trustee any Shares
allocated or issued upon the exercise of Options prior to the full payments of the
Optionee’s tax liabilities arising from Options which were granted to him and/or
Shares issued upon the exercise of Options. For the avoidance of doubt, neither the
Company nor the Trustee shall be required to release any share certificate to the
Optionee until all payments required to be made by the Optionee have been fully
satisfied. |
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8.3 |
The
receipt of the Options and the acquisition of the Shares to be issued upon the exercise
of the Options may result in tax consequences. THE OPTIONEE IS ADVISED TO CONSULT A TAX
ADVISER WITH RESPECT TO THE TAX CONSEQUENCES OF RECEIVING OR EXERCISING THIS OPTION OR
DISPOSING OF THE SHARES. |
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8.4 |
With
respect to Approved 102 Options, the Optionee hereby acknowledges that he is familiar
with the provisions of Section 102 and the regulations and rules promulgated thereunder,
including without limitations the type of Option granted hereunder and the tax
implications applicable to such grant. The Optionee accepts the provisions of the trust
agreement signed between the Company and the Trustee, attached as Exhibit C hereto, and
agrees to be bound by its terms. |
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9.1 |
No
Obligation to Exercise Options. The grant and acceptance of these Options imposes no
obligation on the Optionee to exercise it. |
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9.2 |
Confidentiality.
The Optionee shall regard the information in this Option Agreement and its exhibits
attached hereto as confidential information and the Optionee shall not reveal its
contents to anyone except when required by law or for the purpose of gaining legal or tax
advice. |
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9.3 |
Continuation
of Employment or Service. Neither the ISOP nor this Option Agreement shall impose any
obligation on the Company or an Affiliate to continue the Optionee’s employment or
service and nothing in the ISOP or in this Option Agreement shall confer upon the
Optionee any right to continue in the employ or service of the Company and/or an
Affiliate or restrict the right of the Company or an Affiliate to terminate such
employment or service at any time. |
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9.4 |
Entire
Agreement. Subject to the provisions of the ISOP, to which this Option Agreement is
subject, this Option Agreement, together with the exhibits hereto, constitute the entire
agreement between the Optionee and the Company with respect to Options granted hereunder,
and supersedes all prior agreements, understandings and arrangements, oral or written,
between the Optionee and the Company with respect to the subject matter hereof. |
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9.5 |
Failure
to Enforce – Not a Waiver. The failure of any party to enforce at any time any
provisions of this Option Agreement or the ISOP shall in no way be construed to be a
waiver of such provision or of any other provision hereof. |
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9.6 |
Provisions
of the ISOP. The Options provided for herein are granted pursuant to the ISOP and
said Options and this Option Agreement are in all respects governed by the ISOP and
subject to all of the terms and provisions of the ISOP. |
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Any
interpretation of this Option Agreement will be made in accordance with the ISOP but in
the event there is any contradiction between the provisions of this Option Agreement and
the ISOP, the provisions of the Option Agreement will prevail. |
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9.7 |
Binding
Effect. The ISOP and this Option Agreement shall be binding upon the heirs,
executors, administrators and successors of the parties hereof. |
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9.8 |
Notices.
All notices or other communications given or made hereunder shall be in writing and shall
be delivered or mailed by registered mail or delivered by email or facsimile with written
confirmation of receipt to the Optionee and/or to the Company at the addresses shown on
the letterhead above, or at such other place as the Company may designate by written
notice to the Optionee. The Optionee is responsible for notifying the Company in writing
of any change in the Optionee’s address, and the Company shall be deemed to have
complied with any obligation to provide the Optionee with notice by sending such notice
to the address indicated below. |
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I, the undersigned, hereby
acknowledge receipt of a copy of the ISOP and accept the Options subject to all of the
terms and provisions thereof. I have reviewed the ISOP and this Option Agreement in its
entirety, have had an opportunity to obtain the advice of counsel prior to executing this
Option Agreement, and fully understand all provisions of this Option Agreement. I agree to
notify the Company upon any change in the residence address indicated above.
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Date |
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Optionee’s Signature |
Attachments:
Exhibit A: Terms of the
Option
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EXHIBIT A
TERMS OF THE OPTION
Name of the Optionee:
Date of Grant:
Designation:
| 1. |
Number
of Options granted: |
| 5. |
Post-employment
exercise vested options |
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Optionee |
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Company |
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