EXHIBIT 10.2
STOCK OPTION AGREEMENT
AGREEMENT (the "AGREEMENT"), made as of the 2 day of March, 2010 (the "Date
of Grant"), by and between Inksure Technologies Inc., a Delaware corporation
(the "COMPANY") with its address at 0 Xxxxxx xx. Xxxxxxx 00000, Xxxxxx (c/o
Inksure Ltd.) and Tal Gilat (the "OPTIONEE").
W I T N E S S E T H:
WHEREAS, the Company desires to grant an Option to purchase shares of the
common stock, par value $0.01, of the Company (the "COMMON STOCK") pursuant to
the Inksure Technologies Inc. 2002 Employee, Director and Consultant Stock
Option Plan, a copy of which is attached as EXHIBIT A hereto (the "PLAN"), to
the Optionee, and the Optionee desires to accept such grant, on the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, it is agreed as follows:
1. GRANT OF OPTION
The Company hereby grants to the Optionee an Option to purchase the number
of Shares of Common Stock set forth in Section 1 of EXHIBIT B hereto, at
the Purchase Price per Share set forth in Section 2 of EXHIBIT B hereto, on
the terms and subject to the conditions hereinafter provided.
OPTION TERM AND CONDITIONS OF EXERCISE
1.1 The Option may be exercised by the Optionee prior to the Expiration
Date (as defined in Section 6 below) in whole at any time or in part
from time to time, as determined by the Committee, to the extent that
the Option becomes vested and exercisable in accordance with Section 3
of EXHIBIT B hereto, and provided that, subject to the provisions of
Section 2.2 below, the Optionee is an employee or a service provider
of the Company or any of its Affiliates, at all times during the
period beginning with the Date of Grant and ending upon the date of
exercise. Except as provided in Section 2.2 below, the Option shall
immediately expire upon the termination of the Optionee's employment
or service with the Company and its affiliates.
1.2 Subject to Section 10(d) of the Plan, the Option may be exercised
after the termination of the Optionee's employment or service with the
Company and its Affiliates for any reason other than Cause, but only
to the extent already vested and exercisable at the time of such
termination, during the ninety (90) day period (or, if such
termination is due to the Optionee's death or disability (as
determined by the Committee in its sole discretion) the twelve (12)
month period) from the date of such termination or, if sooner, until
the Expiration Date and, to the extent not exercised during such
period, the Option shall thereupon expire.
1.3 The term "CAUSE" shall mean, unless otherwise provided in an
employment or consulting agreement between the Optionee and the
Company or any affiliate in effect on the Date of Grant: (i)
conviction of, or plea of nolo contendere or guilty to, a crime
involving moral turpitude or a felony; (ii) any refusal to carry out a
reasonable directive of the Optionee's supervisor or manager which
involves the business of the Company or its affiliates and was capable
of being lawfully performed; (iii) embezzlement of funds of the
Company or its affiliates; (iv) any breach of the Optionee's fiduciary
duties or duties of care of the Company or its affiliates; including
without limitation disclosure of confidential information of the
Company or its affiliates; or (v) any conduct (other than performed in
good-faith) reasonably determined by the Committee to be materially
detrimental to the Company or its affiliates.
2. VESTING
Subject to Section 6 below, the Option shall vest and become exercisable on
the dates set forth in Section 3 of EXHIBIT B hereto (the "VESTING DATES").
The Option may be subject to such other terms and conditions on the time or
times when it may be exercised (which may be based on performance or other
criteria) as the Committee may deem appropriate. The provisions of this
Section are subject to any Option provisions governing the minimum number
of Shares as to which an Option may be exercised.
3. TRUSTEE
If the Option is designated as subject to Section 102 of the Tax Ordinance,
the Option shall immediately be issued to the Trustee and be held by the
Trustee in accordance with the provisions of Section 5 of the Plan. The
Trustee shall not transfer the Option to the Optionee prior to exercise of
the Options into Shares. The Trustee will transfer the Shares to the
Optionee upon demand, however in case of Shares received subsequently
following the exercise of Section 102 Options, not earlier than the period
from the Date of Grant as determined by any law or regulation. If any law
or regulation requires the Company to take any action with respect to the
Shares so demanded before the issuance thereof, then the date of their
issuance shall be extended for the period necessary to take such action.
The Optionee hereby authorizes the Trustee to sign an agreement with the
Company whereby Shares will not be transferred without deduction of taxes
at source. The Optionee hereby undertakes 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 the Option or Shares issued
thereunder.
4. METHOD OF EXERCISE
The Option shall be exercised by the Optionee by delivery of written notice
of exercise (the "Exercise Notice") to the Company specifying the number of
shares to be purchased, in accordance with Section 102 or Section 3(i) of
the Tax Ordinance, if applicable, and full payment of the Purchase Price of
such shares, which exercise shall be effective upon receipt of such notice
and payment by the Company at its principal office. The Purchase Price will
be paid in US Dollars on the date of delivery of the Exercise Notice in a
form satisfactory to the Committee and permitted by law, including without
limitation, by cash or check.
5. EXPIRATION OF OPTION
The Option shall expire, to the extent not previously exercised, upon the
earlier of: (i) the date set forth in Section 4 of EXHIBIT B hereto; or
(ii) the date set forth in Section 2 above (and such earlier date shall be
hereinafter referred to as the "EXPIRATION DATE").
6. RIGHTS PRIOR TO EXERCISE/LIMITATIONS AFTER PURCHASE OF SHARES
6.1 The Optionee shall not have any of the rights or privileges of a
stockholder of the Company in respect of any Shares purchasable upon
the exercise of the Option, nor shall the Optionee be deemed to be a
stockholder or creditor of the Company until registration of the
Optionee as the owner of record of such Shares upon the exercise of
the Option in accordance with the provisions of the Plan.
6.2 The Optionee acknowledges that, if the Company's Shares are registered
for trading in any public market, the Optionee's right to sell Shares
may be subject to some limitations, as set forth by the Company or its
underwriters. In such event, the Optionee will unconditionally agree
to any such limitations.
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6.3 Without limiting Section 14 of the Plan, the Optionee (or the
Optionee's legal representative, heir or legatee, in the event of the
Optionee's death) may be required by the Company, at the Company's
discretion, to give a representation in writing upon exercising the
Option, that the sale of the Shares complies with any registration
exemption requirements which the Company in its sole discretion shall
deem necessary or advisable. Such required representations and
undertakings may include representations and agreements that the
Optionee (or the Optionee's legal representative, heir, or legatee):
(a) is purchasing such Shares for investment and not with any present
intention of selling or otherwise disposing thereof; and (b) agrees to
have placed upon the face and reverse of any certificates evidencing
such Shares a legend setting forth (i) any representations and
undertakings which such Optionee has given to the Company or a
reference thereto and (ii) that, prior to effecting any sale or other
disposition of any such Shares, the Optionee must furnish to the
Company an opinion of counsel, satisfactory to the Company, that such
sale or disposition will not violate the applicable requirements of
state and federal laws and regulatory agencies.
6.4 The Optionee shall not dispose of any Shares in transactions which, in
the opinion of counsel to the Company, violate the U.S. Securities Act
of 1933, as amended ("XXX 0000 Xxx"), or the rules and regulations
thereunder, or any applicable state securities or "blue sky" laws.
6.5 If any Shares shall be registered under the 1933 Act, no public
offering (otherwise than on a national securities exchange, as defined
in the U.S. Securities Exchange Act of 1934, as amended) of any Shares
shall be made by the Optionee (or any other person) under such
circumstances that the Optionee (or such other person) may be deemed
an underwriter, as defined in the 0000 Xxx.
6.6 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 Agreement).
6.7 Upon exercise of the Option or at such later times as requested by the
Company, the Optionee agrees to become a party to any stockholders or
similar agreement to which a majority of the Company's stockholders
are subject.
7. GOVERNMENT REGULATIONS
The Plan, and the grant and exercise of the Option, and the obligation of
the Company to sell and deliver Shares under the Option, shall be subject
to all applicable laws, rules, and regulations, of the United States or any
state having jurisdiction over the Company and the Optionee, including the
registration of the Shares under the 1933 Act, and to such approvals by any
governmental agencies or national securities exchanges as may be required.
8. CONTINUANCE OF EMPLOYMENT OR SERVICES
Neither the Plan nor this Agreement shall impose any obligation on the
Company or its affiliates to continue the Optionee in its employ or service
and nothing in the Plan or in this Agreement shall confer upon the Optionee
any right to continue in the employ or service of the Company or its
affiliates or restrict the right of the Company or its affiliates to
terminate such employment or other service at any time.
9. GOVERNING LAW
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Nevada (without reference to its
principles of conflicts of law).
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10. TAX CONSEQUENCES
To the extent permitted by applicable law, any tax consequences arising
from the grant or exercise of the Option, from the payment for Shares
covered thereby or from any other event or act of the Company, its
affiliates or the Trustee, as applicable, or the Optionee hereunder shall
be borne solely by the Optionee. Without limiting Section 20 of the Plan,
the Company, its affiliates and the Trustee, as applicable, may withhold
taxes according to the requirements under the applicable laws, rules, and
regulations, including withholding taxes at source. The Committee shall not
be required to release any Share certificate to the Optionee until all
required payments have been fully made. The Optionee may satisfy any
federal, state or local tax withholding obligation relating to the exercise
or acquisition of Shares under the Option by any of the following means (in
addition to the Company's, its affiliates and the Trustee, as applicable
right to withhold from any compensation paid to the Optionee by the Company
or its affiliates) or by a combination of such means: (i) tendering a cash
payment; (ii) subject to Committee approval, authorizing the Company to
withhold Shares from the Shares otherwise issuable to the Optionee as a
result of the exercise or acquisition of Shares under the Option in an
amount not to exceed the minimum amount of tax required to be withheld by
law; or (iii) subject to Committee approval, delivering to the Company
Shares that have been owned and unencumbered for at least six (6) months.
The Committee and the Trustee shall not be required to release any Share
certificate to the Optionee until all required payments have been fully
made. The Optionee represents and confirms that the Optionee shall not
claim an exemption from Israeli Tax pursuant to Section 97(a) or Part E of
the Tax Ordinance or pursuant to the Law for the Encouragement of Industry
(Taxes) 1960. The Optionee represents and confirms that the Optionee shall
be obliged to immediately notify the Company and the Trustee of his or her
request, if any, to the Income Tax Authority in the event the Shares are
registered on any stock exchange. Nothing in this Agreement shall obligate
the Company to register its Shares or any portion of its Shares on a stock
exchange. The Optionee acknowledges that the exemption under Section 102 of
the Tax Ordinance shall be forfeited and the Optionee shall be required to
pay any applicable tax promptly at such time as (a) the Optionee's
employment is terminated during the block time period from the Date of
Grant (other than because of death or some other reason acceptable to the
Income Tax Authority); (b) the Company or the Optionee fails to comply with
one or more of the conditions of the exemption as required by the Tax
Ordinance, the regulations promulgated thereunder or Income Tax Authority
withdraws or cancels the exemption for the Plan or the Optionee.
11. NO WAIVER/BINDING EFFECT/NOTICES
The failure of any party to enforce at any time any provision of this
Agreement shall in no way be construed to be a waiver of such provision or
of any other provision hereof. This Agreement shall be binding upon the
heirs, executors, administrators, successors and permitted assigns of the
parties hereof. Any notice required or permitted under this Agreement shall
be deemed to have been duly given if delivered, faxed or mailed, if
delivered by certified or registered mail or return receipt requested,
either to the Optionee at the address set forth above or such other address
as the Optionee may designate in writing to the Company, or to the Company
at the address set forth above or such other address as the Company may
designate in writing to the Optionee.
12. PROVISIONS OF THE PLAN
The Option is granted pursuant to the Plan and the Option and this
Agreement are in all respects governed by the Plan and subject to all of
the terms and provisions whether such terms and provisions are incorporated
in this Agreement solely by reference or are expressly cited herein or are
neither referenced or cited herein. Unless otherwise defined herein,
capitalized terms used herein shall have the meaning ascribed to them in
the Plan. Any interpretation of this Agreement shall be made in accordance
with the Plan but in the event there is any contradiction between the
provisions of this Agreement and the Plan, the provisions of the Plan shall
prevail.
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13. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties hereto
and supersedes any prior agreement, arrangement or understanding, whether
oral or in writing, with respect to the subject matter hereof. This
Agreement may not be amended, other than as provided in the Plan, except by
written instrument executed the Optionee and a duly authorized officer of
the Company.
IN WITNESS WHEREOF, this Agreement has been executed as of the day and year
first above written.
INKSURE TECHNOLOGIES INC.
By: /s/ Tzlil Peker
-------------------------
Name: Tzlil Peker
Title: Chief Financial Officer
THE OPTIONEE HEREBY ACKNOWLEDGES RECEIPT OF A COPY OF THE PLAN AND REPRESENTS
THAT THE OPTIONEE IS FAMILIAR WITH THE TERMS AND PROVISIONS THEREOF, AND HEREBY
ACCEPTS THIS AGREEMENT SUBJECT TO ALL OF THE TERMS AND PROVISIONS THEREOF. THE
OPTIONEE HAS REVIEWED THE PLAN AND THIS AGREEMENT IN THEIR ENTIRETY, HAS HAD AN
OPPORTUNITY TO OBTAIN THE ADVICE OF COUNSEL PRIOR TO EXECUTING THIS AGREEMENT
AND FULLY UNDERSTANDS ALL PROVISIONS OF THIS AGREEMENT. THE OPTIONEE HEREBY
AGREES TO ACCEPT AS BINDING, CONCLUSIVE AND FINAL ALL DECISIONS OR
INTERPRETATIONS OF THE COMMITTEE UPON ANY QUESTION ARISING UNDER THE PLAN OR
THIS AGREEMENT.
/s/ Tal Gilat
-------------------------
Optionee
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EXHIBIT B
TERMS OF THE OPTION
Name of the Optionee: Tal Gilat
Date of Grant: March 2, 2010
Designation: CGT
1. Number of Shares subject to the Option: 700,000
2. Purchase Price per Share: $0.38
3. Vesting Schedule (subject to Section 3 of the Agreement):
NUMBER OF SHARES VESTING DATE
4. Expiration Date (subject to Section 6 of the Agreement): March / 1 / 2015
Inksure Technologies Inc.
Tal Gilat By: /s/ Tzlil Peker
------------------- -------------------
Optionee Name: Tzlil Peker
Title: Chief Financial Officer
Vesting Acceleration: In the event of a merger, consolidation, sale of
substantially all or most of the company's assets or other change of control of
the Company and should the Employee be terminated without cause within one year
after such event, the Employee shall be entitled to immediate vesting of all his
remaining unvested options.
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NUMBER OF SHARES VESTING DATE
---------------- ------------
58,333 2/9/2010
64,166 2/12/2010
64,166 2/3/2011
64,166 2/6/2011
64,167 2/9/2011
64,167 2/12/2011
64,167 2/3/2012
64,167 2/6/2012
64,167 2/9/2012
64,167 2/12/2012
64,167 2/3/2013
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