102 CAPITAL GAINS SHARE OPTION AGREEMENT
Made and entered into on the __ day of ________, 2003
Between
M-Wise Inc.
00 Xxxxxxxxx Xxxxxx, Xxxxxxxxx Pituach, Israel 46728
(the "Company")
and
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====================
(the "Employee")
WHEREAS: The Employee is an employee of the Company and/or a
Related Company; and
WHEREAS: The Company desires to grant the Employee options to purchase shares in
the Company, and/or issue to the Employee shares in the Company and the Employee
is interested in receiving the aforesaid options and/or purchasing the aforesaid
shares, all in accordance with and subject to the Company's Israel Stock Option
Plan (2003) and the annexes thereto (the "Plan") and the provisions of this
Agreement, and their intention is that the provisions of the Ordinance, Section
102 and the Rules shall apply to the shares issued and/or options granted; and
WHEREAS: The Employee has read the Rules and the Plan, wishes to
be bound by them and desires that they apply to the options and
shares which shall be granted to him hereunder;
NOW, THEREFORE, it is agreed as follows:
Preamble
1.1 The preamble to this Agreement is the basis and constitutes an integral part
thereof. 1.2 Unless the context otherwise requires, terms used herein this
Agreement shall have the same meaning as in the Plan.
Application of the Provisions of the Plan
2.1 The Employee hereby confirms that he or she has carefully read the Plan and
that he or she acknowledges and agrees to all of the provisions, conditions,
limitations, authorizations, declarations and commitments included therein. 2.2
The Employee declares and agrees that this Agreement and the Plan prevail over
any previous agreement, arrangement and/or understanding, whether written or
oral between the Employee and the Company and/or any Related Company, or the
officers and/or
directors and/or the shareholders thereof with respect to the matters herein
included, and with respect to the Company's shares and/or any option to purchase
shares in the Company which have not yet been actually issued or granted, and
that any agreement, arrangement and/or understanding as aforesaid are null and
void and of no further force or effect. 2.3 All of the provisions, conditions,
limitations and declarations included and specified in the Plan, as the same
shall be amended from time to time, are hereby incorporated herein by reference
and constitute an integral part of this Agreement and of the Employee's
commitments hereunder. Except and to the extent otherwise expressly provided
herein, nothing in this Agreement or in the provisions hereof shall derogate
from anything contained in the Plan. 2.4 The Employee declares, covenants and
agrees that the Law and the Rules, as the same shall be amended from time to
time, including the trust deed between the Company and the trustee (the
conditions whereof are accepted by the Employee and upon signing this Agreement
he or she approves them as an integral part of this Agreement) and the notice to
the Assessing Officer about the allotment, are fully binding on the Employee and
shall prevail in case of contradiction, over any other provision in the
Agreement or in the Plan. 2.5 The Employee declares and agrees that he or she is
restricted from making any disposition of the Option or the Shares for a period
of at least 24 months from the end of the tax year in which the Options are
allocated to the trustee or a shorter period as approved by the tax authorities
(the "Lock-up Period"). The meaning of the above restriction for purposes of the
tax authorities is that if the Employee voluntarily sells the Option or the
Shares before the end of the Lock-up Period, the Option or the Shares shall be
subject to tax as ordinary income as per Sections 2(1) and 2(2) of the Ordinance
and the other provisions thereof. 2.6 Notwithstanding any of the foregoing, the
Employee may, at his or her discretion, elect that the provisions of Section 102
shall not apply to the grant of Options hereunder, and that alternative tax
treatment shall apply (whether or not entailing holding periods for the Options
or Shares granted to the Employee such as those set forth in Section 2.5 above
or elsewhere herein, and whether or not requiring a trustee to hold the Options
or Shares on behalf of the Employee) provided that, in conjunction with such
election and the release of the Shares or Options from the trustee to the
Employee (if applicable), the Employee shall acknowledge in writing that he or
she is and shall be solely responsible for the tax and other financial
consequences of the Employee's elected tax treatment and shall release the
Company from any claims in connection therewith. The aforementioned election
shall not accelerate or affect the vesting of the Employee's options set forth
in Section 3 below, or detract from the Proxy an Power of Attorney. 2.7 A copy
of the Plan is attached hereto and constitutes an integral part hereof. 3. Grant
of Option; Vesting 3.1 Subject to this Agreement and the Plan, the Company shall
grant to the trustee, by an "approved issue" within the meaning of the Law, an
option under the "Capital Gains" route according to Section 102(b)(2) of the
Ordinance (the "Option") to purchase ________ [Common Stock] [Series B Preferred
Stock] of the Company ("Shares") at an exercise price of $0.01 per share, at the
time and
in the manner hereinafter provided.
The term of the Option shall be 8 years from the date hereof or such
shorter period as is prescribed herein or in the Plan (the "Term"). 3.2 The
Option shall be exercisable, in whole or in part, according to the following
vesting schedule: 25% of the Shares subject to the Option shall vest upon each
anniversary from ____________, subject to the Employee's continuing employment
with the Company or any Related Company on such dates. 3.3 The consideration
shall be paid on the date of the exercise of the Option. The Option shall be
exercisable by the trustee on behalf of the Employee in progressive stages on
the exercise dates, as aforesaid, provided that the Employee shall have been
continuously employed by the Company and/or a Related Company, from the date
hereof until such date of exercise. 4. Non Assignability
The Employee's rights to: (a) receive and exercise the Option; (b)
receive all or part of the Shares from the trustee; (c) require that the same
shall be registered in his name; and (d) request that the trustee sell Shares on
his behalf, are subject to the Plan and are personal and not transferable (other
than pursuant to the laws of inheritance), and may not be made subject to any
pledge, lien, attachment or other charge whether voluntary or by law, and no
power of attorney or a transfer deed shall be given in respect thereof, whether
it is to be effective immediately or in the future, whether directly or
indirectly, and any such transfer shall be null and void.
The Employee acknowledges and hereby agrees that, in addition
to the limitations on transferability of the Shares, pursuant to
the Company's incorporation documents, as shall be in effect from
time to time, for as long as the Company is a private company or a
public company whose shares are not traded on any stock exchange,
the Employee's shares in the Company shall not be transferable,
without the prior approval of the board of directors of the Company
(the "Board"), which approval may be withheld at its absolute
discretion.
5. Employee Representations, Warranties and Covenants
Without derogating in any manner from the provisions of the Plan or
this Agreement, the Employee hereby represents, warrants, agrees and undertakes
as follows: 5.1 The shares are being purchased for the Employee's own account
for investment purposes only and not with a view for resale or transfer, and
that all the rights pertaining to the Shares, by law or equity, shall be
purchased and possessed by the Employee (through the trustee) for the Employee
exclusively. 5.2 That he or she acknowledges that the Company's shares are not
publicly traded and understands that the Company bears no responsibility and has
made no commitment to register its shares,
or the Options or Shares allotted to the Employee, for trading or to offer its
shares to the public in any manner. 5.3 The Employee acknowledges and agrees
that no income or gain which the Employee may be credited with or which purports
to be credited to the Employee as a result of the grant of the Option, the issue
of the Shares, the transfer into the Employee's name thereof or the sale
thereof, if any, shall in any manner be taken into account in the calculation of
the basis for the Employee's entitlements from the Company or any Related
Company or in the calculation of any social welfare right or other rights or
benefits arising out of the employee/employer relationship, including without
limitation, social security, manager's insurance, educational fund, pension
funds, severance pay, holiday pay, etc.
In the event that the Company and/or any Related Company shall be
required, pursuant to any law, to take into account for purposes of calculating
any such benefits, any of the aforesaid elements of income or gain actually or
theoretically credited to the Employee, the Employee shall promptly indemnify
the Company and/or any Related Company against any expense caused to it in this
regard, and any such amount shall be deemed a debt of the Employee to the
Company and/or any Related Company, which may be deducted or set off from any
amounts payable to the Employee. 5.4 The Employee acknowledges that nothing in
this Agreement and/or in the Plan shall be interpreted as a commitment and/or an
agreement by the Company and/or any Related Company to employ the Employee,
whether for a certain period or otherwise, and that nothing in this Agreement
and/or the Plan or any option granted pursuant hereto or thereto shall be
interpreted as conferring upon the Employee any right to continue in the
employment of the Company or any Related Company or as obliging the Company or
any Related Company to employ the Employee or as restricting the rights of the
Company and/or any Related Company to terminate the Employee's employment, at
any time, at its sole discretion and in accordance with law. The Employee shall
have no claim whatsoever against the Company and/or any Related Company as a
result of the termination of his employment, even if such termination causes the
Option or any other options, in whole or in part, to expire and/or prevents him
from exercising the Option in whole or in part and/or from receiving or
retaining the Shares pursuant hereto or to any other agreement between him and
the Company, or results in any loss due to any imposition of tax liability
(including any early imposition) pursuant to applicable law. 5.5 The Employee
acknowledges that the grant of the Option and the issue of the Shares, the
execution of this Agreement and the Employee's participation in the Plan shall
have tax consequences to the Employee, and that the Company is not able to
ensure or represent to the Employee the nature and extent of such tax
consequences.
The Employee acknowledges and agrees that pursuant to the Plan, the
Employee shall be liable to pay all taxes, of every nature, including duties,
fines and any other payment which may be imposed by the tax authorities, whether
in Israel or abroad, and all expenses arising out of the Plan, including every
obligatory payment of whatever source in respect of the Option, the Shares
(including, without limitation, upon the exercise of the Option, the sale of the
Shares or the registration of the Shares in the Employee's name) or dividends or
any other benefit in respect thereof, and/or all other charges which may accrue
to the Employee, the Company, any Related Company and/or the trustee in
connection with the Plan, whether or not the provisions of the Law or the
Commissioner's Rules apply. Furthermore, the Employee acknowledges that the
Employee shall not have, and the Employee hereby waives, any complaint and/or
cause of action the same has or shall have in the future against the trustee
and/or against the Company in any way connected to any taxation resulting from
the grant of the Option, the exercise thereof, the transfer of Shares into the
Employee's name, the sale of Shares by the Employee and/or by the trustee and/or
any other matter which is in any manner whatsoever connected to the Option, the
Shares and/or the participation of the Employee in the Plan.
The Employee further acknowledges and agrees that, without derogating
from the Employee's obligation to pay all taxes payable with respect to the
Option and the Shares, the Company and/or any Related Company and/or the trustee
shall at their absolute sole discretion be entitled (and/or obliged pursuant to
the Law), to deduct at source from all the payments due to the Employee,
including dividends, consideration for the sale of shares or from any other
source, any tax payments due to the tax authorities in respect of the Option or
the Shares pursuant to any law. 5.6 The Employee acknowledges that he or she is
aware of, and clearly understands: (a) the rights and limitations attached to
the Shares as set forth in the Company's by-laws and Certificate of
Incorporation, the Plan and this Agreement; (b) the limitations on
transferability thereof set forth in the by-laws and Certificate of
Incorporation, the Plan and this Agreement; (c) that the Company's by-laws and
Certificate of Incorporation may be amended from time to time as permitted by
law; and (d) that the provisions of the by-laws and Certificate of Incorporation
of the Company which shall apply to the Shares shall be the provisions which
shall be in effect from time to time; and that, as a result, inter alia, of
these limitations, it may be difficult or impossible for the Employee to realize
his investment and/or to sell or otherwise transfer the Shares. 5.7 In the event
that the Company's by-laws or Certificate of Incorporation, now or at any time
hereafter, provide for a right of first refusal to purchase shares of the
Company which are offered for sale by other shareholders of the Company and/or a
pre-emptive right to purchase shares which are being allotted or shall in the
future be allotted by the Company, the Employee hereby waives such rights. For
the purpose of the approval of any transfer or the execution of any issue as
aforesaid, this Agreement shall constitute an authorization, for the benefit of
the Company and the Company's shareholders, to the trustee and/or to the
attorney empowered pursuant to the Proxy and Power of Attorney attached as
Appendix C to the Plan, or in such other form as shall be approved by the Board
(the "Attorney" and the "Proxy and Power of Attorney" respectively), until the
consummation of the initial public offering of the Company's shares pursuant to
an effective
registration statement, prospectus or similar document in Israel or such other
jurisdiction as is determined by the Board (the "IPO"), to sign any confirmation
or waiver in the name of the Employee and on his behalf. The Employee shall not
sell, and shall not instruct the trustee to sell, the Shares or any part thereof
to any third party, unless such third party signs a waiver and a power of
attorney as aforesaid. 5.8 The shares issued with respect to the Option granted
hereunder will be held by the trustee and registered in his name until the
earlier of the consummation of the IPO or 5 years from the date of their issue,
after which time the Employee may request their registration in his name and
transfer to him subject to the provisions of the Law, the Rules and the Plan,
all as shall be in effect from time to time (e.g. payment of taxes, etc.). 5.9
The Employee shall have none of the rights of a shareholder of the Company, for
as long as the Option has not been exercised and, once exercised, for as long as
the Shares have not been transferred and registered in the Employee's name in
the Company's register of members pursuant to the Plan. 5.10 In accordance with
the Proxy and Power of Attorney, for as long as any shares are held by the
trustee or registered in his name or for as long as the certificates
representing any shares are held by the trustee, and in respect of shares
registered in the name of the Employee, until the IPO, the trustee alone shall
be entitled to receive every notice to which a shareholder is entitled, or to
demand any information, and any financial and/or other report to which a
shareholder is entitled from the Company, and only he or she, or the Attorney,
shall be entitled to exercise every other right of the shareholders vis-a-vis
the Company including the right to participate in and to vote at all
shareholders' meetings. The Employee shall not be entitled to exercise any of
these rights as shareholder nor make any demand or request of the trustee and/or
of the Attorney in this regard. Without derogating from the generality of the
above, the Employee shall not have nor exercise any voting rights with respect
to the Shares until they are transferred and registered in his name in the
Company's register of members pursuant to the Plan. 5.11 That until the
consummation of the IPO, the Employee shall provide at the Company's request,
any certificate, declaration or other document and shall perform any act which
the Company or the Trustee shall consider to be necessary or desirable pursuant
to any law, whether local or foreign, including any certificate or agreement
which the Company shall require, if any, from the Employee as a member of a
class of shareholders, or any certificate, declaration or other document the
obtaining of which shall be deemed by the Board or the Trustee to be appropriate
or necessary for the purpose of raising capital for the Company, of merging the
Company with another company (whether the Company is the surviving entity or
not), or of reorganization of the Company, including, in the event of a
consolidation or merger of the Company or any sale, lease, exchange or other
transfer of all or substantially all of the assets or shares of the Company, the
sale or exchange, as the case may be, of any shares or rights to purchase shares
the Employee (or the trustee on his behalf) may
have purchased or been granted hereunder all as shall be deemed necessary or
desirable by the Board or the trustee.
In order to guarantee, and without derogating from, the aforesaid, and
because the rights of the Company and the other shareholders are dependent
thereon, the Employee shall, upon signing this Agreement and as a condition to
the grant of any options hereunder, execute the Proxy and Power of Attorney, or
in such other form as shall be approved by the Board, irrevocably empowering the
Attorney, until consummation of the IPO, to sign in his name as aforesaid on any
document as aforesaid, and the Employee shall have no complaint or claim against
the trustee and/or the Attorney in respect of any such signature or action, or
in respect of any determination of the Trustee pursuant hereto. The Employee
will authenticate his signature in the presence of a notary if he or she shall
be asked to do so by the Company, in order to give full validity to the power of
attorney. 5.12 The Employee has received a copy of the Plan, has examined it,
and acknowledges and agrees to all the provisions and conditions thereof. 5.13
The Employee has full knowledge of the Company and its activities, and is aware
that the Company operates in a sophisticated, high tech and high risk sector,
and that the market thereof is restricted and highly competitive, and that the
exercise of the Option constitutes an economic risk. The Employee undertakes
that he or she shall not have any claim against the Company and/or any Related
Company or any of its or their officers, employees, shareholders or advisors if
the Employee's investment in the Shares shall fail or for the payment of any tax
due or for any other reason. 6. Taxes; Indemnification of the Company, the
Trustee and the Legal Advisor 6.1 All rights related to the Option or the Shares
will be held by the trustee until the end of the Lock-up Period, including bonus
shares, and will be subject to the provisions of Section 102.
6.2 The Employee hereby covenants, whether the provisions of the Law shall apply
to the Employee or not, to bear all tax obligations, levies, fines and other
payments which shall be imposed by the tax authorities (whether in Israel or
abroad) and any other obligation from whatever source including but not limited
to the obligations of the Employee and/or the Company and/or any Related Company
and/or the trustee arising out of the Plan (including granting of the Option,
exercise of the Option, issue of the Shares, transfer of the Shares into the
Employee's name and the sale thereof by the Employee and/or by the trustee).
Without derogating from the generality of the aforesaid the Employee's
obligations in this regard shall include income tax, stamp tax, employer's tax,
capital gains tax, social security insurance and any other tax, levy or payment
which the Employee or the Company and/or any Related Company is or shall be
obliged to pay because of the Option or the Shares (including deductions at
source which the Company is obliged to make for tax imposed upon the Employee)
and the Employee shall indemnify the Company and/or any Related Company and/or
the trustee for every charge or payment as aforesaid, which
may be deducted or set off from any amounts payable to the Employee. 6.3 Subject
to the provisions of the Plan, the Employee hereby covenants to pay the Company
and/or the trustee promptly upon their first request in writing, any sum for
which they are responsible (or, in the Board's opinion, they might be
responsible for), and which is payable by the Employee as set forth in Section
6.2 hereof to the income tax authorities and/or any other governmental or
administrative authority, whether in Israel or abroad (including for deduction
of tax at source) pursuant to the Plan, and/or in respect of the Employee's
participation in the Plan, whether the trustee's responsibility as aforesaid
shall arise directly or in respect of any responsibility of the Employee for
such payment. The Employee covenants to promptly indemnify the Company and/or
any Related Company and/or the trustee for any charge or payment as aforesaid,
which may be deducted or set off from any amounts payable to the Employee. 6.4
In no event shall the trustee or the Attorney be liable to the Company and/or
the Employee and/or to any third party (including, without derogating from the
generality of the aforesaid, the income tax authorities and any other
governmental or administrative authority, whether in Israel or abroad) or a
purchaser of Shares from the Employee (or the trustee), with respect to any act
which has been or which shall be carried out in relation to the Plan and any
matter connected thereto or arising therefrom. The Company and/or any Related
Company and the Employee covenant, upon signing this Agreement, that they will
not make, and they each hereby waive, any and all claims against the trustee and
the Attorney as aforesaid and each of the Company, Related Company and the
Employee expressly agree that if either shall make any claim against the trustee
or the Attorney the same shall then be entitled on the grounds of this section
alone to apply to the competent court for dismissal of the action against them,
with costs. The Company covenants and agrees that if a claim is brought by any
third party against the trustee or the Attorney the same will be entitled
without objection by the Company, to join the Company as a third party to any
such action and any judgment against them shall be paid by the Company.
The Company and the Employee hereby covenant to indemnify the trustee,
and/or the Attorney against any liability in relation to any claim and/or demand
made against the trustee and/or the Attorney by any person whatsoever, including
the tax authorities, in relation to their acts or omissions in connection with
the Plan.
The provisions of this section and the other provisions of this
Agreement and the Plan which grant any right, power, immunity or any authority
to the trustee, and/or the Attorney shall operate in favor of the trustee and
the Attorney and they shall be entitled to act pursuant to and enforce such
provisions, and the Company and the Employee shall be liable to the trustee and
the Attorney as if they were parties to this Agreement. 7. Adjustments upon
Changes in Capitalization, Merger, Sale, Dissolution or Liquidation.
Notwithstanding the Plan in the event of a change in the Company's
capitalization, sale, dissolution or liquidation of the Company the
following adjustments will be made:
7.1 Changes in Capitalization. In the event that the Shares shall be subdivided
or combined into a greater or smaller number of Shares or if, upon a
reorganization, recapitalization or the like, the Shares shall be exchanged for
other securities of the Company, the Employee shall be entitled, subject to the
conditions herein stated, to purchase such number of Shares or amount of other
securities of the Company as were exchangeable for the number of Shares of the
Company which the Employee would have been entitled to purchase except for such
action, and appropriate adjustments shall be made in the purchase price per
share to reflect such subdivision, combination or exchange. In the event that
the Company shall issue any of its Shares or other securities as bonus shares or
a stock dividend upon or with respect to any Shares which shall at the time be
subject to an Option hereunder, the Employee upon exercising such Option shall
be entitled to receive (for the purchase price payable upon such exercise), the
Shares as to which he or she is exercising such Option and, in addition thereto
(at no additional cost), such number of shares of the class or classes in which
such bonus shares or stock dividend were declared, and such amount of Shares
(and the amount in lieu of fractional Shares) as is equal to the Shares which he
or she would have received had he or she been the holder of the Shares as to
which he or she is exercising his Option at all times between the date of this
Agreement and the exercise date of the Option. 7.2 Dissolution or Liquidation.
In the event of the proposed dissolution or liquidation of the Company, the
Board shall notify the Employee as soon as practicable prior to the effective
date of such proposed transaction. The Board in its discretion may provide for
the Employee to have the right to exercise his Option until fifteen (15) days
prior to such transaction as to all of the Shares, including Shares as to which
the Option would not otherwise be exercisable. To the extent it has not been
previously exercised, the Option will terminate immediately prior to the
consummation of such proposed action. 7.3 Merger or Asset Sale. Notwithstanding
any provision of the Plan, in the event of a merger of the Company with or into
another corporation, or the sale of substantially all of the assets of the
Company, the Option shall be assumed or an equivalent option substituted by the
successor corporation or a parent or subsidiary of the successor corporation. In
the event that the successor corporation refuses to assume or substitute for the
Option, the Employee shall fully vest in and have the right to exercise the
Option as to all of the Shares, including Shares as to which it would not
otherwise be vested or exercisable. If an Option becomes fully vested and
exercisable in lieu of assumption or substitution in the event of a merger or
sale of assets, the Board shall notify the Employee in writing or electronically
that the Option shall be fully exercisable for a period of fifteen (15) days
from the date of such notice, and the Option shall terminate upon the expiration
of such period. For the purposes of this paragraph, the Option shall be
considered assumed if, following the merger or sale of assets, the option
confers the right to purchase or receive, for
each Share, immediately prior to the merger or sale of assets, the consideration
(whether shares, cash, or other securities or property) received in the merger
or sale of assets by holders of shares for each Share held on the effective date
of the transaction (and if such holders were offered a choice of consideration,
the type of consideration chosen by the holders of a majority of the outstanding
shares); provided, however, that if such consideration received in the merger or
sale of assets is not solely ordinary shares (or their equivalent) of the
successor corporation or its parent or subsidiary, the Board may, with the
consent of the successor corporation, provide for the consideration to be
received upon the exercise of the Option, for each Share to be solely ordinary
shares (or their equivalent) of the successor corporation or its parent or
subsidiary equal in fair market value to the per share consideration received by
holders of in the merger or sale of assets.
8. Amendments to the Plan and/or Replacement thereof
The Employee acknowledges, agrees and confirms that the Plan
may be amended as provided for therein. The Employee hereby agrees and covenants
not to raise any objection to any such amendment as aforesaid and that the
Employee shall sign any document which according to the Company is necessary or
desirable in order to give full force and effect to the amendment of the Plan.
The Employee understands that any amendment to the Plan or any document
connected to the Plan, shall bind him as if he or she were a party thereto. 9.
Substitution of the Trustee
The parties acknowledge and agree that the Company is entitled
to replace the trustee and/or to nominate another person to serve
as a trustee in lieu of the existing trustee if the same is no
longer capable or willing to fulfill his duties and that the new
trustee shall have the same powers and authority which the Plan and
this Agreement grant the trustee.
10. Governing Laws
This Agreement shall be governed by and construed in
accordance with the laws of the State of Israel and, subject to the
provisions of Section 11 below, the competent courts in the
Tel-Aviv district shall have exclusive jurisdiction with respect to
any matter or conflict with respect thereto.
11. Disputes
As a condition of the granting of the Option, the Employee and the
Employee's successors and assigns agree that any dispute or disagreement which
shall arise under or as a result of this Agreement shall be determined by the
Board, or any committee designated by the Board pursuant to the Plan, in its
sole discretion and judgment and that any such determination and any
interpretation by the Board or any such committee of the terms of this Agreement
shall be final and shall be binding and conclusive for all purposes.
In making any such determination or interpretation the Board or any
such committee shall not be bound by the rules of procedure or evidence or
substantive law and shall not be required to give any reasons therefore.
12. Notices and/or Instructions
12.1 Every notice and/or instruction required or permitted to be given pursuant
to this Agreement shall be given in writing and shall be deemed to have been
delivered on the date of its delivery to the addressee by hand or 3 (three) days
after having been sent by registered mail. The parties addresses for the purpose
of this Section shall be, if a party has not communicated another address by
written notice in advance, as follows:
The Company: M-Wise Inc.
00 Xxxxxxxxx Xxxxxx,
Xxxxxxxxx Pituach, Israel 46728
The Employee: ___________________
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12.2 A stamp or a receipt on behalf of the postal service which evidences the
time of delivery of the notice shall constitute conclusive evidence as to the
date of delivery and no party shall claim that a notice delivered as aforesaid
has not been received by such party.
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M-Wise Inc. Employee
M-WISE INC.
IRREVOCABLE PROXY AND POWER OF ATTORNEY
I, the undersigned, ______________, hereby appoint [__________] or whoever shall
replace him as trustee pursuant to M-Wise Inc.'s Israel Stock Option Plan (2003)
(2003) (hereinafter: the "Trustee", the "Company" and the "Plan" respectively)
as my proxy to participate and vote (or abstain) for me and on my behalf as he
at his sole discretion of shall deem appropriate, on all matters at all meetings
of stockholders of the Company (whether ordinary, extraordinary or otherwise),
on behalf of all the shares and/or options of the Company held by the Trustee on
my behalf and hereby authorize and grant a power of attorney to the Trustee as
follows:
I hereby authorize and grant power of attorney to the Trustee for as long as any
shares or options which were allotted or granted on my behalf are held by the
Trustee or registered in his name, or for as long as the certificates
representing any shares are held by the
Trustee, to exercise every right, power and authority with respect to the shares
and/or options and to sign in my name and on my behalf any document (including
any agreement, including a merger agreement of the Company or an agreement for
the purchase or sale of assets or shares (including the shares of the Company
held on my behalf) and any and all documentation accompanying any such
agreements, such as, but not limited to, decisions, requests, instruments,
receipts and the like), and any affidavit or approval with respect to the shares
and/or options or to the rights which they represent in the Company in as much
as the Trustee shall deem it necessary or desirable to do so. In addition and
without derogating from the generality of the foregoing, I hereby authorize and
grant power of attorney to the Trustee to sign any document as aforesaid and any
affidavit or approval (such as any waiver of rights of first refusal to acquire
shares which are offered for sale by other stockholders of the Company and/or
any preemptive rights to acquire any shares being allotted by the Company, in as
much as such rights shall exist pursuant to the Company's corporate documents as
shall be in existence from time to time) and/or to make and execute any
undertaking in my name and on my behalf if the Trustee shall, at his sole
discretion, deem that the document, affidavit or approval is necessary or
desirable for purposes of any placement of securities of the Company, whether
private or public (including lock-up arrangements and undertakings), whether in
Israel or abroad, for purposes of a merger of the Company with another entity,
whether the Company is the surviving entity or not, for purposes of any
reorganization or recapitalization of the Company or for purposes of any
purchase or sale of assets or shares of the Company.
This Proxy and Power of Attorney shall be interpreted in the widest possible
sense, in reliance upon the Plan and upon the goals and intentions thereof, and
in accordance with the instructions of the Board of Directors of the Company
(the "Board") (including any committee designated by the Board pursuant to the
Plan) and its determinations.
This Proxy and Power of Attorney shall expire and cease to be of force and
effect immediately after the consummation of the initial public offering of the
Company's stock, pursuant to an effective registration statement, prospectus or
similar document in Israel or such other jurisdiction as is determined by the
Board and shall be irrevocable until such time as the rights of the Company and
the Company's stockholders are dependent hereon. The expiration of this Power of
Attorney shall in no manner effect the validity of any document (as aforesaid),
affidavit or approval which has been signed or given as aforesaid prior to the
expiration hereof and in accordance herewith.
IN WITNESS WHEREOF, I have executed this Proxy and Power of Attorney on the __
day of _______, 200_.
----------------
M-WISE INC.
Date: ______________
The Income Tax Commissioner
Assessing Officer
M-Wise Inc... ("M-Wise")
[_____________] or whoever shall
replace him as trustee pursuant
to M-Wise's Israel Stock Option Plan (2003) (the "Trustee")
Dear Sir/Madam,
Re: Letter of Consent, Approval and Undertaking
I hereby confirm as follows:
1. I agree that the arrangement provided for in Section 102 of the Income Tax
Ordinance shall apply in its entirety to the options and the shares due to me
from M-Wise, and to myself.
2. I hereby give my written consent to the trust documents signed
on [ ____________ ] between M-Wise and the Trustee (hereinafter:
the "Trust Documents").
3. I agree that should bonus stock be issued with respect to the shares which
were allotted on my behalf by way of an "approved allotment" or which are
subject to the options which were granted to me, such bonus stock shall be
allotted to the Trustee and shall be registered in his name and the provisions
of Section 102 of the Income Tax Ordinance (the "Ordinance") and the Income Tax
Rules (Tax Relief on Shares Issued to Employees), 5749-1989 (the "Commissioner's
Rules") shall apply to the said shares as if they were the original shares with
respect to which they were allotted and that the Trustee's undertakings pursuant
to the Trust Documents shall also apply accordingly to the bonus stock.
4. I hereby undertake to the Income Tax Commissioner and the assessing officer
neither to request nor demand a tax exemption pursuant to Sections 97(a) or 104
of the Income Tax Ordinance or pursuant to an exemption from taxes in the
context of a merger of Company s for the transfer of shares allotted to me or
which are subject to the options granted to me pursuant to the plan, prior to my
payment of the applicable tax with respect to these shares pursuant to the
Ordinance and the Commissioner's Rules and likewise I undertake not to transfer
the shares, by way of a transfer which is exempt from tax prior to the payment
of the applicable tax.
6. I agree that the Trustee and M-Wise shall inform the assessing officer
pursuant to Section 4(b) of the Commissioner's Rules that they are holding this
approval.
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Employee's Name
