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Exhibit 10.4
RADVIEW SOFTWARE LTD. KEY EMPLOYEE SHARE INCENTIVE PLAN
(1996)
1. NAME:
This plan, as amended from time to time, shall be known as the "RADVIEW
SOFTWARE LTD. Key Employee Share Incentive Plan (1996)" (the "Plan").
2. PURPOSE:
2.1. The purposes and intents of the Plan are as follows: (i) to provide
incentives to employees of RADVIEW SOFTWARE LTD. (the "Company") and
its subsidiaries (subject to approval by the Israeli Income Tax
Authorities) by providing them with opportunities to purchase shares
in the Company, pursuant to a plan approved by the Board of Directors
of the Company which is designed to benefit from, and is made pursuant
to, the provisions of Section 102 of the Israeli Income Tax Ordinance
[New Version], 1961 (hereinafter - the "Ordinance") and the rules,
promulgated thereunder; and (ii) to provide incentives to directors
and consultants of the Company and its subsidiaries, by providing them
with opportunities to purchase shares in the Company, in order to
provide them incentives to assist in the promotion of the business of
the Company.
2.2. Reserved.
2.3. All provisions of this Plan shall apply, MUTATIS MUTANDIS, to grants
of options to directors and consultants of the Company or its
subsidiaries. For the avoidance of doubt, unless otherwise resolved by
by the Committee (as defined below) or the Board of Directors, options
issued hereunder to non-employee directors or consultants shall not be
subject to Section 5 hereof.
3. ADMINISTRATION:
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3.1. The Plan will be administered by the Compensation Committee (the
"Committee"), which will consist of such number of Directors of the
Company (not less than two (2) in number), as may be fixed from time
to time by the Board of Directors of the Company. The Board of
Directors shall appoint the members of the Committee and may from time
to time remove members from, or add members to, the Committee and
shall fill vacancies in the Committee however caused.
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 all of its
members are present, or acts reduced to or approved in writing by all
members of the Committee, shall be the valid acts of the Committee.
The Committee may appoint a Secretary, who shall keep records of its
meetings and shall make such rules and regulations for the conduct of
its business as it shall deem advisable.
3.3. Subject to the general terms and conditions of this Plan, the
Committee shall have full authority to recommend to the Board of
Directors, in its discretion, from time to time and at any time (i)
the persons ("Grantees") to whom "Option Awards" (as hereinafter
defined) shall be granted, (ii) the number of shares to be covered by
each Option Award, (iii) the time or times at which the same shall be
granted, (iv) the price, schedule and conditions on which such Option
Awards may be exercised and on which such shares shall be paid for,
and/or (v) any other matter which is necessary or desirable for, or
incidental to, the administration of the Plan. The Board of Directors
shall have the exclusive authority to grant options under this Plan.
3.4. The Committee may from time to time adopt such rules and regulations
for carrying out the plan as it may deem best. 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
Option Award granted thereunder.
3.5. The interpretation and construction by the Committee of any provision
of the Plan or of any Option Award thereunder shall be final and
conclusive unless otherwise determined by the Board of Directors.
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3.6. Any authority delegated herein to the Committee, may be exercised by
the Board of Directors. Resolution of the Board of Directors in
matters delegated to the Committee shall supercede any conflicting
resolution by the Committee.
4. ELIGIBLE GRANTEES:
4.1. Reserved.
4.2. Option Awards may be granted to any officer, director, consultant, key
employee or other employee of the Company and its subsidiaries ,
against waiver by such grantee of a certain amount of his salary or
against the payment of certain amount to the Company, as the case may
be. The grant of an Option Award 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 stock option plan of the Company.
5. TRUSTEE:
The Option Awards and/or shares in the Company which will be issued upon
the exercise of the Option Awards will be held in trust and registered
under the name of a trustee (the "Trustee") who will hold the same pursuant
to the Company's instructions from time to time. Except as provided for in
Section 10.7 hereinbelow, and except when the grant is made to non-employee
director, or consultant of the Company and the Board of Directors has not
resolved otherwise, in no event will the Trustee release the shares before
the later of (i) the initial public offering ("IPO") of the shares of the
Company or (ii) the lapse of twenty-four (24) months as of the registration
of options in the name of the Trustee on behalf of the Grantee..,
6. RESERVED SHARES:
The Company by Board of Directors resolution shall reserved from time to
time certain amounts of authorized but unissued Ordinary Shares (nominal
value NIS 0.01 per share) for purposes of the Plan, subject to adjustment
as provided in Section 11 hereof. All shares under the Plan, in respect of
which the right hereunder of a Grantee to purchase the same shall, for any
reason, terminate,
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expire or otherwise cease to exist, shall again be available for grant
through the Option Awards under the Plan.
7. OPTION AWARDS:
7.1. The Committee, subject to the approval of the Board of Directors, may
award to Grantees options to purchase shares in the Company available
under the Plan ("Option Awards"). The date of grant of each Option
Award shall be the date specified by the Committee at the time such
award is made.
7.2. The instrument granting an Option Award shall state, INTER ALIA, the
number of shares covered thereby, the dates when it may be exercised,
the option price, the schedule on which such shares may be paid for
and such other terms and conditions as the Committee at its discretion
may prescribe, provided that they are consistent with this Plan.
8. OPTION PRICE:
The price per share covered by each Option Award shall be as determined by
the Committee, subject to the approval of the Board of Directors, on the
date of grant, provided that such price per share for any Option Award
shall not be less than the par value of the share.
9. EXERCISE OF OPTION AWARD:
9.1. Option Awards 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 Award, or any part thereof, shall be exercisable by the
Grantee's signing and returning to the Company at its principal
office, with a copy to the Trustee, a "Notice of Exercise" which will
also constitute a Share Incentive Agreement (the "Agreement") in such
form and substance as may be prescribed by the Committee from time to
time.
9.3. Anything herein to the contrary notwithstanding, but without
derogating from the provisions of Sections 5 and 10 hereof, if any
Option Award or any part thereof, has not been exercised and the
shares covered thereby not paid for within sixty-two (62) months after
the date of grant (or any
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other period set forth in the instrument granting such Option Award
pursuant to Section 7), such Option Award, 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 ipso facto expire, and,
in the event that in connection with such unexercised options any
shares are held in trust as aforesaid, such trust shall ipso facto
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.
9.4. Each payment for shares under an Option Award shall be in respect of a
whole number of shares, shall be effected in cash or by a cashier's or
certified check payable to the order of the Company, or such other
method of payment acceptable to the Company, and shall be accompanied
by a notice stating the number of shares being paid for thereby.
9.5. In the event that the Company will distribute cash dividends or any
other cash payments to shareholders, then the dividends (or cash
payments) relating to the shares already exercised will be transferred
to the Trustee, who will transfer dividends (or cash payments) to
Grantees who exercised the Option Awards to the extent exercised.
Each Grantee will be fully liable as a shareowner in the Company to
the extent of the number and percentage of shares held on his behalf
by the Trustee as a result of the exercise of any Option Award up to
the nominal value of his shares.
10. TERMINATION OF RELATIONSHIP :
10.1. Subject to the provisions of Sections 10.4 and 10.5 hereof, if a
Grantee should, for any reason, cease to be employed by the Company,
or a non-employee director, or a consultant, of the Company, as the
case may be,, then all of his rights, if any, in respect of (a) all
Option Awards theretofore granted to him under the Plan and not
exercised (to the extent that they are exercisable at the time of
termination of relationship) within two (2) weeks after such cessation
of relationship, and (b) all shares
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which may be purchased by him under the Plan and which are not fully
paid for within two (2) weeks after such cessation of relationship,
shall ipso facto terminate.
10.2. In the event of such resignation or termination of Employment or
relationship of a Grantee from the employ or service of the Company,
his employment or service shall, for the purposes of this Section 10
be deemed to have ceased upon the delivery to the Company or its
subsidiary, as the case may be, of notice of resignation or
termination of service, or upon the delivery to the employee, the
director or the consultant of notice of termination of employment or
service, as the case may be, irrespective of the effective date of
such resignation or termination of employment or service.
10.3. For the purposes of this Section 10, the following definitions will
apply:
10.3.1 "Purchaser" - the Company (if and as permitted to by law)
and/or any other person or entity designated for this purpose by
the Company.
10.3.2 "Back Purchase Period" - 90 days commencing on the last date
the Grantee is entitled to exercise all options to the shares (to
the extent they are exercisable at such time).
10.3.3 "Back Purchase" - the purchase of shares by the Purchaser
during the Back Purchase Period.
10.4. In the event of termination of employment by the Company under
circumstances where a court of law determined that said circumstances
do not entitle the employee to severance pay ("Pitzuei Piturin") under
the law (hereinafter "Termination for Cause"), then said Grantee shall
not be entitled to exercise any Option Awards subsequent to the time
of delivery of the notice of discharge. In addition, the Purchaser
will be entitled to Back Purchase with no time limit any or all of the
shares resulting from the exercise of any Option Awards exercised
prior to the date of Back Purchase. The price paid for each share will
be as the Purchaser determines, but not less than the par value of the
share.
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10.5. In the event the employment is terminated either by the Company or
the Grantee for any reason other than Termination for Cause or for no
reason at all before the lapse of ten (10) years as of the date of the
grant, then the Purchaser will be entitled to Back Purchase within the
Back Purchase Period any or all of the shares held in trust by the
Trustee on behalf of the Grantee at that time. The purchase price per
share will be the higher of:
10.5.1 the Company value to the last outside investors; or
10.5.2 the relative portion of the profits according to the
Consolidated Profit and Loss Report relating to the fiscal year
preceding the date of purchase of shares according to this
section, after deducting all taxes applicable to the Company and
its subsidiaries, including future taxes which may apply to a
distribution of profits and/or dividends from a subsidiary to the
Company, at the pro-rata ratio of the transferred shares to the
total issued share capital of the Company at the time of
transfer, multiplied by 4.
10.5.3 Any consideration will be reduced by any amounts unpaid on the
par value and/or premium on the shares, including linkage
differences accrued as of the date of initial registration of the
shares.
10.5.4 Notwithstanding anything contained herein to the contrary, in
the event that the Board of Directors of the Company resolves to
sell all or a substantial part of the Company's assets
(hereinafter the "Sale") and such Sale involves a termination of
employment of the Grantee, then the Back Purchase Price will be
determined by the Board of Directors of the Company, taking into
consideration the terms of Sale.
10.6. In the event that Purchaser did not Back Purchase all the shares
within the Back Purchase Period, then the shares will continue to be
held by the Trustee on behalf of the Grantee until the sale of such
shares by the Grantee at the later of (i) the initial public offering
("IPO") of the shares of the Company or (ii) the lapse of twenty-four
(24) months as of the registration of options in the name of the
Trustee on behalf of the Grantee.
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Any shares Back Purchased under subsections 10.4 and/or 10.5 will be
released from the Trust upon the Back Purchase, subject to the
provisions of Section 102 of the Ordinance.
10.7. DEATH, DISABILITY, RETIREMENT:
Anything herein to the contrary notwithstanding:
10.7.1 If a Grantee shall die while in the employ or service of the
Company, his estate, to the extent that it has acquired by will
or by operation of law the rights of the deceased Grantee under
the Plan, shall be entitled for a period of three (3) months
following the date of death of such Grantee, to exercise such
rights of such Grantee not theretofore exercised, to the same
extent (but only to the extent), and on the same terms, as the
deceased Grantee could have done during or at the end of such
three-month period had he survived and had he continued his
employ with the Company.
10.7.2 If a Grantee is unable to continue to be employed by the
Company or to provide services to the Company, by reason of his
becoming incapacitated while in the employ or service of the
Company as a result of an accident or illness or other cause
which is approved by the Committee, such Grantee shall continue
to enjoy rights under the Plan on such terms and conditions as
the Committee in its discretion may determine.
10.7.3 If an employee Grantee should retire, he shall continue to
enjoy such rights, if any, under the Plan and on such terms and
conditions as the Committee in its discretion may determine. This
subsection 10.7.3 will have priority over Section 10.5.
10.7.4 In no event will any shares be released by the Trustee under
this Section 10.7 from the Trust prior to the IPO.
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10.8. The Company and any employee Grantee acknowledge that, in case
of cessation of employment within the period of 24 months from
the date of the grant of an Option Award, the benefits provided
in Section 102 of the Ordinance may not be available to the
Grantee, and the Company may be required to withhold tax on the
date of the issuing of shares according to the Option Awards, and
be subject to any other obligations under law regarding the
granting of such Option Awards.
11. ADJUSTMENTS:
Upon the happening of any of the following described events, a Grantee's
rights to purchase shares under the Plan shall be adjusted as hereinafter
provided:
11.1. In the event the Ordinary Shares of the Company shall be subdivided
or combined into a greater or smaller number of shares or if, upon a
merger, consolidation, reorganization, recapitalization or the like,
the Ordinary Shares of the Company shall be exchanged for other
securities of the Company or of another corporation, then, upon the
exercise of an Option Award, each Grantee shall be entitled, subject
to the conditions herein stated, to purchase such number of Ordinary
Shares or amount of other securities of the Company or such other
corporation as were exchangeable for the number of Ordinary Shares of
the Company which such Grantee 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.
11.2. In the event that the Company shall issue any of its Ordinary Shares
or other securities as bonus shares (stock dividend) upon or with
respect to any shares which shall at the time be subject to a right of
purchase by a Grantee hereunder, each Grantee, upon exercising such
right, shall be entitled to receive (for the purchase price payable
upon such exercise), the shares as to which he is exercising his said
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 cash in lieu of fractional
shares, as is equal to the amount of shares and the amount of cash in
lieu of fractional shares which he would have received had he been the
holder of the shares as to which he
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is exercising his said right at all times between the date of the
granting of such right and the date of its exercise.
11.3. Upon the happening of any of the foregoing events, the class and
aggregate number of Ordinary Shares issuable pursuant to the Plan, in
respect of which Option Awards have not yet been granted, shall also
be appropriately adjusted to reflect the events specified in Sections
11.1 and 11.2 above.
11.4. The Committee shall determine the specific adjustments to be made
under this Section 11, and its determination shall be conclusive.
12. ASSIGNABILITY AND SALE OF SHARES:
12.1. Except as provided for in Section 10.8 hereinabove, no Option Award
and no shares purchasable hereunder, whether fully paid or not, shall
be assignable, transferable or given as collateral or any right to
them given to any third party whatsoever, and during the lifetime of
the Grantee each and all of his rights to purchase shares hereunder
shall be exercisable only by him.
12.2. The Grantee will not be allowed to sell any shares purchased pursuant
to the exercise of Option Awards granted hereunder before the later
of: (a) the second anniversary of the date of grant of the Option
Awards or (b) the IPO. Notwithstanding the foregoing, unless otherwise
provided by the Board of Directors, this provision of Section 12.2(a)
shall not apply to non-employee directors and/or consultants.
13. TERM AND AMENDMENT OF THE PLAN:
13.1. The Plan was adopted by the Board of Directors of the Companyand
shall expire when the Board so resolves (except as to Option Awards
outstanding on that date).
13.2. Subject to applicable laws, the Board of Directors may, at any time
and from time to time, terminate or amend the Plan in any respect. In
no event will any action of the Company alter or impair the rights of
a
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Grantee, without his consent, under any Option Award previously
granted to him.
14. CONTINUANCE OF EMPLOYMENT:
Neither the Plan nor the Agreement shall impose any obligation on the
Company to continue to keep any Grantee in its employ or service, and
nothing in the Plan or in any Option Award granted pursuant thereto shall
confer upon any Grantee any right to continue in the employ of the Company,
or restrict the right of the Company to terminate such employment at any
time.
15. 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.
16. APPLICATION OF FUNDS:
The proceeds received by the Company from the sale of shares pursuant to
Option Awards granted under the Plan will be used for general corporate
purposes of the Company or any subsidiary thereof.
17. TAX CONSEQUENCES:
Any tax consequences arising from the grant or exercise of any Option
Award, from the payment for shares covered thereby or from any other event
or act (of the Company or the Grantee) hereunder, shall be borne solely by
the Grantee. Furthermore, the Grantee shall agree to indemnify the Company
and 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 Grantee.
