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EXHIBIT 99.10
HYNEX LTD.
(THE "COMPANY")
2000 KEY EMPLOYEE STOCK OPTION PLAN
1. ESTABLISHMENT AND PURPOSE
This document comprises the 2000 HyNEX Ltd. Key Employee Stock Option Plan (the
"Plan"). The Plan is intended to promote the interests of the Company and its
shareholders by providing officers and other employees of the Company (including
directors of the Company who are also employees of the Company) with appropriate
incentives and rewards to encourage them to enter into and continue in the
employ of the Company and to acquire a proprietary interest in the long-term
success of the Company. The Plan provides a means whereby eligible individuals
(as set forth in Section 5 below) may acquire ordinary shares of the Company,
par value NIS 0.01 each, pursuant to the exercise of options granted under the
Plan (the "Options").
2. DEFINITIONS
As used in the Plan, the following definitions shall apply to the terms
indicated below:
a. "Cause," when used in connection with the termination of a Participant's
employment by the Company, shall mean (i) the failure by the Participant
to perform his duties in a satisfactory manner (including the duty of
care and the fiduciary duty, as set forth in the Companies Ordinance)
and obligations to the Company (other than any such failure resulting
from Disability as hereinafter defined) or (ii) the engaging by the
Participant in misconduct which is injurious to the Company.
b. "Company" shall mean HyNEX Ltd., a company incorporated under the laws
of Israel, and any reference hereafter to the Company shall apply to its
appropriate authorized corporate organs.
c. "Company Stock" shall mean the ordinary shares of the Company, NIS 0.01
par value each.
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d. "Companies Ordinance" shall mean the Companies Ordinance [New Version],
1983, of the State of Israel as shall be in effect from time to time, or
such other law concerning stock companies which shall replace the
Companies Ordinance and govern the activities of the Company.
e. "Designated Beneficiary" of a Participant, shall mean the beneficiary
designated by such Participant or deemed as such Participant's
Designated Beneficiary pursuant to Section 21 hereof.
f. "Disability" shall mean any physical or mental condition that would
render the Participant unable to work according to the determination of
the Israel National Insurance Institute.
g. "Grant Date" shall mean the effective date of the grant of an Option by
the Company, subject to Section 9(a) below.
h. "Grant Instrument" shall have the meaning set forth in Section 6(b)
below.
i. "IPO" shall mean an initial public offering of all of part of the
Company Stock.
j. "Option" shall mean an option to purchase shares of the Company Stock
granted pursuant to this Plan.
k. "Option Exercise Price" shall have the meaning set forth in Section 7.a.
below.
l. "Option Exercise Period" shall mean with respect to a vested Option, the
period commencing on the second anniversary of the Grant Date, and
expiring on the 8th anniversary of the Grant Date.
m. "Participant" shall mean an employee of the Company to whom an Option is
granted pursuant to the Plan, and, upon the Participant's death, the
Participant's successors, heirs, executors and administrators, as the
case may be.
n. "Plan" shall mean this HyNEX Ltd. 2000 Key Employee Stock Option Plan,
as amended from time to time.
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o. "Trustee" shall have the meaning set forth in Section 9 hereof.
p. "Vesting Date" shall have the meaning set forth in Section 7 hereof.
3. SHARES SUBJECT TO THE PLAN
a. Shares Available for Options
The maximum number of shares of Company Stock reserved for issuance
under the Plan shall be 1,841,131 ordinary shares (subject to adjustment
as provided herein). Subject to Section 4 below, if an Option is
surrendered (except surrender for exercise into shares of Company Stock)
or for any other reason ceases to be exercisable in whole or in part,
the shares of Company Stock which were subject to such Option but as to
which the Option had not been exercised shall continue to be available
under the Plan for allocation by the Company to existing or future
Participants.
b. Adjustment for Change in Capitalization
Upon the occurrence of any Company Stock split, issue of bonus shares,
reverse Company Stock split, recapitalization or rights offering or
other substantially similar corporate transaction or event, the Company
shall make any and all equitable changes or adjustments necessary and
appropriate in order to prevent dilution or enlargement of the rights of
Participants under the Plan, to any or all of (i) the number and kind of
shares of Company Stock issued or issuable in respect of outstanding
Options, and (ii) the exercise price relating to any Option.
4. ADMINISTRATION OF THE PLAN; AMENDMENT OR TERMINATION OF THE PLAN
a. The Plan shall be administered by the Board of Directors of the Company
(the "Board"), or any committee appointed by the Board for that purpose
(the "Committee"). The Company shall have the authority in its sole
discretion, subject and not inconsistent with the express provisions of
the Plan, to administer the Plan and to exercise all the powers and
authorities either specifically granted to it under the Plan as
necessary and advisable in the administration of the Plan, including,
without limitation, to determine the number
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of shares of Company Stock to which an Option may relate and the terms,
conditions and restrictions thereof; to determine whether, to what
extent, and under what circumstances, an Option may be settled,
canceled, forfeited, exchanged or surrendered; to construe and interpret
the Plan and any Option; to prescribe, amend and rescind rules and
regulations relating to the Plan; to determine which eligible employees
(as set forth in Section 5 below) shall be granted Options under the
Plan; to determine the terms and provisions of any Grant Instrument; and
to make all other determinations deemed necessary or advisable for the
administration of the Plan.
b. The Company may, in its sole and absolute discretion, without amendment
to the Plan, accelerate the date on which any Option granted under the
Plan becomes exercisable, waive or amend the operation of the Plan
provisions respecting exercise after termination of employment, or
otherwise adjust any of the terms of such Option.
c. The Company may, at any time in its sole and absolute discretion,
suspend or terminate the Plan or revise or amend it in any respect
whatsoever; provided, however, that no amendment, construction,
interpretation or other determination by the Company under the Plan, or
any other action or inaction by the Company of any kind whatsoever,
shall adversely affect a Participant's right under any outstanding
Option without the consent of such Participant.
d. All decisions, determinations, and interpretations of the Company shall
be conclusive and binding on all Participants. No members of the Board
or of the Committee shall be liable for any act or omission in
connection with the administration of the Plan, unless such act or
omission resulted from a member's willful misconduct.
e. Notwithstanding anything to the contrary in this Section, any amendment
of the Plan will be subject to the approvals of the Company's corporate
organs required under any applicable law.
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5. ELIGIBILITY
Individuals who shall be eligible to have granted to them, or on their behalf,
subject to Section 4(b) above, the Options provided for by the Plan shall be
such employees (including members of the Board who are employees) of the Company
whose employment with the Company commenced prior to April 1, 1999, as the
Company, in its discretion, shall designate from time to time. All grants of
Options to Office Holders -- as such term is defined in the Companies Ordinance
-- of the Company shall be authorized and implemented only in accordance with
the provisions of the Companies Ordinance, as in effect from time to time.
6. OPTIONS UNDER THE PLAN; GRANT INSTRUMENT
a. The Options hereunder shall be granted to eligible employees of the
Company as determined by the Company. The Grant Date of an Option shall
be the date specified by the Committee in its determination relating to
the award of such Option, subject to Section 9(a) below.
b. Each Option granted under the Plan shall be evidenced by a written
instrument signed by the Company and accepted by the Participant which
shall contain such provisions as the Company, in its sole discretion,
may deem necessary or desirable (the "Grant Instrument"). By accepting
an Option, a Participant shall thereby agree that the Option shall be
subject to all the terms and provisions of this Plan and the applicable
Grant Instrument.
7. OPTIONS
a. Exercise Price
Each Grant Instrument with respect to an Option shall set forth the
amount which will be paid by the Participant to the Company for each
share of Company Stock upon exercise of the Option (the "Option Exercise
Price"). The Option Exercise Price shall be as determined by the Company
in its sole and absolute discretion in accordance with applicable law,
but no less than the par value of the shares of Company Stock.
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b. Term and Exercise of Option
1. The Grant Instrument with respect to an Option shall set forth the dates
upon which the Option will vest (the "Vesting Dates"), which may be one
of the following two alternatives, as determined by the Company in its
sole and absolute discretion:
(i) One-half of such Options will vest eighteen months following the
Grant Date; one-quarter will vest on thirty months following the
Grant Date; and the remaining Options will vest forty-two months
following the Grant Date.
(ii) One-half of such Options will vest on the second anniversary of
the Grant Date; one-quarter will vest on the third anniversary
of the Grant Date; and the remaining Options will vest on the
fourth anniversary of the Grant Date.
Each Option shall expire on the termination of the Option Exercise Period.
2. Subject to the vesting provision of Section 7.b.1. above, each Option
may be exercised at any time during the Option Exercise Period. An
Option may be exercised for all or any portion of the shares of Company
Stock in relation to which it is exercisable at the time of such
exercise. The partial exercise of an Option shall not cause the
expiration, termination or cancellation of the remaining unexercised
portion thereof.
3. An Option shall be exercised through the Trustee, as provided in Section
9 below, by delivering notice to the Company's principal office, to the
attention of its Company Secretary, no less than one business day in
advance of the date of the proposed exercise. Such notice shall be
accompanied by the applicable Grant Instrument, shall specify the number
of shares of Company Stock with respect to which the Option is being
exercised and the date of the proposed exercise, and shall be signed by
the Participant or other person then having the right to exercise
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the Option. Payment for shares of Company Stock purchased upon
the exercise of an Option shall be made on the date of such
exercise by either or both of the following means: (i) cash, by
certified cheque, bank cashier's cheque or wire transfer; or
(ii) subject to the approval of the Company, by such other
provision as the Company may from time to time authorize.
4. Subject to any other applicable provisions of this Plan,
certificates for shares of Company Stock purchased upon the
exercise of an Option shall be issued in the name of the
Participant or other person entitled to receive such shares, and
delivered to the Participant or such other person as soon as
practicable following the date on which the Option is exercised.
c. Issuance of Shares
Issuance of shares of Company Stock upon the exercise of an Option shall
be subject to the Participant signing a power-of-attorney appointing the
directors of the Company, or any one of the directors of the Company as
may be determined from time to time by the Company's board of directors,
to act as the Participant's representative and proxy in connection with
his shareholdings in the Company, in the form attached to the Grant
Instrument.
8. TERMINATION OF EMPLOYMENT
a. In the event that the employment of a Participant with the Company shall
be terminated by such Participant voluntarily for any reason other than
Disability: (i) Options granted to such Participant, to the extent
vested at the time of such termination of employment, shall remain
exercisable for a period of 90 days following the date of such
termination of employment and shall expire at the close of business on
the 90th day after the date of such termination of employment, and (ii)
Options granted to such Participant, to the extent that they were not
vested at the time of such termination of employment, shall expire at
the close of business on the date of such termination of employment.
Notwithstanding the foregoing, no Option shall be exercisable after the
expiration of its term.
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b. In the event that the employment of a Participant with the Company shall
terminate for any reason other than Cause, Disability or death or in the
circumstances provided in paragraph 1 above: (i) Options granted to such
Participant, to the extent vested at the time of such termination of
employment, shall remain exercisable for the remainder of the original
eight-year term of the Option, and (ii) Options granted to such
Participant, to the extent that they were not vested at the time of such
termination of employment, shall expire at the close of business on the
date of such termination of employment; provided, however, that should
such termination of employment occur in anticipation of a Change in
Control or within two years of the occurrence of a Change in Control,
then the Options granted to such Participant, to the extent that they
were not vested at the time of such termination of employment, shall
vest on their Vesting Dates as if the Participant had continued in
employment. Notwithstanding the foregoing, no Option shall be
exercisable after the expiration of its term.
c. In the event that the employment of a Participant with the Company shall
terminate by reason of the Disability or death of the Participant: (i)
Options granted to such Participant, to the extent vested at the time of
such termination, shall remain exercisable for the remainder of the
original eight-year term of the Option, and (ii) Options granted to such
Participant, to the extent that they were not vested at the time of such
termination of employment, shall expire at the close of business on the
date of such termination; provided, however, that a pro rata portion of
the Options that would have vested on the next Vesting Date (but for
such termination of employment) shall vest and become exercisable on the
date of such termination of employment and shall be treated as all other
Options exercisable on such date (as set forth in clause (i) above).
Such pro rata portion shall be determined by multiplying the number of
Options scheduled to vest on the next Vesting Date by a fraction, the
numerator of which is the number of full and partial months which the
Participant has been employed with the Company since the most recent
Vesting Date (or, if less than two years has elapsed since the Grant
Date, since the Grant Date), and the denominator of which is twelve (or,
if less than two years has elapsed since the Grant Date, twenty-four).
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d. In the event that the employment of a Participant with the Company shall
be terminated for Cause: (i) all outstanding Options granted to such
Participant which are then vested shall expire at the close of business
on the third business day after the date on which the notice of
termination of employment was given to such Participant, and (ii) all
outstanding Options granted to such Participant, to the extent that they
were not vested at the time of the giving of such notice of termination
of employment, shall expire on the close of business on the date of such
termination of employment. The determination by the Company that a
termination of employment is for Cause shall be final and conclusive for
all purposes of this Plan.
9. TRUST ARRANGEMENTS
a. The Company shall appoint a trustee (the "Trustee"), who will hold the
outstanding Options in trust on behalf of each Participant, and will
exercise them (or a portion thereof) in accordance with written
instructions given to it by the Participant, subject to the provisions
of Section 102 of the Income Tax Ordinance. Notwithstanding anything
herein to the contrary, the Grant Date of Options shall not be earlier
than the date at which the Trustee was approved by the Israeli
Commissioner of Income Tax.
b. The Trustee will also receive and hold shares issued to him in trust for
a Participant, in accordance with the Option. He will transfer the
Options or any shares received and held by him to the Participant as
aforesaid upon receipt of a written request to do so by the Participant,
subject to the provisions of Section 102 of the Income Tax Ordinance.
c. The Trustee will act in every way necessary to comply with the
provisions of Section 102 of the Income Tax Ordinance and any
regulations promulgated in accordance with it.
10. RIGHTS AS A SHAREHOLDER
No person shall have any rights as a shareholder with respect to any shares of
Company Stock covered by or relating to any Option until the date of issuance of
a stock certificate with respect to such shares.
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11. NO SPECIAL EMPLOYMENT RIGHTS; NO RIGHT TO OPTION
Nothing contained in the Plan or any Grant Instrument shall confer upon any
Participant any right with respect to the continuation of employment by the
Company or interfere in any way with the right of the Company, subject to the
terms of any separate employment agreement to the contrary, at any time to
terminate such employment or to increase or decrease the compensation of the
Participant. No person shall have any claim or right to receive an Option
hereunder except in accordance with the express terms of a Grant Instrument
issued to such person.
12. TAX MATTERS
a. The Plan shall be governed by Section 102 of the Income Tax Ordinance,
1961, and shall conform with and be interpreted so as to comply with the
requirements of such Section.
b. All tax consequences under any applicable law which may arise from the
grant of an Option, from the exercise thereof, from the sale of the
Company Stock by the Participant or form any other act of the Company or
such Participant in connection with any of the foregoing shall be borne
solely by such Participant, and such Participant shall indemnify the
Company, and hold it harmless, against and from any liability for any
such tax or any penalty, interest or indexation thereon or thereof.
13. WITHHOLDING TAXES
Whenever cash is to be paid pursuant to an Option, the Company shall have the
right to deduct therefrom an amount sufficient to satisfy any applicable
withholding tax requirements related thereto. Whenever shares of Company Stock
are to be delivered pursuant to an Option, the Company shall have the right to
require the Participant to remit to the Company in cash an amount sufficient to
satisfy any applicable withholding tax requirements related thereto.
14. TRANSFERS UPON DEATH; NON-ASSIGNABILITY
a. Neither any Option granted pursuant to this Plan, nor any interest
therein, may be transferred in any manner or assigned by the Participant
other than upon the Participant's death or legal incapacity to a
Designated Beneficiary.
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b. Upon the death of a Participant, outstanding Options granted to such
Participant may be exercised only by (i) the Designated Beneficiary
designated by such Participant pursuant to Section 21 hereof, or (ii) if
such Participant did not designate a beneficiary, to the person deemed
as such Participant's Designated Beneficiary pursuant to Section 21
hereof or to a person who shall have acquired the right to such exercise
by will or by the laws of descent and distribution. No transfer of an
Option by will or by the laws of descent and distribution shall be
effective to bind the Company unless the Company shall have been
furnished with (a) written notice thereof and with a copy, certified by
a notary, of the relevant provision of the will relating to the bequest
of the Option and/or such other evidence as the Company may deem
necessary to establish the validity of the transfer, and (b) an
agreement by the transferee to pay the Option Exercise Price upon
exercise of the Option, if any, and otherwise follow the exercise
procedures set forth herein and in the relevant Grant Instrument.
15. EXPENSES AND RECEIPTS
The expenses of the Plan shall be paid by the Company. Any proceeds received by
the Company in connection with the exercise of any Option will be used for
general corporate purposes.
16. FAILURE TO COMPLY
In addition to the remedies of the Company elsewhere provided for herein,
failure by a Participant (or a Designated Beneficiary) to comply with any of the
terms and conditions of the Plan or the applicable Grant Instrument, unless such
failure is remedied by such a Participant (or Designated Beneficiary) within ten
days after notice of such failure by the Company shall be grounds for the
cancellation and forfeiture of such Option, in whole or in part, as the Company,
in its absolute discretion, may determine.
17. EFFECTIVE DATE, REQUIRED APPROVALS
The Plan becomes effective when the Company shall have obtained all the
necessary approvals required under applicable law.
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18. APPLICABLE LAW
The Plan will be governed by, and construed and administered in accordance with
the laws of the State of Israel.
19. TREATMENT OF PARTICIPANTS
There is no obligation for uniformity of treatment of Participants.
20. NO FRACTIONAL SHARES
No fractional shares of the Company Stock shall be issued or delivered pursuant
to the Plan. The Company shall determine whether cash, other Option or other
property shall be paid, issued or transferred in lieu of such fractional shares,
or whether such fractional shares or any rights thereto shall be forfeited or
otherwise eliminated.
21. DESIGNATION OF A BENEFICIARY
A Participant may file with the Company a written designation of a beneficiary
on such form as may be prescribed by the Company and may, from time to time,
amend or revoke such designation. If no Designated Beneficiary survives the
Participant, the executor or administrator of the Participant's estate shall be
deemed to be the Participant's Designated Beneficiary.
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