exv4w3



 








Exhibit 4.3




TOPIO, INC.




2004 ISRAELI SHARE OPTION PLAN




A. NAME AND PURPOSE



1. Name: This plan, as amended from time to time, shall be known as the “Topio, Inc. 2004 Israeli
Share Option Plan” (the “Plan”).



2. Purpose: The purpose and intent of the Plan is to provide incentives to Israeli employees,
directors, consultants and/or contractors of Topio, Inc., a company organized under the laws of the
State of Delaware, or any subsidiary or affiliate thereof (collectively, the “Company”), by
providing them with opportunities to purchase shares of Common Stock, par value of $0.001 each
(“Shares”) of the Company, pursuant to a plan approved by the Board of Directors of the Company
(the “Board”) which is designed to benefit from, and is made pursuant to, the provisions of either
Section 102 or Section 3(9) of the Israeli Income Tax Ordinance [New Version] 1961 (the
“Ordinance”), as applicable, and the rules and regulations promulgated thereunder.




B. GENERAL TERMS AND CONDITIONS OF THE PLAN



3. Administration:




     3.1 The Plan will be administered by the Board or by a committee appointed by the Board (the
“Committee”), which, if appointed, will consist of such number of directors of the Company as may
be fixed, from time to time, by the Board. If a Committee is not appointed, the term Committee,
whenever used herein, shall mean the Board. The Board shall appoint the members of the Committee,
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 taken by a majority of the members of the
Committee, at a meeting at which a majority of its members is 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 and applicable law, the Committee
shall have the full authority in its discretion, from time to time and at any time to determine (i)
the persons (“Grantees”) to whom options to purchase Shares (the “Options”) shall be granted, (ii)
the number of Shares subject to each Option, (iii) the time or times at which the



 









 







same shall be
granted, (iv) the schedule and conditions on which such Options 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.



     3.4 Subject to the general terms and conditions of the Plan and the Ordinance, the Committee
shall have the full authority in its discretion, from time to time and at any time, to determine:



          (a) with respect to the grant of 102 Options (as defined in Section 5.1(a)(i) below) — whether
the Company shall elect the “Ordinary Income Route” under Section 102(b)(1) of the Ordinance (the
“Ordinary Income Route”) or the “Capital Gains Route” under Section 102(b)(2) of the Ordinance (the
“Capital Gains Route”) (each of the Ordinary Income Route or the Capital Gains Route — a “Taxation
Route”) for the grant of 102 Options, and the identity of the trustee who shall be granted such 102
Options in accordance with the provisions of this Plan and the then prevailing Taxation Route.




          In the event the Committee determines that the Company shall elect one of the Taxation Routes
for the grant of 102 Options, the Company shall be entitled to change such election only following
the lapse of one year from the end of the tax year in which 102 Options are first granted under the
then prevailing Taxation Route; and




          (b) with respect to the grant of 3(9) Options (as defined in Section 5.1(a)(ii) below) -
whether or not 3(9) Options shall be granted to a trustee in accordance with the terms and
conditions of this Plan, and the identity of the trustee who shall be granted such 3(9) Options in
accordance with the provisions of this Plan.




     3.5 Notwithstanding the aforesaid, the Committee may, from time to time and at any time, grant
102 Options that will not subject to a Taxation Route, as detailed in Section 102(c) of the
Ordinance (“102(c) Options”).



     3.6 The Committee may, from time to time, adopt such rules and regulations for carrying out
the Plan as it may deem necessary. No member of the Board or of the Committee shall be liable for
any act or determination made in good faith with respect to the Plan or any Option granted
thereunder.



     3.7 The interpretation and construction by the Committee of any provision of the Plan or of
any Option thereunder shall be final and conclusive and binding on all parties who have an interest
in the Plan or any Option or Share issuance thereunder unless otherwise determined by the Board.



 









 




4. Eligible Grantees:




     4.1 The Committee, at its discretion, may grant Options to any Israeli employee, director,
consultant and/or contractor of the Company. Anything in this Plan to the contrary notwithstanding,
all grants of Options shall be authorized and implemented only in accordance with the provisions of
applicable law.



     4.2 The grant of an Option 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 incentive plan of the Company.


5. Grant of Options, Issuance of Shares, Dividends and Shareholder Rights:




     5.1 Grant of Options and Issuance of Shares.



          (a) Subject to the provisions of the Ordinance and applicable law,




               (i) all grants of Options to Israeli employees, directors and office holders of the Company,
other than to a Controlling Shareholder of the Company (as such term is defined in the Ordinance),
shall be made only pursuant to the provisions of Section 102 of the Ordinance, the Income Tax Rules
(Tax Relief in Issuance of Shares to Employees), 2003 (“102 Rules”) and any other regulations,
rulings, procedures or clarifications promulgated thereunder (“102 Options”), or any other section
of the Income Tax Ordinance that will be relevant for such issuance in the future; and



               (ii) all grants of Options to consultants, contractors or Controlling Shareholders of the
Company shall be made only pursuant to the provisions of Section 3(9) of the Ordinance and the
rules and regulations promulgated thereunder (“3(9) Options”), or any other section of the
Ordinance that will be relevant for such issuance in the future.



          (b) Subject to Sections 7.1 and 7.2 hereof, the effective date of the grant of an Option (the
“Date of Grant”) shall be the date the Committee resolves to grant such Option, unless specified
otherwise by the Committee in its determination relating to the award of such Option. The
Committee shall promptly give the Grantee written notice (the “Notice of Grant”) of the grant of an
Option.




          (c) Trust. In the event Options are deposited with a trustee designated by the
Committee in accordance with the provisions of Section 3.4 hereof and, with respect to 102 Options,
approved by the Israeli Commissioner of Income Tax (the “Trustee”), the Trustee shall hold each
such Option and the Shares issued upon exercise thereof in trust (the “Trust”) for the benefit of
the Grantee in respect of whom such Option was granted (the “Beneficial Grantee”).




               In accordance with Section 102, the tax benefits afforded to 102 Options (and any Shares
received upon exercise thereof) in accordance with the Ordinary Income Route or Capital Gains
Route, as applicable, shall be contingent upon the Trustee holding such 102



 









 







Options
for the requisite period of time under the applicable Taxation Route of Section 102 or such other
period as shall prescribed by the Ordinance or approved by the Israeli tax authorities
(collectively, the “Trust Period”).



               With respect to 102 Options granted to the Trustee, the following shall apply:



               (i) A Grantee granted 102 Options shall not be entitled to sell the Shares received upon
exercise thereof (the “Exercised Shares”) or to transfer such Exercised Shares (or such 102
Options) from the Trust prior to the lapse of the Trust Period; and



               (ii) Any and all rights issued in respect of the Exercised Shares, including bonus shares but
excluding cash dividends (“Rights"(, shall be issued to the Trustee and held thereby until the
lapse of the Trust Period, and such Rights shall be subject to the Taxation Route which is
applicable to such Exercised Shares.



               Notwithstanding the aforesaid, Exercised Shares or Rights may be sold or transferred, and the
Trustee may release such Exercised Shares (or 102 Options) or Rights from Trust, prior to the lapse
of the Trust Period, provided however, that tax is paid or withheld in accordance with Section
102(b)(4) of the Ordinance and/or Section 7 of the 102 Rules.



               All certificates representing Shares issued to the Trustee under the Plan shall be deposited
with the Trustee, and shall be held by the Trustee until such time that such Shares are released
from the Trust as herein provided.



          (d) Subject to Section 10 hereof and additional requirements of any applicable law, no 102
Options or Shares issued in respect thereof shall be released from the Trust and no Beneficial
Grantee shall be entitled to exercise such 102 Options until seven (7) years from the Date of Grant
(such date being hereinafter referred to as the “Release Date”), provided, however,
that upon the earlier of the closing of (i) an initial underwritten public offering of Shares (an
“IPO”), or (ii) a Corporate Transaction (as defined in Section 11.1 herein), the Release Date shall
be the date of such closing, and provided further that the Options shall have vested pursuant to
Section 7.3 hereof.




          (e) Subject to the terms hereof, at any time after the Release Date, with respect to any 102
Options or Shares the following shall apply:




               (i) Upon the written request of any Beneficial Grantee, the Trustee shall release from the
Trust the Options granted, and/or the Shares issued, on behalf of such Beneficial Grantee, by
executing and delivering to the Company such instrument(s) as the Company may require, giving due
notice of such release to such Beneficial Grantee, provided, however, that the
Trustee shall not so release any such Options and/or Shares to such Beneficial



 









 







Grantee unless
the latter, prior to, or concurrently with, such release, provides the Trustee with evidence,
satisfactory in form and substance to the Trustee, that all taxes, if any, required to be paid upon
such release have, in fact, been paid.



               (ii) Alternatively, provided the Shares are listed on a stock exchange or admitted to trading
on an electronic securities trading system (such as the Nasdaq Stock Market), upon the written
instructions of the Beneficial Grantee to sell any Shares issued upon exercise of Options, the
Trustee shall use its reasonable efforts to effect such sale and shall transfer such Shares to the
purchaser thereof concurrently with the receipt, or after having made suitable arrangements to
secure the payment of the proceeds of the purchase price in such transaction. The Trustee shall
withhold from such proceeds any and all taxes required to be paid in respect of such sale, shall
remit the amount so withheld to the appropriate tax authorities and shall pay the balance thereof
directly to the Beneficial Grantee, reporting to such Beneficial Grantee and to the Company the
amount so withheld and paid to said tax authorities.



     5.2 Guarantee. In the event a 102(c) Option is granted to a Grantee who is an employee
at the time of such grant, if the Grantee’s employment is terminated, for any reason, such Grantee
shall provide the Company with a guarantee or collateral securing the payment of all taxes required
to be paid upon the sale of the Exercised Shares received upon exercise of such 102(c) Option.



     5.3 Dividend. All Shares issued upon the exercise of Options granted under the Plan
shall entitle the Grantee thereof to receive dividends with respect thereto. For so long as Shares
deposited with the Trustee on behalf of a Beneficial Grantee are held in the Trust, the dividends
paid or distributed with respect thereto shall be remitted to the Trustee for the benefit of such
Beneficial Grantee or distributed directly to such Beneficial Grantee, as shall be solely
determined by the Committee.



     5.4 Voting Rights; Shareholder Rights. As a condition precedent to the exercise of
any Options granted and the issuance of any Shares in respect thereof, the Grantee shall execute
and deliver a voting proxy and power of attorney in a form that is appropriate under Delaware (the
“Proxy”) law and that appoints a person or entity designated by the Company. Shares subject to the
Proxy will be voted in the same proportion as the result of the stockholders vote in respect of
which such shares are being cast. Such proxy shall terminate and be of no further force and effect
upon consummation of the IPO.



               Notwithstanding the aforesaid and as long as Shares are held by the Trustee, the voting rights
at the Company’s general meetings (including written resolutions) attached to such Shares will
remain with the Trustee. However, the Trustee shall not exercise such voting rights.



 









 





               The holder of an Option shall have no stockholder rights with respect to the Shares subject to
such Option until such person shall have exercised the Option, paid the exercise price and become
the recordholder of the purchased Shares.


6. Reserved Shares: The total number of Shares that may be subject to Options granted under this
Plan and the Company’s 2001 Share Option Plan (the “Plans”) shall not exceed 5,600,000 in the
aggregate, subject to adjustments as provided in Section 11 hereof and increase as provided in
Section 13 hereof. All Shares under the Plans, in respect of which the right of a Grantee to
purchase the same shall, for any reason, terminate, expire or otherwise cease to exist, shall again
be available for grant through Options under the Plan.



7. Grant of Options:




     7.1 The implementation of the Plan and the granting of any Option under the Plan shall be
subject to the Company’s procurement of all approvals and permits required by applicable law or
regulatory authorities having jurisdiction over the Plan, the Options granted under it and the
Shares issued pursuant to it.



     7.2 The Notice of Grant shall state, inter alia, the number of Shares subject to each Option,
the vesting schedule, the dates when the Options may be exercised, the exercise price, whether the
Options granted thereby are 102 Options or 3(9) Options, and such other terms and conditions as the
Committee at its discretion may prescribe, provided that they are consistent with this Plan. Each
Notice of Grant evidencing a 102 Option shall, in addition, be subject to the provisions of the
provisions of the Ordinance applicable to such options.



     7.3 Vesting. Without derogating from the rights and powers of the Committee under
Section 7.2 hereof, unless otherwise specified by the Committee, the Options shall be for a term of
ten (10) years, and, unless determined otherwise by the Committee, the Vesting Period pursuant to
which such Options shall vest, and the Grantee thereof shall be entitled to pay for and acquire the
Shares, shall be such that all Options shall be fully vested on the first business day following
the passing of four (4) years from the Date of Grant, as follows: 25% of the Options shall vest on
the first anniversary of the Adoption Date (the “Adoption Date” for the purpose of this Plan means
the Date of Grant or any other date determined by the Committee for a given grant of Options), and
2.08333% of such Options shall vest on each of each one-month period thereafter.



          “Vesting Period” of an Option means, for the purpose of the Plan and its related instruments,
the period between the Adoption Date and the date on which the holder of an Option may exercise the
rights awarded pursuant to the terms of the Option. Any term in which the Grantee shall not be
employed by the Company, or in which the Grantee shall have taken an unpaid leave of absence, shall
not be included in the Vesting Period.




 









 








     7.4 Acceleration of Vesting. Anything herein to the contrary in this Plan
notwithstanding, the Committee shall have full authority to determine any provisions regarding the
acceleration of the Vesting Period of any Option or the cancellation of all or any portion of any
outstanding restrictions with respect to any Option or Share upon certain events or occurrences,
and to include such provisions in the Notice of Grant on such terms and conditions as the Committee
shall deem appropriate.



     7.5 Repricing. Subject to applicable law, the Committee shall have full authority to,
at any time and from time to time, (i) grant in its discretion to the holder of an outstanding
Option, in exchange for the surrender and cancellation of such Option, a new Option having
an exercise price lower than provided in the Option so surrendered and
canceled and containing such other terms and conditions as the Committee may prescribe in
accordance with the provisions of the Plan, or ( ii) effectuate a decrease in the Exercise
Price (see Section 8 below) of outstanding Options .


8. Exercise Price: The exercise price per Share subject to each Option shall be determined by
the Committee in its sole and absolute discretion, subject to applicable law and to guidelines
adopted by the Board from time to time.



9. Exercise of Options:




     9.1 Options shall be exercisable pursuant to the terms under which they were awarded and
subject to the terms and conditions of the Plan.



     9.2 The exercise of an Option shall be made by a written notice of exercise (the “Notice of
Exercise”) delivered by the Grantee (or, with respect to Options held in the Trust, by the Trustee
upon receipt of written instructions from the Beneficial Grantee) to the Company at its principal
executive office, specifying the number of Shares to be purchased and accompanied by the payment
therefor, and containing such other terms and conditions as the Committee shall prescribe from time
to time.



     9.3 Anything herein to the contrary notwithstanding, but without derogating from the
provisions of Section 10 hereof, if any Option has not been exercised and the Shares subject
thereto not paid for within ten (10) years after the Date of Grant (or any shorter period set forth
in the Notice of Grant), such Option 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 therewith any Options are still held in the Trust as aforesaid, the Trust with
respect thereto shall ipso facto expire, and the Shares subject to such Options shall again be
available for grant through Options under the Plan, as provided for in Section 6 herein.



     9.4 Each payment for Shares shall be in respect of a whole number of Shares, and shall be
effected in cash or by a bank’s check payable to the order of the Company, or such other method of
payment acceptable to the Company.



 









 




10. Termination of Employment:




     10.1 Employees. In the event that a Grantee who was an employee of the Company on the
Date of Grant of any Options to him or her ceases, for any reason, to be employed by the Company
(the “Cessation of Employment”), all Options theretofore granted to such Grantee when such Grantee
was an employee of the Company shall terminate as follows:



          (a) The date of the Grantee’s Cessation of Employment shall be the date on which the
employee-employer relationship between the Grantee and the Company ceases to exist (the “Date of
Cessation”).




          (b) All such Options that are not vested at the Date of Cessation shall terminate immediately.




          (c) If the Grantee’s Cessation of Employment is by reason of such Grantee’s death or
“Disability” (as hereinafter defined), such Options (to the extent vested at the Date of Cessation)
shall be exercisable by the Grantee or the Grantee’s guardian, legal representative, estate or
other person to whom the Grantee’s rights are transferred by will or by laws of descent or
distribution, at any time until the lapse of 180 days from the Date of Cessation (but in no event
after the expiration date of such Options), and shall thereafter terminate.




               For purposes hereof, “Disability” shall mean the inability to engage in any substantial
gainful occupation for which the Grantee is suited by education, training or experience, by reason
of any medically determinable physical or mental impairment that is expected to result in such
person’s death or to continue for a period of six (6) consecutive months or more.



          (d) If the Grantee’s Cessation of Employment is due to any reason other than those stated in
Sections 10.1(c), 10.1(e) and 10.1(f) herein, such Options (to the extent vested at the Date of
Cessation) shall be exercisable at any time until the lapse of 90 days from the Date of Cessatio
(but in no event after the expiration date of such Options), and shall thereafter terminate;
provided, however, that if the Grantee dies within such period, such Options (to
the extent vested at the Date of Cessation) shall be exercisable by the Grantee’s legal
representative, estate or other person to whom the Grantee’s rights are transferred by will or by
laws of descent or distribution at any time until the lapse of 180 days from the Date of Cessation
(but in no event after the expiration date of such Options), and shall thereafter terminate.




          (e) Notwithstanding the aforesaid, if the Grantee’s Cessation of Employment is due to (i)
breach of the Grantee’s duty of loyalty towards the Company, or (ii) breach of the Grantee’s duty
of care towards the Company, or (iii) the commission any flagrant criminal offense by the Grantee,
or (iv) the commission of any act of fraud, embezzlement or dishonesty towards the Company by the
Grantee, or (v) any unauthorized use or disclosure by the Grantee of confidential information or
trade secrets of the Company,




 









 







or (vi) any other intentional misconduct by the Grantee (by act or
omission) adversely
affecting the business or affairs of the Company in a material manner, or (vii) any act or omission
by the Grantee which would allow for the termination of the Grantee’s employment without severance
pay, according to the Severance Pay Law, 1963, all the Options whether vested or not shall ipso
facto expire immediately and be of no legal effect.




          (f) If a Grantee retires, he shall, subject to the approval of the Committee, continue to
enjoy such rights, if any, under the Plan and on such terms and conditions, with such limitations
and subject to such requirements as the Committee in its discretion may determine.




          (g) Whether the Cessation of Employment of a particular Grantee is by reason of “Disability”
for the purposes of paragraph 10.1(c) hereof or by virtue of “retirement” for purposes of paragraph
10.1(f) hereof, or is a termination of employment other than by reason of such Disability or
retirement, or is for reasons as set forth in paragraph 10.1(e) hereof, shall be finally and
conclusively determined by the Committee in its absolute discretion.




          (h) Notwithstanding the aforesaid, under no circumstances shall any Option be exercisable
after the specified expiration of the term of such Option.




     10.2 Directors, Consultants and Contractors. In the event that a Grantee, who is a
director, consultant or contractor of the Company, ceases, for any reason, to serve as such, the
provisions of Sections 10.1(b), 10.1(c), 10.1(d), 10.1(e), 10.1(g) and 10.2(h) above shall apply,
mutatis mutandis. For the purposes of this Section 10.2, “Date of Cessation” shall mean:



          (a) with respect to directors — the date on which a director submits notice of resignation
from the Board or the date on which the shareholders of the Company remove such director from the
Board; and




          (b) with respect to consultants and contractors — the date on which the consulting or
contractor agreement between such consultant or contractor, as applicable, and the Company expires
or the date on which either of the parties to such agreement sends the other notice of its
intention to terminate said agreement.




     10.3 Notwithstanding the foregoing provisions of this Section 10, the Committee shall have the
discretion, exercisable either at the time an Option is granted or thereafter, to:



          (a) extend the period of time for which the Option is to remain exercisable following the Date
of Cessation to such greater period of time as the Committee shall deem appropriate, but in no
event beyond the specified expiration of the term of the Option;




 









 








          (b) permit the Option to be exercised, during the applicable exercise period following the
Date of Cessation, not only with respect to the number of Shares for which such Option is
exercisable at the Date of Cessation but also with respect to one or more additional
installments in which the Grantee would have vested under the Option had the Grantee continued in
the employ or service of the Company.



11. Adjustments, Liquidation and Corporate Transaction:




     11.1 Definitions:



          “Corporate Transaction” means the occurrence, in a single transaction or in a series of
related transactions, of any one or more of the following events:




          (i) a sale or other disposition of all or substantially all, as determined by the Board in its
discretion, of the consolidated assets of the Company and its subsidiaries;




          (ii) a sale or other disposition of at least eighty percent (80%) of the outstanding
securities of the Company;




          (iii) a merger, consolidation or similar transaction following which the Company is not the
surviving corporation; or




          (iv) a merger, consolidation or similar transaction following which the Company is the
surviving corporation but the Ordinary Shares of the Company outstanding immediately preceding the
merger, consolidation or similar transaction are converted or exchanged by virtue of the merger,
consolidation or similar transaction into other property, whether in the form of securities, cash
or otherwise.




     11.2 Adjustments. Subject to any required action by the shareholders of the Company,
the number of Shares subject to each outstanding Option, and the number of Shares which have been
authorized for issuance under the Plan but as to which no Options have yet been granted or which
have been returned to the Plan upon cancellation or expiration of an Option, as well as the price
per share of Shares subject to each such outstanding Option, shall be proportionately adjusted for
any increase or decrease in the number of issued Shares resulting from a stock split, reverse stock
split, stock dividend, combination or reclassification of the Shares or the payment of a stock
dividend (bonus shares) with respect to the Shares or any other increase or decrease in the number
of issued Shares effected without receipt of consideration by the Company; provided,
however, that conversion of any convertible securities of the Company shall not be deemed
to have been “effected without receipt of consideration.” Such adjustment shall be made by the
Committee, whose determination in that respect shall be final, binding and conclusive. Except as
expressly provided herein, no issuance by the Company of shares of any class, or securities
convertible into shares of any class, shall affect, and no adjustment by reason thereof shall be
made with respect to, the number or price of Shares subject to an Option.



 









 





     11.3 Liquidation. Unless otherwise provided by the Board, in the event of the
proposed dissolution or liquidation of the Company, all outstanding Options will terminate
immediately prior to the consummation of such proposed action. In such case, the Committee may
declare that any Option shall terminate as of a date fixed by the Committee and give each Grantee
the right to exercise his Option, including any Option that would not otherwise be exercisable.



     11.4 Corporate Transaction.



          (a) In the event of a Corporate Transaction, immediately prior to the effective date of such
Corporate Transaction, each Option may, at the sole and absolute discretion of the Committee,
either:




               (i) be substituted for an option to purchase securities of any successor entity (the
“Successor Entity Option”) such that the Grantee may exercise the Successor Entity Option for such
number and class of securities of the successor entity which would have been issuable to the
Grantee in consummation of such Corporate Transaction, had the Option been exercised immediately
prior to the effective date of such Corporate Transaction; or



               (ii) be assumed by any successor entity such that the Grantee may exercise the Option for such
number and class of securities of the successor entity which would have been issuable to the
Grantee in consummation of such Corporate Transaction, had the Option been exercised immediately
prior to the effective date of such Corporate Transaction; or



               In the event of a clause (i) or clause (ii) action, appropriate adjustments shall be made to
the Exercise Price per Share to reflect such action.



               Immediately following the consummation of the Corporate Transaction, all outstanding Options
shall terminate and cease to be outstanding, except to the extent assumed by a successor entity.



          (b) Notwithstanding the foregoing, the Committee shall have full authority and sole discretion
to determine that any of the provisions of Sections 11.4(a)(i) or 11.4(a)(ii) above shall apply in
the event of a Corporate Transaction in which the consideration received by the shareholders of the
Company is not solely comprised of securities of a successor entity, or in which such consideration
is solely cash or assets other than securities of a successor entity.




     11.5 Sale. In the event that all or substantially all of the issued and outstanding
share capital of the Company is to be sold (the “Sale”), each Grantee shall be obligated to
participate in the Sale and sell his or her Shares and/or Options in the Company, provided,
however, that each such Share or Option shall be sold at a price equal to that of any other
Share sold under the Sale (minus the applicable exercise price), while accounting for changes



 









 







in
such price due to the respective terms of any such Option, and subject to the absolute discretion
of the Board.



     11.6 The grant of Options under the Plan shall in no way affect the right of the Company to
adjust, reclassify, reorganize or otherwise change its capital or business structure or to merge,
consolidate, dissolve, liquidate or sell or transfer all or any part of its business or assets.


12. Limitations on Transfer:




     12.1 No Option shall be assignable or transferable by the Grantee to whom granted otherwise
than by will or the laws of descent and distribution, and an Option may be exercised during the
lifetime of the Grantee only by such Grantee or by such Grantee’s guardian or legal representative.
The terms of such Option shall be binding upon the beneficiaries, executors, administrators, heirs
and successors of such Grantee. Unless otherwise determined by the Board of Directors, until an
IPO, a Grantee shall not have the right to sell Shares issued upon exercise of an Option within six
(6) months after the date of exercise of such Option or issuance of such Shares. After the six (6)
month period and until the IPO, the transfer of Shares issued upon exercise of Options (and
released by the Trustee) to a third party shall be subject to the Company’s right of first refusal
to purchase such Shares, upon the terms offered by such third party, within thirty (30) days from
receipt by the Company of a written notice from the Grantee specifying the terms of such offer,
and, in the event and to the extent such right is not exercised, the execution by any transferee of
such Shares of a voting proxy that is appropriate under Delaware law and that appoints a person or
entity who is unrelated to the Company and its shareholders and directors.



     12.2 Underwriter’s Lock-up. If requested by any managing underwriter, each Grantee so
requested shall enter into a lock-up agreement pursuant to which they will not, for a period of 180
days following the effective date of a registration statement for any public offering of Shares and
for such reasonable period of time prior to the effective date of such registration statement as
such underwriter may specify, offer, sell or otherwise dispose of any Shares, except any Shares
sold pursuant to such registration statement, without the prior consent of such underwriter.


13. Term and Amendment of the Plan:




     13.1 The Plan shall terminate upon the earliest of (i) the expiration of the ten (10)-year
period measured from the date the Plan was adopted by the Board, or (ii) the termination of all
outstanding Options in connection with a Corporate Transaction. All Options outstanding at the



 









 







time of a clause (i) termination event shall continue to have full force and effect in accordance
with the provisions of the Plan and the documents evidencing such Options.



     13.2 Subject to applicable laws and regulations, the Board in its discretion may, at any
time and from time to time, amend, alter, extend or terminate the Plan. However, no such action
shall adversely affect any rights and obligations with respect to Options at the time outstanding
under the Plan, unless the Grantee consents to such action.


14. Withholding and Tax Consequences: The Company’s obligation to deliver Shares upon the exercise
of any Options granted under the Plan shall be subject to the satisfaction of all applicable income
tax and other compulsory payments withholding requirements. All tax consequences and obligations
regarding any other compulsory payments arising from the grant or exercise of any Option, from the
payment for, or the subsequent disposition of, Shares subject thereto or from any other event or
act (of the Company, of the Trustee or of the Grantee) hereunder, shall be borne solely by the
Grantee, and the Grantee shall indemnify the Company and/or the Trustee, as applicable, and hold
them harmless against and from any and all liability for any such tax or other compulsory payment,
or interest or penalty thereon, including without limitation, liabilities relating to the necessity
to withhold, or to have withheld, any such tax or other compulsory payment from any payment made to
the Grantee.



15. Miscellaneous:




     15.1 Continuance of Employment. Neither the Plan nor the grant of an Option
thereunder shall impose any obligation on the Company to continue the employment or service of any
Grantee. Nothing in the Plan or in any Option granted thereunder shall confer upon any Grantee any
right to continue in the employ or service of the Company for any period of specific duration, or
interfere with or otherwise restrict in any way the right of the Company to terminate such
employment or service at any time, for any reason, with or without cause.



     15.2 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.



     15.3 Application of Funds. Any proceeds received by the Company from the sale of
Shares pursuant to the exercise of Options granted under the Plan shall be used for general
corporate purposes of the Company.



     15.4 Multiple Agreements. The terms of each Option may differ from other Options
granted under the Plan at the same time, or at any other time. The Committee may also grant more
than one Option to a given Grantee during the term of the Plan, either in addition to, or in
substitution for, one or more Options previously granted to that Grantee. The grant of multiple
Options may be evidenced by a single Notice of Grant or multiple Notices of Grant, as determined by
the Committee.



 









 





     15.5 Non-Exclusivity of the Plan. The adoption of the Plan by the Board shall not be
construed as amending, modifying or rescinding any previously approved incentive arrangement or as
creating any limitations on the power of the Board to adopt such other incentive arrangements as
it may deem desirable, including, without limitation, the granting of stock options otherwise than
under the Plan, and such arrangements may be either applicable generally or only in specific cases.



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