EXHIBIT 10.1
INCENTIVE STOCK OPTION AGREEMENT
("OPTION AGREEMENT")
Made as of the ______ day of ______1999
By and between
XACCT TECHNOLOGIES (1997) LTD.
("THE COMPANY")
an Israeli Company located at
00 Xxxxx Xxxxxx
Xxxx-Xxxx 00000
Xxxxxx
OF THE FIRST PART
AND
("THE OPTIONEE")
OF THE SECOND PART
PREAMBLE
WHEREAS In July, 1998, the Company has adopted it's Option Plan, a copy of
which is attached hereto as EXHIBIT A, forming an integral part
hereof and -
WHEREAS The Company has determined that the Optionee be granted an Options
under the Option Plan to buy Shares of the Company, and the
Optionee has agreed to such grant, all on the terms and subject to
the conditions hereinafter provided.
NOW, THEREFORE, it is agreed as follows:
1. PREAMBLE AND DEFINITIONS
1.1 The Preamble to this Option Agreement constitutes an integral part
hereof.
1.2 Unless otherwise defined herein, capitalized terms used herein
shall have the meaning ascribed to them in the Option Plan.
2. GRANT OF OPTION
2.1 The Company hereby grants the Optionee ISOs in a number set forth
in Section 2 of EXHIBIT B hereto (for purposes of this Option
Agreement - THE OPTION(S) subject in each case to the vesting
schedule thereof. Each Option is exercisable for One Ordinary
Share of a nominal value of NIS 0.01 (THE SHARE), at a price per
Ordinary Share as set forth in Section 3 of EXHIBIT B (THE OPTION
PRICE), in each case upon the terms and subject to the conditions
set forth herein. Each Share shall be allocated from the total
number of shares reserved from of the Company's authorized share
capital for the Option Plan
The Option Price will be paid in NIS in accordance with the
representative rate of exchange of the U.S. dollar, published by
the Bank of Israel and known on the date of giving the notice of
exercise (as set forth in Section 5.1 hereinafter).
2.2 The Optionee is aware that the Company intends to issue additional
shares in the future to various entities and individuals, as the
Company in its sole discretion shall determine.
3. PERIOD OF OPTION AND CONDITIONS OF EXERCISE
3.1 The terms of this Option Agreement shall commence on the date
hereof (THE DATE OF GRANT) and terminate at the Expiration Date
(as defined in Section 6 below), or at the time at which the
Option is completely terminated pursuant to the terms of the
Option Plan or pursuant to this Option Agreement.
3.2 The Options may be exercised by the Optionee in whole at any time
or in part from time to time, as determined by the Board, and to
the extent that the Options become vested and exercisable, prior
to the Expiration Date, and provided that, subject to the
provisions of Section 3.4 below, the Optionee is an employee of
the Company or any of its subsidiaries, at all times during the
period beginning with the granting of the Option and ending upon
the date of exercise.
3.3 Subject to the provisions of Section 3.4 below, in the event of
termination of the Optionees employment with the Company or any of
its subsidiaries, all Options granted to him or her will
immediately be expired. A notice of termination of employment by
either the Company or the Optionee shall be deemed to constitute
termination of employment.
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3.4 Notwithstanding anything to the contrary hereinabove, an Option
may be exercised after the date of termination of Optionee's
employment with the Company or any subsidiary of the Company
during an additional period of time beyond the date of such
termination, but only with respect to the number of Options
already vested at the time of such termination according to the
vesting periods of the Options, set forth in Section 4 below, if:
(I) prior to the date of such termination, the Committee shall
authorize an extension of the terms of all or part of the Options
beyond the date of such termination for a period not to exceed the
period during which the Options by their terms would otherwise
have been exercisable, (ii) termination is without Cause (as
defined below), in which event any Options still in force and
unexpired may be exercised within a period of 90 (ninety) days
from the date of such termination, but only with respect to the
number of shares purchasable at the time of such termination,
according to the vesting periods of the Options, (iii) termination
is the result of death or disability of the Optionee, in which
event any Options still in force and unexpired may be exercised
within a period of 3 (three) months from the date of termination,
but only with respect to the number of Options already vested at
the time of such termination according to the vesting periods of
the Options. The term CAUSE shall mean any action, omission or
state of affairs related to the Optionee which the Committee or
the Board decides, in its sole discretion, is against the best
interests of the Company.
3.5 The Options may be exercised only to purchase whole Shares, and in
no case may a fraction of a Share be purchased. If any fractional
Shares would be deliverable upon exercise, such fraction shall be
rounded up one-half or more, or otherwise rounded down, to the
nearest whole number.
4. VESTING
Subject to the requirements as to the number of Shares for which an
Option is exercisable, as set forth in Section 2.1 above, Options shall
vest (i.e., Options shall become exercisable) at the dates set forth in
Section 6 of Exhibit B hereto.
5. METHOD OF EXERCISE
Options shall be exercised by the Optionee by giving written notice to
the Company, in such form and method as may be determined by the Company
(THE EXERCISE NOTICE), which exercise shall be effective upon receipt of
such notice by the Company at its principal office. The notice shall
specify the number of Shares with respect to which the Option is being
exercised.
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6. TERMINATION OF OPTION
6.1 Except as otherwise stated in this Option Agreement, the Options,
to the extent not previously exercised, shall terminate forthwith
upon the earlier of: (I) the date set forth in Section 4 of
Exhibit B hereto; and - (ii) the expiration of any extended period
in any of the events set forth in Section 3.4 above (and such
earlier date shall be hereinafter referred to as THE EXPIRATION
DATE).
6.2 Without derogating from the above, the Committee may, with the
prior written consent of the Optionee, from time to time cancel
all or any portion of the Options then subject to exercise, and
the Company's obligation in respect of such Options may be
discharged by (I) payment to the Optionee of an amount in cash
equal to the excess, if any, of the fair market value of the
Shares pertaining to such canceled Options, at the date of such
cancellation, over the aggregate purchase price of such Shares;
(ii) the issuance or transfer to the Optionee of Shares of the
Company with a fair market value at the date of such transfer
equal to any such excess; or (iii) a combination of cash and
Shares with a combined value equal to any such excess, all
determined by the Committee in its sole discretion.
7. ADJUSTMENTS
7.1 If the Company is separated, reorganized, merged, consolidated or
amalgamated with or into another corporation while unexercised
Options remain outstanding under the Option Plan, there shall be
substituted for the Shares subject to the unexercised portions of
such outstanding Options an appropriate number of shares of each
class of shares or other securities of the separated, reorganized,
merged, consolidated or amalgamated corporation which were
distributed to the shareholders of the Company in respect of such
shares, and appropriate adjustments shall be made in the purchase
price per share to reflect such action. However, subject to any
applicable law, in the event the successor corporation does not
agree to assume the award as aforesaid, the Vesting Period a set
forth in section 4 above shall be accelerated so that any
unexercisable or unvested portion of the outstanding Options shall
be immediately exercisable and vested in full as of the date ten
(10) days prior to the date of the change in control.
7.2 If the Company is liquidated or dissolved while unexercised
Options remain outstanding, then all such outstanding Options may
be exercised in by the Optionee as of the effective date of any
such liquidation or dissolution of the Company without regard to
the installment exercise provisions hereof, by the Optionee giving
notice in writing to the Company of his or her intention to so
exercise.
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7.3 If the outstanding shares of the Company shall at any time be
changed or exchanged by declaration of a stock dividend, stock
split, combination or exchange of shares, re-capitalization, or
any other like event by or of the Company, and as often as the
same shall occur, then the number, class and kind of Shares
subject to the Option therefore granted, and the Option Price,
shall be appropriately and equitably adjusted so as to maintain
the proportionate number of Shares without changing the aggregate
Option Price; provided, however, that no adjustment shall be made
by reason of the distribution of subscription rights on
outstanding shares, all as will be determined by the Board whose
determination shall be final.
7.4 Anything herein to the contrary notwithstanding, if prior to the
completion of the IPO, all or substantially all of the shares of
the Company are to be sold, or upon a merger or reorganization or
the like, the shares of the Company, or any class thereof, are to
be exchanged for securities of another Company, then in such
event, the Optionee shall be obliged to sell or exchange (in
accordance with the value of his or her Shares in accordance to
the transaction) as the case may be, the Shares such Optionee
purchased hereunder, in accordance with the instructions then
issued by the Board, which will be given according to the decided
upon policy concerning Optionees under the Option Plan.
8. RIGHTS PRIOR TO EXERCISE OF OPTION; LIMITATIONS AFTER PURCHASE OF SHARES
8.1 Subject to the provisions of Section 8.2 below, the Optionee shall
not have any of the rights or privileges of shareholders of the
Company in respect of any Shares purchasable upon the exercise of
any part of an Option unless and until, following exercise,
registration of the Optionee as holder of such Shares in the
Companies register of members.
8.2 With respect to all Shares (in contrary to unexercised Options)
issued upon the exercise of Options and purchased by the Optionee,
the Optionee shall be entitled to receive dividends in accordance
with the quantity of such Shares, and subject to any applicable
taxation on distribution of dividends.
8.3 No Option purchasable hereunder, whether fully paid or not, shall
be assignable, transferable or given as collateral or any right
with respect to them given to any third party whatsoever, and
during the lifetime of the Optionee each and all of the Optionee's
rights to purchase Shares hereunder shall be exercisable only by
the Optionee.
Any action or dealing in contravention of the prohibitions set
forth in this Section 8.3 whether present or future, direct or
indirect, shall be null and void.
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8.4 The Optionee may be required by the Company, at the Company's
discretion, to give a representation in writing upon exercising
the Option, that he or she is acquiring the Shares for his or her
own account, for investment and not with a view to, or for sale in
connection with, the distribution of any part thereof.
8.5 The Optionee shall not dispose of any Option Shares in
transactions which, in the opinion of counsel to the Company,
violate the U.S. Securities Act of 1933, as amended (the "1933
Act"), or the rules and regulations thereunder, or any applicable
state securities or "blue sky" laws, including the securities laws
of the State of Israel.
8.6 If any Option Shares shall be registered under the 1933 Act, no
public offering (otherwise than on a national securities exchange,
as defined in the Securities Exchange Act of 1934, as amended) of
any Option Shares shall be made by the Optionee (or any other
person) under such circumstances that he or she (or such other
person) many be deemed an underwriter, as defined in the 0000 Xxx.
8.7 The Optionee agrees that the Company shall have the authority to
endorse upon the certificate or certificates representing the
Option Shares such legends referring to the foregoing
restrictions, and any other applicable restrictions, as it many
deem appropriate (which do not violate the Optionee's rights
according to this Option Agreement).
9. SHARES SUBJECT TO RIGHT OF FIRST REFUSAL
9.1 Notwithstanding anything to the contrary in the Articles of
Association of the Company, the Optionee shall not have a right of
first refusal in relation with any sale, transfer or allotment of
shares in the Company.
9.2 Until such time as the Company shall effectuate an IPO, the sale
of Shares issuable upon exercise of an Option, by the Optionee,
shall be subject to a right of first refusal on the part of the
Company's Founders, as defined in the Articles of Association of
the Company in effect in July 1998 (save, for the avoidance of
doubt, for other Optionees who already exercised their Options),
PRO RATA in accordance with their shareholding, by the Optionee
giving a notice of sale (THE NOTICE) to the Company who will
forward the Notice to the Founders.
The notice shall specify the Number of Shares offered for sale,
the price per Share and the payment terms. The Founders will be
entitled for 30 days from the day of receipt of the Notice ("THE
30 DAYS PERIOD"), to purchase all or part of the offered Shares,
PRO RATA in accordance with their shareholding. If by the end of
the 30 Days Period not all of the offered Shares have been
purchased by the Founders, the Optionee will be entitled to sell
such Shares at any time during the 90 days following the end of
the 30 Days Period on terms not more favorable than those set out
in the Notice.
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10. GOVERNMENT REGULATIONS
The Option Plan, and the granting and exercise of the Option thereunder,
and the Company's obligation to sell and deliver Shares or cash under the
Option, are subject to all applicable laws, rules and regulations,
whether of the State of Israel or of the United States or any other state
having jurisdiction over the Company and the Optionee, including the
registration of the Shares under the 1933 Act, and to such approvals by
any governmental agencies or national securities exchanges as may
required.
11. CONTINUANCE OF EMPLOYMENT
Nothing in this Option Agreement shall be construed to impose any
obligation on the Company or a subsidiary thereof to continue the
Optionee's employment with it, to confer upon the Optionee any right to
continue in the employ of the Company or a subsidiary thereof, or to
restrict the right of the Company or a subsidiary thereof to terminate
such employment at any time.
12. GOVERNING LAW & JURISDICTION
This Option Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Israel applicable to contracts
made and to be performed therein, without giving effect to the principles
of conflict of laws. The competent courts of Tel-Aviv, Israel shall have
sole and exclusive jurisdiction in any matters pertaining to this Option
Agreement.
13. TAX CONSEQUENCES
Any tax consequences arising from the grant or exercise of any Option,
from the payment for Shares covered thereby or from any other event or
act (of the Company or the Optionee), hereunder, shall be borne solely by
the Optionee. The Company shall withhold taxes according to the
requirements under the applicable laws, rules, and regulations, including
the withholding of taxes at source. Furthermore, the Optionee shall agree
to indemnify the Company and hold it 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 Optionee.
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14. FAILURE TO ENFORCE NOT A WAIVER
The failure of the any party to enforce at any time any provisions of
this Option Agreement shall in no way be construed to be a waiver of such
provision or of any other provision hereof.
15. PROVISIONS OF THE OPTION PLAN
The Options provided for herein are granted pursuant to the Option Plan,
and said Options and this Option are in all respects governed by the
Option Plan and subject to all of the terms and provisions whether such
terms and provisions are incorporated in this Option Agreement solely by
reference or are expressly cited herein.
Any interpretation of this Option Agreement will be made in accordance
with the Option Plan and in the event there is any contradiction between
the provisions of this Option Agreement and the Option Plan, the
provisions of the Plan will prevail.
16. BINDING EFFECT
This Option Agreement shall be binding upon the heirs, executors,
administrators, and successors of the parties hereof.
17. NOTICES
Any notice required or permitted under this Option Agreement shall be
deemed to have been duly given if delivered, faxed or mailed, if
delivered by certified or registered mail or return receipt requested,
either to the Optionee at his or her address set forth above or such
other address as he or she may designate in writing to the Company, or to
the Company at the address set forth above or such other address as the
Company may designate in writing to the Optionee, within one from time to
time.
18. ENTIRE AGREEMENT
This Option Agreement exclusively concludes all the terms of the
Optionee's Option Plan, and, subject to the provisions of Section 20 of
the Option Plan, annuls and supersedes any other agreement, arrangement
or understanding, whether oral or in writing, relating to the grant of
options to the Optionee. Any change of any kind to this Option Agreement
will be valid only if made in writing and signed by both the Optionee and
the Company's authorized member and has received the approval of the
Board.
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IN WITNESS WHEREOF, the Company executed this Option Agreement in duplicate on
the day and year first above written.
XACCT Technologies (1997) Ltd.
By: Xxxx Xxxxx, President and CEO
-------------------------------
The undersigned hereby accepts, and agrees to, all terms and provisions of the
foregoing Option Agreement.
-------------------------------
The Optionee
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EXHIBIT A
XACCT TECHNOLOGIES (1997)
LTD.
THE 1998
STOCK OPTION PLAN
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XACCT TECHNOLOGIES (1997) LTD.
THE 1998
STOCK OPTION PLAN
1. NAME
This 1998 Stock Option Plan, as amended from time to time, shall be known
as the XaCCT Technologies (1997) Ltd. 1998 Stock Option Plan (the "OPTION
PLAN"). For the purposes of this Option Plan the reference to or the use
of the term "Stock" or "stock" shall mean and refer to a "share" as
defined in Section 1 of the Israeli Companies Ordinance New Version
(5743-1983) (the "Ordinance") and not "stock" within the meaning Section
146 of the Ordinance.
2. PURPOSE OF THE OPTION PLAN
The Option Plan is intended as an incentive to retain, in the employ of
XaCCT Technologies (1997) Ltd.("THE COMPANY") and its subsidiaries,
persons of training, experience, and ability, to attract new employees,
directors and consultants whose services are considered valuable, to
encourage the sense of proprietorship of such persons, and to stimulate
the active interest of such persons in the development and financial
success of the Company by providing them with opportunities to purchase
shares in the Company, pursuant to the Option Plan approved by the board
of directors of the company ("THE BOARD"). Options granted under the 1998
Plan may or may not contain such terms as will qualify the Options as
Incentive Stock Options ("ISOS") within the meaning of Section 422(b) of
the United States Internal Revenue Code of 1986, as amended (the "CODE").
Options which shall not contain terms as will qualify them as ISOs shall
be referred to herein as Non - Qualified Stock Options ("NQSOS"). (All
options granted hereunder shall be referred to herein together as the
"OPTIONS").
3. ADMINISTRATION OF THE OPTION PLAN
The Board or a share option committee appointed and maintained by the
Board for such purpose ("THE COMMITTEE") shall have the power to
administer the Option Plan. Notwithstanding the above, the Board shall
automatically have a residual authority if no Committee shall be
constituted or if such Committee shall cease to operate for any reason
whatsoever.
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The Committee shall consist of such number of members (not less than two
(2) in number) as may be fixed by the Board. The Committee shall select
one of its members as its chairman ("THE CHAIRMAN") and shall hold its
meetings at such times and places as the Chairman shall determine. The
Committee shall keep records of its meetings and shall make such rules
and regulations for the conduct of its business as it shall deem
advisable.
Any member of such Committee shall be eligible to receive Options under
the Option Plan while serving on the Committee, unless otherwise
specified herein.
The Committee shall have full power and authority (i) to designate
participants (ii) to determine the terms and provisions of respective
Option agreements (which need not be identical) including, but not
limited to, the number of shares in the Company to be covered by each
Option, provisions concerning the time or times when and the extent to
which the Options may be exercised and the nature and duration of
restrictions as to transferability or restrictions constituting
substantial risk of forfeiture; (iii) to accelerate the right of an
Optionee to exercise, in whole or in part, any previously granted Option;
(iv) to designate Options as Incentive Stock Options or as Non -
Qualified Stock Options, (v) to interpret the provisions and supervise
the administration of the Option Plan; and - (vi) to determine any other
matter which is necessary or desirable for, or incidental to
administration of the Option Plan.
The Committee shall have the authority to 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 a purchase price equal
to, lower than or higher than the purchase price 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 Option Plan.
All decisions and selections made by the Board or the Committee pursuant
to the provisions of the Option Plan shall be made by a majority of its
members except that no member of the Board or the Committee shall vote
on, or be counted for quorum purposes, with respect to any proposed
action of the Board or the Committee relating to any Option to be granted
to that member. Any decision reduced to writing and signed by a majority
of the members who are authorized to make such decision shall be fully
effective as if it had been made by a majority at a meeting duly held.
The interpretation and construction by the Committee of any provision of
the Option Plan or of any Option thereunder shall be final and conclusive
unless otherwise determined by the Board.
Subject to the Company decision, each member of the Board or the
Committee shall be indemnified and held harmless by the Company against
any cost or expense (including counsel fees) reasonably incurred by him
or her, or any liability (including any sum paid in settlement of a claim
with the approval of the Company) arising out of any act or omission to
act in connection with the Option Plan unless arising out of such
member's own fraud or bad faith, to the extent permitted by applicable
law. Such indemnification shall be in addition to any rights of
indemnification the member may have as a director or otherwise under the
Company's Articles of Association, any agreement, any vote of
shareholders or disinterested directors, insurance policy or otherwise.
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4. DESIGNATION OF PARTICIPANTS
The persons eligible for participation in the Option Plan as recipients
of Options shall include any employees, directors and consultants of the
Company or of any subsidiary of the Company. The grant of an Option
hereunder shall neither entitle the recipient thereof to participate nor
disqualify him or her from participating in, any other grant of Options
pursuant to this Option Plan or any other option or share option plan of
the Company or any of its affiliates.
5. SHARES RESERVED FOR THE OPTION PLAN; RESTRICTION THEREON
5.1 Subject to adjustments as set forth in Section 8 below, a total of
______Ordinary Shares, of NIS 0.01n.v. each ("THE SHARES") shall
be subject to the Option Plan. The foregoing number of shares may
be increased or decreased by the events set forth in Section 8
("ADJUSTMENT") hereof. The Shares subject to the Option Plan are
hereby reserved for such purpose in the authorized share capital
of the Company and may only be issued in terms hereof. Any of such
Shares which may remain unissued and which are not subject to
outstanding Options at the termination of the Option Plan shall
cease to be reserved for the purpose of the Option Plan, but until
termination of the Option Plan the Company shall at all times
reserve sufficient number of Shares to meet the requirements of
the Option Plan. Should any Option for any reason expire or be
canceled prior to its exercise or relinquishment in full, the
Shares therefore subject to such Option may again be subjected to
an Option under the Option Plan.
5.2 Each Option granted pursuant to the Plan, shall be evidenced by a
written agreement between the Company and the Optionee (the
"OPTION AGREEMENT"), in such form as the Board or the Committee
shall from time to time approve. Each Option Agreement shall state
the number of ordinary shares to which the Option relates and the
type of option granted thereunder (whether an ISO or an NQSO).
6. OPTION PRICE
6.1 The purchase price of each Share subject to an Option or any
portion thereof shall be determined by the Committee in its sole
and absolute discretion in accordance with applicable law, subject
to any guidelines as may be determined by the Board from time to
time. In the case of an ISO, the exercise price shall not be less
than 100% of the fair market value thereof, as determined by the
Board or the Committee in its sole discretion.
6.2 The Option price shall be payable upon the exercise of the Option
in a form satisfactory to the Committee, including without
limitation, by cash or check. The Committee shall have the
authority to postpone the date of payment on such terms as it may
determine.
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7. ADJUSTMENTS
Upon the occurrence of any of the following described events, Optionee's
rights to purchase Shares under the Option Plan shall be adjusted as
hereafter provided:
7.1 If the Company is separated, reorganized, merged, consolidated or
amalgamated with or into another corporation while unexercised
Options remain outstanding under the Option Plan, there shall be
substituted for the Shares subject to the unexercised portions of
such outstanding Options an appropriate number of shares of each
class of shares or other securities of the separated, reorganized,
merged, consolidated or amalgamated corporation which were
distributed to the shareholders of the Company in respect of such
shares, and appropriate adjustments shall be made in the purchase
price per share to reflect such action. However, subject to any
applicable law, in the event the successor corporation does not
agree to assume the award as aforesaid, the Vesting Period a set
forth in section 4 above shall be accelerated so that any
unexercisable or unvested portion of the outstanding Options shall
be immediately exercisable and vested in full as of the date ten
(10) days prior to the date of the change in control.
7.2 If the Company is liquidated or dissolved while unexercised
Options remain outstanding under the Option Plan, then all such
outstanding Options may be exercised in full by the Optionees as
of the effective date of any such liquidation or dissolution of
the Company without regard to the installment exercise provisions
of Section 8(2), by the Optionees giving notice in writing to the
Company of their intention to so exercise.
7.3 If the outstanding shares of the Company shall at anytime be
changed or exchanged by declaration of a share dividend, share
split, combination or exchange of shares, recapitalization, or any
other like event by or of the Company, and as often as the same
shall occur, then the number, class and kind of Shares subject to
this Option Plan or subject to any Options therefore granted, and
the Option prices, shall be appropriately and equitably adjusted
so as to maintain the proportionate number of Shares without
changing the aggregate Option price, provided, however, that no
adjustment shall be made by reason of the distribution of
subscription rights on outstanding shares. Upon happening of any
of the foregoing, the class and aggregate number of Shares
issuable pursuant to the Option Plan (as set forth in Section 5
hereof), in respect of which Options have not yet been exercised,
shall be appropriately adjusted, all as will be determined by the
Board whose determination shall be final.
7.4 Anything herein to the contrary notwithstanding, if prior to the
completion of an initial public offering of the Company's
securities (IPO), all or substantially all of the shares of the
Company are to be sold, or upon a merger or reorganization or the
like, the shares of the Company, or any class thereof, are to be
exchanged for securities of another Company, then in such event,
each Optionee shall be obliged to sell or exchange, as the case
may be, the shares such Optionee purchased under the Option Plan,
in accordance with the instructions then issued by the Board whose
determination shall be final.
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8. TERM AND EXERCISE OF OPTIONS
8.1 Options shall be exercised by the Optionee by giving written
notice to the Company, in such form and method as may be
determined by the Company, which exercise shall be effective upon
receipt of such notice by the Company at its principal office. The
notice shall specify the number of Shares with respect to which
the Option is being exercised.
8.2 Each Option granted under this Option Plan shall be exercisable
following the exercise dates and for the number of Shares as shall
be provided in Exhibit B to the Option Agreement. However, (i)
subject to the provisions of section 8.6 below, no option shall be
exercisable after the expiration of ten (10) years from the Date
of Grant as defined for each Optionee in his or her Option
Agreement and (ii) no ISO may be granted to a person who at the
time of the grant owns more than 10% of the voting power or value
of all classes of shares of the Company or its subsidiary. However
no Option shall be exercisable after the Expiration Date.
8.3 Options granted under the Option Plan shall not be transferable by
Optionees other than by will or laws of descent and distribution,
and during an Optionee's lifetime shall be exercisable only by
that Optionee.
8.4 The Options may be exercised by the Optionee in whole at any time
or in part from time to time, to the extent that the Options
become vested and exercisable, prior to the Expiration Date, and
provided that, subject to the provisions of Section 8.6 below (i)
the Optionee is an employee of the Company or any of its
subsidiaries, at all times during the period beginning with the
granting of the Option and ending upon the date of exercise (ii)
the director or the consultant is serving the Company or any of
its subsidiaries, at all times during the period beginning with
the granting of the Option and ending upon the date of exercise.
8.5 Subject to the provisions of Section 8.6 below, in the event of
termination of employees employment with the Company or any of its
subsidiaries, or the termination of services given by directors or
consultants to the Company or any of its subsidiaries, all Options
granted to them will immediately be expired. A notice of
termination of employment or services shall be deemed to
constitute termination of employment or services.
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8.6 Notwithstanding anything to the contrary hereinabove, an Option
may be exercised after the date of termination of Optionee's
service or employment with the Company or any subsidiary of the
Company during an additional period of time beyond the date of
such termination, but only with respect to the number of Options
already vested at the time of such termination according to the
vesting periods of the Options set forth in Section 4 of such
Optionee's Option Agreement, if: (i) prior to the date of such
termination, the Committee shall authorize an extension of the
terms of all or part of the Options beyond the date of such
termination for a period not to exceed the period during which the
Options by their terms would otherwise have been exercisable, (ii)
termination is without Cause (as defined below), in which event
any Options still in force and unexpired may be exercised within a
period of ninety (90) days from the date of such termination, but
only with respect to the number of shares purchasable at the time
of such termination, according to the vesting periods of the
Options, (iii) termination is the result of death or disability of
the Optionee, in which event any Options still in force and
unexpired may be exercised within a period of twelve (12) months
from the date of termination, but only with respect to the number
of Options already vested at the time of such termination
according to the vesting periods of the Options. The term "CAUSE"
shall mean any action, omission or state of affairs related to the
Optionee which the Committee or the Board decides, in its sole
discretion, is against the best interests of the Company.
8.7 Subject to the provisions of Section 12 below, the holders of
Options shall not have any of the rights or privileges of
shareholders of the Company in respect of any Shares purchasable
upon the exercise of any part of an Option unless and until,
following exercise, registration of the Optionee as holder of such
Shares in the Companies register of members.
8.8 Any form of Option agreement authorized by the Option Plan may
contain such other provisions as the Committee may, from time to
time, deem advisable. Without limiting the foregoing, the
Committee may, with the consent of the Optionee, from time to time
cancel all or any portion of any Option then subject to exercise,
and the Company's obligation in respect of such Option may be
discharged by (i) payment to the Optionee of an amount in cash
equal to the excess, if any, of the Fair Market Value of the
Shares at the date of such cancellation subject to the portion of
the Option so canceled over the aggregate purchase price of such
Shares, (ii) the issuance or transfer to the Optionee of Shares of
the Company with a Fair Market Value at the date of such transfer
equal to any such excess, or (iii) a combination of cash and
shares with a combined value equal to any such excess, all as
determined by the Committee in its sole discretion.
16
9. INCENTIVE STOCK OPTIONS
Options intended to constitute ISOs, shall be subject to the following
special terms and conditions in addition to the general terms and
conditions of the Plan:
9.1 With respect to ISO granted to employees, the aggregate fair
market value of the shares (determined as of the grant of the ISO)
with respect to which ISO are exercisable, for the first time by
any grantee during any calendar year shall not exceed the
limitation provided under Section 422(d) of the Internal Revenue
Code.
9.2 The Options issued as ISOs must be granted within 10 years of the
date that the Plan was adopted or the date that the plan is
approved by the shareholders, whichever is earlier.
9.3 Any Options issued as ISOs, must by its terms be exercisable only
within 10 years from the date it is granted.
9.4 The exercise price of any ISO must not be less than the fair
market value of the shares at the time the ISO is granted. This
requirement shall be deemed satisfied if there has been a good
faith attempt to value the shares accurately for thus purpose.
9.5 The ISO by its terms must be non-transferable other than at death
and must be exercisable during the Optionee's lifetime only by the
Optionee.
10. PURCHASE OF INVESTMENT
Unless Shares covered by the Plan have been listed for trade on any stock
exchange (of any jurisdiction), or the Company has determined that such
registration is unnecessary, each person exercising an Option under the
Plan may be required by the Company to give a representation in writing
that he is acquiring such shares for his or her own account, for
investment and not with a view to, or for sale in connection with, the
distribution of any part thereof.
11. SHARES SUBJECT TO RIGHT OF FIRST REFUSAL
11.1 Notwithstanding anything to the contrary in the Articles of
Association of the Company, none of the Optionees shall have a
right of first refusal in relation with any sale, transfer or
allotment of shares in the Company.
17
11.2 Until such time as the Company shall effectuate an IPO, the sale
of Shares issuable upon exercise of an Option, by the Optionee,
shall be subject to a right of first refusal on the part of the
Company's Founders, as defined in the Articles of Association of
the Company in effect in July 1998 (save, for the avoidance of
doubt, for other Optionees who already exercised their Options),
PRO RATA in accordance with their shareholding, by the Optionee
giving a notice of sale (THE NOTICE) to the Company who will
forward the Notice to the Founders.
The notice shall specify the number of Shares offered for sale,
the price per Share and the payment terms. The Founders will be
entitled for 30 days from the day of receipt of the Notice ("THE
30 DAYS PERIOD"), to purchase all or part of the offered Shares,
PRO RATA in accordance with their shareholding. If by the end of
the 30 Days Period not all of the offered Shares have been
purchased by the Founders, the Optionee will be entitled to sell
such Shares at any time during the 90 days following the end of
the 30 Days Period on terms not more favorable than those set out
in the Notice.
12. DIVIDENDS
With respect to all Shares (in contrary to unexercised Options) issued
upon the exercise of Options and purchased by the Optionee, the Optionee
shall be entitled to receive dividends in accordance with the quantity of
such Shares, and subject to any applicable taxation on distribution of
dividends.
13. ASSIGNABILITY AND SALE OF OPTIONS
No Option, purchasable hereunder, whether fully paid or not, shall be
assignable, transferable or given as collateral or any right with respect
to them given to any third party whatsoever, and during the lifetime of
the Optionee each and all of such Optionee's rights to purchase Shares
hereunder shall be exercisable only by the Optionee.
14. TERM OF THE OPTION PLAN
The Option Plan shall be effective as of the day it was adopted by the
Board and shall terminate at the end of 60 months from such day of
adoption.
18
15. AMENDMENTS OR TERMINATION
The Board may, at any time and from time to time, amend, alter or
discontinue the Option Plan, except that no amendment or alteration shall
be made which would impair the rights of the holder of any Option
therefore granted, without his or her consent.
16. GOVERNMENT REGULATIONS
The Option Plan, and the granting and exercise of Options hereunder, and
the obligation of the Company to sell and deliver Shares under such
Options, shall be subject to all applicable laws, rules, and regulations,
whether of the State of Israel or of the United States or any other state
having jurisdiction over the Company and the Optionee, including the
registration of the Shares under the United States Securities Act of
1933, and to such approvals by any governmental agencies or national
securities exchanges as may be required.
17. CONTINUANCE OF EMPLOYMENT OR OTHER ENGAGEMENT
Neither the Option Plan nor the Option Agreement with the Optionee shall
impose any obligation on the Company or a subsidiary thereof, to continue
any Optionee in its employ or engagement, and nothing in the Option Plan
or in any Option granted pursuant thereto shall confer upon any Optionee
any right to continue in the employ or engagement of the Company or a
subsidiary thereof or restrict the right of the Company or a subsidiary
thereof to terminate such employment or such engagement at any time.
18. GOVERNING LAW & JURISDICTION
This Option Plan shall be governed by and construed and enforced in
accordance with the laws of the State of Israel applicable to contracts
made and to be performed therein, without giving effect to the principles
of conflict of laws. The competent courts of Tel-Aviv, Israel shall have
sole and exclusive jurisdiction in any matters pertaining to this Plan.
19
19. TAX CONSEQUENCES
Any tax consequences arising from the grant or exercise of any Option,
from the payment for Shares covered thereby or from any other event or
act (of the Company or the Optionee), hereunder, shall be borne solely by
the Optionee. The Company shall withhold taxes according to the
requirements under the applicable laws, rules, and regulations, including
withholding taxes at source. Furthermore, the Optionee shall agree to
indemnify the Company and hold it 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 Optionee.
20. NON-EXCLUSIVITY OF THE OPTION PLAN
The adoption of the Option Plan by the Board shall not be construed as
amending, modifying or rescinding any previously approved incentive
arrangements 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 share Options otherwise
then under the Option Plan, and such arrangements may be either
applicable generally or only in specific cases. For the avoidance of
doubt, prior grant of options to employees of the Company under their
employment agreements, and not in the framework of any previous option
plan, shall not be deemed an approved incentive arrangement for the
purpose of this Section.
21. MULTIPLE AGREEMENTS
The terms of each Option may differ from other Options granted under the
Option Plan at the same time, or at any other time. The Committee may
also grant more than one Option to a given Optionee during the term of
the Option Plan, either in addition to, or in substitution for, one or
more Options previously granted to that Optionee.
20
EXHIBIT B
TERMS OF THE INCENTIVE STOCK OPTIONS
------------------------------------------------------------------------------
1. Name of the Optionee:
------------------------------------------------------------------------------
2. Number of ISOs granted:
------------------------------------------------------------------------------
3. Price per Share:
------------------------------------------------------------------------------
4. Expiration Date: 8 years from the Date of Grant
------------------------------------------------------------------------------
5. Date of Grant:
------------------------------------------------------------------------------
6. Vesting schedule 4 years
------------------------------------------------------------------------------
-------------------------------------------------------------------------------
% OF THE OPTIONS VESTING DATE
------------------------------------------------------------------------------
6.25 Every 3 months, starting from the 3rd month
from the Date of Grant (unless stated
differently in employee's contract
------------------------------------------------------------------------------
Optionee Signature
------------------------
21
AMENDED AND RESTATED SHARE OPTION
AGREEMENT
("OPTION AGREEMENT")
Made as of the _____ day of _______, ______
by and between
XACCT TECHNOLOGIES LTD.
(the "COMPANY")
an Israeli private company located at
00 Xxxxxxxxxx Xx.
Xxxxx Xxx 00000
Israel
and
c/o
XACCT Technologies, Inc.
at
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000 XXX
OF THE FIRST PART
AND
------------------------------------
(name)
------------------------------------
------------------------------------
------------------------------------
(address)
------------------------------------
(fax number)
------------------------------------
(email address)
------------------------------------
(tax ID)
(the "OPTIONEE")
OF THE SECOND PART
PREAMBLE
WHEREAS In July 1998, the Company adopted its Option Plan, a copy of
which is attached hereto as EXHIBIT E, and constitutes
an integral part hereof;
WHEREAS The Company granted Optionee an Option under the Option Plan
to buy Shares of the Company; and
WHEREAS The Company and the Optionee desire to amend the option to
permit the Optionee to exercise the Option prior to
vesting, all on the terms and subject to the conditions
hereinafter provided.
NOW, THEREFORE, it is agreed as follows:
1. PREAMBLE AND DEFINITIONS
1.1 The preamble to this Option Agreement constitutes an integral part
hereof.
1.2 Unless otherwise defined herein, capitalized terms used herein
shall have the meaning ascribed to them in the Option Plan.
2. GRANT OF OPTION
2.1 The Company hereby grants the Optionee incentive share options
within the meaning of Section 422 of the Code in a number set forth in
Section 2 of EXHIBIT B hereto (for purposes of this Option Agreement the
"OPTION(S)) subject in each case to the vesting schedule thereof. Each
Option is exercisable for one Voting Ordinary Share of a nominal value of
NIS 0.04 (each a "SHARE"), at a price per Ordinary Share as set forth in
Section 3 of EXHIBIT B (the "OPTION PRICE"), in each case upon the terms
and subject to the conditions set forth herein. Each Share shall be
allocated from the total number of shares reserved from of the Company's
authorized share capital for the Option Plan.
The Option Price will be paid in NIS in accordance with the
representative rate of exchange of the U.S. dollar, published by the Bank
of Israel and known on the date of giving the notice of exercise (as set
forth in Section 5.1 hereinafter).
2.2 The Optionee is aware that the Company intends to issue additional
shares in the future to various entities and individuals, as the Company in
its sole discretion shall determine.
3. PERIOD OF OPTION AND CONDITIONS OF EXERCISE
3.1 The terms of this Option Agreement shall commence on the date
hereof (the "DATE OF GRANT") and terminate on the Expiration Date (as
defined in Section 6 below), or at the time at which the Option is
completely terminated pursuant to the terms of the Option Plan or pursuant
to this Option Agreement.
3.2 To the extent that the Options have vested prior to the Expiration
Date, they may be exercised by the Optionee in whole at any time or in part
from time to time, as determined by the Board. Alternatively, at the
election of the Optionee, and subject to the prior approval by the Board,
this option may be exercised in whole or in part at any time prior to the
Expiration Date as to Shares that have not yet vested, conditioned upon
Optionee's execution of the Restricted Share Purchase Agreement attached
hereto as EXHIBIT D-1. For purposes of this Option Agreement, Shares
subject to the Option shall vest based on continued employment of Optionee
with the Company. Vested and fully paid for Shares shall not be subject to
the escrow arrangement and/or the Company's forfeiture right as set forth
in the Restricted Share Purchase Agreement.
-3-
3.3 Subject to the provisions of Section 3.4 below, in the event of
termination of the Optionee's employment with the Company or any of its
subsidiaries, all Options granted to him or her will immediately expire.
Notwithstanding anything to the contrary hereinabove, an Option
may be exercised after the date of termination of Optionee's employment
with the Company or any subsidiary of the Company during an additional
period of time beyond the date of such termination, but (not withstanding
the provisions of Section 3.2 above) only with respect to the number of
Options already vested at the time of such termination according to the
vesting periods of the Options set forth in Section 6 of EXHIBIT B hereto,
if: (i) termination is without Cause (as defined below), in which event any
Options still in force and unexpired may be exercised within a period of 3
(three) months from the date of such termination, but only with respect to
the number of shares vested at the time of such termination, according to
the vesting periods of the Options, or (ii) termination is the result of
death or disability of the Optionee, in which event any Options still in
force and unexpired may be exercised within a period of 3 (three) months
from the date of termination, but only with respect to the number of
Options already vested at the time of such termination according to the
vesting periods of the Options. The term "Cause" shall mean (i) conviction
of any felony involving moral turpitude or affecting the Company; (ii) any
refusal to carry out a reasonable directive of the CEO which involves the
business of the Company or its affiliates and was capable of being lawfully
performed; (iii) embezzlement of funds of the Company or its affiliates;
(iv) any breach of the Optionee's fiduciary duties or duties of care of the
Company; including without limitation disclosure of confidential
information of the Company; and (v) any conduct (other than conduct in good
faith) reasonably determined by the Board to be materially detrimental to
the Company.
3.4 The Options may be exercised only to purchase whole Shares, and in
no case may a fraction of a Share be purchased.
4. METHOD OF EXERCISE; METHOD OF PAYMENT
4.1 Options shall be exercised by the Optionee by giving written
notice to the Company, in such form attached hereto as EXHIBIT C (the
"EXERCISE NOTICE"), which exercise shall be effective upon receipt of such
notice and receipt of the payment of the exercise price specified in
section 4.2 below by the Company at its Israel or Northern California
headquarters. The notice shall specify the number of Shares with respect to
which the Option is being exercised.
4.2 Payment of the exercise price shall be by any of the following, or
a combination thereof, at the election of the Optionee:
(a) cash or check;
(b) a form of installment obligation approved by the Company
(this form of payment is mandatory with respect to any Options exercised
prior to vesting).
-4-
5. TERMINATION OF OPTION
5.1 Except as otherwise stated in this Option Agreement, the
Options, to the extent not previously exercised, shall terminate
forthwith upon the earlier of: (i) the date set forth in Section 4 of
EXHIBIT B hereto; and (ii) the time set forth in Sections 3.3 and 3.4
above (and such earlier date shall be hereinafter referred to as the
"EXPIRATION DATE").
5.2 Without derogating from the above, the Board may, with the
prior written consent of the Optionee, from time to time cancel all or
any portion of the Options then subject to exercise, and the Company's
obligation in respect of such Options may be discharged by (i) payment
to the Optionee of an amount in cash equal to the excess, if any, of
the fair market value of the Shares pertaining to such canceled
Options, at the date of such cancellation, over the aggregate purchase
price of such Shares; (ii) the issuance or transfer to the Optionee of
Shares of the Company with a fair market value at the date of such
transfer equal to any such excess; or (iii) a combination of cash and
Shares with a combined value equal to any such excess, all determined
by the Board in its sole discretion.
6. ADJUSTMENTS
6.1 If the Company is separated, reorganized, merged,
consolidated or amalgamated with or into another corporation while
unexercised Options remain outstanding under the Option Plan, there
shall be substituted for the Shares subject to the unexercised
portions of such outstanding Options an appropriate number of shares
of each class of shares or other securities of the separated,
reorganized, merged, consolidated or amalgamated corporation which
were distributed to the shareholders of the Company in respect of such
shares, and appropriate adjustments shall be made in the purchase
price per share to reflect such action. However, subject to any
applicable law, in the event the successor corporation does not agree
to assume such unexercised Options, the Vesting Period as set forth in
Section 6 of EXHIBIT B hereto shall be accelerated so that any
unexercisable or unvested portion of the outstanding Options shall be
immediately exercisable and vested in full as of the date ten (10)
days prior to the date of the change in control.
6.2 If the Company is liquidated or dissolved while unexercised
Options remain outstanding, then all such outstanding Options may be
exercised by the Optionee as of the effective date of any such
liquidation or dissolution of the Company without regard to the
vesting provisions of Section 6 of EXHIBIT B hereto, by the Optionee
giving notice in writing to the Company of his or her intention to so
exercise.
6.3 Notwithstanding anything contrary in the Plan, in the event
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 Optionee shall be entitled 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 such
Optionee 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.
-5-
In the event that the Company shall issue any of its
Shares or other securities as bonus shares or a share dividend upon or
with respect to any Shares which shall at the time be subject to an
Option hereunder, the Optionee, upon exercising this Option, shall be
entitled to receive (for the purchase price payable upon such
exercise), the Shares as to which the Optionee is exercising this
Option and, in addition thereto (at no additional cost), such number
of shares of the class or classes in which such bonus shares or share
dividend were declared, and such amount of Shares (and the amount in
lieu of fractional Shares) as is equal to the Shares which the
Optionee would have received had the Optionee been the holder of the
Shares as to which the Optionee is exercising this Option at all times
between the date of the granting of this Option and the date of its
exercise.
6.4 Anything herein to the contrary notwithstanding, if prior to
the completion of the IPO, all or substantially all of the shares of
the Company are to be sold, or upon a merger or reorganization or the
like, the shares of the Company, or any class thereof, are to be
exchanged for securities of another Company, then in such event, the
Optionee shall be obliged to sell or exchange (in accordance with the
value of his or her Shares in accordance to the transaction) as the
case may be, the Shares such Optionee purchased hereunder, in
accordance with the instructions then issued by the Board, which will
be given according to the decided upon policy concerning Optionees
under the Option Plan.
7. RIGHTS PRIOR TO EXERCISE OF OPTION; LIMITATIONS AFTER PURCHASE OF
SHARES
7.1 Subject to the provisions of Section 7.2 below, the Optionee
shall not have any of the rights or privileges of shareholders of the
Company in respect of any Shares purchasable upon the exercise of any
part of an Option unless and until, following exercise, registration
of the Optionee as holder of such Shares in the Company's register of
members.
7.2 With respect to all Shares, (in contrast to unexercised
Options) the payment of which is not subject to an Installment
Obligation, issued upon the exercise of Options and purchased by the
Optionee, the Optionee shall be entitled to receive dividends in
accordance with the quantity of such Shares, and subject to any
applicable taxation on distribution of dividends, the applicable
provisions of the Company's Articles of Association and any other
agreement between the Optionee and the Company.
7.3 No Option purchasable hereunder, whether fully paid or not,
shall be assignable, transferable or given as collateral or any right
with respect to them given to any third party whatsoever, and during
the lifetime of the Optionee each and all of the Optionee's rights to
purchase Shares hereunder shall be exercisable only by the Optionee.
Any action or dealing in contravention of the prohibitions
set forth in this Section 7.3 whether present or future, direct or
indirect, shall be null and void.
7.4 The Optionee may be required by the Company, at the Company's
discretion, to give a representation in writing upon exercising the
Option, that he or she is acquiring the Shares for his or her own
account, for investment and not with a view to, or for sale in
connection with, the distribution of any part thereof.
-6-
7.5 The Optionee shall not dispose of any Option Shares in
transactions which, in the opinion of counsel to the Company, violate
the U.S. Securities Act of 1933, as amended (the "1933 Act"), or the
rules and regulations thereunder, or any applicable state securities
or "blue sky" laws, including the securities laws of the State of
Israel.
7.6 If any Option Shares shall be registered under the 1933 Act,
no public offering (otherwise than on a national securities exchange,
as defined in the Securities Exchange Act of 1934, as amended) of any
Option Shares shall be made by the Optionee (or any other person)
under such circumstances that he or she (or such other person) many be
deemed an underwriter, as defined in the 0000 Xxx.
7.7 The Optionee agrees that the Company shall have the authority
to endorse upon the certificate or certificates representing the
Option Shares such legends referring to the foregoing restrictions,
and any other applicable restrictions, as it many deem appropriate
(which do not violate the Optionee's rights according to this Option
Agreement).
8. SHARES SUBJECT TO RIGHT OF FIRST REFUSAL
8.1 Notwithstanding anything to the contrary in the Articles of
Association of the Company, the Optionee shall not have a right of
first refusal, co-sale right or pre-emptive right in relation with any
sale, transfer or allotment of shares in the Company.
8.2 Until such time as the Company shall effectuate an IPO, the
sale of Shares issuable upon exercise of an Option, by the Optionee,
shall be subject to a right of first refusal as defined and provided
for in the Articles of Association of the Company. The exercise of
such right of first refusal shall be made in accordance with the
provisions of Article 28 of the Company's Articles of Association.
9 GOVERNMENT REGULATIONS
The Option Plan, and the granting and exercise of the Option
thereunder, and the Company's obligation to sell and deliver Shares or
cash under the Option, are subject to all applicable laws, rules and
regulations, whether of the State of Israel or of the United States or
any other state having jurisdiction over the Company and the Optionee,
including the registration of the Shares under the 1933 Act, and to
such approvals by any governmental agencies or national securities
exchanges as may required.
10 CONTINUANCE OF EMPLOYMENT
Nothing in this Option Agreement shall be construed to
impose any obligation on the Company or a subsidiary thereof to
continue the Optionee's employment with it, to confer upon the
Optionee any right to continue in the employ of the Company or a
subsidiary thereof, or to restrict the right of the Company or a
subsidiary thereof to terminate such employment at any time
11 GOVERNING LAW & JURISDICTION
This Option Agreement shall be governed by and construed
and enforced in
-7-
accordance with the laws of the State of Israel applicable to
contracts made and to be performed therein, without giving effect to
the principles of conflict of laws. The competent courts of Tel-Aviv,
Israel shall have sole and exclusive jurisdiction in any matters
pertaining to this Option Agreement.
12 TAX CONSEQUENCES
Any tax consequences arising from the grant or exercise of
any Option, from the payment for Shares covered thereby or from any
other event or act (of the Company or the Optionee), hereunder, shall
be borne solely by the Optionee, to the extent permitted by applicable
law. The Company shall withhold taxes according to the requirements
under the applicable laws, rules, and regulations, including the
withholding of taxes at source. Furthermore, the Optionee shall agree
to indemnify the Company and hold it 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 Optionee.
13 FAILURE TO ENFORCE NOT A WAIVER
The failure of the any party to enforce at any time any
provisions of this Option Agreement shall in no way be construed to be
a waiver of such provision or of any other provision hereof.
14 PROVISIONS OF THE OPTION PLAN
The Options provided for herein are granted pursuant to the
Option Plan, and said Options and this Option are in all respects
governed by the Option Plan and subject to all of the terms and
provisions whether such terms and provisions are incorporated in this
Option Agreement solely by reference or are expressly cited herein.
Any interpretation of this Option Agreement will be made in
accordance with the Option Plan and in the event there is any
contradiction between the provisions of this Option Agreement and the
Option Plan, the provisions of the Plan will prevail.
15 BINDING EFFECT
This Option Agreement shall be binding upon the heirs,
executors, administrators, and successors of the parties hereof.
16 NOTICES
Any notice required or permitted under this Option Agreement
shall be deemed to have been duly given if delivered, faxed or mailed,
if delivered by certified or registered mail or return receipt
requested or by electronic mail, either to the Optionee at his or her
address set forth above or such other address as he or she may
designate in writing to the Company, or to the Company at one of the
addresses set forth above or such other
-8-
address as the Company may designate in writing to the Optionee,
within one from time to time.
17 LOCK-UP PERIOD
Optionee acknowledges that once the Company's shares will be
traded in any public market, the Optionee's right to sell his or her
Shares may be subject to some limitations, as set forth by the Company
or its underwriters. In such event, the Optionee will unconditionally
agree to any such limitations, and shall sign or exercise any
documentation as may be deemed reasonably necessary by the Company to
implement such limitation, immediately upon the Company's request.
18 ENTIRE AGREEMENT
The Option Plan, this Option Agreement, and any exhibits
hereto constitute the entire agreement of the parties hereto with
respect to the subject matter hereof, and, subject to the provisions
of Section 20 of the Option Plan, annul and supersede any other prior
agreement, arrangement or understanding, whether oral or in writing,
relating to the grant of options to the Optionee. Any change of any
kind to this Option Agreement will be valid only if made in writing
and signed by both the Optionee and the Company's authorized member
and has received the approval of the Board.
IN WITNESS WHEREOF, the Company executed this Option Agreement in duplicate on
the day and year first above written.
XACCT TECHNOLOGIES LTD.
By:
--------------------------
The undersigned hereby accepts, and agrees to, all terms and provisions of the
foregoing Option Agreement.
-----------------------------
The Optionee
-----------------------------
(type or print name)
-9-
EXHIBIT B
TERMS OF SHARE OPTIONS
1. Name of the Optionee:
----------------------------------------------
2. Number of Options granted:
----------------------------------------------
3. Price per Share:
----------------------------------------------
4. Expiration Date: 8 years from the Date of Grant
----------------------------------------------
5. Date of Grant:
----------------------------------------------
6. Exercisability: Immediately
----------------------------------------------
7. Vesting schedule:
----------------------------------------------
--------------------------------- --------------------------------------
NUMBER OF SHARES SUBJECT TO VESTING SCHEDULE
THE OPTIONS
--------------------------------- --------------------------------------
--------------------------------- --------------------------------------
--------------------------------- --------------------------------------
--------------------------------- --------------------------------------
--------------------------------- --------------------------------------
--------------------------------- --------------------------------------
--------------------------------- --------------------------------------
OPTIONEE XACCT TECHNOLOGIES LTD
------------------------------ ---------------------------------
Signature By
------------------------------ ---------------------------------
Print Name Its
-10-
EXHIBIT C
1998 STOCK OPTION PLAN
EXERCISE NOTICE
XACCT Technologies Ltd.
00 Xxxxxxxxxx Xxxxxx
Xxxxx xxx 00000, Israel
Attention: ________________________________________
1. EXERCISE OF OPTION. Effective as of today, ________________, ____, the
undersigned ("OPTIONEE") hereby elects to exercise Optionee's option (the
"OPTION") to purchase ________________ Voting Ordinary Shares (the "SHARES") of
XACCT Technologies Ltd. (the "COMPANY") under and pursuant to the 1998 Share
Option Plan (the "PLAN") and the Amended and Restated Share Option Agreement
dated ______________, _____ (the "OPTION AGREEMENT").
2. DELIVERY OF PAYMENT OR DOCUMENTS. Purchaser herewith delivers to the
Company (i) in the event that the options are fully Vested - the full purchase
price of the Shares, as set forth in the Option Agreement, and any and all
withholding taxes due in connection with the exercise of the Option; or, in the
event of an early exercise of options- a duly signed Installment Obligation
3. REPRESENTATIONS OF OPTIONEE. Optionee acknowledges that Optionee has
received, read and understood the Plan and the Option Agreement and agrees to
abide by and be bound by their terms and conditions.
4. RIGHTS AS SHAREHOLDER. Until the issuance of the Shares (as evidenced by
the appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company), no right to vote or receive dividends or any
other rights as a shareholder shall exist with respect to the Shares subject to
the Option, notwithstanding the exercise of the Option. The Shares shall be
issued to the Optionee as soon as practicable after the Option is exercised in
accordance with the Option Agreement. No adjustment shall be made for a dividend
or other right for which the record date is prior to the date of issuance except
as provided in the Plan.
5. TAX CONSULTATION. Optionee has reviewed with Optionee's own tax advisors
the federal, state, local and foreign tax consequences of this investment and
the transactions contemplated by the Option. Optionee is relying solely on such
advisors and not on any statements or representations of the Company or any of
its agents. Optionee understands that Optionee (and not the Company) shall be
responsible for Optionee's own tax liability that may arise as a result of this
investment or the transactions contemplated by the Option.
6. RESTRICTIVE LEGENDS AND STOP-TRANSFER ORDERS.
(a) LEGENDS. Optionee understands and agrees that the Company shall
cause the legends set forth below or legends substantially equivalent thereto,
to be placed upon any
-11-
certificate(s) evidencing ownership of the Shares together with any other
legends that may be required by the Company or by applicable laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL
REGISTERED UNDER THE ACT OR, IN THE OPINION OF COMPANY COUNSEL
SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR
TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER AND A RIGHT OF FIRST REFUSAL HELD BY THE
ISSUER OR ITS ASSIGNEE(S) AS SET FORTH IN THE ISSUER'S ARTICLES OF
ASSOCIATION, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE
OF THE ISSUER. SUCH TRANSFER RESTRICTIONS AND RIGHT OF FIRST REFUSAL
ARE BINDING ON TRANSFEREES OF THESE SHARES.
(b) STOP-TRANSFER NOTICES. Optionee agrees that the Company may
issue appropriate "stop transfer" instructions to its transfer agent, if any,
and that, if the Company transfers its own securities, it may make appropriate
notations to the same effect in its own records.
(c) REFUSAL TO TRANSFER. The Company shall not be required to treat
as owner of such Shares or to accord the right to vote or pay dividends to any
purchaser or other transferee to whom such Shares shall have been so
transferred.
7. SUCCESSORS AND ASSIGNS. The Company may assign any of its rights under
this Exercise Notice to single or multiple assignees, and this Exercise Notice
shall inure to the benefit of the successors and assigns of the Company. Subject
to the restrictions on transfer herein set forth, this Exercise Notice shall be
binding upon Optionee and his or her heirs, executors, administrators,
successors and assigns.
8. INTERPRETATION. Any dispute regarding the interpretation of this
Exercise Notice shall be submitted by Optionee or by the Company forthwith to
the Board of Directors of the Company which shall review such dispute at its
next regular meeting. The resolution of such a dispute by the Board of Directors
of the Company shall be final and binding on all parties.
9. GOVERNING LAW; SEVERABILITY. This Exercise Notice is governed by the
laws of the State of Israel. The competent courts of Tel-Aviv, Israel shall have
sole exclusive jurisdiction in any matters pertaining to the Option.
10. ENTIRE AGREEMENT. The Plan and Option Agreement are incorporated herein
by reference. This Exercise Notice, the Plan, the Restricted Share Purchase
Agreement and related documents, the Option Agreement and the Investment
Representation Statement constitute the entire agreement of the parties with
respect to the subject matter hereof and supersede in their entirety all prior
undertakings and agreements of the Company and Optionee with respect to the
subject matter
-12-
hereof, and may not be modified adversely to the Optionee's interest except by
means of a writing signed by the Company and Optionee.
Submitted by: Accepted by:
OPTIONEE XACCT TECHNOLOGIES LTD.
--------------------------------- ----------------------------------
Signature By
--------------------------------- ----------------------------------
Print Name Its
ADDRESS: ADDRESS:
00 Xxxxxxxxxx Xx.
--------------------------------- Ramat Gan 00000, Xxxxxx
---------------------------------
---------------------------------
----------------------------------
Date Received
-13-
EXHIBIT D-1
XACCT TECHNOLOGIES LTD.
1998 STOCK OPTION PLAN
RESTRICTED SHARE PURCHASE AGREEMENT
THIS AGREEMENT is made between ____________________________________ (the
"PURCHASER") and XACCT Technologies Ltd. (the "COMPANY") as of
__________________, ____.
RECITALS
(1) Pursuant to the exercise of the Options granted to Purchaser under the
1998 Stock Option Plan (the "PLAN") and pursuant to the Amended and Restated
Share Option Agreement (the "OPTION AGREEMENT") dated __________________ by and
between the Company and Purchaser with respect to such grant, which Plan and
Option Agreement are hereby incorporated by reference, Purchaser has elected to
purchase ___________________ of those shares which have not become vested under
the vesting schedule set forth in EXHIBIT B to Option Agreement (the "UNVESTED
SHARES") and the Board has approved such purchase.
(2) As required by the Option Agreement, as a condition to Purchaser's
election to exercise the option as to the Unvested Shares, Purchaser must
execute this Restricted Share Purchase Agreement, which sets forth the rights
and obligations of the parties with respect to Shares acquired upon exercise of
the Options.
1. INSTALLMENT OBLIGATION. ESCROW AGREEMENT; VESTING
(i) The payment of the amounts due pursuant to this Agrement and/or
the installment obligation with respect to the Unvested Shares shall be made in
accordance with the installment obligation executed by the Purchaser and
attached herewith as EXHIBIT I, forming an integral part hereof (the
"INSTALLMENT OBLIGATION")
(ii) To insure the availability for delivery of Purchaser's Unvested
Shares upon exercise by the Company of the Transfer Option under Section 2
below, Purchaser and the Company hereby irrevocably appoint the Company
secretary, or any other person designated by the Company as Escrow Agent, and
Purchaser further appoints and nominates such Escrow Agent as his
attorney-in-fact to sell, assign and transfer unto the Company or to any other
person as the Company may decide, such Unvested Shares, if any, transferred to
the Escrow and shall, upon execution of this Agreement, deliver and deposit with
the Escrow Agent, the share certificates representing the Unvested Shares,
together with the share assignment duly endorsed in blank, attached hereto as
EXHIBIT D-2. The Unvested Shares and share assignment(s) shall be held by the
Escrow Agent in escrow, pursuant to the Joint Escrow Instructions of the Company
and Purchaser attached as EXHIBIT D-3 hereto and forming an integral part
hereof. As a further condition to the Company's obligations
under this Agreement, the spouse of the Purchaser, if any, shall execute and
deliver to the Company the Consent of Spouse attached hereto as EXHIBIT D-4.
(ii) The Company, or its designee and the Escrow Agent shall not be
liable for any act it may do or omit to do with respect to holding the Shares in
escrow and while acting in good faith and in the exercise of its judgment.
(iii) Shares purchased herein shall vest (subject to continued
employment of Purchaser with the Company) in accordance with the following
schedule:
--------------------------------- --------------------------------------
NUMBER OF SHARES SUBJECT TO VESTING SCHEDULE
THE OPTIONS
--------------------------------- --------------------------------------
--------------------------------- --------------------------------------
--------------------------------- --------------------------------------
--------------------------------- --------------------------------------
--------------------------------- --------------------------------------
--------------------------------- --------------------------------------
--------------------------------- --------------------------------------
The vesting dates set forth above shall be accelerated at any time the
vesting dates pursuant to the Option Plan are accelerated.
2. TRANSFER OPTION.
(a) If (x) Purchaser fails to timely make any of the payments
pursuant to the Installment Obligation or (y) Purchaser's status as an employee
of the Company is terminated for any reason, including (without limitation) for
Cause, death, or disability, the Unvested Shares, as of the date of such
termination, at the Company's option, shall be either forfeited by the Company
or transferred to the trust (the "TRUST") maintained by the Company in
connection with its option program for its Israeli employees (in each case - the
"TRANSFER OPTION"). Upon exercise of the Transfer Option, the portion of
Purchaser's Installment Obligation incurred in connection with the Unvested
Shares shall be canceled.
(b) Upon the occurrence of a termination, the Company may exercise
the Transfer Option by delivering personally or by registered mail, to the
Escrow Agent, within ninety (90) days of the termination, a notice in writing
indicating the Company's intention to exercise the Transfer Option.
(c) If the Company does not elect to exercise the Transfer Option
conferred above by giving the requisite notice within the said ninety (90) days
period, the Transfer Option shall terminate, and Purchaser shall be liable to
promptly pay the Company all amounts due and outstanding at such time in respect
of the Shares and any interest accrued thereon in accordance with
-2-
the provisions of this Agreement, the Installment Obligation and the Company's
Articles of Association.
(d) The Transfer Option shall not apply to vested and fully paid for
Shares.
3. TRANSFERABILITY OF THE SHARES;
(a) The Unvested Shares and/or Shares that the amounts due in
respect thereof pursuant to this Purchase Agreement and/or the Installment
Obligation are not fully paid, shall not be assigned, transferred or given as
collateral or any right with respect to them may not be given to any third party
whatsoever, by the Purchaser until such time that the Unvested Shares or any
part thereof is fully vested and paid for.
(b) The Transfer or sale of the Shares is subject to restrictions on
transfer imposed by the Company's Articles of Association, the Option Plan and
any applicable state and federal securities laws.
4. OWNERSHIP, VOTING RIGHTS, DUTIES.
(a) This Agreement shall not affect in any way the ownership, voting
rights or other rights or duties of Purchaser, except as specifically provided
herein.
(b) Notwithstanding the above, it is hereby agreed that all
dividends paid on account of the Unvested Shares shall be paid to the Escrow
Agent who shall invest the funds (in case of cash dividends) in a manner that
the Company and the Purchaser shall mutually agree upon from time to time. All
the expenses and the costs of such investments (including without limitations
bank fees, commissions, broker's fees etc.,) shall be borne by the Purchaser and
may be deducted from the funds to be invested. The Escrow Agent shall release
and transfer bonus shares and cash dividends (together with any accrued
interest) upon the transfer of the Shares (or any part thereof) with respect to
which same was distributed, in accordance with the instructions of (i) the
Purchaser (in the event that the Shares are transferred to the Purchaser); or
(ii) the Company (if the Company exercises its Transfer Option.)
5. LEGENDS. The share certificate evidencing the Shares issued hereunder
shall be endorsed with the following legend (in addition to any legend required
under the Company's Articles of Association and any applicable federal or state
securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS UPON TRANSFER AND RIGHTS OF TRANSFER AS SET FORTH IN AN
AGREEMENT BETWEEN THE COMPANY AND THE SHAREHOLDER, A COPY OF WHICH
IS ON FILE WITH THE SECRETARY OF THE COMPANY.
6. ADJUSTMENT FOR SHARE SPLIT. All references to the number of Shares and
the purchase price of the Shares in this Agreement shall be appropriately
adjusted to reflect any share split, share dividend or other change in the
Shares that may be made by the Company after the date of this Agreement.
-3-
7. NOTICES. Notices required hereunder shall be given in accordance with
the provisions of Section 16 of the Amended and Restated Share Option Agreement.
8. SURVIVAL OF TERMS. This Agreement shall apply to and bind Purchaser and
the Company and their respective permitted assignees and transferees, heirs,
legatees, executors, administrators and legal successors.
9. SECTION 83(B) ELECTION. Purchaser hereby acknowledges that he or she has
been informed that, with respect to the exercise of an Option for unvested
Shares, an election may be filed by the Purchaser with the Internal Revenue
Service, within 30 days of the purchase of the Shares, electing pursuant to
Section 83(b) of the Internal Revenue Code of 1986, as amended (the "CODE"), to
be taxed currently on any difference between the purchase price of the Shares
and their Fair Market Value on the date of purchase. In the case of a
Nonstatutory Share Option, this may result in a recognition of taxable income to
the Purchaser on the date of exercise, measured by the excess, if any, of the
fair market value of the Shares, at the time the Options are exercised over the
purchase price for the Shares. Absent such an election, taxable income will be
measured and recognized by Purchaser at the time or times on which the Company's
Transfer Option lapses. Purchaser is strongly encouraged to seek the advice of
his or her own tax consultants in connection with the purchase of the Shares and
the advisability of filing of the Election under Section 83(b) of the Code. A
form of Election under Section 83(b) of the Code is attached hereto as EXHIBIT
D-5 for reference.
PURCHASER ACKNOWLEDGES THAT IT IS PURCHASER'S SOLE RESPONSIBILITY AND
NOT THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION 83(b).
10. REPRESENTATIONS. Purchaser has reviewed with his own tax advisors the
federal, state, local and foreign tax consequences of this investment and the
transactions contemplated by this Agreement. Purchaser is relying solely on such
advisors and not on any statements or representations of the Company or any of
its agents. Purchaser understands that he or she (and not the Company) shall be
responsible for his or her own tax liability that may arise as a result of this
investment or the transactions contemplated by this Agreement.
11. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Israel.
Purchaser represents that he or she has read this Agreement and is familiar
with its terms and provisions. Purchaser hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Board upon any
questions arising under this Agreement.
-4-
IN WITNESS WHEREOF, this Agreement is deemed made as of the date first set
forth above.
COMPANY
XACCT TECHNOLOGIES LTD.
---------------------------------------------
By
---------------------------------------------
Title
PURCHASER
---------------------------------------------
Signature
---------------------------------------------
Printed Name
---------------------------------------------
Social Security Number
ADDRESS:
---------------------------------------------
---------------------------------------------
-5-
EXHIBIT D-2
ASSIGNMENT SEPARATE FROM CERTIFICATE
(SHARE TRANSFER DEED)
FOR VALUE RECEIVED I, __________________________, hereby sell, assign and
transfer unto _______________________,. ______________________ (__________)
Voting Ordinary Shares of XACCT Technologies Ltd. standing in my name of the
books of said company represented by Certificate No. _____ herewith and do
hereby irrevocably constitute and appoint _____________________________ to
transfer the said shares on the books of the within named company with full
power of substitution in the premises.
This Share Transfer Deed may be used only in accordance with the Restricted
Share Purchase Agreement between XACCT Technologies Ltd. and the undersigned
dated ______________, ____.
Dated: _______________, ____
Signature:
------------------------------------
Name:
------------------------------------
Witnessed by:
------------------------------------
Name:
------------------------------------
Date:
------------------------------------
INSTRUCTIONS: Please do not fill in any blanks other than the signature line.
The purpose of this assignment is to enable the Company to exercise its
"transfer option," as set forth in the Agreement, without requiring additional
signatures on the part of the Purchaser.
-2-
EXHIBIT D-3
JOINT ESCROW INSTRUCTIONS
________________, ______
Xxxxxxx X. Xxxxxxxx, Advocate
X. Xxxxxxxx & Co, Advocate
0 Xxxxxx Xxxxxx Xxxxxx
Xxx Xxxx, Xxxxxx
Dear ____________:
As Escrow Agent for both XACCT Technologies Ltd. (the "COMPANY"), and the
undersigned purchaser of Voting Ordinary Shares of the Company (the
"PURCHASER"), you are hereby irrevocably authorized and directed to hold the
documents delivered to you pursuant to the terms of that certain Restricted
Share Purchase Agreement ("AGREEMENT") between the Company and the undersigned,
in accordance with the following instructions:
1. In the event the Company and/or any assignee of the Company (referred to
collectively for convenience herein as the "COMPANY") exercises the Company's
Transfer Option (as defined and set forth in the Agreement), the Company shall
give to Purchaser and you a written notice specifying the number of shares to be
transferred to the Trust, to the Company or to any other third party as may be
directed by the Board of Directors of the Company (the "BOARD"). Purchaser and
the Company hereby irrevocably authorize and direct you to close the transaction
contemplated by such notice in accordance with the terms of said notice.
2. At the closing, you are directed (a) to date the share assignments
necessary for the transfer in question, (b) to fill in the number of shares
being transferred, and (c) to deliver same, together with the certificate
evidencing the shares to be transferred, to the Trust or its assignee, to the
Company or to such other third party.
3. Purchaser irrevocably authorizes the Company to deposit with you any
certificates evidencing shares to be held by you hereunder and any additions and
substitutions to said shares as defined in the Agreement. Purchaser does hereby
irrevocably constitute and appoint you as Purchaser's attorney-in-fact and agent
for the term of this escrow to execute with respect to such securities all
documents necessary or appropriate to make such securities negotiable and to
complete any transaction herein contemplated, including but not limited to the
filing with any applicable state blue sky authority of any required applications
for consent to, or notice of transfer of, the securities. Subject to the
provisions of this paragraph 3, Purchaser shall exercise all rights and
privileges of a shareholder of the Company while the share is held by you.
4. Purchaser irrevocably authorizes the Company to deposit with you any
dividends distributed by the Company (whether in cash or in kind) with respect
to the Unvested Shares. Such
funds (in case of cash dividends) shall be invested by you in accordance with a
written instructions, signed by the Company and the Purchaser, received by you
from time to time. All the expenses and the costs of such investments (including
without limitations bank fees, commissions, broker's fees etc.,) shall be borne
initially by the Purchaser and may be deducted from the funds to be invested.
You shall release and transfer bonus shares and cash dividends (together with
any accrued interest) upon the transfer of the Shares (or any part thereof) with
respect to which same was distributed, in accordance with the instructions of
(i) the Purchaser- in the event that the Shares are transferred to the Purchaser
or in accordance with his or her instructions; or (ii) the Company- if the
Company exercises its Transfer Option.
5. Upon written request of the Purchaser, unless the Company's Transfer
Option has been exercised, and provided that all the amounts due with respect to
the Vested Shares pursuant to this Purchase Agreement and/or the Installment
Obligation have been fully paid, you will deliver to Purchaser a certificate or
certificates representing so many Shares as are not then subject to the
Company's Transfer Option. Within 120 days after cessation of Purchaser's
continuous employment by the Company, or any parent or subsidiary of the
Company, you will deliver to Purchaser a certificate or certificates
representing the aggregate number of vested and fully paid for shares held or
issued pursuant to the Agreement and not transferred pursuant to exercise of the
Company's Transfer Option.
6. If at the time of termination of this escrow you should have in your
possession any documents, securities, or other property belonging to Purchaser,
you shall deliver all of the same to Purchaser and shall be discharged of all
further obligations hereunder.
7. Your duties hereunder may be altered, amended, modified or revoked only
by a writing signed by all of the parties hereto.
8 You shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely and shall be protected in relying or
refraining from acting on any instrument reasonably believed by you to be
genuine and to have been signed or presented by the proper party or parties. You
shall not be personally liable for any act you may do or omit to do hereunder as
Escrow Agent or as attorney-in-fact for Purchaser while acting in good faith,
and any act done or omitted by you pursuant to the advice of your own attorneys
shall be conclusive evidence of such good faith. Anything herein to the contrary
notwithstanding, you shall not be liable for special, indirect or consequential
loss or damage of any kind (including but not limited to lost profit) even if
the you have been advised of the likelihood of such loss or damage and
regardless of the form of action.
9. You are hereby expressly authorized to disregard any and all warnings
given by any of the parties hereto or by any other person or corporation,
excepting only orders or process of courts of law and are hereby expressly
authorized to comply with and obey orders, judgments or decrees of any court. In
case you obey or comply with any such order, judgment or decree, you shall not
be liable to any of the parties hereto or to any other person, firm or
corporation by reason of such compliance, notwithstanding any such order,
judgment or decree being subsequently reversed, modified, annulled, set aside,
vacated or found to have been entered without jurisdiction.
-2-
10. Your obligations as Escrow Agent are those specifically provided herein
and you shall have no liability, or duty to inquire into, the terms and
provisions of any agreement among the other parties hereto including the
Agreement.
11. You shall not be liable in any respect on account of the identity,
authorities or rights of the parties executing or delivering or purporting to
execute or deliver the Agreement or any documents or papers deposited or called
for hereunder. You shall not have any responsibility for the geniuses or
validity of any document or other item deposited with you or of any signature
thereon and shall not have any liability for acting in accordance with any
written instructions or certificates given to you hereunder and believed by you
to be properly signed.
12. You shall not be liable for the outlawing of any rights under the
Statute of Limitations with respect to these Joint Escrow Instructions or any
documents deposited with you.
13. You shall be entitled to employ such legal counsel and other experts as
you may deem necessary properly to advise you in connection with your
obligations hereunder, may rely upon the advice of such counsel, and may pay
such counsel reasonable compensation therefor. The Company shall hold you
harmless and indemnify you against any and all expenses, claims, losses, damages
or liabilities (a "LOSS") that may be incurred by you arising out of or in
connection with the performance of your obligation pursuant to this Agreement
provided such Loss or action are not arising out of the gross negligence or
willful misconduct on your part.
14. Your responsibilities as Escrow Agent hereunder shall terminate if you
shall cease to be an officer or agent of the Company or if you shall resign by
written notice to each party. In the event of any such termination, the Company
shall appoint a successor Escrow Agent.
15. If you reasonably require other or further instruments in connection
with these Joint Escrow Instructions or obligations in respect hereto, the
necessary parties hereto shall join in furnishing such instruments.
16. It is understood and agreed that should any dispute arise with respect
to the delivery and/or ownership or right of possession of the securities held
by you hereunder, you are authorized and directed to retain in your possession
without liability to anyone all or any part of said securities until such
disputes shall have been settled either by mutual written agreement of the
parties concerned or by a final order, decree or judgment of a court of
competent jurisdiction after the time for appeal has expired and no appeal has
been perfected, but you shall be under no duty whatsoever to institute or defend
any such proceedings.
17. Any notice required or permitted hereunder shall be given in writing
and shall be deemed effectively given upon personal delivery or upon deposit in
the United States Post Office, by registered or certified mail with postage and
fees prepaid, addressed to each of the other parties thereunto entitled at the
following addresses or at such other addresses as a party may designate by ten
days' advance written notice to each of the other parties hereto.
-3-
THE COMPANY: XACCT Technologies Ltd.
00 Xxxxxxxxxx Xxxxxx
Xxxxx Xxx, Xxxxxx
Attention: Chief Financial Officer
Or
XACCT Technologies Ltd.
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000 XXX
Attention: Chief Financial Officer
PURCHASER:
------------------------------------------
------------------------------------------
------------------------------------------
Fax Number:
------------------------------------------
E- Mail:
------------------------------------------
ESCROW AGENT: Xxxxxxx X. Xxxxxxxx Advocate
X. Xxxxxxxx & Co., Advocates and Notaries
3 Xxxxxx Xxxxxx Xxxxxx
Xxx Xxxx, Xxxxxx
00. By signing these Joint Escrow Instructions, you become a party hereto
only for the purpose of said Joint Escrow Instructions; you do not become a
party to the Agreement.
18. This instrument shall be binding upon and inure to the benefit of the
parties hereto, and their respective successors and permitted assigns.
19. These Joint Escrow Instructions shall be governed by the internal
substantive laws of the State of Israel.
-4-
XACCT TECHNOLOGIES LTD.
---------------------------------------------
By
---------------------------------------------
Title
THE PURCHASER
---------------------------------------------
Signature
---------------------------------------------
Typed or Printed Name
THE ESCROW AGENT
---------------------------------------------
Company Secretary
-5-
EXHIBIT D-4
CONSENT OF SPOUSE
I, _______________________________, spouse of ___________________________,
have read and approve the foregoing Agreement. In consideration of granting of
the right to my spouse to purchase shares of ____________________________, as
set forth in the Agreement, I hereby appoint my spouse as my attorney-in-fact in
respect to the exercise of any rights under the Agreement and agree to be bound
by the provisions of the Agreement insofar as I may have any rights in said
Agreement or any shares issued pursuant thereto under the community property
laws or similar laws relating to marital property in effect in the state of our
residence as of the date of the signing of the foregoing Agreement.
Dated:
------------------------ --------------------------------------
Signature
EXHIBIT D-5
ELECTION UNDER SECTION 83(B)
OF THE INTERNAL REVENUE CODE OF 1986
The undersigned taxpayer hereby elects, pursuant to Sections 55 and 83(b)
of the Internal Revenue Code of 1986, as amended, to include in taxpayer's gross
income or alternative minimum taxable income, as the case may be, for the
current taxable year the amount of any compensation taxable to taxpayer in
connection with taxpayer's receipt of the property described below:
1. The name, address, taxpayer identification number and taxable year of the
undersigned are as follows:
NAME: TAXPAYER ID #:
------------------------ -------------------------
ADDRESS:
--------------------------------------------------------------
IDENTIFICATION #: TAXABLE YEAR:
------------ -------------------------
SPOUSE: TAXPAYER ID #:
------------------------ -------------------------
ADDRESS:
--------------------------------------------------------------
IDENTIFICATION #: TAXABLE YEAR:
------------ -------------------------
2. The property with respect to which the election is made is described as
follows: _____________ Voting Ordinary Shares (the "Shares") of XACCT
Technologies Ltd. (the "Company").
3. The date on which the property was transferred is: ______________________.
4. The property is subject to the following restrictions:
The Shares may not be transferred and are subject to forfeiture under the
terms of an agreement between the taxpayer and the Company. These
restrictions lapse upon the satisfaction of certain conditions contained in
such agreement.
5. The fair market value at the time of transfer, determined without regard to
any restriction other than a restriction which by its terms will never
lapse, of such property is: $______________________.
6. The amount (if any) paid for such property is: $______________________.
The undersigned has submitted a copy of this statement to the person for
whom the services were performed in connection with the undersigned's receipt of
the above-described property. The transferee of such property is the person
performing the services in connection with the transfer of said property.
THE UNDERSIGNED UNDERSTANDS THAT THE FOREGOING ELECTION MAY NOT BE REVOKED
EXCEPT WITH THE CONSENT OF THE COMMISSIONER.
Dated:
-------------------------- --------------------------------
Taxpayer
The undersigned spouse of taxpayer joins in this election.
Dated:
-------------------------- --------------------------------
Spouse of Taxpayer
IN ADDITION TO KEEPING A COPY FOR YOURSELF, SEND ONE (1) COPY EACH TO THE
COMPANY AND TO YOUR IRS SERVICE CENTER*:
THE COMPANY: INTERNAL REVENUE SERVICE:
XACCT TECHNOLOGIES LTD. *The 83b election should be filed with the IRS
0000 XXXXXXXX XXXXX service center where you normally file your tax
XXXXX XXXXX, XX 00000 XXX return. For residents of Alameda, San Mateo and
ATTENTION: TREASURER Santa Xxxxx Counties, the address is:
INTERNAL REVENUE SERVICE CENTER
XXXXXX, XX 00000
-2-
EXHIBIT E
XACCT TECHNOLOGIES LTD.
1998 STOCK OPTION PLAN
INVESTMENT REPRESENTATION STATEMENT
OPTIONEE :
-------------------------------
COMPANY : XACCT TECHNOLOGIES LTD.
SECURITY : VOTING ORDINARY SHARES
AMOUNT :
-------------------------------
DATE :
-------------------------------
In connection with the purchase of the above-listed securities (the
"SECURITIES"), the undersigned Optionee represents to the Company the following:
1. Optionee is aware of the Company's business affairs and financial condition
and has acquired sufficient information about the Company to reach an
informed and knowledgeable decision to acquire the Securities.
2. Optionee acknowledges and understands that the Securities constitute
"restricted securities" under the Securities Act of 1933, as amended (the
"SECURITIES ACT") and have not been registered under the Securities Act in
reliance upon a specific exemption therefrom. Optionee further understands
that the Securities may not be transferred in the United States for an
indefinite period of time, unless they are subsequently registered under
the Securities Act or an exemption from such registration is available.
Optionee further acknowledges and understands that the Company is under no
obligation to register the Securities. Optionee understands that any
receipt evidencing the Securities will be imprinted with a legend that
prohibits the transfer of the Securities in the United States, unless they
are registered or such registration is not required in the opinion of
counsel satisfactory to the Company.
3. Optionee is familiar with the provisions of Rule 701 and Rule 144, each
promulgated under the Securities Act, which, in substance, permits limited
public resale of "restricted securities" in the United States acquired,
directly or indirectly from the issuer thereof, in a non-public offering
subject to the satisfaction of certain conditions. Rule 701 provides that
if the issuer qualifies under Rule 701 at the time of the grant of the
Option to the Optionee, the exercise will be exempt from registration under
the Securities Act. In the event the Company becomes subject to the
reporting requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended, ninety (90) days thereafter (or such longer period
as any market stand-off agreement may require) the Securities exempt under
Rule 701 may be
resold in the United States, subject to the satisfaction of certain of the
conditions specified by Rule 144, including: (1) the resale being made
through a broker in an unsolicited "broker's transaction" or in
transactions directly with a market maker (as said term is defined under
the Securities Exchange Act of 1934); and, in the case of an affiliate, (2)
the availability of certain public information about the Company, (3) the
amount of Securities being sold during any three month period not exceeding
the limitations specified in Rule 144(e), and (4) the timely filing of a
Form 144, if applicable.
In the event that the Securities do not qualify under Rule 701 at the time
of grant, then the Securities may be resold in the United States only under
certain limited circumstances subject to the provisions of Rule 144, which
requires the resale to occur not less than two years after the later of the
date the Securities were sold by the Company or the date the Securities
were sold by an "affiliate" of the Company, within the meaning of Rule 144;
and, in the case of acquisition of the Securities by an affiliate, or by a
non-affiliate who subsequently holds the Securities less than three years,
the satisfaction of the conditions set forth in section (1), (2), (3), and
(4) of the paragraph immediately above.
4. Optionee further understands that in the event all of the applicable
requirements of Rule 701 or 144 are not satisfied, registration under the
Securities Act, compliance with Regulation A, or some other registration
exemption will be required; and that, notwithstanding the fact that Rules
144 and 701 are not exclusive, the Staff of the Securities and Exchange
Commission has expressed its opinion that persons proposing to sell private
placement securities in the United States other than in a registered
offering and otherwise than pursuant to Rules 144 or 701 will have a
substantial burden of proof in establishing that an exemption from
registration is available for such offers or sales, and that such persons
and their respective brokers who participate in such transactions do so at
their own risk. Optionee understands that no assurances can be given that
any such other registration exemption will be available in such event.
Signature of Optionee:
-------------------------------
Date:
-------------------------
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_________, ____, _________
XACCT Technologies Ltd.
00 Xxxxxxxxxx Xxxxxx
Xxxxx Xxx, Xxxxxx
RE: INSTALLMENT OBLIGATION
Pursuant to the exercise of the Options granted to the undersigned under
the Option Plan (the "PLAN") and pursuant to the Amended and Restated Share
Option Agreement (the "OPTION AGREEMENT") dated ____________________ by and
between the parties hereto with respect to such grant, which Plan and Option
Agreement are hereby incorporated by reference, I hereby confirm and undertake
as follows:
1. The payment of the amounts due as a result of the early exercise of the
options (the "PAYMENT") shall be made in installments in accordance with the
following terms and conditions:
(a) The Payment shall bear interest at the rate of 6.5% per annum (the
"INTEREST") accumulating on an annual basis as of the date of exercise of such
Options and until the date of actual payment. The Payment and any Interest
accrued thereon shall be paid in cash or by check to the Escrow Agent (as such
term is defined in the Restricted Share Purchase Agreement of even date among
the parties hereto (the "PURCHASE AGREEMENT") upon the vesting date of each
portion of the shares deposited in Escrow pursuant to the provisions of Section
1 (iii) of the Purchase Agreement.
(b) Notwithstanding the above, the payment of the balance may be deferred
by me, at my election, but not to a date later than the earlier of; (i)
immediately prior to the delivery of the applicable certificate or certificates
representing the Vested Shares (as such Term is defined in Section 2 (b) below),
or any part thereof, to the me or to the broker designated by me in writing; or
(ii) the termination, for any reason, of my employment with the Company.
2. I understand and agree as follows:
(a) I may not make any early payment of any amount due under this
Installment Obligation or pursuant to the Purchase Agreement without the prior
written approval of the Company.
(b) Until payment in full of the Payment and any Interest accrued thereon,
the Shares (as such term is defined in the Plan) shall remain deposited in
escrow, and, notwithstanding the provisions of the Joint Escrow Instructions,
attached as EXHIBIT D-2 to the Option Agreement, and dated of even date, the
Escrow Agent shall not be allowed to deliver any certificate or certificates
representing Shares, even if these Shares are fully vested. Until all amounts
due and outstanding in respect such Vested Shares (as defined below) pursuant to
this Installment Obligation and /or the Purchase Agreement are fully paid for
such Vested Shares shall be subject to the Company's Transfer Option. Shares
with respect to which the vesting period has elapsed but which have not yet been
paid for in full are referred to herein as the "VESTED SHARES".
3. Furthermore and without derogating from the Company's right of
forfeiture pursuant to the Company's Articles of Association, as may be amended
from time to time (the "ARTICLES"), I hereby understand and agree that the
Company shall have a first and paramount lien on every Share, , including a
Vested Share, for all monies, payable in respect of that Share, as set forth
herein. Such
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lien shall be in effect and may be exercised in accordance with the provisions
of the Articles. Neither the provision of this Installment Obligation and the
Purchase Agreement nor the Joint Escrow Instructions shall derogate from the
Company's right to collect the full payment of all moneys payable in respect of
any Share as provided herein and in the Articles. Notwithstanding anything to
the contrary in the Company's Articles, I agree that if the Company exercises
its Transfer Option or exercises such lien with respect to the Unvested Shares,
I shall not be entitled to any monies paid to the Company in consideration for
the resale of such Shares including the balance remaining after applying the net
proceeds of any such sale, after payment of the costs thereof, toward
satisfaction of my debts to the Company.
4. Notwithstanding the above, upon the earlier of (i) termination of my
employment with the Company, whether for Cause or not for Cause (as such term is
defined in the Plan), or (ii) the elapse of five (5) year period commencing upon
the date hereof all monies (including Interest) payable in respect to any Vested
Share as set forth herein shall immediately be paid by me to the Company.
6. All terms used herein and not otherwise defined shall have the meaning
attached to them in the Purchase Agreement.
Sincerely yours,
------------------------
signature
------------------------
name
Confirmed and Approved
--------------------------------------
XACCT Technologies Ltd.
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PROXY
I, the undersigned being a Voting Ordinary shareholder of XACCT
Technologies Ltd. ("the COMPANY"), do hereby appoint Xxxxxxx X. Xxxxxxxx, Adv.,
the trustee under the early exercise option arrangement, as my agent and proxy
to: (i) vote on my behalf all my share holding in the Company; and (ii) receive
on my behalf all notices relating to the Company including without derogation
from the generality of the above any notices of any shareholders meeting
(annual, general or extraordinary), first refusal rights, first offer rights,
pre-emptive rights or any other rights under the Articles of Association or any
agreement, and for as long as this Proxy is effective. Any notice received by
Xxxxxxx X. Xxxxxxxx, Adv. shall be deemed received by the undersigned.
I hereby instruct the Company to act according to this Proxy as detailed
above and hereby declare that any right I may have as a holder of the Company's
Voting Ordinary shares may be exercised only by Xxxxxxx X. Xxxxxxxx, Adv.
This Proxy shall automatically expire upon the effectuation of an initial
public offering of the Company's securities.
Signature:
--------------------------------
Name (printed):
--------------------------------
Dated:
--------------------------------
Witnessed by:
Signature:
--------------------------------
Name (printed):
--------------------------------
Dated:
--------------------------------
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