Exhibit (d)(5)
Nur Macroprinters Ltd.
Employee Share Option Plan Agreement
("Option Award")
Nur Macroprinters Ltd. ("Nur"), a company incorporated and existing
under the laws of the State of Israel, hereby grants as of the __ day of ______,
2000 to the grantees listed in Appendix A attached hereto (the "Grantee"), an
option (the "Option(s)") to purchase a maximum _________________ (______) of
Ordinary Shares (nominal value New Israeli Shekels 1.0 each) of Nur (the
"Shares"), at an Exercise Price of [________] U.S. Dollars ($__) per Share,
(which Exercise Price is not less than the "fair market value" (as described in
code Section 422(b)(4)) of the Shares on the grant date (110% of such fair
market value in the case of an individual who owns more than 10% of the combined
voting power of all classes of stock in Nur or a parent corporation or
subsidiary corporation (a "10% Stockholder"))), on the following terms and
conditions:
1. Grant Under the 1997 Stock Option Plan. These Options are granted
pursuant to the 1997 Employee Stock Option Plan, as amended (the "Plan"), which
has been initially adopted by Nur on October 15, 1997, for the purpose of
providing incentives to officers, directors, employees and consultants of Nur
and its Affiliates. The plan is attached hereto as Appendix B. Unless the
context otherwise requires, terms used herein shall have the same meaning as in
the Plan. Determinations made in connection with this Option Award pursuant to
the Plan shall be governed by the terms of the Plan as it exists on this date.
The Options subject to this Option Award are intended to be "incentive stock
option" as described in Section 422 of the Internal Revenue Code of 1986 (the
"Code") ("ISOs"). To the extent some or all of the Options subject to this
Option Award exceed the $100,000 rule of Code Section 422(d), this Option Award
or the lesser excess part will be treated as a nonqualified stock option under
the United States tax law.
2. Other Options. The Options granted hereunder are in addition to any
other options heretofore or hereafter given to the Grantee by Nur, but a
duplicate original of this instrument shall not effect the grant of additional
such Options.
3. Exercise of Options.
3.1 Options granted hereunder shall be exercisable pursuant to
the vesting schedule set forth in Section 3.2 below, provided that no Option
shall be exercisable after the expiration of ten (10) years from the date
hereof, or five (5) years in the case of a Grantee who is a 10% Stockholder.
3.2 Subject to Section 4, the schedule pursuant to which such
Options shall vest, and the Grantee shall be entitled to pay for, and acquire,
the Shares, shall be as follows: the Options granted hereunder shall vest over a
four (4) year period from the date hereof so that one third (1/3) of the Options
granted hereunder shall vest upon the second anniversary of this Agreement, and
additional portions of one third (1/3) of the Options granted hereunder shall
vest on each subsequent anniversary of the date hereof, so that upon the expiry
of four (4) years from the date hereof, all the Options granted hereunder shall
be vested. Vesting of Options granted hereunder would continue only during
periods when the employer-employee or other
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service-provider relationship exists between the relevant Affiliate and the
Grantee. For the purposes of this Section 3.2, the employer-employee or other
service-provider relationship will not be deemed to exist with regard to periods
during which the Grantee is on an unpaid leave of absence from the Affiliate.
The rules under Code Section 422 shall apply with respect to whether the Options
retain their status as ISOs during a leave of absence.
4. Termination of Employment.
4.1 In the event that a Grantee ceases, for any reason, to be
employed by the Nur or any of its Affiliates, all Options theretofore granted to
such Grantee shall terminate as follows, subject to the provisions of 3.2 above
and 12.2 below:
(a) All Options, which are not vested and not
exercisable at the time of the cessation of employment, shall terminate
immediately.
(b) All exercisable Options at the time of the
Grantee's cessation of employment shall be exercisable at any time until the end
of three (3) months from the cessation of the Employees employment (but in no
event after the expiration date of such Option), and shall thereafter terminate.
(c) Notwithstanding the aforesaid in Section 4.3(b)
above, if the Grantee's termination of employment is due to (i) breach of the
Grantee's fiduciary duties towards Nur or any of its Affiliates, or (ii) breach
of the Grantee's duty of care towards Nur or any of its Affiliates, or (iii) the
Grantee has committed any flagrant criminal offense, or (iv) the Grantee has
committed a fraudulent act towards Nur or any of its Affiliates, or (v) the
Grantee caused intentionally, by act or omission, any financial damage to Nur or
any of its Affiliates, all the Options whether vested or not shall ipso facto
expire immediately and be of no legal effect. For the purposes of this Section
4.1(c), the date of termination of employment shall be the date on which the
termination notice is sent to the Grantee, or the date on which the resignation
notice is sent to the employer, as the case may be, regardless of the actual
date of cessation of work.
(d) Notwithstanding the aforesaid, if the Grantee
ceases to be a full-time employee of Nur or any of its Affiliates and becomes a
part-time employee, such Options (to the extent exercisable at the time the
Grantee ceases to be a full-time employee of any of the Companies) shall be
exercisable for a period of six (6) months following such cessation of the
full-time employment, and shall thereafter terminate. All Options that are not
vested at the time of cessation of the full-time employment shall ipso facto
expire and be of no legal effect.
(e) If a Grantee should retire (as such term is defined
by the Committee at its sole and absolute discretion), he shall, subject to
the approval of the Committee, continue to enjoy such rights, if any, under
the Plan and on such terms and conditions, with such limitations and subject
to such requirements as the Committee in its discretion may determine.
(f) Notwithstanding any inconsistent or contrary
provision of the Plan or this Option Award, if this Option Award has not expired
on the relevant date, the Options represented in this Option Award shall cease
to be treated as ISOs 91 days after the Grantee ceases to be a common law
employee of Nur or a parent corporation or subsidiary
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corporation (as defined in Code Sections 424(e) and 424(f)) (a "Common Law
Employee"), unless the Grantee ceases to be a Common Law Employee by reason of
death or disability (as defined in code Section 22(e)(3)), in which case the
term "1 year and 1 day" shall replace the term "91 days" in this clause above.
4.2 Whether the cessation of employment of a particular
Grantee is by virtue of "retirement" for purposes of paragraph 4.1(e) hereof, or
is a termination of employment other than by reason of such retirement, or is
for reasons as set forth in paragraph 4.1(c) hereof, shall be finally and
conclusively determined by the Committee in its absolute discretion.
4.3 Notwithstanding the foregoing provisions of Section 4.1,
the Committee may provide, either at the time an Option is granted or
thereafter, that such Option may be exercised after the periods provided for in
Section 4.1, but in no event beyond the term of the Option.
5. Partial Exercise. Exercise of Options granted hereunder up to the
extent above stated may be made in part at any time and from time to time within
the above limits, except that an Option may not be exercised for a fraction of a
share.
6. Payment of Exercise Price. The Exercise Price is payable in United
States Dollars (or such currency authorized by the Committee or approved by Nur
at the time of payment) on exercise of the Option and may be paid in cash, by
bankers check, or by personal check or such other means or equivalent approved
by the Committee or acceptable to Nur which conforms with applicable law.
7. Agreement to Purchase for Investment. Certain of the Shares
represented by the Options granted hereunder are subject to registration and
prospectus requirements of the United States Securities Act of 1933, as amended
("Unregistered Shares"). By acceptance of these Options, the Grantee agrees that
a purchase of Unregistered Shares under such Options will not be made with a
view to their distribution, as that term is used in the aforesaid Act, unless in
the opinion of counsel to Nur such distribution is in compliance with or exempt
from the said registration and prospectus requirements, and the Grantee agrees,
if required by the Committee or by Nur at the time of exercise, to sign a
certificate to such effect at the time or times he exercises the Options in
respect of Unregistered Shares. The Grantee further acknowledges and understands
that the Unregistered Shares purchased upon exercise of these Options must be
held indefinitely unless they are subsequently registered under the United
States Securities Act or an exemption from such registration is available. The
Grantee understands that the certificate evidencing the Unregistered Shares will
be imprinted with a legend in substantially the following form:
"The Shares represented by this Certificate have not been registered
under the United States Securities Act of 1933. The Shares have been
acquired for investment and may not be sold, transferred or assigned in
the absence of an effective registration statement for these Shares
under the United States Securities Act of 1933, or an opinion of Nur
Macroprinters Ltd's counsel, that registration is not required under
the said Act."
8. Method of Exercising Options. Subject to the terms and conditions of
this Agreement, the Options granted hereunder may be exercised by signing and
returning to Nur, at its principal executive offices, the "Notice of Exercise"
which is set forth in Appendix C
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hereto. Such Notice of Exercise shall state the election to exercise the Options
and the number of Shares in respect of which such Options are being exercised
and shall be signed by the person or persons so exercising the Option. Such
Notice of Exercise shall be accompanied by payment of the full Exercise Price of
such Shares, and Nur shall deliver a certificate or certificates representing
such Shares as soon as practicable after the Notice of Exercise shall be
received by Nur. The certificate or certificates for the Ordinary Shares as to
which the Options shall have been so exercised shall be registered in the name
of the person or persons so exercising the Options (or, if the Options shall be
exercised by the Grantee and another person jointly, with right of survivorship,
or in the name of a broker either for the sole account of the Grantee or for the
account of the Grantee jointly with another person) and shall be delivered as
provided above to or upon the written order of the person or persons exercising
the Options. All Shares that shall be purchased upon the exercise of the
Options as provided herein shall be fully paid and nonassessable.
9. No Obligation to Exercise Option. The grant and acceptance of these
Options imposes no obligation on the Grantee to exercise them.
10. No Obligation to Continue Employment. Nur or any of its Affiliates
are not obligated by the Plan or this grant of Options to continue the Grantee
in employment.
11. No Rights as Shareholder Until Exercise. The Grantee shall have no
rights as a shareholder with respect to Shares under this grant of Options until
a share certificate therefor has been delivered to the Grantee and is fully paid
for. No adjustment shall be made for dividends or other rights for which the
record date is prior to the date such share certificate is issued.
12. Capital Changes and Business Successions.
12.1 Subject to any required action by the shareholders of
Nur, the number of Shares covered by each outstanding Option, and the number of
Shares which have been authorized for issuance under the Plan but as to which no
Options have yet been granted or which have been returned to the Plan upon
cancellation or expiration of an Option, as well as the Exercise Price per Share
covered by each such outstanding Option, shall be proportionately adjusted for
any increase or decrease in the number of issued Shares resulting from a stock
split, reverse stock split, stock dividend, combination or reclassification of
the Shares or the payment of a stock dividend (bonus shares) with respect to the
Shares or any other increase or decrease in the number of Shares effected
without receipt of consideration by Nur; provided, however, that conversion of
any convertible securities of Nur shall not be deemed to have been "effected
without receipt of consideration". Such adjustment shall be made in the sole and
absolute discretion of the Committee, whose determination in that respect shall
be final, binding and conclusive. Except as expressly provided herein, no
issuance by Nur of shares of any class, or securities convertible into shares of
stock of any class, shall affect, and no adjustment by reason thereof shall be
made with respect to, the number or Exercise Price subject to an Option.
12.2 In the event of the proposed dissolution or liquidation
of Nur, the Committee shall notify each Grantee at lease forty-five (45) days
prior to such proposed action. To the extent it has not been previously
exercised, each Option will terminate immediately prior to the consummation of
such proposed action.
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12.3 If upon a merger, consolidation, reorganization,
recapitalization or the like with or into another corporation, the shares of Nur
shall be exchanged for other securities of a successor corporation or a parent
or subsidiary of such successor corporation (the "Successor Entity"), then, each
Option shall, at the sole and absolute discretion of the Committee, either:
(a) Be substituted for options to purchase shares of
either Nur or Successor Entity, and appropriate adjustments shall be made in the
Exercise Price to reflect such exchange; or
(b) Be assumed by the Successor Entity such that the
Employee may exercise the Options for such number of shares of either Nur or
Successor Entity or amount of other securities thereof, and appropriate
adjustments shall be made in the purchase price per share to reflect such
exchange.
13. Withholding of Taxes. Nur shall have the right to deduct from any
payment of cash to any Grantee an amount equal to the income taxes and other
amounts required by law to be withheld with respect to any Option granted
hereunder. Notwithstanding anything to the contrary contained herein, if a
Grantee is entitled to receive Shares upon exercise of an Option, Nur shall have
the right to require such Grantee, prior to the delivery of such Shares, to pay
to Nur the amount of any income taxes and other amounts that Nur is required by
law to withhold.
14. Governing Law. This Agreement shall be governed by, and interpreted
in accordance with, the laws of the jurisdiction whose laws govern the terms of
employment of the Grantee.
15. Disposition of Shares. In the event Grantee sells or otherwise
disposes of Shares within one year of exercise or two years of grant, Grantee
agrees to notify Nur in advance in writing of this action.
IN WITNESS WHEREOF Nur has caused this instrument to be executed, and
the Grantee whose signature appears below acknowledges receipt of a copy of the
Plan and acceptance of an original copy of this Agreement from Nur.
Nur Macroprinters Ltd. ________________
Grantee
By: ______________
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Appendix A
Terms of the Option
1. Name of the Optionee:
_________________________________________________
2. Number of Options granted:
_________________________________________________
3. Expiration Date:
_________________________________________________
4. Date of Grant:
_________________________________________________
5. Vesting schedule
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Number of Options Vesting Date Exercise Price
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24 months from the Date Of Grant
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36 months from the Date Of Grant
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48 months from the Date Of Grant
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Appendix B
1997 Stock Option Plan
