Exhibit 10.2
THIS GRANT LETTER, THE OPTION AND THE
SECURITIES ISSUABLE UPON EXERCISE OF THIS OPTION HAVE NOT BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE, AND WILL BE
ISSUED IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “1933 ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT OR BASED ON AN OPINION
OF COUNSEL SATISFACTORY, IN FORM AND SUBSTANCE, TO THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
1933 ACT AND IN ACCORDANCE WITH REGULATION S, AS PROMULGATED BY THE SECURITIES AND
EXCHANGE COMMISSION (“REGULATION S”) APPLICABLE FEDERAL, STATE, AND FOREIGN
SECURITIES LAWS. HEDGING TRANSACTIONS INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED
UNLESS IN COMPLIANCE WITH THE 1933 ACT.
Date:____________
To the Participant,
____________, ID ____________
| 1. |
You
are hereby notified that on ___________ the Board of Directors of the Acro
Inc. (the “Company”) has resolved that you shall be granted
___________ options, each to purchase one Common Stock par value of
US$0.001 of the Company at an exercise price per share of US$ ____ (the
“Options”). |
| 2. |
The
Options, shares resulting from their exercise (“Shares”)
and any additional rights including share bonus that shall be distributed
to you in connection with the Options (“Additional Rights”)
shall be granted on your behalf to the Trustee – the ESOP Trust
Company (the “Trustee”) and shall be taxed in accordance
with Section 3(i) of the Israeli Income Tax Ordinance, 1961 (“Section
3(i)”). As a result, you may be required to pay taxes upon the
exercise of the Options, even if the Shares are not sold upon such
exercise. |
| 3. |
Unless
otherwise determined by the Company’s Board of Directors, all Options
granted to you on this date shall, subject to your continued service to
the Company, become vested and in accordance with the following vesting
schedule: |
| 4. |
The
Options may be exercised by: (i) sending the Company (at its principal
office) an exercise notice which includes the number of Options you wish
to exercise; and (ii) payment (by cash or check) of the exercise price to
be paid. |
| 5. |
All
tax consequences under any applicable law which may arise from the grant of
the Options, from the exercise thereof or from the holding or sale of the
Shares deliverable upon exercise (or other securities issued in connection
of the Options) shall be borne solely by you. |
| 6. |
You
shall not have any rights as a shareholder with respect to the Options,
until such time as the Options are exercised into Shares and registered in
your name in the Company’s register of shareholders. |
| 7. |
The
Options are granted to you on condition that you sign the Approval of the
Participant as detailed below. |
| ______________________ |
|
______________________ |
| Acro Inc. |
|
Date |
2
APPROVAL OF THE
PARTICIPANT:
I hereby confirm that:
| 1. |
I
read the Grant Letter, I understand and accept its terms and conditions. I am
aware of the fact that the Company agrees to grant me the Options based on
my confirmation; |
| 2. |
I
hereby agree that whenever an amount with respect to withholding tax relating
to Options granted to me and/or underlying Shares issued upon the exercise
thereof is due from me and/or the Company, the Company shall have the
right to demand from me such amount sufficient to satisfy any applicable
withholding tax requirements related thereto, and whenever Shares or any
other non-cash assets are to be delivered pursuant to the exercise of an
Option, or transferred thereafter, the Company shall have the right to
require from me to remit to the Company an amount in cash sufficient to
satisfy any applicable withholding tax requirements related thereto. If
such amount is not timely remitted, the Company shall have the right to
withhold or set-off (subject to applicable law) such Shares or any other
non-cash assets pending payment by me of such amounts; |
| 3. |
By
signing this letter, I hereby give an irrevocable proxy to the representative
appointed by the Company’s Board of Directors to vote any Shares that
will be issued to me following an exercise of Option granted to me under
the Grant Letter. The proxy shall be valid until consummation of an IPO by
the Company; |
| 4. |
I
understand the provisions of Section 3(i) and the applicable tax implications
of this grant of Options; |
| |
I
hereby acknowledge and agree that: |
| |
(a) |
none
of the Options or Shares have been registered under the 1933 Act, or under any
state securities or “blue sky” laws of any state of the United
States, and, unless so registered, may not be offered or sold in the United
States or, directly or indirectly, except in accordance with Regulation S,
pursuant to an effective registration statement under the 1933 Act, or based on
an opinion of counsel satisfactory, in form and substance, to the Company that
such registration is not required pursuant to an exemption from the
registration requirements of the 1933 Act; |
| |
(b) |
I
acknowledge that the Company has not undertaken, and will have no obligation,
to register any of the Options or Shares under the 1933 Act; |
| |
(c) |
I
represent and warrant that I am an Accredited Investor, as the term is defined
in Regulation D under the 1933 Act; |
| |
(d) |
the
decision to execute this Grant letter and receive the Options hereunder has not
been based upon any oral or written representation as to fact or otherwise made
by or on behalf of the Company; |
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| |
(e) |
no
securities commission or similar regulatory authority has reviewed or passed on
the merits of the Options or Shares; |
| |
(f) |
I
am resident in the jurisdiction identified in my address set forth below; |
| |
(g) |
there
is no government or other insurance covering the Options or Shares; |
| |
(h) |
there
are risks associated with the exercise of the Options into Shares, including
but not limited to risks associated with investment in a high-tech company; |
| |
(i) |
I
have had a reasonable opportunity to ask questions of and receive answers from
the Company in connection with the grant of the Options hereunder, and to
obtain additional information, to the extent possessed or obtainable without
unreasonable effort or expense, necessary to verify the accuracy of the
information about the Company; |
| |
(j) |
the
books and records of the Company were available upon reasonable notice for
inspection, subject to certain confidentiality restrictions, by me during
reasonable business hours at its principal place of business, and all
documents, records and books in connection with the grant of the Options
hereunder have been made available for inspection by me, my lawyer and/or
advisor(s); |
| |
(k) |
the
Company will refuse to register any transfer of the Options or Shares not made
in accordance with the provisions of this Regulation S, pursuant to an
effective registration statement under the 1933 Act or not based upon an
opinion of counsel satisfactory, in form and substance, to the Company pursuant
to an available exemption from the registration requirements of the 1933 Act; |
| |
(l) |
I
have been advised to consult my own legal, tax and other advisors with respect
to the merits and risks of the exercise of the Options and with respect to
applicable resale restrictions, and I am solely responsible (and the Company is
not in any way responsible) for compliance with: |
| |
(i) |
any
applicable laws of the jurisdiction in which the I am a resident in connection
with the grant of the Options hereunder, and |
| |
(ii) |
applicable
resale restrictions. |
| 6. |
Representations
and Warranties |
| |
I
hereby represent and warrant to the Company that: |
| |
(a) |
I
have the legal capacity and competence to enter into and execute this Grant
letter and to take all actions required pursuant hereto; |
| |
(b) |
I
will exercise the Options into Shares for investment only and not with a view
to resale or distribution and, in particular, I have no intention to
distribute either directly or indirectly any of the Options or
Shares; |
| |
(c) |
I
am receiving the Options as principal for my own account for investment
purposes only, and not with a view to, or for, resale, distribution
or fractionalization thereof, in whole or in part, and no other
person has a direct or indirect beneficial interest in such Options
or Shares; |
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| |
(d) |
I
am not an underwriter of, or dealer in, the common shares of the Company, nor
am I participating, pursuant to a contractual agreement or otherwise,
in the distribution of the Options or Shares; |
| |
(e) |
I
am not aware of any advertisement of any of the Options; and |
| |
(f) |
no
person has made to me any written or oral representations; |
| |
(i) |
that
any person will resell or repurchase any of the Options or Shares; |
| |
(ii) |
that
any person will refund the exercise price of any of the Options; |
| |
(iii) |
as
to the future price of value of any of the Options or Shares; |
| |
(iv) |
that
any of the Options or Shares will be listed and posted for trading on any
stock exchange or automated dealer quotation system or that
application has been made to list and post any of the Options of the
Company on any stock exchange or automated dealer quotation system;
or |
| |
(v) |
as
to the tax or accounting consequences of grant or exercise of the Options, or
as to profits, losses or cash flow which may be received or sustained
as a result of Options or Shares. |
| |
(g) |
I
am not a “U.S. person” as that term is defined under Regulation S. |
| |
(h) |
On
the date hereof, I am outside the United States, and the grant of the Options
was not made to me in the U.S. |
| |
(i) |
I
am receiving the Options for my own account and not for the account or benefit
of a “U.S. person” (as defined in Regulation S), or is a
U.S. person who purchased securities in a transaction that did not
require registration under the 1933 Act, and the sale has not been
prearranged with a buyer in the United States. |
| |
(j) |
I
acknowledge that I have not received the Options as a result of, and I will
not engage in, any “directed selling efforts” (as defined
in Regulation S under the 1933 Act) in the United States in respect
of the Options and the Shares resulting from their exercise, which
would include any activities undertaken for the purpose of, or that
could reasonably be expected to have the effect of, conditioning the
market in the United States for the resale of the Options and the
Shares resulting from their exercise; provided, however, that I may
sell or otherwise dispose of the Options and the Shares resulting from their
exercise pursuant to registration under the 1933 Act and any
applicable state and provincial securities laws or under an exemption
from such registration requirements and as otherwise provided herein. |
| |
(k) |
The
statements made by me herein are true and correct and are confirmed hereby,
and the Company shall be entitled to rely thereon. |
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| 7. |
Legending
of the Options and the Shares |
| |
(a) |
I
hereby acknowledge that upon the issuance thereof, and until such time as the
same is no longer required under the applicable securities laws and
regulations, the certificates representing the Options and the Shares
will bear a legend in substantially the following form: |
THESE SECURITIES HAVE NOT BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY
STATE AND HAVE BEEN ISSUED IN RELIANCE UPON THE EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR BASED ON AN OPINION OF COUNSEL SATISFACTORY, IN FORM AND SUBSTANCE, TO
THE COMPANY THAT
SUCH REGISTRATION IS NOT REQUIRED PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT IN ACCORDANCE WITH APPLICABLE FEDERAL, STATE, AND
FOREIGN SECURITIES LAWS, INCLUDING BUT NOT LIMITED TO REGULATION S AS PROMULGATED BY THE
SECURITIES AND EXCHANGE COMMISSION. HEDGING TRANSACTIONS INVOLVING THESE SECURITIES MAY
NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE 1933 ACT.
| |
(b) |
I
hereby acknowledge and agree to the Company making a notation on its records
or giving instructions to the registrar and transfer agent of the
Company in order to implement the restrictions on transfer set forth
and described in this Grant Letter. |
| 8. |
I
hereby confirm that I read this letter thoroughly, received all the
clarifications and explanations I requested, I understand the contents of
this letter and the obligations I undertake in signing it. |
——————————————
Name of Participant |
——————————————
Signature |
——————————————
Date |
Address:
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