EXHIBIT 99.5
M-STREAM INC. - OPTION AGREEMENT
This Option Agreement, dated ________________, evidences the grant of an option
pursuant to the provisions of the M-Stream, Inc. 2002 Share Incentive Plan (the
"Plan") and the Israeli Appendix thereof ("the Israeli Appendix"), copies of
which are available at the Company's office, to the individual whose name
appears below (the "Participant"), covering the specific number of shares of
Ordinary Shares of the Company ("Shares") set forth below, pursuant to the
provisions of the Plan and the Israeli Appendix and on the following terms and
conditions:
Capitalized terms not defined herein shall have the same meanings ascribed to
such terms in the Plan and in the Israeli Appendix.
1. Name of Participant: ______________
2. Number of Shares subject to this option: ______________ Shares
3. Exercise price per Share subject to this option: $ _________________
4. Date of grant (the "Grant Date") of this option: _______________
5. Type of option: ______________
6. Vesting: ______________________________, provided that the Participant has
been continuously an Employee of or providing services to the Company
and/or its Affiliates commencing the Date of Grant through the applicable
Vesting Date.
7. The last day on which the vested portion of this option can be exercised
is the earliest of a. ___________________ [Date] b. the date on which the
Participant's employment or provision of services terminates for "cause"
(as defined in the Plan); c. 90 days following the date that the
Participant's employment terminates other than for "cause" (as defined in
the Plan), death or "permanent disability" (as defined in the Plan); d. or
1 year following the Participant's death or "permanent disability" (as
defined in the Plan) e. Any other circumstances as prescribed by the Plan.
8. In the event of Change of Control the provisions of the Plan will apply
provided, however, that if the Acquiring Corporation is Broadcom
Corporation, unless the Board of Directors determined otherwise, then, all
of the outstanding Options which have been granted under the Plan and
which are not exercisable as of the effective date of the Change of
Control shall automatically accelerate and become exercisable immediately
prior to the effective date of the Change of Control, and all restrictions
and conditions on any Restricted Shares shall lapse upon the effective
date of the Change of Control. The Participant acknowledges that in the
event of a Change of Control, he may be obliged to sell, assign or
exchange, as the case may be, the Shares such Participant purchased under
the Plan and any Options or portion to the extent then vested and
exercisable, all in accordance with any instructions then to be issued by
the Board of Directors and the provisions of the incorporation documents
of the Company. The Participant hereby agrees and undertakes that in the
event of Change of Control he will take any and all required actions and
sign all documents as requested, in order to facilitate the consummation
of the Change of Control, including without limitation, voting all shares
of the Company then held by the undersigned in favor of such Change of
Control and signing a proxy selling to the Acquiring Corporation all of
the Company's securities then held by the Participant, if so requested.
9. The Company may require, as a condition to the exercise of the Option (or
at any time as the Company may choose) that the Participant signs an
irrevocable proxy appointing such person as the Board of directors
directs, and until such time as the Board shall prescribe, to exercise all
voting rights with respect to any Shares acquired upon the exercise of the
Options, and the Participant agrees to sign any such proxy or other
relevant documents as required by the Company. In order for the Company to
issue Shares upon the exercise of any of the Options, the Participant
hereby agrees to sign any and all documents required by any applicable law
and/or by the Company's incorporated documents.
10. The transfer of Options and the transfer of Shares to be issued upon
exercise of the Options shall be subject to the limitations set forth in
the Plan and/or the Israeli Appendix and in the Company's incorporation
documents or any shareholders' agreement to which the holders of ordinary
shares of the Company are bound and in accordance with any securities
laws.
11. With respect to any Approved 102 Option, subject to the provisions of
Section 102 and any rules or regulation or orders or procedures
promulgated thereunder, an Participant shall not sell or release from
trust any Share received upon the exercise of an Approved 102 Option
and/or any share received subsequently following any realization of
rights, including without limitation, bonus shares, until the lapse of the
Holding Period required under Section 102 of the Ordinance.
Notwithstanding the above, if any such sale or release occurs during the
Holding Period, the sanctions under Section 102 of the Ordinance and under
any rules or regulation or orders or procedures promulgated thereunder
shall apply to and shall be borne by such Participant.
12. With respect to Unapproved 102 Option, if the Participant ceases to be
employed by the Company or any Affiliate, the Participant shall extend to
the Company and/or its Affiliate a security or guarantee for the payment
of tax due at the time of sale of Shares, all in accordance with the
provisions of Section 102 and the rules, regulation or orders promulgated
thereunder.
13. The Participant acknowledges that in the event Company's shares shall be
registered for trading in any public market, the Participant's right to
sell Shares may be subject to limitations (including a lock-up period), as
will be requested by the Company or its underwriters, and the Participant
unconditionally agrees and accepts any such limitations. The Participant
acknowledges that in order to enforce the above restriction, the Company
may impose stop-transfer instructions with respect to the exercised
Shares. The Participant shall not dispose of any Shares in transactions
which violate, in the opinion of the Company, any applicable laws, rules
and regulations. The Participant agrees that the Company shall have the
authority to endorse upon the certificate or certificates representing the
Shares such legends referring to the foregoing restrictions, and any other
applicable restrictions as it may deem appropriate.
14. 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 and/or its Affiliates, the Trustee or the Participant),
hereunder, shall be borne solely by the Participant. The Company and/or
its Affiliates and/or the Trustee shall withhold taxes according to the
requirements under the applicable laws, rules, and regulations, including
withholding taxes at source. Furthermore, the Participant hereby agrees to
indemnify the Company and/or its Affiliates and/or the Trustee and hold
them 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 Participant.
15. The Participant will not be entitled to receive from the Company and/or
the Trustee any Shares allocated or issued upon the exercise of Options
prior to the full payments of the Participant's tax liabilities arising
from Options which were granted to him and/or Shares issued upon the
exercise of Options. For the avoidance of doubt, neither the Company nor
the Trustee shall be required to release any share certificate to the
Participant until all payments required to be made by the Participant have
been fully satisfied. The receipt of the Options and the acquisition of
the Shares to be issued upon the exercise of the Options may result in tax
consequences. THE PARTICIPANT IS ADVISED TO CONSULT A TAX ADVISER WITH
RESPECT TO THE TAX CONSEQUENCES OF RECEIVING OR EXERCISING THIS OPTION OR
DISPOSING OF THE SHARES.
16. With respect to Approved 102 Options, the Participant hereby acknowledges
that he is familiar with the provisions of Section 102 and the regulations
and rules promulgated thereunder, including without limitations the type
of Option granted hereunder and the tax
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implications applicable to such grant. The Participant accepts the
provisions of the trust agreement signed between the Company and the
Trustee, attached as Exhibit A hereto, and agrees to be bound by its
terms.
17. Subject to the provisions of the Plan and the Israeli Appendix, to which
this Option Agreement is subject, this Option Agreement, together with the
exhibit hereto, constitute the entire agreement between the Participant
and the Company with respect to Options granted hereunder, and supersedes
all prior agreements, understandings and arrangements, oral or written,
between the Participant and the Company with respect to the subject matter
hereof.
18. The Participant shall regard the information in this Option Agreement, the
Plan and the Israeli Appendix as confidential information
19. The failure of any party to enforce at any time any provisions of this
Option Agreement or the Plan or the Israeli Appendix shall in no way be
construed to be a waiver of such provision or of any other provision
hereof.
20. The Participant hereby acknowledges and agrees that all of the terms and
conditions of the Plan and the Israeli Appendix are incorporated herein by
reference and this option is subject to such terms and conditions in all
respects. Any interpretation of this Option Agreement will be made in
accordance with the Plan and/or the Israeli Appendix, but in the event
there is any contradiction between the provisions of this Option Agreement
and the Plan and/or the Israeli Appendix, the provisions of the Option
Agreement will prevail.
21. All notices or other communications given or made hereunder shall be in
writing and shall be delivered or mailed by registered mail or delivered
by email or facsimile with written confirmation of receipt to the
Participant and/or to the Company at the addresses shown below, or at such
other place as the Company may designate by written notice to the
Participant.
Accepted and Agreed: M-Stream, Inc.
______________________________ By:___________________________
Signature of Participant
Title:________________________
Address:______________________ Address:______________________
Attachments: Exhibit A: Trust Agreement
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