EXHIBIT 10.3
BACKWEB TECHNOLOGIES LTD.
OPTION AGREEMENT
MADE AS OF THE _____DAY OF _______, 200_
BETWEEN: BACKWEB TECHNOLOGIES LTD.
A company incorporated in Israel
(the "COMPANY")
ON THE ONE PART
AND: Name __________________
I.D. No._______________
Address:_______________
(the "GRANTEE")
ON THE OTHER PART
WHEREAS The Company has duly adopted the Israeli 1996 Employee Option
Plan and Appendix A thereto (together, the "ISOP"); a copy of
which is attached as EXHIBIT A hereto, forming an integral
part hereof; and -
WHEREAS Pursuant to the ISOP, the Company has decided to grant Options
to purchase Ordinary Shares, NIS 0.03 nominal value each, of
the Company to the Grantee, and the Grantee has agreed to such
grant, subject to all the terms and conditions as set forth in
the ISOP and as provided in this option agreement (this
"OPTION AGREEMENT");
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 ISOP.
2. GRANT OF OPTIONS
2.1 The Company hereby grants to the Grantee the number of Options
as set forth in the Notice of Option Grant, attached as
EXHIBIT B hereto, forming an integral part hereof. Each Option
shall be exercisable for one Option Share, upon payment of the
Exercise Price as set forth in EXHIBIT B, subject to the terms
and the conditions as set forth in the ISOP and as provided
herein.
2.2 The Grantee is aware that the Company intends in the future to
issue additional shares and to grant additional options 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
Determining Date and terminate at the expiration date set
forth in EXHIBIT B, or at the time at which the Option expires
pursuant to the terms of the ISOP or pursuant to this Option
Agreement.
3.2 Options may be exercised only to purchase whole Option Shares,
and in no case may a fraction of an Option Share be purchased.
If any fractional Option Share would be deliverable upon
exercise, such fraction shall be rounded up one-half or less,
or otherwise rounded down, to the nearest whole number.
4. VESTING; PERIOD OF EXERCISE
Subject to the provisions of the ISOP, Options shall vest and become
exercisable according to the vesting dates set forth in EXHIBIT B
hereto, provided that the Grantee is an Employee of, or providing
services to, the Company and/or its Affiliates on the applicable
vesting date.
All unexercised Options granted to the Grantee shall terminate and
shall no longer be exercisable on the expiration date, as described in
the ISOP.
5. EXERCISE OF OPTIONS
5.1 Options may be exercised in accordance with the provisions of
the ISOP.
5.2 In order for the Company to issue Option Shares upon the
exercise of any of the Options, the Grantee hereby agrees to
sign any and all documents
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required by the Company, any applicable law and/or the
Company's Articles of Association.
5.3 The Company shall not be obligated to issue any Shares upon
the exercise of an Option if such issuance, in the opinion of
the Company, might constitute a violation by the Company of
any provision of applicable law, rules, or regulations.
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6. RESTRICTIONS ON TRANSFER OF OPTIONS AND OPTION SHARES
6.1 The transfer of Options and the transfer of Option Shares
shall be subject to the limitations set forth in the ISOP and
in the Company's Articles of Association and any shareholders'
agreement to which the holders of Ordinary Shares of the
Company are bound.
6.2 With respect to any Approved 102 Option, subject to the
provisions of Section 102, the Grantee shall not sell or
release from trust any Option 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. Notwithstanding the
above, if any such sale or release occurs during the Holding
Period, the sanctions under Section 102 shall apply to, and
shall be borne by, the Grantee.
6.3 With respect to Unapproved 102 Options, if the Grantee ceases
to be employed by the Company or any Affiliate, as a condition
to the exercise of the Unapproved 102 Options, the Grantee
shall deposit with the Company and/or its Affiliate a security
or guarantee for discharge of his tax obligations with respect
to the Unapproved 102 Options, all in accordance with the
provisions of Section 102.
6.4 The Grantee shall not dispose of any Shares in transactions,
which violate, in the opinion of the Company, any applicable
laws, rules, or regulations.
6.5 The Grantee 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 (which do not violate the Grantee's rights
according to this Option Agreement).
7. TAXES; INDEMNIFICATION
7.1 Any tax consequences arising from the grant or exercise of any
Option, from the payment for Option Shares covered thereby or
from any other event or act (of the Company and/or its
Affiliates, the Trustee or the Grantee), hereunder, shall be
borne solely by the Grantee. 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 Grantee 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
Grantee.
7.2 The Grantee will not be entitled to receive from the Company
and/or the Trustee any Option Shares allocated or issued upon
the exercise of Options prior to the full payments of the
Grantee's tax liabilities arising from Options which were
granted to him and/or Option 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 Grantee until all payments required to be
made by the Grantee have been fully made.
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7.3 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 GRANTEE IS ADVISED TO CONSULT A TAX
ADVISER WITH RESPECT TO THE TAX CONSEQUENCES OF RECEIVING OR
EXERCISING THE OPTIONS OR DISPOSING OF THE OPTION SHARES.
7.4 With respect to Approved 102 Options, the Grantee 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 implications applicable to such
grant. The Grantee accepts the provisions of the trust
agreement signed between the Company and the Trustee, as
amended, attached as EXHIBIT C hereto and forming an integral
part hereof, and agrees to be bound by its terms.
8. MISCELLANEOUS
8.1 No Obligation to Exercise Options. The grant and acceptance of
these Options imposes no obligation on the Grantee to exercise
them.
8.2 Confidentiality. The Grantee shall regard the information in
this option agreement and its exhibits attached hereto as
confidential information and the Grantee shall not reveal its
contents to anyone except when required by law or for the
purpose of obtaining legal or tax advice.
8.3 Continuation of Employment or Service. Neither the ISOP nor
this Option Agreement shall impose any obligation on the
Company or an Affiliate to continue the Grantee's employment
or service and nothing in the ISOP or in this Option Agreement
shall confer upon the Grantee any right to continue in the
employ or service of the Company and/or an Affiliate or
restrict the right of the Company or an Affiliate to terminate
such employment or service at any time.
8.4 Entire Agreement. Subject to the provisions of the ISOP, to
which this Option Agreement is subject, this Option Agreement,
together with the exhibits hereto, constitute the entire
agreement between the Grantee and the Company with respect to
Options granted hereunder, and supersedes all prior
agreements, understandings and arrangements, oral or written,
between the Grantee and the Company with respect to the
subject matter hereof.
8.5 Failure to Enforce - Not a Waiver. The failure of any party to
enforce at any time any provisions of this Option Agreement or
the ISOP shall in no way be construed to be a waiver of such
provision or of any other provision hereof.
8.6 Provisions of the ISOP. The Options provided for herein are
granted pursuant to the ISOP and said Options and this Option
Agreement are in all respects governed by the ISOP and subject
to all of the terms and provisions of the ISOP.
Any interpretation of this Option Agreement will be made in
accordance with the ISOP but in the event there is any
contradiction between the provisions of this Option Agreement
and the ISOP, the provisions of the Option Agreement will
prevail.
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8.7 Binding Effect. The ISOP and this Option Agreement shall be
binding upon the heirs, executors, administrators and
successors of the parties hereof.
8.8 Notices. 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 Grantee and/or to the
Company at the addresses shown on the letterhead above, or at
such other place as the Company may designate by written
notice to the Grantee. The Grantee is responsible for
notifying the Company in writing of any change in the
Grantee's address, and the Company shall be deemed to have
complied with any obligation to provide the Grantee with
notice by sending such notice to the address indicated below.
Company's Signature:
Name: ________________
Position: ________________
Signature: ________________
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I, the undersigned, hereby acknowledge receipt of a copy of the ISOP and accept
the Options subject to all of the terms and provisions thereof. I have reviewed
the ISOP and this option agreement in its entirety, have had an opportunity to
obtain the advice of counsel prior to executing this option agreement, and fully
understand all provisions of this option agreement. I agree to notify the
Company upon any change in the residence address indicated above.
_____________ _______________________
Date Grantee's Signature
ATTACHMENTS:
EXHIBIT A: 1996 EMPLOYEE SHARE OPTION PLAN AND APPENDIX A
EXHIBIT B: NOTICE OF OPTION GRANT
EXHIBIT C: TRUST AGREEMENT
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