M-WISE, INC.
INTERNATIONAL SHARE OPTION PLAN (2001)
SHARE OPTION AGREEMENT
Unless otherwise defined herein, terms capitalized in this Share Option
Agreement (the "Agreement") shall have the same meaning ascribed to them in the
m-Wise, Inc. (the "Company") International Share Option Plan (2001) (the
"Plan"). The Notice of Share Option Grant (the "Notice of Grant") included in
this Agreement as Part I is an integral part hereof. This Agreement is made as
of ____________, 2004.
I NOTICE OF SHARE OPTION GRANT
[NAME OF GRANTEE]
[ADDRESS]
The undersigned Optionee has been granted an Option to purchase shares
of Common Stock of the Company, par value $0.0017 each, subject to the terms and
conditions of the Plan and this Option Agreement, as follows:
Date of Grant ________________
Vesting Commencement Date ________________
Exercise Price per Share ________________
Total Number of Shares Granted ________________
Total Exercise Price ________________
Term/Expiration Date: ________________
VESTING SCHEDULE:
This Option shall be exercisable, in whole or in part, according to the
following vesting schedule:
__% of the Shares subject to the Option shall vest ______ months after
the Vesting Commencement Date, and ___% of the Shares subject to the Option
shall vest at the end of each ________-month period thereafter, subject to
Optionee's continuing to be a __________ on such dates.
TERMINATION PERIOD:
This Option shall be exercisable, in whole or in part, at any time until
___________. This Option shall be exercisable for _________ months after
Optionee ceases to be a __________. Upon Optionee's death or Disability, this
Option may be exercised for _______ months after Optionee ceases to be a ______.
In no event may Optionee exercise this Option after the Term/Expiration Date.
II. AGREEMENT
1. GRANT OF OPTION. The Administrator hereby grants to the Optionee
named in the Notice of Grant (the "Optionee"), an option (the "Option") to
purchase the number of shares set forth in the Notice of Grant (the "Shares"),
at the exercise price per Share set forth in the Notice of Grant (the "Exercise
Price"), and, unless expressly provided for otherwise herein, subject to the
terms and conditions of the Plan, which is incorporated herein by reference.
Subject to Section 13(iii) of the Plan, in the event of a conflict between the
terms and conditions of the Plan and this Option Agreement, the terms and
conditions of this Option Agreement shall prevail.
2. EXERCISE OF OPTION.
(i) RIGHT TO EXERCISE. This Option shall be exercisable during
the period set forth in the Notice of Grant in accordance with the applicable
provisions of the Plan and this Option Agreement.
(ii) METHOD OF EXERCISE. This Option shall be exercisable, in
whole or in part, by delivery to the Company of an exercise notice in the form
attached as EXHIBIT A (the "Exercise Notice") which shall state the election to
exercise the Option, the number of Shares with respect to which the Option is
being exercised (the "Exercised Shares"), and such other representations and
agreements as may be required by the Company. The Exercise Notice shall be
accompanied by payment of the aggregate Exercise Price as to all Exercised
Shares. This Option shall be deemed to be exercised, to the extent applicable to
the Exercise Notice, upon receipt by the Company of such fully executed Exercise
Notice and any such other representations and agreements as may be required by
the Company accompanied by the aggregate Exercise Price for the Exercised
Shares.
No Shares shall be issued pursuant to the exercise of this
Option unless such issuance and such exercise comply with Applicable Laws.
Shares issued pursuant to the exercise of this option will be issued in the name
of ___________. 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 Option, notwithstanding the
exercise of the Option. The Shares shall be issued to the __________ as soon as
practicable after the Option is exercised. 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 Section 11 of the Plan.
3. OPTIONEE'S REPRESENTATIONS. In the event the Shares have not been
registered under the Securities Act of 1933, as amended, at the time this Option
is exercised, the Optionee shall, if required by the Company, concurrently with
the exercise of all or any portion of this Option, deliver to the Company his or
her Investment Representation Statement in the form attached hereto as EXHIBIT
B.
3. LOCK-UP PERIOD. Optionee hereby agrees that, if so requested by the
Company in connection with any registration of the offering of any securities of
the Company under the Securities Act, Optionee shall not sell or otherwise
transfer any of the Shares orany other securities of the Company during such
period as may be requested in writing by the Company following the effective
date of a registration statement of the Company filed under the Securities Act.
5. METHOD OF PAYMENT. Payment of the aggregate Exercise Price shall be
by cash or check, or any other method approved by the Board of Directors of the
Company ("Board").
6. RESTRICTIONS ON EXERCISE. Unless otherwise determined by the
Administrator, this Option may not be exercised until such time as the Plan has
been approved by the shareholders of the Company, or if the issuance of such
Shares upon such exercise or the method of payment of consideration for such
shares would constitute a violation of any Applicable Law.
6. NON-TRANSFERABILITY OF OPTION. The Company may assign any of its
rights under this Agreement to single or multiple assignees, and this Agreement
shall inure to the benefit of the successors and assigns of the Company. This
Agreement, the Option and any rights granted hereunder may not be transferred by
Optionee in any manner otherwise than by will or by the laws of descent and may
be exercised during the lifetime of Optionee only by Optionee. The terms of the
Plan and this Option Agreement shall be binding upon the executors,
administrators and heirs of the Optionee.
7. TERM OF OPTION. This Option may be exercised only within the term
set out in the Notice of Grant, and may be exercised during such term only in
accordance with the Plan and the terms of this Option Agreement.
9. TAX CONSEQUENCES. The Optionee hereby acknowledges that the grant of
the Option and the issue of the Shares, the execution of this Agreement and the
Optionee's participation in the Plan shall have tax consequences to the
Optionee, and that the Company is not able to ensure or represent to the
Optionee the nature and extent of such tax consequences. The Optionee
acknowledges and agrees that pursuant to the Plan, the Optionee shall be liable
to pay all taxes of every nature, including duties, fines and any other payment
which may be imposed by any tax authorities, whether in the US or abroad, and
all expenses arising out of the Plan, including every obligatory payment of
whatever source in respect of the Option, the Shares (including, without
limitation, upon the exercise of the Option, the registration of the Shares in
the Optionee's name or the sale of the Shares) or dividends or any other benefit
in respect thereof, and/or all other charges which may accrue to the Optionee or
the Company in connection with the Plan. The Optionee covenants to promptly
indemnify the Company against any charge, payment or expense as aforesaid, and
any such amount shall be deemed a debt of the Optionee to the Company, which may
be deducted or set off from any amounts payable to the Optionee. Furthermore,
the Optionee acknowledges that the Optionee shall not have, and the Optionee
hereby waives, any complaint and/or cause of action the same has or shall have
in the future against the Company in any way connected to any taxation resulting
from the grant of the Option, the exercise thereof, the sale of Shares by the
Optionee and/or any other matter which is in any manner whatsoever connected to
the Option, the Shares and/or the participation of the Optionee in the Plan.
9. ENTIRE AGREEMENT; GOVERNING LAW; DISPUTES. The Plan is incorporated
herein by reference. The Plan and this Option Agreement 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 hereof, and may not be modified
adversely to the Optionee's interest except by means of a writing signed by the
Company and Optionee. This Agreement and the Plan shall be governed by and
construed in accordance with the laws of the State of Israel and, subject to the
provisions of the next paragraph, the competent courts in the district of Tel
Aviv - Jaffa shall have exclusive jurisdiction with respect to any matter or
conflict with respect thereto.
As a condition of the granting of the Option, the Optionee agrees that
any dispute or disagreement that shall arise under or as a result of this
Agreement shall be determined by the Board, or any committee designated by the
Board pursuant to the Plan, in its sole discretion and judgment and that any
such determination and any interpretation by the Board or any such committee of
the terms of this Agreement shall be final and shall be binding and conclusive
for all purposes.
Optionee acknowledges receipt of a copy of the Plan and represents that
he or she is familiar with the terms and provisions thereof, and hereby accepts
this Option subject to all of the terms and provisions thereof. Optionee has
reviewed the Plan and this Option in their entirety, has had an opportunity to
obtain the advice of counsel and tax advisors prior to executing this Option and
fully understands all provisions of the Option. Optionee hereby agrees to accept
as binding, conclusive and final all decisions or interpretations of the
Administrator upon any questions arising under the Plan or this Option. Optionee
is aware and agrees that the Company intends to issue additional shares of stock
in the future to various entities and individuals, including shares of preferred
stock that will entitle their holder to preferred rights over the holder of
common stock, as the Company in its sole discretion shall determine. Optionee
further agrees to notify the Company upon any change in the residence address
indicated below.
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[SIGNATURE PAGE OF M-WISE, INC. INTERNATIONAL SHARE OPTION PLAN (2001) SHARE
OPTION AGREEMENT]
OPTIONEE M-WISE, INC.
Signature By
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Print Name Title
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Residence Address
EXHIBIT A
INTERNATIONAL SHARE OPTION PLAN (2001)
EXERCISE NOTICE
M-WISE, INC.
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Attention: __________, Chairman
1. EXERCISE OF OPTION. Effective as of today, , , the undersigned
("Optionee") hereby elects to exercise Optionee's option to purchase _________
Common Stock (the "Shares") of m-Wise, Inc. (the "Company") under and pursuant
to the International Share Option Plan (2001) (the "Plan") and the Share Option
Agreement dated , (the "Option Agreement").
2. DELIVERY OF PAYMENT. Purchaser herewith delivers to the Company the
full purchase price of the Shares, as set forth in the Option Agreement.
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. TAX CONSULTATION. Optionee understands that Optionee may suffer
adverse tax consequences as a result of Optionee's purchase or disposition of
the Shares. Optionee represents that Optionee has consulted with any tax
consultants Optionee deems advisable in connection with the purchase or
disposition of the Shares and that Optionee is not relying on the Company for
any tax advice.
5. RESTRICTIVE LEGENDS AND STOP-TRANSFER ORDERS.
(i) 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 certificate(s) evidencing ownership of the Shares
together with any other legends that may be required by the Company or by state
or federal securities 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 SHAREHOLDERS OF
THE ISSUER OR THEIR ASSIGNEE(S) AS SET FORTH IN THE
ARTICLES OF ASSOCIATION OF THE ISSUER, 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.
(ii) STOP-TRANSFER NOTICES. Optionee agrees that, in order to
ensure compliance with the restrictions referred to herein, 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.
(iii) REFUSAL TO TRANSFER. The Company shall not be required
(i) to transfer on its books any Shares that have been sold or otherwise
transferred in violation of any of the provisions of this Exercise Notice, the
Plan or the Option Agreement or (ii) 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.
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[SIGNATURE PAGE OF M-WISE, INC. INTERNATIONAL SHARE OPTION PLAN (2001) EXERCISE
NOTICE]
Submitted by: Accepted by:
OPTIONEE M-WISE, INC.
Signature By
Print Name Title
ADDRESS: ADDRESS:
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Date Received
EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
OPTIONEE:
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COMPANY: M-WISE, INC.
SECURITY: COMMON STOCK
AMOUNT:
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DATE:
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In connection with the purchase of the above-listed Securities, the
undersigned Optionee represents to the Company the following:
(i) 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. Optionee is
acquiring these Securities for investment for Optionee's own account only and
not with a view to, or for resale in connection with, any "distribution" thereof
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act").
(ii) Optionee acknowledges and understands that the Securities
constitute "restricted securities" under the Securities Act and have not been
registered under the Securities Act in reliance upon a specific exemption
therefrom, which exemption depends upon, among other things, the bona fide
nature of Optionee's investment intent as expressed herein. In this connection,
Optionee understands that, in the view of the Securities and Exchange
Commission, the statutory basis for such exemption may be unavailable if
Optionee's representation was predicated solely upon a present intention to hold
these Securities for the minimum capital gains period specified under tax
statutes, for a deferred sale, for or until an increase or decrease in the
market price of the Securities, or for a period of one year or any other fixed
period in the future. Optionee further understands that the Securities must be
held indefinitely 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 the certificate evidencing the
Securities will be imprinted with a legend which prohibits the transfer of the
Securities unless they are registered or such registration is not required in
the opinion of counsel satisfactory to the Company, and any other legend
required under applicable state securities laws.
(iii) Optionee is familiar with the provisions of Rule 701 and Rule
144, each promulgated under the Securities Act, which, in substance, permit
limited public resale of "restricted securities" 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, 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, 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 Company does not qualify under Rule 701
at the time of grant of the Option, then the Securities may be resold in certain
limited circumstances subject to the provisions of Rule 144, which requires the
resale to occur not less than one year 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 two years, the satisfaction of the
conditions set forth in sections (1), (2), (3) and (4) of the paragraph
immediately above.
(iv) 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 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.
Signature of Optionee:
Date:
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