Exhibit 4.4
OPTION AGREEMENT
SECTION 102 CAPITAL GAINS STOCK OPTION
made and entered into on the February _____ 2006
Between
(the “Company”)
(the “Employee”)
| WHEREAS: |
The
Employee is an employee of the Company and/or of a subsidiary of the Company (each
a “Related Company” and collectively, “Related Companies”); and |
| WHEREAS: |
The
Company desires to grant the Employee options to purchase shares in the Company, and/or
issue to the Employee shares in the Company, and the Employee is interested in receiving
the aforesaid options and/or purchasing the aforesaid shares, all in accordance with and
subject to the Company’s Share Ownership and Option Plan (2001), as amended 2003
& 2004 & 2005 & 2006 & 2007 and the annexes thereto (the “Plan”)
and the provisions of this Agreement, and their intention is that the provisions of
Section 102 of the Israeli Income Tax Ordinance [New Version], 1961 (the “Income
Tax Ordinance”) or any provision which may amend or replace it and any
regulations, rules, orders or procedures promulgated thereunder (collectively, “Section
102”) shall apply to the shares issued and/or options granted hereunder and that
the grant of options and/or issue of shares hereunder be deemed made through a trustee in
accordance with the capital gains route pursuant to Section 102; and |
| WHEREAS: |
The
Employee has read Section 102 and the Plan, wishes to be bound by them and desires
that they apply to the options and shares which shall be granted to
him hereunder; and |
| WHEREAS: |
As
a condition to receiving the options and/or shares the Employee desires to waive
a portion of his salary as provided for in this Agreement. |
NOW, THEREFORE, it is agreed as
follows:
| |
1.1 |
The
preamble to this Agreement is the basis and constitutes an integral part thereof. |
| |
1.2 |
Capitalized
terms used herein and not otherwise defined shall have the meaning assigned to such terms
in the Plan. |
| 2. |
Application
of the Provisions of the Plan |
| |
2.1 |
The
Employee hereby declares that he has carefully read the Plan and that he acknowledges and
agrees to all of the provisions, conditions, limitations, authorizations, declarations
and commitments included therein. |
| |
2.2 |
The
Employee declares and agrees that this Agreement and the Plan prevail over any previous
agreement, arrangement and/or understanding, whether written or oral between the Employee
and the Company and/or any Related Company, or the officers and/or directors and/or the
shareholders thereof with respect to the matters herein included, and with respect to the
Company’s shares and/or any option to purchase shares in the Company which have not
yet been actually issued or granted, and that any agreement, arrangement and/or
understanding as aforesaid are null and void and of no further force or effect. |
| |
2.3 |
All
of the provisions, conditions, limitations and declarations included and specified in the
Plan, as the same shall be amended from time to time, are hereby incorporated herein by
reference and constitute an integral part of this Agreement and of the Employee’s
commitments hereunder. Except and to the extent otherwise expressly provided herein,
nothing in this Agreement or in the provisions hereof shall derogate from anything
contained in the Plan. |
| |
2.4 |
The
Employee declares, covenants and agrees that the Income Tax Ordinance and Section 102, as
the same shall be amended from time to time, including the trust deed between the Company
and the Trustee, as such term is defined in the Plan (the “Trustee”)
(the conditions whereof are accepted by the Employee and upon signing this Agreement he
approves them as an integral part of this Agreement) and the notice to the Assessing
Officer about the allotment, are fully binding on the Employee and shall prevail in case
of contradiction, over any other provision in the Agreement or in the Plan. |
| |
2.5 |
A
copy of the Plan is attached hereto and constitutes an integral part hereof. |
| 3. |
Grant
of Option; Vesting |
| |
3.1 |
Subject
to this Agreement and the Plan, the Company grants to the Trustee, on behalf of the
Employee, an option (the “Option”) to purchase 5,000 Ordinary Shares of
the Company (“Shares”), which term shall include, as the context
requires, any and all other or additional rights or shares deriving from or issued in
connection therewith, if any, such as, but not limited to, bonus shares (stock dividends)
(“Additional Rights”) at the exercise price(s) per share as set forth on
Schedule 1 annexed hereto, at the times and in the manner hereinafter
provided. |
| |
The
Option is granted pursuant to Section 102 through a trustee and in accordance with the
capital gains route. |
| |
Without
derogating from any other provisions of the Plan and this Agreement, including with
respect to the assignment, sale or other transfer of the Option or the Shares, (i) the
Option and the Shares may not be sold until the end of the Lock-Up Period, unless
otherwise allowed or determined by the Israeli tax authorities and (ii) all Additional
Rights will be subject to the same tax route applicable to the Option and/or the Shares. |
| |
The
term of the Option shall be as set forth on Schedule 1 annexed hereto or such
shorter period as is prescribed in Section 3.3 below. |
| |
3.2 |
Schedule
1 sets forth the dates as of which the Option may be exercised (each an “Exercise
Date”) by the Trustee pursuant to the Employee’s instructions and the
number of Shares which may be purchased thereunder on each such Exercise Date. |
| |
3.3 |
The
consideration shall be paid on the date of the exercise of the Option. The Option shall
be exercisable by the Trustee on behalf of the Employee in progressive stages on the
Exercise Dates as aforesaid, provided that the Employee shall have been continuously
employed by the Company and/or a Related Company, from the date hereof until such date of
exercise. |
| |
Subject
to the provisions of Section 7.7 of the Plan, if the employment of the Employee is
terminated prior to the complete exercise of an option, (a) by reason of death,
disability (as determined by the Company’s Board of Directors (the “Board”)
in its absolute discretion) or retirement after age 60 with the approval of the Board,
the option shall remain exercisable for a period of one (1) year following such
termination (but only to the extent exercisable at termination of employment and not
beyond the scheduled expiration date); (b) for any other reason other than for Cause, as
such term is defined in the Plan, the option shall remain exercisable for a period of
ninety (90) days following the earlier of such termination or notice of termination (but
only to the extent exercisable at the earlier of termination or notice of termination of
employment and not beyond the scheduled expiration date); or (c) for Cause, all options
held by or on behalf of the Employee shall immediately expire upon the earlier of such
termination or notice of termination. |
| |
The
Employee’s rights to: (a) receive and exercise the Option; (b) receive all or part of
the Shares from the Trustee; (c) require that the same shall be registered in his name;
and (d) request that the Trustee sell Shares on his behalf, are subject to the Plan and
are personal and not transferable (other than pursuant to the laws of inheritance), and
may not be made subject to any pledge, lien, attachment or other charge whether voluntary
or by law, and no power of attorney or a transfer deed shall be given in respect thereof,
whether it is to be effective immediately or in the future, whether directly or
indirectly, and any such transfer shall be null and void. |
| |
The
Employee acknowledges and hereby agrees that, in addition to the limitations on
transferability of the Shares, pursuant to the Company’s incorporation documents, as
shall be in effect from time to time, for as long as the Company’s shares are not
traded on any stock exchange, the Employee’s shares in the Company shall not be
transferable without the prior approval of the Board, which approval may be withheld at
its absolute discretion. |
| 5. |
Employee
Representations, Warranties and Covenants |
| |
Without
derogating in any manner from the provisions of the Plan or this Agreement, the Employee
hereby represents, warrants, agrees and undertakes as follows: |
| |
5.1 |
The
shares are being purchased for the Employee’s own account for investment purposes
only and not with a view for resale or transfer, and that all the rights pertaining to
the Shares, by law or equity, shall be purchased and possessed by the Employee (through
the Trustee) for the Employee exclusively. |
| |
5.2 |
That
he acknowledges that the Company’s shares are not publicly traded and understands
that the Company bears no responsibility and has made no commitment to register its
shares, in whole or in part or the Options or Shares allotted to the Employee, for
trading or to offer its shares to the public in any manner. |
| |
5.3 |
The
Employee acknowledges and agrees that no income or gain which the Employee may be
credited with or which purports to be credited to the Employee as a result of the grant
of the Option, the exercise thereof, the issue of the Shares, the transfer into the
Employee’s name thereof or the sale thereof, if any, shall in any manner be taken
into account in the calculation of the basis for the Employee’s entitlements from
the Company or any Related Company or in the calculation of any social welfare right or
other rights or benefits arising out of the employee/employer relationship, including,
without limitation, social security, health tax, manager’s insurance, educational
fund, pension funds, severance pay, holiday pay, etc. |
| |
In
the event that the Company and/or any Related Company shall be required, pursuant to any
law, to take into account for purposes of calculating any such benefits, any of the
aforesaid elements of income or gain actually or theoretically credited to the Employee,
the Employee shall promptly indemnify the Company and/or any Related Company against any
expense caused to it in this regard, and any such amount shall be deemed a debt of the
Employee to the Company and/or any Related Company, which may be deducted or set off from
any amounts payable to the Employee. |
| |
5.4 |
The
Employee acknowledges that nothing in this Agreement and/or in the Plan shall be
interpreted as a commitment and/or an agreement by the Company and/or any Related Company
to employ the Employee, whether for a certain period or otherwise, and that nothing in
this Agreement and/or the Plan or any option granted pursuant hereto or thereto shall be
interpreted as conferring upon the Employee any right to continue in the employment of
the Company or any Related Company or as obliging the Company or any Related Company to
employ the Employee or as restricting the rights of the Company and/or any Related
Company to terminate the Employee’s employment, at any time, at its sole discretion
and in accordance with law. The Employee shall have no claim whatsoever against the
Company and/or any Related Company as a result of the termination of his employment, even
if such termination causes the Option or any other options, in whole or in part, to
expire and/or prevents him from exercising the Option in whole or in part and/or from
receiving or retaining the Shares pursuant hereto or to any other agreement between him
and the Company, or results in any loss due to any imposition of tax liability (including
any early imposition) pursuant to applicable law. |
| |
5.5 |
The
Employee acknowledges that the grant of the Option and the issue of the Shares, the
execution of this Agreement and the Employee’s participation in the Plan shall have
tax consequences to the Employee, and that the Company is not able to ensure or represent
to the Employee the nature and extent of such tax consequences. |
| |
The
Company may require, as a condition to the exercise of the Option, that the Employee pay
or otherwise make arrangements to the Company’s satisfaction, for the payment of the
tax and other obligatory payments applicable to him or her (including all sums payable
arising out of or in connection with the Company’s obligation to deduct tax and
other obligatory payments at source) pursuant to applicable law and the provisions of the
Plan. |
| |
The
Employee acknowledges and agrees that pursuant to the Plan, the Employee shall be liable
to pay all taxes, of every nature, including duties, fines and any other payment which
may be imposed by the tax authorities, whether in Israel or abroad, and all expenses
arising out of the Plan, including every obligatory payment of whatever source
(including, but not limited to, social security, health tax, etc. as may be applicable)
in respect of the Option, the Shares (including, without limitation, upon the grant of
the Option, the exercise of the Option, the issuance of the Shares, the sale of the
Shares or the registration of the Shares in the Employee’s name) or dividends or any
other benefit in respect thereof, and/or all other charges which may accrue to the
Employee, the Company, any Related Company and/or the Trustee in connection with the
Plan, the Option and/or the Shares, or any act or omission by the Employee or the Company
in connection therewith, or pursuant to any determination by the applicable tax or other
authorities, including, without limitation, any such payments required to be made by the
Company as the result of any sale by the Employee of any of the Shares prior to the end
of the Lock-Up Period, and whether or not the provisions of the Income Tax Ordinance or
Section 102 apply. Furthermore, the Employee acknowledges that the Employee shall not
have, and the Employee hereby waives, any complaint and/or cause of action the same has
or shall have in the future against the Trustee and/or against the Company in any way
connected to any taxation resulting from the grant of the Option, the exercise thereof,
the issuance of the Shares, the transfer of Shares into the Employee’s name, the
sale of Shares by the Employee and/or by the Trustee and/or any other matter which is in
any manner whatsoever connected to the Option, the Shares and/or the participation of the
Employee in the Plan. |
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The
Employee further acknowledges and agrees that, without derogating from the Employee’s
obligation to pay all taxes payable with respect to the Option and the Shares, the
Company and/or any Related Company and/or the Trustee shall at their absolute sole
discretion be entitled (and/or obliged pursuant to applicable law), to deduct at source
from all the payments due to the Employee, including dividends, consideration for the
sale of shares or from any other source, any tax or obligatory payments due to the tax or
other authorities in respect of the Option or the Shares pursuant to any law. |
| |
Without
derogating from the above, the Company (including any Related Company) and/or the Trustee
shall have the right to require that the Employee provide guarantees or other security to
the Company’s satisfaction to guarantee the payment of any taxes or other obligatory
payments which may be payable as a result of or in connection with the grant of the
Option, the exercise thereof, the issuance, sale or transfer of any of the Shares and/or
the registration thereof in the Employee’s name (including any sums payable arising
out of or in connection with the Company’s obligations to deduct tax and other
obligatory payments at source). |
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5.6 |
The
Employee acknowledges that he is aware of, and clearly understands: (a) the rights and
limitations attached to the Shares as set forth in the Company’s Articles of
Association, the Plan and this Agreement; (b) the limitations on transferability thereof
set forth in the Articles of Association, the Plan and this Agreement; (c) that the
Company’s Articles of Association may be amended from time to time as permitted by
law; and (d) that the provisions of the Articles of Association of the Company which
shall apply to the Shares shall be the provisions which shall be in effect from time to
time; and that, as a result, inter alia, of these limitations, it may be difficult or
impossible for the Employee to realize his investment and/or to sell or otherwise
transfer the Shares. |
| |
5.7 |
In
the event that the Company’s Articles of Association, now or at any time hereafter,
provide for a right of first refusal to purchase shares of the Company which are offered
for sale by other shareholders of the Company and/or a pre-emptive right to purchase
shares which are being allotted or shall in the future be allotted by the Company, the
Employee hereby waives such rights. For the purpose of the approval of any transfer or
the execution of any issue as aforesaid, this Agreement shall constitute an
authorization, for the benefit of the Company and the Company’s shareholders, to the
Trustee and/or to the attorney empowered pursuant to the Proxy and Power of Attorney
referred to in Section 5.11 below and attached as Appendix C to the Plan (the
“Attorney”), until the consummation of the initial public offering of
the Company’s shares pursuant to an effective registration statement, prospectus or
similar document in Israel or such other jurisdiction as is determined by the Board (the
“IPO”), or for as long as any shares or options held on the Employee’s
behalf are registered in the Trustee’s name, to sign any confirmation or waiver in
the name of the Employee and on his behalf, provided however, that following the
consummation of the IPO, and until the expiration of the above Proxy and Power of
Attorney, the Attorney shall vote any shares held on the Employee’s behalf in
accordance with the Employee’s instructions and, in the absence of such
instructions, shall abstain on behalf of such shares. The Employee shall not sell, and
shall not instruct the Trustee to sell, the Shares or any part thereof to any third
party, unless such third party signs a waiver and a power of attorney as aforesaid. |
| |
5.8 |
All
option awards shall be issued by the Company in the name of the Trustee and the shares
issued with respect to the Option granted hereunder and all Additional Rights will be
held by the Trustee and registered in his name until the later to occur of: (i)
consummation of the IPO, and (ii) the end of the Lock-Up Period. |
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5.9 |
The
Employee shall have none of the rights of a shareholder of the Company, for as long as
the Option has not been exercised and, once exercised, for as long as the Shares have not
been transferred and registered in the Employee’s name in the Company’s
register of members pursuant to the Plan. |
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5.10 |
For
as long as any shares are held by the Trustee or registered in his name or for as long as
the certificates representing any shares are held by the Trustee, the Trustee alone shall
be entitled to receive every notice to which a shareholder is entitled, or to demand any
information, and any financial and/or other report to which a shareholder is entitled
from the Company, and only he or the Attorney shall be entitled to exercise every other
right of the shareholders vis-a-vis the Company including the right to participate in all
shareholders’ meetings. The Employee shall not be entitled to exercise any of these
rights as shareholder nor make any demand or request of the Trustee and/or of the
Attorney in this regard. Without derogating from the generality of the above, the
Employee shall not have nor exercise any voting rights with respect to the Shares until
they are transferred and registered in his name in the Company’s register of members
pursuant to the Plan. |
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5.11 |
That
until the consummation of the IPO, Shares registered in the Trustee’s name shall be
represented at all meetings of shareholders of the Company and shall be voted by the
Attorney at his discretion and subsequent thereto shall be voted by the Attorney in
accordance with the instructions of the Employee on whose behalf they are held and in the
absence of such instructions they shall abstain. |
| |
5.12 |
That
until the consummation of the IPO, the Employee shall provide, at the Company’s
request, any certificate, declaration or other document and shall perform any act which
the Company shall consider to be necessary or desirable pursuant to any law, whether
local or foreign, including any certificate or agreement which the Company shall require,
if any, from the Employee as a member of a class of shareholders, or any certificate,
declaration or other document the obtaining of which shall be deemed by the Board to be
appropriate or necessary for the purpose of raising capital for the Company, of merging
the Company with another company (whether the Company is the surviving entity or not), or
of reorganization of the Company, including, in the event of a consolidation or merger of
the Company or any sale, lease, exchange or other transfer of all or substantially all of
the assets or shares of the Company, the sale or exchange, as the case may be, of any
shares or rights to purchase shares the Employee (or the Trustee on his behalf) may have
purchased or been granted hereunder, all as shall be deemed necessary or desirable by the
Board. |
| |
In
order to guarantee, and without derogating from, the aforesaid, and because the rights of
the Company and the other shareholders are dependent thereon, the Employee shall, upon
signing this Agreement and as a condition to the grant of any options hereunder, execute
the Proxy and Power of Attorney attached to the Plan as Appendix C, or in such
other form as shall be approved by the Board, irrevocably empowering the Attorney, until
consummation of the IPO or for as long as any shares or options held on the Employee’s
behalf are registered in the Trustee’s name, to sign in his name as aforesaid on any
document as aforesaid, and the Employee shall have no complaint or claim against the
Trustee and/or the Attorney in respect of such signature or action. The Employee will
authenticate his signature in the presence of a notary if he shall be asked to do so by
the Company, in order to give full validity to the power of attorney. |
| |
5.13 |
The
Employee has received a copy of the Plan, has examined it, and acknowledges and agrees to
all the provisions and conditions thereof. |
| |
5.14 |
The
Employee has full knowledge of the Company and its activities, and is aware that the
Company operates in a sophisticated, high tech and high risk sector, and that the market
thereof is restricted and highly competitive, and that the exercise of the Option
constitutes an economic risk. The Employee undertakes that he shall not have any claim or
demand against the Company and/or any Related Company or any of its or their officers,
employees, shareholders or advisors if the Employee’s investment in the Shares shall
fail or for the payment of any tax due or for any other reason. |
| 6. |
Taxes;
Indemnification of the Company, the Trustee and the Attorney |
| |
6.1 |
The
Employee hereby covenants, whether the provisions of the Law shall apply to the Employee
or not, to bear all tax obligations, duties, levies, fines and other payments which shall
be imposed by the tax authorities (whether in Israel or abroad) and any other obligation
from whatever source, including, but not limited to, the obligations of the Employee
and/or the Company and/or any Related Company and/or the Trustee arising out of the Plan
(including granting of the Option, exercise of the Option, issue of the Shares, transfer
of the Shares into the Employee’s name and the sale thereof by the Employee and/or
by the Trustee). Without derogating from the generality of the aforesaid, the Employee’s
obligations in this regard shall include income tax, stamp tax, employer’s tax,
capital gains tax, social security insurance, health tax and any other tax, levy or
payment which the Employee or the Company and/or any Related Company is or shall be
obliged to pay because of the Option or the Shares (including deductions at source which
the Company is obliged to make for tax or other obligatory payments imposed upon the
Employee) and the Employee shall indemnify the Company and/or any Related Company and/or
the Trustee for every charge or payment as aforesaid, which may be deducted or set off
from any amounts payable to the Employee. |
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6.2 |
Subject
to the provisions of the Plan, the Employee hereby covenants to pay the Company and/or
the Trustee promptly upon their first request in writing, any sum for which they are
responsible (or, in the Board’s opinion, they might be responsible for), and which
is payable by the Employee, as set forth in Section 6.1 hereof, to the income tax
authorities and/or any other governmental or administrative authority, whether in Israel
or abroad (including for deduction of tax at source) pursuant to the Plan, and/or in
respect of the Employee’s participation in the Plan, whether the Trustee’s
responsibility as aforesaid shall arise directly or in respect of any responsibility of
the Employee for such payment. The Employee covenants to promptly indemnify the Company
and/or any Related Company and/or the Trustee for any charge or payment as aforesaid,
which may be deducted or set off from any amounts payable to the Employee. |
| |
6.3 |
In
no event shall the Trustee or the Attorney be liable to the Company and/or the Employee
and/or to any third party (including, without derogating from the generality of the
aforesaid, the income tax authorities and any other governmental or administrative
authority, whether in Israel or abroad) or a purchaser of Shares from the Employee (or
the Trustee), with respect to any act which has been or which shall be carried out in
relation to the Plan and any matter connected thereto or arising therefrom. The Company
and/or any Related Company and the Employee covenant, upon signing this Agreement, that
they will not make, and they each hereby waive, any and all claims against the Trustee
and the Attorney as aforesaid and each of the Company, Related Company and the Employee
expressly agree that if either shall make any claim against the Trustee or the Attorney
the same shall then be entitled on the grounds of this Section alone to apply to the
competent court for dismissal of the action against them, with costs. The Company
covenants and agrees that if a claim is brought by any third party against the Trustee or
the Attorney the same will be entitled without objection by the Company, to join the
Company as a third party to any such action and any judgment against them shall be paid
by the Company. |
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The
Company and the Employee hereby covenant to indemnify the Trustee, and/or the Attorney
against any liability in relation to any claim and/or demand made against the Trustee
and/or the Attorney by any person whatsoever, including the tax authorities, in relation
to their acts or omissions in connection with the Plan. |
| |
The
provisions of this Section and the other provisions of this Agreement and the Plan which
grant any right, power, immunity or any authority to the Trustee, and/or the Attorney
shall operate in favor of the Trustee and the Attorney and they shall be entitled to act
pursuant to and enforce such provisions, and the Company and the Employee shall be liable
to the Trustee and the Attorney as if they were parties to this Agreement. |
| 7. |
Amendments
to the Plan and/or Replacement thereof |
| |
The
Employee acknowledges, agrees and confirms that the Plan may be amended as provided for
therein. Subject to Section 15 of the Plan, the Employee hereby agrees and covenants not
to raise any objection to any such amendment as aforesaid and that the Employee shall
sign any document which according to the Company is necessary or desirable in order to
give full force and effect to the amendment of the Plan. The Employee understands that
any amendment to the Plan or any document connected to the Plan, shall bind him as if he
were a party thereto. |
| 8. |
Substitution
of the Trustee |
| |
The
parties acknowledge and agree that the Company is entitled to replace the Trustee and/or
to nominate another person to serve as a Trustee in lieu of the existing Trustee if the
same is no longer capable or willing to fulfill his duties, and that the new Trustee
shall have the same powers and authority which the Plan and this Agreement grant the
Trustee. |
| |
This
Agreement shall be governed by and construed in accordance with the laws of the State of
Israel and, subject to the provisions of Section 10 below, the competent courts in the
Tel-Aviv district shall have exclusive jurisdiction with respect to any matter or conflict
with respect thereto. |
| |
As
a condition of the granting of the Option, the Employee and the Employee’s successors
and assigns agree that any dispute or disagreement which 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. |
| |
In
making any such determination or interpretation, the Board or any such committee shall not
be bound by the rules of procedure or evidence or substantive law and shall not be
required to give any reasons therefore. |
| 11. |
Notices
and/or Instructions |
| |
(a) |
Every
notice and/or instruction required or permitted to be given pursuant to
this Agreement shall be given in writing and shall be deemed to have
been delivered on the date of its delivery to the addressee by hand
or three (3) days after having been sent by registered mail. The
parties’ addresses for the purpose of this Section shall be, if
a party hasn’t communicated another address by a written notice
ten (10) days in advance, as set forth above. |
| |
(b) |
A
stamp or a receipt on behalf of the postal service which evidences the time of
delivery of the notice shall constitute conclusive evidence as to the
date of delivery and no party shall claim that a notice delivered as
aforesaid has not been received by such party. |
Schedule 1
Options Granted to
Total
Granted
Options |
Exercise
Price |
Option
Expiration
Date |
Exercise Dates |
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|
|
|
APPENDIX C
(Section 10.2 of the
Plan)
IRREVOCABLE PROXY AND
POWER OF ATTORNEY
I, the undersigned, ___________,
hereby appoint ▇▇▇ ▇▇▇▇▇▇, CPA, or whomever shall replace him as trustee pursuant to
Negevtech Ltd.‘s Employee Share Ownership and Option Plan (2001), as amended 2003
& 2004 & 2005, or whomever they shall designate (the “Trustee”
and the “Plan”, respectively) as my proxy to participate and vote (or
abstain) for me and on my behalf as he at his sole discretion shall deem appropriate, on
all matters at all meetings of shareholders (whether ordinary, extraordinary or
otherwise), of Negevtech Ltd. (the “Company”), on behalf of all the
shares and/or options of the Company held by the Trustee on my behalf and hereby authorize
and grant a power of attorney to the Trustee as follows:
I hereby authorize and grant power of
attorney to the Trustee for as long as any shares and/or options which were allotted or
granted on my behalf are held by the Trustee or registered in his name, or for as long as
the certificates representing any shares are held by the Trustee, to exercise every right,
power and authority with respect to the shares and/or options and to sign in my name and
on my behalf any document (including any agreement, including a merger agreement of the
Company or an agreement for the purchase or sale of assets or shares (including the shares
of the Company held on my behalf) and any and all documentation accompanying any such
agreements, such as, but not limited to, resolutions, decisions, requests, instruments,
receipts and the like), and any affidavit or approval with respect to the shares and/or
options or to the rights which they represent in the Company in as much as the Trustee
shall deem it necessary or desirable to do so. In addition and without derogating from the
generality of the foregoing, I hereby authorize and grant power of attorney to the Trustee
to sign any document as aforesaid and any affidavit or approval (such as any waiver of
rights of first refusal to acquire shares which are offered for sale by other shareholders
of the Company and/or any waiver of any preemptive rights to acquire any shares being
allotted by the Company, in as much as such rights shall exist pursuant to the
Company’s Articles of Association as shall be in existence from time to time) and/or
to make and execute any undertaking in my name and on my behalf if the Trustee shall, at
his sole discretion, deem that the document, affidavit or approval is necessary or
desirable for purposes of any placement of securities of the Company, whether private or
public (including lock-up and/or market stand-off arrangements and undertakings), whether
in Israel or abroad, for purposes of a merger of the Company with or into another entity,
whether the Company is the surviving entity or not, for purposes of any reorganization or
recapitalization of the Company or for purposes of any purchase or sale of assets or
shares of the Company.
This Proxy and Power of Attorney
shall be interpreted in the widest possible sense, in reliance upon the Plan and upon the
goals and intentions thereof.
This Proxy and Power of Attorney
shall expire and cease to be of force and effect immediately after the consummation of the
initial public offering of the Company’s shares, pursuant to an effective
registration statement, prospectus or similar document in Israel or such other
jurisdiction as is determined by the Board of Directors of the Company and shall be
irrevocable until such time as the rights of the Company and the Company’s
shareholders are dependent hereon. The expiration of this Power of Attorney shall in no
manner affect the validity of any document (as aforesaid), affidavit or approval which has
been signed or given as aforesaid prior to the expiration hereof and in accordance
herewith.
This Proxy and Power of Attorney
shall also apply to all shares and/or options in other entities issued or granted to or on
behalf of the undersigned and held by the Trustee in consideration or in exchange for any
shares and/or options of the Company in connection with any consolidation or merger or
like transaction with respect to the Company, and the term “Company” when used
herein shall include any other such entity.
IN WITNESS WHEREOF, I have executed this Proxy and Power of Attorney on the __ day of ________, ____.
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CONFIRMATION
I, the undersigned, ________, hereby confirm the signature of _____________which appears above.