Exhibit 4.1
BLUEPHOENIX SOLUTIONS LTD
BLUEPHOENIX 2003 EMPLOYEE STOCK OPTION PLAN
As amended on December 30, 2004
(former name: CRYSTAL SYSTEMS SOLUTIONS LTD
1996 EMPLOYEE SHARE OPTION PLAN - PART ONE)
December 30, 2004
BLUEPHOENIX SOLUTIONS LTD.
2003 EMPLOYEE SHARE OPTION PLAN
A. NAME AND
PURPOSE
| 1. |
Name. This plan, as amended from time to time, shall be
known as the “BluePhoenix 2003 Employee Stock Option
Plan” (the “Plan”). |
| 2. |
Purpose. The purpose and intent of the Plan is to
provide incentives to employees, directors, officers and
consultants of BluePhoenix Solutions Ltd. (the
“Company”) and of its subsidiaries and affiliates who
are not controlling shareholders of the Company, by providing them
with opportunities to purchase Ordinary Shares, nominal value 0.01
New Israeli Shekels each (the “Shares”), of the
Company, pursuant to a plan approved by the Board of Directors of
the Company which with respect to employees of the Company, is
designed to benefit from, and is made pursuant to, the provisions
of Section 102 of the Israeli Income Tax Ordinance [New
Version], 1961 (the “Tax Ordinance”), and the rules and
regulations promulgated thereunder (the “Regulations”).
Grant of options to Non – Israeli residents shall be in
accordance with the provisions of Appendix A of this
Plan. |
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B. GENERAL
TERMS AND CONDTIONS OF THE PLAN
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3.1 |
The Plan will be administered by the Board of Directors of the
Company (the “Board”) or by a committee appointed by
the Board (the “Committee”), which, if appointed, will
consist of such number of Directors of the Company as may be fixed,
from time to time, by the Board. If a Committee is not appointed,
or if it is required under any law the term Committee, whenever
used herein, shall mean the Board. The Board shall appoint the
members of the Committee, may from time to time remove members
from, or add members to, the Committee and shall fill vacancies in
the Committee however caused. |
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3.2 |
The Committee shall select one of its members as its Chairman
and shall hold its meetings at such times and places as it shall
determine. Actions taken by a majority of the members of the
Committee, at a meeting at which a majority of its members is
present, or acts reduced to or approved in writing by all members
of the Committee, shall be the valid acts of the Committee. The
Committee may appoint a Secretary, who shall keep records of its
meetings and shall make such rules and regulations for the conduct
of its business as it shall deem advisable. |
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3.3 |
Subject to the general terms and conditions of this Plan, the
Committee shall have the full authority in its discretion, from
time to time and at any time, to determine: |
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(i) |
Whether the Options shall be issued to a trustee nominated by
the Committee pursuant to Section 102(b) of the Tax Ordinance, or
the Options shall issued without a trustee pursuant to Section
102(c) of the Tax Ordinance; |
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(ii) |
The person to be nominated as a trustee pursuant to the
Plan; |
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(iii) |
In the event that the Company elects to grant Options pursuant
to Section 102(b) of the Tax Ordinance – whether the Options
be granted pursuant to Section 102(b)(1) of the Tax Ordinance
(“Income Track Options”) or pursuant to Section
102(b)(2) of the Tax Ordinance (“Capital Gains Track
Options”). (issuance of Income Track Options or Capital Gains
Track Options shall be referred to herein as “Tax
Track(s)”). In the event that the Company elects one of the
Tax Tracks as described above, it may not grant Options pursuant to
the other Tax Track during a period commencing on the end of the
year in which the Options were granted until the end of the
subsequent year; |
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(iv) |
(a) The persons (“Grantees”) to whom options to
purchase Shares (“Option(s)”) shall be granted,
(b) the number of Options to be granted to each Grantee,
(c) the time or times at which the same shall be granted,
(d) the schedule and conditions on which such Options may be
exercised and on which such Shares shall be paid for, and/or
(e) any other matter which is necessary or desirable for, or
incidental to, the administration of the Plan. In determining the
number of Options to be granted to each Grantee, the Committee may
consider, among other things, the Grantee’s salary and the
duration of the Grantee’s employment by the
Company. |
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3.4 |
The Committee may, from time to time, adopt such rules and
regulations for carrying out the Plan as it may deem necessary. No
member of the Board or of the Committee shall be liable for any act
or determination made in good faith with respect to the Plan or any
Option granted thereunder. |
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3.5 |
The interpretation and construction by the Committee of any
provision of the Plan or of any Option thereunder shall be final
and conclusive unless otherwise determined by the
Board. |
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| 4. |
Eligible Grantees and General Terms. |
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4.1 |
The Committee, at its discretion, may grant Options to
employees, directors, officers and consultants of the Company and
its subsidiaries and affiliates provided that such Grantees are not
controlling shareholders of the Company (as such term is defined in
Section 32(9) of the Tax Ordinance). Anything in this Plan to the
contrary, notwithstanding all grants of Options to directors and
officers -“Nosei Misra” - as such term is
defined in the Israeli Companies Law, 1999, (the “Companies
Law”) - shall be authorized and implemented only in
accordance with the provisions of the Companies Law. The grant of
an Option to a Grantee hereunder, shall neither entitle such
Grantee to participate, nor disqualify him from participating, in
any other grant of options pursuant to this Plan or any other stock
option plan of the Company. |
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4.2 |
Each Option is exercisable into one Share. |
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(a) |
In the event that the Committee has elected to grant Options to
a trustee designated by the Board and approved by the Israeli
Commissioner of Income Tax (the “Trustee”), as
prescribed under Section 3.3(i) above, the Trustee shall hold each
such issued Option and the Shares issued upon exercise thereof in
trust (the “Trust”) for the benefit of the Grantee in
respect of whom such Option was granted (the “Beneficial
Grantee”). |
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(b) |
Issuance of Options to a Trustee pursuant to any of the Tax
Tracks is subject to the completion and execution of all procedures
required under the Tax Ordinance and/or the
Regulations. |
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(c) |
All certificates representing Shares issued to the Trustee
under the Plan shall be deposited with the Trustee, and shall be
held by the Trustee until such time that such Shares are released
from the Trust as herein provided. |
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(d) |
Pursuant to the provisions of Section 102 of the Tax Ordinance
and the Regulations, the taxation of the Options or Shares issued
upon the exercise of Options pursuant to any of the Tax Tracks, are
subject to their deposition in Trust for the required holding
period (the “Required Holding Period”) as follows: (i)
in the event that the Company elects the Income Tax Track –
twelve (12) months after the end of the year in which the Options
were granted and deposited in Trust; (ii) in the event that the
Company elects the Capital Gains Tax Track – twenty four (24)
months after the end of the year in which the Options were granted
and deposited in Trust; or (iii) any other shorter period to be
determined by the Committee which was approved by the tax
authorities or in accordance with tax regularization to be adopted
from time to time. |
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No Options or Shares shall be released from the Trust until the
later of (i) the end of the Required Holding Period; and (ii) the
vesting of such Options pursuant to Section 7.4 hereof (such
later date being hereinafter referred to as the “Release
Date”). |
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(e) |
Subject to the terms hereof, at any time after the Release Date
with respect to any Options or Shares the following shall
apply: |
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(i) |
Options and/or Shares issued to the Trustee shall continue to
be held by the Trustee, on behalf of the Beneficial Grantee. From
and after the Release Date, upon the written request of any
Beneficial Grantee, the Trustee shall release from the Trust the
Options and/or the Shares issued, on behalf of such Beneficial
Grantee, by executing and delivering to the Company such
instrument(s) as the Company may require, giving due notice of such
release to such Beneficial Grantee, provided, however, that the
Trustee shall not so release any such Options and/or Shares to such
Beneficial Grantee unless the latter, prior to, or concurrently
with, such release, provides the Trustee with evidence,
satisfactory in form and substance to the Trustee, that all taxes
or other compulsory payments, if any, required to be paid upon such
release have, in fact, been paid. |
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(ii) |
Alternatively, from and after the Release Date, upon the
written instructions of the Beneficial Grantee to sell any Shares
issued upon exercise of Options, the Trustee shall use its best
efforts to effect such sale and shall transfer such Shares to the
purchaser thereof concurrently with the receipt, or after having
made suitable arrangements to secure the payment of the proceeds,
of the purchase price in such transaction. The Trustee shall
withhold from such proceeds any and all taxes or other compulsory
required to be paid in respect of such sale, shall remit the amount
so withheld to the appropriate tax authorities and shall pay the
balance thereof directly to the Beneficial Grantee, reporting to
such Beneficial Grantee and to the Company the amount so withheld
and paid to said tax authorities. |
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Should the Trustee sell Shares at the request of the Beneficial
Grantee, the company shall pay the Trustee for his services and
expenses incurred with respect to such sale of Shares, and the
Trustee will be entitled to withhold such amounts and pay the
balance thereof to said Beneficial Grantee.
Notwithstanding the provisions of Subsection (d) above, Subject to
the approval of the Committee, the Beneficial Grantee may sell or
transfer the Options or Shares issued upon the exercise of Options
prior to the end of the Required Holding Period, provided however
that the Trustee shall withhold applicable tax or shall insure
withholding of applicable tax in accordance with the provisions of
the Regulations and Section 102 of the tax Ordinance relating to
transfer prior to the end of the Required Holding
Period. |
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5.2 |
Dividend and Voting Rights . All Shares issued upon the
exercise of Options granted under the Plan shall entitle the
Beneficial Grantee thereof to receive dividends with respect
thereto, and to vote the same at any meeting of the shareholders of
the Company. For so long as Shares issued to the Trustee on behalf
of a Beneficial Grantee are held in the Trust, |
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