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Exhibit
10.2
SAIFUN SEMICONDUCTORS LTD.
2001 SHARE OPTION PLAN
OPTION AGREEMENT (Under
Section 102)
1. Grant of Option.
(a) The Plan, as approved by the Company
for use by the Company, is intended to qualify as an Employee
Option Plan within the meaning of Section 102. Grants of
Option will be made pursuant to: (a) Section 102 and the
Rules; (b) the Trust Agreement (as defined below); and
(c) the approval of the Trustee (as defined below) by the
Income Tax Commissioner, in addition to being made pursuant to the
provisions of the Plan and this Agreement. In the event that the
recommendations of the Ben Bassat Committee on tax reform are
enacted after the date of this Agreement, the Company may apply to
the Income Tax Authorities in order to make appropriate adjustments
to this Agreement, provided that the rights of the Grantee under
this Agreement will not be adversely affected.
(b) Subject to the terms and conditions
set forth herein and in the Plan, the Company hereby grants the
Trustee (as defined below), for the benefit of the Grantee named in
the Notice of Option Grant, an option qualified as a “102
Option” (the “ Option ”) to purchase the
number of Shares set forth in the Notice of Option Grant, at the
exercise price per Share set forth in the Notice of Option Grant
(the “ Exercise Price ”).
(c) According to the requirements of
Section 102, this grant of Option is subject to the
Grantee’s waiver on a portion of his/her salary payment.
Therefore, by executing this Agreement you hereby authorize the
Company to deduct directly from your forthcoming salary one (1)
Agora for each Option granted to you.
(d) The Company has entered into a Trust
Agreement (the “ Trust Agreement ”) with Eitan,
Pearl, Latzer & Cohen-Zedek Trustees for Employee Benefit
Programs (the “ Trustee ”). Under the conditions
of Section 102, the Option shall be issued to the Trustee and
held in trust for the benefit of Grantee for a period of no less
than two years from the date of the grant. After the two year
holding period, the Trustee may release the Option to Grantee only
after (i) the receipt by the Trustee of an acknowledgment from
the Income Tax Authority that Grantee has paid any applicable tax
due pursuant to the Ordinance and the Rules, or (ii) the
Trustee withholds any applicable tax due pursuant to the Ordinance
and Rules.
(e) The Options provided for herein are
granted pursuant to the Plan, and said Options and this Option
Agreement are in all respects governed by the Plan and subject to
all of the terms and provisions whether such terms and provisions
are incorporated in this Option Agreement solely by reference or
are expressly cited herein. Subject to Section 16.2 of the
Plan, any interpretation of this Option Agreement will be made in
accordance with the Plan, but in the event there is any conflict
between the provisions of this Option Agreement and the Plan, the
provisions of this Option Agreement will prevail. However, in the
event of a conflict between the terms and conditions of the Plan or
of this Option Agreement and any provision of the Ordinance, Rules
or any applicable law, the latter shall govern and
prevail.
2. Issuance to Trustee and Restricted
Period .
(a) Issuance to Trustee . The
Notice of Option Grant will be issued to the Trustee as required to
qualify under Section 102, in order that the Trustee will hold
the Option in trust for the benefit of Grantee.
(b) Restricted Period . In
accordance with the requirements of Section 102, the Trustee
has agreed to hold the Notice of Option Grant, or the Shares to be
issued upon exercise of the Option, as the case may be, for a
period of no less than 24 months from the date of the deposit of
the Notice of Option Grant in trust (the “ Restricted
Period ”). In order for the tax benefits of
Section 102 to apply, during the Restricted Period, Grantee
may not cease to be an employee of the Company (other than because
of death or some other reason acceptable by the Income Tax
Commissioner), and neither the Option nor the Shares, as the case
may be, may be sold or transferred (other than through a transfer
by will or by operation of law), nor may they be the subject of an
attachment or security interest, and no power of attorney or
transfer deed shall be given in respect thereof (other than a power
of attorney for the purpose of participation in general meetings of
shareholders). In the event that Grantee elects to exercise his
Option during the Restricted Period, the Company shall provide the
Trustee with the Share Certificate in the name of the Trustee, for
the benefit of Grantee, in order that the Trustee will hold it
until no sooner than the end of the Restricted Period.
(c) End of Restricted Period .
Upon the termination of the Restricted Period, Grantee shall be
entitled to receive from the Trustee the Shares acquired in the
exercise of the Option and/or shall be entitled to sell the Shares
thereby obtained, subject to the other terms and conditions of this
Agreement and the Plan, including the provisions relating to the
payment of tax set forth below.
3. Non-Transferability of Option
. This Option may not be transferred in any manner otherwise than
by will or by the laws of descent or distribution and may be
exercised during the lifetime of Grantee only by Grantee. The terms
of the Plan and this Option Agreement shall be binding upon the
executors, administrators, heirs, successors and assigns of
Grantee.
4. Term of Option . This Option
may be exercised only within the term set out in the Notice of
Option Grant, and may be exercised during such term only in
accordance with the Plan, the terms of this Option and the Trust
Agreement.
5. Exercise of Option
.
(a) Right to Exercise . This
Option shall be exercisable during its term in accordance with the
Vesting Schedule set out in the Notice of Option Grant and with the
applicable provisions of the Plan, this Option Agreement and the
Trust Agreement.
(b) Method of Exercise . This
Option shall be exercisable by delivery of an exercise notice in
the form attached as Exhibit A to this Agreement (the
“ Exercise Notice ”) and such other
representations and agreements as may be required by the Company
and/or the Trustee. The Exercise Notice shall be accompanied by
payment of the aggregate Exercise Price for the number of Shares to
be purchased. This Option shall be deemed to be exercised upon
receipt by the Company of such fully executed Exercise Notice
accompanied by the aggregate Exercise Price.
No Shares shall be issued pursuant to
the exercise of an Option unless such issuance and such exercise
comply with applicable laws. If any law or regulation requires the
Company to take any action with respect to the Shares specified in
such notice before the issuance thereof, then the date of their
issuance shall be extended for the period necessary to take such
action. Assuming such compliance, for income tax purposes the
Shares shall be considered transferred to Grantee on the date on
which the Option is exercised with respect to such
Shares.
The Shares shall be issued to the
Trustee and the Trustee will transfer the Shares to Grantee upon
demand but in no event earlier than twenty-four (24) months
from date of grant, (unless Section 102 is amended and allows
for a shorter holding period in which case such shorter holding
period shall apply).
In the event a share dividend is
declared on Shares, such dividend shall also be subject to the
provisions of Section 102 and the holding period for such
dividend shares shall be measured from the commencement of the
holding period of the Option, from which the dividend was
declared.
(c) Method of Payment . Payment
of the aggregate Exercise Price shall be made in New Israeli Shekel
(“NIS”) at the Representative Rate of Exchange for the
U.S. dollar published by the Bank of Israel on the day prior to the
date of actual payment, or if permitted by the Committee the
payment may also be made in U.S. Dollars, by any of the
following
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