VALOR INVESTING - the challenge, part 1

Valor hat seinen Mitarbeitern 1.487.000 Aktien zum Preis von $ 2,14 garantiert, davon wurde knapp mal 500.000 zurückgekauft. Wenn nun am 10. Mai Zahlen kommen, die schlecht wären, warum intensiviert die Company jetzt ihr Rückkaufprogramm, wo sie bei diesen Kursen schon mächtig Miese machen?

Einzig logische Erklärung: die Quartalszahlen und der Ausblick müssen SO GUT sein, daß der Kurs abgeht wie eine Rakete ... dann wirds nämlich wirklich teuer bei noch 1 Million Aktien.

Wer weiß, vielleicht waren die eingetrübten Schätzungen des Managements (1. Quartal schlechter wegen Neuinvestitionen) deren letzte Chance, bewußt niedrige Kurse wegen dieses Mitarbeiterprogramms zu sehen.

Für mich ein klarer Kauf.

(PS: KGV - Prognose in part 2, etwas aufwendig, heute nicht mehr)

Grüsse

“Current Options” and the "Current Employees" respectively).
Up to 97,000 of the Options are designated for future allotment to additional
employees in Israel, whose identity shall be determined at the Company’s
discretion, who shall commence their employment with the Company or with
the Subsidiaries at a date subsequent to the date of publication of this Profile
and no later than 31.12.2001, provided that they are not and shall not become
"control owners" in the Company by virtue of their holdings as set forth in
Chapter 2 hereinafter (the “Future Options” and the “Future Employees”
respectively).
The Current Employees entitled to the Current Options and the Future
Employees entitled to the Future Options, shall be referred hereinafter together
as the: “Optinees” or "Entitled Employees".
In this Profile the term ”control owners” shall have the meaning according to
the provisions of the Income Tax Rules (tax relieves in issuance of share to
employees), 1989-5749.
Each of the Options is offered for an Allotment Consideration (as specified in
section 2.1. below) equal to NIS 0.01 (10% of the par value sum of each share
to be exercised) to be deducted from the relevant agreeing employee's salaries.
The entitlement to receive the Options (both Current and Future), is conditional
upon the execution of a binding agreement between the Company and the
Optionee (hereinafter: the “Option Agreement”; see chapter 4 hereunder) in
the format attached as Exhibit ”A”, which constitutes an integral part of this
Profile. In any contradiction between this Profile and the Option Agreement
which can not be settled, the provision of this Profile shall govern .
Each Entitled Employee shall be allowed to exercise the Options offered to
him/her, in three portions, as set forth in section 2.2 hereinafter.
The exercise as detailed above shall be executed on Business Days only as
defined in section 2.2 hereinafter.
The said Options are offered in accordance with a resolutions of the Company’s
Board of Directors dated 7.1.2001 and 8.5.2001.
On 12 May, 2000 the Company’s shares were offered to the public pursuant to a
prospectus on the Neuer Markt Stock Exchange, which is a segment of the
Stock Market in Frankfurt, Germany (hereinafter referred as the "Stock
Exchange") and in so doing, the Company became a public company, within
the meaning thereof in the Companies Law, 5759-1999 (hereinafter referred as
the “Companies Law”). As at the date of publication of this Profile, all the
outstanding Company’s shares are registered for trading on the Stock Exchange
and consequently the Exercised Shares (as defined below) may also be tradable,
in accordance with the provisions of the German Law, the Regulations of the
Stock Exchange in Frankfurt and the Regulations of the Neuer Markt Stock
Exchange (with respect to various provisions regarding the tradability of the
shares see section 1.2. and chapter 2 below).
All the permits, approvals and the licenses required under the Israeli and
German law for the offering of the securities offered pursuant to this Profile,
their issue and the publication of this Profile, were obtained.
The Options are being offered to employees in Israel subject to the provisions of
section 102 of the Income Tax Ordinance, 5741-1961 (hereinafter referred as
the “Income Tax Ordinance”) and to special arrangements in existence
pursuant thereto, including, inter alia, the depositing of Options and/or the
Exercised Shares with a Trustee for a period of not less than 24 months (see
sections 2.9 and 4.2. below, hereinafter referred as the “Employees” or the
“Israeli Employees”).
For further details regarding, inter alia, the Options offered, the Exercised
Shares and tax implications - see Chapters 2, 3 and 4 below.
1.2 The Entitled Employees and the determining of their entitlement
This offering is addressed to the Entitled Employees in such manner that each
Entitled Employee shall be entitled to receive the number of Options as shall be
indicated in the notice to be sent to every Entitled Employee within 14 Business
Days from the date of publishing this Profile (or at a later date, as shall be
determined by the Company in all aspects relating to the Future Employees and
Future Options). The number of Options offered to each Entitled Employee is
determined in accordance with the principles of the Company’s 2001 Share
Option Plan (hereinafter referred as the “Option Plan” and attached herewith as
Exhibit “B”), the nature of the position held by the employee and his/her salary.
Regarding this Profile the relevant Company's subsidiaries are Frontline P.C.B.
Solutions Limited Partnership and any other subsidiary in which the Company
shall hold, directly or indirectly, no less than 50% of the voting rights.
1.3 Permits obtained in connection with the Profile and listing of the Exercise
Shares for trade
The Company has obtained all the necessary approvals in accordance with the
Israeli and German law for the offering of the Options to the Entitled
Employees pursuant to this Profile.
The Company applied to the Securities Authority in Israel on 21 st November
2000, with a request to exempt the Company from the requirement of publishing
a prospectus in Israel with respect to the allotment of Options to its employees
by virtue of the compensation plan that would be adopted by the Company.
On December 24 th , 2000, the Company received notice whereby, the Securities
Authority in Israel had decided on 19.12.2000, by virtue of its authority under
section 15d of the Securities Law, to exempt the Company from the provisions
of the Securities Law in connection with an offering of the Company’s
securities to employees of the Company in Israel. This exemption is contingent
on the following conditions:
One. The Company shall include in the framework of the official publication
regarding the granting of the Options on the Stock Exchange (hereinafter
referred as the “Official Publication”), all the necessary details pursuant to
the Securities Regulations (Details of a profile for an offering of Securities
to Employees) 5760-2000, including the details of the compensation plan
for employees, and shall furnish the Authority with three copies of the
Official Publication. In the framework of the Official Publication, the
Company shall declare that it reports, and intends to continue reporting, in
accordance with international accounting principles, although, from the
point of view of the German Law and/or the Regulations of the Neuer
Markt, there is no impediment upon the Company to vary, in the future, the
method of reporting according to which its financial statements are to be
prepared. The Company declares that the aforesaid is accurate.
Furthermore, the Company shall provide every employee in Israel who is
entitled to the securities under the Option Plan, with the Official
Publication, written in the English language, together with any document
mentioned therein, directly or indirectly, including its appendices, or
alternatively, shall make copies of the Official Publication available for
inspection by the employees in each of the work locations at which the
Company’s employees are employed in Israel, in a sufficient quantity, to
enable any employee interested therein to inspect it. An employee shall be
entitled to receive a translated copy of the Official Publication into Hebrew,
where same is demanded by the employee from the Company.
Two. Following submission of the Official Publication, the Company shall
update its employees on an ongoing basis regarding the filing of the annual
and quarterly statements and any other immediate report or accounting
which shall be sent to the Stock Exchange. Furthermore, the Company shall
make copies of such reports/accounting, in the English language, available
to the employees for their inspection, at each of the work locations at which
employees of the Companies are employed in Israel, in a sufficient quantity
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to enable any employee interested therein to inspect it. An employee shall
be entitled to receive a translated copy of such reports into Hebrew where
same is demanded by the employee from the Company.
As stated above, the Company’s shares are registered for trading in the Stock
Exchange. In the framework of the procedure for the Company Initial Public
Offering ("IPO") the Stock Exchange granted its approval for the registration
for trading of additional 4,780,800 shares, which might be issued due to
exercise of options. 1,500,000 options of the above 4,780,800 options have not
been granted until this Profile. Upon exercise of the Options, as more fully
described in Chapter 2 hereinafter, the Company shall issue the Exercised
Shares and a notice shall be served to Clearstream Banking AG
(“Clearstream”) with the issuance of the Exercised Shares in order to enable
their tradability in the Stock Exchange.
This Profile and the appendices hereof should not be regarded as any
declaration or undertaking on behalf of the Company’s part according to
which the stock exchange German authorities shall in fact allow tradability
of the Exercised Shares or shall grant such right on terms which the
Company can fulfill, or that the Exercised Shares will be tradeable on any
stock exchange at all.
1.4 Refraining from arrangements which are not recorded in the Profile
The Company and the Directors do not undertake, by signing this Profile,
to refrain from entering into any arrangement which is not recorded in this
Profile in connection with the offering of the Options, their distribution and
dispersal amongst the Company’s employees. Similarly, the Company and
the Directors do not undertake to refrain from entering into arrangements
with a third party in connection with the Options.
Without derogating from the above, the Company has entered into agreements
with Tamir Fishman Singer Barnea Asset Management Ltd. (hereinafter
referred as “TFSB”), in connection with this Profile and the appendices
attached hereto, regarding, inter alia, the management of the Option Plan and
the exercising procedure of the options, and with the Trustee (as defined in
section 4.2 hereunder) with regard to his/her trusteeship, all subject to the terms
and conditions hereinafter provided.
1.5 Future necessary adjustments
If in the future adjustments should be made to the Option Plan and/or to the
instructions of this profile, due to any change or applicability in
Law/Regulations (including the Israeli or German) or Stock Exchange
Regulations, as the case may be, the Board would, bona fide, decide on the
nature of such adjustments/amendments as it deems fit according to its absolute
discretion, and the Option Plan and/or this profile shall be considered as such
adjusted/amended, accordingly.
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Chapter 2 - Details of the Options offered, their Allotment
and Exercise
2.1 General
Up to 600,000 Options are being offered to Current Employees and Future
Employees of the Company and its Subsidiaries.
The Options deeds offered by the Company pursuant to this Profile are issued in
accordance with the resolutions of the Company’s Board of Directors dated
January 7 th , 2001 and May 8 th , 2001 and are registered in the names of the
Trustee (as defined below) for the benefit of Optionees.
Each Option entitles its beneficiary the right to purchase one Ordinary Share of
NIS 0.1 par value, for the period, at the price and subject to the terms set forth
hereafter. The Options deeds do not confer any other rights (including, inter
alia, any right to a dividend, to participate in liquidations profits or to vote),
other than the said exercise right, as stated above, and excluding the right to
execute certain adjustments upon changes in the Company's capital structure
(see section 2.5 below).
The Allotment Price
In accordance with the provisions of the Income Tax Ordinance and the
Regulations promulgated by virtue thereof, each employee shall be required to
transfer to the Company, in exchange and as a condition for receiving the
Options, and forthwith signing the Option Agreement as set forth in section 2.2
hereunder, by away of deduction from his/her salary a sum equal to 10% of the
product of the number of the Option taken by him/her and the par value of the
Exercise Shares (i.e. NIS 0.1 per share), (hereinafter referred as the “Allotment
Consideration”).
2.2 Allotment of the Options
One. The Current Options:
Within 14 business days (days on which the majority of banking
corporations in Israel are open for the execution of transactions involving
foreign currency with the public; in subsection 2.2(a) (b) "Business
Days") from the date of publishing this Profile, the Company shall send a
notice to each Current Employee (in this subsection 2.2 the “Notice of
Right”) regarding his/her entitlement to receive Options in accordance
with the provisions of this Profile and regarding the number of Options
which he/she is entitled to receive.. By means of his/her signature on the
Option Agreement jointly with the Authorization Agreement, a copy
which is attached hereto as Exhibit “C” (referred hereto as the
“Authorization Agreement”), such employee is to confirm his/her
consent to receive the Options in the full amount offered to him/her,
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his/her consent to deduct the Allotment Price as stipulated in section 2.1,
his/her acquiescence with the terms of the Option Agreement, as well as
his/her acquiescence with the conditions applying in connection with the
Options and the Exercised Shares, all as set forth in this Profile and its
attachments.
The signed Option Agreement and the Authorization Agreement shall be
returned to the Company at its registered office, by and no later than May
28, 2001. Options shall not be allotted to a Current Employee who will
not have returned the signed documents by the said date.
On May 31, 2001 (in this subsection 2.2(a) the “Date of Grant”), the
Company shall allot to the Trustee as defined in section 4.2 hereunder (the
"Trustee") for the benefit of each Current Employee who will have
returned the signed Option Agreement and the Authorization Agreement
to the Company ("Current Exercising Employee"), the Options the same
employee will be entitled to.
Two. The Future Options:
No later than ninety Days following the date of commencement of
employment of a Future Employee entitled to receive Future Options, the
Company shall send a notice to such employee regarding his/her
entitlement to receive Options in accordance with the provisions of this
Profile and regarding the number of Options which he/she is entitled to
receive. By means of his/her signature on the Option Agreement jointly
with the Authorization Agreement, such employee is to confirm his/her
consent to receive the Options in the full amount offered to him/her,
his/her consent to deduct the Allotment Price as stipulated in section 2.1,
his/her acquiescence to the terms of the Option Agreement, as well as
his/her acquiescence with the conditions applying in connection with the
Options and the Exercise Shares, all as set forth in this Profile and its
attachments.
The signed Option Agreement and Authorization Agreement shall be
returned to the Company at its registered office, by no later than the end
of thirty days from the date of sending the Notice of Right. Options shall
not be allotted to a Future Employee who will have not returned the
signed documents by the said date.
No later than 30 days from receiving the signed documents above (in
subsections 2.2(b) and 2.3(c) the “Date of Grant”), the Company shall
allot to the Trustee for the benefit of the relevant Future Employee who
will timely have returned signed the documents above to the Company
("Future Exercising Employee"), the Options the same employee will be
entitled to.
2.3 Exercise of the Options
One. General:
The Options offered pursuant this Profile shall be exercisable for Ordinary
Shares of NIS 0.1 par value each (for details regarding the Exercised
Shares - see Chapter 3 below), in such manner that each Option shall be
exercisable for one Ordinary Share of NIS 0.1 par value, in consideration
for the Exercise Price indicated in the Option Agreement - all subject to
the term and conditions specified in the Profile and its attachments.
Two. Exercise of the Current Options:
Each Current Exercising Employee shall be entitled to exercise the
Current Options to be allotted to him/her, in three portions, in such
manner that on each Business Day commencing on January 7, 2003, each
Current Exercising Employee shall be entitled to exercise ½ of the number
of Current Options allotted to him/her pursuant to this Profile, on each
Business Day commencing on January 7, 2004, each Current Exercising
Employee shall be entitled to further exercise additional 1/4 of the number
of Current Options allotted to him/her pursuant to this Profile and on each
Business Day commencing on January 7, 2005, each Current Exercising
Employee shall be entitled to further exercise the remaining 1/4 of the
number of Current Options allotted to pursuant to this Profile. A Current
Exercising Employee shall be entitled to exercise the Options allotted to
him/her, all or some of them, on each Business Day, at his/her discretion,
commencing from the date on which the Options shall be exercisable by
him/her as set forth above, and in any event, not later than31.12.2010
(hereinafter - “the end of the Current Exercise Period”).
Notwithstanding the above and for the avoidance of any doubt, any Share
Option transaction prior to the laps of 24 months from the Day of Grant is
not in conform with the instructions of section 102 of the Income Tax
Ordinance and expose the Optionee to some additional tax consequences.
c. Exercise of the Future Options:
Each Future Exercising Employee shall be entitled to exercise the Future
Options to be allotted to him/her, in three portions, in such manner that on
each Business Day commencing from the end of two years from the Date
of Grant, each Future Exercising Employee shall be entitled to exercise ½
of the number of the Future Options allotted to him/her pursuant to this
Profile, on each Business Day commencing from the end of three years
from the Date of Grant, each Future Exercising Employee shall be entitled
to further exercise additional 1 /4 of the number of Future Options allotted
to him/her pursuant to this Profile and on each Business Day commencing
from the end of four years from the Date of Grant, each Future Exercising
Employee shall be entitled to further exercise the remaining 1 /4 of the
number of Future Options allotted to him/her pursuant to this Profile. A
Future Exercising Employee shall be entitled to exercise the Options
allotted to him/her, all or some of them, on each Business Day, at his/her
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discretion, commencing from the date on which the Options shall be
exercisable by him/her as set forth above, and in any event, no later than
ten years from the Date of Grant (here in after - “the end of the Future
Exercise Period”).
In this section 2.3: a “Business Day” - a day on which trading is conducted on
the Neuer Markt Stock Exchange in Frankfurt, Germany.
2.4 The Exercise Procedure
An employee wishes to exercise his/her right to exercise the Options allotted to
him/her, all or some of them, shall act in accordance with the instructions and
stipulations provided in the Authorization Agreement.
An Option that is not exercised by the end of the Current/Future Exercise
Period, as the case may be, shall expire, shall be invalid and shall not vest any
right whatsoever in the owners thereof. An Option that will have been exercised
and in respect of which an Exercise Share will have been allotted, shall cease to
be valid immediately upon issuing the Exercised Share. Until the actual issue of
the Exercise Share(s), the Option holders shall not be deemed as shareholders of
the Company (by virtue of the Options). However, they shall be afforded the
protection as set forth in section 2.5 below. From its issuance onwards, the
Exercised Shares shall rank equally with all the Ordinary Shares in the
Company’s share capital.
In respect of the Employees who are subject to the Income Tax Ordinance, the
allotment procedure as well as the Exercise Procedure as a whole, are subject to
the provisions of the Income Tax Ordinance and the Regulations promulgated
by virtue thereof, including the depositing of the Option deeds and the (as the
case may be) Exercised Shares with the Trustee for a period of not less than 24
months (see section 4.2 below).
Notwithstanding the above, the Company may alter the Allotment
Procedure as well as the Exercise Procedure in such manner, inter alia,
that will facilitate the admission for trade of the Exercised Shares,
pursuant to the provisions of all applicable laws.
2.5 Adjustment of rights
An Optionee for whom (his/her) the options were allotted according to this
Profile shall be deemed as an Option Holder. Until allotment of the Exercise
Shares as stated, the Option Holders shall not have any right to vote, any right to
receive dividends or any other right of a shareholder (other than the right to
exercise the Options).
No adjustments shall be made in respect of a dividend or other rights during the
period prior to allotment of the Exercise Shares, save for the adjustments set
forth hereafter:
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2.5.1 In the case of a change in the Company’s share capital structure
(including a consolidation or split of shares), adjustments shall be
made to the number of shares deriving from the exercise of the Options
and of the Exercise Price required.
2.5.2 In the case of an issue of bonus shares by the Company, each Option
Holder shall be entitled to receive, at the time of their exercise - in
addition to the shares deriving from exercise of the Options, and
without further payment - shares in the number to which he/she would
have been entitled to if he/she had exercised his/her option on the eve
of the date determining the issuance of the bonus shares.
2.5.3 Where all the shareholders of the Company are offered rights to
purchase any securities of the Company, the Company is required to
also offer identical rights to the Option Holders who have not yet
exercised the Options on the date of determining the right to acquire
them and which they are entitled to exercise, as if the Holders of such
Option had exercised their Options on the eve of the date determining
the right to participate in the said acquisition, provided however that
the Committee, in its sole discretion shall determine whether to allow
the Option Holder to enjoy any other benefit deriving from the said
offer of securities rather than the right to purchase it in its Fair Market
Value.
2.5.4 The Company shall furnish written notice to all the Option Holders
regarding any proposal presented for approval in connection with the
Company’s liquidation.
Each Option Holder shall be entitled to give notice in writing of his/her
wish to be considered as though he/she had exercised the Options
(including also, acceleration and exercise of the Options for shares
which could not yet otherwise have been exercised) no later than 7
days prior to adopting the resolution of liquidation. The validity of
such Option holder's notice is subject to attaching by him/her of the
Exercise Price for the Exercise Shares (this sum shall be returned to
such Option Holder in case the liquidation resolution shall not in the
end be adopted).
In the event that the Options are not exercised for shares, they shall be
cancelled forthwith prior to the date of executing the liquidation, and
shall be invalid and shall not vest any right whatsoever in the owner
thereof.
2.5.5 In the event of the Company’s merger with or into another corporation,
or a sale of substantially all of the Company’s assets to another
corporation, the unexercised Options shall be substituted by equally
ranking options of the successor corporation, subject to the consent of
the successor corporation. However, if the successor company (or a
parent or subsidiary of the successor company) does not agree to
assume or substitute for the Option award as aforesaid, the vesting
periods shall be accelerated and become vested for a period starting as
of fourteen (14) days prior to the effective date of such transaction and
ending 7 days prior to it in the following manner - the first Vesting
Date shall be deemed as 12 months from the relevant Date of Grant (as
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defined in sections 2.2(a) or 2.2(b), respectively); the second Vesting
Date shall be deemed as 30 months from the said Date of Grant; and
the third Vesting Date shall be deemed as 42 months from the said
Date of Grant. Any Option, which shall not be exercised until 7 days
prior to the effective date of the transaction, shall become null and
void.
In case the merger or the said transaction shall not in the end be
completed or take place the said acceleration of the vesting period shall
be annulled and the vesting period shall be again as set forth in section
2.3 above.
2.5.6 For the avoidance of doubt and without derogating from the above,
each employee shall bear all tax consequences and obligations which
might arise as a consequence of the acceleration of his/her options and
the Options’ exercise, including their exercise prior to the laps of 24
months from the relevant Date of Grant.
2.6 Cessation of employment
In the event that an Entitled Employee ceases to be employed by the Company
(other than as a result of death or Disability as defined below), he/she shall be
entitled, until the end of a period of ninety days from the termination date of
his/her term of employment, and in any case by no later than the end of the
relevant Exercise Period to exercise that portion of the Options allotted to
him/her, which is exercisable pursuant to the terms of this Profile until the end
of the term of his/her employment.
Notwithstanding the aforesaid, where the Entitled Employee was dismissed in
circumstances in which he/she is not entitled to severance payment, as stated in
the Severance Pay Law, 5723-1963, and/or with Cause, all the Options granted
to him/her pursuant to this Profile and which were not exercised for shares, shall
expire. In the case of the resignation or dismissal of an Entitled Employee, the
day of sending the letter of resignation to the employer or on the day of sending
the letter of dismissal to the employee, as the case may be, shall be deemed, for
the purpose of this Profile, as the termination of his/her employment by the
Company, regardless of the actual date on which the employment was
terminated.
The term “Cause” shall mean for the purposes of this Profile: (I) conviction of
any felony involving moral turpitude or affecting the Company; (ii) any refusal
to carry out a reasonable directive of the CEO which involves the business of
the Company or its affiliates and was capable of being lawfully performed; (iii)
embezzlement of funds of the Company or its affiliates; (iv) any breach of the
Optionee’s fiduciary duties or duties of care of the Company; including without
limitation disclosure of confidential information of the Company; and (v) any
conduct (other than conduct in good faith) reasonably determined by the Board
of Directors to be materially detrimental to the Company
In the case of the termination of employment of an Entitled Employee as a
result of a Disability, the Entitled Employee shall have the a right, until the end
of a period of 12 months from the date of terminating his/her term of

Company in connection with the Entitled Employees’ continued employment by
the Company (or any of its Subsidiaries).
2.9 The tax implications of the Option allotments, their exercise for shares and
sale of the shares and certain benefits - all for Israeli Employees according
to section 102 of the Income Tax Ordinance .
According to the provisions of section 102 of the Income Tax Ordinance, an
employee who is subject to the Income Tax Ordinance jurisdiction and is
granted options to purchase shares in the company (or its Subsidiaries) which
employs him/her, may be entitled to certain tax benefits, provided that certain
condition are met including, inter alia, that the shares are deposited with a
trustee nominated in the manner stipulated by law.
The date of the tax liability shall apply on the date of selling of the
options/exercised shares or on the date of transferring the option/exercised
shares from the Trustee to the employee.
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The Company has taken all the required steps and has obtained the Isareli tax
authority approval in order to achieve the above tax benefits. However, the
above mentioned tax benefits are a matter of law, and might be altered or
annulled by the legislator or the tax authorities at any given time.
Moreover, each employee who is subject to the provisions of the Income Tax
Ordinance, is obliged to declare that he/she will not transfer the shares issued
upon the exercise of 102 Options nor any other shares received subsequently
following any realization of rights which are subject to section 102, by a way of
tax - exempt transfer or a transfer under Chapter E`2 or section 97 (a) of the
Income Tax Ordinance. By signing tha Option Agreement/being granted the
Options, every such employee declares the aforementioned.
Notwithstanding anything of the contrary of the aforementioned, in case the
Optionee will be subject to any other foreign tax regime(s), he/she shall be
taxable in accordance to this foreign regime(s), and the Company shall have the
right to condition the allotment of the Options and/or their exercise (and any
transaction regarding them), by its sole discretion, upon the
settlements/arrangements of the foreign tax obligations that the Company find
suitable. The actual allotment of the Options and/or their exercise and/or
agreeing to any transaction regarding the Share Option and/or any other act
done by the Company regarding the above shall not impose any liability upon
the Company.
Notwithstanding the above, each employee shall be exclusively liable for any
tax liability which might arise as a result of the allotment of the Options,
exercise of the Current/Future Options (including but not limited, the allotment
of the Exercised Shares(s) to the employee), upon the provision by the
employee to the Company of a proper documentation, as acceptable to the
Company by its sole discretion, indicating the removal of any Israeli or non-Israeli
tax liability imposed upon the employee in such respect; the acrual
acceptance of the documentation and/or act done by the Company based on any
of them shall not impose any liability upon the Company.
Without derogating from the above, every employee who might be required by
law to report about any transaction with regard to the Options or their exercise
to any relevant tax authority (for example, regarding any income he/she will
have, if any), shall be exclusively liable to do so.
This section 2.9. is not intended and should not be construed as legal or
professional tax advice and does not cover all possible tax consideration.
Each employee should consult his or her own tax advisor as to the particular tax
consequences of an investment in the Options, including, inter alia, the effect of
the applicable Israeli or foreign tax laws or treaties and possible changes in the
tax laws.
Chapter 3 - The Exercised Shares
The Exercised Shares shall rank equally in all respects with the ordinary shares of the
Company’s share capital. At the present time all the outstanding shares in the
Company’s share capital are ordinary shares of NIS 0.1 par value each and are
represented by a global certificate deposited with, and registered with the name of
Clearstream, and credited to deposited accounts of the various shareholders.
The Articles of Association of the Company include, among other things, the
following provisions (It is hereby stipulated that the Article of Association in any part
thereof may be changed in the future and the following should not be interpreted as an
undertaking of any kind on behalf of the Company that such instructions shall not be
altered/amended):
Each Employee is being referred to the Company’s Article of Association as a
whole.
3.1 General
All issued and outstanding shares of the Company are, and all shares issued
subsequently to the exercise of the offered Options offered by the Company
hereby, when issued and paid for, will be, validly issued, fully paid and
nonassessable.
The shares are without preemptive rights. Except where an issuance of new
shares would require an increase in authorized capital, or in certain other
circumstances as required by Israeli law, the Board of Directors of a company
may issue new shares up to the maximum amount of the company's authorized
capital without further shareholder approval.
3.2 Rights for Dividends
Subject to the rights of the holders of any shares with preferential or other
special rights that may be authorized in the future, holders of shares are entitled
to receive dividends pro rata out of the distributed profits of the Company, and,
in the event of the winding up of the Company, to share ratably in all assets
remaining after payment of liabilities, in each case in proportion to the par value
of their respective holdings of Shares.
The Board may decide on the distribution of a dividend and may prescribe the
time for such distribution and the determining date for entitlement to such
distribution, both in relation to interim or final dividends. The Board's decision
to distribute final dividends shall be subject to approval by the General Meeting
after the Board's recommendation was brought before it; the General Meeting
may accept the recommendation or reduce the amount, but it may not increase
it.
The Company's future dividend policy will be determined by its Board of
Directors and will depend upon, among other factors, the Company's earnings,
financial condition, capital requirements and tax liabilities and such other
conditions as the Board of Directors may deem relevant, at its sole discretion.
3.3 Rights in liquidation
In liquidation, the remains of the Company’s assets shall be distributed among
the shareholders pro rata to their holdings in the company with respect to its par
value and any rights of preferred shares if issued.
3.4 Corporate Governance
i. The Board of Directors
The Articles of Association of the Company provide for the election (and
removal from office) of directors at the General Meeting of shareholders by the
vote of the holders of a majority of the voting power represented at such
meeting, in person or by a duly appointed proxy. According to the Articles, the
number of directors shall be determined from time to time by the general
meeting provided they shall not be less than seven and not more than fifteen
(two of whom must be External Directors).
The Directors so appointed by the General Meeting shall serve for an unlimited
period and shall remain in office until they are replaced by other Directors
appointed in their stead by the General Meeting or until they cease to act in this
capacity for any other reason in accordance with the provisions of the Law
and/or as determined in the Articles. Incumbent Directors may be re-elected.
The Company may, by resolution at a General Meeting, relieve a Director of
his/her duties at any time, and elect another Director in his/her stead. A Director
is not required to be a shareholder in the Company. The General Meeting may
remove the Director from his/her office at any time, provided that the Director
was provided with a reasonable opportunity to present his/her position before
the General Meeting.
The Directors shall be entitled to receive from the Company such remuneration
for their service on the Board as from time to time may be determined, if at all,
by the General Meeting. A Director shall be entitled to be paid all reasonable
travelling, hotel and other expenses properly incurred by him/her in attending
the meetings of the Board of Directors or in connection with fulfilling his/her
duties as a Director. A Director required to render special services to the
Company or to make special efforts for any of the objects of the Company or to
travel abroad or stay abroad, or otherwise shall be paid by the Company
remuneration of a fixed sum or otherwise, as the Board may determine.
The Companies Law requires that two external directors, to be appointed by the
general meeting of shareholders, will serve on the board of directors of a public
company (”External Directors”). On August 21 st , 2000 The general meeting of
shareholders has appointed two External Directors.
ii. Powers and responsibilities of the Board
The directors shall constitute the authority of the Company and they shall
supervise the performance of the duties of the general manager of the Company
relating to the operation of the Company and they shall be permitted to adopt
any of the Company’s powers which are not within the jurisdiction of another
16
organ of the Company, according to the Companies Law or according to the
Articles. No regulation of a General Meeting shall invalidate any prior act of the
Board performed within the power of the Board.
iii. Indemnification
According to the Articles of Association of the Company, The Company is
entitled to enter into a contract for the insurance of an office holder's
responsibility for any liability that will be imposed on him/her in consequence
of an act (including any omission) which he/she performed by virtue of being an
office holder, in each of the following: (i) Breach of duty of care to the
Company or to another person; (ii) Breach of fiduciary duty to the Company,
provided the office holder of the Company has acted bona fide and had
reasonable grounds to assume that the action (or omission) shall not affect the
interest of the Company; (iii) Financial liability imposed on him/her in favor of
another person; (iv) Any other liability which is insurable by law. The Company
may also discharge in advance an office holder from his/her liability in whole
or in part, as a result of a breach of his/her duty of care towards it. Furthermore,
the Company is entitled to: (a) give an undertaking in advance that it will
indemnify its office holder, provided that such undertaking is limited to
categories of events which in the Board's opinion can be foreseen at the time of
giving the undertaking and to an amount set by the Board as reasonable under
the circumstances; (b) give an undertaking to indemnify its office holders
retroactively; (c) give an undertaking to indemnify its office holder for action
taken prior to the date of the resolution.
According to a resolution of the general meeting of shareholders dated April
30 th , 2000, the Company has granted any and all of its office holders an
exemption in advance from any liability as a result of a breach of their duty of
care towards it, and has agreed to indemnify any and all of its office holders in
respect of any liability or expense specified above, which shall be impose on
them as a result of an act carried (or to be carried) out by them by virtue of their
being an office holder of the Company, and to insure the above liability.
3.5 Voting, Shareholders' Meeting and Resolution
Holders of Shares have one vote for each Share held on all matters submitted to
a vote of shareholders. Such voting rights are subject to the grant of any special
voting rights to the holders of any shares of a class with preferential rights that
may be authorized in the future. The quorum required for an ordinary or
extraordinary meeting of shareholders consists of two or more shareholders
present in person or by proxy and holding or representing Shares conferring, in
the aggregate, at least one-third of the voting power of the Company within half
an hour of the scheduled time for the meeting. As long as the Company's shares
are traded on the Neuer Market only, notice of the convening of a meeting shall
be given pursuant to the rules applicable thereon and in the absence or cessation
of such rules, as determined by the Board. Subject to the provisions of the
Companies Law, the adoption of any resolutions by general shareholders'
meetings requires approval by the holders of a majority of the Shares
represented at the meeting, in person or by proxy, and voting thereon.
17
The present issued Company's shares do not have cumulative voting rights in
the election of directors. Thus, the holders of Shares aggregating over 50% of
the voting power have the power to elect all the directors (other than External
Directors).
Ten of the shareholders, who together hold _% of the Company’s shares (for the
Company’s best knowledge) are party to a voting agreement. Pursuant to the
said voting agreement, the parties to it are required to exercise the voting rights
associated with their shares as a block, with certain exceptions. The voting
agreement had an initial term ending December 31 st , 2000 but it was renewed
and is renewable each year for an additional one-year term.
3.6 Modification of Class Rights
Subject to the provisions of the Companies Law, the rights attached to any class
of capital stock (unless otherwise provided by the terms of such class), such as
voting rights, rights to dividends and the like, may be varied only with the
consent in writing of the majority of the issued shares of that class, or in
accordance with a resolution adopted by a general meeting of such class, by a
simple majority. The provisions relating to general meetings shall apply to the
said general meeting, mutatis mutandis, except that the quorum shall be at least
two, comprising the majority of the shareholders of that class or their proxies.
Subject to the provisions of the Articles, the shares shall be under the
supervision of the Board, who shall be permitted to issue them, to grant options
to purchase them or to acquire them in some other way, at any time and by any
person according to the terms and conditions that the Board shall deem to be
suitable at that time, whether at their nominal value or whether above their
nominal value, and whether at a discount from their nominal value.
The Company may issue shares that are preferred, deferred or redeemable or
with any other special right, or restricted in respect of dividend distributions,
voting rights, the return of share capital or other matters, all as determined by
the Company.
The General Meeting of the Company may increase the share capital by an
amount, which shall be divided into shares of such amounts and classes as
stated in the resolution approved by the General Meeting. New shares shall be
issued under the terms and limitations and with the same rights and privileges as
the resolution creating such shares shall direct and if there is no direction, as the
Board so directs.
In addition to the above and subject to any contrary direction in the resolution
for the increase of share capital, the shares shall be issued from the original or
increased capital of the Company to such individuals under such conditions, all
as prescribed by the Board in its absolute discretion.
Unless otherwise required by the resolution increasing the capital, and in
addition to the above mentioned, the new shares shall be subject to the payment
of calls, lien, forfeiture, transfer, transmissions and other provisions applying to
the shares of the existing share capital.
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The Company may, subject to the provisions of the Law, by a resolution: (I)
Consolidate all or any of its share capital into shares of larger amount than the
nominal amount of the existing shares; (ii) Sub-divide its shares or any of them
into shares of a smaller nominal amount; (iii) Cancel any shares which at the
date of the approval of the resolution to cancel them have not been acquired by
any person and which the Company has not, including by a conditional
undertaking, undertaken to issue.
The General Meeting may decrease its share capital, its special reserve for share
redemption, and any other account containing premiums paid for shares,
provided that such action is done in accordance with the agreements and
requirements set forth in the Law.
Any general meeting may, upon the recommendation of the Board, resolve that
it is desirable to capitalize all or part of any undivided profits standing to the
credit of any reserve or of any other moneys or surplus which may by law be
distributed as dividends or monies derived as premiums paid on shares, or
reserves deriving from a revaluation of the assets used for the full or partial
payment of shares or of debenture of the Company whether according to the
nominal value or the premium. The said shares or debentures shall be
distributed among the members in the same proportion in which they are
entitled to the distribution of dividends. Bonus shares divided in respect of any
shares shall be of the same class as the shares in respect of which they were
distributed, unless the General Meeting has decided to distribute to all
members’ bonus shares of the same class.
3.7 Capital Dilution
The Company does not undertake or restricts itself from performing any act of
Capital Dilution [in its meaning according to the provisions of Securities
Regulations (Details of a prospectus, its structure and format) 5729-1969] in the
future including but not limited to, an issuance of new shares their rights and
their prices.
Chapter 4 - The main features of the compensation plan for
Employees of the Company
Hereinbelow are a few more principles of the Option Plan and this Offering as
derived from the Option Agreement.
Each Entitled Employee is being referred to the provisions of the Option
Plan and the Option Agreement as a whole.
4.1 Administration Of The Option Plan
The Board or a share option committee (now known as the Board's
Compensation Committee and referred hereinafter as the "Committee")
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appointed and maintained by the Board for such purpose shall have the power to
administer the Option Plan. Notwithstanding the above, the Board shall
automatically have a residual authority if no Committee shall be constituted or
if such Committee shall cease to operate for any reason whatsoever.
The Committee shall consist of such number of members (not less than two (2)
in number) as may be fixed by the Board. The Committee shall select one of its
members as its chairman (“the Chairman”) and shall hold its meetings at such
times and places as the Chairman shall determine. The Committee shall keep
records of its meetings and shall make such rules and regulations for the
conduct of its business as it shall deem advisable.
Any member of such Committee shall be eligible to receive Options under the
Option Plan while serving on the Committee, unless otherwise specified herein.
The Committee shall have full power and authority to recommend the Board
regarding:
(i) Designate The participants; (ii) Determine the terms and provisions of
respective Option Agreements (which need not be identical) including, but not
limited to, the number of shares in the Company to be covered by each Option
Agreement, provisions concerning the time or times when and the extent to
which the Options may be exercised and the nature and duration of restrictions
as to transferability or restrictions constituting substantial risk of forfeiture; (iii)
Acceleration of the right of an Optionee to exercise, in whole or in part, any
previously granted Option.
The Committee shall have full power and authority to:
(i) Interpret the provisions and supervise the administration of the Option Plan;
(ii) Determine the Fair Market Value (as defined above) of the Shares (as
defined below; (iii) Determine any other matter, which is necessary or desirable
for, or incidental to administration of the Option Plan.
Notwithstanding the above, the identity of each of the Optionees and the
number of Shares covered by each Option must be ratified by the Board.
The Committee shall have the authority to grant, in its discretion, to the holder
of an outstanding Option, in exchange for the surrender and cancellation of such
Option, a new Option having a purchase price equal to, lower than or higher
than the Exercise Price provided in the Option so surrendered and canceled, and
containing such other terms and conditions as the Committee or the Board may
prescribe in accordance with the provisions of the Option Plan.
All decisions and selections made by the Board or the Committee pursuant to
the provisions of the Option Plan shall be made by a majority of its members
except that no member of the Board or the Committee shall vote on, or be
counted for quorum purposes, with respect to any proposed action of the Board
or the Committee relating to any Option to be granted to that member. Any
decision reduced to writing and signed by a majority of the members who are
20
authorized to make such decision shall be fully effective as if it had been made
by a majority at a meeting duly held.
The interpretation and construction by the Committee of any provision of the
Option Plan or of any Option thereunder shall be final and conclusive unless
otherwise determined by the Board.
Subject to the Company decision, each member of the Board or the Committee
shall be indemnified and held harmless by the Company against any cost or
expense (including counsel fees) reasonably incurred by him/her, or any liability
(including any sum paid in settlement of a claim with the approval of the
Company) arising out of any act or omission to act in connection with the
Option Plan unless arising out of such member's own fraud or bad faith, to the
extent permitted by applicable law. Such indemnification shall be in addition to
any rights of indemnification the member may have as a director or otherwise
under the Company's Articles of Association, any agreement, any vote of
shareholders or disinterested directors, insurance policy or otherwise.
4.2 Trustee
The Options which shall be granted under the Option Plan to employees who
are subject to the Income Tax Ordinance and/or any Shares issued upon exercise
of such Options and/or other shares received subsequently following any
realization of rights, shall be issued to the Trustee nominated by the Company,
and approved in accordance with the provisions of Section 102 and held for the
benefit of those Optionees. Options and any Shares received subsequently
following exercise of 102 Options, shall be held by the Trustee for a period of
not less than two years (24 months) from the relevant Date Of Grant.
Notwithstanding anything to the contrary, the Trustee shall not release any
Options which were not already exercised into Shares by the Optionee or
release any Shares issued upon exercise of Options prior to the full payment of
the Optionee’s tax liabilities arising from or connected to Options which were
granted to him/her and/or any Shares issued upon exercise of such Options.
By reception of the Options, the Optionee is irrevocably exempt the Trustee
from any liability in respect of any action and/or decision duly taken and bona
fide executed in relation with the Option Plan, or any Option or Share granted to
him/her thereunder. Each Optionee shall sign a suitable document(s) if
requested by the Company and/or the Trustee.
The Company has appointed Mr. Gidon Duvshani (CPA.) to serve as a Trustee
but may replace the identity of the Trustee without any prior notice (the
“Trustee”).
4.3 Shares Reserved For The Option Plan; Restriction Thereon
Pursuant to a resolution of the Board of Directors, an aggregate of 4,780,800
shares have been reserved for future issuance upon the exercise of options
granted or to be granted to employees, directors, consultants of the Company or
its Subsidiaries, and to third parties. As of this date 3,291,400 options had been
21
granted and can still be exercised on future dates, of which none are currently
vested.
Outstanding options are exercisable at exercise prices ranging from US$3.17 to
US$12.61 per Share.
4.4 Exercise Price
The Option Exercise Price of each Share subject to an Option or any
portion thereof shall be determined by the Company in its sole and
absolute discretion in accordance with applicable law, subject to any
guidelines as may be determined by the Board from time to time and will
be specified in each Option Agreement.
Any form of Option Agreement authorized by the Option Plan may contain such
other provisions as the Committee may, from time to time, deem advisable.
Without limiting the foregoing, the Committee may, with the consent of the
Optionee, from time to time cancel all or any portion of any Option then subject
to exercise, and the Company's obligation in respect of such Option may be
discharged by (i) payment to the Optionee of an amount in cash equal to the
excess, if any, of the Fair Market Value of the Shares at the date of such
cancellation subject to the portion of the Option so canceled over the aggregate
purchase price of such Shares, (ii) the issuance or transfer to the Optionee of
Shares of the Company with a Fair Market Value at the date of such transfer
equal to any such excess, or (iii) a combination of cash and shares with a
combined value equal to any such excess, all as determined by the Committee in
its sole discretion.
4.5 Amendments Or Termination
The Board may at any time but after consultation with the Trustee, amend, alter,
suspend or terminate the Plan. No amendment, alteration, suspension or
termination of the Plan shall impair the rights of any Optionee, unless mutually
agreed otherwise between the Optionee and the Committee, which agreement
must be in writing and signed by the Optionee and the Company. Termination
of the Plan shall not affect the Committee’s ability to exercise the powers
granted to it hereunder with respect to Options granted under the Plan prior to
the date of such termination.
4.6 Government Regulations
The Option Plan, and the granting and exercise of Options hereunder, and the
obligation of the Company to sell and deliver Shares under such Options, shall
be subject to all applicable laws, rules, and regulations, whether of the State of
Israel or of the Germany or any other State having jurisdiction over the
Company and the Optionee, and to such approvals by any governmental
agencies or national securities exchanges as may be required.
22
4.7 Non-Exclusivity Of The Option Plan
The adoption of the Option Plan by the Board shall not be construed as
amending, modifying or rescinding any previously approved incentive
arrangements or as creating any limitations on the power of the Board to adopt
such other incentive arrangements as it may deem desirable, including, without
limitation, the granting of stock options otherwise then under the Option Plan,
and such arrangements may be either applicable generally or only in specific
cases. For the avoidance of doubt, prior grant of options to Optionees of the
Company under their employment agreements, and not in the framework of any
previous option plan, shall not be deemed an approved incentive arrangement
for the purpose of this section.
Chapter 5 - Details regarding the Company’s share prices
Following hereafter are details of the high and low prices according to which the
Company’s shares were traded during the year 2000 and in the period between
January 1, 2001 and May 8, 2001 on the Stock Exchange:
During the period
between 1 January and
April 10, 2001
2000 Price on the Stock
Exchange
Date Rate in
Euro
Date Rate in
Euro
High January 15, 2001 4.38 May 15, 2000 15.80
Low January 1, 2001 2.10 31 December, 2000 1.98
The attention of the Entitled Employees is directed to the Company’s financial
statements at 31 December 1999, included in the Company’s Proespectus, and to the
Company’s financial statements at December 31, 2000 published on February 11,
2001.
Similarly, the Company draws the attention of the Entitled Employees to all the
ad-hock releases delivered by the Company to the Stock Exchange since the
Company's IPO including, especially, the ad-hoc release delivered on 12.12.2000
regarding its projected profits and losses during the year 2001. A copy of the
above mentioned ad-hoc releases may be obtained at the Company’s offices.
Date: May 8, 2001
Name of the signatory on behalf
of the Company
_________________
Mr. Shmuel Dolberg
Title: Chief Executive Officer
Name of the signatory on behalf
of the Company
_________________
Mr. Shai Avnit
Title: Chief Financial Officer