As filed with the Securities and Exchange Commission on March 23, 2010 Registration No. 333-_________ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 ________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ________________ BLUEPHOENIX SOLUTIONS LTD. (Exact Name of Registrant as Specified in Its Charter) Israel Not Applicable (State or other jurisdiction of (I.R.S. employer incorporation or organization) Identification no.) 8 Maskit Street Herzliya 46733, Israel 972-9-952-6100 (Address of Principal Executive Offices) (Zip Code) CRYSTAL 1996 EMPLOYEE SHARE OPTION PLAN – PART I Renamed: BLUEPHOENIX 2003 EMPLOYEE SHARE OPTION PLAN (Full Title of the Plan) ________________ Varda Sagiv BluePhoenix Solutions USA Inc. 8000 Regency Parkway Cary, North Carolina 27511 (Name and Address of Agent for Service) (919) 380-5100 (Telephone number, including area code, of Agent for Service) ________________ Copies to: Ernest Wechsler , Esq. Yael Peretz, Adv. Yael Bar-Shai, Adv. Kramer Levin Naftalis & Frankel LLP BluePhoenix Solutions Ltd. Herzog, Fox & Neeman 1177 Avenue of the Americas 8 Maskit Street Asia House New York, New York 10036 Herzliya 46733, Israel 4 Weizman Street (212)-715-9100 972-9-952-6100 Tel Aviv 64239, Israel 972-3-692-2020 Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one): Large accelerated filer Accelerated filer Non-accelerated filer (Do not check if a smaller reporting company) Smaller reporting Company CALCULATION OF REGISTRATION FEE Proposed Proposed maximum maximum Amount of Title of Securities to be registered Amount to be offering price per aggregate registration registered (1) (2) share offering price fee Ordinary Shares, par value NIS 0.01 per share 307,674 shares $5.50(3) $1,692,207 $120.65 Ordinary Shares, par value NIS 0.01 per share 130,000 shares $2.80(3) $364,000 $25.95 Ordinary Shares, par value NIS 0.01 per share 532,326 shares $2.55(4) $1,357,431 $96.79 TOTAL 970,000 shares ____ $3,413,638 $243.39 (1) The aggregate number of ordinary shares being registered are granted under BluePhoenix 2003 Employee Share Option Plan (prior to August 6, 2003, known as the "Crystal 1996 Employee Share Option Plan - Part One", as amended (the "BluePhoenix Plan"). The BluePhoenix Plan was amended by the BluePhoenix board of directors in February 2010 to increase the number of ordinary shares authorized for issuance under the plan to 4,200,000. (2) Pursuant to Rule 416(c) of the Securities Act of 1933, as amended (the “Act”), an additional indeterminable number of shares are also being registered to cover any adjustments required by stock splits, stock dividends or similar transactions under the Plan. (3) Calculated solely for purposes of this offering under Rule 457(h)(1) of the Act based on the price at which the options may be exercised. The Registrant has already granted 437,674 of the options related to the shares being registered under this registration statement. (4) The price is estimated in accordance with Rules 457(c) under the Act solely for the purpose of calculating the registration fee and is the average of the high and low prices of Registrant’s Ordinary Shares as reported on the Nasdaq National Market on March 17, 2010. EXPLANATORY NOTE On February 12, 1999, BluePhoenix Solutions Ltd. (the “Registrant”) filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-8 (File No. 333-10008) (the “1999 Registration Statement”) relating to 903,767 ordinary shares, par value NIS 0.01 per share of the Registrant (the “Ordinary Shares”), to be offered and sold to participants under the BluePhoenix 2003 Employee Share Option Plan, previously known as the Crystal 1996 Employees Share Option Plan – Part One, as amended from time to time (the “Plan”) and 145,900 of its ordinary shares under the Crystal 1996 Employee Option Plan - Part II, both pursuant to the 1999 Registration Statement. On July 26, 2001, the Registrant filed with the Commission a registration statement on Form S-8 (File No. 333-13770) (the “2001 Registration Statement”, relating to an additional 1,421,233 Ordinary Shares to be offered and sold to participants under the Plan and on October 31, 2007, the Registrant filed with the Commission a registration statement on Form S-8 (File No. 333-147058) (the “2007 Registration Statement”) relating to an additional 905,000 Ordinary Shares to be offered and sold to participants under the Plan. The 1999 Registration Statement, 2001 Registration Statement and 2007 Registration Statement are collectively referred to herein as the “Registration Statements.” The contents of these prior Registration Statements are incorporated herein by reference. This Registration Statement is being filed to register an additional 970,000 Ordinary Shares to be offered and sold under the Plan. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference The Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed with the Commission: (a) The Registrant’s Annual Report on Form 20-F for the fiscal year ended December 31, 2008, filed with the Commission on March 31, 2009, as amended and filed with the Commission on November 24, 2009; (b) The Registrant’s reports on Form 6-K, filed with the Commission on January 6, 2009, January 7, 2009, January 13, 2009, January 21, 2009, January 28, 2009, January 29, 2009, February 4, 2009, February 17, 2009, February 24, 2009, April 2, 2009, May 1, 2009, May 6, 2009, May 12, 2009, May 18, 2009, May 20, 2009, June 12, 2009, July 7, 2009, July 9, 2009, July 15, 2009, August 11, 2009, August 26, 2009, September 15, 2009, September 22, 2009, October 13, 2009, October 20, 2009, October 22, 2009, November 12, 2009, November 17, 2009, November 24, 2009, December 1, 2009, December 9, 2009, December 30, 2009, December 31, 2009, January 20, 2010, January 26, 2010, February 3, 2010, February 23, 2010, March 4, 2010, March 11, 2010 and March 15, 2010; and (c) The description of the Registrant’s Ordinary Shares contained in the Registrant’s Registration Statement No. 00029082 on Form 8-A filed pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on January 21, 1997. (d) The contents of the prior Registration Statements are incorporated herein by reference. All documents subsequently filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, and all Reports on Form 6-K submitted by the Registrant to the Commission during such period, or portions thereof that are identified in such forms as being incorporated into this Registration Statement, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing such documents. Any document, or any statement contained in a document, incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a document or statement contained herein, or in any other subsequently filed document that also is deemed to be incorporated by reference herein, modifies or supersedes such document or statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Subject to the foregoing, all information appearing in this Registration Statement is qualified in its entirety by the information appearing in the documents incorporated by reference. The contents of the prior Registration Statements are incorporated herein by reference. Item 8. Exhibits 4.1 BluePhoenix 2003 Employee Share Option Plan (prior to August 6, 2003, known as the Crystal 1996 Employee Share Option Plan - Part One), as amended on January 28, 1997, December 5, 1999, December 18, 2000, December 26, 2000, August 6, 2003, December 30, 2004 and February on 21, 2010* 5.1 Opinion of Herzog, Fox & Neeman* 23.1 Consent of Ziv Haft, Certified Public Accountants (Isr.) * 23.2 Consent of Herzog, Fox & Neeman (contained in their opinion constituting Exhibit 5.1) * 24.1 Power of Attorney (included in signature page) * * Filed herewith. Item 8. Undertakings (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post- effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply to information contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this Registration Statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: (i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424; (ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant; (iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and (iv) Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Herzliya, Israel on the 23rd day of March, 2010. BLUEPHOENIX SOLUTIONS LTD. By: /s/Varda Sagiv Varda Sagiv Chief Financial Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Arie Kilman, Varda Sagiv, Yaron Tchwella and Gur Shomron, or either of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and any registration statement relating to the offering hereunder pursuant to Rule 462 under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in- fact and agents, or either of them, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated: Name Title Date Principal Executive Officer: /s/Yaron Tchwella Chief Executive Officer March 23, 2010 Yaron Tchwella Principal Financial Officer and Principal Accounting Officer: /s/Varda Sagiv Chief Financial Officer March 23, 2010 Varda Sagiv Directors: /s/Arie Kilman Director, Chairman of the Board March 23, 2010 Arie Kilman /s/Sam Somech Director March 23, 2010 Sam Somech /s/Amira Berkovitz-Amir Director March 23, 2010 Amira Berkovitz-Amir /s/Michael Chill Director March 23, 2010 Michael Chill /s/ Gur Shomron Director March 23, 2010 Gur Shomron Name Title Date Authorized Representative in the United States: BLUEPHOENIX SOLUTIONS USA Inc. /s/ Varda Sagiv March 23, 2010 By: Varda Sagiv Chief Financial Officer INDEX TO EXHIBITS Exhibit No. Description 4.1 BluePhoenix 2003 Employee Share Option Plan (prior to August 6, 2003, known as the Crystal 1996 Employee Share Option Plan - Part One), as amended on January 28, 1997, December 5, 1999, December 18, 2000, December 26, 2000, August 6, 2003, December 30, 2004 and on February 21, 2010 * 5.1 Opinion of Herzog, Fox & Neeman * 23.1 Consent of Ziv Haft, Certified Public Accountants (Isr.) BDO member firm * 23.2 Consent of Herzog, Fox & Neeman. (contained in their opinion constituting Exhibit 5.1) * 24.1 Power of Attorney (included in signature page) * * Filed herewith. Exhibit 5.1 [Herzog, Fox & Neeman letterhead] March 23, 2010 File No. BluePhoenix Solutions Ltd. 8 Maskit Street Herzliya 46733 Israel Ladies and Gentlemen: We have acted as special Israeli counsel to BluePhoenix Solutions Ltd., an Israeli company (the “Company”), in connection with the Registration Statement on Form S-8 (the “Registration Statement”), filed by the Company with the Securities and Exchange Commission on the date hereof. The Registration Statement relates to the registration under the Securities Act of 1933, as amended, of 970,000 ordinary shares of the Company, par value NIS 0.01 per share (“Ordinary Shares”), authorized for issuance under the Company’s 2003 Employee Share Option Plan (the “Plan”). In so acting, we have examined such statutes, regulations, corporate records, documents and other instruments, and such certificates or comparable documents of public officials and of officers and representatives of the Company, and have made such inquiries of such officers and representatives, as we have deemed relevant and necessary as a basis for the opinion hereinafter set forth. In such examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. As to all questions of fact material to this opinion that have not been independently established, we have relied upon certificates or comparable documents of officers and representatives of the Company. We have considered such questions of Israeli law as we have deemed necessary for the purpose of rendering this opinion. We are members of the Bar of the State of Israel and, in rendering our opinion, we do not pass (expressly or by implication) on the laws of any jurisdiction other than the State of Israel. Our opinion relates only to Israeli laws. Based upon the foregoing, we are of the opinion that the Ordinary Shares have been duly authorized and, when issued and paid for in the manner contemplated by the Plan, will be validly issued, fully paid and nonassesable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Herzog, Fox & Neeman Exhibit 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference in this Registration Statement on Form S-8 pertaining to the BluePhoenix 2003 Employee Share Option Plan (the “Plan”), of our report and the effectiveness of internal control over financial reporting included in the annual report of BluePhoenix Solutions Ltd. on Form 20/A- for the fiscal year ended December 31, 2008, as filed with the Securities and Exchange Commission on November 24, 2009. By: /s/ Ziv Haft Ziv Haft Certified Public Accountants (Isr.) BDO MEMBER FIRM Tel Aviv, Israel March 23, 2010 BLUEPHOENIX SOLUTIONS LTD BLUEPHOENIX 2003 EMPLOYEE STOCK OPTION PLAN As amended on February 21, 2010 (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 Name. This plan, as amended from time to time, shall be known as the 1. "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. B. GENERAL TERMS AND CONDTIONS OF THE PLAN 3. Administration. 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. 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. 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: (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; (ii) The person to be nominated as a trustee pursuant to the Plan; (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; (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. 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. 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. 4. Eligible Grantees and General Terms. 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. 4.2 Each Option is exercisable into one Share. 5. The Trust. 5.1 The Trustee. (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"). (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. (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. (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. 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"). (e) Subject to the terms hereof, at any time after the Release Date with respect to any Options or Shares the following shall apply: (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. (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. 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. 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, the dividends paid or distributed with respect thereto shall be remitted to the Trustee for the benefit of such Beneficial Grantee, and the Trustee shall vote all such Shares in accordance with the instructions of such Grantee. 6. Reserved Shares. The Company has reserved 4,200,000 authorized but unissued Shares or treasury Shares for purposes of the Plan subject to adjustments as provided in Section 11 hereof. All Shares under the Plan or any previous option plan, in respect of which the right thereunder of a Grantee to purchase the same shall, for any reason, terminate, expire or otherwise cease to exist, shall again be available for grant through Options under the Plan or under any other plan. 7. Grant of Options. 7.1 The effective date of the grant of an Option (the "Date of Grant") shall be the date specified by the Committee in its determination relating to the award of such Option. The Committee shall promptly give the Grantee written notice (the "Notice of Grant") of the grant of an Option. The Committee in its discretion may award to Grantees Options to purchase Shares in the Company available under the Plan. The execution of the Plan and issuance of Options pursuant thereto are subject to obtaining all permits and approvals by the appropriate authorities to which the Plan, the Options and Shares issuable upon exercise of the Options are subject. 7.2 The Notice of Grant shall state, inter alia, the applicable tax Track (if any), the number of Shares covered thereby, the dates when the Option may be exercised, the exercise price, and such other terms and conditions as the Committee at its discretion may prescribe, provided that they are consistent with this Plan. 7.3 The issuance of Options to a Grantee hereunder is subject to the signing of the Grantee on an application form to receive such Options (the “Application Form”) and returning such signed Application Form to the Company within the time schedule specified in the Notice of Grant. By affixing his signature on the Application Form, the Grantee shall confirm his consent to receive all the Options granted to him subject to the terms and conditions applicable to such Options pursuant to the Plan, the provisions of Section 102 of the Tax Ordinance and the Regulations and the provisions of the applicable Tax Track and shall represent and warrant that he acknowledges the provisions of Section 102 of the Tax Ordinance and the applicable Tax Track and that he agrees to the trust agreement between the Company and the Trustee, a copy of which shall be enclosed to the Application Form. The Grantee shall also sign an undertaking to release the Trustee from any liability in respect of any action or decision duly taken and bona fide executed in relation to the Plan, such Options or any shares acquired upon the exercise thereof. 7.4 Vesting Period and date of Exercise. (a) The term “Vesting Period” shall mean the period commencing on the Date of Grant until the first date on which the Option may be exercised, namely, after the Release Date as defined in Section 5.1(d) above. The Vesting Period shall be determined by the Committee from time to time. The committee may decide on different vesting Periods applicable to different Grantees. (b) The Committee may, at its sole discretion, accelerate the Vesting Period with respect to certain Options granted pursuant to the Plan, subject to the provisions of Section 5.1(d) above. (c) Without derogating from the provisions of Section 5.1(d) and 10 hereof and the rights and powers of the Committee under Sections 3.3 and 7.2 hereof, unless otherwise specified in the Notice of Grant (a) each Option under the Plan shall be exercisable following the end of the Vesting Period , and (b) the schedule pursuant to which such Options shall vest, and the Beneficial Grantee thereof shall be entitled to pay for, and acquire, the Shares, shall be such that one-third of such Options shall vest on each of the first, second and third anniversaries of the Date of Grant. 8. Exercise Price. The exercise price per Share covered by each Option shall be determined by the Committee in its sole and absolute discretion. 9. Exercise of Options. 9.1 Options shall be exercisable pursuant to the terms under which they were granted and subject to the terms and conditions of the Plan. 9.2 The exercise of an Option shall be made by a written notice of exercise (the "Notice of Exercise") delivered by the Beneficial Grantee (or, with respect to Options held in the Trust, by the Trustee upon receipt of written instructions from the Beneficial Grantee) to the Company at its principal executive office, specifying the number of Shares to be purchased and accompanied by the payment therefor, and containing such other terms and conditions as the Committee shall prescribe from time to time. 9.3 Anything herein to the contrary notwithstanding, but without derogating from the provisions of Section 10 hereof, if any Option has not been exercised and the Shares covered thereby not paid for within ten (10) years after the Date of Grant (or any shorter period set forth in the Notice of Grant), such Option and the right to acquire such Shares shall terminate, all interests and rights of the Grantee in and to the same shall ipso facto expire, and, in the event that in connection therewith any Options are still held in the Trust as aforesaid, the Trust with respect thereto shall ipso facto expire and the Trustee shall thereafter hold such Options in an unallocated pool until instructed by the Company that some or all of such Options are again to be held in trust for one or more Grantees. 9.4 Each payment for Shares shall be in respect of a whole number of Shares, and shall be effected in cash or by a cashier's check payable to the order of the Company, or such other method of payment acceptable to the Company. 10. Termination of Employment. In the event that a Grantee ceases, for any reason, to be employed by the Company or by any of its subsidiaries or affiliates (or with respect to a Grantee who is a director, officer or consultant, if his service with the Company or with any of its subsidiaries or affiliates, terminates for any reason), all Options theretofore granted to such Grantee shall terminate As follows: 10.1 (a) If the Grantee's termination of employment is due to such Grantee's death or "Disability" (as hereinafter defined), such Options (to the extent exercisable at the time of the Grantee's termination of employment or provision of services, namely, Options with respect to which the Release Date has occurred) shall be exercisable by the Grantee's legal representative, estate manager or any other person to whom the Grantee's rights are transferred by will or by laws of descent or distribution, or the Grantee, as the case might be, for a period of six (6) months following such termination of employment or provision of services (but in no event after the expiration date of such Option), and shall thereafter terminate. For purposes hereof , “Disability” shall mean the inability, due to illness, injury or mental condition to engage in any gainful occupation for which the individual is qualified by education, training or experience, and such condition continues for at least six (6) months. (b) If the Grantee's termination of employment or provision of services is due to, or connected with, one of the following instances, the trust with respect to said Grantee's options shall ipso facto expire , the options already vested shall automatically expire and the Grantee shall not be entitled to exercise any of the Options notwithstanding they were already vested at that time. The said instances are as follows: (i) The Grantee commits a criminal offense (whether against the Company or any other person or entity); (ii) The Grantee is dishonest or breaches his fiduciary duties or duty of loyalty towards the Company and/or its subsidiaries; (iii) The Grantee intentionally or recklessly damages the Company's and/or its subsidiaries' property and/or good name and/or business; (iv) The Grantee is grossly negligent in fulfilling his duties towards the Company and/or its subsidiaries; (v) The Grantee deviates intentionally in a material way from his authority and/or instructions given to him by the Company's and/or its subsidiaries' competent organs; (vi) The Grantee breaches intentionally in a material way the terms of his employment agreement, or other agreement with the Company and/or its subsidiaries. (c) If the Grantee's termination of employment is for any reason other than those described in sub-sections (a) and (b) above, such Options (to the extent exercisable at the time of the Grantee's termination of employment) may be exercisable for a period of thirty (30) days following such termination of employment or provision of services, and shall thereafter terminate .Options which are not exercisable at the time of the Grantee's termination of employment (namely, which are not yet so vested in such Grantee), shall expire upon the termination of employment. 10.2 Notwithstanding the foregoing provisions of Section 10.1, the Committee may provide, either at the time an Option is granted or thereafter, that such Option may be exercised after the periods provided for in Section 10.1, but in no event beyond the term of the Option. 11. Adjustment Upon Changes in Capitalization. 11.1 Subject to any required action by the shareholders of the Company, the number of Shares covered by each outstanding Option, and the number of Shares which have been authorized for issuance under the Plan but as to which no Options have yet been granted or which have been returned to the Plan upon cancellation or expiration of an Option, as well as the price per share of Shares covered by each such outstanding Option, shall be proportionately adjusted for any increase or decrease in the number of issued Shares resulting from a stock split, reverse stock split, stock dividend, combination or reclassification of the Shares or the payment of a stock dividend (bonus shares) with respect to the Shares or any other increase or decrease in the number of issued Shares effected without receipt of consideration by the Company; provided, however, that conversion of any convertible securities of the Company shall not be deemed to have been "effected without receipt of consideration." Such adjustment shall be made by the Committee, whose determination in that respect shall be final, binding and conclusive. Except as expressly provided herein, no issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of Shares subject to an Option. 11.2 Unless otherwise determined by the Committee, in the event of the proposed dissolution or liquidation of the Company, to the extent it has not been previously exercised, each Option will terminate immediately prior to the consummation of such proposed action. In the event of a consolidation or the merger of the Company with or into another corporation, each Option shall be assumed or an equivalent option shall be substituted by such successor corporation or a parent or subsidiary of such successor corporation. 12. Non-Transferability. Unless permitted by the Committee, no Option shall be assignable or transferable by the Grantee to whom granted otherwise than by will or the laws of descent and distribution, and an Option may be exercised during the lifetime of the Grantee only by such Grantee or by such Grantee's guardian or legal representative. The terms of such Option shall be binding upon the beneficiaries, executors, administrators, heirs and successors of such Grantee. 13. Term and Amendment of the Plan. 13.1 The Plan was authorized by the Company on August 6, 2003, and shall expire on August 6, 2013 (except as to Options outstanding on that date), but such expiration shall not affect the instructions contained herein or in any applicable law with respect to the Options and Shares held in the Trust at such time of expiration. The Committee may decide upon the extension of the Plan. 13.2 Subject to applicable laws, the Board may, at any time and from time to time, terminate or amend the Plan in any respect. In no event may any action of the Company alter or impair the rights of a Grantee, without his consent, under any Option previously granted to him. 14. Tax Consequences. All tax consequences and obligations regarding any other compulsory payments arising from the grant or exercise of any Option, from the payment for, or the subsequent disposition of, Shares covered thereby or from any other event or act (of the Company or the Grantee) hereunder, shall be borne solely by the Grantee, and the Grantee shall indemnify the Company and the Trustee and hold them harmless against and from any and all liability for any such tax or other compulsory payment, or interest or penalty thereon, including without limitation, liabilities relating to the necessity to withhold, or to have withheld, any such tax or other compulsory payment from any payment made to the Grantee. 15. Miscellaneous. 15.1 Continuance of Employment: Neither the Plan nor the grant of an Option thereunder shall impose any obligation on the Company or on any of its subsidiaries or affiliates to continue the employment or service of any Grantee, and nothing in the Plan or in any Option granted pursuant thereto shall confer upon any Grantee any right to continue in the employ or service as aforesaid, or restrict the right of the Company or of any of its subsidiaries or affiliates to terminate such employment or service at any time. 15.2 Governing Law: The Plan and all instruments issued thereunder or in connection therewith, shall be governed by, and interpreted in accordance with, the laws of the State of Israel. Any action related to this Plan shall be venued solely in the competent courts in Tel Aviv. 15.3 Application of Funds: The proceeds received by the Company from the sale of Shares pursuant to Options granted under the Plan will be used for general purposes of the Company, as may be determined by the Board or the Company from time to time. 15.4 Multiple Agreements: The terms of each Option may differ from other Options granted under the Plan at the same time, or at any other time. The Committee may also grant more than one Option to a given Grantee during the term of the Plan, either in addition to, or in substitution for, one or more Options previously granted to that Grantee.The grant of multiple Options may be evidenced by a single Notice of Grant or multiple Notices of Grant, as determined by the Committee. 15.5 Non-Exclusivity of the Plan: The adoption of the Plan by the Board shall not be construed as amending, modifying or rescinding any previously approved incentive arrangement 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 than under the Plan, and such arrangements may be either applicable generally or only in specific cases. _____________________ Appendix A to BluePhoenix 2003 Employee Stock Option Plan (the "Plan") The Committee of Board of Directors of BluePhoenix Solutions Ltd. (the "Company") may grant options from time to time to any employees, officers, consultants or directors of the Company or any of its subsidiaries who are not residents of Israel. Any such option shall be evidenced by a stock option agreement ("Stock Option Agreement") between the Company and the option recipient. The Stock Option Agreements shall contain provisions covering matters substantially as prescribed under Sections 7.4(c), 9.2-9.4, 10.1, 11, 12 and 15.1. Notwithstanding the foregoing, the Stock Option Agreements may contain different language and deviate from the language which is used in the Plan. In addition to the aforementioned provisions, the Stock Option Agreement shall state that the agreement is governed by the law of the State of Israel and that all tax consequences shall be borne by the Grantee. The provisions of Section 15.4 of the Plan, which allows that the terms of each option grant may differ from other options granted under the Plan at the same time, or at any other time, shall apply also to grant of options pursuant to this Appendix A. The terms in this Appendix shall have the meaning ascribed to them in the Plan, unless otherwise expressly stated.
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