ex44tos804313_01162009.htm


    Exhibit 4.4

     

    
      NESS
TECHNOLOGIES INC.

      


      OPTION
AND RESTRICTED STOCK UNIT AGREEMENT

      [Date]

      


      
        	
                BETWEEN:

              	
                Ness
      Technologies Inc.,a Delaware corporation

              
	 
      	
                having
      offices at Kiryat Atidim, Tel Aviv, Israel

              
	 
      	
                (hereinafter,
      the “Company”)

              
	 
      	 
      
	 
      	 
      	
                on
      the one part

              
	 
      	 
      	 
      
	
                AND:

              	
                [________________]

              	 
      
	 
      	
                I.D.
      [__________]

              	 
      
	 
      	 
      	 
      
	 
      	
                of
      [_____________]

              	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                (hereinafter
      the “Participant”)

              	 
      
	 
      	 
      	
                on
      the other part

              


      

      


      


      WHEREAS,
the Company’s stockholders adopted, at its annual meeting on  June 13,
2007, the 2007 Stock Option Plan and, at its annual meeting on June 16, 2008
adopted amendments to such plan, including renaming it the Amended and Restated
2007 Stock Incentive Plan (the “2007 Plan”) attached hereto as Exhibit A and
forming an integral part hereof; and

      


      WHEREAS,  the
Company’s Stock Option and Compensation Committee (the “Committee”) has approved
the granting of an option and of restricted stock units to the Participant on
the date hereof and subject to all the terms and conditions as set forth in the
2007 Plan and as provided herein.

      


      NOW,
THEREFORE, it is agreed as follows:

      


      Preamble
and Definitions

       

      The
preamble to this Agreement constitutes an integral part hereof.

       

      Unless
otherwise defined herein, capitalized terms used herein shall have the meaning
ascribed to them in the 2007 Plan.

       

      Grant
of Options and Restricted Stock Units

       

      Options.   The
Company hereby grants to the Participant stock options pursuant to the 2007 Plan
to purchase __________ shares of Common Stock of the Company, par value $.01 per
share (the “Shares”), at a price of $ __________ per Share (the “Options”),
taken from the total number of shares reserved for purposes of the 2007 Plan in
the Company’s authorized capital, on the terms and subject to the conditions
hereinafter provided.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      Restricted Stock
Units.   The Company hereby further grants to the
Participant  _________ restricted stock units (“RSUs”), each RSU
representing the right to receive one share of common stock, $0.01 par value per
share (each, a “Share”) on the date such RSU vests, subject to the conditions
set forth in this Agreement and the 2007 Plan. Shares granted under the RSUs
shall be taken from the total number of Shares reserved for purposes of the 2007
Plan in the Company’s authorized capital.

       

      The
Participant acknowledges that the Company intends to issue additional Shares,
options, RSUs and other instruments convertible into shares in the future to
various entities and individuals, as the Company in its sole discretion shall
determine.

       

      Term
and Vesting Schedule

       

      The term
of this Agreement shall commence on the date hereof (the “Date of Grant”) and
shall terminate upon the earlier of: (i)  __________ or (ii) any other
time at which both the Options and the RSUs expire or are forfeited pursuant to
the terms of the 2007 Plan or pursuant to the terms of this
Agreement.

       

      Subject
to the provisions of the 2007 Plan, the Options shall first vest and become
exercisable according to the following vesting dates ________________________,
and the RSUs shall first vest and become exercisable according to the following
vesting dates ________________________, provided that the Participant
continuously remains eligible to participate in the 2007 Plan pursuant to its
terms from the Date of Grant and until each vesting date with respect to the
portion of the Options and the RSUs due to vest on and following such
date.

       

      Exercise
of Options

       

      Once
vested, Options may be exercised by the Participant, at any time or from time to
time, in whole or in part, prior to the Expiration Date, provided that, subject
to the provisions of Section 8 of the 2007 Plan, the Participant is an employee
or providing services to the Company or any of its Affiliates at all times
during the period beginning with the Date of Grant through the relevant vesting
date and ending upon the date of exercise.

       

      The
Options may be exercised only to purchase whole Shares, and in no case may a
fraction of a Share be purchased. If any fractional Shares would be deliverable
upon exercise, such fraction shall be rounded up to the nearest whole number in
the event it equals one-half or more, or otherwise rounded down, to the nearest
whole number.

       

      Options
may be exercised in accordance with the provisions of Section 8.4 of the 2007
Plan.

       

      
        
          
          

        

        
          -2-

          
            

          

        

        
          
          

        

      

       

      The
Participant acknowledges that the Company has transferred the day to day
administration of its options system, including the Options and the RSUs, to an
independent contractor and undertakes to follow the rules and practices of such
independent contractor (currently Tamir Fishman Employees Benefits Ltd.)
regarding the exercise of the Options and the RSUs.  The Participant
acknowledges that the Company may, from time to time and in its sole discretion,
transfer the day to day administration of its options system, including the
Options and RSUs, to another independent contractor or decide to administer its
option system internally.

       

      Issuance
of Shares

       

      In order
for the Company to issue Shares upon the exercise of any of the Options or upon
the vesting of any of the RSUs, the Participant hereby agrees to sign any and
all documents required by any applicable law and/or by the Company’s
incorporation documents. The Participant further agrees that in the event that
the Company and its counsel deem it necessary or advisable, in their sole
discretion, the issuance of Shares may be conditioned upon certain
representations, warranties, and acknowledgments by the
Participant.

       

      Unless
and until a RSU has vested in accordance with the terms of this Agreement and
the 2007 Plan and the Participant has fulfilled all of his obligations in
connection with such vesting, Participant will have no right to delivery of
Shares underlying the vested RSUs. Prior to the actual delivery of any Shares
with respect to vested RSUs, a RSU will represent an unsecured obligation of the
Company, payable (if at all) only from the general assets of the
Company.

       

      The
Company shall not be obligated to issue any Shares upon the exercise of an
Option or upon the vesting of a RSU if such issuance, in the opinion of the
Company, might constitute a violation by the Company of any provision of
law.

       

      Each
Option and RSU shall be subject to the further requirement that, if at any time
the Board (or the Committee) shall determine in its sole discretion that the
consent or approval of any governmental regulatory body or the listing,
registration or qualification of the Shares upon any securities exchange or
under any Federal or other applicable law, is necessary or desirable as a
condition of, or in connection with, the granting of such Option or RSU, or the
issuance of Shares thereunder, such Option may not be exercised in whole or in
part and Shares underlying such RSU shall not be granted, unless such consent,
approval, listing, registration or qualification shall have been effected or
obtained free of any conditions not acceptable to the Board or the
Committee.

       

      Change
of Control

       

      Upon the
occurrence of a “Change in Control” (as defined in the 2007 Plan), the Committee
may accelerate the vesting and exercisability of outstanding Options and the
vesting of outstanding RSUs, in whole or in part, as determined by the Committee
in its sole discretion.  In its sole discretion, the Committee may
also determine that, upon the occurrence of a Change in Control, each
outstanding Option and/or RSU shall terminate within a specified number of days
after notice to the Participant thereunder, and each such Participant shall
receive, with respect to each Share subject to such Option or RSU, an amount
equal to the excess of the Fair Market Value of such Shares immediately prior to
such Change in Control over the exercise price per share of such Option (or an
amount equal to the excess of the Fair Market Value of such Shares immediately
prior to such Change in Control, as applicable); such amount shall be payable in
cash, in one or more kinds of property (including the property, if any, payable
in the transaction) or a combination thereof, as the Committee shall determine
in its sole discretion.

       

      
        
          
          

        

        
          -3-

          
            

          

        

        
          
          

        

      

       

      Restrictions on Transfer of
Options, Shares and RSUs

       

      The
transfer of Options and the transfer of Shares to be issued upon exercise of the
Options or following vesting of the RSUs shall be subject to the limitations set
forth in the 2007 Plan and in the Company’s incorporation documents, in any
shareholders’ agreement to which the holders of shares of common stock of the
Company are bound or in or in any applicable law including securities law of any
jurisdiction.

       

      The RSUs
granted hereunder and the rights and privileges conferred hereby may not be
transferred, assigned, pledged or hypothecated in any way (whether by operation
of law or otherwise) and may not be subject to sale under execution, attachment
or similar process. Upon any attempt to transfer or otherwise dispose of the
RSUs, or any right or privilege conferred hereby, or upon any attempted sale
under any execution, attachment or similar process, the grant of RSUs and the
rights and privileges conferred hereby will immediately become null and
void.

       

      With
respect to any Approved 102 Option and RSUs approved by the Israeli Tax
Authorities, subject to the provisions of Section 102 of the Israeli Income Tax
Ordinance (New Version), 1961, and any rules or regulation or orders or
procedures promulgated thereunder, a Participant shall not sell or release from
trust any Share received upon the exercise of an Approved 102 Option/RSU and/or
any Shares issued following vesting of RSUs and/or any Share received
subsequently following any realization of rights, including without limitation,
bonus Shares, until the lapse of the Holding Period required under Section 102
of the Ordinance. Notwithstanding the above, if any such sale or release occurs
during the Holding Period, the sanctions under Section 102 of the Ordinance and
under any rules or regulation or orders or procedures promulgated thereunder
shall apply to and shall be borne by such Participant.

       

      With
respect to Unapproved 102 Option/RSU, if the Participant ceases to be employed
by the Company or any Affiliate, the Participant shall extend to the Company
and/or its Affiliate a security or guarantee for the payment of tax due at the
time of sale of Shares, all in accordance with the provisions of Section 102 and
the rules, regulation or orders promulgated thereunder.

       

      The
Participant acknowledges that in the event additional Shares shall be registered
for trading in any public market, the Participant’s right to sell Shares may be
subject to limitations (including a lock-up period), as will be requested by the
Company or its underwriters, and the Participant unconditionally agrees and
accepts any such limitations.

       

      
        
          
          

        

        
          -4-

          
            

          

        

        
          
          

        

      

       

      The
Participant acknowledges that in order to enforce the above restriction, the
Company may impose stop-transfer instructions with respect to the Shares issued
to the Participant hereunder.

      


      The
Participant shall not dispose of any Shares in transactions which violate, in
the opinion of the Company, any applicable laws, rules and regulations or any
lock-up imposed by the Company.

       

      The
Participant agrees that the Company shall have the authority to imprint upon the
certificate or certificates representing the Shares such legends referring to
the foregoing restrictions, and any other applicable restrictions as it may deem
appropriate (which do not violate the Participant's rights according to this
Agreement).

       

      With
respect to any person subject to the reporting requirements of Section 16(a) of
the Securities Exchange Act of 1934, as amended (a “Reporting Person” and the
“Exchange Act”, respectively), transactions under the 2007 Plan are intended to
comply with all applicable conditions of Rule 16b-3 under the Exchange
Act.  To the extent any provision of the 2007 Plan or any action by an
authority under the 2007 Plan fails to so comply, such provision or action
shall, without further action by any person, be deemed to be automatically
amended to the extent necessary to effect compliance with Rule 16b-3, provided
that if such provision or action cannot be amended to effect such compliance,
such provision or action shall be deemed null and void, to the extent permitted
by law and deemed advisable by the appropriate authority.  Each Option
and RSU granted and each Share issued to a Reporting Person under the 2007 Plan
shall be deemed issued subject to the foregoing qualification.

       

      Taxes;
Indemnification

       

      The
receipt of the Options and the RSUs and the acquisition or receipt of the Shares
to be issued upon the exercise of the Options or the vesting of the RSUs may
result in tax consequences. THE PARTICIPANT IS ADVISED TO CONSULT A TAX ADVISER
WITH RESPECT TO THE TAX CONSEQUENCES OF RECEIVING OR EXERCISING THE OPTIONS,
RECEIVEING THE RSUS AND THE SHARES UNDERLYNG THE RSUS OR DISPOSING OF THE
SHARES.

       

      Any tax
consequences arising from the grant or exercise of any Option, from the grant of
RSUS, from the issuance of Shares upon the exercise of Options or vesting of the
RSUs, from the payment for such Shares or from any other event or act (of the
Company and/or its Affiliates, the Trustee or the Participant), hereunder, shall
be borne solely by the Participant. The Company and/or its Affiliates and/or the
Trustee shall withhold taxes according to the requirements under the applicable
laws, rules, and regulations, including withholding taxes at source.
Furthermore, the Participant hereby agrees to indemnify the Company and/or its
Affiliates and/or the Trustee and hold them harmless against and from any and
all liability for any such tax or interest or penalty thereon, including without
limitation, liabilities relating to the necessity to withhold, or to have
withheld, any such tax from any payment made to the Participant.

       

      
        
          
          

        

        
          -5-

          
            

          

        

        
          
          

        

      

       

      The
Participant will not be entitled to receive from the Company and/or the Trustee
any Shares allocated or issued upon the exercise of Options and/or the vesting
of RSUs prior to the full payments of the Participant’s tax or other liabilities
arising from Options and/or RSUs which were granted to him and/or from the
Shares issued upon the exercise of Options and/or upon the vesting of
RSUs.

       

      With
respect to Approved 102 Options and the RSUs, the Participant hereby
acknowledges that he is familiar with the provisions of Section 102 and the
regulations and rules promulgated thereunder, including without limitations the
type of Option granted hereunder and the tax implications applicable to such
grant and the grant of the RSUs. The Participant accepts the provisions of the
trust agreement, attached as Exhibit B hereto, and agrees to be bound by its
terms.

       

      Miscellaneous

       

      No Obligation to Exercise
Options or to Accept the Shares. The grant and acceptance of these
Options imposes no obligation on the Participant to exercise any or all of the
Options or to accept Shares issued following vesting of RSUs.

       

      Rights as
Stockholder.  Neither Participant nor any person claiming under
or through Participant will have any of the rights or privileges of a
stockholder of the Company in respect of any Shares deliverable hereunder unless
and until certificates representing such Shares have been issued and recorded on
the records of the Company or its transfer agents or registrars.

       

      Confidentiality.  The
Participant shall regard the information in this Agreement and its exhibits
attached hereto as confidential information and the Participant shall not reveal
its contents to anyone except when required by law or for the purpose of gaining
legal or tax advice.

       

      Continuation of Employment
or Service.  Neither the 2007 Plan nor this Agreement shall
impose any obligation on the Company or an Affiliate to continue the
Participant’s employment or service and nothing in the 2007 Plan or in this
Agreement shall confer upon the Participant any right to continue in the employ
or service of the Company and/or an Affiliate or restrict the right of the
Company or an Affiliate to terminate such employment or service at any
time.

       

      Entire Agreement.
Subject to the provisions of the 2007 Plan, which have been incorporated herein
by reference, this Agreement, together with the exhibits hereto, constitute the
entire agreement between the Participant and the Company with respect to Options
and RSUs granted hereunder, and supersedes all prior agreements, understandings
and arrangements, oral or written, between the Participant and the Company with
respect to the subject matter hereof.

       

      
        
          
          

        

        
          -6-

          
            

          

        

        
          
          

        

      

       

      Failure to Enforce - Not a
Waiver. The failure of any party to enforce at any time any provisions of
this Agreement or the 2007 Plan shall in no way be construed to be a waiver of
such provision or of any other provision hereof.

       

      Provisions of the 2007
Plan. The Options and RSUs granted herein are granted pursuant to the
2007 Plan and said Options and RSUs, and this Agreement, are in all respects
governed by the 2007 Plan and subject to all of the terms and provisions of the
2007 Plan.

       

      Any
interpretation of this Agreement will be made in accordance with the 2007 Plan
but in the event there is any contradiction between the provisions of this
Agreement and the 2007 Plan, the provisions of the Agreement will
prevail.

       

      Modifications.  Modifications
to this Agreement can be made only in an express written agreement executed by a
duly authorized officer of the Company or the Committee.

       

      Arbitration.  Notwithstanding
anything to the contrary contained in the 2007 Plan, any dispute in relation
with the 2007 Plan and this Agreement and the exercise or rights thereunder,
shall be decided by arbitration by the legal counsel to the Company or any
person nominated by such legal counsel (the “Arbitrator”), who shall decide such
dispute in accordance with the provisions of the Arbitration Law, 1968 and its
supplement. The decision of the Arbitrator shall be final and shall bind the
Company and the Participant. The Participant will exempt the Arbitrator from any
liability in respect of any action or decision made in connection with the
arbitration.

       

      Binding Effect. The
2007 Plan and this Agreement shall be binding upon the heirs, executors,
administrators and successors of the parties hereof.

       

      Notices. All notices
or other communications given or made hereunder shall be in writing and shall be
delivered or mailed by registered mail or delivered by email or facsimile with
written confirmation of receipt to the Participant and/or to the Company at the
addresses shown on the letterhead above, or at such other place as the Company
may designate by written notice to the Participant. The Participant is
responsible for notifying the Company in writing of any change in the
Participant’s address, and the Company shall be deemed to have complied with any
obligation to provide the Participant with notice by sending such notice to the
address indicated above.

       

      


      Company’s
Signature:

      


      


      
        	
                By:

              	 
      	 
      	
                By:

              	 
      
	
                Name:
      Ilan Rotem

              	 
      	
                Name:
      Hadas Halbreich

              
	
                Title:
      Chief Legal Officer& Secretary

              	 
      	
                Title:
      Compensation and Benefits Manager

              


      

       

       

      
        
          
          

        

        
          -7-

          
            

          

        

        
          
          

        

      

      
 

      Participant’s
Acknowledgement and Acceptance

      


      I, the
undersigned, hereby acknowledge receipt of a copy of the 2007 Plan and accept
the Options and RSUs subject to all of the terms and provisions thereof. I have
reviewed the 2007 Plan and this Agreement in its entirety, have had the
opportunity to obtain the advice of counsel prior to executing this Agreement,
and fully understand all provisions of this Agreement. I hereby agree to accept
as binding, conclusive and final all decisions or interpretations of the
Committee regarding any questions relating to the 2007 Plan and the Agreement. I
agree to notify the Company upon any change in the residence address indicated
above.

      


      


      


      
        	 
      	 
      	 
      	 
      
	
                Date

              	 
      	
                Participant’s
      Signature

              	 
      


      

       

       

      
        
          
          

        

        
          -8-

          
            

          

        

        
          
          

        

      

       

      Exhibit
A

      


      Ness
Technologies Inc. Amended and Restated 2007 Stock Incentive Plan

       

      
        
          
          

        

        
          -9-

          
            

          

        

        
          
          

        

      

       

      Exhibit  B

      


      Trust
Agreement

       

      
        
          
          

        

        
          -10-