ex45tos804313_01162009.htm


    Exhibit 4.5

     

    
      NESS
TECHNOLOGIES, INC.

      Ness
Tower, Atidim Building 4 P.O. Box 58152 Tel Aviv 61580 ISRAEL

       

       [Date]

       

      
        
          
            
              
                
                  	
                          Name:

                        	 
      
	 
      	 
      
	
                          Address:

                        	 
      
	 	 
	 
      	 
      
	 
      	 
      
	
                          SAP
      I.D. No.

                        	 
      


                

              

            

          

        

      

      


      


      We are
pleased to inform you that effective on the date first written above, the Stock
Option and Compensation Committee (the “Committee”) of Board of Directors of
Ness Technologies, Inc. (the “Company”) granted you (1) a stock option and (2)
an award of restricted stock units (“Restricted Stock Units”), pursuant to the
Company’s Amended and Restated 2007 Incentive Plan (the “Plan”) as set forth in
this letter (this “Letter”).  Unless otherwise defined herein,
capitalized terms used in this Letter shall have the same meanings as set forth
in the Plan.

       

      You have
been granted a stock option pursuant to the Plan to purchase __________ shares
(the “Shares”) of Common Stock, par value $.01 per share, of the Company, at a
price of $ __________ per Share (the “Option”).

       

      You have
also been granted an award of ______________ Restricted Stock Units pursuant to
the Plan, each Restricted Stock Unit representing the right to receive one Share
on the date it vests, subject to the terms and conditions of the Plan and this
Letter.

       

      I.
Stock Option

       

      The
Option vests and may be first exercised in accordance with the following vesting
schedule, provided that you are still employed by the Company or any subsidiary
of the Company on the relevant date:
_________________________________.

       

      Any tax
consequences arising from the grant or exercise of the Option, its possible
acceleration or redemption, and/or from the payment for Shares covered thereby,
shall be borne solely by you.  The options granted hereunder shall be
nonqualified stock options unless agreed otherwise.

       

      This
Option (or installment thereof) is to be exercised through the Company’s option
management system.  The exercise of the options will be subject to the
rules and practices applicable to such management system.

       

      This
Option is issued in accordance with and is subject to and conditioned upon all
of the terms and conditions of the Plan (a copy of which in its present form is
attached hereto as Exhibit A), as from
time to time amended; provided, however, that no future amendment or termination
of the Plan shall, without your consent, alter or impair any of your rights or
obligations under this Option.  The terms and conditions of the Plan
are incorporated by reference in this Letter as if fully set forth
herein.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      This
Option, to the extent not previously exercised will expire on
______________.

       

      You
acknowledge that a registration statement on Form S-8 under the Securities Act
of 1933, as amended (the “Act”), effective on August 13, 2007, is in effect as
of this date as to the Shares issuable upon the exercise of this
Option.  However, you acknowledge that there may be other applicable
legal and contractual restrictions that may apply to a resale of the Shares and
that the Company is under not obligation to you to inform you of such
restrictions or to assist you in revealing, modifying or canceling such
restrictions.

       

      II.
Restricted Stock Units

       

      The
Restricted Stock Units shall be subject to the terms and conditions set forth in
the Plan and Exhibit
B attached hereto. Subject to any acceleration provisions contained in
the Plan, the Restricted Stock Units shall vest as follows:
___________________________________.

       

      In the
event you cease to be eligible to participate in the Plan pursuant to Section
9.2.5 of the Plan, for any or no reason, before the Restricted Stock Units vest,
the Restricted Stock Units and your right to acquire any Shares hereunder will
immediately terminate.

       

      III.
General Provisions

       

      Administration. This
Option (or installment thereof) is to be exercised, and the Restricted Stock
Units are to vest, through the Company’s option management
system.  The exercise of the options and vesting of Restricted Stock
Units will be subject to the rules and practices applicable to such management
system.

       

      Form
S-8.  You acknowledge that a registration statement on Form S-8
under the Securities Act of 1933, as amended (the “Act”), effective on August
13, 2007, is in effect as of this date as to the Shares issuable upon the
exercise of this Option and the vesting of Restricted Stock
Units.  However, you acknowledge that there may be other applicable
legal and contractual restrictions that may apply to a resale of the Shares and
that the Company is under no obligation to you to inform you of such
restrictions or to assist you in revealing, modifying or canceling such
restrictions.

       

      Address for
Notices.  You agree to notify the Company upon any change in
the residence address indicated above.  Any notice to be given to the
Company under the terms of this Letter will be addressed to the Company, in care
of its Chief Legal Officer, at Ness Technologies, Inc., Ness Tower, Atidim
High-Tech Industrial Park, Building 4, Tel Aviv 61580, Israel, or at such other
address as the Company may hereafter designate in writing.

       

      Grant is Not
Transferable.  In accordance with the Plan, this grant 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, assign, pledge, hypothecate or
otherwise dispose of this grant, or any right or privilege conferred hereby, or
upon any attempted sale under any execution, attachment or similar process, this
grant and the rights and privileges conferred hereby immediately will become
null and void.

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

       

      Binding
Letter.  Subject to the limitation on the transferability of
this grant contained herein, this Letter will be binding upon and inure to the
benefit of the heirs, legatees, legal representatives, successors and assigns of
the parties hereto.

       

      Additional Conditions to
Issuance of Stock.  If at any time the Company will determine,
in its discretion, that the listing, registration or qualification of the Shares
upon any securities exchange or under any state or federal law, or the consent
or approval of any governmental regulatory authority is necessary or desirable
as a condition to the issuance of Shares to Participant, such issuance will not
occur unless and until such listing, registration, qualification, consent or
approval will have been effected or obtained free of any conditions not
acceptable to the Company. Where the Company determines that the delivery of any
Shares will violate federal securities laws or other applicable laws, the
Company will defer delivery until the earliest date at which the Company
reasonably anticipates that the delivery of Shares will no longer cause such
violation.  The Company will make all reasonable efforts to meet the
requirements of any such state or federal law or securities exchange and to
obtain any such consent or approval of any such governmental
authority.

       

      Letter’s Relationship to the
Plan.  Subject to Sections 2 and 9.2 of the Plan, in the event
of a conflict between the terms and conditions of the Plan and the terms and
conditions of this Letter, the terms and conditions of this Letter will
prevail.

       

      Committee
Authority.  The Committee has the power to interpret the Plan
and this Letter and to adopt such rules for the administration, interpretation
and application of the Plan as are consistent therewith and to interpret or
revoke any such rules (including, but not limited to, the determination of
whether or not any Restricted Stock Units have vested).  You agree
that all actions taken and all interpretations and determinations made by the
Committee in good faith regarding the Plan and this Letter will be final,
conclusive and binding upon Participant, the Company and all other interested
persons.  No member of the Committee will be personally liable for any
action, determination or interpretation made in good faith with respect to the
Plan or this Letter.

       

      Electronic
Delivery.  The Company may, in its sole discretion, decide to
deliver any documents related to Restricted Stock Units awarded under the Plan
or future Restricted Stock Units that may be awarded under the Plan, including
the Restricted Stock Units and evidence of ownership of the Shares to be issued
upon the vesting of the Restricted Stock Units, by electronic means or request
Participant’s consent to participate in the Plan by electronic
means.  Participant hereby consents to receive such items by
electronic delivery and agrees to participate in the Plan through any on-line or
electronic system established and maintained by the Company or another third
party designated by the Company.

       

      Captions.  Captions
provided herein are for convenience only and are not to serve as a basis for
interpretation or construction of this Letter.

       

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

       

      Letter
Severable.  In the event that any provision in this Letter will
be held invalid or unenforceable, such provision will be severable from, and
such invalidity or unenforceability will not be construed to have any effect on,
the remaining provisions of this Letter.

       

      Modifications to this
Letter.  This Letter, which incorporates by reference the Plan,
constitutes the entire understanding of the parties on the subjects
covered.  Participant expressly warrants that he or she is not
accepting this Letter in reliance on any promises, representations, or
inducements other than those contained or specifically addressed
herein.  Modifications to this Letter or the Plan can be made only in
an express written contract executed by a duly authorized officer of the Company
or the Committee.  Notwithstanding anything to the contrary in the
Plan or this Letter, the Company reserves the right to revise this Letter as it
deems necessary or advisable, in its sole discretion and without the consent of
Participant, to comply with Section 409A of the Internal Revenue Code of 1986,
as amended (the “Code”), or to otherwise avoid imposition of
any additional tax or income recognition under Section 409A of the Code in
connection to this Award of Restricted Stock Units.

       

      Amendment, Suspension or
Termination of the Plan.  By accepting this Award, Participant
expressly warrants that he or she has received an Award of Restricted Stock
Units under the Plan, and has received, read and understood the
Plan.  Participant understands that the Plan is discretionary in
nature and may be amended, suspended or terminated by the Company at any
time.

       

      Governing
Law.  This Letter will be governed by the laws of the State of
Israel applicable to contracts made and to be performed therein, without giving
effect to the conflict of law principles thereof except to the extent that such
conflict laws require application of the laws of Delaware.  For
purposes of litigating any dispute that arises under this award of Restricted
Stock Units or this Letter, the parties hereby submit to and consent to the
jurisdiction of the competent courts of Tel-Aviv, Israel, and agree that such
litigation will be conducted in the courts of Tel-Aviv, and no other courts,
where this award is made and/or to be performed.

       

      [Signature
page follows]

       

      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      

       

      By your
signature and the signature of the Company’s representative below, you and the
Company agree that the Option and the Restricted Stock Units are granted under
and governed by the Plan, this Letter, and with respect to the Restricted Stock
Units, Exhibit
B attached hereto.

       

      


      
        
          
            	
                    Very
      truly yours,

                  	 
      	 
      
	 
      	 
      	 
      
	
                    NESS
      TECHNOLOGIES, INC.

                  	 
      	
                    AGREED
      TO AND ACCEPTED

                  
	 
      	 
      	 
      
	
                    By:

                  	 
      	 
      	 
      
	 
      	
                    Name:

                  	
                    Ilan
      Rotem

                  	 
      	
                    Signature

                  
	 	

                    Title:

                  	

                    Chief
      Legal Officer & Secretary

                  	 	 
	 
      	
                     

                  	
                     

                  	 
      	 
      
	 
      	 
      	 
      	 
      	
                    Print
      Name

                  
	 
      	 
      	 
      
	
                    By:

                  	 
      	 
      	 
      
	 
      	
                    Name:

                  	
                    Hadas
      Halbreich

                  	 
      	 
      
	 
      	
                    Title:

                  	
                    Global
      Compensation and Benefits Manager

                  	 
      	 
      


          

        

      

      


      


      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

      

      


      


      Exhibit
A

      


      Ness
Technologies, Inc. Amended and Restated 2007 Incentive Plan

       

      [see
attached]

       

      
        
          
          

        

        
          A-1

          
            

          

        

        
          
          

        

      

       

      Exhibit
B

      


      Terms
and Conditions of Restricted Stock Units

       

      Unless
otherwise defined herein, capitalized terms used in this Exhibit shall have the
same meanings as set forth in the Plan.

       

      1.        Grant.  The
Company hereby grants to the participant named in this Letter (the
“Participant”), under the Plan, an award of Restricted Stock Units, subject to
all of the terms and conditions of this Letter and the Plan, which is
incorporated herein by reference.

       

      2.      Company’s Obligation to
Pay.  Each Restricted Stock Unit represents the right to
receive one Share on the date such Restricted Stock Unit vests, subject to
Participant’s furnishing the Company with, or otherwise making provision for,
sufficient funds to satisfy the Company’s tax withholding
obligations.  Unless and until a Restricted Stock Unit has vested in
the manner set forth in Section 9.2, Participant will have no right to delivery
of such Shares.  Prior to the actual delivery of any Shares with
respect to vested Restricted Stock Units, a Restricted Stock Unit will represent
an unsecured obligation of the Company, payable (if at all) only from the
general assets of the Company.

       

      3.      Vesting
Schedule.  Except as provided in Section 3 of the Plan, and
subject to Section 9.2.4 thereof, the Restricted Stock Units awarded by this
Letter will vest in accordance with the vesting provisions set forth in this
Letter.  Restricted Stock Units scheduled to vest on a certain date or
upon the occurrence of a certain condition will not vest in Participant in
accordance with any of the provisions of this Letter unless Participant will
have been continuously eligible to participate in the Plan pursuant to Section
9.2.5 of the Plan (an “Eligible Person”) from the Grant Date until the date such
vesting occurs.

       

      4.      Committee
Discretion.  The Committee, in its discretion, may accelerate
the vesting of the balance, or some lesser portion of the balance, of
Participant’s unvested Restricted Stock Units at any time, subject to the terms
of the Plan and in accordance with any other written agreement between
Participant and the Company.  If so accelerated, such Restricted Stock
Units will be considered as having vested as of the date specified by the
Committee, the Plan or an applicable written agreement between the Participant
and the Company.

       

      5.      Forfeiture upon Termination
of Status as an Eligible Person.  Notwithstanding any contrary
provision of this Letter, but subject to the Plan and any other written
agreement between Participant and the Company, once Participant loses his status
as an Eligible Person, for any or no reason, the balance of the Restricted Stock
Units that have not vested at that time and Participant’s right to acquire any
Shares hereunder will immediately terminate.

       

      6.      Withholding of
Taxes.  Notwithstanding any contrary provision of this Letter
or the Plan, Shares will not be delivered under the Restricted Stock Unit grant
to Participant until Participant furnishes the Company with, or otherwise makes
provision for, sufficient funds to satisfy the Company’s tax withholding
obligations.  If Participant fails to make satisfactory arrangements
for the payment of any required tax withholding obligations hereunder within the
time frame set forth by the Committee, Participant will permanently forfeit such
Restricted Stock Units and any right to receive Shares thereunder. The Company
may, but is not obligated to, sell on behalf of Participant  the
amount of Shares required to cover any withholding obligation and to issue the
remaining Shares to Participant.

       

      
        
          
          

        

        
          B-1

          
            

          

        

        
          
          

        

      

       

      7.      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, if
certificated, and such issuance is recorded on the records of the Company or its
transfer agents or registrars.  After such issuance, recordation and
delivery, Participant will have all the rights of a stockholder of the Company
with respect to voting such Shares and receipt of dividends and distributions on
such Shares.

       

      8.      No Guarantee of Continued
Service.  PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE VESTING
OF THE RESTRICTED STOCK UNITS PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED
ONLY BY CONTINUING TO BE DEEMED AN ELIGIBLE PERSON AT THE WILL OF THE COMPANY
(OR THE SUBSIDIARY EMPLOYING OR OTHERWISE RETAINING PARTICIPANT) AND NOT THROUGH
THE ACT OF BEING HIRED, BEING GRANTED THIS AWARD OF RESTRICTED STOCK UNITS OR
ACQUIRING SHARES HEREUNDER.  PARTICIPANT FURTHER ACKNOWLEDGES AND
AGREES THAT THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE
VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED
PROMISE OF CONTINUED ENGAGEMENT BY THE COMPANY FOR THE VESTING PERIOD, FOR ANY
PERIOD, OR AT ALL, AND WILL NOT INTERFERE IN ANY WAY WITH PARTICIPANT’S RIGHT OR
THE RIGHT OF THE COMPANY (OR THE SUBSIDIARY EMPLOYING OR OTHERWISE RETAINING
PARTICIPANT) TO TERMINATE PARTICIPANT’S RELATIONSHIP WITH THE COMPANY AT ANY
TIME, WITH OR WITHOUT CAUSE.

       

      
        
          
          

        

        
          B-2