ex46tos804313_01162009.htm


    Exhibit 4.6

     

    
      NESS
TECHNOLOGIES INC.

      


      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 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 Restricted Stock Units

       

      The
Company hereby grants to the Participant  _________ restricted stock
units (the “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 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 RSUs shall first vest and Shares
underlying the RSUs will first be issuable to the Participant according
to  the following vesting and subject to any acceleration provision
included in the Plan: _________________________________, 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 RSUs due to vest on and following such
date.

       

      Administration

       

      The
Participant acknowledges that the Company has transferred the day to day
administration of its options system, including 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  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 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 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.

       

      
        
          
          

        

        
          -2-

          
            

          

        

        
          
          

        

      

       

      The
Company shall not be obligated to issue any Shares 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 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 RSU, or the issuance of Shares thereunder,
The 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  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 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 RSU, an
amount equal to the Fair Market Value of the Shares subject to the RSUs
immediately prior to such Change in Control; 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.

       

      Restrictions on Transfer of
Shares and RSUs

       

      The
transfer of RSUs or Shares to be issued upon 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.

       

      
        
          
          

        

        
          -3-

          
            

          

        

        
          
          

        

      

       

      With
respect to any 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 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 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.

       

      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 RSU
granted and each Share issued to a Reporting Person under the 2007 Plan shall be
deemed issued subject to the foregoing qualification.

       

      
        
          
          

        

        
          -4-

          
            

          

        

        
          
          

        

      

       

      Taxes;
Indemnification

       

      The
receipt of the RSUs and the acquisition or receipt of the Shares to be issued
upon 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 of RSUs, 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.

       

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

       

      With
respect to Approved 102 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 tax implications
applicable 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 to
Accept the Shares. The grant and acceptance of these RSUs imposes no
obligation on the Participant 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.

       

      
        
          
          

        

        
          -5-

          
            

          

        

        
          
          

        

      

       

      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 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.

       

      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  RSUs granted herein are granted pursuant to the 2007
Plan and said 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.

       

      
        
          
          

        

        
          -6-

          
            

          

        

        
          
          

        

      

       

      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

                


        

         

      

      


      Participant’s
Acknowledgement and Acceptance

      


      I, the
undersigned, hereby acknowledge receipt of a copy of the 2007 Plan and accept
the 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

                	 
      


        

        
 

        
          
            
            

          

          
            -7-

            
              

            

          

          
            
            

          

        

      

       

      Exhibit
A

      


      Ness
Technologies Inc. Amended and Restated 2007 Stock Incentive Plan

       

      
        
          
          

        

        
          -8-

          
            

          

        

        
          
          

        

      

       

      Exhibit
B

      


      Trust
Agreement

       

      
        
          
          

        

        
          -9-