DJSP ENTERPRISES, INC. NONQUALIFIED SHARE OPTION AGREEMENT
Exhibit
4.23
2009
EQUITY INCENTIVE PLAN
Dated: ,
20__
TO:
Pursuant to the 2009 Equity Incentive
Plan (the “Plan”) of DJSP Enterprises, Inc. (formerly Chardan 2008 China
Acquisition Corp.) (the “Corporation”) and with the approval of the Compensation
Committee (“Committee”) of the Corporation’s Board of Directors in accordance
with the Plan, the Corporation grants you an option (the “Option”) to purchase
[INSERT NUMBER] of
Ordinary Shares of the Corporation (the “Shares”) at $[INSERT PRICE] per Share,
upon the terms and conditions contained in this Share Option Agreement (the
“Agreement”) and in the Plan. The Option is intended to be a
Nonqualified Stock Option. The Plan, as amended from time to time, is
made a part of this Agreement and is available upon
request. Capitalized terms used in this Agreement, but not otherwise
defined in this Agreement, shall have the meanings given them in the
Plan.
1. Right to
Exercise Option. Unless otherwise indicated in this Agreement,
you may purchase from the Corporation on and after the first anniversary of the
date of grant, one-third (1/3rd) of
the shares covered by the Option, and on each succeeding one year anniversary
thereof may exercise an additional one-third (1/3rd) of
the shares covered by the Option, and on the third anniversary of the date of
grant the Option shall be fully exercisable. To the extent not
exercised, installments shall accumulate and you may exercise them in whole or
in part in any subsequent period.
2. Expiration. The
Option will expire (to the extent not previously exercised) on [INSERT DATE],
20__ (the “Expiration Date”), unless terminated earlier in accordance with the
Plan or Section 5.
3. Non-Transferable. The
Option may not be transferred by you other than by will or by the laws of
descent and distribution or as otherwise provided in the Plan and, during your
lifetime, the Option is exercisable only by you.
4. Change in
Control. In the event of a
Change in Control, any portion of this Option that is then not exercisable shall
become immediately exercisable.
5. Termination
of Employment. If, prior to the date that this Option first
becomes exercisable, your employment with the Corporation or any of its
Subsidiaries shall be terminated for any reason, your right to exercise this
Option shall terminate and all rights hereunder shall cease. If, on
or after the date that this Option shall first become exercisable, your
employment shall be terminated for any reason other than death or Disability,
then you shall have the right to exercise this Option to the extent that it
shall have been exercisable and unexercised on the date of such termination of
services, at any time on or before the earlier of: (i) the expiration date of
the Option, or (ii) three (3) months after the date of such termination of
employment, subject to any other limitation on the exercise of such Option in
effect at the date of exercise. If, on or after the date that this
Option first becomes exercisable, your employment is terminated due to death or
Disability, you or the executor or administrator of your estate (as the case may
be) or the person or persons to whom the Option shall have been transferred by
will or by the laws of descent and distribution, shall have the right to
exercise this Option, at any time on or before the earlier of: (i) the
expiration date of the Option, or (ii) one (1) year from the date of your death
or Disability, to the extent that it was exercisable and unexercised on the date
of your death or Disability, subject to any other limitation on exercise in
effect at the date of exercise. Your transfer from one corporation to
another among the Corporation and any of its Subsidiaries, or a leave of absence
with the written consent of the Corporation, shall not be a termination of
services for purposes of this Option.
1
6. Manner of
Exercise. The exercise price for Shares upon exercise of the
Option shall be paid in full in cash or by personal check, bank draft or money
order at the time of exercise; provided, however, that in lieu of such form of
payment, subject to the limitations set forth in Section 2.4 of the Plan,
payment may be made by (a) delivery and transfer, in a manner acceptable to the
Corporation's President or his designee in their sole discretion, of Shares
already owned by you; (b) by delivery to the Corporation’s President or his
designee of a properly executed exercise notice, acceptable to the Corporation,
together with irrevocable instructions to your broker to deliver to the
Corporation sufficient cash to pay the exercise price and any applicable income
and employment withholding taxes, in accordance with a written agreement between
the Corporation and the brokerage firm; or (c) any other method permitted in
Section 2.4 of the Plan. Ordinary Shares surrendered upon exercise
shall be valued at the Stock Exchange closing price for the Ordinary Share on
the day prior to exercise.
7. Rights as
Shareholder. As the holder of the Option you shall not be, nor
have any of the rights or privileges of, a shareholder of the Corporation in
respect of any Shares unless a certificate or certificates representing such
Shares shall have been issued by the Corporation to you or a book entry
representing such Shares has been made and such Shares have been deposited with
the appropriate registered book-entry custodian. The Corporation
shall not be liable to you for damages relating to any delay in issuing shares
or a share certificate to you, any loss of a certificate, or any mistakes or
errors in the issuance of Shares or a certificate to you.
8. Withholding. The
Corporation shall have the right to withhold from your compensation or to
require you to remit sufficient funds to satisfy applicable withholding for
income and employment taxes upon the exercise of the Option. Subject to the
limitations in Section 11.5 of the Plan, you may, in order to fulfill the
withholding obligation, make payment to the Corporation in any manner permitted
under Section 11.5 of the Plan.
9. No
Guarantee of Employment. Nothing contained in this Agreement or in the
Plan, nor any action taken by the Corporation or the Committee, shall confer
upon you any right with respect to continuation of your employment or other
service by or to the Corporation or any Subsidiary, nor interfere in any way
with the right of the Corporation or any Subsidiary to terminate your employment
or other service at any time, and if you are an employee, your employment is and
shall remain employment at will, except as otherwise specifically provided by
law or in an employment agreement between you and the Corporation.
10. Personal
Data. By entering into this Agreement, you consent to the
disclosure, transfer and/or processing of any relevant personal data in relation
to the administration of the Plan by the Corporation or any third party
authorized by the Corporation to administer the Plan on its behalf, and in
particular such processing as is necessary in relation to your holding and
exercising the Option. The relevant personal data that will be
processed includes but is not limited to name, employee number, hire date, job
title and location.
2
11. Plan
Terms Control. In the event of a conflict between the Plan and
this Agreement, the terms of the Plan shall control, it being understood that
variations in this Agreement from terms set forth in the Plan shall not be
considered to be in conflict if the Plan permits such variations.
12. Notices. Any
notices to be given to the Corporation under the terms of this Agreement shall
be addressed to the Corporation in care of its President, and any notices to you
shall be addressed to you at the address stated in the Corporation’s
records.
13. Compliance
with Securities Laws. Anything to the contrary herein
notwithstanding, the Corporation's obligation to sell and deliver stock under
the Option is subject to such compliance with federal and state laws, rules and
regulations applying to the authorization, issuance or sale of securities, and
applicable stock exchange requirements, as the Corporation deems necessary or
advisable.
14. Governing
Law. Except
to the extent governed by applicable federal law, the validity, interpretation,
construction and performance of this Agreement, shall be governed by the laws of
the State of Florida without regard to its conflicts of law rules.
15. Counterparts. This Agreement may be
executed in counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
16. Complete
Agreement. This Agreement shall constitute the entire
agreement between the parties hereto and shall supersede all proposals, oral or
written, and all other communications between the parties relating to the
subject matter of this Agreement.
17. Modifications. The terms of this
Agreement cannot be modified except in writing and signed by each of the parties
hereto.
Very truly yours,
By:
Name: Xxxxx X. Xxxxx
Its: President
The above
is agreed to and accepted by:
Dated: ________________, 2010
Optionee’s
Signature
________________________
Optionee’s
Name
3
NOTICE
OF EXERCISE OF NON-QUALIFIED SHARE OPTION
UNDER
THE
2009
STOCK INCENTIVE PLAN
[INSERT
COMPANY ADDRESS]
Attention:
[Insert Officer]
Dear Sir
or Madam:
A
non-qualified share option was granted to me on ___________________,____________to
purchase__________, Ordinary Shares of DJSP Enterprises, Inc. at a price
of $__________ per share.
I hereby
elect to exercise my non-qualified share option with respect to_________ shares
for an aggregate purchase price of $______________. I hereby
elect to pay for such shares as follows:
|
Personal
Check
|
$ | ||||
|
Cash
|
$ | ||||
|
Bank
Draft
|
$ | ||||
|
Money
Order
|
$ | ||||
|
Cashless
Exercise
|
$ | ||||
|
DJSP
Enterprises, Inc. Ordinary
Shares
|
$ | ||||
| Total | $ |
[A
personal check [or cash, bank draft or money order] for the purchase price is
enclosed herewith.]
[Documents
as are required to effect a cashless exercise are enclosed.]
[I hereby
elect to exercise my option with respect to shares through
a combination of cash payments and Ordinary Shares of DJSP Enterprises,
Inc. A personal check for the purchase price to be paid in cash is
enclosed herewith. Certificates for Ordinary
Shares of DJSP Enterprises, Inc. are enclosed herewith, along with a duly
executed stock power in proper form for transfer, with all signatures properly
guaranteed.
Optionee_______________________
Dated ___________________________
4
