NESS TECHNOLOGIES INC. OPTION AGREEMENT
Exhibit
10.14
Made
as
of February 4, 2008
|
BETWEEN:
|
Ness
Technologies Inc., a Delaware corporation
|
|
|
having
offices at Kiryat Atidim, Tel Aviv, Israel
|
||
|
(hereinafter,
the “Company”)
|
on
the one part
|
|
|
AND:
|
Issachar
X. Xxxxxxx
|
|
|
ID
051741270
|
||
|
(hereinafter
the “Optionee”)
|
on
the other part
|
|
WHEREAS,
the
Company’s stockholders adopted, at its annual meeting on June 13, 2007, the 2007
Stock Option Plan (the “2007 Plan”) attached hereto as Exhibit A and forming an
integral part hereof; and
WHEREAS,
the
Board of Directors of the Company has approved the granting of an option
to the
Optionee 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:
| 1. |
Preamble
and Definitions
|
| 1.1. |
The
preamble to this Option Agreement constitutes an integral part
hereof.
|
| 1.2. |
Unless
otherwise defined herein, capitalized terms used herein shall have
the
meaning ascribed to them in the 2007
Plan.
|
| 2. |
Grant
of Options
|
| 2.1. |
The
Company hereby grants the Optionee the number of options set forth
in
Section 1 of Exhibit B attached hereto and forming an integral
part hereof
(the “Options”), each Option shall be exercisable for one share of the
Company’s common stock, par value $.01 per share (the “Shares”), taken
from the total number of shares reserved for purposes of the 2007
Plan in
the Company’s authorized capital, at a price per Share set forth in
Section 2 of such Exhibit B (the “Purchase Price”), on the terms and
subject to the conditions hereinafter
provided.
|
The
Purchase Price is stated and will be paid in U.S. dollars.
|
2.2.
|
The
Optionee acknowledges that the Company intends to issue additional
Shares,
options and other instruments convertible into shares in the future
to
various entities and individuals, as the Company in its sole discretion
shall determine.
|
| 3. |
Period
of Options and Conditions of
Exercise
|
| 3.1. |
The
term of this Option Agreement shall commence on the date hereof
(the “Date
of Grant”) and shall terminate at the Expiration Date (as set forth in
Section 3 of Exhibit B), or at any other time at which the Options
expire
pursuant to the terms of the 2007 Plan or pursuant to this Option
Agreement.
|
| 3.2. |
Subject
to the provisions of the 2007 Plan, Options shall first vest and
become
exercisable according to the vesting dates set forth in Exhibit
B
hereto.
|
| 3.3. |
Once
vested, Options may be exercised by the Optionee, 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 Optionee
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.
|
| 3.4. |
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.
|
| 4. |
Change
of Control
|
Upon
the
occurrence of a “Change in Control” (as defined in the 2007 Plan), Vesting Dates
shall be accelerated so that any unvested Option shall be immediately vested
in
full as of the date which is ten (10) days prior to the effective date of
the
Change in Control, and the Stock Option and Compensation Committee shall
notify
the Optionee that the unexercised Options are fully exercisable for a period
of
ten (10) days from the date of such notice, and that any unexercised Options
shall terminate upon the expiration of such period
| 5. |
Exercise
of Options
|
| 5.1. |
Options
may be exercised in accordance with the provisions of Section 8.4
of the
2007 Plan.
|
| 5.2. |
In
order for the Company to issue Shares upon the exercise of any
of the
Options, the Optionee hereby agrees to sign any and all documents
required
by any applicable law and/or by the Company’s incorporation documents. The
Optionee 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
Optionee.
|
2
|
5.3.
|
The
Optionee acknowledges that the Company has transferred the day
to day
administration of its options system, including the Options, to
an
independent contractor and undertakes to follow the rules and practices
of
such independent contractor (currently Xxxxx Xxxxxxx Employees
Benefits
Ltd.) regarding the exercise of the Options. The Optionee 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, to another independent contractor or decide to administer
its
option system internally.
|
| 5.4. |
The
Company shall not be obligated to issue any Shares upon the exercise
of an
Option if such issuance, in the opinion of the Company, might constitute
a
violation by the Company of any provision of
law.
|
| 5.5. |
Each
Option 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, is
necessary
as a condition of, or in connection with, the granting of such
Option or
the issuance of Shares thereunder, such Option may not be exercised
in
whole or in part, unless such consent or approval shall have been
effected
or obtained free of any conditions not acceptable to the Board
or the
Committee.
|
| 6. |
Restrictions
on Transfer of Options and
Shares
|
The
transfer of Options and the transfer of Shares to be issued upon exercise
of the
Options 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
| 6.1. |
With
respect to any Approved 102 Option, 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, an
Optionee
shall not sell or release from trust any Share received upon the
exercise
of an Approved 102 Option 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
Optionee.
|
| 6.2. |
With
respect to Unapproved 102 Option, if the Optionee ceases to be
employed by
the Company or any Affiliate, the Optionee 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.
|
3
|
6.3.
|
The
Optionee acknowledges that in the event additional shares of the
Company
shall be registered for trading in any public market, the Optionee’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
Optionee
unconditionally agrees and accepts any such
limitations.
|
The
Optionee acknowledges that in order to enforce the above restriction, the
Company may impose stop-transfer instructions with respect to the exercised
Shares.
| 6.4. |
The
Optionee 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.
|
| 6.5. |
The
Optionee 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
Optionee's rights according to this Option
Agreement).
|
| 6.6. |
With
respect to any person subject to the reporting requirements of
Section
16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) (a “Reporting Person”), 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 to a Reporting Person under
the 2007
Plan shall be deemed issued subject to the foregoing qualification.
|
| 7. |
Taxes;
Indemnification
|
| 7.1. |
The
receipt of the Options and the acquisition of the Shares to be
issued upon
the exercise of the Options may result in tax consequences. THE
OPTIONEE
IS ADVISED TO CONSULT A TAX ADVISER WITH RESPECT TO THE TAX CONSEQUENCES
OF RECEIVING OR EXERCISING THIS OPTION OR DISPOSING OF THE
SHARES.
|
| 7.2. |
Any
tax consequences arising from the grant or exercise of any Option,
from
the payment for Shares covered thereby or from any other event
or act (of
the Company and/or its Affiliates, the Trustee or the Optionee),
hereunder, shall be borne solely by the Optionee. 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 Optionee
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
Optionee.
|
4
| 7.3. |
The
Optionee will not be entitled to receive from the Company and/or
the
Trustee any Shares allocated or issued upon the exercise of Options
prior
to the full payments of the Optionee’s tax or other liabilities arising
from Options which were granted to him and/or from the Shares issued
upon
the exercise of Options.
|
| 7.4. |
With
respect to Approved 102 Options, the Optionee 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. The Optionee accepts the provisions of the trust agreement,
attached as Exhibit C hereto, and agrees to be bound by its terms.
|
| 8. |
Miscellaneous
|
| 8.1. |
No
Obligation to Exercise Options.
The grant and acceptance of these Options imposes no obligation
on the
Optionee to exercise any or all of the
Options.
|
| 8.2. |
Confidentiality.
The Optionee shall regard the information in this Option Agreement
and its
exhibits attached hereto as confidential information and the Optionee
shall not reveal its contents to anyone except when required by
law or for
the purpose of gaining legal or tax
advice.
|
| 8.3. |
Continuation
of Employment or Service.
Neither the 2007 Plan nor this Option Agreement shall impose any
obligation on the Company or an Affiliate to continue the Optionee’s
employment or service and nothing in the 2007 Plan or in this Option
Agreement shall confer upon the Optionee 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.
|
| 8.4. |
Entire
Agreement.
Subject to the provisions of the 2007 Plan, which have been incorporated
herein by reference this Option Agreement, together with the exhibits
hereto, constitute the entire agreement between the Optionee and
the
Company with respect to Options granted hereunder, and supersedes
all
prior agreements, understandings and arrangements, oral or written,
between the Optionee and the Company with respect to the subject
matter
hereof.
|
| 8.5. |
Failure
to Enforce - Not a Waiver.
The failure of any party to enforce at any time any provisions
of this
Option Agreement or the 2007 Plan shall in no way be construed
to be a
waiver of such provision or of any other provision
hereof.
|
5
|
8.6.
|
Provisions
of the 2007 Plan.
The Options provided for herein are granted pursuant to the 2007
Plan and
said Options and this Option 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 Option Agreement will be made in accordance with the
2007
Plan but in the event there is any contradiction between the provisions of
this
Option Agreement and the 2007 Plan, the provisions of the Option Agreement
will
prevail.
| 8.7. |
Arbitration.
Notwithstanding anything to the contrary contained in the 2007
Plan, any
dispute in relation with the 2007 Plan and this Option 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
Optionee. The Optionee will exempt the Arbitrator from any liability
in
respect of any action or decision made in connection with the
arbitration.
|
| 8.8. |
Binding
Effect.
The 2007 Plan and this Option Agreement shall be binding upon the
heirs,
executors, administrators and successors of the parties
hereof.
|
| 8.9. |
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
Optionee
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
Optionee. The Optionee is responsible for notifying the Company
in writing
of any change in the Optionee’s address, and the Company shall be deemed
to have complied with any obligation to provide the Optionee with
notice
by sending such notice to the address indicated
below.
|
Company’s
Signature:
|
By:
|
/s/
Xxxx Xxxxx
|
By:
|
/s/
Xxxxx Xxxxxxxxx
|
|
|
Name:
|
Xxxx
Xxxxx
|
Name:
|
Xxxxx
Xxxxxxxxx
|
|
|
Title:
|
Secretary
& General Counsel
|
Title:
|
Compensation
and Benefits Manager
|
6
Optionee’s
Acknowledgement and Acceptance
I,
the
undersigned, hereby acknowledge receipt of a copy of the 2007 Plan and accept
the Options subject to all of the terms and provisions thereof. I have reviewed
the 2007 Plan and this Option Agreement in its entirety, and fully understand
all provisions of this Option Agreement. I agree to notify the Company upon
any
change in the residence address indicated above.
|
/s/
Xxxxxxxx
Xxxxxxx
|
Date:
|
March
11, 2008
|
|
|
Optionee’s
Signature
|
7
Exhibit
A
Ness
Technologies Inc.2007 Stock Option Plan
8
Exhibit
B
Terms
and Conditions of the Options
|
1.
|
Number
of Options granted:
|
300,000
|
|
2.
|
Price
per Share:
|
12$USD
|
|
3.
|
Date
of Grant:
|
February
4, 2008
|
|
4.
|
Expiration
Date:
|
February
3, 2013
|
|
5.
|
Vesting
and Exercise dates as follows:
|
|
Number
of Options
|
Vesting
Date
|
|
100,000
|
March
16, 2008
|
|
100,000
|
March
16, 2009
|
|
100,000
|
March
16, 2010
|
Signatures:
The
Optionee
|
/s/
Xxxxxxxx
Xxxxxxx
|
The Company
|
/s/
Xxxx Xxxxx
|
By:
|
/s/
Xxxxx Xxxxxxxxx
|
|
|
Xxxx
Xxxxx
|
Name:
|
Xxxxx
Xxxxxxxxx
|
|
|
Secretary
& General Counsel
|
Title:
|
Compensation
and Benefits Manager
|
9
Exhibit
B-1
This
Exhibit B-1 replaces and supersedes Exhibit B to the option agreement that
was
executed between the parties on March 12, 2007
Terms
and Conditions of the Options
|
1.
|
Number
of Options granted:
|
250,000
|
|
2.
|
Price
per Share:
|
13$USD
|
|
3.
|
Date
of Grant:
|
July
15, 2007
|
|
4.
|
Expiration
Date:
|
31.12.2011
|
|
5.
|
Vesting
and Exercise dates as follows:
|
|
Number
of Options
|
Vesting
Date
|
|
83,334
|
March
16, 2008
|
|
83,333
|
March
16, 2009
|
|
83,333
|
March
16, 2010
|
Signatures:
The
Optionee
|
/s/
Xxxxxxxx
Xxxxxxx
|
The Company
|
/s/
Xxxx Xxxxx
|
By:
|
/s/
Xxxxx Xxxxxxxxx
|
|
|
Xxxx
Xxxxx
|
Name:
|
Xxxxx
Xxxxxxxxx
|
|
|
Secretary
& General Counsel
|
Title:
|
Compensation
and Benefits Manager
|
10
Exhibit
C
Trust
Agreement
11
