Exhibit 10.57
PRESENCE, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
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1. Grant of Options. ePresence, Inc. , a Massachusetts corporation (the
"Company"), hereby grants to Xxxxxxx X. Xxxxx (the "Optionee"), an option,
pursuant to the Company's 1992 Stock Incentive Plan (the "Plan"), to
purchase an aggregate of 300,000 shares of Common Stock ("Common Stock") of
the Company at a price of $5.81 per share, purchasable as set forth in and
subject to the terms and conditions of this option and the Plan. The date of
grant of this option is January 25, 2001. Except where the context otherwise
requires, the term "Company" shall include the parent and all present and
future subsidiaries of the Company as defined in Sections 424(e) and 424(f)
of the Internal Revenue Code of 1986, as amended or replaced from time to
time (the "Code").
2. Non-Qualified Stock Option. This option is not intended to qualify as
an incentive stock option within the meaning of Section 422 of the Code.
3. Exercise of Option and Provisions for Termination.
a. Vesting Schedule. This option shall vest and become exercisable equally
over 16 months at the rate of 18,750 shares per month commencing on
February 1, 2001 and on the first day of each month thereafter. Except
as otherwise provided in this Agreement, this option may be exercised
prior to the tenth anniversary of the date of grant (hereinafter the
"Expiration Date"). This option may not be exercised at any time on or
after the Expiration Date. The right of exercise shall be cumulative so
that if the option is not exercised to the maximum extent permissible
during any exercise period, it shall be exercisable, in whole or in
part, with respect to all shares not so purchased at any time prior to
the Expiration Date or the earlier termination of this option.
b. Change in Control. Upon the occurrence of a Change in Control, as
defined in the February 4, 1997 Employment Agreement, as last amended as
of November 16, 2000, between the Company and the Employee (the
"Employment Agreement"), this option shall become vested and exercisable
as to 100% of the number of shares covered hereby that would not
otherwise then be vested and exercisable as provided for in Section 8(b)
of the Employment Agreement.
c. Certain Events. The vesting of this option shall also be subject
to continuation in accordance with the provisions of Section 5 of the
Employment Agreement.
d. Exercise Procedure. Subject to the conditions set forth in this
Agreement, this option shall be exercised by the Optionee's delivery of
written notice of exercise to the Treasurer of the Company, specifying
the number of shares to be purchased and the purchase price to be paid
therefore and accompanied by payment in full in accordance with Section
4 hereof.
e. Continuous Employment Required. Except as otherwise provided in this
Section 3, this option may not be exercised unless Optionee, at the time
he exercises this option, is, and has been at all times since the date
of grant of this option, an employee of the Company. For all purposes of
this option, (i) "employment" shall be defined in accordance with the
provisions of Section 1.421-7(h) of the Income Tax Regulations or any
successor regulations, and (ii) if this option shall be assumed or a new
option substituted therefore in a transaction to which Section 424(a) of
the Code applies, employment by such assuming or substituting
corporation (hereinafter called the "Successor Corporation") shall be
considered for all purposes of this option to be employment by the
Company.
f. Exercise Period Upon Termination of Employment. If the Optionee ceases
to be employed by the Company for any reason, then, except as provided
in paragraphs (g) and (h) below, the right to exercise this option shall
terminate three months after the later of cessation of employment or
cessation of vesting (but in no event after the Expiration Date),
provided that this option shall be exercisable only to the extent that
the Optionee was entitled to exercise this option on the date of such
cessation. The Company's obligation to deliver shares upon the exercise
of this option shall be subject to the satisfaction of all applicable
federal, state and local income and employment tax withholding
requirements, arising by reason of this option being treated as a non-
statutory option or otherwise.
g. Exercise Period Upon Death or Disability. If the Optionee dies or
becomes disabled (within the meaning of Section 22(e)(3) of the Code)
prior to the Expiration Date while he is an employee of the Company, or
if the Optionee dies within three months after the Optionee ceases to be
an employee of the Company (other than as a result of a discharge for
"cause" as specified in paragraph (h)
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below), this option shall become exercisable within the period of one
year following the date of death or disability of the Optionee (but in
no event after the Expiration Date), by the Optionee or by the person to
whom this option is transferred by will or the laws of descent and
distribution. Notwithstanding the immediately preceding sentence, if the
Optionee dies or becomes disabled during a vesting continuation period
under Paragraph 3 (c) above and prior to the Expiration Date, this
option shall become exercisable within the period of one year following
the cessation of such vesting (but in no event after the Expiration
Date) as to only such options that become exercisable by the Optionee
during such vesting continuation period, by the Optionee or by the
person to whom this option is transferred by will or the laws of descent
and distribution. This option shall be exercisable only to the extent
that this option was exercisable by the Optionee on the date of his
cessation of employment and/or cessation of vesting, as the case may be.
Except as otherwise indicated by the context, the term "Optionee", as
used in this option, shall be deemed to include the estate of the
Optionee or any person who acquires the right to exercise this option by
bequest or inheritance or otherwise by reason of the death of the
Optionee.
h. Exercise Period Upon Discharge for Cause. If the Optionee, prior to the
Expiration Date, ceases his employment with the Company because he is
discharged for "cause" (as defined in Section 5 (b) (1) and 5 (b) (2) of
the Employment Agreement), the right to exercise this option shall
terminate 30 days after such cessation of employment.
4. Payment of Purchase Price.
a. Method of Payment. Payment of the purchase price for shares purchased
upon exercise of this option shall be made by delivery of cash or check
in the amount equal to the exercise price of such options or, with the
prior consent of the Company (which may be withheld in its sole
discretion), by (A) delivery of shares of Common Stock owned by the
Optionee for at least six months, valued at their fair market value, as
determined in (b) below, (B) delivery of a promissory note of the
Optionee to the Company on terms determined by the Compensation
Committee of the Company's Board of Directors (the "Compensation
Committee") (C) delivery of an irrevocable undertaking by a broker to
deliver promptly to the Company sufficient funds to pay the exercise
price or delivery of irrevocable instructions to a broker to deliver
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promptly to the Company cash or a check sufficient to pay the exercise
price, (D) payment of such other lawful consideration as the
Compensation Committee may determine, or (E) any combination of the
foregoing.
b. Valuation of Shares or Other Non-Cash Consideration Tendered in Payment
of Purchase Price. For the purposes hereof, the fair market value of any
share of the Company's Common Stock or other non-cash consideration
which may be delivered to the Company in exercise of this option shall
be determined in good faith or in the manner determined by the
Compensation Committee from time to time.
c. Delivery of Shares Tendered in Payment of Purchase Price. If the
Optionee exercises options by delivery of shares of Common stock of the
Company, the certificate or certificates representing the shares of
Common Stock of the Company to be delivered shall be duly executed in
blank by the Optionee or shall be accompanied by a stock power duly
executed in blank suitable for purposes of transferring such shares to
the Company. Fractional shares of Common Stock of the Company will not
be accepted in payment of the purchase price of shares acquired upon
exercise of this option.
d. Restrictions on Use of Option Stock. Notwithstanding the foregoing, no
shares of Common Stock of the Company may be tendered in payment of the
purchase price of shares purchased upon exercise of this option if the
shares to be so tendered were acquired within six months before the date
of such tender through the exercise of this option or any other stock
option or restricted stock agreement.
5. Delivery of Shares; Compliance with Securities Laws, etc. The Company will
not be obligated to deliver any shares of Common Stock or to remove
restrictions from shares previously delivered (i) until all conditions of
the option have been satisfied or removed, (ii) until, in the opinion of
Company's counsel, all applicable federal and state laws and regulations
have been complied with, (iii) if the outstanding Common Stock is at the
time listed on any stock exchange, until the shares to be delivered have
been listed or authorized to be listed on such exchange upon official notice
of notice of issuance, and (iv) until all other legal matters in connection
with the issuance and delivery of such shares have been approved by the
Company's counsel.
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6. Non-transferability of Option. This option is personal and no rights granted
hereunder may be transferred, assigned, pledged or hypothecated in any way
(whether by operation of law or otherwise) nor shall any such rights be
subject to execution, attachment or similar process, except that this option
may be transferred (i) by will or the laws of descent and distribution or
(ii) pursuant to a qualified domestic relations order as defined in Section
414(p) of the Code. Upon any attempt to transfer, assign, pledge,
hypothecate or otherwise dispose of this option or of such rights contrary
to the provisions hereof, or upon the levy of any attachment or similar
process upon this option or such rights, this option and such rights shall,
at the election of the Company, become null and void.
7. No Special Employment or Similar Rights. Nothing contained in this option
shall be construed or deemed by any person under any circumstances to bind
the Company to continue the employment or other relationship of Optionee
with the Company for the period within which this option may be exercised.
8. Rights as a Shareholder. The Optionee shall have no rights as a shareholder
with respect to any shares which may be purchased by exercise of this option
(including, without limitation, any rights to receive dividends or non-cash
distributions with respect to such shares) unless and until a certificate
representing such shares is duly issued and delivered to the Optionee. No
adjustment shall be made for dividends or other rights for which the record
date is prior to the date such stock certificate is issued.
9. Adjustment Provisions. In the event that the Compensation Committee, in its
sole discretion, determines that any stock dividend, extraordinary cash
dividend, recapitalization, reorganization, merger, consolidate, split-up,
spin-off, combination or other similar transaction affects the Common Stock
such that an adjustment is required in order to preserve the benefits or
potential benefits intended to be made available under the Plan, then the
Compensation Committee shall equitably adjust either or both (i) the number
and kind of shares subject to this option, and (ii) the award, exercise or
conversion price with respect to the foregoing, and if considered
appropriate, the Compensation Committee may make provision for a cash
payment with respect to this option, provided that the number of shares
subject to this option shall always be a whole number.
10. Mergers, Consolidation, Distributions, Liquidations, etc. Subject to the
provisions of Section 3(b) above, in the event of a consolidation, merger
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or other reorganization in which all of the outstanding shares of Common
Stock are exchanged for securities, cash or other property of any other
corporation or business entity (an "Acquisition") or in the event of a
liquidation of the Company, the Board of Directors of the Company, or the
board of directors of any corporation assuming the obligations of the
Company, may, in its discretion, take any one or more of the following
actions as to this option: (i) provide that this option shall be assumed, or
a substantially equivalent option shall be substituted by the acquiring or
succeeding corporation (or an affiliate thereof) on such terms as the Board
determines to be appropriate, (ii) upon written notice to the Optionee,
provide that if unexercised, this option will terminate immediately prior to
the consummation of such transaction unless exercised by the Optionee within
a specific period following the date of such notice, (iii) in the event of
an Acquisition under the terms of which holders of the Common Stock of the
Company will receive upon consummation thereof a cash payment for each share
surrendered in the Acquisition (the "Acquisition Price"), make or provide
for a cash payment to the Optionee equal to the difference between (A) the
Acquisition Price times the number of shares of Common Stock subject to
outstanding options (to the extent then exercisable at prices not in excess
of the Acquisition Price) and (B) the aggregate exercise price of all such
outstanding options in exchange for the termination of such options, and
(iv) provide that all or part of this option shall become exercisable or
realizable in full prior to the effective date of such Acquisition.
11. Withholding Taxes. The Company's obligation to deliver shares upon the
exercise of this option shall be subject to the Optionee's satisfaction to
all applicable federal, state and local income and employment tax
withholding requirements. The Optionee shall pay to the Company, or make
provision satisfactory to the Compensation Committee for payment of, any
taxes required by law to be withheld in respect of options under the Plan no
later than the date of the event creating the tax liability. In the
Compensation Committee's discretion, and subject to such conditions as the
Compensation Committee may establish, such tax obligations may be paid in
whole or in part in shares of Common Stock, including shares retained from
the option creating the tax obligation, valued at their fair market value.
The Company may, to the extent permitted by law, deduct any such tax
obligations from any payment of any kind otherwise due to the Optionee.
12. Miscellaneous.
a. If any terms of this Option Agreement are contrary to or otherwise
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conflict with the terms of the Employment Agreement, the terms of the
Employment Agreement shall control.
b. All notices under this option shall be mailed or delivered by hand to
the parties at their respective addresses set forth beneath their names
below or at such other address as may be designated in writing by either
of the parties to one another.
c. This option shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts.
EPRESENCE, INC.
BY: /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
Senior Vice President and
Chief Financial Officer
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OPTIONEE'S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the terms
and conditions hereof.
OPTIONEE:
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
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Address: X.X. Xxx 000
Xxxxxxx, XX 00000-0000
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