Exhibit 10.56
ePresence, Inc.
Restricted Stock Agreement
Granted Under 2000 Non-Executive Stock Incentive Plan
This Restricted Stock Agreement (this "Agreement") is made this 1/st/
day of December, 2000 between ePresence, Inc., a Massachusetts corporation (the
"Company"), and Xxxxxx Xxxxxxx (the "Participant").
WHEREAS, the issuance of 20,000 shares of restricted stock to the
Participant was approved at the October 19, 2000 ("Grant Date") meeting of the
Compensation Committee of the Company's Board of Directors.
NOW, THEREFORE, for valuable consideration, receipt of which is
acknowledged, the Company and the Participant (each, a "Party" and together, the
"Parties") each agree as follows:
1. Purchase of Shares.
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The Company shall issue and sell to the Participant, and the
Participant shall purchase from the Company, subject to the terms and conditions
set forth in this Agreement and in the Company's 2000 Non-Executive Stock
Incentive Plan (the "Plan"), 20,000 shares (the "Shares") of common stock, $0.01
par value per share, of the Company ("Common Stock"), at a purchase price of
$0.01 per share. The aggregate purchase price for the Shares shall be paid by
the Participant by check payable to the order of the Company or such other
method as may be acceptable to the Company. Upon receipt by the Company of
payment for the Shares, the Company shall issue to the Participant one or more
certificates in the name of the Participant for that number of Shares purchased
by the Participant. The Participant agrees that the Shares shall be held by an
escrow agent pursuant to the terms and conditions in Section 6 of this Agreement
and the Joint Escrow Instructions (the form of which is attached hereto as
Appendix A), subject to the Purchase Option set forth in Section 2 of this
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Agreement and the restrictions on transfer set forth in Section 4 of this
Agreement.
2. Purchase Option.
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(a) In the event that the Participant ceases to be employed by the
Company for any reason or no reason, with or without cause, or the Participant
announces his intention to terminate his employment with the Company, on or
before the second anniversary of the Grant Date, the Company shall have the
right and option (the "Purchase Option") to purchase from the Participant, for a
sum of $0.01 per share (the "Option Price"), any or all of the Unvested Shares
(as defined below).
"Unvested Shares" means the total number of Shares multiplied by the
Applicable Percentage at the time the Purchase Option becomes exercisable by the
Company. The "Applicable Percentage" shall be (i) 100% during the twelve month
period ending on the first anniversary of the Grant Date, (ii) 50% during the
twelve month period ending on the second anniversary of the Grant Date, and
(iii) zero percent after the second anniversary of the Grant Date.
(b) In the event that the Participant's employment with the Company is
terminated by reason of death or disability on or before the second anniversary
of the Grant Date, the number of the Shares for which the Purchase Option
becomes exercisable shall be fifty percent (50%) of the number of Unvested
Shares for which the Purchase Option would otherwise become exercisable. For
this purpose, "disability" shall mean the Participant's absence from the
full-time performance of the Participant's duties with the Company for 180
consecutive calendar days as a result of incapacity due to mental or physical
illness which is determined to be total and permanent by a physician selected by
the Company or its insurers and reasonably acceptable to the Participant or the
Participant's legal representative.
(c) For purposes of this Agreement, employment with the Company shall
include employment with a parent or subsidiary of the Company.
(d) If a Change in Control Date (as defined below) occurs on or prior
to the second anniversary of the Grant Date, the Applicable Percentage shall be
zero. The following definitions apply to this provision:
(i) "Change in Control" means an event or occurrence set forth
in any one or more of Section 2(d)(i)(A) through 2(d)(i)(D) below (including an
event or occurrence that constitutes a Change in Control under one of such
Sections but is specifically exempted from another such Section):
(A) the acquisition by an individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) (a "Person") of beneficial
ownership of any capital stock of the Company if, after such acquisition, such
Person beneficially owns (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) 50% or more of either (1) the then-outstanding shares of common
stock of the Company (the "Outstanding Company Common Stock"), or (2) the
combined voting power of the then-outstanding securities of the Company entitled
to vote generally in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that for purposes of this Section 2(d)(i)(A),
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the following acquisitions shall not constitute a Change in Control: (1) any
acquisition directly from the Company (excluding an acquisition pursuant to the
exercise, conversion or exchange of any security exercisable for, convertible
into or exchangeable for common stock or voting securities of the Company,
unless the Person exercising, converting or exchanging such security acquired
such security directly from the Company or an underwriter or agent of the
Company), (2) any acquisition by the Company, (3) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the Company
or any corporation controlled by the Company, or (4) any acquisition by any
corporation pursuant to a transaction which complies with clauses (1) and (2) of
Section 2(d)(i)(C) hereof; or
(B) such time as the Continuing Directors (as defined
below) do not constitute a majority of the Board (or, if applicable, the Board
of Directors of a successor corporation to the Company), where the term
"Continuing Director" means at any date a member of the Board (1) who was a
member of the Board on the date of the execution of this Agreement or (2) who
was nominated or elected subsequent to such date by at least a majority of the
directors who were Continuing Directors at the time of such nomination or
election or whose
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election to the Board was recommended or endorsed by at least a majority of the
directors who were Continuing Directors at the time of such nomination or
election; provided, however, that there shall be excluded from this clause (2)
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any individual whose initial assumption of office occurred as a result of an
actual or threatened election contest with respect to the election or removal of
directors or other actual or threatened solicitation o proxies or consents, by
or on behalf of a person other than the Board; or
(C) the consummation of a merger, consolidation,
reorganization, recapitalization or statutory share exchange involving the
Company or a sale or other disposition of all or substantially all of the assets
of the Company (a "Business Combination"), unless, immediately following such
Business Combination, each of the following two conditions is satisfied: (1) all
or substantially all of the individuals and entities who were the beneficial
owners of the Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 50% of the then-outstanding shares of common
stock and the combined voting power of the then-outstanding securities entitled
to vote generally in the election of directors, respectively, of the resulting
or acquiring corporation in such Business Combination (which shall include,
without limitation, a corporation which as a result of such transaction owns the
Company or substantially all of the Company's assets either directly or through
one or more subsidiaries) (such resulting or acquiring corporation is referred
to herein as the "Acquiring Corporation") in substantially the same proportions
as their ownership, immediately prior to such Business Combination, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities,
respectively; and (2) no Person (excluding the Acquiring Corporation, or any
employee benefit plan (or related trust) maintained or sponsored by the Company
or by the Acquiring Corporation) beneficially owns, directly or indirectly, 50%
or more of the then-outstanding shares of common stock of the Acquiring
Corporation, or of the combined voting power of the then-outstanding securities
of such corporation entitled to vote generally in the election of directors
(except to the extent that such ownership existed prior to the Business
combination); or
(D) approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company.
(ii) "Change in Control Date" means the date on which a Change
in Control occurs. Anything in this Agreement to the contrary notwithstanding,
if (A) a Change in Control occurs, (B) the Participant's employment with the
Company is terminated prior to the date on which the Change in Control occurs,
and (C) it is reasonably demonstrated by the Participant that such termination
of employment (X) was at the request of a third party who has taken steps
reasonably calculated to effect a Change in Control or (Y) otherwise arose in
connection with or in anticipation of a Change in Control, then for all purposes
of this Agreement the "Change in Control Date" shall mean the date immediately
prior to the date of such termination of employment.
3. Exercise of Purchase Option and Closing.
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(a) The Company may exercise the Purchase Option by delivering or
mailing to the Participant (or the Participant's estate), within 60 days after
the termination of the employment
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of the Participant with the Company, a written notice of exercise of the
Purchase Option. Such notice shall specify the number of Shares to be purchased.
If and to the extent the Purchase Option is not so exercised by the giving of
such a notice within such 60-day period, the Purchase Option shall automatically
expire and terminate effective upon the expiration of such 60-day period.
(b) Within 10 days after delivery to the Participant of the Company's
notice of the exercise of the Purchase Option pursuant to subsection (a) above,
the Participant (or the Participant's estate) shall, pursuant to the provisions
of the Joint Escrow Instructions referred to in Section 6, tender to the Company
at its principal offices the certificate or certificates representing the Shares
which the Company has elected to purchase in accordance with the terms of this
Agreement, duly endorsed in blank or with duly endorsed stock powers attached
thereto, all in form suitable for the transfer of such Shares to the Company.
Promptly following its receipt of such certificate or certificates, the Company
shall pay to the Participant the aggregate Option Price for such Shares
(provided that any delay in making such payment shall not invalidate the
Company's exercise of the Purchase Option with respect to such Shares).
(c) After the time at which any Shares are required to be delivered to
the Company for transfer to the Company pursuant to subsection (b) above, the
Company shall not pay any dividend to the Participant on account of such Shares
or permit the Participant to exercise any of the privileges or rights of a
stockholder with respect to such Shares, but shall, insofar as permitted by law,
treat the Company as the owner of such Shares.
(d) The Option Price may be payable, at the option of the Company, in
cancellation of all or a portion of any outstanding indebtedness of the
Participant to the Company or in cash or both.
(e) The Company shall not purchase any fraction of a Share upon
exercise of the Purchase Option, and any fraction of a Share resulting from a
computation made pursuant to Section 2 of this Agreement shall be rounded to the
nearest whole Share (with any one-half Share being rounded upward).
(f) The Company may assign its Purchase Option to one or more persons
or entities.
4. Restrictions on Transfer.
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The Participant shall not sell, assign, transfer, pledge, hypothecate
or otherwise dispose of, by operation of law or otherwise (collectively
"transfer") any Shares, or any interest therein, that are subject to the
Purchase Option, except that the Participant may transfer such Shares to or for
the benefit of any spouse, child or grandchild, or to a trust for their benefit,
provided that such Shares shall remain subject to this Agreement (including
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without limitation the restrictions on transfer set forth in this Section 4 and
the Purchase Option), and such permitted transferee shall, as a condition to
such transfer, deliver to the Company a written instrument confirming that such
transferee shall be bound by all of the terms and conditions of this Agreement.
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5. Effect of Prohibited Transfer.
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The Company shall not be required (a) to transfer on its books any of
the Shares which shall have been sold or transferred in violation of any of the
provisions set forth in this Agreement, or (b) to treat as owner of such Shares
or to pay dividends to any transferee to whom any such Shares shall have been so
sold or transferred.
6. Escrow.
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The Participant shall, upon the execution of this Agreement, execute
Joint Escrow Instructions in the form attached to this Agreement as Appendix A.
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The Joint Escrow Instructions shall be delivered to the escrow agent thereunder.
The Participant shall deliver to such escrow agent a stock assignment duly
endorsed in blank and hereby instructs the Company to deliver to such escrow
agent, on behalf of the Participant, the certificate(s) evidencing the Shares
issued hereunder. Such materials shall be held by such escrow agent pursuant to
the terms of such Joint Escrow Instructions.
7. Restrictive Legend.
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All certificates representing Shares shall have affixed thereto a
legend in substantially the following form, in addition to any other legends
that may be required under federal or state securities laws:
"The shares of stock represented by this certificate are subject
to restrictions on transfer and an option to purchase set forth
in a certain Restricted Stock Agreement between the corporation
and the registered owner of these shares (or his predecessor in
interest), and such Agreement is available for inspection without
charge at the office of the Secretary of the corporation."
8. Provisions of the Plan.
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This Agreement is subject to the provisions of the Plan, a copy of
which the Participant acknowledges he has been furnished with.
9. Withholding Taxes; Section 83(b) Election.
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(a) The Participant acknowledges and agrees that the Company has the
right to deduct from payments of any kind otherwise due to the Participant any
federal, state or local taxes of any kind required by law to be withheld with
respect to the purchase of the Shares by the Participant or the lapse of the
Purchase Option.
(b) The Participant acknowledges that the Participant has been
informed of the availability of making an election in accordance with Section
83(b) of the Internal Revenue Code of 1986, as amended (attached hereto as
Appendix B is the 83(b) Election Form); that such election must be filed with
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the Internal Revenue Service within 30 days of the date of this Agreement; and
that the Participant is solely responsible for making such election.
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10. Severability.
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The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, and each other provision of this Agreement shall be severable and
enforceable to the extent permitted by law.
11. Waiver.
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Any provision for the benefit of the Company contained in this
Agreement may be waived, either generally or in any particular instance, by the
Compensation Committee of the Company's Board of Directors.
12. Binding Effect.
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This Agreement shall be binding upon and inure to the benefit of the
Company and the Participant and their respective heirs, executors,
administrators, legal representatives, successors and assigns, subject to the
restrictions on transfer set forth in Section 4 of this Agreement.
13. Notice.
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All notices, instructions and other communications given hereunder or
in connection herewith shall be in writing. Any such notice, instruction or
communication shall be sent either (i) by registered or certified mail, return
receipt requested, postage prepaid, or (ii) prepaid via a reputable nationwide
overnight courier service, in each case addressed to the Company at: Corporate
Counsel, ePresence, Inc., 000 Xxxxxxxx Xxxx, X.X. Xxx 0000, Xxxxxxxx,
Xxxxxxxxxxxxx 00000-0000, and to the Participant at: 00 Xxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000 (or to such other address as either the Company
or the Participant may have furnished to the other in writing in accordance
herewith). Any such notice, instruction or communication shall be deemed to have
been delivered five business days after it is sent by registered or certified
mail, return receipt requested, postage prepaid, or one business day after it is
sent via a reputable nationwide overnight courier service. Either Party may give
any notice, instruction or other communication hereunder using any other means,
but no such notice, instruction or other communication shall be deemed to have
been duly delivered unless and until it actually is received by the Party for
whom it is intended.
14. Pronouns.
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Whenever the context may require, any pronouns used in this Agreement
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns and pronouns shall include the plural, and vice versa.
15. Entire Agreement.
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This Agreement and the Plan constitute the entire agreement between the
Parties, and supersede all prior agreements and understandings, relating to the
subject matter of this Agreement.
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16. Amendment.
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This Agreement may be amended or modified only by a written instrument
executed by both the Company and the Participant.
17. Governing Law.
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This Agreement shall be construed, interpreted and enforced in
accordance with the internal laws of the Commonwealth of Massachusetts without
regard to any applicable conflicts of laws.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
day and year first above written.
EPRESENCE, INC.
By: Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Chairman & CEO
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PARTICIPANT
Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
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Appendix A
ePresence, Inc.
Joint Escrow Instructions
December 1, 2000
Xxxxx X. Xxxxxx
Assistant Clerk
ePresence, Inc.
000 Xxxxxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Dear Sir:
As Escrow Agent for ePresence, Inc., a Massachusetts corporation (the
"Company"), and the undersigned person ("Holder"), you are hereby authorized and
directed to hold the documents delivered to you pursuant to the terms of that
certain Restricted Stock Agreement (the "Agreement") of even date herewith, to
which a copy of these Joint Escrow Instructions is attached, in accordance with
the following instructions:
1. Appointment. Holder irrevocably authorizes the Company to deposit
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with you any certificates evidencing Shares (as defined in the Agreement) to be
held by you hereunder and any additions and substitutions to said Shares. Holder
does hereby irrevocably constitute and appoint you as his attorney-in-fact and
agent for the term of this escrow to execute with respect to such Shares all
documents necessary or appropriate to make such Shares negotiable and to
complete any transaction herein contemplated. Subject to the provisions of this
paragraph 1 and the terms of the Agreement, Holder shall exercise all rights and
privileges of a stockholder of the Company while the Shares are held by you.
2. Closing of Purchase.
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(a) Upon any purchase by the Company of the Shares pursuant to the
Agreement, the Company shall give to Holder and you a written notice specifying
the purchase price for the Shares, as determined pursuant to the Agreement, and
the time for a closing hereunder (the "Closing") at the principal office of the
Company. Holder and the Company hereby irrevocably authorize and direct you to
close the transaction contemplated by such notice in accordance with the terms
of said notice.
(b) At the Closing, you are directed (a) to date the stock assignment
form or forms necessary for the transfer of the Shares, (b) to fill in on such
form or forms the number of Shares being transferred, and (c) to deliver same,
together with the certificate or certificates evidencing the Shares to be
transferred, to the Company against the simultaneous delivery to you of the
purchase price for the Shares being purchased pursuant to the Agreement.
3. Withdrawal. The Holder shall have the right to withdraw from this
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escrow any Shares as to which the Purchase Option (as defined in the Agreement)
has terminated or expired.
4. Duties of Escrow Agent.
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(a) Your duties hereunder may be altered, amended, modified or revoked
only by a writing signed by all of the parties hereto.
(b) You shall be obligated only for the performance of such duties as
are specifically set forth herein and may rely and shall be protected in relying
or refraining from acting on any instrument reasonably believed by you to be
genuine and to have been signed or presented by the proper party or parties. You
shall not be personally liable for any act you may do or omit to do hereunder as
Escrow Agent or as attorney-in-fact of Holder while acting in good faith and in
the exercise of your own good judgment, and any act done or omitted by you
pursuant to the advice of your own attorneys shall be conclusive evidence of
such good faith.
(c) You are hereby expressly authorized to disregard any and all
warnings given by any of the parties hereto or by any other person or Company,
excepting only orders or process of courts of law, and are hereby expressly
authorized to comply with and obey orders, judgments or decrees of any court. In
case you obey or comply with any such order, judgment or decree of any court,
you shall not be liable to any of the parties hereto or to any other person,
firm or Company by reason of such compliance, notwithstanding any such order,
judgment or decree being subsequently reversed, modified, annulled, set aside,
vacated or found to have been entered without jurisdiction.
(d) You shall not be liable in any respect on account of the identity,
authority or rights of the parties executing or delivering or purporting to
execute or deliver the Agreement or any documents or papers deposited or called
for hereunder.
(e) You shall be entitled to employ such legal counsel and other
experts as you may deem necessary to properly advise you in connection with your
obligations hereunder and may rely upon the advice of such counsel.
(f) Your rights and responsibilities as Escrow Agent hereunder shall
terminate if (i) you cease to be Assistant Clerk of the Company or (ii) you
resign by written notice to each party. In the event of a termination under
clause (i), your successor as Assistant Clerk shall become Escrow Agent
hereunder; in the event of a termination under clause (ii), the Company shall
appoint a successor Escrow Agent hereunder.
(g) If you reasonably require other or further instruments in
connection with these Joint Escrow Instructions or obligations in respect
hereto, the necessary parties hereto shall join in furnishing such instruments.
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(h) It is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or right of possession of the
securities held by you hereunder, you are authorized and directed to retain in
your possession without liability to anyone all or any part of said securities
until such dispute shall have been settled either by mutual written agreement of
the parties concerned or by a final order, decree or judgment of a court of
competent jurisdiction after the time for appeal has expired and no appeal has
been perfected, but you shall be under no duty whatsoever to institute or defend
any such proceedings.
(i) These Joint Escrow Instructions set forth your sole duties with
respect to any and all matters pertinent hereto and no implied duties or
obligations shall be read into these Joint Escrow Instructions against you.
(j) The Company shall indemnify you and hold you harmless against any
and all damages, losses, liabilities, costs, and expenses, including attorneys'
fees and disbursements, for anything done or omitted to be done by you as Escrow
Agent in connection with this Agreement or the performance of your duties
hereunder, except such as shall result from your gross negligence or willful
misconduct.
5. Notice. All notices, instructions and other communications given
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hereunder or in connection herewith shall be in writing. Any such notice,
instruction or communication shall be sent to each of the other parties
thereunto entitled either (i) by registered or certified mail, return receipt
requested, postage prepaid, or (ii) prepaid via a reputable nationwide overnight
courier service, in each case addressed to the Company at: CFO, ePresence, 000
Xxxxxxxx Xxxx, X.X. Xxx 0000, Xxxxxxxx, Xxxxxxxxxxxxx 00000-0000, to the
Participant at: 00 Xxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000, and to you
at: Assistant Clerk, ePresence, Inc., 000 Xxxxxxxx Xxxx, X.X. Xxx 0000,
Xxxxxxxx, Xxxxxxxxxxxxx 00000-0000 (or to such other address as a party may have
furnished to the other parties in writing in accordance herewith). Any such
notice, instruction or communication shall be deemed to have been delivered five
business days after it is sent by registered or certified mail, return receipt
requested, postage prepaid, or one business day after it is sent via a reputable
nationwide overnight courier service. Any party may give any notice, instruction
or other communication hereunder using any other means, but no such notice,
instruction or other communication shall be deemed to have been duly delivered
unless and until it actually is received by the party for whom it is intended.
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6. Miscellaneous.
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(a) By signing these Joint Escrow Instructions, you become a party
hereto only for the purpose of said Joint Escrow Instructions, and you do not
become a party to the Agreement.
(b) This instrument shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
Very truly yours,
EPRESENCE, INC.
By: ________________________
Name: Xxxxxxx X. Xxxxx
Title: Chairman and CEO
HOLDER
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Xxxxxx Xxxxxxx
ESCROW AGENT
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Xxxxx X. Xxxxxx
Assistant Clerk
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Appendix B
Election to Include Value of Restricted Property in Gross Income in Year of
Transfer Pursuant to Section 83(b) of the Internal Revenue Code
The undersigned hereby makes an election pursuant to Section 83(b) of the
Internal Revenue Code of 1986, as amended, with respect to the property
described below and supplies the following information in accordance with Treas.
Reg. (S) 1.83-2:
The name, address, and taxpayer identification number of the undersigned are:
_____________________________________
_____________________________________
_____________________________________
Taxpayer identification number: ____________________
A description of the property with respect to which this election is being made
is as follows:
______ shares of common stock, $_______ par value per share, of ePresence,
Inc., a Massachusetts corporation (the "Company")
The date on which the property was transferred and the taxable year for which
this election is being made are as follows:
Date of transfer: _________, 2000
Taxable year: calendar year 2000
The nature of the restrictions to which the property is subject is as follows:
The property is subject to vesting provisions and may be forfeited under
the terms of a stock restriction agreement executed between the undersigned
and the Company.
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The fair market value of the property at the time of the transfer (determined
without regard to any lapse restriction, as defined in Treas. Reg. (S)
1.83-3(i)) is:
$_____________, equal to a fair market value of $__________ per share
The amount paid for the property by the undersigned is:
$_____________, equal to a purchase price of $__________ per share
In accordance with Treas. Reg. (S) 1.83-2(d) & (e)(7), a copy of this statement
has been furnished to the Company.
Dated:
__________________________ ____________________________________
Name:
_______________________________
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