Exhibit 10.45
ePresence, Inc.
Corporate Officer Restricted Stock Agreement
Granted Under 1992 Stock Incentive Plan
This Restricted Stock Agreement (this "Agreement") is made this 1st day of
December, 2000 between ePresence, Inc., a Massachusetts corporation (the
"Company"), and Xxxxxxx X. Xxxxxxxxx (the "Participant").
WHEREAS, the issuance of 80,000 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.
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 1992 Stock Incentive Plan, as amended
(the "Plan"), 80,000 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 Agreement and
the restrictions on transfer set forth in Section 4 of this Agreement.
2. Purchase Option.
(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
third 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 period
beginning on the Grant Date and ending on the third anniversary of the Grant
Date, and (ii) zero percent after the third anniversary of the Grant Date.
Notwithstanding the foregoing, the Applicable Percentage referred to in clause
(i) above shall be reduced (x) by twenty percent (20%), if the 20 Day Fair
Market Value
(as determined below) per share of Common Stock is equal to or exceeds $12.00 at
any time within twelve months of the Grant Date (provided, however, that any
such reduction under this clause (x) shall not become effective until 12 months
after the Grant Date notwithstanding the earlier achievement of such 20 Day Fair
Market Value target); (y) (A), if reduced by twenty percent (20%) under clause
(x) above, by an additional thirty percent (30%) of the original Applicable
Percentage, or (B), if not reduced under clause (x) above, by fifty percent
(50%), if the 20 Day Fair Market Value per share of Common Stock is equal to or
exceeds $18.00 at any time within twenty four months of the Grant Date
(provided, however, that any such reduction under this clause (y) shall not
become effective until 18 months after the Grant Date notwithstanding the
earlier achievement of such 20 Day Fair Market Value target); or (z) by such
applicable percentage to effect a one hundred percent (100%) cumulative, if
applicable, reduction, if the 20 Day Fair Market Value per share of Common Stock
is equal to or exceeds $25.00 at any time within 36 months of the Grant Date
(provided, however, that any such reduction under this clause (z) shall not
become effective until 24 months after the Grant Date notwithstanding the
earlier achievement of such 20 Day Fair Market Value target).
The "20 Day Fair Market Value" per share of Common Stock shall be
determined as follows:
(I) If the Common Stock is listed on a national securities exchange,
the Nasdaq National Market, the Nasdaq system, or another nationally recognized
exchange or trading system as of the date of calculation, the 20 Day Fair Market
Value per share of Common Stock shall be deemed to be the arithmetic average of
the last reported sale price per share of Common Stock thereon for the 20
trading days ended on the trading day immediately preceding the date of
calculation; or, if no such price is reported for each trading day in such
20-trading day period, the 20 Day Fair Market Value per share of Common Stock
shall be determined pursuant to the following clause (II).
(II) If the Common Stock is not listed on a national securities
exchange, the Nasdaq National Market, the Nasdaq system or another nationally
recognized exchange or trading system as of the date of calculation or for each
trading day in such 20-trading day period, the 20 Day Fair Market Value per
share of Common Stock shall be deemed to be the amount most recently determined
by the Board of Directors to represent the fair market value per share of the
Common Stock (including without limitation a determination for purposes of
granting Common Stock options or issuing Common Stock under an employee benefit
plan of the Company); or, if the Board of Directors has not made such a
determination within the two-month period prior to the date of calculation, then
the 20 Day Fair Market Value per share of Common Stock shall be the amount
determined by the Board of Directors in its sole discretion.
(b) In the event that the Participant's employment with the Company is
terminated by reason of death or disability on or before the third 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
-2-
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.
3. Exercise of Purchase Option and Closing.
(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 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.
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,
3
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 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.
5. Effect of Prohibited Transfer.
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.
The Participant shall, upon the execution of this Agreement, execute Joint
Escrow Instructions in the form attached to this Agreement as Appendix A. 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.
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.
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.
(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.
4
(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 the Internal Revenue
Service within 30 days of the date of this Agreement; and that the Participant
is solely responsible for making such election
(c) The Company agrees to make a loan or loans to the Participant equal to
the amount of taxes owed by the Participant as a result of the Section 83(b)
election referred to above or, in the event no such election is made, as a
result of the vesting of the Shares hereunder, in each case in accordance with
the terms of the Company's LTI Loan Provision Program, as such program may be in
effect from time to time.
10. Severability.
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.
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.
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.
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 Xxxxx Xxxxxx, Xxxxxx, XX
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.
5
14. Pronouns.
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.
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.
16. Amendment.
This Agreement may be amended or modified only by a written instrument
executed by both the Company and the Participant.
17. Governing Law.
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: /s/ Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------
Title: Chairman and CEO
-------------------------
PARTICIPANT
/s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxxxx
6
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 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.
(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
escrow any Shares as to which the Purchase Option (as defined in the Agreement)
has terminated or expired.
4. Duties of Escrow Agent.
(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.
2
(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
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: Vice President of
Human Resources, ePresence, 000 Xxxxxxxx Xxxx, X.X. Xxx 0000, Xxxxxxxx,
Xxxxxxxxxxxxx 00000-0000, to the Participant at: 00 Xxxxx Xxxxxx, Xxxxxx, XX
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.
3
6. Miscellaneous.
(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: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title:Chairman and CEO
HOLDER
/s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxxx
ESCROW AGENT
/s/ Xxxxx X. Xxxxxx
-----------------------------
Xxxxx X. Xxxxxx
Assistant Clerk
4
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.
Xxx.xx. 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.
5
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.ss.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. Xxx.xx. 1.83-2(d) & (e)(7), a copy of this statement
has been furnished to the Company.
Dated: ____________________ _________________________________
Name: ___________________________
6
