EXHIBIT 10.1
ePresence, Inc.
1992 STOCK INCENTIVE PLAN
DIRECTOR NON-STATUTORY STOCK OPTION AGREEMENT
---------------------------------------------
1. Grant of Option. ePresence, Inc., a Massachusetts corporation (the
---------------
"Company"), hereby grants to ((name)) (the "Optionee") an option, pursuant to
the Company's 1992 Stock Incentive Plan (the "Plan"), to purchase an aggregate
of ((no)) shares of Common Stock ("Common Stock") of the Company at a price of
$((dollar)) 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
((date)). 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-Statutory 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 may be exercised prior to the tenth
----------------
anniversary of the date of grant (hereinafterthe "Expiration Date") as to the
percentages of the total number of shares covered hereby on and after the dates
respectively set forth in the table below.
Exerciseable Dates Percentage of Total Shares
------------------ --------------------------
1/25/03 25%
1/25/04 25%
1/25/05 25%
1/25/06 25%
b. Change in Control. Upon the occurrence of a Change in Control (as
-----------------
defined below) this option shall become vested and exerciseable as to 100% of
the number of shares covered hereby that would not otherwise then be vested and
exerciseable. A "Change in Control" shall occur or be deemed to have occurred
only if any of the following events occur:
(i) Any "person," as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended, the
("Exchange Act"), (other than the Company, and trustee or other
fiduciary holding securities under an employee benefit plan of the
Company, or any corporation owned directly or indirectly by the
stockholders of the Company in substantially the same proportion as
their ownership of stock in the Company) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing a majority or
more of the combined voting power of the Company's then outstanding
securities;
(ii) Individuals who, as of the date hereof, constitute
the Board of Directors (as of the date hereof, the "Incumbent Board")
cease for any reason to constitute at least a majority of the Board of
Directors, provided that any person becoming a director subsequent to
the date hereof whose election, or nomination for election by the
Company's stockholders, was approved by a vote of at least a majority
of the directors then comprising the Incumbent Board (other than an
election or nomination of an individual whose initial assumption of
office is in connection with an actual or threatened election contest
relating to the election of the directors of the Company) shall be, for
purposes herein, considered as though such person were a member of the
Incumbent Board;
(iii) The stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than (a)
a merger or consolidation which would result in the voting securities
of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity) more than 50% of the
combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation, or (b) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no
person (as herein above defined), other than a person holding more than
50% of the combined voting power of the Company's then outstanding
securities immediately prior to such recapitalization, acquires more
than 50% of the combined voting power of the Companies then outstanding
securites; and
(iv) The stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all the Company's
assets or the Company is dissolved and its assets distributed in a
judicial proceeding.
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. This option may not be exercised at any time on or after the Expiration
Date.
Page 2
c. Exercise Procedure; Payment of Purchase Price. Subject to
----------------------------------------------
the conditions set forth in this Agreement, this option may only be exercised by
the Optionee's delivery or written notice of exercise to the Treasurer of the
Company at its principal office specifying the number of shares to be purchased
and the purchase price to be paid therefor and accompanied by (i) payment in
cash of the full consideration for the shares as to which it is exercised, or
(ii) 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 promptly to the Company cash or a check
sufficient to pay the exercise price. Such exercise shall be effective upon
receipt by the Treasurer of the Company of such written notice together with the
required payment, undertaking or instructions. The Optionee may purchase fewer
than the total number of shares covered hereby, provided that no partial
exercise of this option nay be for any fractional share or for fewer than ten
whole shares.
d. Continuous Relationship with the Company Required. Except as
--------------------------------------------------
otherwise provided in this Section 3, this option may not be exercised unless
the Optionee, at the time he or she exercises this option, is, and has been at
all times since the date of grant of this option, a director of the Company.
e. Termination of Relationship with the Company. If the
---------------------------------------------
Optionee ceases to be a director of the Company for any reason, then the right
to exercise this option shall terminate one year after such cessation (but in no
event on or 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.
f. Exercise Period Upon Death or Disability. If the Optionee
-----------------------------------------
dies or becomes disabled (within the meaning of Section 22 (e) (3) of the Code
or any successor provision thereto) while he is a director, this option shall be
exercisable within the period of one year following the date of death or
disability of the Optionee (but in no event on or after the Expiration Date) by
the Optionee or by the person to whom this option is transferred by will, by the
laws of descent and distribution, or by written notice filed pursuant to Section
3 (g) of this Agreement, provided that this option shall be exercisable only to
the extent that this option was exercisable by the Optionee on the date of his
or her death or disability. 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.
g. Designation of Beneficiary. The Optionee, by written notice
---------------------------
to the Company, may designate one or more persons (and from time to time change
such designation) including his legal representative, who, by reason or the
director's death, shall acquire the right to exercise all or a portion of this
option in accordance with the provisions of Section 3(f) of this Agreement.
4. Delivery of Shares; Compliance with Securities Laws, etc.
---------------------------------------------------------
a. General. The Company shall, upon payment of the option
-------
price for the number of shares purchased and paid for, make prompt delivery of
such shares to the Optionee,
Page 3
provided that if any law or regulation requires the Company to take any action
with respect to such shares before the issuance thereof, then the date of
delivery of such shares shall be extended for the period necessary to complete
such action.
b. Listing, Qualification, etc. This option shall be subject to the
----------------------------
requirements that if, at any time, counsel to the Company shall determine that
the listing, registration or qualification of the shares subject hereto upon any
securities exchange or under any state or federal law, or the consent or
approval of any governmental or regulatory body, or that the disclosure of
non-public information or the satisfaction of any other condition is necessary
as a condition of, or in connection with, the issuance or purchase of shares
hereunder, this option may not be exercised, in whole or in part, unless such
listing, registration, qualification, consent or approval, disclosure or
satisfaction of such other condition shall have been effected or obtained on
terms acceptable to the Board of Directors. Nothing herein shall be deemed to
require the Company to apply for, effect or obtain such listing, registration,
qualification or disclosure, or to satisfy such other condition.
5. Non transferability of Option. Except as provided in Sections 3(f) and
-----------------------------
3(g) of this Agreement, this option is personal and no rights or benefits
granted hereunder may be transferred, assigned, pledged or hypothecated in any
way (whether by operation of law or otherwise) nor shall any such rights or
benefits be subject to execution, attachment or similar process. 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.
6. No Right to Continue as a Director. Nothing contained in the Plan or
----------------------------------
this Option shall be construed or deemed by any person under any circumstances
to bind the Company to continue the relationship of the Optionee with the
Company for the period within which this option may be exercised.
7. 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 (except as
provided in Section 8 herein) for which the record date is prior to the date
such stock certificate is issued.
8. Adjustment Provisions. In the event that the Board, in its sole
---------------------
discretion, determines that any stock dividend, extraordinary cash dividend,
recapitalization, reorganization, merger, consolidation, 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 Board 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 Board 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.
Page 4
9. Withholding Taxes. The Company's obligation to deliver shares upon the
-----------------
exercise of this option shall be subject to the Optionee's satisfaction of all
applicable federal, state and local income and employment tax withholding
requirements.
10. Miscellaneous.
-------------
(a) Except as provided herein, this option may not be amended or otherwise
modified unless evidenced in writing and signed by the Company and the Optionee.
(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:
---------------------------------------------------
Xxxxxxx X. Xxxxxxxxx
Title: Sr. Vice President & Chief Financial Officer
Address: 000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Page 5
OPTIONEE'S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the terms and
conditions thereof. The undersigned hereby acknowledges receipt of a copy of the
Company's 1992 Stock Incentive Plan.
OPTIONEE
___________________________________
Address: _________________________
_________________________
Page 6
