Exhibit 10.3C
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EPRESENCE, INC.
1992 Stock Incentive Plan
INCENTIVE STOCK OPTION AGREEMENT
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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. INCENTIVE STOCK OPTION. This option is intended to qualify as an
incentive stock option ("Incentive Stock Option") within the meaning of Section
422 of the Code.
3. EXERCISE OF OPTION AND PROVISIONS FOR TERMINATION.
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(a) Vesting Schedule. 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") in installments as to not more than the
number of shares set forth in the table below during the respective installment
periods set forth in the table below.
PERCENTAGE OF SHARES AS TO
EXERCISE PERIOD WHICH OPTION IS EXERCISABLE
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Prior to 12 months after -0-
the date of grant.
From and after 12 months -34%-
after the date of grant but
prior to 24 months after
the date of grant.
From and after 24 months -67%-
after the date of grant but
prior to 36 months after the
date of grant.
From and after 36 months -100%-
after the date of grant.
The right of exercise shall be cumulative so that if the option is not exercised
to the maximum extent permissible during any exercisable 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.
(b) 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. Such exercise shall
be effective upon receipt by the Treasurer of the Company of such written notice
together with the required payment. The Optionee may purchase less than the
number of shares covered hereby, provided that no partial exercise of this
option may be for any fractional share or for fewer than ten whole shares.
(c) Continuous Employment Required. Except as otherwise provided in
this Section 3, this option may not be exercised unless 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, 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.
(d) 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 (e) and (f) below, the right to exercise this option shall terminate
90 days after such cessation (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. Notwithstanding
the foregoing, if the Optionee, prior to the Expiration Date, materially
violates the non-competition or confidentiality provisions of any employment
contract, confidentiality and nondisclosure agreement or other agreement between
the Optionee and the Company, the right to exercise this option shall terminate
immediately upon written notice to the Optionee from the Company describing such
violation.
(e) 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 or she is an employee of the Company, or if the
Optionee dies within 90 days 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 (f) below), 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
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, provided that
this option shall be exercisable only to the extent that this option was
exercisable by the Optionee on the date of cessation of employment with the
Company. 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.
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(f) Discharge for Cause. If the Optionee, prior to the Expiration
Date, is discharged by the Company for "cause" (as defined below), the right to
exercise this option shall terminate immediately upon such cessation of
employment. "Cause" shall mean willful misconduct in connection with the
Optionee's employment or willful failure to perform his or her employment
responsibilities in the best interests of the Company (including, without
limitation, breach by the Optionee of any provision of any employment,
nondisclosure, non-competition or other similar agreement between the Optionee
and the Company), as determined by the Company, which determination shall be
conclusive. The Optionee shall be considered to have been discharged "for
cause" if the Company determines, within 30 days after the Optionee's
resignation, that discharge for cause was warranted.
4. PAYMENT OF PURCHASE PRICE.
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(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 (as determined by the Company in its sole discretion) in an 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 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 by the Compensation Committee.
(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 (6) months before the date of
such tender, through the exercise of an option granted under the Plan or any
other stock option or restricted stock plan of the Company.
5. DELIVERY OF SHARES; COMPLIANCE WITH SECURITIES LAWS, ETC.
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(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, 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.
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(b) Compliance With Securities Laws, Etc. The Company will not be
obligated to deliver any shares of Common Stock pursuant to the Plan or to
remove restriction from shares previously delivered under the Plan (i) until all
conditions of the option have been satisfied or removed, (ii) until, in the
opinion of the Company's counsel, all applicable federal and state laws and
regulation have been complied with, (iii) if the outstanding 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.
6. NONTRANSFERABILITY OF OPTION. Except as provided in paragraph (e) of
Section 3, 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. 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 RIGHTS. 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 employment of the Optionee 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.
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(a) General. In the event of a consolidation, merger 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 Compensation Committee, 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 Compensation Committee 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 specified 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 any outstanding
options shall become exercisable or realizable in full prior to the effective
date of such Acquisition.
(b) Compensation Committee Authority to Make Adjustments. Any
adjustments under this Section 9 will be made by the Compensation Committee,
whose determination as to
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what adjustments, if any, will be made and the extent thereof will be final,
binding and conclusive. No fractional shares will be issued pursuant to this
option on account of any such adjustments.
10. 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. 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 the 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 Optionees.
11. LIMITATIONS ON DISPOSITION OF INCENTIVE STOCK OPTION SHARES. It is
understood and intended that this option shall qualify as an "incentive stock
option" as defined in Section 422 of the Code. Accordingly, the Optionee
understands that in order to obtain the benefits of an incentive stock option
under Section 421 of the Code, no sale or other disposition may be made of any
shares acquired upon exercise of the option within one year after the day of the
transfer of such shares to him, nor within two years after the grant of the
option. If the Optionee intends to dispose, or does dispose (whether by sale,
exchange, gift, transfer or otherwise), of any such shares within said periods,
he or she will notify the Company in writing within ten days after such
disposition.
12. MISCELLANEOUS.
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(a) The Compensation Committee may amend, modify or terminate any
outstanding option, including substituting therefore another option of the same
or a different type, changing the date of exercise or realization, provided that
the Optionee's consent to such action shall be required unless the Compensation
Committee determines that the action, taking into account any related action,
would not materially and adversely affect the Optionee. The Compensation
Committee may at any time accelerate the time at which all or any part of an
Option may be exercised.
(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 without regard to its choice of
law provisions.
EPRESENCE, INC.
BY:
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Xxxxxxx X. Xxxxxxxxx
Title: Sr. Vice President, Chief Financial Officer
Address: 000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
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OPTIONEE'S ACCEPTANCE CERTIFICATE
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 and the Prospectus for such plan.
OPTIONEE
____________________________________
Name: ___________________________
Date: _____________________________
Address: __________________________
__________________________
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