Exhibit 10.6.E
AMENDMENT NO. 5
TO EMPLOYMENT AGREEMENT
This Amendment No. 5 (this "Amendment") to Employment Agreement (the
"Employment Agreement") made as of the 4th day of February 1997, between
ePresence, Inc. (formerly Banyan Systems Incorporated), a Massachusetts
corporation (the "Company"), and Xxxxxxx X. Xxxxx (the "Employee"), is effective
as of the 15th day of October 2001 unless otherwise provided. Capitalized terms
used and not otherwise defined herein shall have the respective meanings
ascribed to them in the Agreement.
I. The parties hereto agree that the Employment Agreement as previously
amended on June 13, 1997, October 16, 1998, December 8, 1999 and November
16, 2000 is hereby defined as the "Agreement" and is further amended as
follows:
(i) Section 3.4 of the Agreement shall be deleted in its entirety and the
following shall be inserted in lieu thereof:
"3.4 Loans.
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(a) The principal amount of any outstanding loans to the Employee from
the Company made for the purpose of satisfying the Employee's federal,
state and local income tax obligations with respect to the exercise of
stock options plus accrued interest thereon, shall be consolidated
into one loan (the "Stock Option Consolidated Loan"). The Stock Option
Consolidated Loan, and any future loans to the Employee by the Company
for the purpose stated above in this Subsection (a), shall bear simple
interest at the applicable federal rate and shall be due and payable
90 days after the Employee's termination date, unless the Employee is
terminated pursuant to a Change in Control (as defined in Subsection
(a) of Section 8 of the Agreement), in which case such loans shall be
due and payable in full 180 days after the Employee's termination
date.
(b) The principal amount of any outstanding loans to the Employee from
the Company made for the purpose of satisfying the Employee's federal,
state and local income tax obligations with respect to the issuance or
vesting of restricted shares plus accrued interest thereon, shall be
consolidated into one loan (the "Restricted Stock Consolidated Loan")
as of July 26, 2001. The Restricted Stock Consolidated Loan, and any
future loans to the Employee by the Company for the purpose stated
above in this Subsection (b) (a "Future Loan"), shall bear simple
interest at the applicable federal rate and shall be due and payable
90 days after the termination of the Employee's employment with the
Company, subject to the forgiveness and change in control provisions
set forth below in Subsections (c) and (d), respectively, of this
Section 3.4.
(c) Subject to the Employee being employed by the Company on an
applicable anniversary date July 26, beginning with (i) July 26, 2002
with respect to the Restricted Stock Consolidated Loan; and (ii) the
date that is 12 months from the making of any Future Loan, 20% of the
Restricted Stock Consolidated
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Loan and 20% of any Future Loan, as the case may be, plus accrued
interest on each such loan as of such date, shall be forgiven by the
Company.
(d) If a Change in Control occurs during the term of the Agreement,
the aggregate outstanding principal amount of the Restricted Stock
Consolidated Loan and any Future Loan, plus accrued interest on each
such loan as of the date of the Change in Control, shall be forgiven.
(e) That with respect to any amounts forgiven on an anniversary date
pursuant to Subsection (c) of this Section 3.4 or as a result of a
Change in Control pursuant to Subsection (d) of this Section 3.4, as
the case may be, an additional amount to satisfy federal, state and
local income taxes on such debt forgiveness income to the Employee
shall be included and paid by the Company on behalf of the Employee to
the applicable taxing authority with the next regularly scheduled
bi-weekly payroll following such event. For purposes of determining
this amount, the Employee shall be deemed to pay federal income taxes
at the highest marginal rate of federal income taxation in the
calendar year in which this payment is to be made and state and local
income taxes at the highest marginal rate of taxation in the state and
locality of the Employee's residence in such year."
(ii) Subsection (a)(3) of Section 8 of the Agreement, relating to Change in
Control events, shall be amended as follows:
By deleting the text "; or (c) 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 of the
Company's assets" from such Subsection.
(iii) A new Subsection (a)(4) shall be added to Section 8 of the Agreement,
relating to Change in Control events, as follows:
"(4) 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."
(iv) Subsection (b)(iv) of Section 8 of the Agreement, as added pursuant to
Amendment No. 4 to the Agreement dated November 16, 2000, shall be
amended by inserting the words "and Excise Tax" into such Subsection
after the words "...federal, state and local income taxes" and before
the words "on the Gross-Up Payment...".
II. The parties hereto acknowledge that on October 15, 2001, the Compensation
Committee authorized the Company to grant to the Employee an option to
purchase 350,000 shares of the Company's Common Stock at a per share
exercise price of $2.87, and that the option shall vest and become
exercisable on the first day of each month over 19 consecutive months,
commencing on June 1, 2002, at the rate of 18,750 shares per month
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for months 1 through 18 inclusive and with a final vest of 12,500 shares on
December 1, 2003.
III. To the extent any provision of this Amendment is inconsistent with any
provision of the Agreement and/or prior amendments, such provision is
hereby modified and superseded by the terms hereof. Any term of the
Agreement not so modified or superseded shall remain in full force and
effect. For the avoidance of doubt, and without limiting the generality of
the foregoing, Section I(i) of this Amendment supersedes in its entirety
Section 1(c) of Amendment No. 4 to the Agreement.
EXECUTED as of the date first set forth above.
COMPANY:
ePRESENCE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
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