Exhibit 10.42
CONCORD COMMUNICATIONS, INC.
_______ PLAN
RESTRICTED STOCK GRANT AGREEMENT
THIS AGREEMENT made this ___ day of _____, 200__, by and between CONCORD
COMMUNICATIONS, INC. a corporation organized under the laws of the Commonwealth
of Massachusetts (the "Company"), and the individual identified below, residing
at the address there set out (the "Grantee").
W I T N E S S E T H T H A T:
WHEREAS, Grantee's association with the Company or Related Corporation is
considered by the Company to be important for the growth of it and the Related
Corporations; and
WHEREAS, the company desires to grant to grantee shares of the company's
Common Stock (the "Common Stock") pursuant to the Company's _______ Plan (the
"Plan") according to the terms and conditions hereof;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein set forth, and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto hereby mutually covenant and agree as
follows:
1. ISSUANCE OF COMMON STOCK
1.1. The Company hereby agrees to grants to Grantee an aggregate of
______________ (____) shares of Common Stock in consideration of his or her
performance of future services and on the terms and conditions of this Agreement
and all other applicable terms and conditions of the Plan. For purposes of this
Agreement, "Acquired Shares" means all of such shares, together with any shares
of stock or other securities issued in respect of or in replacement for the
shares of Common Stock described in the preceding sentence as a result of a
corporate or other action such as a stock dividend, stock split, merger,
consolidation, reorganization, or recapitalization.
1.2. Upon receipt by the Company of a copy of this Agreement duly executed
and completed by the Grantee, the Company shall issue in the name of Grantee
duly executed certificates evidencing the Acquired Shares endorsed with the
legend set forth in Section 7.3 below. Certificates evidencing Acquired Shares
shall be held in escrow by the Company as hereinafter provided.
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2. VESTING AND FORFEITURE OF ACQUIRED SHARES
2.1. As of the date of this Agreement, all of the Acquired Shares shall be
subject to the risk of forfeiture in accordance with Section 2.2 (the Acquired
Shares, while and to the extent so subject to the risk of forfeiture pursuant to
Section 2.2, being hereafter referred to as "Restricted Shares"). Restricted
Shares shall vest and no longer be subject to the risk of forfeiture under
Section 2.2 in accordance with the provisions of Schedule A attached hereto.
Restricted Shares which have vested in accordance with the provisions of
Schedule A attached are herein referred to as "Vested Shares". Unless otherwise
expressly provided on such Schedule A, no Restricted Shares shall become Vested
Shares following the date (the Grantee's "Termination Date"), reasonably fixed
and determined by the Committee, of the voluntary or involuntary termination of
the Grantee's employment or other association with all of the Company and its
Related Corporations, for any or no reason whatsoever, including death or
disability and an entity ceasing to be a Related Corporation; provided, however,
that military or sick leave shall not be deemed a termination of employment or
other association, if it does not exceed the longer of 90 days or the period
during which the Grantee's reemployment rights, if any, are guaranteed by
statute or by contract.
2.2. As of the Grantee's Termination Date, all of the then Restricted
Shares shall be forfeited by the Grantee or any Permitted Transferee (as defined
in Section 3.1 below). As of the Grantee's Termination Date, and without
requirement of notice or other action, the Company shall become the legal and
beneficial owner of the then Restricted Shares and all rights and interests
therein or relating thereto, and the Company shall have the right to retain and
transfer to its own name such Restricted Shares for no consideration whatsoever.
3. RESTRICTION ON TRANSFER
3.1. Subject to the remaining provisions of this Section and except for
the escrow described in Section 4, none of the Restricted Shares or any
beneficial interest therein shall be sold, transferred, assigned, pledged,
encumbered or otherwise disposed of in any way at any time (including, without
limitation, by operation of law) other than (i) to the Company or its assignees
or (ii), to any other person on (but only upon) death by will, bequest or
operation of law (each, a "Permitted Transferee").
3.2. All Permitted Transferees of Restricted Shares or any interest
therein shall be required as a condition of such transfer to agree in writing,
in form satisfactory to the Company, that they shall receive and hold such
Shares or interest subject to the provisions of this Agreement, including,
without limitation, the forfeiture provisions of Section 3. Any sale, transfer,
assignment, pledge, encumbrance or other disposition of the Restricted Shares
other than in accordance with this Section shall be void. The Company shall not
be required (i) to transfer on its books any Restricted Shares sold, transferred
or otherwise disposed of in violation of this Section or (ii) to treat as owner
of any Restricted Shares, or to pay dividends in respect of Restricted Shares
to, any person purporting to have acquired Restricted Shares or any beneficial
interest therein unless such Restricted Shares or interest were acquired in
compliance with the provisions of this Section.
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4. ESCROW OF SHARES
4.1. Each Restricted Share granted pursuant to this Agreement shall be
held in escrow by the Company, as escrow holder ("Escrow Holder"), together with
a stock power executed in blank by the Grantee, until it shall either (a) be
forfeited to the Company at the Grantee's Termination Date in accordance with
Section 2.2 or (b) have become a Vested Share and the Grantee shall have
satisfied the requirements of Section 5.1 (relating to tax withholdings) with
respect to any taxable income attributable to such Share.
4.2. Upon the forfeiture of any Restricted Shares to the Company in
accordance with Section 2.2, the Company shall have the right, as Escrow Holder,
to take all steps necessary to accomplish the transfer of such Share to it,
including but not limited to presentment of certificates representing the
Restricted Shares, together with a stock power executed by or in the name of the
Grantee appropriately completed by the Escrow Holder, to the Company's transfer
agent with irrevocable instructions to register transfer of such Shares into the
name of the Company. The Grantee hereby appoints the Company, in its capacity as
Escrow Holder, as his or her irrevocable attorney-in-fact to execute in his or
her name, acknowledge and deliver all stock powers and other instruments as may
be necessary or desirable with respect to the Shares.
4.3. When any portion of the Restricted Shares have become Vested Shares,
upon Grantee's request the Company, as Escrow Holder, shall promptly cause a new
certificate to be issued for such Shares and shall deliver such certificate to
Grantee subject, however, to the Grantee's satisfaction of the requirements of
Section 5.1 (relating to tax withholdings).
4.4. Subject to the terms hereof, Grantee shall have all the rights of a
stockholder with respect to the Acquired Shares while they are held in escrow,
including without limitation, the right to receive any dividends declared
thereon. If, from time to time during the term of the escrow, there occurs any
corporate or other action giving rise to substituted or additional securities by
reason of ownership of the Shares such substituted or additional securities,
with the legend required by Section 7.3 if applicable, shall be immediately
subject to this escrow and deposited with the Escrow Holder.
5. TAX CONSEQUENCES
5.1. It is understood by the Company and Grantee that the issuance of the
Acquired Shares hereunder may be deemed compensatory in purpose and in effect
and that as a result the Company or a Related Corporation may be obligated to
pay withholding taxes in respect of such Acquired Shares at the time Grantee
becomes subject to income taxation as a result of the receipt or vesting of the
Acquired Shares hereunder. In the event that at the time the above-said
withholding tax obligations arise (i) Grantee is no longer in the employ of the
Company or a Related Corporation or (ii) Grantee's other cash compensation from
the Company and its Related Corporations is not sufficient to meet the aforesaid
withholding tax obligation, Grantee hereby agrees to provide the Company or its
Related Corporation with an amount sufficient to pay all withholding taxes
required to be paid as and when such taxes become payable (which amount in the
sole discretion of the Company and subject to any
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applicable requirements of the Plan, may be provided in the form of shares of
Common Stock, including Vested Shares then held by the Escrow Holder). Grantee
agrees to pay such amount on or before the later of the date the withholding tax
obligation arises, or the Company's next subsequent payroll date. Grantee agrees
that in the event and to the extent the Company and its Related Corporations
determine that they are not obligated to withhold taxes payable by Grantee with
respect to Acquired Shares but the Company or a Related Corporation is later
held liable due to any non-payment of taxes on the part of Grantee, the Grantee
shall indemnify and hold the Company and its Related Corporations harmless from
the amount of any payment made by them in respect of such liability.
5.2. Grantee hereby agrees to deliver to the Company (and his or her
employing Related Corporation, if applicable) a signed copy of any instrument,
letter or other document he or she may execute and file with the Internal
Revenue Service evidencing his or her election under Section 83(b)(2) of the
Internal Revenue Code of 1986, as amended, to treat his or her receipt of the
Acquired Shares as includible in his or her gross income in the year of receipt.
Grantee shall deliver said copy of any such instrument of election within five
(5) days after the date on which any such election is required to be made in
accordance with the appropriate provisions of the Internal Revenue Code or
applicable Regulations thereunder.
6. COMPLIANCE WITH LAW
6.1. Grantee represents and warrants, and each Permitted Transferee shall,
as a condition of transfer, represent and warrant, that he or she is acquiring
the Acquired Shares of his or her own account for the purpose of investment and
not with a view to, or for sale in connection with, the distribution of any such
Acquired Shares.
6.2. Grantee acknowledges and agrees, and each Permitted Transferee shall,
as a condition of transfer, acknowledge and agree, that neither the Company nor
any agent of the Company shall be under any obligation to recognize any transfer
of any of the Acquired Shares if, in the opinion of counsel for the Company,
such transfer would result in violation by the Company of any federal or state
law with respect to the offering, issuance or sale of securities.
7. GENERAL PROVISIONS
7.1. This Agreement shall be governed and enforced in accordance with the
terms of the Plan and the laws of the Commonwealth of Massachusetts, without
regard to the conflict of laws principles thereof, and shall be binding upon the
heirs, personal representatives, executors, administrators, successors and
assigns of the parties.
7.2. This Agreement and the applicable terms of the Plan embody the
complete agreement and understanding among the parties hereto with respect to
the subject matter hereof and thereof, supersedes and preempts any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject
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matter hereof in any way and may only be modified or amended in writing signed
by the Company and the Grantee.
7.3. The certificates representing the Restricted Shares shall be endorsed
with the following legend:
The transferability of this certificate and the shares represented by this
certificate are subject to the terms and conditions (including, without
limitation, the potential forfeiture of the same) of the _______ Plan and
a Restricted Stock Grant Agreement entered into by the registered owner
and Concord Communications, Inc. Copies of such Plan and Agreement are on
file in the offices of Concord Communications, Inc.
7.4. The rights and obligations of each party under this Agreement shall
inure to the benefit of and be binding upon such party's heirs, legal
representatives, successors and permitted assigns. The rights and obligations of
the Company under this Agreement shall be assignable by the Company to any one
or more persons or entities without the consent of the Grantee or any other
person. The rights and obligations of any person other than the Company under
this Agreement may only be assigned with the prior written consent of the
Company.
7.5. No consent to or waiver of any breach or default in the performance
of any obligations hereunder shall be deemed or construed to be a consent to or
waiver of any other breach or default in the performance of any of the same or
any other obligations hereunder. Failure on the part of any party to complain of
any act or failure to act of any other party or to declare any party in default,
irrespective of the duration of such failure, shall not constitute a waiver of
rights hereunder and no waiver hereunder shall be effective unless it is in
writing, executed by the party waiving the breach or default hereunder.
7.6. If any provision of this Agreement shall be held illegal, invalid or
unenforceable, such illegality, invalidity or unenforceability shall attach only
to such provision and shall not in any manner affect or render illegal, invalid
or unenforceable any other severable provisions of this Agreement.
7.7. The headings in this Agreement are for convenience of identification
only, do not constitute a part hereof, and shall not affect the meaning or
construction hereof.
7.8. Grantee agrees upon request to execute any further documents or
instruments necessary or desirable to carry out the purposes or intent of this
Agreement.
7.9. Any dispute, controversy, or claim arising out of, or in connection
with, or relating to the performance of this Agreement or its termination, shall
be settled by arbitration in the Commonwealth of Massachusetts, pursuant to the
rules then in effect of the American Arbitration Association. Any award shall be
final, binding and conclusive upon the parties and a judgment rendered thereon
may be entered in any court having jurisdiction thereof.
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7.10. Nothing contained in this Agreement shall confer upon the Grantee
any right with respect to the continuation of his or her employment or other
association with the Company or any Related Corporation, or interfere in any way
with the right of the Company and its Related Corporations, subject to the terms
of Grantee's separate employment or consulting agreement, if any, or provision
of law or corporate articles or by-laws to the contrary, at any time to
terminate such employment or consulting agreement or otherwise modify the terms
and conditions of Grantee's employment or association with the Company or a
Related Corporation.
7.11. This Agreement may be executed in one or more counterparts, each of
which when executed shall be deemed an original and all of which, taken
together, shall constitute one and the same instrument. In making proof of this
Agreement it shall not be necessary to produce or account for more than one such
counterpart.
7.12. All capitalized terms used but not defined herein shall have the
respective meaning given such terms in the Plan.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties have duly executed this Agreement under
seal as of the month, day and year first set forth above.
CONCORD COMMUNICATIONS, INC. GRANTEE
By:
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Title: Grantee's Name & Address:
-------------------------
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(Number of Acquired Shares)
This Schedule A provides for the vesting of the Acquired Shares granted
the Grantee in the Restricted Stock Purchase Agreement (the "Agreement") to
which it is attached. Capitalized terms not defined herein shall have the same
meaning as such terms are assigned under the Agreement.
1. Release Based on Continued Employment. At each anniversary of the date
of the Agreement, that percentage of the Acquired Shares set forth opposite such
anniversary shall be released from the Company's Repurchase Right and become
Vested Shares, with any fractions rounded down except on the final installment.
________ Stock Plan
Anniversary Percentage