Exhibit 10.5
MTM TECHNOLOGIES, INC.
2004 EQUITY INCENTIVE PLAN
Restricted Stock Unit Award Agreement
MTM Technologies, Inc., a New York corporation formerly known as
Micros-to-Mainframes, Inc. (the "Company"), pursuant to Section 4.1(f) of the
Micros-to-Mainframes, Inc. 2004 Equity Incentive Plan (the "Plan"), has granted
to Xxxxxx Xxxxxxxx (the "Grantee") a total of 40,000 restricted stock units (the
"Units") with respect to a total of 40,000 shares (the "Shares") of the common
stock, par value $.001 per share (the "Common Stock"), of the Company, on the
terms and conditions set forth herein and, in all respects, subject to the terms
and conditions of the Plan. The date of grant of the Units is November 2, 2004
(the "Date of Grant").
Unless otherwise defined herein, capitalized terms defined in the Plan
shall have the same defined meanings herein.
1. UNITS.
The Units represent the Grantee's right to receive the Shares on the
vesting date of the Units, subject to Xxxxxxx's earlier forfeiture of the Units
as provided herein or under the Plan.
2. ANTI-DILUTION PROVISIONS.
(a) If there is any stock dividend, stock split, or combination of shares
of Common Stock, the number and amount of Shares then subject to the Units and
the Acceleration Price (as defined herein) shall be proportionately and
appropriately adjusted as determined by the Committee, whose determination shall
be final, conclusive and binding upon Grantee and the Company.
(b) If there is any other change in the Common Stock, including a
recapitalization, reorganization, sale or exchange of assets, exchange of
shares, offering of subscription rights, or a merger or consolidation, whether
or not the Company is the surviving corporation, an adjustment, if any, shall be
made in the number and kind of shares that may be subject to the Units as the
Board or Committee may deem equitable, and whose determination shall be final,
conclusive and binding upon Grantee and the Company. Failure of the Board or the
Committee to provide for an adjustment pursuant to this Section 2(b) prior to
the effective date of any Company action referred to herein shall be conclusive
evidence that no adjustment is required in consequence of such action.
3. NON-TRANSFERABILITY.
The Units shall not be transferable by Grantee other than by will or
by the laws of descent or distribution. The terms of this agreement shall be
binding upon Xxxxxxx's executors, administrators, heirs, successors and assigns.
4. CERTAIN RIGHTS NOT CONFERRED BY UNITS.
Grantee shall not, by virtue of holding the Units, be entitled to any
rights of a shareholder of the Company, including the right to vote and to
receive dividends and other distributions with respect to the Shares subject to
the Units, until delivery to Grantee of certificates representing the Shares in
satisfaction of the Units.
5. EXPENSES.
The Company shall pay all original issue and transfer taxes with
respect to the issuance of the Shares pursuant hereto and all other fees and
expenses necessarily incurred by the Company in connection therewith.
6. VESTING OF UNITS.
(a) Subject to Section 6(b) and 6(c), the Units shall vest in full upon the
first to occur of (i) the fifth anniversary of the Date of Grant, or (ii) the
end of the first sixty (60) day trading period ending on or after the Date of
Grant during which the Fair Market Value of the Common Stock is $10 per share
(the "Acceleration Price") or greater on any thirty consecutive or
nonconsecutive trading days, provided that vesting under this (ii) shall not
occur prior to the first anniversary date of the Date of Xxxxx.
(b) Notwithstanding the vesting schedule set forth in paragraph (a) of this
Section 6, the Units shall vest in the event of either (i) the termination of
Grantee's employment by the Company for any reason other than termination by the
Company for "cause" or (ii) termination of Grantee's employment by Grantee for
"good reason," as such terms are defined in the Employment Agreement, dated
October 1, 2004 (the "Employment Agreement"), between the Company and Grantee,
as in effect on the Date of Grant without giving effect to any termination,
amendment or modification of the Employment Agreement after the Date of Grant
that may affect the definitions of "cause" and/or "good reason" contained in the
Employment Agreement.
(c) In the event of (x) Xxxxxxx's termination for "cause" (as defined in
the Employment Agreement as in effect on the Date of Grant without giving effect
to any termination, amendment or modification of the Employment Agreement after
the Date of Grant that may affect the definition of "cause" contained in the
Employment Agreement), (y) Grantee's voluntary termination of Grantee's
employment other than for "good reason" (as defined in the Employment Agreement
as in effect on the Date of Grant without giving effect to any termination,
amendment or modification of the Employment Agreement after the Date of Grant
that may affect the definition of "good reason" contained in the Employment
Agreement) or (z) Grantee's death or Disability, in each such case, Grantee
shall forfeit the Units upon termination or death or Disability, as the case may
be, if such event occurred prior to vesting of the Units.
7. DELIVERY OF SHARES.
(a) Upon vesting of the Units pursuant to Section 6(a) and subject to
Section 7(b), the Company shall register the Shares subject to the Units in the
name of Grantee and shall deliver certificates for such Shares, free of all
restrictions, except any restrictions that may be imposed by law, to Grantee;
provided that subject to applicable law, including without limitation Section
409A of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder, Grantee may elect to defer the receipt of the Shares pursuant to
procedures established by the Company; provided that such Grantee deferral
election will not result in adverse federal income tax consequences to the
Company.
(b) The Company shall deliver no Shares pursuant to Section 7(a) until all
laws, rules and regulations which the Committee may deem applicable have been
complied with.
(c) Grantee shall not be considered a record holder of the Shares for any
purpose until the date on which Xxxxxxx is actually recorded as the holder of
such Shares in the records of the Company.
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8. ACCEPTANCE OF THE TERMS AND CONDITIONS OF THE PLAN.
The acceptance by Grantee of this Restricted Stock Unit Award
Agreement and the Units shall constitute the acceptance of and agreement to all
of the terms and conditions contained herein and in the Plan.
9. CONTINUED EMPLOYMENT.
Nothing herein shall be deemed to create any employment or guaranty of
continued employment or limit in any way the Company's right to terminate
Xxxxxxx's employment at any time.
10. APPLICABLE LAW.
The validity, construction, interpretation, administration and effect
of this Restricted Stock Unit Award Agreement, and of the rules, regulations and
rights under the Plan relating to this agreement, shall be governed by the
substantive laws, but not the choice of law rules, of the State of New York.
MTM TECHNOLOGIES, INC.
/s/ Xxxxxxx X. Xxxxxx
By:______________________________
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
XXXXXXX ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS RESTRICTED STOCK
UNIT AWARD AGREEMENT, NOR IN THE PLAN WHICH IS INCORPORATED HEREIN BY REFERENCE,
SHALL CONFER UPON GRANTEE ANY RIGHT WITH RESPECT TO CONTINUATION OF EMPLOYMENT
BY THE COMPANY, NOR SHALL IT INTERFERE IN ANY WAY WITH XXXXXXX'S RIGHT OR THE
COMPANY'S RIGHT TO TERMINATE EMPLOYMENT AT ANY TIME, WITH OR WITHOUT CAUSE.
Xxxxxxx acknowledges receipt of a copy of the Plan and certain
information related thereto and represents that Grantee is familiar with the
terms and provisions thereof, and hereby accepts the Units subject to all of the
terms and provisions thereof. Xxxxxxx has reviewed the Plan and this agreement
in their entirety, has had an opportunity to obtain the advice of counsel prior
to executing this agreement and fully understands all of the terms and
provisions of the Units and this agreement. Grantee hereby agrees to accept as
binding, conclusive and final all decisions or interpretations of the Committee
upon any questions arising under the Plan. Xxxxxxx further agrees to notify the
Company upon any change in the residence address indicated below.
Accepted and agreed by Xxxxxxx as of the Date of Xxxxx:
/s/ Xxxxxx Xxxxxxxx
By: _______________________________
Name: Xxxxxx Xxxxxxxx
Address: _______________________________
_______________________________
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