Exhibit 10.34




 




CONSONUS TECHNOLOGIES, INC.




 




RESTRICTED
STOCK AGREEMENT




 




FOR




 




ROBERT
McCARTHY




 




1.                                      Award
of Restricted Stock. The Committee hereby grants, as of May 12, 2008 (the “Date of Grant”), to Robert McCarthy (“Recipient”), 44,620 restricted shares
of the Company’s Common Stock, par value $.0000015 per share (collectively the “Restricted Stock”). The Restricted
Stock shall be subject to the terms, provisions and restrictions set forth in
this Agreement and the Company’s 2007 Incentive Compensation Plan, as may be
amended from time to time (the “Plan”), which is incorporated herein for all
purposes. As a condition to entering into this Agreement, and as a condition to
the issuance of any Shares (or any other securities of the Company), the
Recipient agrees to be bound by all of the terms and conditions herein and in
the Plan. Unless otherwise provided herein, terms used herein that are defined
in the Plan and not defined herein shall have the meanings attributable thereto
in the Plan. 




 




2.                                      Vesting
of Restricted Stock.




 




(a)                                  Except
as otherwise provided in Sections 2(b), 2(c) and 4 hereof, the shares of
Restricted Stock shall become vested in the following amounts, at the following
times and upon the following conditions, provided that the Continuous Service
of the Recipient continues through and on the applicable Vesting Date and that
the following conditions are met:




 




	
  Number
  of Shares

  of Deferred Stock

  	
   

  	
  Vesting Date

  
	
  7,437

  	
   

  	
  March 31, 2009, so long as the performance goals set by the
  Committee for July through December 2008 are met.

  
	
  14,873

  	
   

  	
  March 31, 2010, so long as the performance goals set by the
  Committee for the 2009 calendar year are met.

  
	
  14,873

  	
   

  	
  March 31, 2011 so long as the performance goals set by the
  Committee for the 2010 calendar year are met.

  
	
  7,437

  	
   

  	
  September 30, 2011 so long as the
  performance goals set by the Committee for January 1, 2011 through
  June 30, 2011 are met.

  





 

















 




The written performance goals will be
provided to Recipient no later than February 28 of the applicable calendar
year; provided, however, that for 2008 goals, such goals will be provided to
Recipient on or before the first day of employment. There may be proportionate
or partial vesting of the Restricted Shares on the applicable Vesting Date
based on the number of performance goals met and the percentage of each goal
attained. The criteria for proportionate or partial vesting and complete
vesting will be set forth in the performance goals. There shall be no
proportionate or partial vesting of shares of Restricted Stock in or during the
months, days or periods prior to each Vesting Date, and all vesting of shares
of Restricted Stock shall occur only on the applicable Vesting Date.




 




(b)                                 Notwithstanding
any other term or provision of this Agreement, in the event that the Recipient’s
Continuous Service is terminated by the Company without Cause as defined in the
Recipient’s Employment Agreement, dated as of
        , 2008 (the “Employment Agreement”), the shares of Restricted Stock
subject to this Agreement shall become immediately vested as of the date of the
termination of the Recipient’s Continuous Service.




 




(c)                                  Notwithstanding
any other term or provision of this Agreement, in the event that, following a
Change of Control Event (as defined below), which includes a material diminution
in the role of Knox Lawrence International, LLC and its ability to designate
certain members of the Board of Directors of the Company, Recipient’s position
with the Company is materially diminished or eliminated other than with Cause,
the shares of Restricted Stock subject to this Agreement shall become
immediately vested as of the date of Recipient’s diminution in position or
termination.




 




(d)                                 Notwithstanding
any other term or provision of this Agreement, the Board or the Committee shall
be authorized, in its sole discretion, based upon its review and evaluation of
the performance of the Recipient and of the Company, to accelerate the vesting
of any shares of Restricted Stock under this Agreement, at such times and upon
such terms and conditions as the Board or the Committee shall deem advisable.




 




(e)                                  For
purposes of this Agreement, the following terms shall have the meanings
indicated:




 




(i)                                   “Change of
Control Event” shall mean any of the following events:




 




(A)                                                                                   After
the effective date of this Agreement, any person or entity, directly or
indirectly, acquires beneficial ownership of voting stock, or acquires
irrevocable proxies or any combination of voting stock and irrevocable proxies,
representing over fifty percent (50%) of the voting securities of the Company;
provided, however, that an initial public offering, transaction with a special
purpose acquisition corporation or similar transaction will not be deemed a
Change of Control Event;




 




(B)                                                                                     The
Company consolidates or merges with or into another corporation, limited
liability company, partnership,




 


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association,
or entity, or is otherwise reorganized, where the Company is not the surviving
corporation in such transaction; or




 




(C)                                                                                     All
or substantially all of the assets of the Company are sold or otherwise
transferred to or are acquired by any other corporation, limited liability
company, partnership, association, or other person, entity, or group.




 




(ii)                             “Non-Vested
Shares” means any portion of the Restricted Stock subject to
this Agreement that has not become vested pursuant to this Section 2.




 




(iii)                          “Vested
Shares” means any portion of the Restricted Stock subject to
this Agreement that is and has become vested pursuant to this Section 2.




 




3.                                      Delivery
of Restricted Stock.




 




(a)                                  One
or more stock certificates evidencing the Restricted Stock shall be issued in
the name of the Recipient but shall be held and retained by the Records
Administrator of the Company until the date (the “Applicable Date”) on which the shares (or a portion
thereof) subject to this Restricted Stock award become Vested Shares pursuant
to Section 2 hereof, subject to the provisions of Section 4 hereof.
All such stock certificates shall bear the following legends, along with such other
legends that the Board or the Committee shall deem necessary and appropriate or
which are otherwise required or indicated pursuant to any applicable
stockholders agreement:




 




THE SECURITIES
REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
(THE “ACT”) OR STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED
UNDER THE ACT OR STATE SECURITIES LAWS OR, IN THE OPINION OF COUNSEL IN
FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH
OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.




 




THE SHARES
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO SUBSTANTIAL VESTING AND OTHER
RESTRICTIONS AS SET FORTH IN THE RESTRICTED STOCK AGREEMENT BETWEEN THE ISSUER
AND THE ORIGINAL HOLDER OF THE SHARES, A COPY OF WHICH MAY BE OBTAINED AT
THE PRINCIPAL OFFICE OF THE ISSUER. SUCH RESTRICTIONS ARE BINDING ON
TRANSFEREES OF THESE SHARES, AND INCLUDE VESTING CONDITIONS WHICH MAY RESULT
IN THE COMPLETE FORFEITURE OF THE SHARES.




 




(b)                                 The
Recipient shall deposit with the Company stock powers or other instruments of
transfer or assignment, duly endorsed in blank with
signature(s) guaranteed, corresponding to




 


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each certificate representing shares of
Restricted Stock until such shares become Vested Shares. If the Recipient shall
fail to provide the Company with any such stock power or other instrument of
transfer or assignment, the Recipient hereby irrevocably appoints the Secretary
of the Company as his attorney-in-fact, with full power of appointment and
substitution, to execute and deliver any such power or other instrument which
may be necessary to effectuate the transfer of the Restricted Stock (or
assignment of distributions thereon) on the books and records of the Company.




 




(c)                                  On
or after each Applicable Date, upon written request to the Company by the Recipient,
the Company shall promptly cause a new certificate or certificates to be issued
for and with respect to all shares that become Vested Shares on that Applicable
Date, which certificate(s) shall be delivered to the Recipient as soon as
administratively practicable after the date of receipt by the Company of the
Recipient’s written request. The new certificate or certificates shall continue
to bear those legends and endorsements that the Company shall deem necessary or
appropriate (including those relating to restrictions on transferability and/or
obligations and restrictions under the Securities Laws and/or the Stockholders
Agreement (if any)).




 




4.                                      Forfeiture
of Non-Vested Shares. If the
Recipient’s Continuous Service with the Company and the Related Entities is
terminated for any reason, any Shares of Restricted Stock that are not Vested
Shares, and that do not become Vested Shares pursuant to Section 2 hereof
as a result of such termination, shall be forfeited immediately upon such
termination of Continuous Service and revert back to the Company without any
payment to the Recipient. The Committee shall have the power and authority to
enforce on behalf of the Company any rights of the Company under this Agreement
in the event of the Recipient’s forfeiture of Non-Vested Shares pursuant to
this Section 4.




 




5.                                      Rights
with Respect to Restricted Stock.




 




(a)                                  Except
as otherwise provided in this Agreement, the Recipient shall have, with respect
to all of the shares of Restricted Stock, whether Vested Shares or Non-Vested
Shares, all of the rights of a holder of shares of common stock of the Company,
including without limitation (i) the right to vote such Restricted Stock,
(ii) the right to receive dividends, if any, as may be declared on the
Restricted Stock from time to time, and (iii) the rights available to all
holders of shares of common stock of the Company upon any merger,
consolidation, reorganization, liquidation or dissolution, stock split-up,
stock dividend or recapitalization undertaken by the Company; provided,
however, that all of such rights shall be subject to the terms, provisions,
conditions and restrictions set forth in this Agreement (including without
limitation conditions under which all such rights shall be forfeited). Any
Shares issued to the Recipient as a dividend with respect to shares of
Restricted Stock shall have the same status and bear the same legend as the
shares of Restricted Stock and shall be held by the Company, if the shares of
Restricted Stock that such dividend is attributed to is being so held, unless
otherwise determined by the Committee. In addition, notwithstanding any
provision to the contrary herein, any cash dividends declared with respect to
shares of Restricted Stock subject to this Agreement shall be held in escrow by
the Committee until such time as the shares of Restricted Stock that such cash dividends
are attributed to shall become Vested Shares, and in the event that such shares
of




 


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Restricted Stock are subsequently forfeited,
the cash dividends attributable to such portion shall be forfeited as well.




 




(b)                                 If
at any time while this Agreement is in effect (or shares granted hereunder
shall be or remain unvested while Recipient’s Continuous Service continues and
has not yet terminated or ceased for any reason), there shall be any increase
or decrease in the number of issued and outstanding Shares of the Company
through the declaration of a stock dividend or through any recapitalization
resulting in a stock split-up, combination or exchange of such Shares, then and
in that event, the Board or the Committee shall make any adjustments it deems
fair and appropriate, in view of such change, in the number of shares of
Restricted Stock then subject to this Agreement. If any such adjustment shall
result in a fractional share, such fraction shall be disregarded.




 




(c)                                  Notwithstanding
any term or provision of this Agreement to the contrary, the existence of this
Agreement, or of any outstanding Restricted Stock awarded hereunder, shall not
affect in any manner the right, power or authority of the Company to make,
authorize or consummate: (i) any or all adjustments, recapitalizations,
reorganizations or other changes in the Company’s capital structure or its
business; (ii) any merger, consolidation or similar transaction by or of
the Company; (iii) any offer, issue or sale by the Company of any capital
stock of the Company, including any equity or debt securities, or preferred or
preference stock that would rank prior to or on parity with the Restricted
Stock and/or that would include, have or possess other rights, benefits and/or
preferences superior to those that the Restricted Stock includes, has or
possesses, or any warrants, options or rights with respect to any of the
foregoing; (iv) the dissolution or liquidation of the Company;
(v) any sale, transfer or assignment of all or any part of the stock,
assets or business of the Company; or (vi) any other corporate
transaction, act or proceeding (whether of a similar character or otherwise).




 




6.                                      Restrictions
While Restricted Stock is Not Registered. The Restricted Stock
specified in Section 1 and (a) all shares of the Company’s capital
stock received as a dividend or other distribution upon such Restricted Stock,
and (b) all shares of capital stock or other securities of the Company
into which such Restricted Stock may be changed or for which such shares shall
be exchanged, whether through reorganization, recapitalization, stock split-ups
or the like, shall be subject to the provisions of this Section 6 only at
those times that the Shares are not registered under the Securities Exchange
Act of 1934, as amended (such times during which the shares are not so
registered hereinafter being referred to as the “Restricted Period”).




 




(a)                                  No Sale or Pledge of Restricted Stock. Except as otherwise provided herein,
Recipient agrees and covenants that during the Restricted Period he or she
shall not sell, pledge, encumber or otherwise transfer or dispose of, and shall
not permit to be sold, encumbered, attached or otherwise disposed of or
transferred in any manner, either voluntarily or by operation of law (all
hereinafter collectively referred to as “transfers”), all or any portion of the
Restricted Shares or any interest therein except for the Vested Shares which
may be transferred in accordance with and subject to the terms of this
Section 6.




 




(b)                                 Voluntary Transfer Repurchase Option. If Recipient desires to effect a
voluntary transfer of any of the Vested Shares during the Restricted Period,
Recipient shall first give written notice to the Company of such intent to
transfer (the “Offer
Notice”)  specifying
(i) the




 


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number of the Vested Shares (the “Offered Shares”)  and the date of the proposed
transfer (which shall not be less than thirty (30) days after the giving of the
Offer Notice), (ii) the name, address, and principal business of the
proposed transferee (the “Transferee”),  and (iii) the
price and other terms and conditions of the proposed transfer of the Offered
Shares to the Transferee. The Offer Notice by Recipient shall constitute an
offer to sell all, but not less than all, of the Offered Shares, at the price
and on the terms specified in such Offer Notice, to the Company and/or its
designated purchaser. If the Company desires to accept Recipient’s offer to
sell, either for itself or on behalf of its designated purchaser, the Company
shall signify such acceptance by written notice to Recipient within thirty (30)
days following the giving of the Option Notice. Failing such acceptance,
Recipient’s offer shall lapse on the thirty-first day following the giving of
the Option Notice. With such written acceptance, the Company shall designate a
day not later than the later of (i) twenty (20) days following the date of
giving its notice of acceptance, or (ii) the closing date in the Offer
Notice, on which the Company or its designated purchaser shall deliver the
purchase price of the Offered Shares (in the same form as provided in the Offer
Notice) and Recipient shall deliver to the Company or its designated Purchaser,
as applicable, all certificates evidencing the Offered Shares endorsed in blank
for transfer or with separate stock powers endorsed in blank for transfer. The
Company may in its sole and absolute discretion, notify the Recipient within
thirty-one days following the giving of the Option Notice that it does not
permit the transfer of the Offered Shares to the Transferee pursuant to the
terms and conditions set forth in the Option Notice in which event any such
transfer or attempted transfer by the Recipient to the Transferee shall be null
and void. Upon the lapse without acceptance by the Company of Recipient’s offer
to sell the Offered Shares, and unless the Company shall provide written notice
to the Recipient within thirty-one days following the giving of the Option Notice
that it will not permit the transfer of the Offered Shares to the Transferee
pursuant to the terms and conditions set forth in the Option Notice, Recipient
shall be free to transfer the Offered Shares not purchased by the Company or
the designated purchaser to the Transferee (and no one else), for a price and
on terms and conditions which are no more favorable to the Transferee than
those set forth in the Offer Notice, for a period of thirty days thereafter,
but after such period the restrictions of this Section 6 shall again apply
to the Vested Shares. The Offered Shares so transferred by Recipient to the
Transferee shall continue to be subject to all of the terms and conditions of
this Section 6 and the Company shall have the right to require, as a condition
of such transfer, than the Transferee execute an agreement substantially in the
form and content of the provisions of this Section 6, as well as any
voting agreement and/or shareholders agreement required by the Company.




 




(c)                                  Involuntary Transfer Repurchase Option. Whenever, during the Restricted Period,
Recipient has any notice or knowledge of any attempted, pending, or consummated
involuntary transfer or lien or charge upon any of the Vested Shares, whether
by operation of law or otherwise, Recipient shall give immediate written notice
thereof to the Company. Whenever the Company has any other notice or knowledge
of any such attempted, impending, or consummated involuntary transfer, lien, or
charge, it shall give written notice thereof to the Recipient. In either case,
Recipient agrees to disclose forthwith to the Company all pertinent information
in his possession relating thereto. If during the Restricted Period any of the
Vested Shares are subjected to any such involuntary transfer, lien, or charge,
the Company and its designated purchaser shall at all times have the immediate
and continuing option to purchase such of the Vested Shares upon notice by the
Company to Recipient or other record holder at a




 


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price and on terms determined according to
Section 6(e) below, and any of the Vested Shares so purchased by the
Company or its designated purchaser shall in every case be free and clear of
such transfer, lien, or charge.




 




(d)                                 Excepted Transfers. The provisions of Sections
6(a) and (b) shall not apply to a voluntary assignment, bequest or
testamentary transfer, in trust or otherwise, by the Recipient (or upon the
Recipient’s death, a subsequent transfer incident to such death pursuant to a will
or a trust, or occurring by operation of law, effected by the heirs, personal
representatives, or trustees of the Recipient having authority to transfer the
Vested Shares in question), which is (i) to or for the benefit of any
member of the Recipient’s immediate family, specifically the Recipient’s
spouse, parents and grandparents, children and their direct descendants,
brothers and sisters, nieces, nephews and their direct descendants and the
spouses of any of them; (ii) to a corporation, partnership, limited liability
company or other business entity, at least fifty-one percent (51%) of each
class of the voting stock or other voting interests of which is owned by the
Recipient and/or one or more of the individuals described in clause
(i) above; or (iii) to a trust, the beneficiaries of which are any of
the individuals or entities described in clauses (i) or (ii) above.
In the event that the Recipient transfers any Vested Shares pursuant to this
Section 6(d), the Recipient shall continue to be subject to all of the terms
and provisions of this Section 6 with respect to any remaining present or
future interest whatsoever he may have in the transferred Vested Shares, and,
further provided that any Vested Shares transferred pursuant to this subsection
(d) shall continue to be subject to the restrictions contained in this
Section 6 and the transferee of any such Vested Shares shall likewise be
subject to all such terms and conditions of this Section 6 as though such
transferee were a party hereto.




 




(e)                                  Repurchase Price. For purposes of
Section 6(c) hereof, the per share purchase price of Vested Shares
shall be an amount equal to the fair market value of such share, determined by
the Board of Directors of the Company as of any date determined by the Board of
Directors that is not more than one year prior to the date of the event giving
rise to the Company’s right to purchase such Vested Shares. Any determination
of fair market value made by the Board of Directors of the Company shall be
binding and conclusive on all parties unless shown to have been made in an
arbitrary and capricious manner. The purchase price shall, at the option of the
Company, be payable in cash or in the form of the Company’s promissory note
payable in up to three equal annual installments commencing 12 months after the
acquisition by the Company (“Acquisition Date”)  of the Vested Shares, together with
interest on the unpaid balance thereof at the rate equal to the prime rate of
interest of Citibank, N.A. on the Acquisition Date.




 




7.                                      Transferability.
Unless otherwise determined by the Committee, the shares of Restricted Stock
are not transferable unless and until they become Vested Shares in accordance
with this Agreement, otherwise than by will or under the applicable laws of
descent and distribution. The terms of this Agreement shall be binding upon the
executors, administrators, heirs, successors and assigns of the Recipient.
Except as otherwise permitted pursuant to the first sentence of this Section,
any attempt to effect a Transfer of any shares of Restricted Stock prior to the
date on which the shares become Vested Shares shall be void ab initio. For
purposes of this Agreement, “Transfer” shall mean any sale, transfer,
encumbrance, gift, donation, assignment, pledge, hypothecation, or other
disposition, whether similar or dissimilar to those previously enumerated,




 


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whether voluntary or involuntary, and including, but not limited to,
any disposition by operation of law, by court order, by judicial process, or by
foreclosure, levy or attachment.




 




8.                                      Tax Matters; Section 83(b) Election.




 




(a)                                  If the Recipient properly elects, within
thirty (30) days of the Date of Grant, to include in gross income for federal
income tax purposes an amount equal to the fair market value (as of the Date of
Grant) of the Restricted Stock pursuant to Section 83(b) of the Internal
Revenue Code of 1986, as amended (the “Code”), the
Recipient shall make arrangements satisfactory to the Company to pay to the
Company any federal, state or local income taxes required to be withheld with
respect to the Restricted Stock. If the Recipient shall fail to make such tax
payments as are required, the Company shall, to the extent permitted by law,
have the right to deduct from any payment of any kind (including without
limitation, the withholding of any Shares that otherwise would be issued to the
Recipient under this Agreement) otherwise due to the Recipient any federal,
state or local taxes of any kind required by law to be withheld with respect to
the Restricted Stock.




 




(b)                                 If the Recipient does not properly make the
election described in Section 8(a) above, the Recipient
shall, no later than the date or dates as of which the restrictions referred to
in this Agreement hereof shall lapse, pay to the Company, or make arrangements
satisfactory to the Committee for payment of, any federal, state or local taxes
of any kind required by law to be withheld with respect to the Restricted Stock
(including without limitation the vesting thereof), and the Company shall, to
the extent permitted by law, have the right to deduct from any payment of any
kind (including without limitation, the withholding of any Shares that
otherwise would be distributed to the Recipient under this Agreement) otherwise
due to Recipient any federal, state, or local taxes of any kind required by law
to be withheld with respect to the Restricted Stock.




 




(c)                                  The Recipient may satisfy the withholding
requirements with respect to the Restricted Stock pursuant to any one or
combination of the following methods:




 




(i)                                payment in cash; or




 




(ii)                             if and to the extent permitted by the
Committee, payment by surrendering unrestricted previously held Shares which
have a value equal to the required withholding amount or the withholding of
Shares that otherwise would be deliverable to the Recipient pursuant to this
Award. The Recipient may surrender Shares either by attestation or by delivery
of a certificate or certificates for shares duly endorsed for transfer to the
Company, and if required with medallion level signature guarantee by a member
firm of a national stock exchange, by a national or state bank (or guaranteed
or notarized in such other manner as the Committee may require).




 




(d)                                 Tax consequences on the Recipient (including
without limitation federal, state, local and foreign income tax consequences)
with respect to the Restricted Stock (including without limitation the grant,
vesting and/or forfeiture thereof) are the sole responsibility of the
Recipient. The Recipient shall consult with his or her own personal
accountant(s) and/or tax advisor(s) regarding these matters, the making of
a Section 83(b) election, and the Recipient’s filing, withholding and
payment (or tax liability) obligations.




 


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9.                                      Amendment,
Modification & Assignment; Non-Transferability. This Agreement
may only be modified or amended in a writing signed by the parties hereto. No
promises, assurances, commitments, agreements, undertakings or representations,
whether oral, written, electronic or otherwise, and whether express or implied,
with respect to the subject matter hereof, have been made by either party which
are not set forth expressly in this Agreement. Unless otherwise consented to in
writing by the Company, in its sole discretion, this Agreement (and Recipient’s
rights hereunder) may not be assigned, and the obligations of Recipient
hereunder may not be delegated, in whole or in part. The rights and obligations
created hereunder shall be binding on the Recipient and his heirs and legal
representatives and on the successors and assigns of the Company.




 




10.                               Recipient’s
Representations. The Recipient shall, if required by the Company,
concurrently with the execution of this Agreement, deliver to the Company his
Investment Representation Statement in the form attached to this Agreement as
Exhibit A or in such other form as the Company may request.




 




11.                               Complete
Agreement. This Agreement (together with those agreements and documents
expressly referred to herein, for the purposes referred to herein) embody the
complete and entire agreement and understanding between the parties with
respect to the subject matter hereof, and supersede any and all prior promises,
assurances, commitments, agreements, undertakings or representations, whether
oral, written, electronic or otherwise, and whether express or implied, which
may relate to the subject matter hereof in any way.




 




12.                               Miscellaneous.




 




(a)                                  No Right to Continuous Service. This Agreement and the grant of
Restricted Stock hereunder shall not confer, or be construed to confer, upon
the Recipient any right to Continuous Service with the Company or any Related
Entity.




 




(b)                                 No Limit on Other Compensation Arrangements. Nothing contained in this Agreement
shall preclude the Company or any Related Entity from adopting or continuing in
effect other or additional compensation plans, agreements or arrangements, and
any such plans, agreements and arrangements may be either generally applicable
or applicable only in specific cases or to specific persons.




 




(c)                                  Severability. If any term or provision of this
Agreement is or becomes or is deemed to be invalid, illegal or unenforceable in
any jurisdiction or under any applicable law, rule or regulation, then
such provision shall be construed or deemed amended to conform to applicable
law (or if such provision cannot be so construed or deemed amended without
materially altering the purpose or intent of this Agreement and the grant of
Restricted Stock hereunder, such provision shall be stricken as to such
jurisdiction and the remainder of this Agreement and the award hereunder shall
remain in full force and effect).




 




(d)                                 No Trust or Fund Created. Neither this Agreement nor the grant
of Restricted Stock hereunder shall create or be construed to create a trust or
separate fund of any kind or a fiduciary relationship between the Company or
any Related Entity and the Recipient or any other person. To the extent that
the Recipient or any other person acquires a right to receive payments




 


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from the Company or any Related Entity
pursuant to this Agreement, such right shall be no greater than the right of
any unsecured general creditor of the Company.




 




(e)                                  Law Governing. This Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the State of
Delaware (without reference to the conflict of laws rules or principles
thereof).




 




(f)                                    Interpretation. The Recipient accepts the Restricted
Stock subject to all of the terms, provisions and restrictions of this
Agreement and the Plan. The undersigned Recipient hereby accepts as binding,
conclusive and final all decisions or interpretations of the Board or the
Committee upon any questions arising under this Agreement or the Plan.




 




(g)                                 Headings. Section, paragraph and other headings and captions are
provided solely as a convenience to facilitate reference. Such headings and
captions shall not be deemed in any way material or relevant to the
construction, meaning or interpretation of this Agreement or any term or
provision hereof.




 




(h)                                 Notices. Any notice under this Agreement shall be in writing and shall
be deemed to have been duly given when delivered personally or when deposited
in the United States mail, registered, postage prepaid, and addressed, in the
case of the Company, to the Company’s President at 301 Gregson Drive, Cary,
North Carolina 27511, or if the Company should move its principal office, to
such principal office, and, in the case of the Recipient, to the Recipient’s
last permanent address as shown on the Company’s records, subject to the right
of either party to designate some other address at any time hereafter in a
notice satisfying the requirements of this Section.




 




(i)                                     Non-Waiver of Breach. The waiver by any party hereto of
the other party’s prompt and complete performance, or breach or violation, of
any term or provision of this Agreement shall be effected solely in a writing
signed by such party, and shall not operate nor be construed as a waiver of any
subsequent breach or violation, and the waiver by any party hereto to exercise
any right or remedy which he or it may possess shall not operate nor be
construed as the waiver of such right or remedy by such party, or as a bar to
the exercise of such right or remedy by such party, upon the occurrence of any
subsequent breach or violation.




 




(j)                                     Counterparts. This Agreement may be executed in
two or more separate counterparts, each of which shall be an original, and all
of which together shall constitute one and the same agreement.




 




[Signatures
on following page]




 


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IN WITNESS
WHEREOF, the parties hereto, intending to be legally bound, have executed this
Restricted Stock Agreement as of the date first written above.




 


 




	
   

  	
  CONSONUS TECHNOLOGIES, INC., a Delaware

  
	
   

  	
  corporation

  





 




	
   

  	
  By:

  	
  /s/ Michael G. Shook

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
  President May 12, 2008 

  
					





 


 




	
  Agreed and Accepted:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  RECIPIENT:

  	
   

  





 


 




	
  By:

  	
  /s/ Robert McCarthy

  	
   

  
	
   

  	
  Robert McCarthy 

  	
   

  





 


11

















 




EXHIBIT
A




 




INVESTMENT
REPRESENTATION STATEMENT




 




RECIPIENT:




 




COMPANY:




 




SECURITY:




 




AMOUNT:




 




DATE:




 




In connection with the grant of the above-listed Securities, I, the
Recipient, represent to the Company the following:




 




1.                                      I am aware of the Company’s business affairs
and financial condition, and have acquired sufficient information about the
Company to reach an informed and knowledgeable decision to acquire the
Securities. I am receiving these Securities for my own account for investment
purposes only and not with a view to, or for the resale in connection with, any
“distribution” thereof for purposes of the Securities Act of 1933, as amended
(the “Securities Act”).




 




2.                                      I understand that the Company’s issuance of
the Securities has not been registered under the Securities Act in reliance
upon a specific exemption therefrom, which exemption depends upon, among other
things, the bona fide nature of my investment intent as expressed herein. In
this connection, I understand that, in the view of the Securities and Exchange
Commission (the “SEC”), the statutory basis for such exemption may be
unavailable if my representation was predicated solely upon a present intention
to hold these Securities for the minimum capital gains period specified under
tax statutes, for a deferred sale, for or until an increase or decrease in the
market price of the Securities, or for a period of one year or any other fixed
period in the future.




 




3.                                      I further understand that the Securities must
be held indefinitely unless the transfer is subsequently registered under the
Securities Act or unless an exemption from registration is otherwise available.
Moreover, I understand that the Company is under no obligation to register any
transfer of the Securities. In addition, I understand that the certificate
evidencing the Securities will be imprinted with a legend which prohibits the
transfer of the Securities unless registered or such registration is not
required in the opinion of counsel for the company.




 




	
   

  	
  /s/ Robert McCarthy

  
	
   

  	
   

  
	
  Dated:

  	
  5/12/08 

  	
   

  	
   

  
				





 


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