Exhibit 10.8


 


CONSONUS
TECHNOLOGIES, INC.


 


RESTRICTED
STOCK AGREEMENT


 


FOR


 


1.             Award of
Restricted Stock. The
Committee hereby grants, as of
                                
(the “Date of Grant”), to
                      ,
             
restricted shares of the Company’s Common Stock, par value $.000001 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
(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.


 


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:


 




	
  Number of Shares of Restricted Stock

  	
   

  	
  Vesting Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  






 


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 either (i) by
the Company without Cause, (ii) by the Recipient for Good Reason, or (iii) by
the Company’s Nonrenewal of the Recipient’s Employment Agreement, dated the
same hereof (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
or the Company’s notice of Nonrenewal to the Recipient, whichever applicable.


 


(c)           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.


 


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


 


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


 


(ii)           “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.


 


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(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 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 


 


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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 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.


 


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(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 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 


 


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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 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, 


 


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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, 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).


 


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(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.


 


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 


 


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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 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.


 


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


 


	
   

  	
  CONSONUS TECHNOLOGIES, INC.,
  a 

  
	
   

  	
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Agreed and Accepted:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  RECIPIENT:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
						



 


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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:


 


(a)           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”).


 


(b)           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.


 


(c)           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.


 


	
   

  	
   

  	
   

  
	
   

  
	
   

  
	
  Dated:

  	
   

  	
   

  
					



 

















 




CONSONUS TECHNOLOGIES, INC.




 




RESTRICTED STOCK AGREEMENT




 




FOR JOHN ROGER




 




1.             Award of
Restricted Stock. The
Committee hereby grants, as of September 19, 2007 (the “Date of Grant”), to John Roger, 67,306
restricted shares of the Company’s Common Stock, par value $.000001 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
(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.




 




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 Restricted Stock

  	
   

  	
  Vesting Date

  	
   

  
	
  20,192

  	
   

  	
  February 6, 2008, so
  long as 75% of the individual performance goals set by the Committee for the
  period from August 6, 2007 through February 6, 2008 are met, as
  more particularly described in the performance goals.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  26,922

  	
   

  	
  December 31, 2008, so long
  as 75% of the individual performance goals set by the Committee for the
  period from January 1, 2008 through December 31, 2008 are met, as more
  particularly described in the performance goals.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  13,461

  	
   

  	
  December 31, 2009, so long
  as 75% of the individual performance goals set by the Committee for the
  period from January 1, 2009 through December 31, 2009 are met, as more
  particularly described in the performance goals.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6,731

  	
   

  	
  December 31, 2010 so long
  as 75% of the individual performance goals set by the Committee for the
  period from January 1, 2010 through December 31, 2010 are met, as more
  particularly described 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 either by the Company without Cause as set forth in the Recipient’s
Employment Agreement dated as of July 31, 2007 (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, 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.




 




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




 




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




 




(ii)           “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.




 


2

















 




(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 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 




 


3

















 




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 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.




 


4

















 




(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 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 




 


5

















 




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 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, 




 


6

















 




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,
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).




 


7

















 




(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.




 




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 




 


8

















 




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 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.




 


9

















 




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




 




	
   

  	
  CONSONUS
  TECHNOLOGIES, INC., a 

  
	
   

  	
  Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael G. Shook

  	
   

  
	
   

  	
  Name:
  Michael G. Shook

  
	
   

  	
  Title:
  CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
  Agreed
  and Accepted:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  RECIPIENT:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ John Roger

  	
   

  	
   

  
						





 


10

















 




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:




 




(a)           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”).




 




(b)           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.




 




(c)           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.




 




	
   

  	
   

  	
   

  
	
   

  
	
   

  
	
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