CONCORD
COMMUNICATIONS, INC.


1997 STOCK PLAN


 


RESTRICTED
STOCK GRANT AGREEMENT


THIS AGREEMENT made this 9th day of March, 2005, by and between CONCORD
COMMUNICATIONS, INC. a corporation organized under the laws of the Commonwealth
of Massachusetts (the “Company”), and the
individual identified below, residing at the address there set out (the “Grantee”).


W I
T N E S S E T H  T H A T:


WHEREAS,
Grantee’s association with the Company or Related Corporation is considered by
the Company to be important for the growth of it and the Related Corporations;
and


WHEREAS,
the company desires to grant to grantee shares of the company’s Common Stock
(the “Common  Stock”) pursuant to the Company’s 1997 Stock Plan
(the “Plan”) according to the terms and conditions hereof;


 


NOW, THEREFORE, in consideration of the promises and mutual covenants herein set
forth, and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto hereby mutually covenant and agree as follows:


1.                                      Issuance of Common Stock


1.1.       The Company hereby agrees to grants to
Grantee an aggregate of Seventy Thousand (70,000) shares of Common Stock in
consideration of his or her performance of future services and on the terms and
conditions of this Agreement and all other applicable terms and conditions of
the Plan.  For purposes of this
Agreement, “Acquired Shares” means all of
such shares, together with any shares of stock or other securities issued in
respect of or in replacement for the shares of Common Stock described in the
preceding sentence as a result of a corporate or other action such as a stock
dividend, stock split, merger, consolidation, reorganization, or
recapitalization.


1.2.       Upon receipt by the Company of a copy of
this Agreement duly executed and completed by the Grantee, the Company shall
issue in the name of Grantee duly executed certificates evidencing the Acquired
Shares endorsed with the legend set forth in Section 7.3 below.  Certificates evidencing Acquired Shares shall
be held in escrow by the Company as hereinafter provided.


2.                                      Vesting and Forfeiture of Acquired Shares


2.1.       As of the date of this Agreement, all of
the Acquired Shares shall be subject to the risk of forfeiture in accordance
with Section 2.2 (the Acquired Shares, while and to the extent so subject to
the risk of forfeiture pursuant to Section 2.2, being hereafter referred to as





















 


“Restricted Shares”).  Restricted Shares shall vest and no longer be
subject to the risk of forfeiture under Section 2.2 in accordance with the
provisions of Schedule A attached
hereto.  Restricted Shares which have
vested in accordance with the provisions of Schedule A
attached are herein referred to as “Vested
Shares”.  Unless otherwise expressly
provided on such Schedule A, no
Restricted Shares shall become Vested Shares following the date (the Grantee’s
“Termination Date”), reasonably fixed and
determined by the Committee, of the voluntary or involuntary termination of the
Grantee’s employment or other association with all of the Company and its
Related Corporations, for any or no reason whatsoever, including death or
disability and an entity ceasing to be a Related Corporation; provided, however, that military or sick
leave shall not be deemed a termination of employment or other association, if
it does not exceed the longer of 90 days or the period during which the
Grantee’s reemployment rights, if any, are guaranteed by statute or by
contract.


2.2.       As of the Grantee’s Termination Date, all
of the then Restricted Shares shall be forfeited by the Grantee or any Permitted
Transferee (as defined in Section 3.1 below). As of the Grantee’s Termination
Date, and without requirement of notice or other action, the Company shall
become the legal and beneficial owner of the then Restricted Shares and all
rights and interests therein or relating thereto, and the Company shall have
the right to retain and transfer to its own name such Restricted Shares for no
consideration whatsoever.


3.                                      Restriction on Transfer


3.1.       Subject to the remaining provisions of
this Section and except for the escrow described in Section 4, none of the
Restricted Shares or any beneficial interest therein shall be sold,
transferred, assigned, pledged, encumbered or otherwise disposed of in any way
at any time (including, without limitation, by operation of law) other than (i)
to the Company or its assignees or (ii), to any other person on (but only upon)
death by will, bequest or operation of law (each, a “Permitted Transferee”).


3.2.       All Permitted Transferees of Restricted
Shares or any interest therein shall be required as a condition of such
transfer to agree in writing, in form satisfactory to the Company, that they
shall receive and hold such Shares or interest subject to the provisions of
this Agreement, including, without limitation, the forfeiture provisions of
Section 3.  Any sale, transfer,
assignment, pledge, encumbrance or other disposition of the Restricted Shares
other than in accordance with this Section shall be void.  The Company shall not be required (i) to
transfer on its books any Restricted Shares sold, transferred or otherwise
disposed of in violation of this Section or (ii) to treat as owner of any
Restricted Shares, or to pay dividends in respect of Restricted Shares to, any
person purporting to have acquired Restricted Shares or any beneficial interest
therein unless such Restricted Shares or interest were acquired in compliance
with the provisions of this Section.


4.                                      Escrow of Shares


4.1.       Each Restricted Share granted pursuant to
this Agreement shall be held in escrow by the Company, as escrow holder (“Escrow Holder”), together with a stock power
executed in blank by the Grantee, until it shall either (a) be forfeited to the
Company at the 


 


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Grantee’s Termination Date in accordance with Section 2.2 or (b) have
become a Vested Share and the Grantee shall have satisfied the requirements of
Section 5.1 (relating to tax withholdings) with respect to any taxable income
attributable to such Share.


4.2.       Upon the forfeiture of any Restricted
Shares to the Company in accordance with Section 2.2, the Company shall have
the right, as Escrow Holder, to take all steps necessary to accomplish the
transfer of such Share to it, including but not limited to presentment of
certificates representing the Restricted Shares, together with a stock power
executed by or in the name of the Grantee appropriately completed by the Escrow
Holder, to the Company’s transfer agent with irrevocable instructions to
register transfer of such Shares into the name of the Company.  The Grantee hereby appoints the Company, in
its capacity as Escrow Holder, as his or her irrevocable attorney-in-fact to
execute in his or her name, acknowledge and deliver all stock powers and other
instruments as may be necessary or desirable with respect to the Shares.


4.3.       When any portion of the Restricted Shares
have become Vested Shares, upon Grantee’s request the Company, as Escrow
Holder, shall promptly cause a new certificate to be issued for such Shares and
shall deliver such certificate to Grantee subject, however, to the Grantee’s
satisfaction of the requirements of Section 5.1 (relating to tax withholdings).


4.4.       Subject to the terms hereof, Grantee
shall have all the rights of a stockholder with respect to the Acquired Shares
while they are held in escrow, including without limitation, the right to
receive any dividends declared thereon. 
If, from time to time during the term of the escrow, there occurs any
corporate or other action giving rise to substituted or additional securities
by reason of ownership of the Shares such substituted or additional securities,
with the legend required by Section 7.3 if applicable, shall be immediately
subject to this escrow and deposited with the Escrow Holder.


5.                                      Tax Consequences


5.1.          It
is understood by the Company and Grantee that the issuance of the Acquired
Shares hereunder may be deemed compensatory in purpose and in effect and that
as a result the Company or a Related Corporation may be obligated to pay
withholding taxes in respect of such Acquired Shares at the time Grantee
becomes subject to income taxation as a result of the receipt or vesting of the
Acquired Shares hereunder.  In the event
that at the time the above-said withholding tax obligations arise (i) Grantee
is no longer in the employ of the Company or a Related Corporation or (ii)
Grantee’s other cash compensation from the Company and its Related Corporations
is not sufficient to meet the aforesaid withholding tax obligation, Grantee
hereby agrees to provide the Company or its Related Corporation with an amount
sufficient to pay all withholding taxes required to be paid as and when such
taxes become payable (which amount in the sole discretion of the Company and
subject to any applicable requirements of the Plan, may be provided in the form
of shares of Common Stock, including Vested Shares then held by the Escrow
Holder).  Grantee agrees to pay such
amount on or before the later of the date the withholding tax obligation
arises, or the Company’s next subsequent payroll date.  Grantee agrees that in the event and to the extent the
Company and its Related Corporations determine that they are not obligated to
withhold 


 


3





















 


taxes payable by Grantee with respect to Acquired
Shares but the Company or a Related Corporation is later held liable due to any
non-payment of taxes on the part of Grantee, the Grantee shall indemnify and
hold the Company and its Related Corporations harmless from the amount of any
payment made by them in respect of such liability.


5.2.       Grantee hereby agrees to deliver to the
Company (and his or her employing Related Corporation, if applicable) a signed
copy of any instrument, letter or other document he or she may execute and file
with the Internal Revenue Service evidencing his or her election under Section
83(b)(2) of the Internal Revenue Code of 1986, as amended, to treat his or her
receipt of the Acquired Shares as includible in his or her gross income in the
year of receipt.  Grantee shall deliver
said copy of any such instrument of election within five (5) days after the
date on which any such election is required to be made in accordance with the
appropriate provisions of the Internal Revenue Code or applicable Regulations
thereunder.


6.                                      Compliance with Law


6.1.       Grantee represents and warrants, and each
Permitted Transferee shall, as a condition of transfer, represent and warrant,
that he or she is acquiring the Acquired Shares of his or her own account for
the purpose of investment and not with a view to, or for sale in connection
with, the distribution of any such Acquired Shares.


6.2.       Grantee acknowledges and agrees, and each
Permitted Transferee shall, as a condition of transfer, acknowledge and agree,
that neither the Company nor any agent of the Company shall be under any
obligation to recognize any transfer of any of the Acquired Shares if, in the
opinion of counsel for the Company, such transfer would result in violation by
the Company of any federal or state law with respect to the offering, issuance
or sale of securities.


7.                                      General Provisions


7.1.       This Agreement shall be governed and
enforced in accordance with the terms of the Plan and the laws of the
Commonwealth of Massachusetts, without regard to the conflict of laws
principles thereof, and shall be binding upon the heirs, personal
representatives, executors, administrators, successors and assigns of the
parties.


7.2.       This Agreement and the applicable terms
of the Plan embody the complete agreement and understanding among the parties
hereto with respect to the subject matter hereof and thereof, supersedes and
preempts any prior understandings, agreements or representations by or among
the parties, written or oral, which may have related to the subject matter
hereof in any way and may only be modified or amended in writing signed by the
Company and the Grantee.


7.3.       The certificates representing the
Restricted Shares shall be endorsed with the following legend:


The
transferability of this certificate and the shares represented by this
certificate are subject to the terms and conditions (including, without 


 


4





















 


limitation, the
potential forfeiture of the same) of the 1997 Stock Plan and a Restricted Stock
Grant Agreement entered into by the registered owner and Concord
Communications, Inc.  Copies of such Plan
and Agreement are on file in the offices of Concord Communications, Inc.


7.4.       The rights and obligations of each party
under this Agreement shall inure to the benefit of and be binding upon such
party’s heirs, legal representatives, successors and permitted assigns.  The rights and obligations of the Company
under this Agreement shall be assignable by the Company to any one or more
persons or entities without the consent of the Grantee or any other
person.  The rights and obligations of
any person other than the Company under this Agreement may only be assigned
with the prior written consent of the Company.


7.5.       No consent to or waiver of any breach or
default in the performance of any obligations hereunder shall be deemed or
construed to be a consent to or waiver of any other breach or default in the
performance of any of the same or any other obligations hereunder.  Failure on the part of any party to complain
of any act or failure to act of any other party or to declare any party in
default, irrespective of the duration of such failure, shall not constitute a
waiver of rights hereunder and no waiver hereunder shall be effective unless it
is in writing, executed by the party waiving the breach or default hereunder.


7.6.       If any provision of this Agreement shall
be held illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any
manner affect or render illegal, invalid or unenforceable any other severable
provisions of this Agreement.


7.7.       The headings in this Agreement are for
convenience of identification only, do not constitute a part hereof, and shall
not affect the meaning or construction hereof.


7.8.       Grantee agrees upon request to execute
any further documents or instruments necessary or desirable to carry out the
purposes or intent of this Agreement.


7.9.       Any dispute, controversy, or claim
arising out of, or in connection with, or relating to the performance of this
Agreement or its termination, shall be settled by arbitration in the
Commonwealth of Massachusetts, pursuant to the rules then in effect of the
American Arbitration Association.  Any
award shall be final, binding and conclusive upon the parties and a judgment
rendered thereon may be entered in any court having jurisdiction thereof.


7.10.     Nothing contained in this Agreement shall
confer upon the Grantee any right with respect to the continuation of his or
her employment or other association with the Company or any Related
Corporation, or interfere in any way with the right of the Company and its
Related Corporations, subject to the terms of Grantee’s separate employment or
consulting agreement, if any, or provision of law or corporate articles or
by-laws to the contrary, at any time to terminate such employment or consulting
agreement or otherwise modify the terms and conditions of Grantee’s employment
or association with the Company or a Related Corporation.


 


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7.11.     This Agreement may be executed in one or
more counterparts, each of which when executed shall be deemed an original and
all of which, taken together, shall constitute one and the same
instrument.  In making proof of this Agreement
it shall not be necessary to produce or account for more than one such
counterpart.


7.12.     All capitalized terms used but not defined
herein shall have the respective meaning given such terms in the Plan.


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IN WITNESS WHEREOF, the parties have duly executed this Agreement under
seal as of the month, day and year first set forth above.


	
  CONCORD COMMUNICATIONS,
  INC.

  	
   

  	
  GRANTEE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ John A. Blaeser

  	
   

  	
  /s/ Michael Fabiaschi

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:President

  	
   

  	
  Grantee’s Name &
  Address:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Michael Fabiaschi

  	
   

  
	
   

  	
   

  	
  273 Corporate Drive

  	
   

  
	
   

  	
   

  	
  Portsmouth, NH 03801

  	
   

  
					



 


 


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  Michael Fabiaschi

  	
  Schedule
  A

  
	
  (Grantee Name)

  	
   

  
	
  March 9, 2005

  	
   

  
	
  (Date of Agreement)

  	
   

  
	
  70,000

  	
   

  
	
  (Number of Acquired Shares)

  	
   

  



 


This Schedule A
provides for the vesting of the Acquired Shares granted the Grantee in the
Restricted Stock Purchase Agreement (the “Agreement”)
to which it is attached.  Capitalized
terms not defined herein shall have the same meaning as such terms are assigned
under the Agreement.


1.          Release
Based on Continued Employment. At each anniversary of the date of the
Agreement, that percentage of the Acquired Shares set forth opposite such
anniversary shall be released from the Company’s Repurchase Right and become
Vested Shares, with any fractions rounded down except on the final installment.


 




	
  1997 Stock Plan

  
	
   

  
	
   

  
	
  Anniversary

  	
   

  	
  Percentage

  
	
   

  	
   

  	
   

  
	
  First

  	
   

  	
  25%

  
	
  Second

  	
   

  	
  25%

  
	
  Third

  	
   

  	
  25%

  
	
  Fourth

  	
   

  	
  25%