CLARUS CORPORATION STOCK OPTION AGREEMENT
Exhibit
10.1
CLARUS
CORPORATION
2005
STOCK INCENTIVE PLAN
STOCK
OPTION AGREEMENT (the “Agreement”) made as of this «numberdate»
day of
«month»,
«year»,
by and
between Clarus Corporation, a Delaware corporation, having its principal
office
at Xxx Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 (the “Company”),
and «FirstName» «LastName»,
an
individual residing in «citystate»
(the
“Optionee”). Capitalized terms not defined herein shall have the meanings
ascribed to them in the Company’s 2005 Stock Incentive Plan.
WHEREAS,
the
Company has heretofore adopted the Clarus Corporation 2005 Stock Incentive
Plan
(the “Plan”) for the benefit of certain employees, officers, directors,
consultants, independent contractors and advisors of the Company or Subsidiaries
of the Company, which Plan has been approved by the Company’s stockholders;
and
WHEREAS,
the
Optionee is a valued and trusted [employee] [director] [consultant] of the
Company and/or one of its subsidiaries and the Company believes it to be
in the
best interests of the Company to secure the future services of the Optionee
by
providing the Optionee with an inducement to remain an [employee/director
of]
[consultant to] the Company and/or one of its Subsidiaries through the grant
of
an option to acquire an ownership interest in the Company.
NOW,
THEREFORE, the
parties agree as follows:
1. Option
Grant.
Subject
to the provisions hereinafter set forth and the terms and conditions of the
Plan, the Company hereby grants to the Optionee, as of «grantdate»
(the
“Grant Date”), the right, privilege and option (the “Option”) to purchase all or
any part of an aggregate of «amountofoptions»
shares
(the “Shares”) of common stock of the Company, par value $0.0001 per share (the
“Common Stock”), such number being subject to adjustment as provided in the
Plan. To the extent applicable, this Option is intended to qualify as an
“incentive stock option” (“ISO”) within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the “Code”), to the extent permitted
under Section 422 of the Code.
2.
Exercise
Price.
Subject
to adjustment as provided in the Plan, the purchase price per Share of Common
Stock as to which this Option is exercised (the “Exercise Price”) shall be
$«shareprice»,
the
Fair Market Value of such Shares on the Grant Date.
3. Exercise
of Option.
The term
of the Option shall be for a period of ten (10) years from the Grant Date
and
shall expire without further action being taken at 5:00 p.m., «expirationdate»,
subject
to earlier termination as provided in Section 5 hereof (the “Expiration Date”).
The Option may be exercised at any time, or from time to time, prior to the
Expiration Date (or such additional period as may be permitted under the
Plan)
as to any part or all of the Shares covered by the Option, pursuant to the
vesting schedule contained in Section 4.1 hereof; provided, however, that
the
Option may not be exercised as to less than one hundred (100) shares, unless
it
is exercised as to all Shares as to which this Option is then exercisable.
Xxx
Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 Tel: (000) 000-0000
Fax: 000-000-0000
4. Vesting
and Lockup Release Schedule.
4.1Vesting
Date.
The
Shares into which this Option is exercisable shall vest in accordance with
the
following schedule:
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Vesting
Date
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Number
of
ISOs
|
Number
of
Non-Qualified
|
|
Total
Number
of
Shares
|
||
|
|
|
|
|
|
|
|
|
<<Insert
Date>>
|
|
«Total_ISOs»
|
|
«Total_NQSOs»
|
|
«amountofoptions»
|
The
allocation of options granted between ISOs and NQSOs indicated above is a
result
of the Limitations on ISO as outlined in the 2005 Stock Incentive Plan and
reproduced below.
5.7 Limitations
on ISO.
The aggregate Fair Market Value (determined as of the date of grant) of Shares
with respect to which ISO’s are exercisable for the first time by a Participant
during any calendar year (under this Plan or under any other incentive stock
option plan of the Company or any Subsidiary of the Company) will not exceed
$100,000 or such other amount as may be required by the Code. If the Fair
Market
Value of Shares on the date of grant with respect to which ISO’s are exercisable
for the first time by a Participant during any calendar year exceeds $100,000,
then the Options for the first $100,000 worth of Shares to become exercisable
in
such calendar year will be ISO’s and the Options for the amount in excess of
$100,000 that become exercisable in that calendar year will be NQSO’s. In the
event that the Code or the regulations promulgated thereunder are amended
after
the Effective Date of this Plan to provide for a different limit on the Fair
Market Value of Shares permitted to be sub-ject to ISO’s, such different limit
will be automatically incorporated herein and will apply to any Options granted
after the effective date of such amendment.
4.2 Shares
that are vested pursuant to the schedule set forth in Section 4.1 hereof
are
“Vested Shares.”
5. Termination.
5.1 Termination
for Any Reason Except Death, Disability or Cause.
If
Optionee is Terminated by the Company for any reason (including if the Optionee
voluntarily terminates [employment by] [service for] the Company) except
Optionee’s death, Disability or Cause, then this Option, to the extent (and only
to the extent) that it is vested in accordance with the schedule set forth
in
Section 4.1 hereof on the Termination Date, may be exercised by Optionee
no
later than three (3) months after the Termination Date, (or such longer time
period not exceeding five (5) years as may be determined by the Committee,
with
any exercise beyond three (3) months after the Termination Date deemed to
be a
NQSO), but in any event no later than the Expiration Date.
5.2 Termination
Because of Death or Disability.
If
Optionee is Terminated because of death or Disability of Optionee, then this
Option, to the extent that it is vested in accordance with the schedule set
forth in Section 4.1 hereof on the Termination Date, may be exercised by
Optionee (or Optionee’s legal representative or authorized assignee) no later
than twelve (12) months after the Termination Date (or such longer time period
not exceeding five (5) years as may be determined by the Committee, with
any
such exercise beyond twelve (12) months after the Termination Date when the
Termination is for Participant’s death or Disability, deemed to be a NQSO), but
in any event no later than the Expiration Date. Any exercise after three
months
after the Termination Date when the Termination is for any reason other than
Optionee’s disability, within the meaning of Section 22(e)(3) of the Code, shall
be deemed to be the exercise of a nonqualified stock option.
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5.3 Termination
for Cause.
If an
Optionee is terminated for Cause, neither the Optionee, the Optionee’s estate
nor such other person who may then hold the Option shall be entitled to exercise
any Option with respect to any Shares whatsoever, after termination of service,
whether or not after termination of service the Optionee may receive payment
from the Company or Subsidiary for vacation pay, for services rendered prior
to
termination, for services rendered for the day on which termination occurs,
for
salary in lieu of notice, or for any other benefits. In making such
determination, the Committee shall give the Optionee an opportunity to present
to the Committee evidence on his behalf. For the purpose of this paragraph,
termination of service shall be deemed to occur on the date when the Company
dispatches notice or advice to the Optionee that Optionee’s service is
terminated.
For
purposes of this Agreement, Termination for Cause means that the Company
has
cause to terminate an Optionee’s employment or service under any existing
employment, consulting or any other agreement between the Optionee and the
Company or, if such an agreement does not exist, upon finding that (i) the
Optionee has ceased to perform his duties (other than as a result of his
incapacity due to physical or mental illness or injury), which constitutes
an
intentional or extended neglect of his/her duties, (ii) the Optionee has
engaged
or is about to engage in conduct materially injurious to the Company or (iii)
the Optionee has been convicted of a felony.
5.4 No
Obligation to Employ.
Nothing
in the Plan or this Agreement shall confer on Optionee any right to continue
in
the employ of, or other relationship with, the Company, a Subsidiary or an
Affiliate, or limit in any way the right of the Company or any Affiliate
or
Subsidiary of the Company to terminate Optionee’s employment or other
relationship at any time, with or without Cause. This Agreement does not
constitute an employment or other service contract. This Agreement does not
guarantee employment or other service for the length of time of the Vesting
Schedule or for any portion thereof.
6. Manner
of Exercise.
6.1 Stock
Option Exercise Procedures.
To
exercise this Option, Optionee (or in the case of exercise after Optionee’s
death, Optionee’s executor, administrator, heir or legatee, as the case may be)
must follow such exercise procedures as may be established by the Committee
from
time to time in its sole discretion. Such procedures may include requiring
that
the Optionee provide certain information including, inter alia, Optionee’s
election to exercise this Option, the number of Shares being purchased, any
restrictions imposed on the Shares and any representations, warranties and
agreements regarding Optionee’s investment intent and access to information as
may be required by the Company to comply with applicable securities laws.
If
someone other than Optionee exercises this Option, then such person may be
required to submit documentation reasonably acceptable to the Company that
such
person has the right to exercise this Option.
6.2 Limitations
on Exercise.
This
Option may not be exercised unless such exercise is in compliance with all
applicable federal and state securities laws, as they are in effect on the
date
of exercise.
6.3 Payment.
An
exercise of this Option shall be accompanied by full payment of the aggregate
Exercise Price for the Shares being purchased (a) in cash (by check), or
(b)
provided that a public market for the Company’s stock exists: (1) through a
“same day sale” commitment from Optionee and a broker-dealer that is a member of
the National Association of Securities Dealers (an “NASD Dealer”) whereby
Optionee irrevocably elects to
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exercise
this Option and to sell a portion of the Shares so purchased to pay for the
aggregate Exercise Price and whereby the NASD Dealer irrevocably commits
upon
receipt of such Shares to forward the aggregate Exercise Price directly to
the
Company; or (2) through a “margin” commitment from Optionee and an NASD Dealer
whereby Optionee irrevocably elects to exercise this Option and to pledge
the
Shares so purchased to the NASD Dealer in a margin account as security for
a
loan from the NASD Dealer in the amount of the aggregate Exercise Price,
and
whereby the NASD Dealer irrevocably commits upon receipt of such Shares to
forward the aggregate Exercise Price directly to the Company. Notwithstanding
the foregoing, the Board of Directors or the Committee, in their sole
discretion, may allow for the full payment of the aggregate Exercise Price
for
the Shares being purchased to be made by any other method which is in accordance
with the provisions of the Plan.
6.4 Tax
Withholding.
Prior
to the issuance of the Shares upon exercise of this Option, Optionee must
pay or
provide for any applicable federal or state withholding obligations of the
Company. If the Committee permits, Optionee may provide for payment of
withholding taxes upon exercise of this Option by requesting that the Company
retain Shares with a Fair Market Value equal to the minimum amount of taxes
required to be withheld determined on the date that the amount of tax to
be
withheld is to be determined. In such case, the Company shall issue the net
number of Shares to the Optionee by deducting the Shares retained from the
Shares issuable upon exercise.
6.5 Issuance
of Shares.
Provided that both the exercise procedures established by the Committee and
payment are in manner, form and substance satisfactory to the Company, and
upon
the Company’s request to counsel for the Company, the Company shall issue the
Shares registered in the name of Optionee, Optionee’s authorized assignee, or
Optionee’s legal representative, and shall deliver certificates representing the
Shares with the appropriate legends affixed thereto.
7. Notice
of Disqualifying Disposition of ISO Shares.
To the
extent this Option is an ISO, if Optionee sells or otherwise disposes of
any of
the Shares acquired pursuant to the ISO on or before the later of (a) the
date
two (2) years after the Date of Grant, and (b) the date one (1) year after
transfer of such Shares to Optionee upon exercise of this Option, then Optionee
shall immediately notify the Company in writing of such
disposition.
8. Compliance
With Laws and Regulations.
The
exercise of this Option and the issuance and transfer of Shares to the Optionee
shall be subject to compliance by the Company and Optionee with (i) all
applicable requirements of federal and state securities laws, (ii) all
applicable requirements of any stock exchange on which the Company’s Common
Stock may be listed and (iii) any applicable policy of the Company regarding
the
trading of securities of the Company, each at the time of such issuance and
transfer. Optionee understands that the Company is under no obligation to
register or qualify the Shares with the SEC, any state securities commission
or
any stock exchange to effect such compliance.
9. Nontransferability
of Option.
This
Option may not be transferred in any manner other than transfers by will
or by
the laws of descent and distribution or to members of the Optionee’s immediate
family, to trusts solely for the benefit of such immediate family members
and to
partnerships or limited liability companies in which such family members
and/or
trusts are the only partners or members, as the case may be. For this purpose,
“immediate family” means the Optionee’s spouse, parents, children, stepchildren,
grandchildren and legal dependants. Any transfer of Options made under this
provision will not be effective until notice of such transfer is delivered
to
the Company. The terms of this Option shall be binding upon the executors,
administrators, successors and assigns of Optionee.
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10. Privileges
of Stock Ownership.
Optionee
shall not have any of the rights of a stockholder with respect to any Shares
until the Shares are issued to Optionee.
11. Interpretation.
Any
dispute regarding the interpretation of this Agreement shall be submitted
by
Optionee or the Company to the Committee for review. The resolution of such
a
dispute by the Committee shall be final and binding on the Company and
Optionee.
12. Entire
Agreement.
The Plan
is incorporated herein by reference. This Agreement and the Plan and any
exercise procedures as may be established by the Committee constitute the
entire
agreement and understanding of the parties hereto with respect to the subject
matter hereof and supersede all prior understandings and agreements with
respect
to such subject matter.
13. Notices.
Any
notice required to be given or delivered to the Company under the terms of
this
Agreement shall be in writing and addressed to the Corporate Secretary of
the
Company at its principal corporate offices. Any notice required to be given
or
delivered to Optionee shall be in writing and addressed to Optionee at the
address indicated above or to such other address as such party may designate
in
writing from time to time to the Company. All notices shall be deemed to
have
been given or delivered upon: personal delivery; three (3) days after deposit
in
the United States mail by certified or registered mail (return receipt
requested); one (1) business day after deposit with any return receipt express
courier (prepaid); or one (1) business day after transmission by
facsimile.
14. Successors
and Assigns.
The
Company may assign any of its rights under this Agreement. This Agreement
shall
be binding upon and inure to the benefit of the successors and assigns of
the
Company. Subject to the restrictions on transfer set forth herein, this
Agreement shall be binding upon Optionee and Optionee’s heirs, executors,
administrators, legal representatives, successors and assigns.
15. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of Delaware, applicable to agreements made and to be performed entirely
within such state, other than conflict of laws principles thereof directing
the
application of any law other than that of Delaware.
16. Acceptance.
Optionee
hereby acknowledges receipt of a copy of the Plan and this Agreement. Optionee
has read and understands the terms and provisions of the Plan, and accepts
this
Option subject to all the terms and conditions of the Plan and this Agreement.
This Option is subject to, and the Company and the Optionee agree to be bound
by, all of the terms and conditions of the Plan under which this Option was
granted, as the same shall have been amended, restated or otherwise modified
from time to time in accordance with the terms thereof. Pursuant to said
Plan,
the Board of Directors of the Company, or the Committee is vested with final
authority to interpret and construe the Plan and this Option, and its present
form is available for inspection during the business hours by the Optionee
or
other persons entitled to exercise this Option at the Company’s principal
office. Optionee acknowledges that there may be adverse tax consequences
upon
exercise of this Option or disposition of the Shares and that the Company
has
advised Optionee to consult a tax advisor prior to such exercise or
disposition.
17. Covenants
of the Optionee
The
Optionee agrees (and for any heir, executor, administrator, legal
representative, successor, or assignee hereby agrees), as a condition upon
exercise of the Option granted hereunder:
(a) Upon
the
request of the Committee, to execute and deliver a certificate, in form
satisfactory to the Committee, certifying that the Shares being acquired
upon
exercise of the Option are for such person’s own account for investment only and
not with any view to or present intention to resell or distribute the same.
The
Optionee hereby agrees that the Company shall have no obligation to deliver
the
Shares issuable upon exercise of the Option unless and until such certificate
shall be executed and delivered to the Company by the Optionee or any
successor.
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(b) Upon
the
request of the Committee, to execute and deliver a certificate, in form
satisfactory to the Committee, certifying that any subsequent resale or
distribution of the Shares by the Optionee shall be made only pursuant to
either
(i) a Registration Statement on an appropriate form under the Securities
Act of
1933, as amended (the “Securities Act”), which Registration Statement has become
effective and is current with regard to the Shares being sold, or (ii) a
specific exemption from the registration requirements of the Securities Act,
but
in claiming such exemption the Optionee shall, prior to any offer of sale
or
sale of such Shares, obtain a prior favorable written opinion of counsel,
in
form and substance satisfactory to counsel for the Company, as to the
application of such exemption thereto. The foregoing restriction contained
in
this subparagraph (b) shall not apply to (i) issuances by the Company so
long as
the Shares being issued are registered under the Securities Act and a prospectus
in respect thereof is current, or (ii) re-offerings of Shares by Affiliates
of
the Company (as defined in Rule 405 or any successor rule or regulation
promulgated under the Securities Act) if the Shares being re-offered are
registered under the Securities Act and a prospectus in respect thereof is
current.
(c) That
certificates evidencing Shares purchased upon exercise of the Option shall
bear
a legend, in form satisfactory to counsel for the Company, manifesting the
investment intent and resale restrictions of the Optionee described in this
Section.
(d) That
upon
exercise of the Option granted hereby, or upon sale of the Shares purchased
upon
exercise of the Option, as the case may be, the Company shall have the right
to
require the Optionee to remit to the Company, or in lieu thereof, the Company
may deduct, an amount of shares or cash sufficient to satisfy federal, state
or
local withholding tax requirements, if any, prior to the delivery of any
certificate for such Shares or thereafter, as appropriate.
18. Obligations
of the Company
18.1 Upon
the
exercise of this Option in whole or in part, the Company shall cause the
purchased Shares to be issued only when it shall have received the full payment
of the aggregate Exercise Price in accordance with the terms of this
Agreement.
18.2 The
Company shall cause certificates for the Shares as to which the Option shall
have been exercised to be registered in the name of the person or persons
exercising the Option, which certificates shall be delivered by the Company
to
the Optionee only against payment of the full Exercise Price in accordance
with
the terms of this Agreement for the portion of the Option exercised.
18.3
In
the
event that the Optionee shall exercise this Option with respect to less than
all
of the Shares of Common Stock that may be purchased under the terms hereof,
the
Company shall issue to the Optionee a new Option, duly executed by the Company
and the Optionee, in form and substance identical to this Option, for the
balance of Shares of Common Stock then issuable pursuant to the terms of
this
Option.
18.4 Notwithstanding
anything to the contrary contained herein, neither the Company nor its transfer
agent shall be required to issue any fraction of a Share of Common Stock
in
connection with the exercise of this Option, and the Company shall, upon
exercise of this Option in whole or in part, issue the largest number of
whole
Shares of Common Stock to which this Option is entitled upon such full or
partial exercise and shall return to the Optionee the amount of the aggregate
Exercise Price paid by the Optionee in respect of any fractional
Share.
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18.5 The
Company may endorse such legend or legends upon the certificates for Shares
issued to the Optionee pursuant to the Plan and may issue such “stop transfer”
instructions to its transfer agent in respect of such Shares as, in its
discretion, it determines to be necessary or appropriate
to: (i) prevent a violation of, or to perfect an exemption from, the
registration requirements of the Securities Act; (ii) implement the provisions
of the Plan and any agreement between the Company and the Optionee with respect
to such Shares; or (iii) permit the Company to determine the occurrence of
a
disqualifying disposition, as described in Section 421(b) of the Code, of
Shares
transferred upon exercise of an incentive stock option granted pursuant to
this
Agreement and under the Plan.
18.6 The
Company shall pay all issue or transfer taxes with respect to the issuance
or
transfer of Shares to the Optionee, as well as all fees and expenses necessarily
incurred by the Company in connection with such issuance or transfer, except
fees and expenses which may be necessitated by the filing or amending of
a
Registration Statement under the Securities Act, which fees and expenses
shall
be borne by the Optionee, unless such Registration Statement under the
Securities Act has been filed by the Company for its own corporate purposes
(and
the Company so states) in which event the Optionee shall bear only such fees
and
expenses as are attributable solely to the inclusion of the Shares he or
she
receives in the Registration Statement.
18.7 All
Shares issued following exercise of the Option and the payment of the Exercise
Price in accordance with the terms of this Agreement therefore shall be fully
paid and non-assessable to the extent permitted by law.
19. Miscellaneous
19.1 If
the
Optionee loses this Agreement representing the Option granted hereunder,
or if
this Agreement is stolen or destroyed, the Company shall, subject to such
reasonable terms as to indemnity as the Committee, in its sole discretion
shall
require, enter into a new option agreement pursuant to which the Company
shall
issue a new Option, in form and substance identical to this Option, and in
substitution for, the Option so lost, stolen or destroyed, and in the event
this
Agreement representing the Option shall be mutilated, the Company shall,
upon
the surrender hereof, enter into a new option agreement pursuant to which
the
Company shall issue a new Option, in form and substance identical to this
Option, and in substitution for, the Option so mutilated.
19.2 This
Agreement cannot be amended, supplemented or changed, and no provision hereof
can be waived, except by a written instrument making specific reference to
this
Agreement and signed by the party against whom enforcement of any such
amendment, supplement, modification or waiver is sought. A waiver of any
right
derived hereunder by the Optionee shall not be deemed a waiver of any other
right derived hereunder.
19.3 This
Agreement may be executed in any number of counterparts, but all counterparts
will together constitute but one agreement.
19.4 In
the
event of a conflict between the terms and conditions of this Agreement and
the
Plan, the terms and conditions of the Plan shall govern.
19.5 Any
dispute regarding the interpretation of this Agreement shall be submitted
by
Optionee or the Company to the Committee for review. The resolution of such
a
dispute by the Committee shall be final and binding on the Company and
Optionee.
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IN
WITNESS WHEREOF,
the
Company has caused this Agreement to be executed in duplicate by its duly
authorized representative and Optionee has executed this Agreement in duplicate
as of the Date of Grant.
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| CLARUS CORPORATION | ||
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| By: | ||
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Name: |
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| Title: | ||
| OPTIONEE: | ||
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«FirstName» «LastName» |
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