EXHIBIT 4.6
AFFILIATE AND MARKET STAND-OFF AGREEMENT
This Affiliate and Market Stand-Off Agreement (this "Affiliate Agreement")
is made and entered into as of ______________ ___, 1998 (the "Effective Date")
by and among Clarus Corporation ("Clarus"), Elekom Corporation, a Washington
corporation ("Elekom"), and _____________________ ("Shareholder") who is an
affiliate of Elekom.
RECITALS
A. This Affiliate Agreement is entered into pursuant to that certain
Agreement and Plan of Reorganization dated as of August 31, 1998 between Clarus
and Elekom (as such may be amended the "Merger Agreement") which provides
(subject to the conditions set forth therein) for the merger of a wholly owned
subsidiary of Clarus ("Newco") with Elekom in a forward triangular merger (the
"Merger"), with Newco to be the surviving corporation of the Merger, all
pursuant to the terms and conditions of the Merger Agreement. Capitalized terms
used but not otherwise defined in this Affiliate Agreement have the meanings
ascribed to such terms in the Merger Agreement.
B. The Merger Agreement provides that, in the Merger, the shares of Elekom
Common Stock and shares of Elekom Preferred Stock that are issued and
outstanding at the Effective Time of the Merger will be converted into shares of
Clarus Common Stock, all as more particularly set forth in the Merger Agreement.
C. Shareholder understands that Shareholder is deemed an "affiliate" of
Elekom within the meaning of the Securities Act of 1933, as amended (the "1933
Act"), and that any shares of Clarus capital stock acquired by the Shareholder
in the Merger may be disposed of only in conformity with the limitations
described herein.
A G R E E M E N T
1. TAX TREATMENT, RELIANCE. Shareholder understands and agrees that it is
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intended that the Merger will be treated as a tax-free reorganization for
federal income tax purposes. Shareholder understands that the representations,
warranties and covenants of Shareholder set forth herein will be relied upon by
Elekom and Clarus and their respective counsel and accounting firms and by
Elekom' stockholders. Shareholder will rely on Shareholder's own tax advisers
as to the tax attributes of the Merger to Shareholder and understands that
neither Clarus, nor Clarus's counsel, Elekom or Elekom' counsel has guaranteed
nor will guarantee to Shareholder that the Merger will be a tax-free
reorganization, nor shall any of them have any liability to Shareholder as a
result of issuing any opinion in respect thereof that may be required in
connection with any registration statement under the 1933 Act.
2. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF SHAREHOLDER. Shareholder
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represents, warrants and covenants as follows:
(a) Authority; Affiliate Status. Shareholder has all requisite right,
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power, legal capacity and authority to execute, deliver and perform this
Affiliate Agreement and to perform its obligations hereunder. Shareholder
further understands and agrees that Shareholder is deemed to be an "affiliate"
of Elekom within the meaning of the 1933 Act and, in particular, Rule 145
promulgated under the 1933 Act ("Rule 145"),
(b) Elekom Securities Owned. Attachment 1 hereto sets forth all
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shares of Elekom capital stock and any other securities of Elekom owned by
Shareholder, including all securities of Elekom as to which Shareholder has sole
or shared voting or investment power, and all rights, options and warrants to
acquire shares of capital stock or other securities of Elekom granted to or held
by Shareholder (such shares of Elekom capital stock, other securities of Elekom
and rights, options and warrants to acquire shares of Elekom capital stock and
other securities of Elekom are hereinafter collectively referred to as "Elekom
Securities"). As used herein, the term "Expiration Date" means the earliest to
occur of (i) the closing, consummation and effectiveness of the Merger, or (ii)
such time as the Merger Agreement may be terminated in accordance with its
terms.
(c) New Elekom Securities. As used herein, the term "New Elekom
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Securities" means, collectively, any and all shares of Elekom capital stock,
other securities of Elekom and rights, options and warrants to acquire shares of
Elekom capital stock and other securities of Elekom that Shareholder may
purchase or otherwise acquire any interest in (whether of record or
beneficially), on and after the Effective Date of this Affiliate Agreement and
prior to the Expiration Date. All New Elekom Securities will be subject to the
terms of this Affiliate Agreement to the same extent and in the same manner as
if they were Elekom Securities.
(d) Merger Securities. As used herein, the term "Merger Securities"
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means, collectively, all shares of Clarus Common Stock that are or may be issued
by Clarus in connection with the Merger or the transactions contemplated by the
Merger Agreement, or to any former holder of Elekom options, warrants or rights
to acquire shares of Elekom Common Stock, and any securities that may be paid as
a dividend or otherwise distributed thereon or with respect thereto or issued or
delivered in exchange or substitution therefor or upon conversion thereof.
(e) Transfer Restrictions on Merger Securities. Shareholder has been
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advised that the issuance of the shares of Clarus Common Stock in connection
with the Merger is expected to be effectuated pursuant to a Registration
Statement on Form S-4 under the 1933 Act, and that the provisions of Rule 145
will limit Shareholder's resales of such Merger Securities. Shareholder
accordingly agrees not to sell, transfer, exchange, pledge, or otherwise dispose
of, or make any offer or agreement relating to, any of the Merger Securities
and/or any option, right or other interest with respect to any Merger Securities
that Shareholder may acquire, unless: (i) such transaction is permitted pursuant
to Rules 145(c) and 145(d) under the 1933 Act; or (ii) legal counsel
representing Shareholder, which counsel is reasonably satisfactory to Clarus,
shall have
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advised Clarus in a written opinion letter reasonably satisfactory to Clarus and
Clarus's legal counsel, and upon which Clarus and its legal counsel may rely,
that no registration under the 1933 Act would be required in connection with the
proposed sale, offer, exchange, pledge or other disposition of Merger Securities
by Shareholder, or (iii) a registration statement under the 1933 Act covering
the Merger Securities proposed to be sold, transferred, exchanged, pledged or
otherwise dispose of, describing the manner and terms of the proposed sale,
transfer, exchange, pledge or other disposition, and containing a current
prospectus, shall have been filed with the Securities and Exchange Commission
("SEC") and been declared effective by the SEC under the 1933 Act, or (iv) an
authorized representative of the SEC shall have rendered written advice to
Shareholder (sought by Shareholder or counsel to Shareholder, with a copy
thereof and all other related communications delivered to Clarus and its legal
counsel) to the effect that the SEC would take no action, or that the staff of
the SEC would not recommend that the SEC take action, with respect to the
proposed disposition of Merger Securities if consummated. Nothing herein imposes
upon Clarus any obligation to register any Merger Securities under the 1933 Act.
3. MARKET STAND-OFF. Shareholder hereby covenants and agrees that, prior
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to the earlier to occur of (i) that date which is the same day of the month as
the Closing Date on the ninth full month after the Closing Date, or (ii) October
1, 1999 (the "Stand-Off Period"), Shareholder will not directly or indirectly,
(i) offer, sell, offer to sell, contract to sell, pledge, grant any option to
purchase or otherwise dispose of or transfer (or announce any offer, sale, offer
of sale, contract of sale or grant of any option to purchase or other
disposition or transfer of) any of the Merger Securities to any Person, or (ii)
create or permit to exist any encumbrance on any of the Merger Securities.
4. LEGENDS. Shareholder also understands and agrees that stop transfer
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instructions will be given to Clarus's transfer agent with respect to
certificates evidencing the Merger Securities to enforce Shareholder's
compliance with Shareholder's representations in Sections 2(e) and Shareholder's
compliance with applicable securities laws regarding the Merger Securities, and
that there will be placed on the certificates evidencing such Merger Securities
a legend providing substantially as follows:
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED, EXCHANGED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN
ACCORDANCE WITH THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED, ANY APPLICABLE STATE SECURITIES LAWS, AND THE OTHER
CONDITIONS SPECIFIED IN THAT CERTAIN AFFILIATE AND MARKET STAND-OFF
AGREEMENT DATED AS OF AUGUST ___, 1998 AMONG Clarus FINANCIALS
INTERNATIONAL, INC., ELEKOM CORPORATION AND THE HOLDER OF SUCH SHARES,
A COPY OF WHICH MAY BE INSPECTED BY THE HOLDER OF THIS CERTIFICATE AT
THE OFFICES OF THE ISSUER. THE ISSUER WILL
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FURNISH WITHOUT CHARGE A COPY THEREOF TO THE HOLDER OF THIS
CERTIFICATE UPON WRITTEN REQUEST THEREFOR."
5. RELEASE OF CLAIMS. Concerning claims which one or more of the
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Shareholders may have against Elekom in their capacity as a shareholder:
(a) Clarus shall assume all liability (to the extent Elekom was so
liable) for claims for indemnification arising under Elekom's Articles of
Incorporation or Bylaws or under any indemnification contract disclosed to
Clarus by Elekom on or before August ___, 1998, and for claims for
salaries, wages or other compensation, employee benefits, reimbursement of
expenses, or worker's compensation arising out of employment through the
effective time of the Merger;
(b) The Shareholders are not aware of any claims that they have or may
have (other than those referred to in paragraph (a) above) against Elekom,
either individually or as a group; and
(c) The Shareholders, both individually and as a group, hereby fully
and finally release and discharge Elekom, Clarus and NewCo from any and all
claims of which the Shareholders are aware that they have or may have
against any of the foregoing in the Shareholders' capacity as shareholders
of Elekom, other than those referred to in paragraph (a) above.
6. NOTICES. All notices, approvals, consents, requests and other
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communications that any party is required or elects to give hereunder shall be
in writing and shall be deemed to have been given (a) upon personal delivery
thereof, including by appropriate international courier service, five (5) days
after delivery to the courier or, if earlier, upon delivery against a signed
receipt therefor or (b) upon transmission by facsimile or telecopier, which
transmission is confirmed, in either case addressed to the party to be notified
at the address set forth below or at such other address as such party shall have
notified the other parties hereto, by notice given in conformity with this
Section 4:
(a) If to Clarus:
Clarus Corporation
000 Xxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, President and CEO
Facsimile: (000) 000-0000
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With a copy (which shall not constitute notice) to:
Xxxxxx Xxxxxxx Xxxxxxxxx & Xxxx, PLLC
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: G. Xxxxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
(b) If to Elekom:
Elekom Corporation
Pacific First Plaza, Eighth Floor
000 - 000xx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx, President and CEO
Facsimile: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxxx Coie LLP
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxx, Xx.
Facsimile: (000) 000-0000
(c) If to Shareholder:
At the address for notice to such Shareholder set forth on
the last page hereof
with a copy to:
Counsel for Shareholder, if any, at the address shown on the
signature page hereto
Any party hereto may change its address specified for notices herein by
designating a new address by notice in accordance with this Section 6.
7. SURVIVAL; TERMINATION. All representations, warranties and agreements
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made by Shareholder in this Affiliate Agreement shall survive the consummation
of the Merger. This Affiliate Agreement shall be terminated and shall be of no
further force and effect upon the termination of the Merger Agreement pursuant
to its terms.
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8. EXPENSES. All costs and expenses incurred in connection with the
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transactions contemplated by this Affiliate Agreement shall be paid by the party
incurring such costs and expenses.
9. COUNTERPARTS. This Affiliate Agreement may be executed in
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counterparts, each of which will be an original as regards any party whose name
appears thereon and all of which together will constitute one and the same
agreement. This Affiliate Agreement will become binding when one or more
counterparts hereof, individually or taken together, bear the signatures of all
parties reflected hereon as signatories. Facsimile copies with signatories of
the parties to this Agreement, or their duly authorized representatives, shall
be legally binding and enforceable. All such facsimile copies are declared as
originals and, accordingly admissible in any jurisdiction or tribunal having
jurisdiction over any matter relating to this Agreement.
10. ASSIGNMENT, BINDING EFFECT. Except as provided herein, neither
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this Affiliate Agreement nor any of the rights, interests or obligations
hereunder shall be assigned the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other parties hereto.
Subject to the preceding sentence, this Affiliate Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and permitted signs.
11. AMENDMENT AND WAIVERS. Any term or provision of this Affiliate
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Agreement may be amended, and the observance of any term of this Affiliate
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively), only by a writing signed by the parties to be
bound thereby. The waiver by a party of any breach hereof or default in the
performance hereof will not be deemed to constitute a waiver of any other
default or any succeeding breach or default.
12. ENTIRE AGREEMENT. This Affiliate Agreement and any documents
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delivered by the parties in connection herewith constitute the entire agreement
between the parties with respect to the subject matter hereof and thereof and
supersedes all prior agreements and understandings between the parties with
respect thereto.
13. OTHER AGREEMENTS. Nothing in this Affiliate Agreement shall
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limit any of the rights or remedies of Clarus or Shareholder or any of the
obligations of either party under any Voting Agreement between Clarus and
Shareholder or any other agreement.
14. SEVERABILITY. Any term or provision of this Affiliate Agreement
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which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Affiliate Agreement or affecting the validity or
enforceability of any of the terms and provisions of this Affiliate Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Affiliate Agreement in any other jurisdiction. If any provision of this
Affiliate Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
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15. GOVERNING LAW. The internal laws of the State of Georgia
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(irrespective of its choice of law principles) will govern the validity of this
Affiliate Agreement, the construction of its terms, and the interpretation and
enforcement of the rights and duties of the parties hereto.
16. CONSTRUCTION. The language hereof will not be construed for or
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against either party. A reference to a section will mean a section of this
Affiliate Agreement, unless otherwise explicitly set forth. The titles and
headings in this Affiliate Agreement are for reference purposes only and will
not in any manner limit the construction of this Affiliate Agreement. For the
purposes of such construction, this Affiliate Agreement will be considered as a
whole.
IN WITNESS WHEREOF, the parties hereto have caused this Affiliate
Agreement to be executed as of the date first written above.
ELEKOM CORPORATION CLARUS CORPORATION
By:______________________________ By:_______________________________________
Name: Xxxxxx Xxxxx Name: Xxxxxxx X. Xxxxxxx
Title: President Title: President
SHAREHOLDER:
_________________________________
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ATTACHMENT 1
Affiliate's Address for Notice: ______________________
______________________
______________________
with a copy to counsel ______________________
for Shareholder ______________________
______________________
______________________
______________________
Number of Shares of Elekom
Common Stock owned as of the
date of this Affiliate Agreement: _________________________________
Number of Shares of Elekom
Series A Preferred Stock owned
as of the date of this Affiliate Agreement: _________________________________
Number of Shares of Elekom
Series B Preferred Stock owned
as of the date of this Affiliate Agreement: _________________________________
Number of Elekom Options for
Common Stock owned as of
the date of this Affiliate Agreement: _________________________________
Number of Elekom Warrants for
Common Stock owned as of
the date of this Affiliate Agreement: _________________________________
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