CLARUS CORPORATION
RESTRICTED STOCK AGREEMENT
RESTRICTED STOCK AGREEMENT (the "Agreement") made as of this ____ day
of April, 2003, by and between Clarus Corporation, a Delaware corporation,
having its principal office at Xxx Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000
(the "Corporation"), and Xxxxxx X. Xxxxxxx, an individual residing at Two
Soundview Drive, Greenwich, CT 06830 (the "Restricted Stockholder").
W I T N E S S E T H:
WHEREAS, the Restricted Stockholder is a valued and trusted employee
and director of the Corporation and the Corporation believes it to be in the
best interests of the Corporation to secure the future services of the
Restricted Stockholder by providing the Restricted Stockholder with an
inducement to remain an employee and/or a director of the Corporation or any of
its affiliates or subsidiaries (each a "Participating Corporation") and through
the grant of restricted shares of common stock (the "Common Stock"), par value
$.0001 per share, of the Corporation.
NOW THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
1. GRANT OF RESTRICTED SHARES. (a) Effective as of April 11, 2003 (the
"Date of Grant"), the Corporation hereby grants to the Restricted Stockholder
Five Hundred Thousand (500,000) shares of Common Stock (the "Restricted
Shares"), subject to all of the terms and conditions of this Agreement. As more
fully described below, the shares granted hereby are subject to forfeiture by
the Restricted Stockholder if certain criteria are not satisfied.
(b) Simultaneously with the execution of this Agreement,
Restricted Stockholder hereby delivers to the Corporation the purchase price for
the Restricted Shares in an amount equal to $50 in cash (or $.0001 for each
share granted) (the "Purchase Price").
2. VESTING PERIOD.
(a) Vesting. All of the Restricted Shares shall vest and
become nonforfeitable if the Restricted Stockholder is an employee and/or a
director of the Corporation or a Participating Corporation on the earlier of (i)
the date the closing price of the Corporation's Common Stock, as listed or
quoted on any national securities exchange or NASDAQ, shall have exceeded $15.00
per share for each of the trading days during a ninety (90) consecutive day
period and (ii) the tenth (10th) anniversary of the Date of Grant; provided,
however that all of the Restricted Shares shall immediately vest and become
nonforfeitable upon the occurrence of a Change in Control or in the event the
Restricted Stockholder's employment with the Corporation is terminated without
Cause.
(b) Restricted Shares that are vested pursuant to the
provisions of this Section 2 hereof are "Vested Restricted Shares." Restricted
Shares that are not vested pursuant to Section 2 hereof are "Unvested Restricted
Shares."
(c) For purposes of this Agreement, the following terms shall
have the following meanings:
"Affiliate" shall have the same meaning ascribed to such a
term in Rule 12b-2 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
"Cause" shall have the same meaning ascribed to such a term in
the Employment Agreement (the "Employment Agreement") dated December 6, 2002
between the Restricted Stockholder and the Corporation.
"Change in Control" shall have the same meaning ascribed to
such a term in the Employment Agreement.
"Subsidiary" or "Subsidiaries" of a person means a
corporation, partnership, joint venture, limited liability company or other
business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other
governing body (other than securities or interests having such power only by
reason of the happening of a contingency) are at the time beneficially owned, or
the management of which is otherwise controlled, directly, or indirectly through
one or more intermediaries, or both, by such person.
3. NON-TRANSFERABILITY. Until the Restricted Shares shall be vested and
until the satisfaction of any and all other conditions specified herein, the
Restricted Shares may not be sold, transferred, assigned, pledged or otherwise
encumbered or disposed of by the Restricted Stockholder, except upon the written
consent of the Corporation.
4. CERTIFICATES FOR SHARES; DIVIDENDS AND STOCKHOLDER RIGHTS.
(a) Stock certificates for Restricted Shares shall be issued
in the Restricted Stockholder's name and shall be held by the Corporation until
the Restricted Shares shall become vested. The Corporation shall serve as
attorney-in-fact for the Restricted Stockholder during the period during which
the Restricted Shares are unvested with full power and authority in the
Restricted Stockholder's name to assign and convey to the Corporation any
Restricted Shares held by the Corporation for the Restricted Stockholder if the
Restricted Stockholder forfeits the shares under the terms of this Agreement.
Stock certificates representing the Restricted Shares shall bear the following
legend:
The Shares represented by this Stock Certificate have been
granted as restricted stock. Without the prior written consent
of the Corporation, the Shares represented by this Stock
Certificate may not be sold, exchanged, assigned, transferred,
pledged, hypothecated or otherwise encumbered or
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disposed of unless the restrictions set forth in the
Restricted Stock Agreement between the registered holder of
these Shares and Clarus Corporation shall have lapsed.
Upon the vesting of the Restricted Shares, the Corporation
shall so notify the Secretary of the Corporation and the Secretary shall obtain
from the Corporation stock certificates representing all such shares that have
vested, which stock certificates shall not bear any restrictive endorsement
making reference to this Agreement, and shall promptly issue and deliver such
stock certificates, if any, to the Restricted Stockholder.
(b) Upon the full execution of this Agreement and delivery of
the Purchase Price pursuant to Section 1 above, the Restricted Stockholder shall
thereupon be a stockholder and the Corporation shall issue stock certificates
representing the Restricted Shares. Thereupon, subject to the provisions of
Section 2 hereof, the Restricted Stockholder shall have all the rights of a
stockholder with respect to such Restricted Shares, including the right to vote
and receive all dividends or other distributions made or paid with respect to
such Restricted Shares; provided, however, that such Restricted Shares and any
new, additional or different securities the Restricted Stockholder may become
entitled to receive with respect to such Restricted Shares by virtue of a stock
split, dividend or other change in the corporate or capital structure of the
Corporation shall be subject to the vesting and forfeiture provisions,
restrictions on transfer and other restrictions set forth in this Agreement.
5. SHARE ADJUSTMENTS. In the event of any stock dividend, stock split,
combination or exchange of shares, merger, consolidation, spin-off or other
distribution (other than normal cash dividends) of the Corporation's assets to
stockholders, or any other change affecting shares of the Corporation's
capitalization, the Corporation's Board of Directors in its discretion may make
such adjustments as it may deem appropriate to reflect such change and to fairly
preserve the intended benefits of this Agreement.
6. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing in this Agreement shall
confer upon the Restricted Stockholder any right with respect to continuance of
employment by the Corporation or any Participating Corporation, nor shall it
interfere in any way with the right of the Corporation or any Participating
Corporation to terminate the Restricted Stockholder's employment at any time.
This Agreement does not constitute an employment contract. This Agreement does
not guarantee employment for the length of time of the vesting period or for any
portion thereof.
8. SECTION 83(b) ELECTION. If the Restricted Stockholder files an
election with the Internal Revenue Service to include the fair market value of
any Restricted Shares in gross income as of the Date of Grant, the Restricted
Stockholder agrees to promptly furnish the Corporation with a copy of such
election, together with the amount of any federal, state, local or other taxes
required to be withheld to enable the Corporation to claim an income tax
deduction with respect to such election.
9. WITHHOLDING TAXES. The Restricted Stockholder acknowledges that the
Corporation is not responsible for the tax consequences to the Restricted
Stockholder of the
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granting or vesting of the Restricted Shares, and that it is the responsibility
of the Restricted Stockholder to consult with the Restricted Stockholder's
personal tax advisor regarding all matters with respect to the tax consequences
of the granting and vesting of the Restricted Shares. The Corporation shall have
the right to deduct from the Restricted Shares or any payment to be made with
respect to the Restricted Shares any amount that federal, state, local or
foreign tax law required to be withheld with respect to the Restricted Shares or
any such payment. Alternatively, the Corporation may require that the Restricted
Stockholder, prior to or simultaneously with the Corporation incurring any
obligation to withhold any such amount, pay such amount to the Corporation in
cash or in shares of the Corporation's Common Stock (including shares of Common
Stock retained from the Restricted Shares creating the tax obligation), which
shall be valued at the fair market value of such shares on the date of such
payment. In any case where it is determined that taxes are required to be
withheld in connection with the issuance, transfer or delivery of the shares,
the Corporation may reduce the number of shares so issued, transferred or
delivered by such number of shares as the Corporation may deem appropriate to
comply with such withholding. The Corporation may also impose such conditions on
the payment of any withholding obligations as may be required to satisfy
applicable regulatory requirements under the Exchange Act.
10. REPRESENTATIONS AND WARRANTIES.
10.1 Shares Unregistered. The Restricted Stockholder
acknowledges and represents that the Restricted Stockholder has been advised by
the Corporation that:
(a) the offer and sale of the Restricted Shares have not been
registered under the Securities Act of 1933, as amended, and all rules and
regulations promulgated thereunder, as the same may be amended from time to time
(the "Securities Act");
(b) the Restricted Stockholder must continue to bear the
economic risk of the investment in the Restricted Shares unless the offer and
sale of such Restricted Shares are subsequently registered under the Securities
Act and all applicable state securities laws or an exemption from such
registration is available;
(c) restrictive legends, in the form set forth below, shall be
placed on the stock certificates:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
the rules and regulations thereunder (the "Securities Act"),
or under the securities laws of any state, and may not be
pledged, hypothecated, sold or transferred unless registered
and qualified under the Securities Act and, if applicable,
state securities laws, or in the opinion of counsel reasonably
satisfactory to the corporation such registration and
qualification are not required."
(e) the Corporation may endorse such legend or legends upon
the stock certificates for Restricted Shares and may issue such "stop transfer"
instructions to its transfer agent in respect of such Restricted Shares as, in
its discretion, it determines to be
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necessary or appropriate to: (i) prevent a violation of, or to perfect an
exemption from, the registration requirements of the Securities Act; and (ii)
implement the provisions of the Agreement and any agreement between the
Corporation and the Restricted Stockholder;
(f) any subsequent resale or distribution of the Restricted
Shares by the Restricted Stockholder shall be made only pursuant to either (i) a
registration statement on an appropriate form under the Securities Act, which
registration statement has become effective and is current with regard to the
Restricted Shares being sold, or (ii) a specific exemption, from the
registration requirements of the Securities Act.
10.2 Additional Investment Representations. The Restricted
Stockholder represents and warrants that:
(a) Restricted Stockholder's financial situation is such that
Restricted Stockholder can afford to bear the economic risk of holding the
Restricted Shares for an indefinite period of time, has adequate means for
providing for Restricted Stockholder's current needs and personal contingencies,
and can afford to suffer a complete loss of Restricted Stockholder's investment
in the Restricted Shares;
(b) Restricted Stockholder's knowledge and experience in
financial and business matters is such that Restricted Stockholder is capable of
evaluating the merits and risks of the investment in the Restricted Shares;
(c) Restricted Stockholder understands that the Restricted
Shares involve a high degree of risk of loss of Restricted Stockholder's
investment therein, there are substantial restrictions on the transferability of
the Restricted Shares and there may not be a public market for the Restricted
Shares and, accordingly, it may not be possible for Restricted Stockholder to
liquidate its investment in case of emergency, if at all;
(d) Restricted Stockholder understands and has taken
cognizance of all the risk factors related to the purchase of the Restricted
Shares and, except as set forth in this Agreement, no representations or
warranties have been made to Restricted Stockholder or its representatives
concerning the Restricted Shares or the Corporation or their prospects or other
matters; and
(e) Restricted Stockholder has been given the opportunity to
ask questions of, and to receive answers from, the Corporation and its
representatives concerning the Corporation and its subsidiaries, the
Stockholders Agreement, and to obtain any additional information which
Restricted Stockholder deems necessary.
11. REPRESENTATIONS OF THE CORPORATION. The Corporation represents to
the Restricted Stockholder that the following statements contained in this
Section 11 are correct and complete as of the date of this Agreement:
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(a) Organization and Power. The Corporation is a corporation
validly existing and in good standing under the laws of the State of Delaware,
with full power and authority to enter into this Agreement and perform its
obligations hereunder.
(b) Authorization. The execution, delivery and performance of
this Agreement by the Corporation and the consummation of the transactions
contemplated hereby by the Corporation have been duly and validly authorized by
all requisite corporate action on the part of the Corporation, and no other
proceedings on its part are necessary to authorize the execution, delivery or
performance of this Agreement. This Agreement has been duly executed and
delivered by the Corporation, and this Agreement constitutes a valid and binding
obligation of the Corporation, enforceable in accordance with its terms and
conditions.
(c) The Corporation will use its commercially reasonable
efforts to file a registration statement on Form S-8 with the Securities and
Exchange Commission covering the Restricted Shares on or before December 31,
2003.
12. INTERPRETATION. Any dispute regarding the interpretation of this
Agreement shall be submitted by Restricted Stockholder or the Corporation to the
Corporation's Board of Directors for review. The resolution of such a dispute by
the Corporation's Board of Directors shall be final and binding on the
Corporation and Restricted Stockholder.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and understanding of the parties hereto with respect to the subject matter
hereof and supersedes all prior understandings and agreements with respect to
such subject matter.
14. NOTICES. Any notice required to be given or delivered to the
Corporation under the terms of this Agreement shall be in writing and addressed
to the Corporate Secretary of the Corporation at its principal corporate
offices. Any notice required to be given or delivered to Restricted Stockholder
shall be in writing and addressed to Restricted Stockholder at the address
indicated above or to such other address as such party may designate in writing
from time to time to the Corporation. All notices shall be deemed to have been
given or delivered upon: (i) personal delivery; (ii) three (3) days after
deposit in the United States mail by certified or registered mail (return
receipt requested); (iii) one (1) business day after deposit with any return
receipt express courier (prepaid); or (iv) one (1) business day after
transmission by facsimile.
15. SUCCESSORS AND ASSIGNS. The Corporation 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 Corporation. Subject to the
restrictions on transfer set forth herein, this Agreement shall be binding upon
Restricted Stockholder and Restricted Stockholder's heirs, executors,
administrators, legal representatives, successors and assigns.
16. 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.
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17. ACCEPTANCE. Restricted Stockholder hereby acknowledges receipt of a
copy of this Agreement. Restricted Stockholder has read and understands the
terms and provisions thereof, and accepts this Restricted Shares subject to all
the terms and conditions of this Agreement. Restricted Stockholder acknowledges
that there maybe adverse tax consequences upon receipt of the Restricted Shares
or disposition of the Restricted Shares and that the Corporation has advised
Restricted Stockholder to consult a tax advisor prior to such receipt and
disposition.
18. MISCELLANEOUS
18.1 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 either the Restricted Stockholder or
Corporation shall not be deemed a waiver of any other right derived hereunder.
18.2 This Agreement may be executed in any number of
counterparts, but all counterparts will together constitute but one agreement.
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IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
executed by its duly authorized officer and the Restricted Stockholder has
executed this Agreement as of the ____ day of April, 2003.
CLARUS CORPORATION
By:_______________________________
Name:__________________________
Title:_________________________
RESTRICTED STOCKHOLDER
___________________________________
Name: Xxxxxx X. Xxxxxxx
Address: _________________________
_________________________
_________________________
Telecopier No.:____________________
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