EXHIBIT 99
CLARUS CORPORATION
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Stock Option Agreement
THIS AGREEMENT (together with Schedule A, attached hereto, the
"Agreement"), made effective the 15th day of August, 2001, between CLARUS
CORPORATION, a Delaware corporation (the "Corporation"), and XXXX XXXXXX, an
employee of the Corporation (the "Optionee");
R E C I T A L S :
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WHEREAS, the Corporation believes that it would be in the best interest of
the Corporation to retain the services of the Optionee in the capacity of Chief
Operating Officer of the Corporation and such other positions or capacities as
may be determined in the future; and
WHEREAS, the Optionee has agreed to enter into the employ of the
Corporation; and
WHEREAS, the Corporation desires to provide certain stock-based incentive
compensation to the Optionee in order to encourage the Optionee to acquire or
increase his holdings of the common stock of the Corporation (the "Common
Stock") and to promote a closer identification of his interests with those of
the Corporation and its stockholders, thereby further stimulating his efforts to
enhance the efficiency, soundness, profitability, growth and stockholder value
of the Corporation;
THEREFORE, in furtherance of the purposes stated herein and such other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Corporation and the Optionee hereby agree as follows:
1. Grant of Option; Term of Option. The Corporation hereby grants to
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the Optionee, as a matter of separate inducement and agreement in connection
with his employment to the Corporation, and not in lieu of any salary or other
compensation for his services, the right and option (the "Option") to purchase
all or any part of an aggregate of one hundred fifty thousand (150,000) shares
(the "shares") of the Common Stock of the Corporation, at a purchase price (the
"option price") of seven dollars and forty-four cents ($7.44) per share. The
Option shall be designated as a nonqualified option and shall not be intended to
qualify as an incentive option under Section 422 of the Internal Revenue Code of
1986, as amended (the "Code"). Except as otherwise provided in this Agreement,
the Option will expire if not exercised in full before August 14, 2011.
2. Exercise of Option. Subject to the terms of this Agreement, the
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Option shall become exercisable on the date or dates and subject to such
conditions as are set forth on Schedule A attached hereto. The Optionee
expressly acknowledges and agrees that the terms of Schedule A shall be
incorporated herein by reference and shall constitute part of this Agreement.
To the extent that any portion of the Option which is exercisable is not
exercised, such Option shall accumulate and be exercisable by the Optionee in
whole or in part at any time prior to expiration of the Option, subject to the
terms herein. The Option may be exercised by giving written notice to the
Corporation in form acceptable to the Administrator (as defined in Section 10
herein) and at such place as the Administrator or its designee shall direct.
Such notice shall specify the number of shares to be purchased pursuant to the
Option and the aggregate purchase price to be paid therefor, and shall be
accompanied by the payment of such purchase price. Such payment shall be in the
form of (i) cash; (ii) delivery (by either actual delivery or attestation) of
shares of Common Stock owned by the Optionee at the time of exercise for a
period of at least six months and otherwise acceptable to the Administrator;
(iii) delivery of written notice of exercise to the Corporation and delivery to
a broker of written notice of exercise and irrevocable instructions to promptly
deliver to the Corporation the amount of sale or loan proceeds to pay the option
price; or (iv) a combination of the foregoing methods. Shares tendered in
payment on the exercise of the Option shall be valued at their fair market value
on the date of exercise, as determined by the Administrator in its discretion.
Upon the exercise of the Option in whole or in part and payment of the option
price to the Corporation in accordance with the provisions herein, the
Corporation shall as soon thereafter as practicable issue and deliver to the
Optionee (or his beneficiary in the event of his death), a certificate or
certificates for the shares purchased.
3. Effect of Termination of Employment or Service. The Option may not be
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exercised unless the Optionee is, at the time of exercise, an employee of the
Corporation or a related entity, and has been an employee continuously since the
date the Option was granted, subject to the following:
(a) The Option shall not be affected by any change in the terms,
conditions or status of the Optionee's employment, provided that the
Optionee continues to be an employee of the Corporation or a related
entity.
(b) The employment relationship of the Optionee shall be treated as
continuing intact for any period that the Optionee is on military or sick
leave or other bona fide leave of absence, provided that the period of such
leave does not exceed 90 days, or, if longer, as long as the Optionee's
right to reemployment is guaranteed either by statute or by contract. The
employment relationship of the Optionee shall also be treated as continuing
intact while the Optionee is not in active service because of disability.
The Administrator shall determine whether the Optionee is disabled within
the meaning of this paragraph, and, if applicable, the date of a
participant's termination of employment or service for any reason (the
"termination date").
(c) If the employment or service of the Optionee is terminated
because of disability, or if the Optionee dies while he is an employee or
dies after the termination of his employment because of disability, the
Option may be exercised only to the extent exercisable on the Optionee's
termination date, except that the Administrator may in its discretion
accelerate the date for exercising all or any part of the Option which was
not otherwise exercisable on the termination date. The Option must be
exercised, if at all, prior to the first to occur of the following,
whichever shall be applicable: (i) the close of the period of 12 months
next succeeding the termination date; or (ii) the close of the option
period. In the event of the Optionee's death, such Option shall be
exercisable by such person or persons as shall have acquired the right to
exercise the Option by will or by the laws of intestate succession.
(d) If the employment of the Optionee is terminated for any reason
other than disability, death or for "cause," the Option may be exercised to
the extent exercisable on the date of such termination of employment,
except that the Administrator may in its discretion accelerate the date for
exercising all or any part of the Option which was not otherwise
exercisable on the date of such termination of employment. The Option must
be exercised, if at all, prior to the first to occur of the following,
whichever shall be applicable: (i) the close of the period of three (3)
months next succeeding the termination date; or (ii) the close of the
option period. If the Optionee dies following such termination of
employment and prior to the earlier of the dates specified in (i) or (ii)
of this subparagraph (d), the Optionee shall be treated as having died
while employed under subparagraph (c) immediately preceding (treating for
this purpose the Optionee's date of termination of employment as the
termination date). In the event of the Optionee's death, the Option shall
be exercisable by such person or persons as shall have acquired the right
to exercise the Option by will or by the laws of intestate succession.
(e) If the employment of the Optionee is terminated for "cause," the
Option shall lapse and no longer be exercisable as of his termination date,
as determined by the Administrator. For purposes of this Agreement, the
Optionee's termination shall be for "cause" if such termination results
from the Optionee's (i) termination for cause under the terms of any
employment, consulting or other agreement between the Optionee and the
Corporation or a related entity; (ii) dishonesty or conviction of a crime;
(iii) failure to perform his duties to the satisfaction of the Corporation;
or (iv) engaging in conduct that could be materially damaging to the
Corporation without a reasonable good faith belief that such conduct was in
the best interest of the Corporation. The determination of "cause" shall be
made by the Administrator and its determination shall be final and
conclusive.
(f) Notwithstanding the foregoing, the Administrator shall have
authority, in its sole discretion, to accelerate the date or dates on which
the Option shall become exercisable, extend the period during which the
Option may be exercised, modify the terms and conditions of exercise, or
any combination of the foregoing.
(g) For purposes of this Agreement, a "related corporation" shall
mean any parent, majority-owned subsidiary or predecessor of the
Corporation, and "related entity" shall mean any related corporation,
limited liability company, partnership or other business entity controlled
by, controlling or
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under common control with, the Corporation; provided, however, that
notwithstanding the foregoing, the term "related entity" shall be construed
in the Administrator's sole discretion in a manner in accordance with the
registration provisions applicable under federal securities laws.
4. Effect of Change of Control.
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(a) In the event of a "change of control" of the Corporation (as
defined in Section 4(c) herein, the Option, to the extent it is outstanding
as of the date of such change of control and not otherwise exercisable on
that date, shall immediately become exercisable with respect to 50% of that
portion of such outstanding Option which was not otherwise exercisable as
of such date.
(b) Notwithstanding the foregoing, in the event of a change of
control, the Administrator may, in its sole and absolute discretion,
determine that the Option (or portion thereof) shall not become exercisable
on an accelerated basis, if the Board of Directors of the Corporation or
the surviving or acquiring corporation, as the case may be, shall have
taken such action, including, but not limited to, the assumption or
continuation of the Option or the grant of substitute awards (in either
case, with substantially similar terms as the Option), as in the opinion of
the Administrator is equitable or appropriate to protect the rights and
interests of the Optionee.
(c) For the purposes herein, a "change of control" shall be deemed to
have occurred on the earliest of the following dates:
(i) The date any entity or person shall have become the
beneficial owner of, or shall have obtained voting control over, forty
percent (40%) or more of the outstanding Common Stock;
(ii) The date the stockholders of the Corporation approve a
definitive agreement (A) to merge or consolidate the Corporation with
or into another business entity (each, a "corporation"), in which the
Corporation is not the continuing or surviving corporation or pursuant
to which any shares of Common Stock of the Corporation would be
converted into cash, securities or other property of another
corporation, other than (X) a merger or consolidation of the
Corporation in which holders of Common Stock immediately prior to the
merger or consolidation have the same proportionate ownership of
Common Stock of the surviving corporation immediately after the merger
as immediately before and (Y) any merger or consolidation of the
Corporation in which holders of Common Stock immediately prior to the
merger or consolidation continue to own at least a majority of the
combined voting securities of the Corporation (or the surviving
entity) outstanding immediately after such merger or consolidation, or
(B) to sell or otherwise dispose of all or substantially all the
assets of the Corporation; or
(iii) The date there shall have been a change in a majority of
the Board of Directors of the Corporation within a 12-month period
unless the nomination for election by the Corporation's stockholders
of each new director was approved by the vote of two-thirds of the
directors then still in office who were in office at the beginning of
the 12-month period.
(For purposes herein, the term "person" shall mean any individual,
corporation, partnership, group, association or other person, as such term
is defined in Section 13(d)(3) or Section 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), other than the
Corporation, a subsidiary of the Corporation or any employee benefit
plan(s) sponsored or maintained by the Corporation or any subsidiary
thereof, and the term "beneficial owner" shall have the meaning given the
term in Rule 13d-3 under the Exchange Act.)
5. No Right of Continued Employment. Nothing contained in this Agreement
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shall confer upon the Optionee the right to continue in the employment or
service of the Corporation or a related entity or interfere in any way with the
right of the Corporation or a related entity to terminate the Optionee's
employment or service at any time. Except as otherwise expressly provided in
this Agreement, all rights of the Optionee with respect to the unexercised
portion of the Option shall terminate upon termination of the employment or
service of the Optionee with the Corporation or a related entity.
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6. Nontransferability of Option. The Option shall not be transferable
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other than by will or the laws of intestate succession, except as may be
permitted by the Administrator in its sole discretion in a manner consistent
with the registration provisions of the Securities Act of 1933, as amended (the
"Securities Act"). Except as may be permitted by the preceding sentence, this
Option shall be exercisable during the Optionee's lifetime only by the Optionee.
The designation of a beneficiary does not constitute a transfer.
7. Adjustments to Option and Agreement. If there is any change in the
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shares of Common Stock of the Corporation because of a merger, consolidation or
reorganization involving the Corporation or a related entity, or if the
Corporation declares a stock dividend or stock split distributable in shares of
Common Stock or reverse stock split, or if there is a similar change in the
capital stock structure of the Corporation or a related entity affecting the
Common Stock, the number of shares of Common Stock subject to the Option shall
be correspondingly adjusted, and the Administrator shall make such adjustments
to the Option or to any provisions of this Agreement as the Administrator deems
equitable to prevent dilution or enlargement of the Option.
8. Superseding Agreement; Binding Effect. This Agreement supersedes any
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statements, representations or agreements of the Corporation with respect to the
grant of the Option or any related rights, and the Optionee hereby waives any
rights or claims related to any such statements, representations or agreements.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective executors, administrators, next-of-kin,
successors and assigns.
9. No Rights as Stockholder. The Optionee and his legal representatives,
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legatees or distributees shall not be deemed to be the holder of any shares
subject to the Option and shall not have any rights of a stockholder unless and
until certificates for such shares have been issued and delivered to him or
them.
10. Administration. The authority to construe, interpret and administer
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this Agreement shall be vested in the Board of Directors of the Corporation, the
Compensation Committee of the Board (the "Committee"), or a designee of the
Board of Directors or the Committee (collectively, the "Administrator"). Any
interpretation of the Agreement by the Administrator and any decision made by it
with respect to the Agreement is final and binding.
11. Other Restrictions on Shares.
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(a) The Corporation may impose such restrictions on the Option and
any shares issued or issuable pursuant to the exercise of the Option as it
may deem advisable, including without limitation restrictions under the
federal securities laws, the requirements of any stock exchange or similar
organization and any blue sky or state securities laws applicable to the
Option or such shares. Notwithstanding any other provision in the Agreement
to the contrary, the Corporation shall not be obligated to issue, deliver
or transfer shares of Common Stock, to make any other distribution of
benefits, or to take any other action, unless such delivery, distribution
or action is in compliance with all applicable laws, rules and regulations
(including but not limited to the requirements of the Securities Act). The
Corporation may cause a restrictive legend to be placed on any certificate
for shares issued pursuant to the exercise of the Option in such form as
may be prescribed from time to time by applicable laws and regulations or
as may be advised by legal counsel.
(b) The Optionee understands that the issuance and transfer of shares
subject to the Option shall not be permitted unless such shares are
registered under the Securities Act and qualified under applicable state
securities laws or unless, in the opinion of counsel to the Corporation,
exemptions from such registration and qualification requirements are
available. The Optionee understands that only the Corporation may file a
registration statement with the Securities and Exchange Commission and that
the Corporation is under no obligation to do so with respect to the shares
subject to the Option. The Optionee has also been advised that exemptions
from registration and qualification may not be available or may not permit
the Optionee to transfer all or any of the shares subject to the Option in
the amounts or at the times proposed by him.
(c) To the extent required by Rule 16b-3 under the Exchange Act, the
shares of Common Stock acquired upon exercise of the Option may not,
without the consent of the Board of Directors of the Corporation or the
Compensation Committee of the Board, be disposed of by the Optionee until
the expiration of six months after the date of grant of the Option.
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12. Amendment and Termination; Waiver. This Agreement may be modified,
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amended or terminated only by the written agreement of the parties hereto. The
waiver by the Corporation of a breach of any provision of the Agreement by the
Optionee shall not operate or be construed as a waiver of any subsequent breach
by the Optionee.
13. Withholding. The Optionee acknowledges that the Corporation shall
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require the Optionee to pay the Corporation the amount of any federal, state,
local or other tax or other amount required by any governmental authority to be
withheld and paid over by the Corporation to such authority for the account of
the Optionee, and the Optionee agrees, as a condition to the grant of the Option
and the issuance of any shares, to satisfy such obligations.
14. Governing Law. This Agreement shall be construed and enforced
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according to the laws of the State of Delaware, without regard to the principles
of conflicts of laws.
15. Notices. Any written notices provided for in this Agreement shall be
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in writing and shall be deemed sufficiently given if either hand delivered or if
sent by fax or overnight courier, or by postage paid first class mail. Notices
sent by mail shall be deemed received three business days after mailed but in no
event later than the date of actual receipt. Notices shall be directed, if to
the Optionee, at the Optionee's address indicated by the Corporation's records,
or if to the Corporation, at the Corporation's principal office.
16. Severability. The provisions of this Agreement are severable and if
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any one or more provisions may be determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions shall nevertheless
be binding and enforceable.
17. Unfunded Plan; Retirement Plans.
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(a) Neither the Optionee nor any other person shall, by reason of
this Agreement, acquire any right in or title to any assets, funds or
property of the Corporation or any related entity including, without
limitation, any specific funds, assets or other property which the
Corporation or any related entity, in their discretion, may set aside in
anticipation of a liability under this Agreement. The Optionee shall have
only a contractual right to the Common Stock issuable pursuant to this
Agreement, unsecured by any assets of the Corporation or any related
entity. Nothing contained in this Agreement shall constitute a guarantee
that the assets of such corporations shall be sufficient to pay any
benefits to any person.
(b) In no event shall any amounts accrued, distributable or payable
under this Agreement be treated as compensation for the purpose of
determining the amount of contributions or benefits to which the Optionee
shall be entitled under any retirement plan sponsored by the Corporation or
a related entity that is intended to be a qualified plan within the meaning
of Section 401(a) of the Code.
IN WITNESS WHEREOF, this Agreement has been executed in behalf of the
Corporation and by the Optionee effective as of the day and year first above
written.
CLARUS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer
Attest:
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Secretary
[Corporate Seal]
OPTIONEE
/s/ Xxxx Xxxxxx (SEAL)
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Xxxx Xxxxxx
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SCHEDULE A
CLARUS CORPORATION
Stock Option Agreement
Date Option granted: August 15, 2001.
Date Option expires: August 14, 2011.
Number of shares subject to Option: 150,000 shares.
Option price (per share): $7.44.
Status of Option: Nonqualified Stock Option
Vesting Schedule
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Subject to the terms of the Agreement, the Option shall vest as follows: (i)
twenty-five percent (25%) of the shares subject to the Option shall vest on the
first anniversary of the date of grant; and (ii) the remaining portion of the
Option shall vest in equal monthly installments for 36 months beginning on
August 15, 2001. The Option shall expire on August 14, 2011, or such earlier
date as may be provided in the Agreement.
