EXHIBIT 4.6
Clarus Corporation
Stock Option Agreement
Xxxxxx X. Xxxxxxx, Optionee
Stock Option Agreement (the "Agreement") made as of this 23rd day of
December, 2002, by and between Clarus Corporation, a Delaware corporation,
having its principal office at Xxx Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000
(the "Company"), and Xxxxxx X. Xxxxxxx, an individual residing at Two Soundview
Drive, Greenwich, CT 06830 (the "Optionee").
Whereas, the Optionee is a valued and trusted employee and director of the
Company 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 and/or a director of the Company or any of its
affiliates or subsidiaries (each a "Participating Company") and through the
grant of an option to acquire an aggregate of 800,000 shares (the "Shares") of
common stock (the "Common Stock"), par value $.0001 per share, of the Company.
Capitalized terms not defined herein shall have the meanings ascribed to them in
the Employment Agreement (the "Employment Agreement"), dated as of December 6,
2002, between the Company and the Optionee.
Now, Therefore, the parties agree as follows:
1. Option Grant and Exercise Price. Subject to the provisions and terms
hereinafter set forth, the Company hereby grants to the Optionee, as of December
20, 2002 (the "Grant Date"), the right, privilege and option to purchase (a)
400,000 shares of Common Stock, having an exercise price of $7.50 per share (the
"$7.50 Option"); and (b) 400,000 shares of Common Stock, having an exercise
price of $10.00 per share (the "$10.00 Option", together with the $7.50 Option,
the "Option"). It is Not intended that the Option evidenced by this Agreement
shall be an incentive stock option as defined in Section 422 of the United Sates
Internal Revenue Code of 1986, as amended, and any regulations promulgated
thereunder (the "Code").
2. 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., New York time, on December 20, 2012, subject to earlier
termination as provided in Section 4 hereof (the "Expiration Date"). The Option
may be exercised at any time, or from time to time, prior to the Expiration Date
as to any part or all of the Shares covered by the Option, pursuant to the
vesting schedules contained in Section 3.1 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.
3. Vesting Schedule.
3.1 (a) The Shares into which the $7.50 Option is exercisable shall
vest in accordance with the following schedule:
Number of
Vesting Date Shares Exercisable
December 20, 2003 80,000 Shares
December 20, 2004 80,000 Shares
December 20, 2005 80,000 Shares
December 20, 2006 80,000 Shares
(b) The Shares into which the $10.00 Option is exercisable shall
vest in accordance with the following schedule:
Number of
Vesting Date Shares Exercisable
December 20, 2003 80,000 Shares
December 20, 2004 80,000 Shares
December 20, 2005 80,000 Shares
December 20, 2006 80,000 Shares
3.2 Notwithstanding the foregoing or any contrary or inconsistent
provision of this Agreement, the Option shall vest in full and become
immediately exercisable, not later than immediately prior to the effective date
of any Change in Control (as such term is defined in the Employment Agreement
defined). The Company hereby undertakes to give the Optionee notice of any
Change of Control Event within five (5) days thereof.
3.3 Notwithstanding the vesting schedule set forth in Section 3.1
hereof, such vesting schedule may be accelerated by the Board of Directors or
the Compensation Committee of the Board of Directors (the "Committee") in their
sole decision.
4. Termination.
4.1 Voluntary Termination. If Optionee voluntarily terminates his
employment with the Company, then this Option, to the extent (and only to the
extent) that it is vested in accordance with the schedules set forth in Section
3.1 hereof on the date of termination, may be exercised by Optionee no later
than three (3) months after the date of termination, or such longer time period
not exceeding five (5) years as may be determined by the Committee, but in any
event no later than the Expiration Date.
4.2 Termination Because of Death or Disability. If Optionee is
terminated because of death or disability (as such term is used in the
Employment Agreement) of Optionee, then this Option, to the extent that it is
vested in accordance with the schedules set forth in Section 3.1 hereof on the
date of termination, may be exercised by Optionee (or Optionee's legal
representative or authorized assignee) no later than twelve (12) months after
the date of termination (or such longer time period not exceeding five (5) years
as may be determined by the Committee), but in any event no later than the
Expiration Date.
4.3 Termination for Cause. If the Optionee is terminated for cause
(as such term is used in the Employment Agreement), neither the Optionee, nor
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 any 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.
4.4 Termination Without Cause. If the Optionee is terminated without
cause (as such term is used in the Employment Agreement), then any unvested
portion of the Option shall immediately vest and become nonforfeitable.
4.5 No Obligation to Employ. Nothing in this Agreement shall confer
on Optionee any right to continue in the employ of, or other relationship with,
the Company or any subsidiary of the Company, 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 contract. This Agreement does
not guarantee employment for the length of time of the vesting schedules set
forth in Section 3 hereof or for any portion thereof.
5. Manner of Exercise.
5.1 Stock Option Exercise Agreement. 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 deliver to
the Company an executed stock option exercise agreement in the form attached
hereto as Exhibit A, or, at the Committee's sole discretion, in such other form
as may be approved by the Company from time to time (the "Exercise Agreement"),
which shall set forth, 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 must submit documentation reasonably acceptable to the
Company that such person has the right to exercise this Option.
5.2 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.
5.3 Payment. The Exercise Agreement shall be accompanied by full
payment of the applicable exercise price (the "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 and to the extent permitted by applicable law: (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 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 absolute discretion, may allow for the
full payment of the aggregate Exercise Price for the Shares being purchased to
be made by any other method.
5.4 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 elects,
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. 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.
5.5 Issuance of Shares. Provided that the Exercise Agreement and
payment are in form and substance satisfactory to the Company and 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.
6. Certain Adjustments.
6.1 Assumption or Replacement of Options by Successor. Subject to
the provisions of Section 3.2 above, if a Change in Control occurs, the
successor company in any Change in Control (or the Company, if there is no
successor company) may, if approved in writing by the Committee or Board of
Directors prior to any Change in Control, (i) substitute equivalent options or
provide substantially similar consideration to the Optionee as was provided to
stockholders in such Change in Control (after taking into account the existing
provisions hereof), or (ii) issue, in place of this Option a substantially
similar option or substantially similar other securities or substantially
similar other property.
6.2 Other Treatment. Subject to the rights set forth in Section 3.2
(including without limitation the provisions for acceleration of vesting and
notice of a Change in Control) and the rights and limitations set forth in this
Section 6, if a Change in Control occurs or has occurred, any outstanding
unexercised Options, will be treated as provided in the applicable agreement or
plan of merger, consolidation, dissolution, liquidation, or sale of assets
constituting the Change in Control.
6.3 Adjustment of Shares. In the event that the number of
outstanding shares is changed by a stock dividend, recapitalization, stock
split, reverse stock split, subdivision, combination, reclassification or
similar change in the capital structure of the Company without consideration,
then the Exercise Price of and number of Shares acquirable upon exercise of this
Option will be proportionately adjusted, subject to any required action by the
Board or the stockholders of the Company and compliance with applicable
securities laws; provided, however, that fractions of a Share will not be issued
will be rounded to the nearest whole Share.
7. 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 or quotation system on which the Company's Common Stock may be listed
or traded, 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 Securities and Exchange Commission, any state
securities commission or any stock exchange to effect such compliance.
8. Nontransferability of Option. This Option may not be transferred in any
manner other than by will or by the laws of descent and distribution. During the
lifetime of Optionee, the Option shall be exercisable only by Optionee
personally or by the Optionee's legal representative. The terms of this Option
shall be binding upon the executors, administrators, successors and assigns of
Optionee.
9. 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.
10. 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.
11. Entire Agreement. This Agreement and the Exercise Agreement 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.
12. 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.
13. 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.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, 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 New
York.
15. Tax Consequences. 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.
16. Covenants of the Optionee
The Optionee agrees (and for any heir, executor, administrator,
legal representative, successor, or assignee of Optionee hereby agrees), as a
condition upon exercise of the Option granted hereunder:
(a) Upon the request of the Company, to execute and deliver a
certificate, in form satisfactory to the Company, 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.
(b) Upon the request of the Company, to execute and deliver a
certificate, in form satisfactory to the Company, 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 (x) 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 (y) 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.
(c) 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.
17. Obligations of the Company
17.1 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 payment of the aggregate Exercise Price in accordance with the
terms of this Agreement.
17.2 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 aggregate Exercise Price in
accordance with the terms of this Agreement for the portion of the Option
exercised.
17.3 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.
17.4 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.
17.5 The Company may endorse such legend or legends upon the
certificates for Shares issued to the Optionee pursuant hereto 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 hereof and any
agreement between the Company and the Optionee with respect to such Shares.
17.6 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.
17.7 All Shares issued following exercise of the Option and the
payment of the aggregate Exercise Price in accordance with the terms of this
Agreement therefor shall be fully paid and non-assessable to the extent
permitted by law.
18. Miscellaneous
18.1 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.
18.2 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.
18.3 This Agreement may be executed in any number of counterparts,
but all counterparts will together constitute but one agreement.
18.4 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.
[Signature Page Follows:]
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 Grant Date.
Clarus Corporation
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
Title: Chief Administrative Officer
/s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx, Optionee
EXHIBIT A
CLARUS CORPORATION
STOCK OPTION EXERCISE AGREEMENT
I hereby elect to purchase the number of shares of Common Stock of Clarus
Corporation (the "Company") as set forth below:
Optionee _________________________________________
Social Security Number: _________________________________________
Address: _________________________________________
Number of Shares Purchased: _________________________________________
Exercise Price per Share: _________________________________________
Aggregate Exercise Price: _________________________________________
Date of Option: _________________________________________
Exact Name of Title to Shares: _________________________________________
1. DELIVERY OF EXERCISE PRICE. Optionee hereby delivers to the Company the
Aggregate Exercise Price, to the extent permitted in the Option Agreement (the
"Option Agreement"), as follows (check as applicable and complete):
|_| in cash (by check) in the amount of $_____________________;
|_| by cancellation of indebtedness of the Company to Optionee in the amount of
$___________________________________;
|_| by delivery of ______________________________ fully-paid, nonassessable and
vested shares of the Common Stock of the Company owned by Optionee for at least
six (6) months prior to the date hereof (and which have been paid for within the
meaning of SEC Rule 144), or obtained by Optionee in the open public market, and
owned free and clear of all liens, claims, encumbrances or security interests,
valued at the current Fair Market Value of $____________________ per share;
[ ] by tender of a promissory note in the principal amount of
$________________________, secured by a Pledge Agreement of even date herewith
(the par value of the Shares is tendered in cash (or by check));
|_| by the waiver hereby of compensation due or accrued to Optionee for services
rendered in the amount of $------------------------------------ ;
|_| through a "same-day-sale" commitment, delivered herewith, from Optionee and
the NASD Dealer named therein, in the amount of
$_______________________________; or
|_| through a "margin" commitment, delivered herewith from Optionee and the NASD
Dealer named therein, in the amount of
$_________________________________________.
2. MARKET STANDOFF AGREEMENT. Optionee, if requested by the Company and an
underwriter of Common Stock (or other securities) of the Company, agrees not to
sell or otherwise transfer or dispose of any Common Stock (or other securities)
of the Company held by Optionee during the period requested by the managing
underwriter following the effective date of a registration statement of the
Company filed under the Securities Act, provided that all officers and directors
of the Company are also requested to enter into similar agreements. Such
agreement shall be in writing in a form satisfactory to the Company and such
underwriter. The Company is hereby entitled to impose stop-transfer instructions
with respect to the shares (or other securities) subject to the foregoing
restriction until the end of such period.
3. TAX CONSEQUENCES. OPTIONEE UNDERSTANDS THAT OPTIONEE MAY SUFFER ADVERSE TAX
CONSEQUENCES AS A RESULT OF OPTIONEE'S PURCHASE OR DISPOSITION OF THE SHARES.
OPTIONEE REPRESENTS THAT OPTIONEE HAS CONSULTED WITH ANY TAX CONSULTANT(S)
OPTIONEE DEEMS ADVISABLE IN CONNECTION WITH THE PURCHASE OR DISPOSITION OF THE
SHARES AND THAT OPTIONEE IS NOT RELYING ON THE COMPANY FOR ANY TAX ADVICE.
4. ENTIRE AGREEMENT. The Option Agreement is incorporated herein by reference.
This Exercise Agreement and the Option Agreement constitute the entire agreement
and understanding of the parties and supersede in their entirety all prior
understandings and agreements of the Company and Optionee with respect to the
subject matter hereof, and are governed by New York law applicable to contracts
executed and to be fully performed therein, other than conflict of laws
principles thereof directing the application of any law other than that of New
York.
Date: _________________________ _________________________________
SIGNATURE OF OPTIONEE
