Re: Lock-up Agreement
Exhibit
10.11
May 28,
2010
Clarus
Corporation
0000 Xxxx
0000 Xxxxx
Salt Lake
City, UT 84124
Attention: Corporate
Secretary
Dear
Sirs/Madams:
The undersigned (the
“Specified Holder”) acknowledges that pursuant to that certain merger agreement
(the “Merger Agreement”) dated as of May 7, 2010, among Clarus Corporation, a
Delaware corporation (the “Company”), Everest/Sapphire Acquisition, LLC.,
Everest Merger I Corp., Everest Merger II, LLC, Xxxxxxx Mountain Products, Inc.
and Kanders GMP Holdings, LLC and Xxxxxxxx Xxxxxxx Investment Company, LLC, the
Company will issue to the Specified Holder ________ shares (the “Consideration
Shares”) of the Company’s common stock, par value $0.0001 per share (“Company
Common Stock”). The Specified Holder understands that the Purchaser
and the Company are willing to proceed with this transaction and issue the
Consideration Shares only if the Specified Holder for itself and the successors
and assigns of the Specified Holder, agrees to this Lock-up
Agreement. Capitalized terms used, but not defined, herein shall have
the respective meanings ascribed to them in the Merger Agreement.
In consideration of the consummation
of the Merger Agreement, including the Specified Xxxxxx’s receipt of the
Consideration Shares, the Specified Holder agrees that it will not during the
Lock Up Period (as defined below), directly or indirectly,
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(1)
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offer
for sale, sell, pledge, transfer, negotiate, assign, or otherwise create
any interest in or otherwise dispose of (or enter into any transaction or
device that is designed to, or could reasonably be expected to, result in
any of the foregoing) the Consideration Shares,
or
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(2)
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enter
into any swap or other derivatives transaction that transfers to another,
in whole or in part, any of the economic benefits or risks of ownership of
the Consideration Shares, including, but not limited to, short sales,
puts, calls or other hedging transactions, including private hedging
transactions.
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Notwithstanding the
provisions of Section (1) above, the Specified Holder shall be permitted to
hypothecate the Consideration Shares, subject to the terms, including the
Company’s Right of Set-off, set forth in the Merger Agreement.
As
used herein, the “Lock-up Period” shall mean the period commencing on the date
hereof and ending on the second anniversary of the date hereof; provided,
however, if, at any time during the Lock-up Period, a Purchaser Indemnified
Party asserts a claim in accordance with Section 11.4 of the Merger Agreement
(the “Indemnification Claim”), the Lock-Up Period will, until there
is a Final Determination with respect to such Indemnification Claims, be
extended to such number of Consideration Shares having a value equal to 25% of
the Estimated Losses, as defined below, based on a per share price of $6 per
share; provided, however, that, in lieu of the Lock-up Period being extended to
the Consideration Shares, subject to the execution of an escrow agreement in
form and substance satisfactory to the Company in its sole discretion, the
Specified Holder may deposit in escrow an amount in cash equal to 25% of the
Estimated Losses asserted by a Purchaser Indemnified Party in an Indemnification
Claim. “Estimated Losses” shall mean the Purchaser Indemnified
Party’s good faith estimate of the dollar amount of any such Indemnification
Claim set forth in writing to the Stockholders. The parties hereto
acknowledge and agree that upon a Final Determination with respect to any
Indemnification Claim, the Consideration Shares shall be subject to reduction
and cancellation in accordance with Section 11.6(c) of the Merger
Agreement.
Notwithstanding the terms and
conditions set forth above, the principal member of the Specified Holder may
transfer Consideration Shares to (a) his “immediate family members” (as defined
herein), (b) any trust, the sole beneficiaries of which are the principal member
of the Specified Holder’s immediate family members or (c) the personal
representative, custodian or conservator in the case of the death, bankruptcy or
adjudication of incompetency of the principal member of the Specified Holder, as
the case may be (each person or entity set forth in clauses (a), (b) or (c), a
“Permitted Transferee”); provided that, as a precondition to any such transfer,
any such Permitted Transferee shall execute and deliver to the Company an
agreement to be subject to the terms of this Lock-up Agreement to the same
extent as if the Permitted Transferee were an original party to this Lock-up
Agreement. For the purposes of this paragraph, the term “immediate
family members” shall mean the spouse, father, mother, or children of the
principal member of the Specified Holder.
The parties hereto acknowledge and
agree that any transfer of Consideration Shares in violation of the foregoing
paragraph shall be void ab initio and the Company shall cause its agents,
including its transfer agent, to refuse to register, record or make any transfer
of Consideration Shares if such transfer would constitute a violation or breach
of this Lock-up Letter Agreement.
The Specified Holder understands that
the Purchaser will proceed with the Merger Agreement in reliance on this Lock-up
Agreement, and that any certificates representing Consideration Shares will
contain a restrictive legend stating that the transfer of such shares is
restricted in accordance with the terms of this Agreement.
The Specified Xxxxxx agrees that it
will execute any additional documents reasonably necessary or related to the
enforcement of this Lock-up Agreement. The Specified Holder’s
obligations under this Lock-up Agreement shall be binding upon its successors
and assigns or heirs, as the case may be.
The Specified Holder hereby warrants
and represents that it has the full capacity to enter into and carry out all the
terms of this Lock-up Agreement and is not subject to or bound by any agreement
or instrument, or the order of any court or other governmental authority which
in any way restricts the Specified Holder’s capacity to enter into and carry out
all the terms of this Lock-up Agreement.
This Lock-up Agreement, and all
rights and obligations of the parties hereunder, shall be construed and enforced
in accordance with and governed by the law of the State of New
York. This Lock-up Agreement shall be subject to the exclusive
jurisdiction of the courts of New York County, New York. Any breach
or default of any provision hereof shall be deemed to be a breach or default
occurring in the State of New York by virtue of a failure to perform an act
required to be performed in the State of New York, and the parties, for
themselves and their lawful successors, irrevocably and expressly agree to
submit to the jurisdiction of the courts of the State of New York for the
purpose of enforcing the terms of hereof and the transactions contemplated
hereby. The parties irrevocably waive (for themselves and their
lawful successors), to the fullest extent permitted by law, any objection which
they may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Lock-up Agreement or any judgment
entered by any court in respect hereof brought in New York County, New York, and
further irrevocably waive any claim that any suit, action or proceeding brought
in New York County, New York has been brought in an inconvenient
forum.
Any notices required or permitted
hereunder shall be made pursuant to the notice provisions set forth in Section
12.11 of the Merger Agreement.
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Very
truly yours,
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By:
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Name:
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Title:
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CONFIRMED
AND AGREED TO AS OF
THE DATE
FIRST WRITTEN ABOVE:
CLARUS
CORPORATION
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By:
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Name:
Xxxxxx X. Xxxxxxxxx
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Title:
Chief Financial Officer
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