EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated as of
December 6, 2002, is entered into between CLARUS CORPORATION, a Delaware
corporation (the "Company") and XXXXXX X. XXXXXXX (the "Employee").
W I T N E S S E T H :
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WHEREAS, the Company desires to employ the Employee and to be
assured of his services on the terms and conditions hereinafter set forth; and
WHEREAS, the Employee is willing to accept such employment on
such terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, the Company and the Employee hereby
agree as follows:
1. EMPLOYMENT. The Company hereby employs the Employee on the
terms set forth below, and the Employee accepts such employment, upon the terms
and subject to the conditions set forth in this Agreement.
2. TERM. The term of this Agreement shall commence on the date
hereof (the "Effective Date") and shall terminate on the third anniversary of
the Effective Date, subject to earlier termination pursuant to the provisions of
Section 10 hereof (the "Term").
3. DUTIES. (a) During the Term of this Agreement, the Employee
shall serve as the Executive Chairman of the Board of Directors of the Company
and shall perform all duties commensurate with his position. The Employee shall
devote as much time as is necessary to perform his duties hereunder and shall
use his best efforts, skills and abilities to promote the interests of the
Company and to diligently and competently perform the duties of his position.
4. COMPENSATION AND BENEFITS. (a) During the term of this
Agreement, the Company shall pay to the Employee, and the Employee shall accept
from the Company, as compensation for the performance of services under this
Agreement and the Employee's observance and performance of all of the provisions
hereof, a salary of $250,000 per year (the "Base Compensation"). The Employee's
salary shall be payable in accordance with the normal payroll practices of the
Company and shall be subject to withholding for applicable taxes and other
amounts. In addition to the Base Compensation, the Employee may, in the sole and
absolute discretion of the Board of Directors of the Company, be entitled to
performance bonuses which may be based upon a variety of factors, including the
Employee's performance and the achievement of Company goals, all as determined
in the sole and absolute discretion of the Board of Directors of the Company.
(b) During the term of this Agreement, the Employee shall
be entitled to participate in or benefit from, in accordance with the
eligibility and other provisions thereof, the Company's medical insurance and
other fringe benefit plans or policies as the Company may make available to, or
have in effect for, its personnel with commensurate duties from time to time. In
addition, during the Term the Company shall maintain term life insurance on the
Employee in the amount of $2,000,000 for the benefit of the Employee's designees
(the "Life Insurance"). The Company retains the right to terminate or alter any
such plans or policies from time to time. The Employee shall also be entitled to
four weeks paid vacation each year, sick leave and other similar benefits in
accordance with policies of the Company from time to time in effect for
personnel with commensurate duties.
(c) The Employee shall also be entitled to participate, at
the sole and absolute discretion of the Board of Directors of the Company, in
the Company's incentive stock option plan. Such participation shall be based
upon, among other things, the Employee's performance and the Company's
performance.
5. REIMBURSEMENT OF BUSINESS EXPENSES. During the term of this
Agreement, upon submission of proper invoices, receipts or other supporting
documentation satisfactory to the Company and in specific accordance with such
guidelines as may be established from time to time by the Company's Board of
Directors, the Employee shall be reimbursed by the Company for all reasonable
business expenses actually and necessarily incurred by the Employee on behalf of
the Company in connection with the performance of services under this Agreement.
6. REPRESENTATION OF EMPLOYEE; RESTRICTIONS ON SALE. (a) The
Employee represents and warrants that he is not party to, or bound by, any
agreement or commitment, or subject to any restriction, including but not
limited to agreements related to previous employment containing confidentiality
or noncompete covenants, which in the future may have a possibility of adversely
affecting the business of the Company or the performance by the Employee of his
duties under this Agreement.
7. CONFIDENTIALITY. For purposes of this Section 7, all
references to the Company shall be deemed to include all of the Company's
subsidiaries.
(a) CONFIDENTIAL INFORMATION. The Employee acknowledges
that as a result of his employment with the Company, the Employee has and will
continue to have knowledge of, and access to, proprietary and confidential
information of the Company, including, without limitation, inventions, trade
secrets, technical information, know-how, plans, specifications, methods of
operations, financial and marketing information, information with respect to
business and product development, including, without limitation, acquisitions
and new lines of business, and the identity of customers and suppliers
(collectively, the "Confidential Information"), and that such information, even
though it may be contributed, developed or acquired by the Employee, constitutes
valuable, special and unique assets of the Company developed at great expense
which are the exclusive property of the Company. Accordingly, the Employee shall
not, at any time, either during or subsequent to the term of this Agreement, use
(whether for personal gain or otherwise), reveal, report, publish, transfer or
otherwise disclose to
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any person, corporation or other entity, any of the Confidential Information
without the prior written consent of the Company, except (i) to responsible
officers and employees of the Company and other responsible persons who are in a
contractual or fiduciary relationship with the Company and who have a need for
such information for purposes in the best interests of the Company, (ii) for
such information which is or becomes of general public knowledge from authorized
sources other than the Employee, and (iii) for such disclosure as is required by
law or legal process and then only with as much prior written notice to the
Company as is practical under the circumstances and only to the extent required
by such law or legal process. The Employee acknowledges that the Company would
not enter into this Agreement without the assurance that all such Confidential
Information will be used for the exclusive benefit of the Company.
(b) RETURN OF CONFIDENTIAL INFORMATION. Upon the
termination of Employee's employment with the Company, the Employee shall
promptly deliver to the Company all drawings, manuals, letters, notes,
notebooks, reports and copies thereof and all other materials relating to the
Company's business, including without limitation any materials incorporating
Confidential Information, which are in the Employee's possession or control.
(c) INVENTIONS, ETC. The Employee will promptly disclose to
the Company all designs, processes, inventions, improvements, discoveries and
other information related to the business of the Company (collectively
"developments") conceived, developed or acquired by him alone or with others
during the term of this Agreement, whether or not conceived during regular
working hours, through the use of Company time, material or facilities or
otherwise. All such developments shall be the sole and exclusive property of the
Company, and upon request the Employee shall deliver to the Company all
drawings, models and other data and records relating to such developments. In
the event any such developments shall be deemed by the Company to be patentable
or copyrightable, the Employee shall, at the expense of the Company, assist the
Company in obtaining any patents or copyrights thereon and execute all documents
and do all other things necessary or proper to obtain letters patent and
copyrights and to vest the Company with full title thereto.
8. NON-COMPETITION. (a) For purposes of this Section 8, all
references to the Company shall be deemed to include all of the Company's
subsidiaries. Upon the consummation of the Redeployment of the Company's Assets
(as defined below), the Employee shall execute and deliver to the Company a
non-competition agreement (the "Non-competition Agreement") pursuant to which
the Employee shall agree that during the Term of this Agreement and for a period
of two (2) years thereafter, the Employee shall not engage, directly or
indirectly, or have an interest, directly or indirectly, anywhere in the United
States of America or any other geographic area where the Post-Redeployment
Company (as defined below) does business or in which its products or services
are marketed, alone or in association with others, as principal, officer, agent,
employee, director, partner or stockholder (except with respect to his
employment by the Post-Redeployment Company), or through the investment of
capital, lending of money or property, rendering of services or otherwise, in
any business competitive with or substantially similar to that engaged in by the
Post-Redeployment Company during the Term of this Agreement (it being understood
hereby, that the ownership by the Employee of five percent (5%) or less of the
stock of any company listed on a national securities exchange shall not be
deemed a
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violation of this Section 8 and it being further understood that nothing herein
shall prevent the Employee from engaging in the business of investing,
reinvesting, or trading in any entity or its securities or other financial
instruments). As used herein, "Redeployment of the Company's Assets" shall mean
the investment of more than fifty percent (50%) of the Company's assets, as of
the date hereof, in any other company, partnership, limited liability company,
or other entity, through a merger, purchase of stock or assets, or joint venture
and "Post-Redeployment Company" shall mean the operating business engaged in by
the Company after the Redeployment of the Company's Assets.
(b) USE OF MARKS. The Employee shall not at any time,
directly or indirectly, use or purport to authorize any person to use any name,
xxxx, logo, trade dress or other identifying words or images which are the same
as or similar to those used at any time by the Company or the Post-Redeployment
Company in connection with any product or service, whether or not such use would
be in a business competitive with that of the Company or the Post-Redeployment
Company.
(c) TOLLING OF RESTRICTED PERIOD. Any breach or violation
by the Employee of the provisions of this Section 8 shall toll the running of
any time periods set forth in this Section 8 for the duration of any such breach
or violation.
(d) TERMINATION OF RESTRICTION. Notwithstanding anything
else contained herein, the restrictions set forth in this Section 8, and any
restrictions set forth in the Non-competition Agreement, shall terminate
immediately if the Employee should no longer (i) be an officer or director of
the Company or (ii) own at least five percent (5%) of the outstanding shares of
capital stock of the Company.
9. REMEDIES. The restrictions set forth in Sections 7 and 8
are considered by the parties to be fair and reasonable. The Employee
acknowledges that the restrictions contained in Section 7 and 8 will not prevent
him from earning a livelihood. The Employee further acknowledges that the
Company would be irreparably harmed and that monetary damages would not provide
an adequate remedy in the event of a breach of the provisions of Sections 7 or
8. Accordingly, the Employee agrees that, in addition to any other remedies
available to the Company, the Company (i) shall be entitled to specific
performance, injunction, and other equitable relief to secure the enforcement of
such provisions and (ii) shall not be required to post bond in connection with
seeking any such equitable remedies. If any provisions of Sections 7, 8, or 9
relating to the time period, scope of activities or geographic area of
restrictions is declared by a court of competent jurisdiction to exceed the
maximum permissible time period, scope of activities or geographic area, the
maximum time period, scope of activities or geographic area, as the case may be,
shall be reduced to the maximum which such court deems enforceable. If any
provisions of Sections 7, 8, or 9 other than those described in the preceding
sentence are adjudicated to be invalid or unenforceable, the invalid or
unenforceable provisions shall be deemed amended (with respect only to the
jurisdiction in which adjudication is made) in such manner as to render them
enforceable and to effectuate as nearly as possible the original intentions and
agreement of the parties.
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10. TERMINATION. This Agreement may be terminated prior to the
expiration of the Term set forth in Section 2 upon the occurrence of any of the
events set forth in, and subject to the terms of, this Section 10.
(a) DEATH. This Agreement will terminate immediately and
automatically upon the death of the Employee. If this Agreement is terminated on
account of the death of the Employee, then the Employee's estate shall be
entitled to receive accrued Base Compensation and bonus through the date of such
termination, and the Employee and the Employee's estate shall have no further
entitlement to Base Compensation, bonus, or benefits, other than the proceeds of
the Life Insurance, from the Company following the effective date of such
termination.
(b) DISABILITY. This Agreement may be terminated at the
Company's option, immediately upon notice to the Employee, if the Employee shall
suffer a permanent disability. For the purposes of this Agreement, the term
"permanent disability" shall mean the Employee's inability to perform his duties
under this Agreement for a period of sixty (60) consecutive days or for an
aggregate of ninety (90) days, whether or not consecutive, in any twelve (12)
month period, due to illness, accident or any other physical or mental
incapacity, as reasonably determined by the Board of Directors of the Company.
In the event that a dispute arises with respect to the disability of the
Employee, the parties shall each select a physician licensed to practice in the
State of Connecticut to make such a determination. If the two (2) physicians
selected cannot agree on a determination, they will mutually select a third
physician and the decision of the majority of the three (3) physicians will be
binding. If this Agreement is terminated on account of the permanent disability
of the Employee, then the Employee shall be entitled to receive accrued Base
Compensation and bonus through the date of such termination, and the Employee
shall have no further entitlement to Base Compensation, bonus, or benefits from
the Company following the effective date of such termination.
(c) CAUSE. This Agreement may be terminated at the
Company's option, immediately upon notice to the Employee, and solely with
respect to clauses (i) and (iii) below, after the expiration of a 10-day cure
period after written notice thereof to the Employee, upon: (i) breach by the
Employee of any material provision of this Agreement; (ii) gross negligence or
willful misconduct of the Employee in connection with the performance of his
duties under this Agreement; (iii) Employee's failure to perform any reasonable
directive of the Board of Directors of the Company; or (iv) fraud, criminal
conduct, dishonesty or embezzlement by the Employee. If this Agreement is
terminated by the Company for cause, then the Employee shall be entitled to
receive accrued Base Compensation through the date of such termination, and the
Employee shall have no further entitlement to Base Compensation, bonus, or
benefits from the Company following the effective date of such termination.
(d) WITHOUT CAUSE. This Agreement may be terminated, other
than upon a Change in Control, at any time by the Company without cause
immediately upon giving written notice to the Employee of such termination. In
such event, Company shall pay to the Employee his accrued bonus through the date
of termination and shall continue to pay to the Employee his Base Compensation
in accordance with the normal payroll practices of the Company for twenty-four
(24) months after the effective date of such termination, and the
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Employee shall have no further entitlement to bonus or benefits from the Company
following the effective date of such termination. Notwithstanding anything else
contained herein, in the event that this Agreement is terminated by the Company
without cause, then any options for the purchase of common stock, par value
$.0001, of the Company ("Common Stock") held by the Employee shall vest and
become immediately exercisable and salable and any restrictions applicable to
any restricted stock award granted to the Employee shall automatically expire
and such shares of restricted stock shall vest and become immediately
exercisable and salable
(e) CHANGE IN CONTROL. (i) This Agreement may be
terminated bythe Company or the Employee within ninety (90) days after the
effectiveness of a Change in Control. In such event, Company shall pay to the
Employee his accrued bonus through the date of termination and shall continue to
pay to the Employee his Base Compensation in accordance with the normal payroll
practices of the Company for twenty-four (24) months after the effective date of
such termination. Notwithstanding anything else contained herein, in the event
that this Agreement is terminated by the Company without cause or by the
Employee in connection with a Change in Control, then any options for the
purchase of Common Stock of the Company held by the Employee shall vest and
become immediately exercisable and salable and any restrictions applicable to
any restricted stock award granted to the Employee shall automatically expire
and such shares of restricted stock shall vest and become immediately
exercisable and salable. In the event a Change in Control should occur prior to
the grant to the Employee of at least 500,000 shares of restricted Common Stock,
the Company shall pay to the Employee, in a lump sum payment simultaneously with
the effectiveness of such Change in Control, an amount equal to (i) the higher
of (a) the opening price of the Company's Common Stock, as listed on any
national securities exchange, on the date of such Change in Control and (b) the
value attributed to shares of the Company's Common Stock pursuant to such Change
in Control times (ii) the result derived from subtracting the number of any
shares of restricted stock granted to the Employee as of such Change in Control
from five-hundred thousand (500,000), provided that for the purpose of such
calculation, such result shall not be less than zero (0). In addition, upon a
termination of this Agreement in connection with a Change in Control, the
restrictions set forth in Section 8 hereof shall terminate, effective upon the
consummation of such Change in Control. Except as set forth in this Section
10(e), the Employee shall have no further entitlement to bonus or benefits from
the Company following the effective date of such termination.
(ii) As used herein, "Change in Control" shall mean any of the
following:
(a) The date any entity or person other than the
Employee or his affiliates shall have become the beneficial owner of, or shall
have obtained voting control over, fifty percent (50%) or more of the
outstanding Common Stock of the Company;
(b) The date there shall have been a change in a
majority of the Board of Directors of the Company within a 12-month period (not
including any period prior to the execution of this Agreement) unless the
nomination for election by the Company's stockholders of each new director was
approved by the vote of a majority of the directors then still in office who
were in office at the beginning of the 12-month period;
(c) The date the Company consummates (x) a merger or
consolidation of the Company with or into another corporation, in which the
Company is not the continuing or surviving corporation or pursuant to which any
shares of Common Stock of the
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Company would be converted into cash, securities or other property of another
corporation, other than (i) a merger or consolidation of the Company in which
holders of Common Stock immediately prior to such merger or consolidation have
the same proportionate ownership of Common Stock of the surviving corporation
immediately after such merger or consolidation as immediately before such merger
or consolidation and (ii) a merger or consolidation of the Company in which
holders of Common Stock immediately prior to such merger or consolidation
continue to own at least a majority of the combined voting securities of the
Company (or the surviving entity) outstanding immediately after such merger or
consolidation, or (y) the sale or other disposition of all or substantially all
of the assets of the Company.
(f) BY THE EMPLOYEE. This Agreement may be terminated at
the Employee's option upon thirty (30) days' notice to the Company. If this
Agreement is terminated by the Employee, then the Employee shall be entitled to
receive accrued Base Compensation and bonus through the date of such
termination, and the Employee shall have no further entitlement to Base
Compensation, bonus, or benefits from the Company following the effective date
of such termination.
11. TAX GROSS-UP AMOUNT. In the event that any amount or
benefit paid or distributed to the Employee pursuant to this Agreement, taken
together with any amounts or benefits otherwise paid or distributed to the
Employee by the Company or any affiliated company (collectively, the "Covered
Payments"), would be an excess parachute payment "as defined in Section 280G of
the Code and would thereby subject the Employee to the tax (the "Excise Tax")
imposed under Section 4999 of the Code (or any similar tax that may hereafter be
imposed), then the Company will reimburse the Employee in an amount equal to the
"Tax Gross-Up Amount" (as defined in the next sentence). The Tax Gross-Up Amount
means an amount equal to the sum of the Excise Tax, any other similar federal
tax and the amount of any other additional federal tax, including any additional
income tax, arising as a result of any payment pursuant to this Section 7(d),
which sum may be due and payable by the Employee or withheld by the Company
(collectively, the "Total Taxes") so that the Employee receives actual payments
or benefits, after payment or withholding, in an amount no less than that which
would have been received by him or her if no obligation for Total Taxes had
arisen.
12. MISCELLANEOUS.
(a) SURVIVAL. The provisions of Sections 7, 8, 9, 10,
11, and 12 shall survive the termination of this Agreement.
(b) ENTIRE AGREEMENT. This Agreement sets forth the
entire understanding of the parties and merges and supersedes any prior or
contemporaneous agreements between the parties pertaining to the subject matter
hereof.
(c) MODIFICATION. This Agreement may not be modified
or terminated orally, and no modification or waiver of any of the provisions
hereof shall be binding unless in writing and signed by the party against whom
the same is sought to be enforced.
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(d) WAIVER. Failure of a party to enforce one or more of
the provisions of this Agreement or to require at any time performance of any of
the obligations hereof shall not be construed to be a waiver of such provisions
by such party nor to in any way affect the validity of this Agreement or such
party's right thereafter to enforce any provision of this Agreement, nor to
preclude such party from taking any other action at any time which it would
legally be entitled to take.
(e) SUCCESSORS AND ASSIGNS. Neither party shall have the
right to assign this Agreement, or any rights or obligations hereunder, without
the consent of the other party; provided, however, that upon the sale of all or
substantially all of the assets, business and goodwill of the Company to another
company, or upon the merger or consolidation of the Company with another
company, this Agreement shall inure to the benefit of, and be binding upon, both
Employee and the company purchasing such assets, business and goodwill, or
surviving such merger or consolidation, as the case may be, in the same manner
and to the same extent as though such other company were the Company; and
provided, further, that the Company shall have the right to assign this
Agreement to any affiliate or subsidiary of the Company. Subject to the
foregoing, this Agreement shall inure to the benefit of, and be binding upon,
the parties hereto and their legal representatives, heirs, successors and
permitted assigns.
(f) COMMUNICATIONS. All notices, requests, demands and
other communications under this Agreement shall be in writing and shall be
deemed to have been given at the time personally delivered or when mailed in any
United States post office enclosed in a registered or certified postage prepaid
envelope and addressed to the addresses set forth below, or to such other
address as any party may specify by notice to the other party; provided,
however, that any notice of change of address shall be effective only upon
receipt.
TO THE COMPANY: Clarus Corporation
0000 Xxxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
WITH A COPY TO: Xxxx Xxxxxxx, P.C.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
TO THE EMPLOYEE: Xxxxxx X. Xxxxxxx
0 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
(g) SEVERABILITY. If any provision of this Agreement is
held to be invalid or unenforceable by a court of competent jurisdiction, such
invalidity or unenforceability shall not affect the validity and enforceability
of the other provisions of this Agreement and the provision held to be invalid
or unenforceable shall be enforced as nearly as possible according to its
original terms and intent to eliminate such invalidity or unenforceability.
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(h) JURISDICTION; VENUE. This Agreement shall be subject
to the exclusive jurisdiction of the courts located in New York County, New
York. Any breach of any provisions of this Agreement shall be deemed to be a
breach 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
irrevocably and expressly agree to submit to the jurisdiction of the courts
located in New York County, New York for the purpose of resolving any disputes
among them relating to this Agreement or the transactions contemplated by this
Agreement and waive any objections on the grounds of forum non conveniens or
otherwise. The parties hereto agree to service of process by certified or
registered United States mail, postage prepaid, addressed to the party in
question.
(i) GOVERNING LAW. This Agreement is made and executed and
shall be governed by the laws of the State of New York, without regard to the
conflicts of law principles thereof.
(j) NO THIRD-PARTY BENEFICIARIES. Each of the provisions
of this Agreement is for the sole and exclusive benefit of the parties hereto
and shall not be deemed for the benefit of any other person or entity.
IN WITNESS WHEREOF, each of the parties hereto have duly
executed this Agreement as of the date set forth above.
CLARUS CORPORATION
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Chief Administrative Officer
/s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx
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