EXHIBIT 10.8
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") is made effective as of the 1st
day of January, 2000, by and between Clarus Corporation, a Delaware corporation
(the "Company") and Xxxxxxx X. Xxxxxxx, a Georgia resident, ("Employee").
WHEREAS, the Company and Employee desire to continue the employment of
Employee with the Company; and
WHEREAS, the Company and Employee desire to set forth in writing all of the
covenants, terms and conditions of their agreement and understanding as to such
employment.
NOW THEREFORE, in consideration of the foregoing, the mutual promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
1. Employment and Duties. The Company hereby employs Employee, and
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Employee hereby accepts continued employment, as President and Chief Executive
Officer of the Company. Employee agrees to serve in such capacities and to
faithfully and diligently perform such duties, responsibilities and services
that are incidental thereto, as well as such other duties, responsibilities and
services as may be prescribed or requested by the Board of Directors of the
Company from time to time. Employee shall devote his full time, attention and
best efforts to the performance of his duties, responsibilities and services to
the Company in a lawful manner and in accordance with all policies of and
instructions from the Company.
2. Term. The term of this Agreement will commence on the date set forth
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above and will terminate one (1) year thereafter, unless said Agreement is
terminated at an earlier date as provided herein. The Agreement shall
automatically renew for identical and successive one (1) year term(s) unless
either party notifies the other of its intention not to renew the Agreement at
least 30 days prior to the expiration of the one year term then in effect;
provided, however, that all post-termination rights and obligations hereunder
shall survive termination or expiration of this Agreement as provided herein.
3. Compensation and Employee Benefits.
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(a) Compensation. Employee shall receive an annualized salary (the
"Base Salary") of Two Hundred Fifty Thousand Dollars ($250,000.00), which shall
be paid in accordance with the Company's regular payroll practices and subject
to any and all withholdings pursuant to applicable law.
Employee is also eligible to receive additional incentive compensation
as set forth on Exhibit A if the Company meets the revenue, expense and
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profitability targets and the Employee attains the specified management business
objectives set forth on Exhibit "A," which is attached hereto and incorporated
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herein by reference. The Employee's right to receive
incentive compensation hereunder will be measured on a quarterly basis and, if
earned, will be payable quarterly.
(b) Employee/Fringe Benefits. Employee shall be eligible to
participate in all employee benefit programs and fringe benefits (including, but
not limited to, medical, dental, vision, life, accidental death and
dismemberment, travel, accident and short-term/long-term disability insurance
plans or programs, paid time-off, paid holidays, etc.) generally made available
to executive employees of the Company, subject to any and all terms, conditions,
and eligibility requirements for said programs and benefits, as may from time to
time be prescribed by the Company. The Company may alter, modify, add to or
delete its employee benefit plans at any time as it determines in its sole
discretion.
(c) Other Business Expenses. The Company shall reimburse Employee
for his actual out-of-pocket, business expenses that are incurred by Employee
and are reasonable and necessary in relation to and in furtherance of Employee's
performance of his duties to the Company. Such reimbursement shall be subject
to compliance with the Company's reimbursement policies and the provision of
substantiating documents of said expenses as may be reasonably requested by the
Company.
(d) Vacation. Employee shall be entitled to twenty-four (24) days
Paid Time Off (PTO) per year (which includes vacation, illness and other
personal time away from work) as well as seven (7) days of paid holiday in
accordance with the Company's normal policies; provided, that vacation shall be
taken at such times as shall not unreasonably interfere with the Employee's
responsibilities hereunder. Up to five (5) days of unused PTO may be carried
forward from one year into the next.
4. Termination. This Agreement may be terminated prior to the expiration
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of the term as follows:
(a) Death or Disability. The Employee's employment hereunder shall
terminate automatically upon Employee's death. In such event, Employee's estate
shall be entitled to receive any earned and unpaid Base Salary, prorated through
the date of death. If the Employee is prevented from performing his material
duties hereunder as a result of physical or mental illness, injury or incapacity
for either (i) a period of ninety (90) consecutive days or (ii) more than one
hundred-eighty (180) days in the aggregate in any twelve (12) month period, then
the Company may terminate the Employee's employment upon written notice to
Employee. While receiving disability income payments under the Company's
disability income plan, the Employee shall not be entitled to receive any Base
Salary hereunder, but shall continue to participate in the Company's benefit
plans, to the extent permitted by such plans, until the termination of his
employment.
(b) For Cause. The Company may terminate the Employee's employment
hereunder for Cause at any time upon notice to the Employee setting forth in
reasonable detail the nature of such Cause. In the event that the Company
terminates Employee's employment for Cause (or Employee resigns from his
employment with the Company), the Company shall not be
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obligated to pay any salary or other compensation to Employee after the
effective date of termination, other than accrued and unpaid Base Salary earned
through the date of termination.
(c) Without Cause. In the event the Company terminates this Agreement
without Cause, then Employee shall be entitled to (i) severance pay in the form
of continuation of his annualized Base Salary for a period of one (1) year from
the date of such termination, which shall be paid in accordance with the
Company's regular payroll practices and subject to any and all withholdings
pursuant to applicable law, and (ii) a pro rata portion of his incentive bonus,
if any, contemplated by Section 3(a) for the quarter in which his employment
terminated based upon the number of days in the quarter elapsed prior to such
termination. In addition, the Company shall continue to provide, through COBRA
or otherwise, medical insurance coverage contemplated by Section 3(c) for a
period of twelve months following the date of Employee's termination without
Cause, or Employee's earlier commencement of employment with any other entity.
Payment of the severance benefits set forth herein shall be subject to
Employee's continued compliance with the provisions of Section 5 hereof.
(d) Change of Control. The Employee may terminate his employment
hereunder at any time during the three (3) month period beginning three (3)
months after a Change of Control has occurred by written notice given to the
Company. In the event of such termination:
(i) The Company shall continue to pay to the Employee his Base
Salary as of the date of the Change of Control for a period of twelve
(12) months from the date of termination.
(ii) The Company shall pay to the Employee a pro rata portion
of his incentive bonus, if any, contemplated by Section 3(a) for the
quarter in which his employment terminated based upon the number of
days in the quarter elapsed prior to termination.
(iii) The Company shall continue to provide Employee with the
medical insurance coverage contemplated by Section 3(c), through COBRA
or otherwise, for a period equal to the earlier of (x) twelve (12)
months from the date of termination or (y) Employee's commencement of
employment with any other entity.
5. Protective Covenants. Employee is, and will become during the course
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of employment, intimately familiar with Confidential Information, Trade Secrets,
products and services, and other property of the Company. The protection of the
Company requires that all such property and information must remain the sole and
private property of the Company to be used only for the Company's benefit, not
to be disclosed to any other party nor used by Employee against the Company or
for the benefit of any other person. Employee shall, upon request of the
Company, and without request promptly on termination of employment, deliver all
Company Property in Employee's possession or control to the Company. Employee
acknowledges and agrees that title to all Company Property is vested in the
Company. In
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addition, Employee warrants, represents, covenants and agrees, during the term
of his employment and for the periods described below, as follows:
(a) Covenant Not to Compete in Certain Ways. By virtue of his
position with the Company, Employee shall be given an opportunity to, and shall
have an obligation to, participate in strategic planning with respect to
competitors of the Company and shall be made privy to the Company's marketing
strategy, product development, pricing, timing and other matters specifically
designed to address market competition. Employee further acknowledges that the
use and/or disclosure by him of such secret information and knowledge would be
inevitable in the event Employee were to become engaged by such a competitor in
a capacity similar to the capacity in which Employee is employed by the Company.
Employee therefore agrees that, for a period of one (1) year following
termination of his employment with the Company, he shall not directly or
indirectly, within the State of Georgia or within a 100-mile radius of the
addresses of the competitors of the Company expressly listed on Exhibit "B"
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hereto (the "Named Competitors"), become engaged or employed by any Named
Competitor in a capacity substantially identical to the functions and duties
Employee performs on behalf of the Company. Employee acknowledges that the
Named Competitors designated on Exhibit "B" are the key competitors of the
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Company as of the date hereof. Employee acknowledges and agrees that there are
many other entities with whom Employee can profitably use his skills and
abilities, including other competitors of the Company, and that it is entirely
proper and reasonable for him to agree not to work for the Named Competitors in
the prescribed capacity for the prescribed times and within the prescribed
locations. The parties agree that Exhibit "B" may be updated and amended from
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time to time by substituting therefor a modified Exhibit "B" that has been
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signed by both the Company and Employee, and that the Named Competitors shall
thereafter refer to the companies listed on such amended Exhibit "B."
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(b) Covenant Not to Solicit Business from Certain Customers. The
Employee acknowledges that during the course of his employment by the Company,
Employee shall have a duty to, and shall be given an opportunity to, make
contact with and strengthen ties with Customers and potential Customers of the
Company. The Employee shall not, for a period of two (2) years after
termination of his employment with the Company, directly or indirectly, for
himself or any other person or entity, solicit any Customer for the purchase or
license by such Customer of any product or service competitive with any of the
products and services which are offered by the Company within the one-year
period preceding termination of Employee's employment.
(c) Covenant Not to Solicit Employees. For a period of two (2) years
following the date of termination of his employment with the Company, Employee
shall not, directly or indirectly, for himself or any other person or entity,
employ, solicit or recommend the employment of any employee of the Company for
the purpose of causing such employee to take employment with Employee or any
other person or entity until such employee or former employee has ceased to be
employed by the Company for a period of six (6) months.
(d) Covenant Not to Disclose Confidential Information or Trade
Secrets. Employee shall not disclose to any person whatsoever or use any Trade
Secrets or Confidential Information of the Company, other than as necessary in
the fulfillment of his duties to the
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Company in the course of employment. This paragraph shall be effective during
the term of this Agreement and for a period of two (2) years after termination
of employment with respect to all Confidential Information, and shall remain in
effect with respect to all Trade Secrets so long as such information remains a
trade secret under applicable law.
6. Work Product; Inventions.
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(a) Ownership by the Company. The Company shall own all right, title
and interest in and to all work product developed by Employee in Employee's
provision of services to the Company, including without limitation, all
preliminary designs and drafts, all other works of authorship, all derivative
works and patentable and unpatentable inventions and improvements, all copies of
such works in whatever medium such copies are fixed or embodied, and all
worldwide copyrights, trademarks, patents or other intellectual property rights
in and to such works (collectively the "Work Product"). All copyrightable
materials of the Work Product shall be deemed a "work made for hire" for the
purposes of U.S. Copyright Act, 17 U.S.C. (S) 101 et seq., as amended.
(b) Assignment and Transfer. In the event any right, title or
interest in and to any of the Work Product (including without limitation all
worldwide copyrights, trademarks, patents or other intellectual property rights
therein) does and shall not vest automatically in and with the Company, Employee
agrees to and hereby does irrevocably assign, convey and otherwise transfer to
the Company, and the Company's respective successors and assigns, all such
right, title and interest in and to the Work Product with no requirement of
further consideration from or action by Employee or the Company.
(c) Registration Rights. The Company shall have the exclusive
worldwide right to register, in all cases as "claimant" and when applicable as
"author," all copyrights in and to any copyrightable element of the Work
Product, and file any and all applicable renewals and extensions of such
copyright registrations. The Company shall also have the exclusive worldwide
right to file applications for and obtain (i) patents on and for any of the Work
Product in Employee's name and (ii) assignments for the transfer of the
ownership of any such patents to the Company.
(d) Additional Documents. Employee agrees to execute and deliver all
documents requested by the Company regarding or related to the ownership and/or
other intellectual property rights and registrations specified herein. Employee
hereby further irrevocably designates and appoints the Company as Employee's
agent and attorney-in-fact to act for and on Employee's behalf and stead to
execute, register and file any such assignments, applications, registrations,
renewals and extensions and to do all other lawfully permitted acts to further
the registration, prosecution and issuance of patents, copyright or similar
protections with the same legal force and effect as if executed by Employee.
7. Employee's Obligations Upon Termination. Upon the termination of
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Employee's employment hereunder for whatever reason, Employee automatically
tenders Employee's resignation from any office Employee may hold with the
Company, and Employee
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shall not at any time thereafter represent himself to be connected or to have
any connection with the Company or its related entities.
8. Assignment. Due to the personal service nature of Employee's
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obligations, Employee may not assign this Agreement. Subject to the
restrictions in this Section, this Agreement shall be binding upon and benefit
the parties hereto, and their respective heirs, successors or assigns.
9. Legality and Severability. The parties covenant and agree that the
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provisions contained herein are reasonable and are not known or believed to be
in violation of any federal, state, or local law, rule or regulation. In the
event a court of competent jurisdiction finds any provision herein (or subpart
thereof) to be illegal or unenforceable, the parties agree that the court shall
modify said provision(s) (or subpart(s) thereof) to make said provision(s) (or
subpart(s) thereof) and this Agreement valid and enforceable. Any illegal or
unenforceable provision (or subpart thereof), or any modification by any court,
shall not affect the remainder of this Agreement, which shall continue at all
times to be valid and enforceable.
10. Entire Agreement; Modification; Governing Law. This Agreement
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constitutes the entire understanding between the parties regarding the subject
matters addressed herein and supersedes any prior oral or written agreements
between the parties. This Agreement can only be modified by a writing signed by
both parties, and shall be interpreted in accordance with and governed by the
laws of the State of Georgia without regard to the choice of law provisions
thereof. Notwithstanding the foregoing, the protective provisions contained in
Paragraph 5 hereof shall be governed and enforced in accordance with the laws of
the state in which enforcement of such provisions is sought.
11. Negotiated Agreement. Employee and the Company agree that this
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Agreement shall be construed as drafted by both of them, as parties of
equivalent bargaining power, and not for or against either of them as drafter.
12. Review and Voluntariness of Agreement. Employee acknowledges
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Employee has had an opportunity to read, review, and consider the provisions of
this Agreement, that Employee has in fact read and does understand such
provisions, and that Employee has voluntarily entered into this Agreement.
13. Non-Waiver. The failure of the Company to insist upon or enforce
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strict performance of any provision of this Agreement or to exercise any rights
or remedies thereunder will not be construed as a waiver by the Company to
assert or rely upon any such provision, right or remedy in that or any other
instance.
14. No Conflicting Obligations. Employee hereby acknowledges and
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represents that Employee's execution of this Agreement and performance of
employment-related obligations and duties for the Company as set forth hereunder
will not cause any breach, default or violation of any other employment, non-
disclosure, confidentiality, non-competition or other agreement to which
Employee may be a party or otherwise bound. Employee hereby agrees that he will
not use in the performance of his duties for the Company (or otherwise disclose
to the Company) any
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trade secrets or confidential information of any prior employer or other person
or entity if and to the extent that such use or disclosure may cause a breach or
violation of any obligation or duty owed to such employer, person, or entity
under any agreement or applicable law.
15. Forum; Encorcement. In the event of litigation arising from this
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Agreement, Employee hereby expressly consents to jurisdiction and venue in any
State or Federal Court sitting in Xxxxxx County, State of Georgia, and waives
any objections to such jurisdiction and venue. Employee further agrees that if
Employee were to breach the provisions of Section 5 or 6 hereof, the Company
would be irreparably harmed and therefore, in addition to any other remedies
available at law, the Company shall be entitled to equitable relief, including
without limitation, specific performance and preliminary and permanent
injunction, against any breach or threatened breach of said Sections 5 and 6,
without having to post bond.
16. Notices. Any notice or other communications under this Agreement
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shall be in writing, signed by the party making the same, and shall be delivered
personally or sent by certified or registered mail, postage prepaid, addressed
as follows:
If to Employee: Xxxxxxx X. Xxxxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
If to the Company: Clarus Corporation
0000 Xxxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: __________________
or to such other address as may hereafter be designated by either party hereto.
All such notices shall be deemed given on the date received.
17. Definitions. As used in this Agreement, the following terms shall
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have the following meanings:
(a) "Cause."
(i) The Employee's repeated failure to perform (other than by
reason of disability), or gross negligence in the performance of, his
material duties and responsibilities hereunder and the continuance of
such failure or negligence for a period of thirty (30) days after
notice to the Employee;
(ii) Material breach by the Employee of any provision of this
Agreement or any other written agreement between the Employee and the
Company or any of its affiliates; and
(iii) Other conduct by the Employee that involves a material
violation of law or breach of fiduciary obligation on the part of the
Employee or is otherwise materially harmful to the business,
interests, reputation or prospects of the Company or any of its
affiliates.
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(b) "Change of Control" 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, (X)
fifty-one percent (51%) or more of the outstanding Common Stock of the
Company if the Company's stock is not then registered with the SEC and
publicly traded or (Y) forty percent (40%) or more of the outstanding
Common Stock of the Company if the Company has consummated its initial
public offering;
(ii) The date the stockholders of the Company approve a
definitive agreement (A) to merge or consolidate 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 Company would be converted into cash, securities or other
property of another corporation, other than (X) a merger or
consolidation of the Company 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) a merger or
consolidation of the Company 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 Company (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 Company; or
(iii) The date there shall have been a change in a majority of
the Board of Directors of the Company within a 12-month period unless
the nomination for election by the Company'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.
(c) "Company Property." All property, including, without limitation,
real, personal, tangible or intangible, including all computer programs,
electronic data, educational or instructional materials, inventions,
Confidential Information, Trade Secrets, facilities, trade names, logos,
patents, copyrights and all tangible materials and supplies (whether originals
or duplicates and including, but not in any way limited to, computer diskettes,
brochures, materials, sample products, video tape cassettes, film, catalogs,
books, records, manuals, sales presentation literature, training materials,
calling or business cards, customer records, customer files, customer names,
addresses and phone numbers, directives, correspondence, documents, contracts,
orders, messages, memoranda, notes, circulars, agreements, bulletins, invoices
and receipts), which in any way pertain to the Company's business, whether
furnished to Employee by the Company or prepared, compiled or acquired by
Employee while employed by the Company, all being the sole property of the
Company.
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(d) "Confidential Information." All information or material regarding
the Company's business that has or could have commercial value or other utility
in the business in which the Company is engaged or contemplates engaging, or
information which if disclosed without authorization could be detrimental to the
business of the Company, including, but not limited to, its business plans,
marketing plans, methods of operation, products, software programs,
documentation of computer programs, programming procedures, algorithms,
formulas, equipment, techniques, existing and contemplated services, inventions,
systems, devices (whether or not patentable), financial information and
practices, plans, pricing, selling and marketing techniques, proposals or bids
for actual or potential customers, names, addresses and phone numbers of the
Company's customers, credit information and financial data of the Company and
the Company's customers, particular business requirements of the Company's
customers, and special methods and processes involved in designing, producing
and selling the Company's products and services, all shall be deemed
Confidential Information and the Company's exclusive property; provided,
however, that Confidential Information shall not include information that has
entered the public domain other than through the actions of Employee.
Confidential Information shall also include the foregoing types of information
with respect to all affiliates of the Company.
(e) "Customer." Customer means any customer or prospective customer
of the Company with whom Employee had Material Contact during the twelve (12)
months immediately preceding the termination of the Employee's employment with
the Company.
(f) "Material Contact." Material Contact means interaction between
the Employee and the customer or potential customer which takes place in an
effort to further the business relationship, and shall be deemed to exist
between the Employee and each customer or potential customer of the Company with
whom the Employee dealt; whose dealings with the Company were coordinated or
supervised by the Employee; or about whom the Employee obtained and used
confidential information in the ordinary course of business as a result of such
Employee's association with the Company.
(g) "Trade Secrets." All information, including, but not limited to,
technical or non-technical data, formulas, patterns, programs, devices, methods,
processes, financial data, product plans or a list of actual or potential
customers or suppliers, which derives economic value from not being generally
known and which is the subject of reasonable efforts by the Company to maintain
its secrecy.
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IN WITNESS WHEREOF, the parties hereto have hereunto affixed their hands
and seals as of the date first above written.
THE COMPANY:
CLARUS CORPORATION
By: /s/ Xxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxxxx
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Title: Chief Executive Officer; Chief Financial
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Officer
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EMPLOYEE:
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
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EXHIBIT "A"
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INCENTIVE COMPENSATION
In order to earn the quarterly incentive bonus contemplated by Section 3(a), the
following targets must be met, as measured on a calendar quarter, commencing
January 1, 2000:
1. If the Company achieves at least 80% of its budgeted revenue and
earnings per share for such quarter, based on the budget in effect at
the time as approved by the Board, the Employee shall be entitled to
receive a bonus equal to 0.3% of the Company's gross revenue for such
quarter. No bonus will be paid hereunder if the Company does not
achieve at least 80% of said targets.
2. If the Company achieves 100% or more of its budgeted earnings per share
for such quarter, based on the budget in effect at the time as approved
by the Board, the Employee shall be entitled to receive an additional
bonus in the amount of Twelve Thousand Five Hundred Dollars ($12,500)
for such quarter. No bonus will be paid hereunder if the Company does
not achieve at least 80% of said targets.
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EXHIBIT "B"
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List of Competitors Pursuant to Section 5 of Agreement
Name: Address:
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1. Ariba Corporation 0000 Xxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
And
000 Xxxxxxxxx Xxxx Center
0000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
2. Commerce One CarrAmerica Corporate Center
Buildings #1 & #4
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
3. Purchase Pro 0000 Xxxxx Xxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Printed Name of Employee:
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
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Signature of Employee
Date: January 1, 2000
CLARUS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx /s/ Xxxx X. Xxxxx
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Title: Chief Executive Officer; Chief Financial Officer
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Date: January 1, 2000
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