CLARUS CORPORATION
AMENDMENT TO STOCK OPTION AGREEMENT[S]
AMENDMENT TO STOCK OPTION AGREEMENT[S], made as of this ____ day of
________________, 2005, by and between Clarus Corporation, a Delaware
corporation, having its principal office at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company"), and
____________________________________________ (the "Optionee").
WHEREAS, the Company has previously granted to the Optionee options to
purchase [: (i)] _____________ shares of Common Stock at an exercise price of
$_____ pursuant to the Stock Option Agreement, dated as of _________ ____
______, and of which ________________ options remain unvested [; (ii)
_____________ shares of Common Stock at an exercise price of $_____ pursuant to
the Stock Option Agreement, dated as of _________ ____ ______, and of which
________________ options remain unvested] [insert other references as needed]
[in each case] entered into between the Company and _____________________
([collectively,] the "Stock Option Agreement[s]"; all such unvested options
referred to herein as the "Unvested Options");
NOW, THEREFORE, the parties agree as follows:
1) The vesting date of the Unvested Options is hereby accelerated to
December [___], 2005.
2. The Stock Option Agreement[s] [is] [are] hereby amended to include
the following provisions:
2.1. Confidentiality; Intellectual Property. For purposes of
this Section 2.1, all references to the Company shall be deemed to include all
of the Company's affiliates and subsidiaries.
2.1(a) Confidential Information. The Optionee
acknowledges that as a result of his/her employment with the Company and/or
service as a Director of or consultant to the Company, the Optionee has and will
continue to have knowledge of, and access to, proprietary and confidential
information of the Company (in written, graphic, oral and/or other forms, and in
electronic, magnetic, paper and other media), including, without limitation,
information regarding the Company's assets, properties, business, plans,
strategies, operations, business and product development, including without
limitation, acquisitions and new lines of business, trade secrets, novel ideas,
inventions, know-how, customers, business affiliates, techniques, training
materials, algorithms, computer programs (including source code and object
code), designs, formulas, test plans, data, analyses and results, services,
costs, finances, financial statements and projections, financial and marketing
information, markets, sales, vendors, suppliers, personnel, pricing policies,
plans for future developments, acquisition or disposition strategies,
specifications, technology, research and development, and other similar
information in respect of the Company (collectively, the "Confidential
Information"), and that such information, even though it may be contributed to,
developed or acquired by the Optionee, constitutes valuable, special and unique
assets of the Company developed at great expense, which are the exclusive
property of the Company. Accordingly, the Optionee shall not, at any time,
either during or subsequent to the term of the Optionee's employment with the
Company and/or service as a Director of or consultant to the Company, use
(whether for personal gain or otherwise), reveal, report, publish, transfer or
otherwise disclose to any person, corporation or other entity, any of the
Confidential Information without the prior written consent of the Company,
except to responsible officers and employees of the Company and other
responsible persons who are in a contractual or fiduciary relationship with the
Company who have a need for such information for purposes in the best interests
of the Company, and except (i) for such information which is or becomes of
general public knowledge from authorized sources other than the Optionee, or
(ii) as may be required by law, regulation, legal proceeding or court order. The
Optionee acknowledges that the Company would not enter into this Agreement or
continue the Optionee's employment or consultancy with the Company without the
assurance that all such Confidential Information will be used for the exclusive
benefit of the Company.
2.1(b) Return of Confidential Information. Confidential
Information or other information relating to the Company's business or products
which come into the possession of the Optionee shall remain the sole property of
the Company, and shall not be copied, photocopied, reprinted or otherwise
reproduced or disseminated by the Optionee except in the performance of the
Optionee's duties as an employee of the Company
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and/or a Director of or consultant to the Company and then only at the direction
of the Company. Upon the earlier of the Company's request therefor, or the
termination of the Optionee's employment by the Company and/or service as a
Director of or consultant to the Company, the Optionee shall return to the
Company all such information, and all copies, facsimiles, replicas, photocopies,
and reproductions of them.
2.1(c) Intellectual Property.
(i) Optionee expressly agrees that any products, works of
authorship, deliverables, designs, processes, drawings or inventions produced by
the Optionee at the request or on behalf of the Company (the "Materials") shall
be the property of the Company. The Company shall own all right, title and
interest in and to the Materials, and all additions to, deletions from,
alterations of or revisions to, and each part thereof, including all tools and
work in progress with respect thereto, and all other materials provided to the
Optionee by or at the expense of the Company. Without limiting the foregoing,
the Optionee hereby acknowledges that the Optionee's work and services for the
Company and all results thereof are "works made for hire" for the Company as
that term is defined by the Copyright Act of 1976, as amended (the "Copyright
Act"), and the Company shall own all right, title and interest therein. The
Company shall be considered the author of the Materials for purposes of
copyright and shall own all the rights in and to the copyright to the Materials,
and, as between Optionee and the Company, only the Company shall have the right
to obtain copyright registration of the Materials which the Company may do in
its name, its trade name or the name of its nominee. The Company shall have the
sole and exclusive rights to do and authorize any and all of the acts set forth
in Section 106 of the Copyright Act with respect to the Materials and any
derivatives thereof, and to secure any extensions or renewals of such
copyrights. Optionee retains no rights to the Materials and agrees not to
challenge the validity of the Company's ownership of the Materials.
(ii) To the extent that the Materials are determined by a
court of competent jurisdiction or the Register of Copyrights not to be a work
made for hire and/or for purposes of ownership of any inventions or patent
rights in and to the Materials, the Optionee hereby irrevocably assigns,
transfers, releases and conveys to the Company all right, title and interest
(including all patent, copyright, trade secret and trademark rights) of the
Optionee in and to the Materials. The rights hereby conveyed to the Company
hereunder include without limitation all rights to any and all inventions
relating to or described in the Materials. The Optionee further agrees to
execute (and to cause its principals, employees and agents to execute) any and
all documents deemed necessary or appropriate by the Company to effectuate a
complete transfer of ownership of all rights in the Materials to the Company
throughout the world.
(iii) The Optionee will promptly disclose to the Company
all Materials conceived, developed or acquired by the Optionee alone or with
others during the term of the Optionee's employment with the Company and/or
service as a Director of or consultant to the Company, whether or not conceived
during regular working hours, through the use of Company time, material or
facilities or otherwise. Without limiting the scope of this Section 2.1, all
such Materials shall be the sole and exclusive property of the Company, and upon
the Company's request, the Optionee shall deliver to the Company all drawings,
models and other data and records relating to such Materials. In the event any
such Materials shall be deemed by the Company to be patentable or copyrightable,
the Optionee 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 copyright
registrations and to vest the Company with full title thereto.
(iv) The Optionee irrevocably designates and appoints the
Company and each of its duly authorized officers or agents, individually, as the
Optionee's agent and attorney-in-fact, to act for and in the Optionee's behalf
and stead to execute and file any such document and to do all other lawfully
permitted acts to further the prosecution, issuance, and enforcement of patents,
copyrights, or other rights or protection with the same force and effect as if
executed and delivered by the Optionee.
2.2. Non-competition. For purposes of this Section 2.2, all
references to the Company shall be deemed to include all of the Company's
affiliates and subsidiaries. During the Restricted Period, the Optionee shall
not, nor shall he permit any of the Optionee's employees, agents or others under
the Optionee's control to, directly or indirectly, on behalf of himself/herself
or any other person, (i) call upon, accept business from, or solicit the
business of any person who is, or who had been at any time during the preceding
two (2) years a customer of the
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Company or any successor to the business of the Company, or otherwise divert or
attempt to divert any business from the Company or any such successor, or (ii)
directly or indirectly recruit or otherwise solicit or induce any person who is
an employee of, or otherwise engaged by, the Company or any successor to the
business of the Company to terminate his or her employment or other relationship
with the Company or such successor, or hire any person who has left the employ
of the Company or any such successor during the preceding two (2) years.
Optionee further agrees that if any such customer contacts the Optionee during
the Restricted Period in respect of doing business with the Optionee, the
Optionee will advise such customer of the restrictions on the Optionee's ability
to do business with such customer contained herein. The Optionee shall not at
any time, directly or indirectly, use or purport to authorize any person to use
any name, ▇▇▇▇, 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 in connection
with any product or service, whether or not such use would be in a business
competitive with that of the Company. Any breach or violation by the Optionee of
the provisions of this Section 2.2 shall toll the running of any time periods
set forth in this Section 2.2 for the duration of any such breach or violation.
2.3. Remedies. The restrictions set forth in Sections 2.1 and
2.2 are considered by the Optionee to be fair and reasonable. The Optionee
acknowledges that the restrictions contained in Sections 2.1 and 2.2 will not
prevent the Optionee from earning a livelihood. The Optionee 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 2.1 and 2.2. Accordingly, the Optionee 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, (ii) shall not be required to post
bond in connection with seeking any such equitable remedies, and (iii) shall be
entitled to receive reimbursement from the Optionee for all attorneys' fees and
expenses incurred by the Company in enforcing such provisions. If any provisions
of Sections 2.1, 2.2 or 2.3 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 2.1, 2.2 or 2.3 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.
2.4 Lock-up Release Schedule. Upon the exercise of any or all
of the options covered by the Stock Option Agreement[s], the Optionee shall not
sell, transfer, exchange, hypothecate, grant a security interest in, pledge or
otherwise dispose of (collectively, "Transfer"), other than by will or by the
laws of descent and distribution, the shares issued upon such exercise at any
time, including subsequent to the termination of the Optionee's employment with
the Company and/or service as a Director of or consultant to the Company, except
in accordance with the following schedule:
LOCKUP NUMBER OF NUMBER OF TOTAL NUMBER
RELEASE DATE ISOS NQSO'S OF SHARES
-------------------------------- ------------------ ------------------- -------------------
<<Vestingdate1>> <<ISOs1>> <<NQSOs1>> <<Total_1>>
<<Vestingdate2>> <<ISOs2>> <<NQSOs2>> <<Total_2>>
<<Vestingdate3>> <<ISOs3>> <<NQSOs3>> <<Total_3>>
<<Vestingdate4>> <<ISOs4>> <<NQSOs4>> <<Total_4>>
<<Vestingdate5>> <<ISOs5>> <<NQSOs5>> <<Total_5>>
------------------ ------------------- -------------------
<<Vestingdate6>> <<ISOs6>> <<NQSOs6>> <<Total_6>>
------------------ ------------------- -------------------
TOTALS <<TOTAL_ISOS>> <<TOTAL_NQSOS>> <<AMOUNT OF
OPTIONS>>
================== =================== ===================
Notwithstanding the lock-up release schedule set forth above,
such lock-up release schedule may be accelerated by the Committee in its sole
discretion.
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2.5 Extension of Lock-up Upon Termination. (a) Upon the
Optionee's voluntary termination of employment with the Company and/or service
as a Director of or consultant to the Company, except as a result of Optionee's
death or disability, or upon the Optionee's termination by the Company for
Cause, any of the lock-up release periods set forth in Section 2.4 which, as of
the Optionee's termination of employment with the Company and/or service as a
Director of or consultant to the Company, have not yet expired shall each be
automatically extended an additional five (5) years from the lock-up release
date(s) set forth in Section 2.4. Notwithstanding any extension of the lock-up
release periods pursuant to this Section 2.5, any such lock-up release extension
may be reduced by the Committee in its sole discretion.
(b) If the Optionee is terminated by the Company without
cause, then (i) the lock-up release periods set forth in Section 2.4 which have
not expired prior to or as of the termination of employment shall each be
automatically extended an additional five (5) years from the termination of
employment, and (ii) the lock-up release periods set forth in Section 2.4 which
have expired shall automatically be reinstated for a period commencing 3 months
after the effective date of such termination and expiring five (5) years after
such commencement date.
(c) If the Optionee's employment or other service to the
Company is terminated on account of the death or disability of the Optionee,
then (i) the lock-up release periods set forth in Section 2.4 which have not
expired prior to or as of the termination of employment shall each be
automatically extended an additional five (5) years from the termination of
employment, and (ii) the lock-up release periods set forth in Section 2.4 which
have expired shall automatically be reinstated for a period commencing 12 months
after the effective date of such termination and expiring five (5) years after
such commencement date.
(d) Notwithstanding any extension of the lock-up release
periods pursuant to this Section 2.5, any such lock-up release extension may be
reduced by the Committee in its sole discretion.
2.6 Acceleration of Lock-up Release Upon Change of Control. If
a Change of Control (as defined in the Stock Option Agreement[s]) would have
resulted in an acceleration of vesting of the options without giving effect to
this Amendment, then upon any such Change of Control, the lock-up periods set
forth set forth in Sections 2.4 and 2.5 shall expire upon any such Change of
Control.
3. Except as expressly amended by this Amendment, the Stock Option
Agreement[s] shall remain in full force and effect.
4. This Amendment shall be governed by and construed in accordance
with, and on the same basis as, the Stock Option Agreement[s] as set forth
therein.
5. This Amendment may be executed in any number of counterparts, but
all of which together will constitute one and the same agreement.
[SIGNATURE PAGE FOLLOWS:]
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IN WITNESS WHEREOF, the parties hereto have each executed and delivered
this Amendment to Stock Option Agreement[s] as of the day and year first above
written.
CLARUS CORPORATION
By:
---------------------------
Name:
Title:
OPTIONEE:
-----------------------------------
Name:
