<PAGE>
------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
CLARUS CORPORATION
--------------------------------------------------------
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
3970 Johns Creek Court, Suite 100
DELAWARE Suwanee, Georgia 30024 58-1972600
- ------------------------------- --------------------------------- --------------
<S> <C> <C>
(State or other jurisdiction of (Address of principal (I.R.S. Employer
incorporation or organization) executive offices) Identification Number)
</TABLE>
1998 STOCK INCENTIVE PLAN OF
CLARUS CORPORATION
(as amended)
(Formerly SQL Financials International, Inc.)
---------------------------------------------
(Full title of the plans)
----------------------------------
The Corporation Trust Company
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
(302) 658-7581
----------------------------------
(Name, address and telephone number, including area code,
of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share(1) price(1) fee(1)
- ------------------ -------------- ---------------- ---------------- ----------------
<S> <C> <C> <C> <C>
Common Stock,
$.0001 par value 500,000 shares $5.375 $2,687,500 $748
</TABLE>
(1) Pursuant to Rule 457(c) and (h)(1), based on the average of the high and
low prices of the registrant's common stock on May 25, 1999, as reported on
the Nasdaq National Market.
------------------------------
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
- ------ ---------------------------------------
The following documents filed by Clarus Corporation (formerly SQL
Financials International, Inc.) (the "Company") with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, filed with the Commission on March 31, 1999;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999, filed with the Commission on May 14, 1999;
(c) The description of the Company's Common Stock, $.0001 par value,
contained in the Company's Registration Statement on Form 8-A filed pursuant
to Section 12(g) of the Exchange Act of 1934, as amended (the "Exchange Act"),
including any amendment or report filed for the purpose of updating such
description; and
(d) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the date of the document referred to in (a), above.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities remaining unsold shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of the
filing of such documents.
This Registration Statement on Form S-8 is being filed in connection with
the registration by the Company with the Commission of 500,000 additional shares
issuable pursuant to the Clarus Corporation (formerly SQL Financials
International, Inc.) 1998 Stock Incentive Plan, as amended (the "Plan").
Pursuant to General Instruction E to Form S-8, the contents of Registration
Statement on Form S-8 (File No. 333-59193) (filed on July 16, 1998) relating to
shares issuable under the Plan are incorporated by reference in this
Registration Statement on Form S-8.
Item 4. Description of Securities.
- ------ -------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
- ------ --------------------------------------
The legality of the securities offered hereby has been passed upon by the
firm of Womble Carlyle Sandridge & Rice, PLLC, counsel to the Company.
Item 6. Indemnification of Directors and Officers.
- ------ -----------------------------------------
The Restated Bylaws of the Company (the "Restated Bylaws") and the Restated
Certificate of Incorporation (the "Restated Certificate") of the Company provide
that the directors and officers of the Company shall be indemnified by the
Company to the fullest extent authorized by Delaware law, as it now exists or
may in the future be amended, against all expenses and liabilities reasonably
incurred in connection with service for or on behalf of the Company. Insofar as
indemnification for liabilities arising under the Securities Act of 1933, as
amended (the "Securities Act"), may be permitted to directors, officers and
controlling persons of the Company pursuant to the Restated Bylaws,
II-1
<PAGE>
in the opinion of the Securities and Exchange Commission, such indemnification
is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. The Company has obtained insurance which insures the directors
and officers of the Company against certain losses and which insures the Company
against certain of its obligations to indemnify such directors and officers. In
addition, the Restated Certificate of the Company provides that the directors of
the Company will not be personally liable for monetary damages to the Company
for breaches of their fiduciary duty as directors, unless they violated their
duty of loyalty to the Company or its stockholders, acted in bad faith,
knowingly or intentionally violated the law, authorized illegal dividends or
redemptions or derived an improper personal benefit from their action as
directors. Such limitations of personal liability under the Delaware Business
Corporation law do not apply to liabilities arising out of certain violations of
the federal securities laws. While non-monetary relief such as injunctive
relief, specific performance and other equitable remedies may be available to
the Company, such relief may be difficult to obtain or, if obtained, may not
adequately compensate the Company for its damages.
There is no pending litigation or proceeding involving any director,
officer, employee or agent of the Company where indemnification by the Company
will be required or permitted. The Company is not aware of any threatened
litigation or proceeding that might result in a claim for such indemnification.
Item 7. Exemption from Registration Claimed.
- ------ -----------------------------------
Not applicable.
Item 8. Exhibits.
- ------ --------
The following exhibits are filed as a part of this Registration Statement:
Number Description
------ -----------
4.1 Amended and Restated Certificate of Incorporation of the Company,
which is incorporated by reference to Exhibit 3.1 of the Company's
Registration Statement on Form S-1 (File No. 333-46685), filed with
the Commission on February 23, 1998.
4.2 Amended and Restated Bylaws of the Company, which are incorporated by
reference to Exhibit 3.2 of the Company's Registration Statement on
Form S-1 (File No. 333-46685), filed with the Commission on February
23, 1998.
5 Opinion of Womble Carlyle Sandridge & Rice, PLLC, as to the legality
of the Common Stock being registered.
23.1 Consent of Womble Carlyle Sandridge & Rice, PLLC, which is contained
in its opinion filed as Exhibit 5.
23.2 Consent of Arthur Andersen LLP.
24 Power of Attorney (included in the signature page to this
Registration Statement).
99.1 1998 Stock Incentive Plan of Clarus Corporation, as amended.
Item 9. Undertakings.
- ------ ------------
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
II-2
<PAGE>
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
-------- -------
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the Company pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that
is incorporated by reference in the Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Company will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Clarus
Corporation certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Suwanee, State of Georgia, on this 27th day of
May, 1999.
CLARUS CORPORATION
By: /s/ Stephen P. Jeffery
----------------------------------
Stephen P. Jeffery
Chairman, Chief Executive Officer and
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears on
the signature pages to this Registration Statement hereby constitutes and
appoints William A. Fielder III and Stephen P. Jeffery, and each of them, his
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for the undersigned, and in his name, place and stead, in
any and all capacities to sign any and all amendments, including post-effective
amendments, exhibits thereto and other documents in connection therewith, to
this Registration Statement on Form S-8, to make such changes in the
Registration Statement as such attorneys-in-fact deems appropriate, and to file
the same, with all exhibits thereto and other documents in connection therewith
with the Securities and Exchange Commission, granting unto said attorneys-in-
fact and agents and each of them, full power and authority to do so and perform
each and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or either
of them, or their or his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Stephen P. Jeffery Chairman, Chief Executive Officer, President May 27, 1999
- -------------------------- (principal executive officer) and Director
Stephen P. Jeffery
/s/ William A. Fielder III Vice President and Chief Financial Officer May 27, 1999
- -------------------------- (principal financial and accounting officer)
William A. Fielder III
/s/ William S. Kaiser Director May 27, 1999
- --------------------------
William S. Kaiser
/s/ Donald L. House Director May 27, 1999
- --------------------------
Donald L. House
/s/ Tench Coxe Director May 27, 1999
- --------------------------
Tench Coxe
/s/ Said Mohammadioun Director May 27, 1999
- --------------------------
Said Mohammadioun
/s/ Mark A. Johnson Director May 27, 1999
- --------------------------
Mark A. Johnson
/s/ Norman N. Behar Director May 27, 1999
- --------------------------
Norman N. Behar
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
to
Registration Statement on Form S-8 of
Clarus Corporation
Number Description
------ -----------
4.1 Amended and Restated Certificate of Incorporation of the Company,
which is incorporated by reference to Exhibit 3.1 of the
Company's Registration Statement on Form S-1 (File No. 333-
46685), filed with the Commission February 23, 1998.*
4.2 Amended and Restated Bylaws of the Company, which are
incorporated by reference to Exhibit 3.2 of the Company's
Registration Statement on Form S-1 (File No. 333-46685), filed
with the Commission on February 23, 1998.*
5 Opinion of Womble Carlyle Sandridge & Rice, PLLC, as to the
legality of the Common Stock being registered.
23.1 Consent of Womble Carlyle Sandridge & Rice, PLLC, which is
contained in its opinion filed as Exhibit 5.
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney (included in the signature page to this
Registration Statement).
99.1 1998 Stock Incentive Plan of Clarus Corporation, as amended.
- -----------------
* Incorporated by reference.
II-5
<PAGE>
EXHIBIT 5
May 27, 1999
Clarus Corporation
3950 Johns Creek Court, Suite 100
Suwanee, Georgia 30024
Re: Registration Statement on Form S-8 with respect to an additional
500,000 shares issuable pursuant to the 1998 Stock Incentive Plan
of Clarus Corporation
Ladies and Gentlemen:
We have served as counsel for Clarus Corporation (formerly, SQL Financials
International, Inc.), a Delaware corporation (the "Company"), in connection with
its registration under the Securities Act of 1933, as amended, of an additional
500,000 shares of its common stock, $.0001 par value per share (the "Shares"),
which are proposed to be offered and sold pursuant to the 1998 Stock Incentive
Plan of Clarus Corporation, as amended (the "Plan"), and pursuant to the
Company's Registration Statement on Form S-8 (the "Registration Statement") to
be filed with the Securities and Exchange Commission (the "Commission") with
respect to the Shares.
In connection with the preparation of this opinion, we have only reviewed,
and this opinion is limited to, those laws of the State of Georgia, excluding
local laws of the State of Georgia (i.e., the statutes and ordinances, the
administrative decisions and the rules and regulations of counties, towns,
municipalities and special political subdivisions of, or authorities or quasi-
governmental bodies constituted under the laws of the State of Georgia and
judicial decisions to the extent they deal with any of the foregoing), and the
laws of the United States of America that are, in our experience, normally
applicable to the transactions referenced herein. We are licensed to practice
law in the State of Georgia and, accordingly, this opinion is based solely upon
such laws and we do not render any opinion as to the effect of the laws of any
other jurisdiction. Further, we have assumed for purposes of this opinion (1)
that the laws of the State of Georgia are identical in substance and effect to
the laws of the State of Delaware; (2) the genuineness of all signatures; (3)
that all documents submitted to us as certified or photostatic copies are copies
of original documents; and (4) the proper issuance and accuracy of certificates
of public officials and officers and agents of the Company. In rendering
opinions as to future events, we have assumed the facts and law existing on the
date hereof.
Based upon the foregoing, and having regard for such legal considerations
as we have deemed relevant, we are of the opinion that the Shares have been duly
authorized and, when issued and paid for in accordance with the terms of the
Plan, the Shares will be validly issued, fully paid and nonassessable.
This opinion is delivered solely for your benefit in connection with the
Plan and may not be quoted in whole or in part, referred to, filed with any
governmental agency or otherwise used or relied upon by any other person or for
any other purpose without our prior written consent except as provided herein.
This opinion is rendered as of the date hereof, and we undertake no
obligation to advise you of any changes in applicable law or any other matters
that may come to our attention after the date hereof.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement. In giving this consent, we do not admit
that we are within the category of persons whose consent is required by Section
7 of the Securities Act of 1933, as amended, or other rules and regulations of
the Commission thereunder.
WOMBLE CARLYLE SANDRIDGE & RICE
A Professional Limited Liability Company
----------------------------------------------
Elizabeth O. Derrick, Member
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated January 29, 1999
included in Clarus Corporation (formerly SQL Financials International, Inc.) and
Subsidiaries Form 10-K for the year ended December 31, 1998 and to all
references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Atlanta, Georgia
May 26, 1999
<PAGE>
Exhibit 99.1
1998 STOCK INCENTIVE PLAN
OF
CLARUS CORPORATION
(as amended on May 27, 1999)
<PAGE>
1998 STOCK INCENTIVE PLAN
OF
CLARUS CORPORATION
1. Purpose
The purpose of the 1998 Stock Incentive Plan of Clarus Corporation (the
"Plan") is to encourage and enable selected employees, directors and independent
contractors of Clarus Corporation (the "Corporation") and its related
corporations to acquire or to increase their holdings of common stock of the
Corporation (the "Common Stock") and other proprietary interests in the
Corporation in order to promote a closer identification of their interests with
those of the Corporation and its stockholders, thereby further stimulating their
efforts to enhance the efficiency, soundness, profitability, growth and
stockholder value of the Corporation. This purpose will be carried out through
the granting of benefits (collectively referred to herein as "Awards") to
selected employees, independent contractors and directors, including the
granting of incentive stock options ("Incentive Options"), nonqualified stock
options ("Nonqualified Options"), stock appreciation rights ("SARs"), restricted
stock awards ("Restricted Stock Awards"), and restricted units ("Restricted
Units") to such participants. Incentive Options and Nonqualified Options shall
be referred to herein collectively as "Options." Restricted Stock Awards and
Restricted Units shall be referred to herein collectively as "Restricted
Awards."
2. Administration of the Plan
(a) The Plan shall be administered by the Compensation Committee of the
Board of Directors (the "Committee"); provided, however, that the Board of
Directors of the Corporation may, in its sole discretion, assume administration
of the Plan in whole or in part. (For the purposes herein, references to the
Committee shall also include the Board of Directors if it is acting in its
administrative capacity.) Unless the Board shall determine otherwise, the
Committee shall include no fewer than the minimum number of "non-employee
directors," as such term is defined in Rule 16b-3 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as may be
required by Rule 16b-3.
(b) Any action of the Committee with respect to the Plan may be taken by a
written instrument signed by all of the members of the Committee and any such
action so taken by written consent shall be as fully effective as if it had been
taken by a majority of the members at a meeting duly held and called. Subject to
the provisions of the Plan, and unless authority is granted to the chief
executive officer as provided in Section 2(c), the Committee shall have full and
final authority in its discretion to take any action with respect to the Plan
including, without limitation, the authority (i) to determine all matters
relating to Awards, including selection of individuals to be granted Awards, the
types of Awards, the number of shares of the Common Stock, if any, subject to an
Award, and all terms, conditions, restrictions and limitations of an Award; (ii)
to prescribe the form or forms of the agreements evidencing any Awards granted
under the Plan; (iii) to establish, amend and rescind rules and regulations for
the administration of the Plan; and (iv) to construe and interpret the Plan and
agreements evidencing Awards granted under the Plan, to establish and interpret
rules and regulations for administering the Plan and to make all other
determinations deemed necessary or advisable for administering the Plan. The
Committee shall also have authority, in its sole discretion, to accelerate the
date that any Award which was not otherwise exercisable or vested shall become
exercisable or vested
<PAGE>
in whole or in part without any obligation to accelerate such date with respect
to any other Award granted to any recipient. In addition, the Committee shall
have the authority and discretion to establish terms and conditions of Awards as
the Committee determines to be necessary or appropriate to conform to the
applicable requirements or practices of jurisdictions outside of the United
States.
(c) Notwithstanding Section 2(b), the Committee may delegate to the chief
executive officer or president of the Corporation the authority to grant Awards,
and to make any or all of the determinations reserved for the Committee in the
Plan and summarized in Section 2(b) herein with respect to such Awards, to any
individual who, at the time of said grant or other determination, (i) is not
deemed to be an officer or director of the Corporation within the meaning of
Section 16 of the Exchange Act; (ii) is not deemed to be a Covered Employee; and
(iii) is otherwise eligible under Section 5. To the extent that the Committee
has delegated authority to grant Awards pursuant to this Section 2(c) to the
chief executive officer or president, references to the Committee shall include
references to such person, subject, however, to the requirements of the Plan,
Rule 16b-3 and other applicable law.
3. Effective Date
The effective date of the Plan shall be February 5, 1998 (the "Effective
Date"). Awards may be granted under the Plan on and after the effective date,
but no Awards will be granted after February 5, 2008.
4. Shares of Stock Subject to the Plan; Award Limitations
(a) The number of shares of Common Stock that may be issued pursuant to
Awards shall be 1,500,000 shares of authorized but unissued shares or treasury
shares of the Corporation subject to adjustments and increases as provided in
this Section 4.
(b) The Corporation hereby reserves sufficient authorized shares of Common
Stock to meet the grant of Awards hereunder. Any shares subject to an Award
which is subsequently forfeited, expires or is terminated may again be the
subject of an Award granted under the Plan. To the extent that any shares of
Common Stock subject to an Award are not delivered to a Participant (or his
beneficiary) because the Award is forfeited or canceled or because the Award is
settled in cash, such shares shall not be deemed to have been issued for
purposes of determining the maximum number of shares of Common Stock available
for issuance under the Plan. If the option price of an Option granted under the
Plan is satisfied by tendering shares of Common Stock, only the number of shares
issued net of the shares of Common Stock tendered shall be deemed issued for
purposes of determining the maximum number of shares of Common Stock available
for issuance under the Plan.
(c) If there is any change in the shares of Common Stock because of a
merger, consolidation or reorganization involving the Corporation or a related
corporation, or if the Board of Directors of the Corporation declares a stock
dividend or stock split distributable in shares of Common Stock, or if there is
a change in the capital stock structure of the Corporation or a related
corporation affecting the Common Stock, the number of shares of Common Stock
reserved for issuance under the Plan shall be correspondingly adjusted, and the
Committee shall make such adjustments to Awards or to any provisions of this
Plan as the Committee deems equitable to prevent dilution or enlargement of
Awards.
-2-
<PAGE>
(d) Subject to the terms of this Section 4, in no event shall an employee
be granted Awards under the Plan for more than 200,000 shares of Common Stock
(or the equivalent value thereof based on the Fair Market Value of the Common
Stock on the date of grant of the Award) during any calendar year.
5. Eligibility
An Award may be granted only to an individual who satisfies the following
eligibility requirements on the date the Award is granted:
(a) The individual is either (i) an employee of the Corporation or a
related corporation, (ii) a director of the Corporation or a related
corporation, or (iii) an independent contractor, consultant or advisor
(collectively, "independent contractors") providing services to the Corporation
or a related corporation. For this purpose, an individual shall be considered
to be an "employee" only if there exists between the individual and the
Corporation or a related corporation the legal and bona fide relationship of
employer and employee.
(b) With respect to the grant of Incentive Options, the individual does not
own, immediately before the time that the Incentive Option is granted, stock
possessing more than ten percent of the total combined voting power of all
classes of stock of the Corporation. Notwithstanding the foregoing, an
individual who owns more than ten percent of the total combined voting power of
the Corporation may be granted an Incentive Option if the option price (as
determined pursuant to Section 6(b) herein, is at least 110% of the Fair Market
Value of the Common Stock (as defined in Section 6(b) herein), and the option
period (as defined in Section 6(c) herein) does not exceed five years. For this
purpose, an individual will be deemed to own stock which is attributable to him
under Section 424(d) of the Internal Revenue Code of 1986, as amended (the
"Code").
(c) The individual, being otherwise eligible under this Section 5, is
selected by the Committee as an individual to whom an Award shall be granted (a
"Participant").
6. Options
(a) Grant of Options: Subject to the limitations of the Plan, the
Committee may in its sole and absolute discretion grant Options to such eligible
individuals in such numbers, upon such terms and at such times as the Committee
shall determine. Both Incentive Options and Nonqualified Options may be granted
under the Plan. To the extent necessary to comply with Section 422 of the Code
and related regulations, if an Option is designated as an Incentive Option but
does not qualify as such under Section 422 of the Code, the Option (or portion
thereof) shall be treated as a Nonqualified Option.
(b) Option Price: The price per share at which an Option may be exercised
(the "option price") shall be established by the Committee at the time the
Option is granted and shall be set forth in the terms of the agreement
evidencing the grant of the Option; provided, that (i) in the case of an
Incentive Option, the option price shall be no less than the Fair Market Value
per share of the Common Stock on the date the Option is granted and (ii) in no
event shall the option price per share of any Option be less than the par value
per share of the Common Stock. In addition, the following rules shall apply:
-3-
<PAGE>
(i) An Incentive Option shall be considered to be granted on the date
that the Committee acts to grant the Option, or on any later date specified
by the Committee as the effective date of the Option. A Nonqualified
Option shall be considered to be granted on the date the Committee acts to
grant the Option or any other date specified by the Committee as the date
of grant of the Option.
(ii) For the purposes of the Plan, the Fair Market Value of the shares
shall be determined in good faith by the Committee in accordance with the
following provisions: (A) if the shares of Common Stock are listed for
trading on the New York Stock Exchange or the American Stock Exchange, the
Fair Market Value shall be the closing sales price of the shares on the New
York Stock Exchange or the American Stock Exchange (as applicable) on the
date immediately preceding the date the Option is granted, or, if there is
no transaction on such date, then on the trading date nearest preceding the
date the Option is granted for which closing price information is
available, and, provided further, if the shares are quoted on the Nasdaq
National Market or the Nasdaq SmallCap Market of the Nasdaq Stock Market,
the Fair Market Value shall be the closing sales price for such stock (or
the closing bid, if no sales were reported) as quoted on such system on the
date immediately preceding the date the Option is granted for which such
information is available; or (B) if the shares of Common Stock are not
listed or reported in any of the foregoing, then the Fair Market Value
shall be determined by the Committee in accordance with the applicable
provisions of Section 20.2031-2 of the Federal Estate Tax Regulations, or
in any other manner consistent with the Code and accompanying regulations.
(iii) In no event shall there first become exercisable by an employee
in any one calendar year Incentive Options granted by the Corporation or
any related corporation with respect to shares having an aggregate Fair
Market Value (determined at the time an Incentive Option is granted)
greater than $100,000.
(c) Option Period and Limitations on the Right to Exercise Options
(i) The term of an Option (the "option period") shall be determined by
the Committee at the time the Option is granted. With respect to Incentive
Options, such period shall not extend more than ten years from the date on
which the Option is granted. Any Option or portion thereof not exercised
before expiration of the option period shall terminate. The period during
which an Option may be exercised shall be determined by the Committee at
the time the Option is granted.
(ii) An Option may be exercised by giving written notice to the
Corporation at such place as the Corporation shall direct. Such notice
shall specify the number of shares to be purchased pursuant to an Option
and the aggregate purchase price to be paid therefor, and shall be
accompanied by the payment of such purchase price. Such payment shall be in
the form of (A) cash; (B) shares of Common Stock owned by the Participant
at the time of exercise; (C) shares of Common Stock withheld upon exercise;
(D) delivery of written notice of exercise to the Corporation and delivery
to a broker of written notice of exercise and irrevocable instructions to
promptly deliver to the Corporation the amount of sale or loan proceeds to
pay
-4-
<PAGE>
the option price; or (E) a combination of the foregoing methods, as elected
by the Participant. Shares tendered or withheld in payment on the exercise
of an Option shall be valued at their Fair Market Value on the date of
exercise, as determined by the Committee by applying the provisions of
Section 6(b)(ii).
(iii) Notwithstanding Section 6(c)(i) herein, no Option granted to a
Participant who was an employee at the time of grant shall be exercised
unless the Participant is, at the time of exercise, an employee as
described in Section 5(a), and has been an employee continuously since the
date the Option was granted, subject to the following:
(A) An Option shall not be affected by any change in the terms,
conditions or status of the Participant's employment, provided that
the Participant continues to be an employee of the Corporation or a
related corporation.
(B) The employment relationship of a Participant shall be treated
as continuing intact for any period that the Participant is on
military or sick leave or other bona fide leave of absence, provided
that the period of such leave does not exceed ninety days, or, if
longer, as long as the Participant's right to reemployment is
guaranteed either by statute or by contract. The employment
relationship of a Participant shall also be treated as continuing
intact while the Participant is not in active service because of
disability. The Committee shall determine whether a Participant is
disabled within the meaning of this paragraph.
(C) Unless an individual option agreement provides otherwise, if
the employment of a Participant is terminated because of disability
within the meaning of subparagraph (B), or if the Participant dies
while he is an employee or dies after the termination of his
employment because of disability, the Option may be exercised only to
the extent exercisable on the date of the Participant's termination of
employment or death while employed (the "termination date"), except
that the Committee may in its discretion accelerate the date for
exercising all or any part of the Option which was not otherwise
exercisable on the termination date. The Option must be exercised, if
at all, prior to the first to occur of the following, whichever shall
be applicable: (X) the close of the period of twelve months next
succeeding the termination date; or (Y) the close of the option
period. In the event of the Participant's death, such Option shall be
exercisable by such person or persons as shall have acquired the right
to exercise the Option by will or by the laws of intestate succession.
(D) Unless an individual option agreement provides otherwise, if
the employment of the Participant is terminated for any reason other
than disability (as defined in subparagraph (B)) or death or for
"cause," his Option may be exercised to the extent exercisable on the
date of such termination of employment, except that the Committee may
in its discretion accelerate the date for exercising all or any part
of the Option which was not otherwise exercisable on the date of such
termination of
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employment. The Option must be exercised, if at all, prior to the
first to occur of the following, whichever shall be applicable: (X)
the close of the period of three (3) months next succeeding the
termination date; or (Y) the close of the option period. If the
Participant dies following such termination of employment and prior to
the earlier of the dates specified in (X) or (Y) of this subparagraph
(D), the Participant shall be treated as having died while employed
under subparagraph (C) immediately preceding (treating for this
purpose the Participant's date of termination of employment as the
termination date). In the event of the Participant's death, such
Option shall be exercisable by such person or persons as shall have
acquired the right to exercise the Option by will or by the laws of
intestate succession.
(E) Unless an individual option agreement provides otherwise, if
the employment of the Participant is terminated for "cause," his
Option shall lapse and no longer be exercisable as of the effective
time of his termination of employment, as determined by the Committee.
For purposes of this subparagraph (E) and subparagraph (D), the
Participant's termination shall be for "cause" if such termination
results from the Participant's (X) dishonesty or conviction of a
crime; (Y) failure to perform his duties to the satisfaction of the
Corporation; or (Z) engaging in conduct that could be materially
damaging to the Corporation without a reasonable good faith belief
that such conduct was in the best interest of the Corporation. The
determination of "cause" shall be made by the Committee and its
determination shall be final and conclusive.
(F) Notwithstanding the foregoing, the Committee shall have
authority, in its discretion, to extend the period during which an
Option may be exercised; provided that, in the event that any such
extension shall cause an Incentive Option to be designated as a
Nonqualified Option, no such extension shall be made without the prior
written request and consent of the Participant.
(iv) Notwithstanding Section 6(c)(i), herein, an Option granted to a
Participant who was an independent contractor or director of the
Corporation or a related corporation at the time of grant (and who does not
thereafter become an employee, in which case he shall be subject to the
provisions of Section 6(c)(iii) herein) may be exercised only to the extent
exercisable on the date of the Participant's termination of service to the
Corporation or a related corporation (unless the termination was for
cause), and must be exercised, if at all, prior to the first to occur of
the following, as applicable: (X) the close of the period of three (3)
months next succeeding the termination date; or (Y) the close of the option
period. If the services of such a Participant are terminated for cause (as
defined in Section 6(c)(iii)(E) herein), his Option shall lapse and no
longer be exercisable as of the effective time of his termination of
services, as determined by the Committee. Notwithstanding the foregoing,
the Committee may in its discretion accelerate
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<PAGE>
the date for exercising all or any part of an Option which was not
otherwise exercisable on the termination date or extend the period during
which an Option may be exercised, or both.
(v) A Participant or his legal representative, legatees or
distributees shall not be deemed to be the holder of any shares subject to
an Option unless and until certificates for such shares are delivered to
him or them under the Plan.
(vi) Nothing in the Plan shall confer upon the Participant any right
to continue in the service of the Corporation or a related corporation as
an employee, director, or independent contractor or to interfere in any way
with the right of the Corporation or a related corporation to terminate the
Participant's employment or service at any time.
(vii) A certificate or certificates for shares of Common Stock
acquired upon exercise of an Option shall be issued in the name of the
Participant (or his beneficiary) and distributed to the Participant (or his
beneficiary) as soon as practicable following receipt of notice of exercise
and payment of the purchase price.
(d) Nontransferability of Options
(i) Options shall not be transferable other than by will or the laws
of intestate succession. The designation of a beneficiary does not
constitute a transfer. An Option shall be exercisable during the
Participant's lifetime only by him or by his guardian or legal
representative.
(ii) If a Participant is subject to Section 16 of the Exchange Act,
shares of Common Stock acquired upon exercise of an Option may not, without
the consent of the Committee, be disposed of by the Participant until the
expiration of six months after the date the Option was granted.
7. Stock Appreciation Rights
(a) Grant of SARs: Subject to the limitations of the Plan, the Committee
may in its sole and absolute discretion grant SARs to such eligible individuals,
in such numbers, upon such terms and at such times as the Committee shall
determine. SARs may be granted to an optionee of an Option (hereinafter called a
"Related Option") with respect to all or a portion of the shares of Common Stock
subject to the Related Option (a "Tandem SAR") or may be granted separately to
an eligible key employee (a "Freestanding SAR"). Subject to the limitations of
the Plan, SARs shall be exercisable in whole or in part upon notice to the
Corporation upon such terms and conditions as are provided in the agreement
relating to the grant of the SAR.
(b) Tandem SARs: A Tandem SAR may be granted either concurrently with the
grant of the Related Option or (if the Related Option is a Nonqualified Option)
at any time thereafter prior to the complete exercise, termination, expiration
or cancellation of such Related Option. Tandem SARs shall be exercisable only at
the time and to the extent that the Related Option is exercisable (and may be
subject to such additional limitations on exercisability as the Committee may
provide in the agreement),
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and in no event after the complete termination or full exercise of the Related
Option. For purposes of determining the number of shares of Common Stock that
remain subject to such Related Option and for purposes of determining the number
of shares of Common Stock in respect of which other Awards may be granted, upon
the exercise of Tandem SARs, the Related Option shall be considered to have been
surrendered to the extent of the number of shares of Common Stock with respect
to which such Tandem SARs are exercised. Upon the exercise or termination of the
Related Option, the Tandem SARs with respect thereto shall be canceled
automatically to the extent of the number of shares of Common Stock with respect
to which the Related Option was so exercised or terminated. Subject to the
limitations of the Plan, upon the exercise of a Tandem SAR, the Participant
shall be entitled to receive from the Corporation, for each share of Common
Stock with respect to which the Tandem SAR is being exercised, consideration
equal in value to the excess of the Fair Market Value of a share of Common Stock
on the date of exercise over the Related Option price per share; provided, that
the Committee may, in any agreement granting Tandem SARs, establish a maximum
value payable for such SARs.
(c) Freestanding SARs: Unless an individual agreement provides otherwise,
the base price of a Freestanding SAR shall be not less than 100% of the Fair
Market Value of the Common Stock (as determined in accordance with Section
6(b)(ii) herein) on the date of grant of the Freestanding SAR. Subject to the
limitations of the Plan, upon the exercise of a Freestanding SAR, the
Participant shall be entitled to receive from the Corporation, for each share of
Common Stock with respect to which the Freestanding SAR is being exercised,
consideration equal in value to the excess of the Fair Market Value of a share
of Common Stock on the date of exercise over the base price per share of such
Freestanding SAR; provided, that the Committee may, in any agreement granting
Freestanding SARs, establish a maximum value payable for such SARs.
(d) Exercise of SARs:
(i) Subject to the terms of the Plan, SARs shall be exercisable in
whole or in part upon such terms and conditions as are provided in the
agreement relating to the grant of the SAR. The period during which an SAR
may be exercisable shall not exceed ten years from the date of grant or, in
the case of Tandem SARs, such shorter option period as may apply to the
Related Option. Any SAR or portion thereof not exercised before expiration
of the period stated in the agreement relating to the grant of the SAR
shall terminate.
(ii) SARs may be exercised by giving written notice to the Corporation
at such place as the Committee shall direct. The date of exercise of the
SAR shall mean the date on which the Corporation shall have received notice
from the Participant of the exercise of such SAR.
(iii) No SAR may be exercised unless the Participant is, at the time
of exercise, an eligible Participant, as described in Section 5, and has
been a Participant continuously since the date the SAR was granted, subject
to the provisions of Sections 6(c)(iii) and (iv) herein.
(e) Consideration; Election: The consideration to be received upon the
exercise of the SAR by the Participant shall be paid in cash, shares of Common
Stock (valued at Fair Market Value on the date of exercise of such SAR in
accordance with Section 6(b)(ii) herein) or a combination of cash and shares of
Common Stock, as elected by the Participant, subject to the terms of the Plan
and the
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applicable agreement. The Corporation's obligation arising upon the exercise of
the SAR may be paid currently or on a deferred basis with such interest or
earnings equivalent as the Committee may determine. A certificate or
certificates for shares of Common Stock acquired upon exercise of an SAR for
shares shall be issued in the name of the Participant (or his beneficiary) and
distributed to the Participant (or his beneficiary) as soon as practicable
following receipt of notice of exercise. No fractional shares of Common Stock
will be issuable upon exercise of the SAR and, unless otherwise provided in the
applicable agreement, the Participant will receive cash in lieu of fractional
shares.
(f) Limitations: The applicable SAR agreement shall contain such terms,
conditions and limitations consistent with the Plan as may be specified by the
Committee. Unless otherwise so provided in the applicable agreement or the Plan,
any such terms, conditions or limitations relating to a Tandem SAR shall not
restrict the exercisability of the Related Option.
(g) Nontransferability:
(i) SARs shall not be transferable other than by will or the laws of
intestate succession. The designation of a beneficiary does not constitute
a transfer. SARs may be exercised during the Participant's lifetime only by
him or by his guardian or legal representative.
(ii) If the Participant is subject to Section 16 of the Exchange Act,
shares of Common Stock acquired upon exercise of an SAR may not, without
the consent of the Committee, be disposed of by the Participant until the
expiration of six months after the date the SAR was granted.
8. Restricted Awards
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<PAGE>
(a) Grant of Restricted Awards: Subject to the limitations of the Plan,
the Committee may in its sole and absolute discretion grant Restricted Awards to
such individuals in such numbers, upon such terms and at such times as the
Committee shall determine. A Restricted Award may consist of a Restricted Stock
Award or a Restricted Unit, or both. Restricted Awards shall be payable in cash
or whole shares of Common Stock (including Restricted Stock), or partly in cash
and partly in whole shares of Common Stock, in accordance with the terms of the
Plan and the sole and absolute discretion of the Committee. The Committee may
condition the grant or vesting, or both, of a Restricted Award upon the
continued service of the Participant for a certain period of time, attainment of
such performance objectives as the Committee may determine, or upon a
combination of continued service and performance objectives and as set forth in
the applicable agreement. The Committee shall determine the nature, length and
starting date of the period during which the Restricted Award may be earned (the
"Restriction Period") for each Restricted Award, which shall be as stated in the
agreement to which the Award relates. In the case of Restricted Awards based
upon performance criteria, or a combination of performance criteria and
continued service, the Committee shall determine the performance objectives to
be used in valuing Restricted Awards and determine the extent to which such
Awards have been earned. Performance objectives may vary from participant to
participant and between groups of participants and shall be based upon such
Corporation, business unit and/or individual performance factors and criteria as
the Committee in its sole discretion may deem appropriate, including, but not
limited to, sales targets, earnings per share, return on equity, return on
assets, total revenue or total return to stockholders. The Committee shall
determine the terms and conditions of each Restricted Award, including the form
and terms of payment of Awards. The Committee shall have sole authority to
determine whether and to what degree Restricted Awards have been earned and are
payable and to interpret the terms and conditions of Restricted Awards and the
provisions herein.
(b) Earning of Restricted Awards: If the applicable agreement so provides,
a Restricted Award granted to a Participant may be deemed to be earned as of the
first to occur of the completion of the Restriction Period, retirement,
displacement, death or disability of the Participant, or acceleration of the
Restricted Award, provided that, in the case of Restricted Awards based upon
performance criteria or a combination of performance criteria and continued
service, the Committee shall have sole discretion to determine if, and to what
degree, the Restricted Awards shall be deemed earned at the end of the
Restriction Period or upon the retirement, displacement, death or disability of
the Participant. If the agreement does not so provide, then the Restricted
Award shall be deemed earned only as the agreement provides. In addition, the
following rules shall also apply to the earning of Restricted Awards:
(i) Completion of Restriction Period: For this purpose, a Restricted
Award shall be deemed to be earned upon completion of the Restriction
Period (except as otherwise provided herein for performance-based
Restricted Awards). In order for a Restricted Award to be deemed earned,
the Participant must have been continuously employed or in service during
the Restriction Period. Continuous employment or service shall mean
employment with or service to any combination of the Corporation and one or
more related corporations, and a temporary leave of absence with consent of
the Corporation shall not be deemed to be a break in continuous employment
or service.
(ii) Retirement of the Participant: For this purpose, the Participant
shall be deemed to have retired as of the earlier of (A) his normal
retirement date under the retirement plan
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established by the Corporation for its employees which is applicable to the
Participant, or (B) his retirement date under a contract, if any, between
the Participant and the Corporation providing for his retirement from the
employment of the Corporation or a related corporation prior to such normal
retirement date, or (C) a mutually agreed upon early retirement date under
such retirement plan of the Corporation between the Participant and the
Corporation.
(iii) Displacement of the Participant: For this purpose, the
Participant shall be deemed to have been displaced in the event of the
termination of the Participant's employment or service due to the
elimination of the Participant's job or position without fault on the part
of the Participant.
(iv) Death or Disability of the Participant: Except as otherwise
provided herein for performance-based Restricted Awards, if the Participant
shall terminate continuous employment or service because of death or
disability before a Restricted Award is otherwise deemed to be earned
pursuant to this Section 8(b), the Participant shall be deemed to have
earned a percentage of the Award (rounded to the nearest whole share in the
case of Restricted Awards payable in shares) determined by dividing the
number of his full years of continuous employment or service then completed
during the Restriction Period with respect to the Award by the number of
years of such Restriction Period.
(v) Acceleration of Restricted Awards by the Committee:
Notwithstanding the provisions of this Section 8(b), the Committee, in its
sole and absolute discretion, may accelerate the date that any Restricted
Award granted to the Participant shall be deemed to be earned in whole or
in part, without any obligation to accelerate such date with respect to
other Restricted Awards granted to the Participant or to accelerate such
date with respect to Restricted Awards granted to any other Participant, or
to treat all Participants similarly situated in the same manner.
(c) Forfeiture of Restricted Awards: If the employment or service of a
Participant shall be terminated for any reason, and the Participant has not
earned all or part of a Restricted Award pursuant to the terms herein, such
Award to the extent not then earned shall be forfeited immediately upon such
termination and the Participant shall have no further rights with respect
thereto.
(d) Dividend and Voting Rights; Share Certificates: A Participant shall
have no dividend rights or voting rights with respect to shares reserved in his
name pursuant to a Restricted Award payable in shares but not yet earned
pursuant to Section 8(b). A certificate or certificates for shares of Common
Stock representing a Restricted Award payable in shares shall be issued in the
name of the Participant and distributed to the Participant (or his beneficiary)
as soon as practicable following the date that the shares subject to the Award
are earned as provided in Section 8(b). No certificate shall be issued hereunder
in the name of the Participant (or his beneficiary) except to the extent the
shares represented thereby have been earned.
(e) Nontransferability:
(i) The recipient of a Restricted Award shall not sell, transfer,
assign, pledge or otherwise encumber shares subject to the Award until the
Restriction Period has expired or until all conditions to vesting have been
met.
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<PAGE>
(ii) Restricted Awards shall not be transferable other than by will or
the laws of intestate succession. The designation of a beneficiary does
not constitute a transfer.
(iii) If a Participant of a Restricted Award is subject to Section 16
of the Exchange Act, shares of Common Stock subject to such Award may not,
without the consent of the Committee, be sold or otherwise disposed of
within six months following the date of grant of such Award.
9. Withholding
The Corporation shall withhold all required local, state and federal taxes
from any amount payable in cash with respect to an Award. The Corporation shall
require any recipient of an Award payable in shares of the Common Stock to pay
to the Corporation in cash the amount of any tax or other amount required by any
governmental authority to be withheld and paid over by the Corporation to such
authority for the account of such recipient. Notwithstanding the foregoing, the
recipient may satisfy such obligation in whole or in part, and any other local,
state or federal income tax obligations relating to such an Award, by electing
(the "Election") to have the Corporation withhold shares of Common Stock from
the shares to which the recipient is entitled. The number of shares to be
withheld shall have a Fair Market Value as of the date that the amount of tax to
be withheld is determined (the "Tax Date") as nearly equal as possible to (but
not exceeding) the amount of such obligations being satisfied. Each Election
must be made in writing to the Committee in accordance with election procedures
established by the Committee.
10. Performance-Based Compensation
To the extent that Section 162(m) of the Code is applicable, the Committee
shall have discretion to determine the extent, if any, that Awards conferred
under the Plan to Covered Employees, as such term is defined in Section 19(b)
herein, shall comply with the qualified performance-based compensation exception
to employer compensation deductions set forth in Section 162(m) of the Code.
11. Section 16(b) Compliance
It is the general intent of the Corporation that transactions under the
Plan which are subject to Section 16 of the Exchange Act shall comply with Rule
16b-3 under the Exchange Act. Notwithstanding anything in the Plan to the
contrary, the Committee, in its sole and absolute discretion, may bifurcate the
Plan so as to restrict, limit or condition the use of any provision of the Plan
to participants who are officers or directors subject to Section 16 of the
Exchange Act without so restricting, limiting or conditioning the Plan with
respect to other participants.
12. No Right or Obligation of Continued Employment
Nothing contained in the Plan shall require the Corporation or a related
corporation to continue the employment or service of a Participant, nor shall
any such individual be required to remain in the employment or service of the
Corporation or a related corporation. Except as otherwise provided in the
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Plan, Awards granted under the Plan to employees of the Corporation or a related
corporation shall not be affected by any change in the duties or position of the
participant, as long as such individual remains an employee of, or in service
to, the Corporation or a related corporation.
13. Unfunded Plan; Retirement Plans
(a) Neither a Participant nor any other person shall, by reason of the
Plan, acquire any right in or title to any assets, funds or property of the
Corporation or any related corporation including, without limitation, any
specific funds, assets or other property which the Corporation or any related
corporation, in their discretion, may set aside in anticipation of a liability
under the Plan. A participant shall have only a contractual right to the Common
Stock or amounts, if any, payable under the Plan, unsecured by any assets of the
Corporation or any related corporation. Nothing contained in the Plan shall
constitute a guarantee that the assets of such corporations shall be sufficient
to pay any benefits to any person.
(b) In no event shall any amounts accrued, distributable or payable under
the Plan be treated as compensation for the purpose of determining the amount of
contributions or benefits to which any person shall be entitled under any
retirement plan sponsored by the Corporation or a related corporation that is
intended to be a qualified plan within the meaning of Section 401(a) of the
Code.
14. Amendment and Termination of the Plan
The Plan may be amended or terminated at any time by the Board of Directors
of the Corporation; provided, that (i) such amendment or termination shall not,
without the consent of the recipient of an Award, adversely affect the rights of
the recipient with respect to an outstanding Award; and (ii) approval of an
amendment by the stockholders of the Corporation shall only be required in the
event such stockholder approval of any such amendment is required by applicable
law, rule or regulation.
15. Restrictions on Shares
The Committee may impose such restrictions on any shares representing
Awards hereunder as it may deem advisable, including without limitation
restrictions under the Securities Act of 1933, as amended (the "Securities
Act"), under the requirements of any stock exchange or similar organization and
under any blue sky or state securities laws applicable to such shares.
Notwithstanding any other Plan provision to the contrary, the Corporation shall
not be obligated to issue or deliver shares of Common Stock under the Plan or
make any other distribution of benefits under the Plan, or take any other
action, unless such delivery, distribution or action is in compliance with all
applicable laws, rules and regulations (including but not limited to the
requirements of the Securities Act). The Corporation may cause a restrictive
legend to be placed on any certificate issued pursuant to an Award hereunder in
such form as may be prescribed from time to time by applicable laws and
regulations or as may be advised by legal counsel.
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16. Applicable Law
The Plan shall be governed by and construed in accordance with the laws of
the State of Delaware.
17. Stockholder Approval
The Plan is subject to approval by the stockholders of the Corporation,
which approval must occur, if at all, within 12 months of the effective date of
the Plan. Awards granted prior to such stockholder approval shall be
conditioned upon and shall be effective only upon approval of the Plan by such
stockholders on or before such date.
18. Change of Control
(a) Notwithstanding any other provision of the Plan to the contrary, in the
event of a Change of Control (as defined in Section 19(b) herein):
(i) All Options and SARs outstanding as of the date of such Change of
Control shall become fully exercisable, whether or not then otherwise
exercisable.
(ii) Any restrictions including but not limited to the Restriction
Period applicable to any Restricted Award shall be deemed to have expired,
and such Restricted Awards shall become fully vested and payable to the
fullest extent of the original grant of the applicable Award.
(iii) Notwithstanding the foregoing, in the event of a merger, share
exchange, reorganization or other business combination affecting the
Corporation or a related corporation, the Committee may, in its sole and
absolute discretion, determine that any or all Awards granted pursuant to
the Plan shall not vest or become exercisable on an accelerated basis, if
the Board of Directors of the surviving or acquiring corporation, as the
case may be, shall have taken such action, including but not limited to the
assumption of Awards granted under the Plan or the grant of substitute
awards (in either case, with substantially similar terms as Awards granted
under the Plan), as in the opinion of the Committee is equitable or
appropriate to protect the rights and interests of participants under the
Plan. For the purposes herein, the Committee authorized to make the
determinations provided for in this Section 18(a)(iii) shall be appointed
by the Board of Directors, two-thirds of the members of which shall have
been directors of the Corporation prior to the merger, share exchange,
reorganization or other business combinations affecting the Corporation or
a related corporation.
(b) 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 Corporation if the
Corporation's stock is not then registered with the SEC
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and publicly traded or (y) forty percent (40%) or more of the outstanding
Common Stock of the Corporation if the Corporation has consummated its
initial public offering;
(ii) The date the stockholders of the Corporation approve a definitive
agreement (A) to merge or consolidate the Corporation with or into another
corporation, in which the Corporation is not the continuing or surviving
corporation or pursuant to which any shares of Common Stock of the
Corporation would be converted into cash, securities or other property of
another corporation, other than a merger or consolidation of the
Corporation 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, or (B) to sell or otherwise dispose of all or
substantially all the assets of the Corporation; or
(iii) The date there shall have been a change in a majority of the
Board of Directors of the Corporation within a 12-month period unless the
nomination for election by the Corporation'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.
(For purposes herein, the term "person" shall mean any individual,
corporation, partnership, group, association or other person, as such term
is defined in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act,
other than the Corporation, a subsidiary of the Corporation or any employee
benefit plan(s) sponsored or maintained by the Corporation or any
subsidiary thereof, and the term "beneficial owner" shall have the meaning
given the term in Rule 13d-3 under the Exchange Act.)
19. Certain Definitions
For purposes of the Plan, the following terms shall have the meaning
indicated:
(a) "Agreement" means any written agreement or agreements between the
Corporation and the recipient of an Award pursuant to the Plan relating to the
terms, conditions and restrictions of Options, SARs, Restricted Awards and any
other Awards conferred herein.
(b) "Covered Employee" shall have the meaning given the term in Section
162(m) of the Code or the regulations thereunder.
(c) "Disability" shall mean the inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death, or which has lasted or can
be expected to last for a continuous period of not less than twelve months.
(d) "Parent" or "parent corporation" shall mean any corporation (other than
the Corporation) in an unbroken chain of corporations ending with the
Corporation if each corporation other than the Corporation owns stock possessing
50% or more of the total combined voting power of all classes of stock in
another corporation in the chain.
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(e) "Predecessor" or "predecessor corporation" means a corporation which
was a party to a transaction described in Section 424(a) of the Code (or which
would be so described if a substitution or assumption under that Section had
occurred) with the Corporation, or a corporation which is a parent or subsidiary
of the Corporation, or a predecessor of any such corporation.
(f) "Related corporation" means any parent, subsidiary or predecessor of
the Corporation.
(g) "Restricted Stock" shall mean shares of Common Stock which are subject
to Restricted Awards payable in shares, the vesting of which is subject to
restrictions set forth in the Plan or the agreement relating to such Award.
(h) "Subsidiary" or "subsidiary corporation" means any corporation (other
than the Corporation) in an unbroken chain of corporations beginning with the
Corporation if each corporation other than the last corporation in the unbroken
chain owns stock possessing 50% or more of the total combined voting power of
all classes of stock in another corporation in the chain.
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1998 STOCK INCENTIVE PLAN
OF CLARUS CORPORATION
(Employee Option Agreement)
THIS AGREEMENT (the "Agreement"), made the _____ day of ____________, ____,
between CLARUS CORPORATION, a Delaware corporation (the "Corporation"), and
______________________, an employee of the Corporation or a related corporation
(the "Optionee");
R E C I T A L S :
- - - - - - - -
In furtherance of the purposes of the 1998 Stock Incentive Plan of Clarus
Corporation, as it may be hereafter amended (the "Plan"), the Corporation and
the Optionee hereby agree as follows:
1. The rights and duties of the Corporation and the Optionee under this
Agreement shall in all respects be subject to and governed by the provisions of
the Plan, the terms of which are incorporated herein by reference.
2. The Corporation hereby grants to the Optionee pursuant to the Plan, as
a matter of separate inducement and agreement in connection with his employment
or service to the Corporation, and not in lieu of any salary or other
compensation for his services, the right and Option (the "Option") to purchase
all or any part of an aggregate of _______________ (_________) shares (the
"shares") of the Common Stock of the Corporation, at an option price of
_____________________________ ($__________) per share. The Option to purchase
_____________ (_____) of the shares shall be designated as an Incentive Option.
The Option to purchase ________________ (_____) of the shares shall be
designated as a Nonqualified Option. To the extent that any Option is designated
as an Incentive Option and such Option does not qualify as an Incentive Option,
it shall be treated as a Nonqualified Option. Except as otherwise provided in
the Plan, the Option will expire if not exercised in full before ______________,
______.
3. The Option shall become exercisable on the date or dates set forth on
Schedule A attached hereto. To the extent that an Option which is exercisable
is not exercised, such Option shall accumulate and be exercisable by the
Optionee in whole or in part at any time prior to expiration of the Option.
Upon the exercise of an Option in whole or in part, the Optionee shall pay the
option price to the Corporation in accordance with the provisions of the Plan,
and the Corporation shall as soon thereafter as practicable deliver to the
Optionee a certificate or certificates for the shares purchased.
4. Nothing contained in this Agreement or the Plan shall require the
Corporation or a related corporation to continue to employ the Optionee for any
particular period of time, nor shall it require the Optionee to remain in the
employ of the Corporation or such related corporation for any particular period
of time. Except as otherwise expressly provided in the Plan, all rights of the
<PAGE>
Optionee under the Plan with respect to the unexercised portion of his Option
shall terminate upon termination of the employment of the Optionee with the
Corporation or a related corporation.
5. Except as may be otherwise provided in the Plan, this Option shall not
be transferable other than by will or the laws of intestate succession. This
Option shall be exercisable during the Optionee's lifetime only by the Optionee.
6. This Agreement may be modified, amended or terminated only by the
written consent of the parties hereto.
7. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective executors, administrators, next-of-kin,
successors and assigns.
8. Except as otherwise provided in the Plan or herein, this Agreement
shall be construed and enforced according to the laws of the State of Delaware.
IN WITNESS WHEREOF, this Agreement has been executed in behalf of the
Corporation and by the Optionee on the day and year first above written.
CLARUS CORPORATION
By:________________________________
Name:______________________________
Title:_____________________________
Attest:
- -------------------------
Secretary
[Corporate Seal]
OPTIONEE
___________________________
(SEAL)
Name:______________________
-2-
<PAGE>
1998 STOCK INCENTIVE PLAN
OF CLARUS CORPORATION
(Employee Option Agreement)
SCHEDULE A
Date Option granted: __________________, ______.
Date Option expires: __________________, ______.
Number of shares subject to Option: _______ shares.
Option price (per share): $________.
Date Installment Number of Shares Incentive or
First Exercisable in Installment Nonqualified Stock Option
- ----------------- ---------------- -------------------------
<PAGE>
1998 STOCK INCENTIVE PLAN
OF CLARUS CORPORATION
(Non-Employee Director/Independent Contractor Agreement)
THIS AGREEMENT (the "Agreement"), made the ______ day of ____________,
____, between CLARUS CORPORATION, a Delaware corporation (the "Corporation"),
and ______________________ (the "Optionee");
R E C I T A L S :
- - - - - - - -
In furtherance of the purposes of the 1998 Stock Incentive Plan of Clarus
Corporation, as it may be hereafter amended (the "Plan"), the Corporation and
the Optionee hereby agree as follows:
1. The rights and duties of the Corporation and the Optionee under this
Agreement shall in all respects be subject to and governed by the provisions of
the Plan, the terms of which are incorporated herein by reference.
2. The Corporation hereby grants to the Optionee pursuant to the Plan, as
a matter of separate inducement and agreement in connection with his services to
the Corporation or a related corporation, and not in lieu of any salary or other
compensation for his services, the right and Option (the "Option") to purchase
all or any part of an aggregate of _______________ (_________) shares (the
"shares") of the Common Stock of the Corporation, at an option price of
__________________________ ($__________) per share. The Option shall be
designated as a Nonqualified Option. Except as otherwise provided in the Plan,
the Option will expire if not exercised in full before ____________, _____.
3. The Option shall become exercisable on the date or dates shown on
Schedule A. To the extent that an Option which is exercisable is not exercised,
such Option shall accumulate and be exercisable by the Optionee in whole or in
part at any time prior to expiration of the Option. Upon the exercise of an
Option in whole or in part, the Optionee shall pay the option price to the
Corporation in accordance with the provisions of the Plan, and the Corporation
shall as soon thereafter as practicable deliver to the Optionee a certificate or
certificates for the shares purchased.
4. Nothing contained in this Agreement or the Plan shall require the
Corporation or a related corporation to continue to require the services of the
Optionee for any particular period of time, nor shall it require the Optionee to
remain in service to the Corporation or such related corporation for any
particular period of time. Except as otherwise expressly provided in the Plan,
all rights of the Optionee under the Plan with respect to the unexercised
portion of his Option shall terminate upon termination of the service of the
Optionee with the Corporation or a related corporation.
<PAGE>
5. Except as may be otherwise provided by the Plan, this Option shall not
be transferable other than by will or the laws of intestate succession. This
Option shall be exercisable during the Optionee's lifetime only by the Optionee.
6. This Agreement may be modified, amended or terminated only by the
written consent of the parties hereto.
7. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective executors, administrators, next-of-kin,
successors and assigns.
8. Except as otherwise provided herein or in the Plan, this Agreement
shall be construed and enforced according to the laws of the State of Delaware.
IN WITNESS WHEREOF, this Agreement has been executed in behalf of the
Corporation and by the Optionee on the day and year first above written.
CLARUS CORPORATION
By:_____________________________
Name:___________________________
Title:__________________________
Attest:
- -----------------------------
Secretary
[Corporate Seal]
OPTIONEE
______________________________
(SEAL)
Name:_________________________
-2-
<PAGE>
1998 STOCK INCENTIVE PLAN
OF CLARUS CORPORATION
(Non-Employee Director/Independent Contractor Agreement)
SCHEDULE A
Date Option granted: __________________, _____.
Date Option expires: __________________, _____.
Number of shares subject to Option: _______ shares.
Option price (per share): $________.
Date Installment Number of Shares
First Exercisable in Installment
----------------- ----------------
