Resignation and Severance Agreement and General Release
Resignation
and Severance Agreement
and
General Release
Resignation
and Severance Agreement
and General Release
(the
"Agreement") made and executed as of December ___, 2006, by and between Clarus
Corporation (the “Company") with offices at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇ ▇. ▇▇▇▇▇ ("Employee") residing at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
W
I T N E S S E T H
Whereas,
Employee
is employed by the Company as Chief Administrative Officer of the Company
pursuant to an agreement dated as of December 6, 2002, between the Company
and
the Employee, as amended by an agreement dated as of May 1, 2006, between the
Company and the Employee (collectively, the "Employment
Agreement");
Whereas,
the
Employee desires to voluntarily resign from his position effective as of
December 31, 2006, but nonetheless remain an employee of the Company until
December 31, 2006 (the “End Date”) and accept the severance and benefits set
forth herein in lieu of all severance and benefits otherwise provided in the
Employment Agreement;
Whereas,
Company
desires to accept such resignation, to allow Employee to remain an employee
of
the Company until the End Date and to provide Employee with the severance and
benefits set forth herein;
Whereas,
the
parties desire to set forth their agreement and understanding concerning the
termination of the Employee’s employment.
Now,
Therefore,
in
consideration of the foregoing premises and the mutual promises herein
contained, it is agreed as follows:
1. Separation
from Employment, etc.
(a) Resignation.
The
parties acknowledge and agree that Employee’s resignation as an officer of the
Company and the Company’s direct and indirect subsidiaries and affiliates shall
be effective as of December 31, 2006. The parties acknowledge and agree that
Employee’s resignation as an employee of the Company and the Company’s direct
and indirect subsidiaries and affiliates, and Employee’s separation from
employment with the Company and all of the Company’s direct or indirect
subsidiaries or affiliates shall be effective as of the End Date; provided,
however, that until the Company has filed its Annual Report on Form 10-K for
the
year ending December 31, 2006, the Employee will make himself available to
the
Company as and when reasonably requested by the Company to facilitate the
transition of administration of the Company to other executives and to prepare
such Annual Report. The Company shall continue to pay the Employee all salary
and benefits to which he is entitled under his Employment Agreement, subject
to
the Company’s continuing customary payroll practices, until December 31,
2006.
1
(b) Confidentiality.
For
purposes of this Agreement, all references to the Company shall be deemed to
include all of the Company's affiliates and direct and indirect
subsidiaries.
(i) Confidential
Information.
The
Employee acknowledges that as a result of his employment with the Company,
the
Employee has and will continue to have knowledge of, and access to, proprietary
and confidential information of the Company (in written, graphic, electronic,
oral and other forms, and in electronic, magnetic, paper and other media),
including, without limitation, information regarding the Company’s assets,
properties, business, plans, strategies, operations, and 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 codes and object codes), 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, developed or acquired by the Employee, constitutes
valuable, special and unique assets of the Company developed at great expense
which are the exclusive property of the Company. Ac-cord-ingly, the Employee
shall not, at any time, either during the term of his employment with the
Company or subsequent to the End Date, use (whether for personal gain or
otherwise), reveal, report, publish, transfer or otherwise disclose to any
person, corporation or other entity, any of the Con-fi-dential 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 and who have a need
for
such information for pur-poses in the best interests of the Company, and except
(i) for such information which is or be-comes of general public knowledge
from authorized sources other than the Employee, and (ii) as may be
required by law, regulation, legal proceeding or court order. The Employee
acknow-ledges that the Company would not enter into this Agreement without
the
assurance that all such Confi-dential Information will be used for the exclusive
benefit of the Company.
(ii) Return
of Confidential Information.
The
Employee shall promptly, but in any event no later than the End Date, deliver
to
the Company all drawings, manuals, letters, notes, notebooks, reports and copies
thereof and all other materials relating to the Company's business, including
without limitation any materials incorporating Confidential Information, which
are in the Employee's possession or control. In the event that any such
materials are provided to Employee in connection with Section 9(F) of this
Agreement during the six month period following the End Date, then Employee
shall, within 10 business days following the expiration of such six-month
period, deliver to the Company all such materials which are in Employee’s
possession or control, except for such having a de minimus
value to
the Company.
(iii) Return
of Company Property.
The
Employee covenants and agrees that on or before the End Date, he will return
to
the Company all property of the Company which has theretofore been furnished
to
him, including without limitation cell phones, computers, Blackberries and
other
equipment.
2
(iv) Inventions,
etc.
The
Employee will promptly disclose to the Com-pany all designs, processes,
inventions, improvements, discoveries and other information related to the
business of the Company (collectively "developments") conceived, developed
or acquired by the Employee alone or with others during the term of the
Employee's employment with the Company, whether or not conceived during regular
working hours, through the use of Company time, material or facilities or
otherwise, whether prior to or within eighteen (18) months after the End Date.
All such developments shall be the sole and exclusive property of the Company,
and upon request the Employee shall deliver to the Com-pany all draw-ings,
models and other data and records relating to such developments. In the event
any such developments shall be deemed by the Company to be patentable or
copyrightable, the Employee shall, at the expense of the Company, assist the
Company in obtaining any patents or copyrights thereon and execute all documents
and do all other things necessary or proper to obtain letters patent and
copyrights and to vest the Company with full title thereto.
(c) Non-competition.
The
Employee will not utilize his special knowledge of the business of the Company
and his rela-tionships with customers, suppliers of the Company and others
to
compete with the Company. Subject to the fourth sentence of this Section 1
(c)
for a period of three years from the date hereof, the Employee shall not engage,
directly or in-directly, or have an interest, directly or indirectly, anywhere
in the United States of America or any other geographic area where the Company
does business or in which its products or services are marketed, alone or in
association with others, as principal, officer, agent, employee, director,
partner or stockholder, or through the investment of capital, lending of money
or property, ▇▇▇-▇▇▇▇▇▇ of services or otherwise, in any business competitive
with or substantially similar to that engaged in or, to the knowledge of the
Employee, contemplated to be engaged in, by the Company or any vendor, supplier
or distributor of the Company during the term of Employee’s employment by the
Company, or any line of business or acquisition that the Company has obtained
due diligence or other information on during Employee’s employment with the
Company. Subject to the fourth sentence of this Section 1 (c) during the same
period, the Employee shall not, and shall not permit any of his employees,
agents or others under his control to, directly or indirectly, on behalf of
himself 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 Company or any successor to
the
business of the Company, or otherwise divert or attempt to divert any busi-ness
from the Company or any such successor, or (ii) directly or indirectly
recruit or other-wise 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 rela-tionship 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. The
Employee 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 Employee of the provisions of Section 1(b)(iv) or
this Section 1(c) shall toll the running of any time periods set forth in this
Section 1(c) for the duration of any such breach or violation. Notwithstanding
any provision in this Agreement to the contrary, the parties hereto agree and
understand that the ownership by the Employee of five percent (5%) or less
of
the stock of any company listed on a national securities exchange shall not
be
deemed a violation of this Section 1(c) and it being further understood that
nothing herein shall prevent the Employee from engaging in the business of
investing, reinvesting or trading in securities or other financial
instruments.
3
(d) Remedies.
The
restrictions set forth in Sections 1(b) and 1(c) are con-sidered by the parties
to be fair and reasonable. The Employee acknowledges that the restrictions
contained in Sections 1(b) and 1(c) will not prevent him from earning a
livelihood. The Em-ployee 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 1(b) or 1(c).
Accordingly, the Employee agrees that, in addition to any other remedies
available to the Company, the Company (i) shall be entitled to specific
performance, injunction, and other equitable relief to secure the enforcement
of
such provisions, (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 Employee for all reasonable attorneys' fees and expenses
in-curred by the Company in enforcing such provisions if the Company prevails
in
any action brought to enforce Sections 1(b) or 1(c) hereof. If any provisions
of
Sections 1(b), 1(c), or 1(d) 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 acti-vities 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 pro-visions of Sections 1(b), 1(c), or 1(d) 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 inten-tions and agreement of the parties.
2. Employee’s
and Company’s Representations and Covenants.
The
Employee rep-re-sents that he has not filed any claims, complaints, charges
or
lawsuits (collectively “Actions”) against the Company and any parent, subsidiary
and related corporations and divi-sions of any of them, and the members, owners,
stockholders, predecessors, successors, assigns, agents, direc-tors, officers,
employees and representatives of any of them) with any governmental agency,
arbitrator, or any court with respect to his employment or separation from
employment, and that he will not do so at any time hereafter; provided, however,
this clause shall not limit the Em-ployee from filing a lawsuit for the sole
purpose of enforcing his rights under this Agreement. The Company represents
that it has not filed any Actions against the Employee with any govern-mental
agency, arbitrator, or any court with respect to his employment or separation
from em-ploy-ment as of the date hereof
3. Acknowledgment
of Payment and Receipt.
The
parties acknowledge that all pay-ments for wages and benefits due to the
Employee through the date hereof, including payment for all accrued vacation
pay
and any expense reimbursements, have been paid by the Company and received
by
the Employee, and that there are no further obligations of the Company to the
Employee except as specifically set forth in this Agreement. The parties
acknowledge that Employee may incur certain business expenses between the date
hereof and the End Date, and the Company agrees to reimburse Employee for all
such business expenses that were properly incurred on behalf of Company business
upon submission of appropriate receipts therefor.
4
4. Severance
Payments and Benefits to Employee Not Required by Law or
Contract.
In
full
settlement of all Claims as hereinafter defined in Section 10.A (“Release of the
Com-pany”), and in consideration of the obligations, agreements and undertakings
of the Employee herein, including, without limitation, the confidentiality
and
non-competition provisions and release of the Company by the Employee, and,
provided that Employee has not breached and is not then in breach of his
representations, warranties, covenants or obligations under this Agreement,and
with respect to a breach of Sections 1(b)(ii), (iii) or (iv), has not cured
any
such breach within 10 days after written notice thereof is sent by the Company,
the Company shall provide the following to the Employee (hereinafter
collectively referred to as “Severance Benefits”):
A. (i) Commencing
January 1, 2007, the Company shall make severance payments in the aggregate
amount of Two Hundred Fifty Thousand and 00/100 Dollars ($250,000), which shall
be payable to Employee in accordance with the Company's usual payroll practices,
but not less frequently than once each month, commencing with the first pay
period ending after January 1, 2007, in each case payable subject to Sections
16
("Right of Setoff and Liquidated Damages") and 17 ("IRC
Section 409A") hereof,
and subject to withholding for applicable taxes and other mutually agreed
amounts. Such payments shall continue notwithstanding Employee's employment
with
another company, provided that such employment does not violate the terms of
this Agreement or prevent the Employee's full compliance with this Agreement
and
his obligations hereunder.
(ii) Annexed
hereto as Exhibit A, is a complete list of all options and restricted stock
grants presently outstanding to Employee. All stock options granted to the
Employee which are not presently vested as set forth in columns 1 and 2 of
Exhibit ‘A’ shall be deemed fully vested as of December 15, 2006 (the "Option
Vesting Date"). Employee shall be considered an “active” participant under the
Option agreement until December 31, 2007. The parties agree that all stock
options shall terminate on December 31, 2007, unless sooner exercised by
Employee or terminated in accordance with their terms. All restricted stock
awards and all shares of restricted stock which are not presently vested as
set
forth in column 3 of Exhibit A shall vest in full as of January 1, 2007 (the
"RSA Vesting Date"). All restrictions on transfer with respect to the shares
acquirable upon exercise of any options shall terminate as of the Option Vesting
Date, and all such restrictions with respect to shares of restricted stock
shall
terminate as of the RSA Vesting Date, in each case, except as otherwise required
by law. The Employee agrees and acknowledges that he will not have the right
to
pay the with-holding taxes due upon exercise of the vested options or upon
vesting of shares of restricted stock on a net cash basis, but rather, Employee
shall pay to the Company any tax due in respect of the exercise of options
or
the vesting of restricted shares of stock in cash, or at the Company's election,
by retaining or receiving shares of Company stock owned by the Employee having
a
fair market value on the Vesting Date equal to the amount of taxes required
to
be withheld, consistent with past practice.
B. Effective
on the End Date, (i) the Employee shall not be entitled to make any
additional contributions to the Company’s 401(k) Plan; and (ii) the
Company shall not make any further payments or contribute matching funds to
the
Employee’s 401(k) account.
5
5. COBRA
Rights and Assignment of Life Insurance.
A.
The
Employee shall be entitled to elect rights under COBRA to which he is legally
entitled, at his expense. The Employee shall further be entitled to such
continuing rights under all other employee benefit plans of the Company as
may
be provided to terminated employees in such plans, as he may timely elect in
the
manner provided under such plans.
B. If
any
insurance policy owned by the Company on the life of the Em-ployee is assignable
by its terms, the Company shall, upon Employee's written notice, assign such
policy to the Employee, and the Employee shall pay the premiums therefor for
periods on and after the End Date. Any prepaid premiums by the Company and
cash
surrender value accruing on or before the End Date shall be reimbursed by the
Employee to the Company upon the effectiveness of any such
assignment.
6. No
Re-Employment.
The
Employee acknowledges and agrees that the Company and any of its subsidiaries,
affiliates or related companies are under no legal or contractual duty to
re-employ, rehire or retain him in any capacity and that he will not apply
for
re-employment with the Company or any of its subsidiaries, affiliates or related
companies in any capacity. Without limiting the generality of the foregoing,
Employee will not reapply and the Company and its subsidiaries, affiliates
or
related companies will have no legal or contractual duty to hire or retain
the
Employee in any capacity, whether as an employee, consultant, independent
contractor, distributor, broker, finder or in any other commercial
relationship.
7. No
Denigration.
The
Employee shall not directly or indirectly denigrate or de-fame the Company,
its
subsidiaries, affiliates and related companies, including, without limita-tion,
their respective officers, directors, agents or employees, or cause any negative
publicity to be disseminated about the Company, its subsidiaries, affiliates
and
related companies including, without limitation, their respective officers,
directors, agents or employees, and their respective products and services
either orally or in writing.
8. [Intentionally
Omitted]
9. Employee’s
Agreements and Representations.
The
Employee’s right to receive the Severance Benefits set forth in Section 4 and
the benefits (other than as required by law) under Section 5 above are
specifically contingent on the following agreements, covenants and
representations:
A. Unless
in
connection with obligations pursuant to Section 9 hereof or otherwise at the
direction of the Company or any of its officers or directors, the Employee
agrees to refrain from making any internal use of the Company e-mail and voice
mail systems effective on the End Date and acknowledges that the Company will
terminate his access to these systems effective on the End Date, unless the
Company chooses to extend access beyond such date.
B. Effective
after the End Date, except as otherwise specifically provided herein, the
Employee shall have no Company property in his possession or control, and on
or
before the End Date, he shall have returned all Company property in his
possession or control to the Company, except for such having de
minimus
value to
the Company. .
6
C. Without
limiting the generality of Section 9.B hereof, the Employee represents, warrants
and covenants that except as otherwise specifically provided herein, he has
or
will have, on or before the End Date, returned to the Company all Company
property, in-cluding, without limitation, all Company files, records and other
papers in Employee’s pos-ses-sion or control, including, without limitation,
Employee’s notes, analyses and other work pro-duct. The Employee further
represents and warrants that all charges for expense reimburse-ments submitted
or to be submitted on or before the End Date by Employee, and all charges paid
or to be paid prior to the End Date by the Company on Employee’s behalf, have
been for valid and proper Company-related business expenses, and in the event
of
any breach of this representation, the Company shall have the right, among
other
things, to set-off the amount of any such impro-per charges against the
Company’s payment obligations to Employee hereunder.
D. The
Employee represents that he has not violated any applicable laws, rules or
regulations in the course of his employment with the Company and the performance
of his duties.
E. The
Employee acknowledges that he has no right, title or interest in or to any
intellectual property of the Company, including, but not limited to, any patent,
trademark, trade dress, service ▇▇▇▇, copyright, design or products and shall
not assert any claim thereto.
F. Until
the
Company's Annual Report on Form 10-K for the year ending December 31, 2006,
is
filed with the Securities and Exchange Commission, the Employee shall:
(i) assist in the orderly transition of the Employee’s former
responsibilities as the Chief Administrative Officer of the Company to such
officers or managers as the Chief Executive Officer or the Board of Directors
(the “Board”) may request from time to time; (ii) render such services to
the Company as may reasonably be requested by the Chief Executive Officer or
the
Board from time to time; and (iii) assist the Company’s management and
Board on various Company matters, including but not limited to the preparation
and filing with the Securities and Exchange Commission of the Company's Annual
Report on Form 10-K for the year ending December 31, 2006, all as may reasonably
be requested by the Board from time to time, in each case at such times as
will
not unduly interfere with the Employee's other business obligations..
G. For
a
period of three years commencing from the End Date, the Employee agrees to
assist the Company in connection with any legal action, arbitration,
administrative proceeding, investigation or other action (each, a “Proceeding”)
in which he may be requested to testify, consult or otherwise collaborate with
the Company. The Company shall reimburse the Employee for his reasonable
out-of-pocket expenses incurred in connection with providing such assistance,
which expenses shall be pre-approved by the Company prior to being incurred
by
the Employee and which pre-approval shall not be unreasonably withheld,
conditioned or delayed. In addition to the reimbursement of expenses as set
forth above, the Company will reimburse Employee at the per diem rate of
$1,000.00 per day in the event that Employee’s services are requested pursuant
to this Section 9.G during the period commencing one year after the End Date
and
ending three years after the End Date which will not unduly burden the
Employee.
7
10. General
Release.
A. Release
of the Company.
In
consideration of the Severance Benefits provided hereunder, and the covenants,
obligations and undertakings of the Company hereunder, the Employee irrevocably,
unconditionally and generally releases, acquits and forever discharges the
Company, any related corporation, entity and affiliates of each of the
foregoing, and each of its members, owners, stockholders, predecessors,
successors, assigns, agents, directors, officers, employees, representatives
and
affiliates thereof, and all persons acting by, through, under or in concert
with
any of them (collectively “Releasees”) from any and all claims, charges,
complaints, liabilities, obligations, promises, agreements, controversies,
damages, actions, causes of action, suits, rights, demands, costs, losses,
debts
and expenses (including reasonable attorneys’ fees and costs actually incurred)
of any nature whatsoever (collectively, “Claims”), and arising out of or
relating to any matter or thing whatsoever including, but not limited to, any
and all Claims whatsoever arising from the Employment Agreement, and the
Employee’s employment with and separation from the Company (including without
limitation, wrongful discharge and breach of contract), any and all Claims
arising from federal, state or local statute or regulation (including without
limitation Title VII of the Civil Rights Act of 1964, as amended, Americans
with
Disabilities Act, Age Discrimination in Employment Act, Family & Medical
Leave Act, Fair Labor Standards Act, state and local laws against
discrimination, state and local wage and hour and state and local labor laws),
and any and all Claims arising under common law, whether in contract or in
tort.
Excluded from the scope of this Release of the Company are the Company’s
obligations under this Agreement and the Company’s indemnity obligations under
the Delaware General Corporation Law and the by-laws of the Company for the
benefit of officers and directors, provided that all applicable conditions
to
such indemnification have been satisfied. The Company shall make available
to
Employee any director and officer liability insurance policy coverage that
had
been maintained during Employee’s employment with the Company, provided Employee
has satisfied all coverage requirements.
B. The
scope
of the release above given is from the beginning of the world through the date
of this Agreement and binds the Employee, his, heirs, distributees, successors,
assigns, estate and representatives.
11. Complete
Agreement, No Representations, No Modification.
All
prior understandings between the parties are merged herein; provided, however,
that except as modified herein that certain Indemnification Agreement dated
as
of December 6, 2002 between the parties and any stock option or grant agreements
shall remain in effect; and in the event of any conflict between any such
agreement and this Agreement, the provisions of this Agreement shall control;
no
representations or promises have been made by either the Company or the Employee
to the other unless set forth herein; and any modification or termination of
this Agreement must be in writing signed by the party to be
charged.
12. Acknowledgment
of Statutory Notice.
The
Employee acknowledges that before execution of this Agreement, he received
a
copy of this Agreement with a cover letter from the Company advising:
(a) that he has the right, and is encouraged, to consult an attorney with
regard to this Agreement and (b) that he had twenty-one (21) days to
consider the Agreement and (c) that once the Agreement was signed, he could
revoke it during the immediate seven (7) days following the signing of this
Agreement. The Employee acknowledges that he has been en-couraged by the Company
to consult with an attorney of his choosing in the negotiation of this Agreement
and has so consulted with an attorney to the extent the Employee has deemed
appropriate. The Employee further acknowledges that notwithstanding his right
to
consider this Agreement for 21 days, if he has signed this Agreement sooner
than
the expiration of said 21 days, he has done so knowingly and voluntarily, and
expressly waives his right to consider this Agreement for the balance of the
21
days.
8
13. Right
to Revoke.
This
Agreement may be revoked by the Employee within seven (7) days of its execution
by written notice to the Company. In the event that the Employee exercises
his
right to revoke this Agreement within such 7 day period, the entire Agreement
including, without limitation, the Company's obligation to pay the Severance
Benefits, shall be null and void. The Employee’s and the Company’s payment
obligations to each other at the signing of this Agreement shall be deferred
until the expiration of the seven (7) day period referred to herein, and such
payments shall be due and payable immediately thereafter, provided that such
period has expired and Employee has not exercised such right of
revocation.
14. Counterpart
Originals.
This
Agreement may be executed in identical counterpart documents each of which
shall
be deemed an original, but all of which together shall constitute one and the
same agreement. Facsimile signatures shall be deemed acceptable and binding
on
the parties.
15. Notice.
Any
demand, request or notice (collectively "Notice") served pursuant to this
Agreement must be written, and may be served personally, or by certified mail,
return receipt requested, on a party at the addresses set forth in the opening
paragraph of this Agreement, or such different address a party may designate
by
Notice. Any Notice served upon the Company must be directed to the Chairman
of
the Board or President, with a copy to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., ▇▇▇▇ ▇▇▇▇▇▇▇,
P.C., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. Copies of Notices
to Employee shall be directed to Employee at the address set forth
above.
16. Right
of Set-Off and Liquidated Damages.
If the
Employee breaches any repre-sentation, warranty, covenant or obligation
contained in this Agreement, not cured within any applicable grace period,
or if
the Company in good faith and in its commercially reasonable judgment believes
that either (i) Employee has breached any representation, warranty,
covenant or obligation contained in this Agreement, or (ii) during his
tenure with the Company, Employee has conducted himself in a manner that
con-sti-tuted a breach of his duties as an employee and/or Chief Administrative
Officer of the Com-pany, then (x) the Company’s obligation to pay or
otherwise make any Severance Payments to Employee shall terminate,
(y) because it would be difficult to quantify the damages suffered by the
Company from such breach or con-duct, Employee agrees to pay to the Company,
as
liquidated damages, an amount equal to the payments received hereunder by the
Employee, and shall return to the Company all shares of re-stricted stock,
whether vested or unvested, which were awarded to him, or, if such shares have
been sold, the proceeds thereof, and (z) the Company’s obligations under
this Agreement shall terminate but Employee’s obligations under this Agree-ment
shall remain in full force and effect.
17. IRC
Section 409A.
The
parties to this Agreement intend that the Agreement shall comply with Section
409A of the Internal Revenue Code of 1986, as amended (the “Code”), where
applicable, and this Agreement shall be interpreted in a manner consistent
with
that intention. Notwithstanding any contrary or inconsistent provision of this
Agreement, no pay-ment or other distribution required to be made to the Employee
hereunder (including any pay-ment of cash, any transfer of property or any
provision of taxable benefits) as a result of the Em-ployee's termination with
the Company shall be made prior to the earliest date that Employee may receive
such payments without a penalty, remedial measure or similar effect being
imposed against the Company or the Employee pursuant to Section 409A of the
Code.
9
18. Severability.
In the
event that any one or more of the provisions contained in this Agreement shall
be declared invalid, void or unenforceable, the remainder of the provisions
of
this Agreement shall remain in full force and effect, and such invalid, void
or
unenforceable pro-vision shall be interpreted as closely as possible to the
manner in which it was written.
19. Applicable
Law.
This
Agreement has been negotiated in and shall be deemed exe-cuted and delivered
within the State of New York and is made in contemplation of its inter-pretation
and effect being construed in accordance with the laws of the State of New
York,
appli-cable to contracts fully executed, delivered and performed in the State
of
New York, and it is ex-pressly agreed that it shall be construed in accordance
with the laws of the State of New York with-out giving effect to the principles
of its conflicts of laws rules. All litigation arising out of or relating to
this Agreement or any of the transactions contemplated hereby shall be brought
exclu-sively in the Federal or State courts of the State of New York, County
of
New York, and the par-ties consent to personal jurisdiction therein, and further
consent to service by certified mail, re-turn receipt requested.
20. Headings,
etc.
The
headings and captions contained in this Agreement are for convenience of
reference only and in no way define, limit or describe the scope or intent
of
this Agreement or in any way affect this Agreement. Unless the context otherwise
specifically re-quires, words importing the singular include the plural and
vice-versa. The terms "hereunder", "hereto", "herein" and similar terms relate
to this entire Agreement not to any particular para-graph or provision of this
Agreement.
21. Entire
Agreement.
This
Agreement, including the terms of the Employment Agreement specifically
incorporated herein by reference, contains every obligation and under-standing
between the parties relating to the subject matter hereof and merges all prior
discus-sions, negotiations and agreements between them. None of the parties
shall be bound by any agreements, covenants, conditions, definitions,
understandings, warranties or representations other than as expressly provided
or referred to herein.
22. Knowing
and Voluntary Agreement.
This
Agreement has been entered into after negotiation and review of its terms and
conditions by parties under no compulsion to execute and deliver a
disadvantageous agreement. No ambiguity or omission in this Agreement shall
be
con-strued or resolved against any party on the ground that this Agreement
or
any of its provi-sions was drafted or proposed by that party.
[Signature
Page Follows:]
10
In
Witness Whereof,
the
parties have made and executed this Resignation and Sever-ance Agreement and
General Release on
the
date first set forth above.
|
Clarus
Corporation,
a
Delaware corporation
By:
_________________________________
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Chairman
of the Board of Directors
|
_____________________________________
▇▇▇▇▇
▇. ▇▇▇▇▇
|
11
Exhibit
A
|
Column
1.
|
Column
2.
|
Column
3.
|
||||||||||||||
|
CLRS
Values
|
Vesting
over
5-years
6-Dec-02
Option
ISO
Shares
|
Vesting
over
5-years
6-Dec-02
Option
NQ
Shares
|
Vesting
over
3-years
11-Mar-04
Option
Shares
|
Vesting
on
15-Mar-07
Restricted
Shares
|
Vested
on
10-Mar-06
$25,000
Restricted
Shares
|
|||||||||||
|
CLRS
|
93,455
|
106,545
|
20,000
|
5,882
|
2,904
|
|||||||||||
|
Price
|
$
|
5.35
|
$
|
5.35
|
$
|
8.61
|
$
|
8.50
|
$
|
8.61
|
||||||
|
Lock
Up until
6-Dec-07
|
18,691
|
21,309
|
||||||||||||||
|
Lock
Up until
11-Mar-07
|
6,667
|
|||||||||||||||
|
Unvested
until
15-Mar-07
|
5,882
|
|||||||||||||||
12