EXHIBIT 4.1
RETIREMENT AND SEVERANCE AGREEMENT
Agreement Date: March 15, 1996
Claremont Technology Group, Inc. (Claremont), whose address is 1600 NW
Compton Drive, Suite 305, Beaverton, Oregon 97006 and Steven L. Darrow (Darrow),
whose address is 20514 127th Avenue SE, Snohomish, Washington 98290, enter this
agreement as of the agreement date.
Darrow has effective as of the date of this Agreement resigned from his
employment with the Company, and from his office as Chairman of the Board of
Directors. The parties understand that Darrow's net worth is substantially tied
up in the Company's stock, and wish to make certain provisions related to
assuring him reasonable access to liquidity.
Since the Company's founding, he has provided the Company with long and
valuable service, as its founder, President, and as Chairman of its Board of
Directors. In addition, he has amassed considerable knowledge and expertise in
the field of large-scale systems integration. In recognition of his service,
and in exchange for his agreement to refrain from competing with the Company,
the Company enters into this Agreement.
1. NON-COMPETITION; NON-SOLICITATION.
1.1 COMMITMENT. While Darrow remains a director of the Company, and if
longer thereafter until March 15, 2001, unless Claremont consents in writing,
Darrow will not compete with Claremont, or solicit business from Claremont's
customers.
1.2 COMPETING DEFINED. "Competing" means to provide any services or
knowledge in the area of building custom systems integration solutions to a
Claremont customer, through or on behalf of a third party. Darrow's individual
employment by, or service as an officer or director of or consultant to a
Claremont customer does not constitute "competition."
1.3 SOLICITING BUSINESS DEFINED. Soliciting business means contacting or
dealing with a Claremont customer for purposes of seeking service or consulting
contracts, or sales, related to building custom systems integration solutions,
on behalf of a third party.
1.4 CLAREMONT CUSTOMERS DEFINED. Claremont's customers are:
1.4.1 EXISTING. Entities or individuals who have purchased
consulting or programming services, software, or goods from Claremont at
any time within three (3) years before March 15, 1996, or who do so during
the period within which Darrow remains a director of the Company.
1.4.2 ACTIVE PROSPECTS. Entities or individuals who are active
prospects of Claremont. An active prospect is one upon whom more than
three calls have been made in any one-month period, or to whom a proposal
has been submitted or by whom a
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proposal has been requested, within the twelve months immediately preceding
the date in question.
1.4.3 NOTICE ON REQUEST. On request given by Notice, Claremont
will confirm whether or not any given entity is or is not a Claremont
customer.
1.4.4 EXCLUSION. Darrow shall be entitled to continue service
already contracted for or commenced to a Darrow customer or employer, if
that customer or employer subsequently becomes a Claremont Customer as
defined in this Section 1.4.
1.5 NON-HIRING. Before Darrow steps down from Claremont's Board of
Directors, or before March 15, 1997 if later, unless Claremont consents in
writing (such consent not to be unreasonably withheld), Darrow will not recruit
or hire Claremont employees, whether on Darrow's own behalf or for another.
2. CONSIDERATION.
2.1 FOR NONCOMPETE. In consideration of the non-competition agreements
provided for in Section 1, Claremont agrees to provide Darrow with these
benefits:
2.1.1 PAYMENT EQUIVALENT TO ONE YEAR'S PAY. On March 15, 1996, or
as soon thereafter as the Company can do so without an imprudent reduction
in its available cash (taking into account available sources of credit),
the Company shall pay Darrow $325,000, from which the Company may withhold
before payment any deductions and taxes required by law to be paid thereon.
2.1.2 LOAN FORGIVENESS AND GROSS-UP. On March 15, 1996, the
Company shall cancel all outstanding indebtedness of Darrow to the Company.
If any deductions are deemed required as a result of this payment, Company
shall pay them (including such obligations as are incurred as a result of
the additional payments required by this sentence) over and above the
cancellation amount. The Company shall return Darrow's promissory note for
all existing indebtedness, marked "Cancelled."
2.1.3 ARRANGEMENT OF NEW LOAN. The Company shall assist Darrow to
obtain a new loan from the Bank of America to Darrow, in the face amount of
$410,000. If required by the Bank of America as a condition of extending
the credit to Darrow, the Company shall guarantee this loan, subject to
reasonable satisfaction with the terms of the guarantee and the terms of
the obligation. Claremont's obligations under this paragraph shall cease
if Darrow has not initiated the process of applying for that loan by June
1, 1996, or has not completed that application process (including supplying
all necessary information requested by the bank) by June 30, 1996.
(a) REPAYMENT. Darrow shall meet all obligations of this loan,
and shall be obligated either to secure the release of Claremont's
guarantee at the time of, or to repay this loan from the proceeds
from, any sale of Claremont stock by Darrow in which Darrow receives
at least $5,000,000 in proceeds. The loan shall
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be repaid, or Claremont's guarantee released, within sixty days from
the date of the sale. If the Company registers its stock in an
underwritten public offering under the Securities Act of 1933, the
registration will count as a completed sale hereunder, and Darrow will
be required to clear Claremont's guarantee.
(b) PLEDGE OF SHARES. If Claremont is required to guarantee the
loan, Darrow shall deposit share certificates for 68,333 shares of
Claremont stock with the Secretary of the Company, endorsed to the
Company as pledge and security for his obligations under Section
2.1.3(a), which shares shall be returned to him free of pledge upon
the earlier of the payment of the loan or the release of Claremont's
guarantee.
2.1.4 HEALTH CARE. The Company will continue health care coverage
for Darrow for his lifetime under the Company's standard health care plan
as then in effect for senior executives of the company, or if forbidden to
do so by applicable health care insurance plans in place, shall pay toward
the health care plan of Darrow's choosing an amount equal to the premiums
Company would pay for Darrow's coverage if Darrow remained an employee.
Company shall also extend the same family health benefits to Darrow's
spouse as would be available to the spouse of any employee, on the same
terms. Company may reduce such coverage to the extent it is duplicated by
Medicare or other similar programs.
2.1.5 DARROW'S LEGAL FEES. Company will pay Darrow's actual and
itemized legal fees for preparation of this Agreement, in an amount not to
exceed $5,000.
2.2 VESTING OF STOCK. Claremont confirms that all stock options held by
Darrow are fully vested, so that all are immediately exercisable as of March 15,
1996. Claremont will take such steps as may be necessary to extend the exercise
period of those options through March 15, 1997 at the earliest. Further if the
law permits, Claremont will cause all employer's matching funds held in Darrow's
name under the Company's 401(k) plan likewise to be fully vested, as of the date
of his resignation from employment with the Company.
2.3 ACCRUED SALARY AND PTO. Claremont confirms that it will pay all
salary accrued through March 15, and pay for accrued Personal Time Off according
to Claremont's usual policies.
3. PLACEMENT ASSISTANCE. Claremont shall provide Darrow with good faith
assistance in facilitating a private sale of so much of Darrow's unregistered
stock as Darrow may wish to sell before the date of a registered offering,
subject to the company's overriding obligation of compliance with all applicable
securities laws.
4. REGISTRATION RIGHTS.
4.1 "REGISTER," "REGISTERED," AND "REGISTRATION" means a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act and the declaration or ordering of effectiveness of such
registration statement.
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4.2 "REGISTRATION EXPENSES" means all expenses incurred by the Company in
complying with Section 4 of this Agreement, including without limitation all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, and blue sky fees and expenses.
4.3 "SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time, and all rules and regulations promulgated thereunder, or any act,
rules or regulations which replace the Securities Act or any such rules and
regulations.
4.4 "SELLING EXPENSES" means all underwriting discounts and selling
commissions applicable to the sale of securities of a holder and all fees and
disbursements of counsel for such holder.
4.5 "DARROW SHARES" means any common stock in Claremont owned by Steven L.
Darrow, together with those shares of common stock in Claremont which were
originally owned by Darrow and which were transferred by him to Brett H. Darrow,
Dawn C. Darrow (also known as Dawn Combs) and Judy Smith, and have not yet been
transferred by Darrow's transferee to any other party. A holder of Darrow
Shares is an "INVESTOR" with respect to those shares, for purposes of this
Agreement, and each Investor other than Darrow is an intended third party
beneficiary of this section of this Agreement.
4.6 COMPANY REGISTRATIONS.
4.6.1 BEST EFFORTS CO-REGISTRATION RIGHTS. If at any time the
Company determines to register any of its common stock for sale to the
general public solely for cash on a form that would also permit sale of
some or all of the Darrow Shares, the Company will (i) promptly give each
holder of Darrow Shares written notice thereof and (ii) use its best
efforts to include in such registrations and in any related underwriting
all Darrow Shares specified in a written request by any Investor (which
request shall state the intended method of distribution of the securities),
received by the Company within 15 business days after receipt of such
written notice from the Company by any Investor, except as set forth in
subsection 4.6.2 below.
4.6.2 UNDERWRITTEN OFFERINGS. If the registration of which the
Company gives notice under this Section 4.6 is for a registered public
offering involving an underwriting, the Company will so advise the Investor
as a part of the written notice given to such Investor pursuant to
subsection 4.6.1 above. In such event the right of any Investor to
registration pursuant to this Section 4 will be conditioned on such
Investor's participation in such underwriting and the inclusion of such
Investor's Darrow Shares in the underwriting to the extent provided herein.
All Investors proposing to distribute Darrow Shares through such
underwriting will (together with the Company and the other holders
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by the Company.
Notwithstanding any other provision of this Section 4, if the underwriter
of the offering determines that marketing factors require a limitation on
the number of Darrow Shares to be sold for the account of Investors, the
Company will
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be required to include in the relevant offering and registration under this
Section 4 only so many of such shares in addition to any shares of common
stock to be offered by the Company as the underwriter believes in good
faith would not adversely affect the distribution of the securities to be
offered and registered (the shares so included to be apportioned pro rata
among all participating security holders, including participating
Investors, according to their respective holdings of shares).
4.7 EXPENSES.
4.7.1 INCREMENTAL EXPENSES. All incremental Registration Expenses
incurred as a result of any Darrow Shares being included in a registration
pursuant to Section 4.6 shall be borne by the Investors on a pro rata basis
according to the number of Darrow Shares included in such registration.
4.7.2 SELLING EXPENSES. All Selling Expenses shall be borne by
the holder of the securities so registered.
4.7.3 COMPLIANCE WITH LAW. Notwithstanding any other provision of
this Section 4.7, the provisions of this Section 4.7 shall be deemed
amended to incorporate and comply with the provisions of any applicable
state securities laws, regulations, and administrative policies.
4.8 PROCEDURES. Whenever required under Section 4.6 of this Agreement to
use its best efforts to effect the registration of any of the Company's
securities, the Company will, as expeditiously as reasonably possible:
4.8.1 REGISTRATION STATEMENT. Prepare and file with the
Securities and Exchange Commission (the Commission) a registration
statement with respect to such securities and use its earnest and diligent
efforts to cause such registration statement to become and remain
effective;
4.8.2 AMENDMENTS AND SUPPLEMENTS. Prepare and file with the
Commission such amendments and supplements to such registration statement
and the prospectus used in connection therewith as may be necessary to
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement;
4.8.3 FURNISH PROSPECTUS. Furnish to each Investor with respect
to whom securities are included in such registration statement a prospectus
and such other documents as the Investor reasonably may require to
facilitate the disposition of such securities;
4.8.4 LOCAL JURISDICTIONS COMPLIANCE. Use its earnest and
diligent efforts to register and qualify the securities covered by such
registration statement under such other securities or blue sky laws of such
jurisdictions as reasonably are appropriate for the distribution of the
securities covered by such registration statement; provided, however,
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that the Company will not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any state or jurisdiction unless the Company is
already subject to service in such jurisdiction and provided further that
in connection with any proposed registration, the Company will in no event
be obligated to cause any such registration to remain effective for more
than 180 days.
4.8.5 NOTICE OF EFFECTIVENESS. Notify each Investor with respect
to whom securities are included in such registration statement, promptly
after it shall receive notice thereof, of the time when such registration
statement has become effective or a supplement to any prospectus forming a
part of such registratrion statement has been filed;
4.8.6 NOTICE OF COMMISSION REQUEST. Notify each Investor with
respect to whom securities are icnluded in such registration statement of
any request by the Securities and Exchange Commission for the amending or
supplementing of such registration statement or prospoectus or for
additional information; and
4.8.7 ADVICE OF STOP ORDERS. Advise each Investor with respect to
whom securities are included in such registration statement, promptly after
it shall receive notice or obtain knowledge thereof, of the issuance of any
stop order by the Commission suspending the effectiveness of such
registration statement, or the initition or threatening of any proceeding
for such purpose and promptly use its earnest and diligent efforts to
prevent the issuance of any stop order or to obtain its withdrawal if such
stop order should be issued.
4.9 INFORMATION FROM INVESTOR. Each Investor whose Darrow Shares are
included in any registration under Section 4.6 of this Agreement will promptly
furnish in writing to the Company such information regarding such Investor and
the distribution proposed by such Investor as the Company may request in writing
and as may be required in connection with any registration, qualification, or
compliance referred to in Section 4.6 and to execute such documents in
connection with such registration as the Company may reasonably request. Each
Investor shall furnish any information required by this section 4.9 within 15
business days of the Company's written request therefor.
4.10 STAND-OFF AGREEMENT. No Investor who participates in the registration,
if so requested by the Company and an underwriter of securities of the Company,
will sell or otherwise transfer or dispose of any other securities of the
Company held by such Investor other than pursuant to the registration statement
during the period required by the Underwriters following and including the
effective date of a registration statement, which period shall not, absent the
subsequent approval of the Investor concerned, exceed 180 days, provided,
however, that such Investor's agreement in this Section 4.10 will only apply (a)
to the first two such registration statements of the Company including shares or
securities to be sold on the Company's behalf to the general public in an
underwritten offering and (b) if all officers and directors of the Company enter
into similar agreements in writing in a form satisfactory to the Company and
such underwriter covering shares of the common stock (or other securities) owned
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by them, and for the same post-effective period. The Company may impose stop
transfer instructions with respect to the securities subject to the restriction
in this Section 4.10 until the end of the stand-off period.
4.11 INDEMNIFICATION IN CONNECTION WITH REGISTRATION.
4.11.1 COMPANY'S INDEMNIFICATION OBLIGATION. If any of the Darrow
Shares are registered, to the extent permitted by law, the Company will
indemnify and hold harmless each selling Investor, any person who controls
any selling Investor within the meaning of the Securities Act, any
underwriter for a selling Investor and any person who controls such
underwriter within the meaning of the Securities Act (collectively with the
underwriter, a "Participating Underwriter") against any losses, claims,
damages, or liabilities, joint or several, to which any Investor,
controlling person, or Participating Underwriter may be subject under the
Securities Act or otherwise; and it will reimburse each Investor, each
controlling person, and each Participating Underwriter for any legal or
other expenses reasonably incurred by the Investor, controlling person, or
Participating Underwriter in connection with investigating or defending any
such loss, claim, damage, liability, or action, insofar as such losses,
claims, damages, or liabilities, joint or several (or actions in respect
thereof), arise out of or are based upon any of the following statements
omissions or violations (collectively or separately, a "Violation"): (i)
any untrue statement or alleged untrue statement of any material fact
contained, on the effective date thereof, in any such registration
statement or any preliminary prospectus or final prospectus, or any
amendment or supplement thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading or (iii) any violation or
alleged violation by the Company of the Securities Act, the Securities
Exchange Act of 1934 (the "1934 Act"), any state securities law, or any
rule or regulation promulgated under the Securities Act, the 1934 Act or
any state securities law; provided, however, that the Company will not be
liable in any case to the extent that any loss, claim, damage, or liability
arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in any registration
statement, preliminary prospectus, final prospectus, or any amendment or
supplement thereto, in reliance upon and in conformity with written
information furnished by a Investor for use in the preparation thereof and
provided further, that if any losses, claims, damages or liabilities arise
out of or are based upon an untrue statement, alleged untrue statement,
omission or alleged omission contained in any preliminary prospectus which
did not appear in the final prospectus, the Company shall not have any
liability with respect thereto to (i) the selling Investor or any person
who controls such selling Investor within the meaning of the Act, if the
selling Investor delivered a copy of the preliminary prospectus to the
person alleging such losses, claims, damages or liabilities and failed to
deliver a copy of the final prospectus, as amended or supplemented if it
has been amended or supplemented, to such person at or prior to the written
confirmation of the sale to such person or (ii) any Participating
Underwriter, if such Participating Underwriter delivered a copy of the
preliminary prospectus to the person alleging such losses, claims, damages
or liabilities and failed to deliver a copy of the final prospectus, as
amended or supplemented if it has been amended or supplemented to such
person at or prior to the written confirmation of the sale to such person.
The
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indemnity agreement contained in this subparagraph 4.11.1 shall not apply
to amounts paid to any claimant in settlement of any suit or claim unless
such payment is first approved by the Company, such approval not to be
unreasonably withheld.
4.11.2 INVESTOR'S INDEMNIFICATION OBLIGATION. Each selling
Investor, to the extent permitted by law and as a condition of the
Company's registration obligation, will indemnify and hold harmless the
Company, each of the Company's directors, each of the Company's officers
who have signed any registration statement or other filing or any amendment
or supplement thereto, any person who controls the Company within the
meanings of the Securities Act, each other Selling Investor or any other
person participating as a selling shareholder in the registration
(collectively, a "Selling Shareholder"), any person who controls any such
Selling Shareholder within the meaning of the Securities Act, and any
Participating Underwriter against any losses, claims, damages, or
liabilities to which the Company or any such director, officer, Selling
Shareholder, Participating Underwriter or controlling person may become
subject under the Securities Act or otherwise, and will reimburse any legal
or other expenses reasonably incurred by the Company or any such director,
officer, Selling Shareholder, Participating Underwriter, or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability, or action, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon
any Violation but only to the extent that such Violation was made in said
registration statement, preliminary or final prospectus, or other filing,
or amendment or supplement, in reliance upon and in conformity with written
information furnished by such Investor for use in the preparation thereof;
provided, however, that the indemnity agreement contained in this
subparagraph 4.11.2 shall not apply to amounts paid to any claimant in
settlement of any suit or claim unless such payment is first approved by
the Investor, such approval not to be unreasonably withheld.
4.11.3 NOTICE. Promptly after receipt by an indemnified party
under subparagraphs 4.11.1 or 4.11.2 above of written notice of the
commencement of any action, such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party, deliver to the
indemnifying party written notice of the commencement thereof. The failure
to notify an indemnifying party promptly of the commencement of any such
action, if prejudicial to the ability of the indemnifying party to defend
the action, shall relieve the indemnifying party of any liability to the
indemnified party pursuant to this Section 4.11 but the omission to notify
the indemnifying party will not relieve it from any liability which it may
have to any indemnified party otherwise than under subparagraphs 4.11.1 or
4.11.2.
4.11.4 PARTICIPATION IN DEFENSE. If any such action is brought
against any indemnified party and it notifies in writing an indemnifying
party of the commencement thereof, the indemnifying party will be entitled
to participate in, and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party; and after notice from
the indemnifying party to such indemnified party of its election to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party for any legal
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or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation.
4.12 LIMITS ON REGISTRATIONS. The rights of all Investors to cause the
Company to register their Darrow Shares under this Section 4 shall expire
following the third offering for which the Company has provided the opportunity
as specified in Section 4.6.1.
5. OTHER MATTERS.
5.1 VOTING AND CO-SALE AGREEMENT. Jerry L. Stone, Steven L. Darrow, Paul
J. Cosgrave, and Steven L. Darrow as Trustee of the Claremont Consulting Group,
Inc. Voting Trust hereby agree to waive their rights under Sections 3 and 4 of
that certain Voting and CoSale Agreement entered into among them for purposes of
a placement under Section 3 of this Agreement, and further agree that the Voting
and CoSale Agreement shall terminate in its entirety upon the effective date of
a registration statement filed under the Securities Act of 1933.
5.2 INDEMNIFICATION. The Company shall indemnify and hold harmless Darrow
against all liability, damange, or expense resulting from the fact that he is
and or was a Director and/or Officer of the Company, to the maximum extent and
under all circumstances permitted by law. In addition, the Company shall take
all steps necessary to insure that Darrow is covered for all periods during
which he was or is a director or officer by all policies held by the Company
providing insurance against damages, expenses and liabilities relating to the
acts, errors, and omissions of the Company's Directors and Officers, for periods
during which such claims could be brought under applicable statutes of
limitations.
5.3 VALID EXISTENCE. The Company has the corporate power to enter into
and perform all of its obligatiosn under this Agreement aand all other documents
and instruments contemplated or required hereunder (collectively, the
"Documents"). The execution and delivery of the Documents and the performance
of the other covenants and agreements contemplated hereby have been duly
authorized by the Company's Board of Directors. When executed by an Officer of
the Company, this Agreement and the other Documents shall be valid and binding
obligations of the Company, fully enforceable against the Company in accordance
with their respective terms.
5.4 NOTICE. Notice to Darrow shall be sent to Darrow's address shown
above. Notice to Claremont shall be sent to Claremont's address noted above,
marked attention: CEO. Either party may change its address by Notice. Notice
shall be effective when the person to whom it is sent actually gets it, if sent
by any method that leaves a paper or electronic record in the hands of the
recipient. If sent certified or registered mail, postage prepaid, return
receipt requested, to the proper address this section defines, notice shall be
considered effective whether or not actually received on the date the return
receipt shows the notice was accepted, refused, or returned undeliverable.
5.5 SEVERABILITY. Each clause of this agreement is severable. If any
clause is ruled void or unenforceable, the balance of the agreement shall
nonetheless remain in effect.
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5.6 NON-WAIVER. A waiver of one or more breaches of any clause of this
agreement shall not act to waive any other breach, whether of the same or
different clauses.
5.7 ASSIGNMENT. This Agreement shall not be assigned by either party
without the consent of the other.
5.8 GOVERNING LAW. This agreement is entered in, and is governed by, the
laws of the state of Oregon.
5.9 SERVICE OF PROCESS AND EQUITABLE RELIEF. Each party consents to
service of process through the method prescribed for Notice. As violation of
the non-competition or non-solicitation obligations of this agreement, or those
related to rights in intellectual property, would result in damage to Claremont
that could not be cured by an award of money alone, Claremont shall be entitled
to injunctive relief in cases where a violation of those obligations is shown.
5.10 ATTORNEYS' FEES. The prevailing party in any suit, action,
arbitration, or appeal filed or held concerning this agreement shall be entitled
to reasonable attorneys' fees and the actual, reasonably necessary costs of the
proceeding.
5.11 INTEGRATION. This agreement is the complete agreement between the
parties as of its date with respect to the subject matter it contains. It
supersedes all prior agreements, written or oral. It may be modified only in
writing signed by the original parties hereto.
CLAREMONT TECHNOLOGY GROUP, INC. STEVEN L. DARROW, FOR HIMSELF AND, FOR
PURPOSES OF SECTION 5.1, AS FINAL
TRUSTEE OF THE CLAREMONT CONSULTING
GROUP, INC. VOTING TRUST
By: By:
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Print: Print:
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Title: Title:
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Date: Date:
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JERRY L. STONE, INDIVIDUALLY, FOR PAUL J. COSGRAVE, INDIVIDUALLY,
PURPOSES OF SECTION 5.1 FOR PURPOSES OF SECTION 5.1
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Date: Date:
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