CERTIFICATE OF AMENDMENT OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
CLARUS CORPORATION
(Under Section 242 of the General Corporation Law)
The undersigned, being the Chief Administrative Officer of CLARUS CORPORATION, a
Delaware corporation, hereby certifies that:
1. (a) The name of the Corporation is CLARUS CORPORATION (the "Corporation").
(b) The date of filing the original Certificate of Incorporation of the
Corporation with the Secretary of State of Delaware was November 20,
1991.
2. Article IV of the Amended and Restated Certificate of Incorporation of the
Corporation shall be amended by supplementing such article to include the
following new Section 7:
"Section 7. Limitation on Acquisition of Shares.
(a) Certain Acquisitions Prohibited.
(i) If an individual, partnership, firm, corporation,
association, trust, unincorporated organization or other entity, as
well as any syndicate or group deemed to be a person under Section
14(d)(2) of the Securities Exchange Act of 1934, as amended (each a
"Person"), shall attempt to purchase or acquire in any manner
whatsoever, whether voluntarily or involuntarily, by operation of law
or otherwise, any shares of capital stock of the Corporation or any
option, warrant or other right to purchase or acquire capital stock of
the Corporation (such warrant, option, or security being an "Option")
or any securities convertible into or exchangeable for capital stock of
the Corporation or any interest in any other entity that directly,
indirectly or constructively owns any shares of capital stock of the
Corporation (any such purchase or acquisition being an "Acquisition"),
in each case, whether voluntary or involuntary, of record, by operation
of law or otherwise (provided, however, that a transaction that is a
pledge (and not an acquisition of tax ownership for U.S. federal income
tax purposes) shall not be deemed an Acquisition, but a foreclosure
pursuant thereto shall be deemed to be an Acquisition), and such
Acquisition shall affect the percentage of capital stock that is
treated as owned by a five percent stockholder (within the meaning of
Section 382 of the Internal Revenue Code of 1986, as amended (the
"Code") and the Treasury Regulations promulgated thereunder) with
respect to the Corporation (a "Five Percent Stockholder"), then such
Person shall be a "Restricted Holder", and such Acquisition shall not
be permitted except as authorized pursuant to this Article IV, Section
7; provided, however, that for purposes of determining the existence
and identity of, and the amount of capital stock owned by, any Five
Percent Stockholders or Restricted Holders, the Corporation is entitled
to rely
conclusively on (a) the existence and absence of filings of Schedules
13D and 13G (or any similar schedules) as of any date and (b) its
actual knowledge of the ownership of its capital stock. For purposes of
this Article IV, Section 7, "capital stock" shall include the Common
Stock, par value $.0001 of the Corporation.
(ii) The restrictions contained in this Article IV, Section
7, are for the purpose of reducing the risk that any change in stock
ownership may jeopardize the preservation of the Corporation's U.S.
federal, state and local income tax attributes under Code Section 382
or equivalent provisions of state or local law (collectively, the "Tax
Benefits"). In connection therewith, and to provide for the effective
policing of these provisions, a Restricted Holder who proposes to
effect an Acquisition, prior to the date of the proposed Acquisition,
request in writing (a "Request") that the Board of Directors of the
Corporation review the proposed Acquisition and authorize or not
authorize the proposed Acquisition pursuant to subsection (c) hereof. A
Request shall be mailed or delivered to the Secretary of the
Corporation at the Corporation's principal place of business or
telecopied to the Corporation's telecopier number at its principal
place of business. Such Request shall be deemed to have been delivered
when actually received by the Secretary of the Corporation. A Request
shall include (a) the name, address and telephone number of the
Restricted Holder, (b) a description of the interest proposed to be
Acquired by the Restricted Holder, (c) the date on which the proposed
Acquisition is expected to take place, (d) the name of the intended
transferor of the interest to be Acquired by the Restricted Holder, and
(e) a Request that the Board of Directors authorize, if appropriate,
the Acquisition pursuant to subsection (c) hereof and inform the
Restricted Holder of its determination regarding the proposed
Acquisition. If the Restricted Holder seeks to effect an Acquisition,
at the next regularly scheduled meeting of the Board of Directors
following the tenth business day after receipt by the Secretary of the
Corporation of a Request, the Board of Directors will act to determine
whether to authorize the proposed Acquisition described in the Request
under subsection (c) hereof. The Board of Directors shall conclusively
determine whether to authorize the proposed Acquisition, in its sole
discretion and judgment, and shall immediately cause the Restricted
Holder making the Request to be informed of such determination.
(b) Effect of Unauthorized Acquisition. Any Acquisition
attempted to be made in violation of this Article IV, Section 7, will
be null and void. In the event of an attempted or purported Acquisition
by a Restricted Holder in violation of this Article IV, Section 7, the
Corporation shall be deemed to be the agent for the transferor of the
transferred interest ("Prohibited Shares"). The Corporation shall be
such agent for the limited purpose of consummating a sale of the
Prohibited Shares to a Person who is not a Restricted Holder (an
"Eligible Transferee"), which may include, without limitation, the
transferor. The record ownership of the Prohibited Shares shall remain
in the name of the transferor until the Prohibited Shares have been
sold by the Corporation or its assignee, as agent, to an Eligible
Transferee. Neither the Corporation, as agent, nor any assignee of
its agency hereunder, shall be deemed to be a stockholder of the
Corporation nor be entitled to any rights of a stockholder of the
Corporation, including, but not limited to, any right to vote the
Prohibited Shares or to receive dividends or liquidating distributions
in respect thereof, if any, but the Corporation or its assignee shall
only have the right to sell and transfer the Prohibited Shares on
behalf of and as agent for the transferor to another person or entity;
provided, however, that an Acquisition to such other person or entity
does not violate the provisions of this Article IV, Section 7. The
rights to vote and to receive dividends and liquidating distributions
with respect to the Prohibited Shares shall remain with the transferor.
The intended transferee shall not be entitled to any rights of
stockholders of the Corporation, including, but not limited to, the
rights to vote or to receive dividends and liquidating distributions
with respect to the Prohibited Shares. In the event of a permitted sale
and transfer, whether by the Corporation or its assignee, as agent, the
proceeds of such sale shall be applied first, to reimburse the
Corporation or its assignee for any expenses incurred by the
Corporation acting in its role as the agent for the sale of the
Prohibited Shares, second, to the extent of any remaining proceeds, to
reimburse the intended transferee for any payments made to the
transferor by such intended transferee for such shares, and the
remainder, if any, to the original transferor.
(c) Authorization of Acquisition of Capital Stock by a
Restricted Holder. The Board of Directors may authorize an Acquisition
by a Restricted Holder, if, in its sole discretion and judgment it
determines that the Acquisition is in the best interests of the
Corporation and its stockholders. In deciding whether to approve any
proposed Acquisition by a Restricted Holder, the Board of Directors may
seek the advice of counsel with respect to the Corporation's
preservation of the Tax Benefits and may request all relevant
information from the Restricted Holder with respect to all capital
stock directly or indirectly owned by such Restricted Holder. Any
Person who makes a Request of the Board of Directors pursuant to this
subsection (c) to effect an Acquisition shall reimburse the
Corporation, on demand, for all reasonable costs and expenses incurred
by the Corporation with respect to any proposed Acquisition, including,
without limitation, the Corporation's reasonable costs and expenses
incurred in determining whether to authorize that proposed Acquisition.
(d) Certain Indirect Prohibited Acquisitions. In the event an
Acquisition would be in violation of this Article IV, Section 7, as a
result of attribution to the intended transferee of the ownership of
capital stock by a Person (an "Other Person") who is not controlling,
controlled by or under common control with the intended transferee,
which ownership is nevertheless attributed to the intended transferee,
the restrictions contained in this Article IV, Section 7, shall not
apply in a manner that would invalidate any Acquisition to such Other
Person, and the intended transferee and any Persons controlling,
controlled by or under common control with the intended transferee
(collectively, the "Intended Transferee Group") shall automatically be
deemed to have transferred to the Corporation, sufficient capital stock
(which capital stock shall (i) consist only of
capital stock held legally or beneficially, whether directly or
indirectly, by any member of the Intended Transferee Group, but not
capital stock held through any Other Person, other than shares held
through a Person acting as agent or fiduciary for any member of the
Intended Transferee Group, (ii) be deemed transferred to the
Corporation, in the inverse order in which it was acquired by members
of the Intended Transferee Group, and (iii) be treated as Prohibited
Shares) to cause the intended transferee, following such transfer to
the Corporation, not to be in violation of the restrictions contained
in this Article IV, Section 7; provided, however, that to the extent
the foregoing provisions of this subsection (d) would not be effective
to prevent an Acquisition in violation of this Article IV, Section 7,
the restrictions contained in this Article IV, Section 7, shall apply
to such other capital stock owned by the intended transferee (including
capital stock actually owned by Other Persons), in a manner designed to
minimize the amount of capital stock subject to the restrictions
contained in this Article IV, Section 7, or as otherwise determined by
the Board of Directors to be necessary to prevent an Acquisition in
violation of the restrictions contained in this Article IV, Section 7
(which capital stock shall be treated as Prohibited Shares).
(e) Prompt Enforcement; Further Actions. After learning of an
Acquisition by a Restricted Holder, the Corporation shall demand the
surrender, or cause to be surrendered, to it, the certificates
representing the Prohibited Shares, or any proceeds received upon a
sale of the Prohibited Shares, and any dividends or other distributions
made with respect to the Prohibited Shares. If such surrender is not
made within 30 business days from the date of such demand, the
Corporation may institute legal proceedings to compel such transfer;
provided, however, that nothing in this subsection (e) shall (i) be
deemed inconsistent with the Acquisition of the Prohibited Shares being
deemed null and void pursuant to subsection (b) hereof, (ii) preclude
the Corporation in its discretion from immediately bringing legal
proceedings without a prior demand, or (iii) cause any failure of the
Corporation to act within the time periods set forth in this subsection
(c) to constitute a waiver or loss of any right of the Corporation
under this Article IV, Section 7.
(f) Damages. Any Restricted Holder who knowingly violates the
provisions of this Article IV, Section 7, and any persons controlling,
controlled by or under common control with such a Restricted Holder,
shall be jointly and severally liable to the Corporation for, and shall
indemnify and hold the Corporation harmless against, any and all
damages suffered as a result of such violation, including but not
limited to damages resulting from a reduction in or elimination of the
Corporation's ability to utilize its Tax Benefits, and attorneys' and
auditors' fees incurred in connection with such violation.
(g) Legend on Certificates. All certificates for shares of
Common Stock issued by the Corporation shall conspicuously bear the
following legend: "The Amended and Restated Certificate of
Incorporation, as amended (the "Certificate of Incorporation") of the
Corporation contains restrictions prohibiting
the purchase or acquisition (collectively, the "Acquisition") of any
capital stock without the authorization of the Board of Directors of
the Corporation (the "Board of Directors"), if such Acquisition affects
the percentage of capital stock that is treated as owned by a five
percent stockholder (within the meaning of Section 382 of the Internal
Revenue Code of 1986, as amended (the "Code") and the Treasury
Regulations promulgated thereunder), and such Acquisition would, in the
sole discretion and judgment of the Board of Directors, jeopardize the
Corporation's preservation of its U.S. federal income tax attributes
pursuant to Section 382 of the Code and is not otherwise in the best
interests of the Corporation and its stockholders. The Corporation will
furnish without charge to the holder of record of this certificate a
copy of the Certificate of Incorporation, containing the
above-referenced restrictions on acquisitions of stock, upon written
request to the Corporation at its principal place of business."
(h) Conditions to Acquisition; Responsibilities of Transfer
Agent. The Corporation may require, as a condition to the registration
of the Acquisition of any of its capital stock or the payment of any
distribution on any of its capital stock, that the intended transferee
or payee furnish to the Corporation all information reasonably
requested by the Corporation with respect to all the direct or indirect
ownership interests in such capital stock. The Corporation may make
such arrangements or issue such instructions to its stock transfer
agent as may be determined by the Board of Directors to be necessary or
advisable to implement this Article IV, Section 7, including, without
limitation, instructing the transfer agent not to register any
Acquisition of capital stock on the Corporations stock transfer records
if it has knowledge that such Acquisition is prohibited by this Article
IV, Section 7, and/or authorizing such transfer agent to require an
affidavit from a intended transferee regarding such Person's actual and
constructive ownership of capital stock and other evidence that an
Acquisition will not be prohibited by this Article IV, Section 7, as a
condition to registering any Acquisition.
(i) Authority of Board of Directors to Interpret. Nothing
contained in this Article IV, Section 7, shall limit the authority of
the Board of Directors to take such other action to the extent
permitted by law as it deems necessary or advisable to protect the
Corporation and preserve the Tax Benefits. Without limiting the
generality of the foregoing, in the event of a change in law making one
or more of the following actions necessary or desirable, the Board of
Directors may, by adopting a written resolution of the Board of
Directors, modify the definitions of any terms or conditions set forth
in this Article IV, Section 7, or modify the definitions of any terms
or conditions of this Article IV, Section 7, as appropriate to prevent
an ownership change for purposes of Section 382 of the Code as a result
of any changes in applicable Treasury Regulations or otherwise;
provided, however, that the Board of Directors shall not cause there to
be such acceleration, extension, change or modification unless it
concludes in writing that such action is reasonably necessary or
advisable to preserve the Tax Benefits or that the continuation of
these restrictions is no longer reasonably necessary for the
preservation of the Tax Benefits, and its conclusion is based
upon a written opinion of tax counsel to the Corporation. The
Corporation and the members of the Board of Directors shall be fully
protected in relying in good faith upon the information, opinions,
reports or statements of the chief executive officer, the chief
financial officer or the chief accounting officer of the Corporation
(or the person or persons performing the functions of such officers) or
of the Corporation's legal counsel, independent auditors, transfer
agent, investment bankers or other employees and agents in making the
determinations and findings contemplated by this Article IV, Section 7,
and the members of the Board of Directors shall not be responsible for
any good faith errors made in connection therewith.
(j) Severability. If any part of the provisions of this
Article IV, Section 7, are judicially determined to be invalid or
otherwise unenforceable, such invalidity or unenforceability shall not
affect the remainder of the provisions of this Article IV, Section 7,
which shall be thereafter interpreted as if the invalid or
unenforeceable part were not contained herein, and, to the maximum
extent possible, in a manner consistent with preserving the ability of
the Corporation to utilize to the greatest extent possible the
Corporation's Tax Benefit.
(k) Expiration. The provisions of this Article IV, Section 7,
shall apply until such time as the Board of Directors determines in its
sole discretion that the provisions of this Article IV, Section 7, are
no longer necessary for the preservation of the Corporation's Tax
Benefits.
3. The amendment of the Amended and Restated Certificate of Incorporation
herein certified was duly adopted by stockholders of the Corporation at the
2003 annual meeting of the Corporation in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware (the
"Delaware Code"), and written notice of such meeting was given to all
stockholders in accordance with Section 222 of the Delaware Code.
IN WITNESS WHEREOF, CLARUS CORPORATION, has caused this Certificate to be signed
and attested by its duly authorized officers, this 29th day of July 2003.
CLARUS CORPORATION
By: /s/ Warren B. Kanders
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Name: Warren B. Kanders
Title: Executive Chairman