As filed with the Securities and Exchange Commission on August 19, 2005
Registration No. 333-_____
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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)
Delaware 58-1972600
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
Clarus Corporation
One Landmark Square
Stamford, Connecticut 06901
(203) 428-2000
(Address, including zip code, and telephone number, including area code, of
principal executive offices)
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Clarus Corporation 2005 Stock Incentive Plan
Clarus Corporation Stock Incentive Plan
(as amended and restated effective as of June 13, 2000)
Stock Incentive Plan of Software Architects International Limited, as amended
Restricted Stock Agreement between Clarus Corporation
and Warren B. Kanders, dated April 11, 2003
Stock Option Agreement between Clarus Corporation
and Warren B. Kanders, dated December 23, 2002
(Full title of the plan)
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Warren B. Kanders
Executive Chairman of the Board of Directors
Clarus Corporation
One Landmark Square
Stamford, Connecticut 06901
(203) 428-2000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
Kane Kessler, P.C.
1350 Avenue of the Americas
New York, NY 10019-4896
(212) 541-6222
Attn: Robert L. Lawrence, Esq.
CALCULATION OF REGISTRATION FEE
==================================================================================================================
Title of securities to Amount to be Proposed maximum Proposed maximum Amount of
be registered registered (1) offering price per aggregate offering registration fee (3)
share (2) price (2)
- ------------------------------------------------------------------------------------------------------------------
Common Stock, $0.0001 4,100,000 $7.82 $32,062,000 $3,774
par value per share
==================================================================================================================
(1) This Registration Statement covers (i) 3,000,000 shares of common stock
(the "Common Stock"), $0.0001 par value per share, of Clarus Corporation
(the "Registrant") issuable pursuant to the Clarus Corporation 2005 Stock
Incentive Plan (the "2005 Incentive Plan"); (ii) 300,000 shares of Common
Stock issuable pursuant to the Restricted Stock Agreement between Clarus
Corporation and Warren B. Kanders, dated April 11, 2003 (the "2003
Restricted Stock Agreement"); and (iii) 800,000 shares of Common Stock
issuable pursuant to the Stock Option Agreement between Clarus Corporation
and Warren B. Kanders, dated December 23, 2002 (the "2002 Stock Option
Agreement"). In addition, pursuant to Rule 416(c) under the Securities Act
of 1933, as amended (the "Securities Act") this Registration Statement
covers an indeterminable number of additional shares of Common Stock as
may hereafter be offered or issued pursuant to the Plans, to prevent
dilution resulting from stock splits, stock dividends or similar
transactions effected without receipt of consideration.
(2) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(c) and 457(h), the proposed maximum offering price
per share is based upon (i) the average exercise price relating to
approximately 800,000 outstanding options granted under the 2002 Stock
Option Agreement for which the underlying shares of Common Stock have not
previously been registered, which is $8.75; and (ii) with respect to
3,000,000 shares available for grant under the 2005 Incentive Plan and
300,000 available for grant under the 2003 Restricted Stock Agreement, a
price of $7.60 (the average of the bid and ask price of the Registrant's
Common Stock as reported on the OTC Pink Sheets Electronic Quotation
Service on August 17, 2005).
(3) Pursuant to Rule 429(b) under the Securities Act, this Registration
Statement includes up to (i) 378,786 shares of Common Stock issued or
issuable pursuant to the Clarus Corporation Stock Incentive Plan (as
amended and restated effective as of June 13, 2000) (the "2000 Incentive
Plan") that were previously registered on Form S-8 (Registration Statement
No. 333-42604) filed on July 31, 2000; and (ii) 21,250 shares of Common
Stock issued or issuable pursuant to the Stock Incentive Plan of Software
Architects International Limited, as amended (the "SAI Plan") that were
previously registered on Form S-8 (Registration Statement No. 333-42600)
filed on July 31, 2000. In connection with the previously registered
shares for issuance under the Registrant's (i) 2000 Incentive Plan, the
Registrant paid a fee of $15,816.23, a portion of which is attributable to
the 378,786 shares being carried forward in a combined reoffer prospectus
being filed herewith (to the extent that there are or may be control or
restricted securities); and (ii) SAI Plan, the Registrant paid a fee of
$7,153.33, a portion of which is attributable to the 21,250 shares being
carried forward in a combined reoffer prospectus being filed herewith (to
the extent that there are or may be control or restricted securities). See
the Rule 429 note below. In connection with this Registration Statement,
the Registrant is paying a fee solely on the 4,100,000 additional shares
of the Registrant's Common Stock being registered.
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As permitted by Rule 429 under the Securities Act of 1933, the prospectus
filed together with this Registration Statement shall be deemed to be a
combined resale prospectus which shall also relate to the Registrant's
Registration Statement No. 333-42604 on Form S-8 and the Registrant's
Registration Statement No. 333-42600 on Form S-8.
i
EXPLANATORY NOTE
The 4,100,000 shares of common stock (the "Common Stock"), $0.0001 par
value per share, of Clarus Corporation, a Delaware corporation (the "Company"),
being registered pursuant to this Form S-8 are comprised of (i) 3,000,000
issuable pursuant to the Clarus Corporation 2005 Stock Incentive Plan (the "2005
Incentive Plan"); (ii) 300,000 shares of Common Stock issuable pursuant to the
Restricted Stock Agreement between Clarus Corporation and Warren B. Kanders,
dated April 11, 2003 (the "2003 Restricted Stock Agreement"); and (iii) 800,000
shares of Common Stock issuable pursuant to the Stock Option Agreement between
Clarus Corporation and Warren B. Kanders, dated December 23, 2002 (the "2002
Stock Option Agreement"). This Registration Statement also includes up to (i)
378,786 shares of Common Stock issued or issuable pursuant to the Clarus
Corporation Stock Incentive Plan (as amended and restated effective as of June
13, 2000) (the "2000 Incentive Plan") that were previously registered on Form
S-8 (Registration Statement No. 333-42604) filed on July 31, 2000 (the "2000
Incentive Plan Registration Statement"); and (ii) 21,250 shares of Common Stock
issued or issuable pursuant to the Stock Incentive Plan of Software Architects
International Limited, as amended (the "SAI Plan") that were previously
registered on Form S-8 (Registration Statement No. 333-42600) filed on July 31,
2000 (the "SAI Plan Registration Statement"). Pursuant to General Instruction E
to Form S-8, this Registration Statement incorporates by reference the contents
of the 2000 Incentive Plan Registration Statement and the SAI Plan Registration
Statement, except as otherwise set forth herein. The 2005 Incentive Plan, 2003
Restricted Stock Agreement, the 2002 Stock Option Agreement, the 2000 Incentive
Plan, and the SAI Plan are collectively referred to herein as the "Plans".
This Registration Statement contains two parts. The first part contains a
reoffer prospectus pursuant to Form S-3 (in accordance with Section C of the
General Instructions to the Form S-8) which covers reoffers and resales of
"restricted securities" and/or "control securities" (as such terms are defined
in Section C of the General Instructions to Form S-8) of the Company. This
reoffer prospectus relates to up to 1,500,036 shares of Common Stock (including
up to (i) 378,786 shares of Common Stock previously registered under the 2000
Incentive Plan Registration Statement; (ii) 21,250 shares of Common Stock
previously registered under the SAI Plan Registration Statement; and (iii)
300,000 shares of Common Stock issuable pursuant to the 2003 Restricted Stock
Agreement; and (iv) 800,000 shares of Common Stock issuable pursuant to the 2002
Stock Option Agreement), that have been or may be issued to certain officers and
directors of the Company pursuant to the Plans. The second part of this
Registration Statement contains Information Required in the Registration
Statement pursuant to Part II of Form S-8. The Form S-8 portion of this
Registration Statement will be used for offers of shares of Common Stock of the
Company pursuant to the 2005 Incentive Plan, the 2003 Restricted Stock
Agreement, and the 2002 Stock Option Agreement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participants in the Plans as specified by Rule
428(b)(1) under the Securities Act. Such documents are not being filed with the
Securities and Exchange Commission, but constitute, along with the documents
incorporated by reference into this Registration Statement, a prospectus that
meets the requirements of Section 10(a) of the Securities Act.
ii
Item 2. Company Information and Employee Plan Annual Information
The Company will furnish without charge to each person to whom the
prospectus is delivered, upon the written or oral request of such person, a copy
of any and all of the documents incorporated by reference in Item 3 of Part II
of this Registration Statement, other than exhibits to such documents (unless
such exhibits are specifically incorporated by reference to the information that
is incorporated). Those documents are incorporated by reference in the Section
10(a) prospectus. Requests should be directed to Clarus Corporation, One
Landmark Square, Stamford, Connecticut 06901, Attention: Secretary; Telephone
number (203) 428-2000.
Note: The reoffer prospectus referred to in the Explanatory Note follows this
page.
REOFFER PROSPECTUS
CLARUS CORPORATION
1,500,036 SHARES OF COMMON STOCK
(par value $0.0001 per share)
This prospectus relates to up to 1,500,036 shares (the "Shares") of common
stock, par value $0.0001 per share, of Clarus Corporation, a Delaware
corporation (the "Company" or "Clarus") which may be offered and sold from time
to time by certain stockholders of the Company (the "Selling Stockholders") who
have acquired or will acquire such Shares pursuant to stock options and stock
grants issued or issuable under the (i) the Restricted Stock Agreement between
Clarus Corporation and Warren B. Kanders, dated April 11, 2003 (the "2003
Restricted Stock Agreement"); (ii) the Stock Option Agreement between Clarus
Corporation and Warren B. Kanders, dated December 23, 2002 (the "2002 Stock
Option Agreement"); (iii) the Clarus Corporation Stock Incentive Plan (as
amended and restated effective as of June 13, 2000) (the "2000 Incentive Plan");
and (v) the Stock Incentive Plan of Software Architects International Limited
(the "SAI Plan"). The Clarus Corporation 2005 Stock Incentive Plan (the "2005
Incentive Plan"), 2003 Restricted Stock Agreement, the 2002 Stock Option
Agreement, the 2000 Incentive Plan, and the SAI Plan are collectively referred
to herein as the "Plans".
The Company will not receive any of the proceeds from sales of the Shares
by any of the Selling Stockholders. The Shares may be offered from time to time
by any or all of the Selling Stockholders (and their donees and pledgees)
through ordinary brokerage transactions, in negotiated transactions or in other
transactions, at such prices as he or she may determine, which may relate to
market prices prevailing at the time of sale or be a negotiated price. See "Plan
of Distribution." All costs, expenses and fees in connection with the
registration of the Shares will be borne by the Company. Brokerage commissions
and similar selling expenses, if any, attributable to the offer or sale of the
Shares will be borne by the Selling Stockholder (or their donees and pledgees).
Each Selling Stockholder and any broker executing selling orders on behalf
of a Selling Stockholder may be deemed to be an "underwriter" as defined in the
Securities Act of 1933, as amended (the "Securities Act"). If any broker-dealers
are used to effect sales, any commissions paid to broker-dealers and, if
broker-dealers purchase any of the Shares as principals, any profits received by
such broker-dealers on the resale of the Shares, may be deemed to be
underwriting discounts or commissions under the Securities Act. In addition, any
profits realized by the Selling Stockholders may be deemed to be underwriting
commissions.
Our common stock is quoted on the OTC Pink Sheets Electronic Quotation
Service under the symbol "CLRS.PK." On August 17, 2005, the average of the bid
and ask price of our common stock was $7.60 per share.
------------------------
See "Risk Factors" on page 3 hereof for a discussion of certain factors
that should be carefully considered by prospective purchasers.
------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities, or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
------------------------
The date of this prospectus is August 19, 2005.
1
You should rely only on the information included in or incorporated by
reference into this prospectus or information we have referred to in this
prospectus. We have not authorized anyone to provide you with information that
is different. This prospectus may only be used where it is legal to sell these
securities. This prospectus is not an offer to sell, or a solicitation of an
offer to buy, in any state where the offer or sale is prohibited. The
information in this prospectus is accurate on the date of this prospectus and
may become obsolete later. Neither the delivery of this prospectus, nor any sale
made under this prospectus will, under any circumstances, imply that the
information in this prospectus is correct as of any date after the date of this
prospectus. References to "the Company," "Clarus," "we" or "us" refer to Clarus
Corporation.
TABLE OF CONTENTS
Page
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RISK FACTORS.................................................................3
FORWARD-LOOKING STATEMENTS...................................................8
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE..............................8
COMPANY OVERVIEW.............................................................10
USE OF PROCEEDS..............................................................11
SELLING STOCKHOLDERS.........................................................12
DESCRIPTION OF COMMON STOCK..................................................15
PLAN OF DISTRIBUTION.........................................................16
WHERE YOU CAN FIND MORE INFORMATION..........................................18
EXPERTS......................................................................18
LEGAL MATTERS................................................................19
2
RISK FACTORS
Prospective purchasers of the common stock should consider carefully the
following risk factors relating to the business of the Company, together with
the information and financial data set forth elsewhere in this prospectus or
incorporated herein by reference, prior to making an investment decision. This
prospectus contains forward-looking statements within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act. Such statements are
indicated by words or phrases such as "anticipate," "estimate," "project,"
"management believes," "we believe" and similar words or phrases. Such
statements are based on current expectations and are subject to risks,
uncertainties and assumptions. Certain of these risks are described below.
Should one or more of these risks or uncertainties materialize, or should
underlying assumptions prove incorrect, actual results may vary materially from
those anticipated, estimated or projected.
Risks Related To Clarus
We continue to incur operating losses.
As a result of the sale of substantially all of our electronic commerce
business, we will no longer generate revenue previously associated with the
products and contracts comprising our electronic commerce business. We are not
profitable and have incurred an accumulated deficit of $280.6 million from our
inception through June 30, 2005. Our current ability to generate revenues and to
achieve profitability and positive cash flow will depend on our ability to
redeploy our assets and use our cash and cash equivalent assets to reposition
our business whether it is through a merger or acquisition. Our ability to
become profitable will depend, among other things, (i) on our success in
identifying and acquiring a new operating business, (ii) on our development of
new products or services relating to our new operating business, and (iii) on
our success in distributing and marketing our new products or services.
We may be unable to redeploy our assets successfully.
As part of our strategy to limit operating losses and enable Clarus to
redeploy its assets and use its cash and cash equivalent assets to enhance
stockholder value, we have sold our electronic commerce business, which
represented substantially all of our revenue-generating operations and related
assets. We are pursuing a strategy of identifying suitable merger partners and
acquisition candidates that will serve as a platform company. Although we are
not targeting specific business industries for potential acquisitions, we plan
to seek businesses with cash flow, experienced management teams, and operations
in markets offering growth opportunities. We may not be successful in acquiring
such a business or in operating any business that we acquire. Failure to
redeploy successfully will result in our inability to become profitable.
Any acquisitions that we attempt or complete may involve a number of
unique risks including: (i) executing successful due diligence; (ii) our
exposure to unforeseen liabilities of acquired companies; (iii) increased risk
of costly and time-consuming litigation, including stockholder lawsuits; and
(iv) our ability to integrate and absorb the acquired company successfully. We
may be unable to address these problems successfully. Moreover, our future
operating results will depend to a significant degree on our ability to manage
successfully operations while also controlling our expenses. In addition, if we
identify an appropriate acquisition opportunity, we may be unable to negotiate
favorable terms for that acquisition. We may be unable to select, manage or
absorb or integrate any future acquisitions successfully, particularly
acquisitions of large companies. Any acquisition, even if effectively
integrated, may not benefit our stockholders.
We will incur significant costs in connection with our evaluation of
suitable merger partners and acquisition candidates.
As part of our plan to redeploy our assets, our management is seeking,
analyzing and evaluating potential acquisition and merger candidates. We have
incurred and will continue to incur significant costs, such as due diligence and
legal expenses, as part of these redeployment efforts. For the year ended
December 31, 2004 and the six months ended June 30, 2005, we incurred
transaction related expenses of $1.6 million and $20,000, respectively.
Notwithstanding these efforts and expenditures, we cannot give any assurance
that we will identify an appropriate acquisition opportunity in the near term,
or at all. In addition, even if we successfully identify an appropriate
opportunity, we may be unable to negotiate favorable terms that results in our
consummation of that acquisition.
3
We will likely have no operating history in our new line of business, which is
yet to be determined, and therefore we will be subject to the risks inherent in
establishing a new business.
We have not identified what our new line of business will be; therefore,
we cannot fully describe the specific risks presented by such business. It is
likely that we will have had no operating history in the new line of business
and it is possible that the target company may have a limited operating history
in its business. Accordingly, there can be no assurance that our future
operations will generate operating or net income, and as such our success will
be subject to the risks, expenses, problems and delays inherent in establishing
a new line of business for Clarus. The ultimate success of such new business
cannot be assured.
We may be unable to realize the benefits of our net operating loss ("NOL") and
tax credit carryforwards.
NOLs may be carried forward to offset federal and state taxable income in
future years and eliminate income taxes otherwise payable on such taxable
income, subject to certain adjustments. Based on current federal corporate
income tax rates, our NOL and other carryforwards could provide a benefit to us,
if fully utilized, of significant future tax savings. However, our ability to
use these tax benefits in future years will depend upon the amount of our
otherwise taxable income. If we do not have sufficient taxable income in future
years to use the tax benefits before they expire, we will lose the benefit of
these NOL carryforwards permanently. Consequently, our ability to use the tax
benefits associated with our substantial NOL will depend significantly on our
success in identifying suitable merger partners and/or acquisition candidates,
and once identified, successfully consummate a merger with and/or acquisition of
these candidates.
Additionally, if we underwent an ownership change, the NOL carryforward
limitations would impose an annual limit on the amount of the taxable income
that may be offset by our NOL generated prior to the ownership change. If an
ownership change were to occur, we may be unable to use a significant portion of
our NOL to offset taxable income. In general, an ownership change occurs when,
as of any testing date, the aggregate of the increase in percentage points of
the total amount of a corporation's stock owned by "5-percent stockholders"
within the meaning of the NOL carryforward limitations whose percentage
ownership of the stock has increased as of such date over the lowest percentage
of the stock owned by each such "5-percent stockholder" at any time during the
three-year period preceding such date is more than 50 percentage points. In
general, persons who own 5% or more of a corporation's stock are "5-percent
stockholders," and all other persons who own less than 5% of a corporation's
stock are treated, together, as a single, public group "5-percent stockholder,"
regardless of whether they own an aggregate of 5% of a corporation's stock.
The amount of NOL and tax credit carryforwards that we have claimed has
not been audited or otherwise validated by the U.S. Internal Revenue Service.
The IRS could challenge our calculation of the amount of our NOL or our
determinations as to when a prior change in ownership occurred and other
provisions of the Internal Revenue Code, may limit our ability to carry forward
our NOL to offset taxable income in future years. If the IRS was successful with
respect to any such challenge, the potential tax benefit of the NOL
carryforwards to us could be substantially reduced.
4
Certain transfer restrictions implemented by us to preserve our NOL may not be
effective or may have some unintended negative effects.
On July 24, 2003, at our Annual Meeting of Stockholders, our stockholders
approved an amendment (the "Amendment") to our Amended and Restated Certificate
of Incorporation to restrict certain acquisitions of our securities in order to
help assure the preservation of our NOL. The Amendment generally restricts
direct and indirect acquisitions of our equity securities if such acquisition
will affect the percentage of Clarus' capital stock that is treated as owned by
a "5-percent stockholder."
Although the transfer restrictions imposed on our capital stock is
intended to reduce the likelihood of an impermissible ownership change, there is
no guarantee that such restrictions would prevent all transfers that would
result in an impermissible ownership change. The transfer restrictions also will
require any person attempting to acquire a significant interest in us to seek
the approval of our Board of Directors. This may have an "anti-takeover" effect
because our Board of Directors may be able to prevent any future takeover.
Similarly, any limits on the amount of capital stock that a stockholder may own
could have the effect of making it more difficult for stockholders to replace
current management. Additionally, because the transfer restrictions will have
the effect of restricting a stockholder's ability to dispose of or acquire our
common stock, the liquidity and market value of our common stock might suffer.
We could be required to register as an investment company under the Investment
Company Act of 1940, which could significantly limit our ability to operate and
acquire an established business.
The Investment Company Act of 1940 (the "Investment Company Act") requires
registration, as an investment company, for companies that are engaged primarily
in the business of investing, reinvesting, owning, holding or trading
securities. We have sought to qualify for an exclusion from registration
including the exclusion available to a company that does not own "investment
securities" with a value exceeding 40% of the value of its total assets on an
unconsolidated basis, excluding government securities and cash items. This
exclusion, however, could be disadvantageous to us and/or our stockholders. If
we were unable to rely on an exclusion under the Investment Company Act and were
deemed to be an investment company under the Investment Company Act, we would be
forced to comply with substantive requirements of Investment Company Act,
including: (i) limitations on our ability to borrow; (ii) limitations on our
capital structure; (iii) restrictions on acquisitions of interests in associated
companies; (iv) prohibitions on transactions with affiliates; (v) restrictions
on specific investments; (vi) limitations on our ability to issue stock options;
and (vii) compliance with reporting, record keeping, voting, proxy disclosure
and other rules and regulations. Registration as an investment company would
subject us to restrictions that would significantly impair our ability to pursue
our fundamental business strategy of acquiring and operating an established
business. In the event the Commission or a court took the position that we were
an investment company, our failure to register as an investment company would
not only raise the possibility of an enforcement action by the Commission or an
adverse judgment by a court, but also could threaten the validity of corporate
actions and contracts entered into by us during the period we were deemed to be
an unregistered investment company. Moreover, the Commission could seek an
enforcement action against us to the extent we were not in compliance with the
Investment Company Act during any point in time.
For five years after the closing of the Asset Sale to Epicor, we will be
prohibited from competing with the assets sold to Epicor.
The Noncompetition Agreement we entered into with Epicor provides that for
a period of five years after the closing of the Asset Sale (December 6, 2002),
neither we nor any of our affiliated entities are permitted, directly or
indirectly, anywhere in the world: (i) to engage in any business that competes
with the business of developing, marketing and supporting Internet-based
business-to-business, electronic commerce solutions that automate the
procurement, sourcing and settlement of goods and services including through the
eProcurement, Sourcing, View (for eProcurement), eTour (for eProcurement),
ClarusNET, and Settlement software products and all improvements and variations
of these products; (ii) to attempt to persuade any customer or vendor of Epicor
to cease to do business with Epicor or reduce the amount of business being
conducted with Epicor; (iii) to solicit the business of any customer or vendor
of Epicor, if the solicitation could cause a reduction in the amount of business
that Epicor does with the customer or vendor; or (iv) to hire, solicit for
employment or encourage to leave the employment of Epicor any person who was an
employee of Epicor within 90 days before the closing of the Asset Sale.
5
The prohibitions contained in our Noncompetition Agreement with Epicor
will restrict the business opportunities available to us and therefore may have
a material adverse effect on our ability to successfully redeploy our remaining
assets.
RISKS RELATED TO OUR COMMON STOCK
Our common stock is no longer listed on the NASDAQ National Market.
On October 5, 2004, our common stock was delisted from the Nasdaq National
Market. The delisting followed a determination by the Nasdaq Listing
Qualifications Panel that the Company was a "public shell" and should be
delisted due to policy concerns raised under Nasdaq Marketplace Rules 4300 and
4300(a)(3). Additional information concerning the delisting is set forth in the
Company's Report on Form 8-K filed with the Commission on October 4, 2004. The
Company's common stock is now quoted on the OTC Pink Sheets Electronic Quotation
Service under the symbol "CLRS.PK." As a result of the delisting, stockholders
may find it more difficult to dispose of, or to obtain accurate quotations as to
the price of, our common stock, the liquidity of our stock may be reduced,
making it difficult for a stockholder to buy or sell our stock at competitive
market prices or at all, we may lose support from institutional investors and/or
market makers that currently buy and sell our stock and the price of our common
stock could decline.
We are vulnerable to volatile market conditions.
The market prices of our common stock have been highly volatile. The
market has from time to time experienced significant price and volume
fluctuations that are unrelated to the operating performance of particular
companies. Please see the table contained in Item 5 of Form 10-K for the year
ended December 31, 2004 which sets forth for the indicated periods, the high and
low closing sales prices for our common stock as reported by the NASDAQ prior to
October 5, 2004 and the range of high and low bids for our common stock as
reported by the OTC Bulletin Board or the OTC Pink Sheets Electronic Quotation
Service on and after October 5, 2004.
We do not expect to pay dividends on our common stock in the foreseeable future.
Although our stockholders may receive dividends if, as and when declared
by our Board of Directors, we do not intend to pay dividends on our common stock
in the foreseeable future. Therefore, you should not purchase our common stock
if you need immediate or future income by way of dividends from your investment.
Our Amended and Restated Certificate of Incorporation authorizes the issuance of
shares of preferred stock.
Our Amended and Restated Certificate of Incorporation provides that our
Board of Directors will be authorized to issue from time to time, without
further stockholder approval, up to 5,000,000 shares of preferred stock in one
or more series and to fix or alter the designations, preferences, rights and any
qualifications, limitations or restrictions of the shares of each series,
including the dividend rights, dividend rates, conversion rights, voting rights,
terms of redemption, including sinking fund provisions, redemption price or
prices, liquidation preferences and the number of shares constituting any series
or designations of any series. Such shares of preferred stock could have
preferences over our common stock with respect to dividends and liquidation
rights. We may issue additional preferred stock in ways, which may delay, defer
or prevent a change in control of Clarus without further action by our
stockholders. Such shares of preferred stock may be issued with voting rights
that may adversely affect the voting power of the holders of our common stock by
increasing the number of outstanding shares having voting rights, and by the
creation of class or series voting rights.
6
We may issue a substantial amount of our common stock in the future which could
cause dilution to new investors and otherwise adversely affect our stock price.
A key element of our growth strategy is to make acquisitions. As part of
our acquisition strategy, we may issue additional shares of common stock as
consideration for such acquisitions. These issuances could be significant. To
the extent that we make acquisitions and issue our shares of common stock as
consideration, your equity interest in us will be diluted. Any such issuance
will also increase the number of outstanding shares of common stock that will be
eligible for sale in the future. Persons receiving shares of our common stock in
connection with these acquisitions may be more likely to sell off their common
stock, which may influence the price of our common stock. In addition, the
potential issuance of additional shares in connection with anticipated
acquisitions could lessen demand for our common stock and result in a lower
price than might otherwise be obtained. We may issue common stock in the future
for other purposes as well, including in connection with financings, for
compensation purposes, in connection with strategic transactions or for other
purposes.
FOR ALL OF THE FOREGOING REASONS AND OTHERS SET FORTH IN THIS PROSPECTUS, THE
SECURITIES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK. ANY PERSON CONSIDERING
AN INVESTMENT IN THE SECURITIES OFFERED HEREBY SHOULD BE AWARE OF THESE AND
OTHER FACTORS SET FORTH IN THIS PROSPECTUS. THE SECURITIES SHOULD BE PURCHASED
ONLY BY PERSONS WHO CAN AFFORD A TOTAL LOSS OF THEIR INVESTMENT IN THE COMPANY.
7
FORWARD-LOOKING STATEMENTS
This prospectus contains certain forward-looking statements, including
information about or related to our future results, certain projections and
business trends. Assumptions relating to forward-looking statements involve
judgments with respect to, among other things, future economic, competitive and
market conditions and future business decisions, all of which are difficult or
impossible to predict accurately and many of which are beyond our control. When
used in this prospectus, the words "estimate," "project," "intend," "believe,"
"expect" and similar expressions are intended to identify forward-looking
statements. Although we believe that our assumptions underlying the
forward-looking statements are reasonable, any or all of the assumptions could
prove inaccurate, and we may not realize the results contemplated by the
forward-looking statements. Management decisions are subjective in many respects
and susceptible to interpretations and periodic revisions based upon actual
experience and business developments, the impact of which may cause us to alter
our business strategy or capital expenditure plans that may, in turn, affect our
results of operations. In light of the significant uncertainties inherent in the
forward-looking information included in this prospectus, you should not regard
the inclusion of such information as our representation that we will achieve any
strategy, objectives or other plans. The forward-looking statements contained in
this prospectus speak only as of the date of this prospectus, and we have no
obligation to update publicly or revise any of these forward-looking statements.
These and other statements, which are not historical facts, are based
largely upon our current expectations and assumptions and are subject to a
number of risks and uncertainties that could cause actual results to differ
materially from those contemplated by such forward-looking statements. These
risks and uncertainties include, among others, our planned effort to redeploy
our assets and use our cash and cash equivalent assets to enhance stockholder
value following the sale of substantially all of our electronic commerce
business, which represented substantially all of our revenue generating
operations and related assets, and the risks and uncertainties set forth in the
section headed "Risk Factors" of this prospectus. The Company cannot guarantee
its future performance.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Securities and Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), allows us to
"incorporate by reference" the documents we file with it, which means that we
can disclose important business, financial and other information to you in this
prospectus by referring you to the publicly filed documents containing this
information. The information incorporated by reference is deemed to be a part of
this prospectus, except for any information deemed furnished, superseded by
information contained in this prospectus or filed later by us with the
Commission. This prospectus incorporates by reference the documents set forth
below that we have previously filed with the Commission, which documents contain
important information about Clarus and our common stock:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2004, filed pursuant to the Securities Exchange Act of
1934;
(b) The Company's Annual Report on Form 10-K/A (Amendment No. 1) for the
fiscal year ended December 31, 2004, filed pursuant to the Exchange
Act;
(c) The Company's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 2005, filed pursuant to the Exchange Act;
(d) The Company's Quarterly Report on Form 10-Q for the quarterly period
ended June 30, 2005, filed pursuant to the Exchange Act;
(e) The Company's Current Report on Form 8-K, Date of Event - July 28,
2005 filed on July 28, 2005, pursuant to the Exchange Act;
8
(f) The Company's Current Report on Form 8-K, Date of Event - June 21,
2005 filed on June 27, 2005, pursuant to the Exchange Act;
(g) The Company's Current Report on Form 8-K, Date of Event - May 4,
2005, filed on May 5, 2005, pursuant to the Exchange Act;
(h) The Company's Current Report on Form 8-K, Date of Event - April 11,
2005, filed on April 13, 2005, pursuant to the Exchange Act;
(i) The Company's Current Report on Form 8-K, Date of Event - March 15,
2005, filed on March 16, 2005, pursuant to the Exchange Act;
(j) Definitive Proxy Statement dated May 23, 2005, relating to the
annual meeting of stockholders held on June 21, 2005; and
(k) The description of the Company's common stock, $.0001 par value,
contained in the Company's Registration Statement on Form 8-A filed
on May 18, 1998 pursuant to Section 12(g) of the Exchange Act,
including any amendment or report filed for the purpose of updating
such description.
All of such documents are on file with the Commission. In addition, all
documents filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, subsequent to the date of this prospectus and prior to termination
of the offering are incorporated by reference in this prospectus and are a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this prospectus to the
extent that a statement contained herein or in any subsequently filed document
that is also incorporated by reference herein modifies or replaces such
statement. Any statements so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this prospectus.
This prospectus incorporates herein by reference important business and
financial information about us that is not included in or delivered with this
prospectus. This information is available to you without charge upon written or
oral request. If you would like a copy of any of this information, please submit
your request to us at One Landmark Square, Stamford, Connecticut 06901,
Attention: Secretary, or call (203) 428-2000.
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. You should not assume
that the information in this prospectus or any prospectus supplement is accurate
as of any date other than the date on the front page of those documents.
9
COMPANY OVERVIEW
Clarus was formerly a provider of e-commerce business solutions until the
sale of substantially all of its operating assets in December 2002. We are
currently seeking to redeploy our cash and cash equivalent assets to enhance
stockholder value and are seeking, analyzing and evaluating potential
acquisition and merger candidates. We were incorporated in Delaware in 1991
under the name SQL Financials, Inc. In August 1998, we changed our name to
Clarus Corporation.
At the 2002 annual meeting of our stockholders held on May 21, 2002,
Warren B. Kanders, Burtt R. Ehrlich and Nicholas Sokolow were elected by our
stockholders to serve on our Board of Directors. Under the leadership of these
new directors, our Board of Directors adopted a strategy of seeking to enhance
stockholder value by pursuing opportunities to redeploy our assets through an
acquisition of, or merger with, an operating business that will serve as a
platform company, using our cash, other non-operating assets (including, to the
extent available, our net operating loss carryforward) and our publicly-traded
stock to enhance future growth. The strategy also sought to reduce significantly
our cash expenditure rate by targeting, to the extent practicable, our overhead
expenses to the amount of our investment income until the completion of an
acquisition or merger. While the Company's expenses have been significantly
reduced, management currently believes that the Company's operating expenses
will exceed investment income during 2005.
As part of our strategy to enhance stockholder value, on December 6, 2002,
we consummated the sale of substantially all of the assets of our electronic
commerce business, which represented substantially all of our revenue generating
operations and related assets, to Epicor Software Corporation ("Epicor"), a
Delaware corporation, for a purchase price of $1.0 million in cash (the "Asset
Sale"). Epicor is traded on the Nasdaq National Market under the symbol "EPIC."
The sale included licensing, support and maintenance activities from our
eProcurement, Sourcing, View (for eProcurement), eTour (for eProcurement),
ClarusNET, and Settlement software products, our customer lists, certain
contracts and certain intellectual property rights related to the purchased
assets, maintenance payments and certain furniture and equipment. In connection
with the sale, we entered into a Transition Services Agreement until March 31,
2003, that allowed Epicor to use a portion of our facility in Suwanee, Georgia
to operate the electronic commerce business that Epicor purchased in the Asset
Sale. Epicor agreed to assume certain of our liabilities, such as executory
obligations arising under certain contracts, agreements and commitments related
to the transferred assets. We remain responsible for all of our other
liabilities including liabilities under certain contracts, including any
violations of environmental laws and for our obligations related to any of our
indebtedness, employee benefit plans or taxes that are or were due and payable
in connection with the acquired assets on or before the closing date of the
Asset Sale.
Upon the closing of the sale to Epicor, Warren B. Kanders assumed the
position of Executive Chairman of the Board of Directors, Stephen P. Jeffery
ceased to serve as Chief Executive Officer and Chairman of the Board, and James
J. McDevitt ceased to serve as Chief Financial Officer and Corporate Secretary.
Mr. Jeffery agreed to continue to serve on the Board of Directors and serve in a
consulting capacity for a period of three years. In addition, the Board of
Directors appointed Nigel P. Ekern as Chief Administrative Officer to oversee
the operations of Clarus and to assist with our asset redeployment strategy.
On January 1, 2003, we sold the assets related to our Cashbook product,
which were excluded from the Epicor transaction, to an employee group
headquartered in Limerick, Ireland. This completed the sale of nearly all of our
active software operations as part of our strategy to limit operating losses and
enable us to reposition our business in order to enhance stockholder value. In
anticipation of the redeployment of our assets, our cash balances are being held
in short-term, highly rated instruments designed to preserve safety and
liquidity and to exempt us from registration as an investment company under the
Investment Company Act of 1940.
10
We are currently working to identify suitable merger partners or
acquisition opportunities. Although we are not targeting specific industries for
potential acquisitions, we plan to seek businesses with substantial cash flow,
experienced management teams, and operations in markets offering substantial
growth opportunities. In addition, we believe that our common stock, which has a
strong institutional stockholder base, offers us flexibility as acquisition
currency and will enhance our attractiveness to potential merger or acquisition
candidates. This strategy is, however, subject to certain risks. See "Risk
Factors" above.
At the Company's annual stockholders meeting on July 24, 2003, the
stockholders approved an amendment, (the "Amendment") to our Amended and
Restated Certificate of Incorporation to restrict certain acquisitions of
Clarus' securities in order to help assure the preservation of its net operating
loss tax carryforward ("NOL"). Although the transfer restrictions imposed on our
securities is intended to reduce the likelihood of an impermissible ownership
change, no assurance can be given that such restrictions would prevent all
transfers that would result in an impermissible ownership change. The Amendment
generally restricts and requires prior approval of our Board of Directors of
direct and indirect acquisitions of the Company's equity securities if such
acquisition will affect the percentage of our capital stock that is treated as
owned by a 5% stockholder. The restrictions will generally only affect persons
trying to acquire a significant interest in our common stock.
Our principal executive offices are located at One Landmark Square,
Stamford, Connecticut 06901.
USE OF PROCEEDS
The Company will not realize any proceeds from the sale of the common
stock which may be sold pursuant to this prospectus for the respective accounts
of the Selling Stockholders. The Company, however, will derive proceeds from the
sale of stock to Selling Stockholders and upon the exercise of the options
granted to Selling Stockholders. All such proceeds will be available to the
Company for working capital and general corporate purposes. No assurances can be
given, however, as to when or if any or all of the options will be exercised.
11
SELLING STOCKHOLDERS
This prospectus relates to Shares that are being registered for reoffers
and resales by Selling Stockholders who have acquired or may acquire Shares
pursuant to each of the Plans. The Selling Stockholders may resell any or all of
the Shares at any time they choose while this prospectus is effective.
Executive officers and directors, their family members, trusts for their
benefit, or entities that they own, that acquire common stock under the Plans
may be added to the Selling Stockholder list below by a prospectus supplement
filed with the Commission. The number of Shares to be sold by any Selling
Stockholder under this prospectus also may be increased or decreased by a
prospectus supplement. Non-affiliates who purchased restricted securities, as
these terms are defined in rule 144(a) under the Securities Act, under any of
our employee benefit plans and who are not named below may use this prospectus
for the offer or sale of their common stock if they hold 1,000 shares or less.
Although a person's name is included in the table below, neither that person nor
we are making an admission that the named person is our "affiliate."
Each of the Selling Stockholders is an employee or director of the
Company. The following table sets forth:
o the name and principal position or positions over the past three
years with the Company of each Selling Stockholder;
o the number of shares of common stock each Selling Stockholder
beneficially owned as of August 17, 2005;
o the number of shares of common stock acquired by each Selling
Stockholder in connection with stock options and stock grants
pursuant to the Plans and being registered under this Registration
Statement, some or all of which shares may be sold pursuant to this
prospectus; and
o the number of shares of common stock and the percentage, if 1% or
more, of the total class of common stock outstanding to be
beneficially owned by each Selling Stockholder following this
offering, assuming the sale pursuant to this offering of all shares
acquired by such Selling Stockholder in connection with grants
pursuant the Plans and registered under this Registration Statement.
There is no assurance that any of the Selling Stockholders will sell any
or all of the shares offered by them under this Registration Statement. The
address of each Selling Stockholder is c/o Clarus Corporation, One Landmark
Square, Stamford, Connecticut 06901.
12
Number of Percentage of
Number of Shares to be Common Stock to
Shares Beneficially be Beneficially
Relationship to Beneficially Shares to be Owned After Owned After the
Name of Seller the Company Owned (1) Sold (2) the Offering(3) Offering (1)
- -------------- ----------- --------- -------- ------------ -----------------
Warren B. Kanders Executive Chairman of 2,580,700 (4) 1,021,250 1,559,450 9.28%
the Board of
Directors
Nigel P. Ekern Chief Administrative 88,119 (5) 228,786 0 *
Officer and Secretary
Burtt R. Ehrlich Director 137,250 (6) 81,250 76,000 *
Donald L. House Director 143,749 (7) 87,500 56,249 *
Nicholas Sokolow Director 212,600 (8) 81,250 151,350 *
- ----------
* Less than 1%
(1) Based on 16,812,170 shares of common stock outstanding as of August 17,
2005. As used in this table, a beneficial owner of a security includes any
person who, directly or indirectly, through contract, arrangement,
understanding, relationship or otherwise has or shares (a) the power to
vote, or direct the voting of, such security or (b) investment power which
includes the power to dispose, or to direct the disposition of, such
security. In addition, a person is deemed to be the beneficial owner of a
security if that person has the right to acquire beneficial ownership of
such security within 60 days.
(2) Represents the maximum number of Shares issued under each of the 2000
Incentive Plan, the SAI Plan, the 2003 Restricted Stock Agreement and the
2002 Stock Option Agreement that could be sold under this
prospectus if the holder sold all of his or her Shares, exercised all of
his or her options when vested and sold the underlying Shares. Does not
constitute a commitment to sell any or all of the stated number of Shares.
The number of Shares to be sold shall be determined from time to time by
each Selling Stockholder in his or her discretion.
(3) Assumes the sale of all Shares being registered by this prospectus.
(4) The amount of securities reported as beneficially owned includes Mr.
Kanders' options to purchase 421,250 shares of common stock that are
presently exercisable or exercisable within the next 60 days. Includes
500,000 unvested shares of restricted common stock, which have voting,
dividend and other distribution rights. Excludes options to purchase
600,000 shares of common stock that are presently unexercisable and
unexercisable within the next 60 days.
(5) The amount of securities reported as beneficially owned includes Mr.
Ekern's options to purchase 86,667 shares of common stock that are
presently exercisable or exercisable within the next 60 days. Excludes
7,334 unvested shares of restricted common stock, which have no voting,
dividend and other distribution rights. Excludes options to purchase
133,333 shares of common stock that are presently unexercisable and
unexercisable within the next 60 days.
(6) The amount of securities reported as beneficially owned includes Mr.
Ehrlich's options to purchase 61,250 shares of common stock that are
presently exercisable or exercisable within the next 60 days and 13,000
shares of common stock held by a trust for the benefit of Mr. Ehrlich's
children. Excludes options to purchase 20,000 shares of common stock that
are presently unexercisable and unexercisable within the next 60 days.
(7) The amount of securities reported as beneficially owned includes Mr.
House's options to purchase 75,000 shares of common stock that are
presently exercisable or exercisable within the next 60 days. Excludes
options to purchase 20,000 shares of common stock that are presently
unexercisable and unexercisable within the next 60 days.
(8) The amount of securities reported as beneficially owned includes Mr.
Sokolow's options to purchase 61,250 shares of common stock that are
presently exercisable or exercisable within the next 60 days. The amount
of securities reported as beneficially owned also includes 151,350 shares
of common stock held by ST Investors Fund, LLC, of which Mr. Sokolow is
the Managing Member. Excludes options to purchase 20,000 shares of common
stock that are presently unexercisable and unexercisable within the next
60 days.
13
The Company will supplement this prospectus from time to time as required
by the rules of the Commission to include certain information concerning the
security ownership of the Selling Stockholders or any new Selling Stockholders,
the number of shares offered for resale and the position, office or other
material relationship which a Selling Stockholder has had within the past three
years with the Company or any of its predecessors or affiliates.
14
DESCRIPTION OF COMMON STOCK
The following description of our common stock does not purport to be
complete and is subject in all respects to applicable Delaware law and qualified
by reference to the provisions of our amended and restated certificate of
incorporation and amended and restated bylaws. Copies of our certificate of
incorporation and bylaws are incorporated by reference and will be sent to
stockholders upon request. See "Where Can You Find More Information."
Authorized Common Stock
We have authorized 100,000,000 shares of our common stock, par value
$0.0001 per share. As of August 17, 2005, there were 16,812,170 shares of our
common stock outstanding.
Voting Rights
The holders of our common stock are entitled to one vote for each share on
all matters voted on by our stockholders, including the election of directors.
No holders of our common stock have any right to cumulative voting.
Dividend Rights
Subject to any preferential rights of any outstanding series of preferred
stock, created by our board of directors, the holders of our common stock will
be entitled to such dividends as may be declared from time to time by our board
of directors from funds available therefore. We currently do not and do not
intend to pay cash dividends on our common stock in the foreseeable future, and,
at this time, are restricted from doing so under the terms of our credit
facility and the indenture governing our senior subordinated notes.
Rights Upon Liquidation
In the event of a liquidation, dissolution or winding up, the holders of
our common stock are entitled to share ratably in all assets remaining after
payment of liabilities and the liquidation value and other amounts owed to the
holders of our preferred stock.
Preemptive Rights
Holders of our common stock have no preemptive rights or rights to convert
their shares of common stock into any other securities.
Other Rights
There are no redemption or sinking fund provisions applicable to our
common stock.
15
PLAN OF DISTRIBUTION
The Selling Stockholders, which as used herein includes donees, pledgees,
transferees or other successors-in-interest selling shares of our common stock
or interests in shares of our common stock received after the date of this
prospectus from a Selling Stockholder as a gift, pledge, partnership
distribution or other transfer, may, from time to time, sell, transfer or
otherwise dispose of any or all of their shares of our common stock or interests
in shares of our common stock on any stock exchange, market or trading facility
on which the shares are traded or in private transactions. These dispositions
may be at fixed prices, at prevailing market prices at the time of sale, at
prices related to the prevailing market price, at varying prices determined at
the time of sale, or at negotiated prices.
The Selling Stockholders may use any one or more of the following methods
when disposing of shares or interests therein:
o market transactions in accordance with the rules of the OTC Pink
Sheets Electronic Quotation Service or any other available markets
or exchanges;
o ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
o block trades in which the broker-dealer will attempt to sell the
shares as agent, but may position and resell a portion of the block
as principal to facilitate the transaction;
o purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
o an exchange distribution in accordance with the rules of the
applicable exchange;
o privately negotiated transactions;
o short sales entered into after the date of this prospectus;
o through the writing or settlement of options or other hedging
transactions, whether through an options exchange or otherwise;
o distributions to the partners and/or members of the Selling
Stockholders;
o redemptions or repurchases of interests owned by partners and/or
members of the Selling Stockholders;
o broker-dealers may agree with the Selling Stockholders to sell a
specified number of such shares at a stipulated price per share;
o a combination of any such methods of sale; and
o any other method permitted pursuant to applicable law.
In connection with the sale of our common stock or interests therein, the
Selling Stockholders may enter into hedging transactions with broker-dealers or
other financial institutions, which may in turn engage in short sales of our
common stock in the course of hedging the positions they assume with the selling
stockholders. The Selling Stockholders may also sell shares of our common stock
short and deliver these securities to close out their short positions, or loan
or pledge our common stock to broker-dealers that in turn may sell these
securities. The Selling Stockholders may also enter into option or other
transactions with broker-dealers or other financial institutions or the creation
of one or more derivative securities which require the delivery to such
broker-dealer or other financial institution of shares offered by this
prospectus, which shares such broker-dealer or other financial institution may
resell pursuant to this prospectus (as supplemented or amended to reflect such
transaction).
16
Short selling occurs when a person sells shares of stock which the person
does not yet own and promises to buy stock in the future to cover the sale. The
general objective of the person selling the shares short is to make a profit by
buying the shares later, at a lower price, to cover the sale. Significant
amounts of short selling, or the perception that a significant amount of short
sales could occur, could depress the market price of our common stock. In
contrast, purchases to cover a short position may have the effect of preventing
or retarding a decline in the market price of our common stock, and together
with the imposition of the penalty bid, may stabilize, maintain or otherwise
affect the market price of our common stock. As a result, the price of our
common stock may be higher than the price that otherwise might exist in the open
market. If these activities are commenced, they may be discontinued at any time.
These transactions may be effected on the OTC Pink Sheets Electronic Quotation
Service or any other available markets or exchanges.
The aggregate proceeds to the Selling Stockholders from the sale of our
common stock offered by them will be the purchase price of our common stock less
discounts or commissions, if any. Each of the Selling Stockholders reserves the
right to accept and, together with their agents from time to time, to reject, in
whole or in part, any proposed purchase of our common stock to be made directly
or through agents. We will not receive any of the proceeds from this offering.
The Selling Stockholders also may resell all or a portion of the shares in
open market transactions in reliance upon Rule 144 under the Securities Act,
provided that they meet the criteria and conform to the requirements of that
rule.
The Selling Stockholders and any underwriters, broker-dealers or agents
that participate in the sale of our common stock or interests therein may be
"underwriters" within the meaning of Section 2(11) of the Securities Act. Any
discounts, commissions, concessions or profits they earn on any resale of the
shares may be underwriting discounts and commissions under the Securities Act.
Selling Stockholders who are "underwriters" within the meaning of Section 2(11)
of the Securities Act will be subject to the prospectus delivery requirements of
the Securities Act.
To the extent required, the shares of our common stock to be sold, the
names of the Selling Stockholders, the respective purchase prices and public
offering prices, the names of any agents, dealers or underwriters, any
applicable commissions or discounts with respect to a particular offer will be
set forth in an accompanying prospectus supplement or, if appropriate, a
post-effective amendment to the registration statement that includes this
prospectus.
In order to comply with the securities laws of some states, if applicable,
our common stock may be sold in these jurisdictions only through registered or
licensed brokers or dealers. In addition, in some states our common stock may
not be sold unless it has been registered or qualified for sale or an exemption
from registration or qualification requirements is available and is complied
with.
We have advised the Selling Stockholders that the anti-manipulation rules
of Regulation M under the Exchange Act may apply to sales of shares in the
market and to the activities of the Selling Stockholders and their affiliates.
In addition, we will make copies of this prospectus (as it may be supplemented
or amended from time to time) available to the Selling Stockholders for the
purpose of satisfying the prospectus delivery requirements of the Securities
Act. The Selling Stockholders may indemnify any broker-dealer that participates
in transactions involving the sale of the shares against certain liabilities,
including liabilities arising under the Securities Act.
17
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Exchange Act, and
in accordance therewith we are required to file periodic reports, proxy
statements and other information with the Commission. Such reports, proxy
statements and other information filed by us can be inspected and copied at the
Commission's Public Reference Room located at 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, at the prescribed rates. The Commission also maintains a
site on the World Wide Web that contains reports, proxy and information
statements and other information regarding registrants that file electronically.
The address of such site is http://www.sec.gov. Please call 1-800-SEC-0330 for
further information on the operation of the Commission's Public Reference Room.
Our common stock is quoted on the OTC Pink Sheets Electronic Quotation
Service under the symbol "CLRS.PK."
With respect to our common stock, this prospectus omits certain
information that is contained in the registration statement on file with the
Commission, of which this prospectus is a part. For further information with
respect to us and our common stock, reference is made to the registration
statement, including the exhibits incorporated therein by reference or filed
therewith. Statements herein contained concerning the provisions of any document
are not necessarily complete and, in each instance, reference is made to the
copy of such document filed as an exhibit or incorporated by reference to the
registration statement. The registration statement and the exhibits may be
inspected without charge at the offices of the Commission or copies thereof
obtained at prescribed rates from the public reference section of the Commission
at the addresses set forth above.
You should rely on the information contained in this prospectus and in the
registration statement as well as other information you deem relevant. We have
not authorized anyone to provide you with information different from that
contained in this prospectus. This prospectus is an offer to sell, or a
solicitation of offers to buy, securities only in jurisdictions where offers and
sales are permitted. The information contained in this prospectus is accurate
only as of the date of this prospectus, regardless of the time of delivery of
this prospectus or any sale or exchange of securities, however, we have a duty
to update that information while this prospectus is in use by you where, among
other things, any facts or circumstances arise which, individually or in the
aggregate, represent a fundamental change in the information contained in this
prospectus or any material information with respect to the plan of distribution
was not previously disclosed in the prospectus or there is any material change
to such information in the prospectus. This prospectus does not offer to sell or
solicit any offer to buy any securities other than our common stock to which it
relates, nor does it offer to buy any of these securities in any jurisdiction to
any person to whom it is unlawful to make such offer or solicitation in such
jurisdiction.
EXPERTS
The consolidated financial statements and schedule of Clarus Corporation
as of December 31, 2004 and 2003, and for each of the years in the three-year
period ended December 31, 2004, and management's assessment of the effectiveness
of internal control over financial reporting as of December 31, 2004, have been
incorporated by reference herein and in the Registration Statement in reliance
upon the reports of KPMG LLP, independent registered public accounting firm,
incorporated by reference herein, and upon the authority of said firm as experts
in accounting and auditing.
18
LEGAL MATTERS
The validity of the shares of Clarus common stock offered by this
prospectus will be passed upon by Kane Kessler, P.C., New York, New York, as
counsel to Clarus.
19
- --------------------------------------------------------------------------------
REOFFER PROSPECTUS
CLARUS CORPORATION
1,500,036 Shares of Common Stock, par value $0.0001 per share
------------------------
August 19, 2005
No dealer, salesperson or other person is authorized to give any information or
to represent anything not contained in this prospectus. You must not rely on any
unauthorized information or representations. This prospectus is an offer to sell
only the shares offered hereby, but only under circumstances and in
jurisdictions where it is lawful to do so. The information contained in this
prospectus is current only as of its date.
- --------------------------------------------------------------------------------
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission (the
"Commission") by Clarus Corporation, a Delaware corporation (the "Company"), are
incorporated by reference into the Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2004, filed pursuant to the Securities Exchange Act of
1934 (the "Exchange Act");
(b) The Company's Annual Report on Form 10-K/A (Amendment No. 1) for the
fiscal year ended December 31, 2004, filed pursuant to the Exchange
Act;
(c) The Company's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 2005, filed pursuant to the Exchange Act;
(d) The Company's Quarterly Report on Form 10-Q for the quarterly period
ended June 30, 2005, filed pursuant to the Exchange Act;
(e) The Company's Current Report on Form 8-K, Date of Event - July 28,
2005 filed on July 28, 2005, pursuant to the Exchange Act;
(f) The Company's Current Report on Form 8-K, Date of Event - June 21,
2005 filed on June 27, 2005, pursuant to the Exchange Act;
(g) The Company's Current Report on Form 8-K, Date of Event - June 22,
2005, filed on June 23, 2005, pursuant to the Exchange Act;
(h) The Company's Current Report on Form 8-K, Date of Event - May 4,
2005, filed on May 5, 2005, pursuant to the Exchange Act;
(i) The Company's Current Report on Form 8-K, Date of Event - April 11,
2005, filed on April 13, 2005, pursuant to the Exchange Act;
(j) The Company's Current Report on Form 8-K, Date of Event - March 15,
2005, filed on March 16, 2005, pursuant to the Exchange Act;
(k) Definitive Proxy Statement dated May 23, 2005, relating to the
annual meeting of stockholders held on June 21, 2005; and
(l) 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, including any
amendment or report filed for the purpose of updating such
description.
All of such documents are on file with the Commission. In addition, all
documents filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, subsequent to the date of this Registration Statement and prior to
the filing of a post-effective amendment which indicates that all the securities
offered hereby have been sold or which deregisters all securities then remaining
unsold shall be deemed to be incorporated by reference in this Registration
Statement and are a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this prospectus to the extent that a statement contained herein or in any
subsequently filed document that is also incorporated by reference herein
modifies or replaces such statement. Any statements so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
II-1
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL") makes provision for the indemnification of officers and directors of
corporations in terms sufficiently broad to indemnify our officers and directors
under certain circumstances from liabilities (including reimbursement of
expenses incurred) arising under the Securities Act.
As permitted by the DGCL, our Amended and Restated Certificate of
Incorporation and our Amended and Restated Bylaws (collectively, the "Charter")
provide that, to the fullest extent permitted by the DGCL, no director shall be
liable to the Company or to its stockholders for monetary damages for breach of
his fiduciary duty as a director. Delaware law does not permit the elimination
of liability (i) for any breach of the director's duty of loyalty to the Company
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) in respect
of certain unlawful dividend payments or stock redemptions or repurchases or
(iv) for any transaction from which the director derives an improper personal
benefit. The effect of this provision in the Charter is to eliminate the rights
of the Company and its stockholders (through stockholders' derivative suits on
behalf of the Company) to recover monetary damages against a director for breach
of fiduciary duty as a director thereof (including breaches resulting from
negligent or grossly negligent behavior) except in the situations described in
clauses (i)-(iv), inclusive, above. These provisions will not alter the
liability of directors under federal securities laws.
Our Charter provides that we may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Company) by reason
of the fact that he is or was a director, officer, employee or agent of the
Company or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation or enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person's conduct was unlawful.
II-2
Our Charter also provides that we may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Company to procure a judgment
in its favor by reason of the fact that such person acted in any of the
capacities set forth above, against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted under similar
standards, except that no indemnification may be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable to
the Company unless and only to the extent that the Court of Chancery of the
State of Delaware or the court in which such action or suit was brought shall
determine upon application that despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Our Charter also provides that to the extent a director or officer of the
Company has been successful in the defense of any action, suit or proceeding
referred to in the previous paragraphs or in the defense of any claim, issue, or
matter therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith; that
indemnification provided for in the Charter shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that the
Company may purchase and maintain insurance on behalf of a director or officer
of the Company against any liability asserted against him or incurred by him in
any such capacity or arising out of his status as such whether or not the
Company would have the power to indemnify him against such liabilities under the
provisions of Section 145 of the DGCL.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Certain restricted securities to be reoffered and resold pursuant to this
Registration Statement were issued under the Plans and in transactions exempt
from registration pursuant to Section 4(2) of the Securities Act.
Item 8. EXHIBITS
Exhibit No. Description of Exhibits
- ----------- -----------------------
4.1 Clarus Corporation 2005 Stock Incentive Plan (filed as
Appendix A to the Company's Proxy Statement dated May 23,
2005, filed with the Securities and Exchange Commission on
May 2, 2005).*
4.2 Clarus Corporation Stock Incentive Plan (as amended and
restated effective as of June 13, 2000) (filed as Exhibit
99 to the Company's Registration Statement on Form S-8
(Registration Statement No. 333-42604), filed with the
Securities and Exchange Commission on July 31, 2000).*
4.3 Stock Incentive Plan of Software Architects International,
Limited, as amended (filed as Exhibit 2.2 to the Company's
current report on Form 8-K filed with the Securities and
Exchange Commission on June 13, 2000).*
4.4 2000 Declaration of Amendment to Software Architects
International Limited Stock Incentive Plan (filed as
Exhibit 2.3 to the Company's current report on Form 8-K
filed with the Securities and Exchange Commission on June
13, 2000).*
II-3
4.5 Restricted Stock Agreement between Clarus Corporation and
Warren B. Kanders, dated April 11, 2003 (filed as Exhibit 1
to the Schedule 13D/A (File Number 005-54249) filed with
the Securities and Exchange Commission on April 17, 2003.*
4.6 Stock Option Agreement between Clarus Corporation and
Warren B. Kanders, dated December 23, 2002. **
5.1 Opinion of Kane Kessler, P.C. regarding the legality of the
securities being registered.**
23.1 Consent of Kane Kessler, P.C. (included in Exhibit No. 5.1
to the Registration Statement).
23.2 Consent of KPMG LLP.**
24.1 Power of Attorney (included in the signature pages of this
Registration Statement).**
- ----------
* Incorporated by reference.
** Filed herewith.
Item 9. UNDERTAKINGS
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to the Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(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)(i) and (a)(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 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.
II-4
(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 undersigned registrant 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-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant 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 Stamford, State of Connecticut on this 19th day
of August, 2005.
CLARUS CORPORATION
By: /s/ Nigel P. Ekern
-------------------------------------
Name: Nigel P. Ekern
Title: Chief Administrative Officer
and Secretary
II-6
POWER OF ATTORNEY
Each of the undersigned officers and directors of Clarus Corporation
hereby severally constitutes and appoints Warren B. Kanders and Nigel P. Ekern
as the attorney-in-fact for the undersigned, in any and all capacities, with
full power of substitution, to sign any and all pre- or post-effective
amendments to this Registration Statement, any subsequent Registration Statement
for the same offering which may be filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and any and all pre- or post-effective
amendments thereto, and to file the same with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
/s/ Warren B. Kanders Executive Chairman of the August 19, 2005
- --------------------- Board of Directors
Warren B. Kanders
/s/ Nigel P. Ekern Chief Administrative Officer August 19, 2005
- ------------------- (Principal Executive Officer)
Nigel P. Ekern
/s/ Susan Luckfield Controller August 19, 2005
- ------------------- (Principal Financial Officer)
Susan Luckfield
/s/ Burtt R. Ehrlich Director August 19, 2005
- --------------------
Burtt R. Ehrlich
/s/ Donald House Director August 19, 2005
- ----------------
Donald House
/s/ Nicholas Sokolow Director August 19, 2005
- --------------------
Nicholas Sokolow
II-7
EXHIBIT INDEX
Item 8. EXHIBITS
Exhibit No. Description of Exhibits
- ----------- -----------------------
4.1 Clarus Corporation 2005 Stock Incentive Plan (filed as
Appendix A to the Registrant's Proxy Statement dated May 23,
2005, filed with the Securities and Exchange Commission on
May 2, 2005).*
4.2 Clarus Corporation Stock Incentive Plan (as amended and
restated effective as of June 13, 2000) (filed as Exhibit 99
to the Registrant's Registration Statement on Form S-8
(Registration Statement No. 333-42604), filed with the
Securities and Exchange Commission on July 31, 2000).*
4.3 Stock Incentive Plan of Software Architects International,
Limited, as amended (filed as Exhibit 2.2 to the Company's
current report on Form 8-K filed with the Securities and
Exchange Commission on June 13, 2000).*
4.4 2000 Declaration of Amendment to Software Architects
International Limited Stock Incentive Plan (filed as Exhibit
2.3 to the Company's current report on Form 8-K filed with
the Securities and Exchange Commission on June 13, 2000).*
4.5 Restricted Stock Agreement between Clarus Corporation and
Warren B. Kanders, dated April 11, 2003 (filed as Exhibit 1
to the Schedule 13D/A (File Number 005-54249 filed with the
Securities and Exchange Commission on April 17, 2003).*
4.6 Stock Option Agreement between Clarus Corporation and Warren
B. Kanders, dated December 23, 2002. **
5.1 Opinion of Kane Kessler, P.C. regarding the legality of the
securities being registered. **
23.1 Consent of Kane Kessler, P.C. (included in Exhibit No. 5.1
to the Registration Statement).
23.2 Consent of KPMG LLP. **
24.1 Power of Attorney (included in the signature pages of this
Registration Statement). **
- ----------
* Incorporated by reference.
** Filed herewith.
II-8