1
EXHIBIT 4.01
VERITAS SOFTWARE CORPORATION
STOCK OPTION AGREEMENT
This Stock Option Agreement ("Agreement") is made and entered into as of
November 29, 2000 (the "Date of Grant") by and between VERITAS Software
Corporation, a Delaware corporation (the "Company"), and Xxxx X. Xxxxx
("Participant"). This Option is granted outside of the Company's 1993 Equity
Incentive Plan, as amended January 26, 1999 (the "Plan"); provided, however,
that capitalized terms not defined herein shall have the meaning ascribed to
them in the Plan.
1. GRANT OF OPTION. The Company hereby grants to Participant an option
(the "Option") to purchase a total of 2,500,000 shares of Common Stock of the
Company (the "Shares") at an exercise price per share of $88.00 (the "Exercise
Price"), subject to all of the terms and conditions of this Agreement. The
Option is not intended to qualify as an "incentive stock option" ("ISO") within
the meaning of Section 422 of the Internal Revenue Code of 1986, as amended.
2. EXERCISE AND VESTING OF OPTION. The terms of the Employment Agreement
between Participant and the Company dated as of November 17, 2000, a copy of
which is attached hereto as Exhibit 1 (the "Employment Agreement"), shall be
applicable to and shall govern the exercisability and acceleration of the Option
and shall supersede all such provisions to the contrary in this Agreement, but
only to the extent that the application of the terms of the Employment Agreement
are more favorable to Participant.
2.1 Exercise and Vesting Schedule for Grant. Subject to the
terms and conditions of this Agreement and the Employment Agreement, the Option
shall be immediately exercisable provided that the Shares subject to the Option
shall vest as follows:
Provided Participant continues to provide services to the
Company or any Subsidiary, Parent or Affiliate of the Company throughout the
specified period, the Option shall vest as to 52,083 Shares on each monthly
anniversary date following the Date of Grant, beginning on December 17, 2000 and
ending on December 17, 2004 at which time the Option shall be vested as to 100%
of the Shares. To the extent that Shares subject to the Option are not vested
upon Participant's termination of employment (including termination by reason of
death or Disability), such Shares may be repurchased by the Company at
Participant's original Exercise Price per share within 90 days following such
termination.
2.2 Vesting Acceleration. In the event of (a) a merger or
consolidation in which the Company is not the surviving corporation (other than
a merger or consolidation with a wholly-owned subsidiary, a reincorporation of
the Company in a different jurisdiction, or other transaction in which there is
no substantial change in the shareholders of the Company and the Awards granted
under the Plan are assumed or replaced by the successor corporation, which
assumption shall be binding on all Participants), (b) a dissolution or
liquidation of the Company, (c) the sale of substantially all of the assets of
the Company, or (d) any other transaction which qualifies as a "corporate
transaction" under Section 424(a) of the Code wherein the shareholders of the
Company give up all of their equity interest in the Company (except for the
acquisition, sale or transfer of all or substantially all of the outstanding
shares of the Company), the vesting of the Option shall accelerate as to an
additional 1/48th of the Shares subject to the Option for each month of
employment Participant completed with the Company from the Date of Grant to the
date of transaction. In addition, the vesting of the Option shall accelerate for
an additional twenty four
2
months at the rate of 1/48th of the Shares subject to the Option; provided that:
(i) if requested to do so, Participant remains employed with the successor for a
period of six months following the date of such transaction or (ii) Participant
is not requested to remain with the successor following the date of such
transaction.
2.3 Expiration. The Option shall expire on November 28, 2010
(the "Expiration Date") and must be exercised, if at all, on or before the
Expiration Date. Notwithstanding any other provision of this Agreement or the
Employment Agreement, if this Option would expire before the Expiration Date
because of an event described in Section 18.2 of the Plan, the Board shall give
Participant written notice thereof and Participant shall have a period of at
least twenty (20) days in which to exercise the Option prior to such expiration
for the maximum number of shares as if all conditions for accelerated vesting
set forth in Section 2.2 of this Agreement or Section 8 of the Employment
Agreement (whichever is more favorable to Participant), including without
limitation Participant's termination of employment under circumstances which
would result in accelerated vesting, had been satisfied as of the beginning of
such twenty (20) day exercise period.
3. TERMINATION.
3.1 Termination for Any Reason Except Death or Disability. If
Participant is Terminated for any reason, except death or Disability, the
Option, to the extent (and only to the extent) that it would have been
exercisable by Participant on the date of Termination, may be exercised by
Participant no later than ninety (90) days after the date of Termination, but in
any event no later than the Expiration Date.
3.2 Termination Because of Death or Disability. Subject to the
terms and conditions of the Employment Agreement, if Participant is Terminated
because of death or Disability of Participant, the Option, to the extent that it
is exercisable by Participant on the date of Termination, may be exercised by
Participant (or Participant's legal representative) no later than twelve (12)
months after the date of Termination, but in any event no later than the
Expiration Date.
4. MANNER OF EXERCISE.
4.1 Stock Option Exercise Agreement. To exercise this Option,
Participant (or in the case of exercise after Participant's death, Participant's
executor, administrator, heir or legatee, as the case may be) must deliver to
the Company an executed stock option exercise agreement in the form as may be
approved by the Company from time to time (the "Exercise Agreement"), which
shall set forth, inter alia, Participant's election to exercise the Option, the
number of Shares being purchased, any restrictions imposed on the Shares and any
representations, warranties and agreements regarding Participant's investment
intent and access to information as may be required by the Company to comply
with applicable securities laws. If someone other than Participant exercises the
Option, then such person must submit documentation reasonably acceptable to the
Company that such person has the right to exercise the Option. Alternatively,
Participant may elect to exercise the Option by way of a Company-sponsored
program with an on-line stock broker (the "Broker") whereby Participant conveys
Participant's intent to exercise the Option through the Broker's Internet site.
3
4.2 Limitations on Exercise. The Option may not be exercised
unless such exercise is in compliance with all applicable federal and state
securities laws, as they are in effect on the date of exercise. The Option may
not be exercised as to fewer than 100 Shares unless it is exercised as to all
Shares as to which the Option is then exercisable.
4.3 Payment. The Exercise Agreement shall be accompanied by
full payment of the Exercise Price for the Shares being purchased in cash (by
check), or where permitted by law:
(a) provided that a public market for the Company's
stock exists, (1) through a "same day sale"
commitment from Participant and a broker-dealer
that is a member of the National Association of
Securities Dealers (a "NASD Dealer") whereby
Participant irrevocably elects to exercise the
Option and to sell a portion of the Shares so
purchased to pay for the Exercise Price and
whereby the NASD Dealer irrevocably commits upon
receipt of such Shares to forward the Exercise
Price directly to the Company, or (2) through a
"margin" commitment -- from Participant and a
NASD Dealer whereby Participant irrevocably
elects to exercise the Option and to pledge the
Shares so purchased to the NASD Dealer in a
margin account as security for a loan from the
NASD Dealer in the amount of the Exercise Price,
and whereby the NASD Dealer irrevocably commits
upon receipt of such Shares to forward the
Exercise Price directly to the Company; or
(b) by any combination of the foregoing.
4.4 Tax Withholding. Prior to the issuance of the Shares upon
exercise of the Option, Participant must pay or provide for any applicable
federal or state withholding obligations of the Company. If the Committee
permits, Participant may provide for payment of withholding taxes upon exercise
of the Option by requesting that the Company retain Shares with a Fair Market
Value equal to the minimum amount of taxes required to be withheld. In such
case, the Company shall issue the net number of Shares to the Participant by
deducting the Shares retained from the Shares issuable upon exercise.
4.5 Issuance of Shares. Provided that the Exercise Agreement
and payment are in form and substance satisfactory to counsel for the Company,
the Company shall issue the Shares registered in the name of Participant,
Participant's authorized assignee, or Participant's legal representative, and
shall deliver certificates representing the Shares with the appropriate legends
affixed thereto.
5. COMPLIANCE WITH LAWS AND REGULATIONS. The exercise of the Option and
the issuance and transfer of Shares shall be subject to compliance by the
Company and Participant with all applicable requirements of federal and state
securities laws and with all applicable requirements of any stock exchange on
which the Company's Common Stock may be listed at the time of such issuance or
transfer. Participant understands that the Company is under no obligation to
register or qualify the Shares with the Securities and Exchange Commission, any
state securities commission or any stock exchange to effect such compliance.
4
6. NONTRANSFERABILITY OF OPTION. The Option may not be transferred in
any manner other than by will or by the laws of descent and distribution and may
be exercised during the lifetime of Participant only by Participant. The terms
of the Option shall be binding upon the executors, administrators, successors
and assigns of Participant.
7. TAX CONSEQUENCES. Set forth below is a brief summary as of the Date
of Grant of some of the United States federal and California tax consequences of
exercise of the Option and disposition of the Shares. THIS SUMMARY IS
NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE.
PARTICIPANT SHOULD CONSULT A TAX ADVISOR BEFORE EXERCISING THE OPTION OR
DISPOSING OF THE SHARES.
7.1 Exercise of Nonqualified Stock Option. There may be
regular federal and California income tax liability upon the exercise of the
Option. Participant will be treated as having received compensation income
(taxable at ordinary income tax rates) equal to the excess, if any, of the Fair
Market Value of the Shares on the date of exercise over the Exercise Price. The
Company will be required to withhold from Participant's compensation or collect
from Participant and pay to the applicable taxing authorities an amount equal to
a percentage of this compensation income at the time of exercise.
7.2 Disposition of Shares. If the Shares are held for more
than twelve (12) months after the date of the transfer of the Shares pursuant to
the exercise of an NQSO, any gain realized on disposition of the Shares will be
treated as long-term capital gain.
8. PRIVILEGES OF STOCK OWNERSHIP. Participant shall not have any of the
rights of a shareholder with respect to any Shares until Participant exercises
the Option and pays the Exercise Price.
9. ENTIRE AGREEMENT. The Plan, the Exercise Agreement and the Employment
Agreement are incorporated herein by reference. This Agreement, the Plan, the
Exercise Agreement and the Employment Agreement constitute the entire agreement
of the parties and supersede all prior undertakings and agreements with respect
to the subject matter hereof.
10. NO OBLIGATION TO EMPLOY. Nothing in this Agreement shall confer on
Participant any right to continue in the employ of, or any other relationship
with, the Company or any Parent, Subsidiary or Affiliate of the Company, or
limit in any way the right of the Company or any Parent, Subsidiary or Affiliate
of the Company to terminate Participant's employment or other relationship at
any time, with or without cause.
11. NOTICES. Any notice required to be given or delivered to the Company
under the terms of this Agreement shall be in writing and addressed to the
Corporate Secretary of the Company at its principal corporate offices. Any
notice required to be given or delivered to Participant shall be in writing and
addressed to Participant at the address indicated below or to such other address
as such party may designate in writing from time to time to the Company. All
notices shall be deemed to have been given or delivered upon: personal delivery;
three (3) days after deposit in the United States mail by certified or
registered mail (return receipt requested); one (1) business day after deposit
with any return receipt express courier (prepaid); or one (1) business day after
transmission by facsimile or telecopier.
5
12. SUCCESSORS AND ASSIGNS. The Company may assign any of its rights
under this Agreement. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the Company. Subject to the
restrictions on transfer set forth herein, this Agreement shall be binding upon
Participant and Participant's heirs, executors, administrators, legal
representatives, successors and assigns.
13. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
14. ACCEPTANCE. Participant hereby acknowledges receipt of a copy of the
Plan and this Agreement. Participant has read and understands the terms and
provisions thereof, and accepts the Option subject to all the terms and
conditions of this Agreement, the Plan and the Exercise Agreement. Participant
acknowledges that there may be adverse tax consequences upon exercise of the
Option or disposition of the Shares and that Participant should consult a tax
adviser prior to such exercise or disposition.
/s/ Xxx X. Xxxxx 7/23/01
----------------------------------- ----------------------------------
VERITAS Software Corporation Date
/s/ Xxxx X. Xxxxx 7/23/01
----------------------------------- ----------------------------------
Xxxx X. Xxxxx Date
6
Exhibit 1
Employment Agreement
7
November 16, 2000
Xxxx X. Xxxxx
EMPLOYMENT AGREEMENT
Dear Xxxx:
On behalf of the Board of Directors of Veritas Software Corporation ("Veritas"),
I am pleased to offer you the position of President and Chief Executive Officer
of Veritas on the terms set forth below.
1) Position. You will be employed by Veritas as its President and Chief
Executive Officer commencing upon the date specified at the end of this
letter below the signature line (the "Commencement Date") and continuing
thereafter until termination pursuant to Section 6. You will have overall
responsibility for the management of Veritas and will report directly to
its Board of Directors. During your term of employment, you will also be
appointed to the Board of Directors. You will be expected to devote your
full working time and attention to the business of Veritas, and you will
not render services to any other business without the prior approval of
the Board of Directors or, directly or indirectly, engage or participate
in any business that is competitive in any manner with the business of
Veritas, except for current board memberships with AppWorx, Virata,
Mediasnap, and current advisory board memberships for Diamondhead
Ventures, Arcot, and the President's Advisory Council for Cal Poly San
Xxxx Obispo. You will also be expected to comply with and be bound by the
Company's operating policies, procedures and practices that are from time
to time in effect during the term of your employment.
2) Cash Compensation. Your annual base salary from the Commencement Date
through December 31, 2001 will be $1,000,000, and your bonus for 2001
will be targeted at $800,000 for a total target annual compensation of
$1,800,000. In subsequent years of employment the Compensation Committee
of the Board of Directors, at its own discretion, will determine your
compensation.
a) Base Salary. Your base annual salary will be payable in accordance
with Veritas' normal payroll practices with such payroll
deductions and withholdings as are required by law. Your base
salary will be reviewed on an annual basis by the Compensation
Committee of the Board of Directors and may be increased from time
to time, in the discretion of the Compensation Committee.
b) Bonus. You will be eligible to receive a target bonus payable
based on Veritas' EPS Bonus Plan for the year beginning January 1,
2001, a copy of which is attached to this letter as Exhibit A,
titled "Veritas 2001 Chief Executive Compensation Plan".
3) Vacation: It is understood that after commencing employment for Veritas
for one week you will be taking four weeks of vacation, such vacation
days to be in addition to any vacation days that are earned in the normal
course of employment. Further, during the first two years of employment,
you will be eligible for three weeks of vacation annually.
8
4) Other Benefits. You will be eligible for the normal health insurance,
401(k), employee stock purchase plan and other benefits offered to all
Veritas senior executives of similar rank and status.
5) Stock Options. Within 30 days of the Commencement Date, the Compensation
Committee of the Board of Directors shall grant you incentive stock
options (to the maximum allowed under the IRS regulations) and
nonqualified stock options (for the balance) to purchase a total of
2,500,000 shares of Veritas common stock at an exercise price equal to
the fair market value of Veritas common stock on the date of grant
("Initial Option Price").
a) These options will vest and become exercisable over a four-year
period, in 48 equal monthly installments. Except as otherwise
indicated in this agreement, the vested portion of such options
may be exercised at any time until the earlier of 90 days after
the termination of your employment or ten years after the grant of
such options. The unvested shares may be exercised early
coincident with entering into a company repurchase agreement
mirroring your vesting schedule. You should consult a tax advisor
concerning your income tax consequences before exercising any of
the options.
b) Notwithstanding any other provision of this Section 5 to the
contrary, upon "Involuntary Termination," "Termination without
Cause," or "Termination for Death or Disability," a portion of the
unvested options shall immediately vest as provided in Section 8
below.
c) Veritas shall register the shares issuable under the option on a
Form S-8 registration statement and shall keep such registration
statement in effect for the entire period the options remain
outstanding.
d) In order to assure the consistency of the goals of its executives
with its shareholders, Veritas is committed to providing
substantial stock option incentive to its executives. During your
first year of employment with Veritas, in the event that your
initial stock options are priced materially above the market (that
your options are "under water"), the Veritas board of directors
agrees to meet, to deliberate, and, if and as it deems
appropriate, to grant additional options.
6) Employment and Termination. Your employment with Veritas will be at-will
and may be terminated by you or by Veritas at any time for any reason as
follows:
a) You may terminate your employment upon written notice to the Board
of Directors at any time for "Good Reason," as defined below (an
"Involuntary Termination");
b) You may terminate your employment upon written notice to the Board
of Directors at any time in your discretion without Good Reason
("Voluntary Termination");
c) Veritas may terminate your employment upon written notice to you
at any time following a determination by two-thirds (2/3) vote of
the entire Board of Directors that there is "Cause," as defined
below, for such termination ("Termination for Cause");
d) Veritas may terminate your employment upon written notice to you
at any time in the sole discretion of the Board of Directors
without a determination that there is Cause for such termination
("Termination without Cause");
e) Your employment will automatically terminate upon your death or
upon your disability as determined by the Board of Directors
("Termination for Death or Disability"); provided that
"disability" shall mean your complete inability to perform your
job responsibilities for a period of 180 consecutive days or 180
days in the aggregate in any 12-month period.
7) Definitions. As used in this agreement, the following terms have the
following meanings:
a) "Good Reason" means (i) a material reduction in your duties that
is inconsistent with your position as President and Chief
Executive Officer of Veritas or a change in your reporting
relationship such
9
that you no longer report directly to the Board of Directors; (ii)
your no longer being President and Chief Executive Officer of
Veritas or, in the case of a Change in Control, of the surviving
entity or acquiror that results from any Change in Control; (iii)
any reduction in your base annual salary or target quarterly or
annual bonus (other than in connection with a general decrease in
the salary or target bonuses for all officers of Veritas) without
your consent; or (iv) material breach by Veritas of any of its
obligations hereunder after providing Veritas with written notice
and an opportunity to cure within seven days; (v) a requirement by
Veritas that you relocate your principal office to a facility more
than 50 miles from Veritas' current headquarters; or (vi) failure
of any successor to assume this agreement pursuant to Section
14(d) below.
b) "Cause" means (i) gross negligence or willful misconduct in the
performance of your duties to Veritas (other than as a result of a
disability) that has resulted or is likely to result in
substantial and material damage to Veritas, after a written demand
for substantial performance is delivered to you by the Board of
Directors which specifically identifies the manner in which the
Board believes you have not substantially performed your duties
and you have been provided with a reasonable opportunity, of not
less than 60 days, to cure any alleged gross negligence or willful
misconduct; (ii) commission of any act of fraud with respect to
Veritas; or (iii) conviction of a felony or a crime involving
moral turpitude either of which causes material harm to the
business and affairs of Veritas. No act or failure to act by you
shall be considered "willful" if done or omitted by you in good
faith with reasonable belief that your action or omission was in
the best interests of Veritas.
c) "Change in Control" means (i) The acquisition (other than from the
Company) by any person, entity or "group", within the meaning of
section 13(d) (3) or 14 (d) (2) of the Securities and Exchange Act
of 1934 (the "Exchange Act"), (excluding, for this purpose,
Veritas or its subsidiaries, (or any employee benefit plan of
Veritas or its subsidiaries which acquires beneficial ownership of
voting securities of Veritas) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 50%
or more of either the then outstanding shares of common stock or
the combined voting power of the Veritas' then outstanding voting
securities entitled to vote generally in the election of
directors; or (ii) Individuals who, as of the date hereof,
constitute the Board (the "Incumbent Board") cease for any reason
to constitute at least a majority of the Board, provided that any
person becoming a director subsequent to the date hereof whose
election, or nomination for election by Veritas' shareholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board (other than an election or
nomination of an individual whose initial assumption of the office
is in connection with an actual or threatened election contest
relating to the election of the directors of Veritas, as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under
the Exchange Act) shall be, for the purposes of this Agreement,
considered as though such person were a member of the Incumbent
Board; or (iii) Approval of the stockholders of Veritas of a
reorganization, merger or consolidation, in each case, with
respect to which persons who were the stockholders of Veritas
immediately prior to such reorganization, merger or consolidation
do not, immediately thereafter, own more than 50% of the combined
voting power entitled to vote generally in the election of
directors of the reorganized, merged or consolidated company's
then outstanding voting securities, or a liquidation or
dissolution of Veritas or of the sale of all or substantially all
of the assets of Veritas.
8) Separation Benefits. Upon termination of your employment with Veritas for
any reason, you will receive payment for all unpaid salary and vacation
accrued to the date of your termination of employment; and your benefits
will be continued under Veritas' then existing benefit plans and policies
for so long as provided under the terms of such plans and policies and as
required by applicable law. Under certain circumstances, subject to your
execution of a termination and general release agreement, you will also
be entitled to receive severance benefits as set forth below. Veritas'
termination and general release agreement will contain provisions
specifying that you will not compete with Veritas while you are receiving
such severance benefits, nor will you solicit employees for a period of
two years after any final payment, that neither you nor Veritas shall
disparage the other party, and that neither party shall have claims that
survive that agreement.
10
a) In the event of your Voluntary Termination or Termination for
Cause, you will not be entitled to any cash severance benefits or
additional vesting of shares of options.
b) In the event of your Involuntary Termination or Termination
without Cause within one year of the Commencement Date, you will
be entitled to
i) a severance payment equal to twelve months of your current
annual base salary plus full target bonus, payable over
twelve months in accordance with Veritas' normal payroll
practices with such payroll deductions and withholdings as
are required by law, provided, that you provide Veritas
with consulting services during such period after the date
of termination (the "CONSULTING SERVICES"); and
ii) accelerated vesting and exercisability of that portion of
your outstanding unvested options to purchase Veritas
common stock that would have vested within two years from
the date of the Involuntary Termination or Termination
without Cause, with all vested options exercisable for a
period of 90 days from the later of:
(1) the date of your Involuntary Termination or
Termination without Cause; or
(2) the date you cease providing Consulting Services to
Veritas.
c) In the event of your Involuntary Termination or Termination
without Cause within two years of the Commencement Date, you will
be entitled to:
i) a severance payment equal to six months of your current
annual base salary plus one-half of your target bonus,
payable over twelve months in accordance with Veritas's
normal payroll practices with such payroll deductions and
withholdings as are required by law, provided, that you
provide Veritas with Consulting Services; and
ii) accelerated vesting and exercisability of that portion of
your outstanding unvested options to purchase Veritas
common stock that would have vested within one year from
the Involuntary Termination or Termination without Cause,
with all vested options exercisable for a period of 90 days
from the later of:
(1) the date of your Involuntary Termination or
Termination without Cause; or
(2) the date you cease providing Consulting Services to
Veritas.
d) In the event of your Involuntary Termination or Termination
without Cause on or after two years of the Commencement Date, you
will not be entitled to any severance payments or accelerated
vesting of your outstanding unvested options.
e) In the event of your Involuntary Termination or Termination
without Cause within one year of a Change in Control, provided the
change of control occurs within two years of the Commencement
Date, you will be entitled to the following: a lump sum payment
equal to twelve months of your current annual base salary and full
target bonus (less applicable deductions and withholding) payable
within 30 days after the date of termination; and accelerated
vesting of fifty percent (50%) of your outstanding unvested
options to purchase Veritas common stock, with all vested options
exercisable for a period of 90 days from the date of your
Involuntary Termination or Termination without Cause. This section
8.e shall survive for twelve months beyond the term noted in
Section 13.
11
f) For the purpose of this agreement, Termination by Death or
Disability shall be treated as Involuntary Termination.
g) If your severance and other benefits provided for in this Section
8 constitute "parachute payments" within the meaning of Section
280G of the Code and, but for this subsection, would be subject to
the excise tax imposed by Section 4999 of the Internal Revenue
Code, then your severance and other benefits under this Section 8
will be payable, at your election, either in full or in such
lesser amount as would result, after taking into account the
applicable federal, state and local income taxes and the excise
tax imposed by Section 4999, in your receipt on an after-tax basis
of the greatest amount of severance and other benefits.
h) No payments due you hereunder shall be subject to mitigation or
offset.
9) Indemnification Agreement. Upon your commencement of employment with
Veritas, Veritas will enter into its standard form of indemnification
agreement for officers and directors (which can be viewed in our most
recent published proxy statement) to indemnify you against certain
liabilities you may incur as an officer or director of Veritas.
10) Confidential Information and Invention Assignment Agreement. Upon your
commencement of employment with Veritas, you will be required to sign its
standard form of Employee Agreement, a copy of which is attached to this
letter as Exhibit B, to protect Veritas' confidential information and
intellectual property.
11) No Solicitation. During the term of your employment with Veritas and for
two years thereafter, you will not, on behalf of yourself or any third
party, solicit or attempt to induce any employee of Veritas to terminate
his or her employment with Veritas.
12) Arbitration. The parties agree that any dispute regarding the
interpretation or enforcement of this agreement shall be decided by
confidential, final and binding arbitration conducted by Judicial
Arbitration and Mediation Services ("JAMS") under the then existing JAMS
rules rather than by litigation in court, trial by jury, administrative
proceeding or in any other forum. The filing fees and arbitrator's fees
and costs in such arbitration will be borne by Veritas. The parties will
be entitled to reasonable discovery of essential matters as determined by
the arbitrator. In the arbitration, the parties will be entitled to all
remedies that would have been available if the matter were litigated in a
court of law.
13) Term. This agreement shall be in effect upon the signing by both parties,
and shall expire two years after the commencement date, at which time
your employment with Veritas will be treated no less favorably than the
policies in effect at the time for other senior executives of Veritas.
14) Miscellaneous.
a) Authority to Enter into Agreement. Veritas represents that Xxxx
Xxxxxx, its Chairman of the Board, has due authority to execute
and deliver this agreement on behalf of Veritas.
b) Absence of Conflicts. You represent that upon the Commencement
Date your performance of your duties under this agreement will not
breach any other agreement as to which you are a party.
c) Attorneys Fees. If a legal action or other proceeding is brought
for enforcement of this agreement because of an alleged dispute,
breach, default, or misrepresentation in connection with any of
the provisions of this agreement, the prevailing party shall be
entitled to recover reasonable attorneys' fees and costs incurred,
both before and after judgment, in addition to any other relief to
which they may be entitled.
12
d) Successors. This agreement is binding on and may be enforced by
Veritas and its successors and assigns and is binding on and may
be enforced by you and your heirs and legal representatives. Any
successor to Veritas or substantially all of its business (whether
by purchase, merger, consolidation or otherwise) will in advance
assume in writing and be bound by all of Veritas's obligations
under this agreement.
e) Notices. Notices under this agreement must be in writing and will
be deemed to have been given when personally delivered or two days
after mailed by U.S. registered or certified mail, return receipt
requested and postage prepaid. Mailed notices to you will be
addressed to you at the home address which you have most recently
communicated to Veritas in writing. Notices to Veritas will be
addressed to its General Counsel at Veritas's corporate
headquarters.
f) Waiver. No provision of this agreement will be modified or waived
except in writing signed by you and an officer of Veritas duly
authorized by its Board of Directors. No waiver by either party of
any breach of this agreement by the other party will be considered
a waiver of any other breach of this agreement.
g) Entire Agreement. This agreement, including the attached exhibits,
represents the entire agreement between us concerning the subject
matter of your employment by Veritas.
h) Governing Law. This agreement will be governed by the laws of the
State of California without reference to conflict of laws
provisions.
Xxxx, we are very pleased to extend this offer of employment to you and look
forward to your joining Veritas as its President and Chief Executive Officer.
This offer of employment is effective through November 17, 2000, after which it
will expire. Please indicate your acceptance of the terms of this agreement by
signing in the place indicated below.
Very truly yours,
/s/ Xxxx Xxxxxx
---------------------------------
Xxxx Xxxxxx, Chairman and CEO
VERITAS Software Corporation
ACCEPTED:
/s/ Xxxx X. Xxxxx November 17, 2000
---------------------------------
Xxxx X. Xxxxx
Commencement Date: November 17, 2000
13
Exhibit A
VERITAS 2001 CHIEF EXECUTIVE OFFICER COMPENSATION PLAN
The 2001 CEO Annual Compensation Plan shall consist of two components, as
follows:
COMPONENT AMOUNT PAID
Base Salary $1,000,000 Regular payroll
EPS Bonus $800,000 Annually
----------
TOTAL $1,800,000
BASE SALARY
The Base Salary will be earned on a weekly basis. Additionally, the base salary
shall be the basis for calculating life and disability benefits (and any other
such benefits which are base salary driven) which shall be provided consistent
with the standard company benefits policy.
EPS BONUS
The EPS Bonus shall be earned by achieving the earnings per share specified in
the approved operating plan. Bonus shall be paid out in accordance with the
following plan:
PERFORMANCE % OF EPS BONUS
<25% 0
25% 50%
50% 100%
100% 100%
110% 150%
120% 250%
>120% 250%
Any intermediate achievement between levels will earn a proportional amount (for
example, earnings of 105% would earn 125% of bonus).
PAYMENTS
The CEO shall be responsible for assessing and recommending to the Compensation
Committee payment for the EPS Bonus. Payment for the EPS Bonus shall be made not
later than January 31, 2002.
ELIGIBILITY
In order to be eligible to receive a bonus, the individual must be employed by
Veritas at the time of payment.
DISCRETION OF THE BOARD OF DIRECTORS
Notwithstanding the above, the Company's board of directors, at its sole
discretion, may, for reasonable cause, modify or change this Plan or its
implementation at any time.
------------------------ ---------- ------------------------ ------
for Veritas Date Xxxx Xxxxx, President & CEO Date
14
EXHIBIT B
AGREEMENT CONCERNING
CERTAIN DUTIES OF VERITAS EMPLOYMENT:
INVENTIONS, TRADE SECRETS, AND DISCLOSURES
This EMPLOYEE AGREEMENT when signed below by me, an employee of VERITAS Software
Corporation ("VERITAS") is my agreement with VERITAS regarding inventions, trade
secrets, works of authorship, proprietary information, proprietary materials,
and other terms and conditions of employment (the "Agreement").
In consideration of my Employment or of my continued employment, with VERITAS, I
agree that:
1. Either during or after my employment with VERITAS, I will not disclose to
anyone outside of VERITAS, nor use in other than VERITAS' business,
except with the prior written permission of an officer of the
corporation, any invention, trade secret, work of authorship, proprietary
information or proprietary materials that relates in any manner to any
VERITAS actual or anticipated business, research, development, product,
device, or activity, or that is received in confidence by or for VERITAS
from any other person. "Proprietary Information" includes but is not
limited to inventions, marketing plans, product plans, business
strategies, financial information, forecasts, personnel information,
customer lists and any other nonpublic technical or business information
which I know or have reason to know VERITAS would like to treat as
confidential for any purpose, such as maintaining a competitive advantage
or avoiding undesirable publicity. Examples of "inventions" include, but
are not limited to, original works of authorship, formulas, processes,
computer programs, databases, trade secrets, mechanical and electronic
hardware, computer languages, user interfaces, documentation, marketing
and new product plans, production processes, advertising, packaging and
marketing techniques, and improvements to anything. Upon termination of
my employment with VERITAS, I will promptly deliver to VERITAS all
documents and materials of any nature pertaining to my work with VERITAS
and I will not take with me any documents or materials or copies thereof
containing any Proprietary Information.
2. I represent that my performance of all the terms of this Agreement and my
duties as an employee of VERITAS will not breach any Proprietary
Information, invention, assignment or similar agreement with any former
employer or other party. I represent that I will not bring with me to
VERITAS or use in the performance of my duties for VERITAS any documents
or materials of a former employer or any other person that are not
generally available to the public.
3. During my employment with VERITAS, I will not engage in any other
employment, occupation, consultation, or other activity relating to any
actual or anticipated business, research, development, product, service
or activity of VERITAS, or which otherwise conflicts with my obligations
to VERITAS, without first informing an executive corporate officer of
VERITAS about any such activity to ensure that all parties agree that no
conflict exists. If new conflicts arise with respect to my obligations to
VERITAS pursuant to Xxxxxxxxx 00 (x) of this Agreement, then VERITAS
agrees to advise me of those conflicts. The specific actions for
resolving these new conflicts will be agreed upon after I have been
advised of this conflict.
4. I hereby assign and agree to assign to VERITAS my entire right, title,
and interest in any Proprietary Information, invention, trade secret,
work of authorship, or proprietary materials hereafter made or conceived
solely by me or jointly with others and any associated patents, patent
applications, copyrights, trade secret rights, mask work rights, rights
of proprietary and other intellectual property rights which:
a. were developed while working for VERITAS in an executive,
managerial, planning, technical, research, engineering,
development, manufacturing, programming, sales, marketing, system
service, repair, or other capacity, using equipment, supplies,
facilities or trade secrets of VERITAS; and
15
b. relates in any manner at the time of conception or reduction to
practice to any VERITAS actual or anticipated business, research,
development, product, service, or activity, or is suggested by or
results from any task assigned to me or work performed by me for
or on behalf of VERITAS, and
c. was not developed entirely on my own time.
5. I have been notified and understand that the provisions of Section 4 do
not apply to any invention that qualifies fully under the provisions of
Section 2870 of the California Labor Code, which states as follows:
a. ANY PROVISIONS IN AN EMPLOYMENT AGREEMENT WHICH PROVIDE THAT AN
EMPLOYEE SHALL ASSIGN, OR OFFER TO ASSIGN, ANY OF HIS OR HER
RIGHTS IN AN INVENTION TO HIS OR HER EMPLOYER SHALL NOT APPLY TO
AN INVENTION THAT THE EMPLOYEE DEVELOPED ENTIRELY ON HIS OR HER
OWN TIME WITHOUT USING THE EMPLOYER'S EQUIPMENT, SUPPLIES,
FACILITIES, OR TRADE SECRET INFORMATION EXCEPT FOR THOSE
INVENTIONS THAT EITHER:
(i) RELATE AT THE TIME OF CONCEPTION OR REDUCTION TO PRACTICE
OF THE INVENTION TO THE EMPLOYER'S BUSINESS, OR ACTUAL OR
DEMONSTRABLY ANTICIPATED RESEARCH OR DEVELOPMENT OF THE
EMPLOYER; OR
(ii) RESULT FROM ANY WORK PERFORMED BY THE EMPLOYEE FOR THE
EMPLOYER.
b. TO THE EXTENT A PROVISION IN AN EMPLOYMENT AGREEMENT PURPORTS TO
REQUIRE AN EMPLOYEE TO ASSIGN AN INVENTION OTHERWISE EXCLUDED FROM
BEING REQUIRED TO BE ASSIGNED UNDER SUBDIVISION (a), THE PROVISION
IS AGAINST THE PUBLIC POLICY OF THIS STATE AND IS UNENFORCEABLE.
6. In connection with any Proprietary Information, invention, trade secret,
work of authorship and/or proprietary materials assigned or to be
assigned to VERITAS pursuant to Paragraph 4 of this Agreement:
a. I will, disclose promptly in writing all such Proprietary
Information, inventions, trade secrets, works of authorship, or
proprietary materials upon conception, creation, or my otherwise
becoming aware thereof to my immediate superior, with copies to
the Senior Vice President of Engineering and the legal department,
whether or not they are patentable or copyrightable or protectable
as trade secrets or mask works, that are made or conceived or
first reduced to practice or created by me, either alone or
jointly with others, during the period of my employment whether or
not in the course of my employment.
b. I will, at VERITAS' request, promptly execute a specific
irrevocable assignment of title to VERITAS, and do whatever is
deemed necessary or advisable by VERITAS to secure and maintain
for VERITAS a patent, copyrights, or other proprietary interest in
Proprietary Information, such invention, trade secret, work of
authorship, or other proprietary interest in such Proprietary
Information, invention, trade secret, work of authorship, or
proprietary materials, and with respect to any associated patents,
patent applications, copyrights, trade secret rights, mask work
rights, rights of priority and other intellectual property rights,
in the United States and in foreign countries both during and
after my employment with VERITAS.
c. I hereby irrevocably transfer and assign to VERITAS any and all
"Moral Rights" (as defined below) that I may have in or with
respect to any invention. I also hereby forever waive and agree
never to assert any and all Moral Rights I may have in or with
respect to any invention, even after termination of my work on
behalf of VERITAS. "Moral Rights" means any rights of paternity or
integrity, any right to claim authorship of any invention, to
object to any distortion, mutilation or other modification of, or
other derogatory action in relation to, any invention, whether or
not such would be prejudicial to my honor or reputation, and any
similar right, existing under judicial or statutory law of any
country in the world, or under any treaty, regardless of whether
or not such right is denominated or generally referred to as a
"moral right".
16
d. I acknowledge that any computer program, any programming
documentation, and any other work of authorship that falls within
the scope of sections (a) and (c) under paragraph 4 of this
Agreement is a "work made for hire," and that VERITAS owns all the
rights comprised in the copyrights for such work.
17
7. I agree to make and maintain adequate and current written records, in a
form specified by VERITAS, of all Proprietary Information inventions,
trade secrets, works of authorship, proprietary information, and
proprietary materials assigned or to be assigned to VERITAS pursuant to
paragraph 4 of this Agreement; and upon the termination of my employment
with VERITAS, I agree to surrender to VERITAS all such records and all
other tangible items and evidence relating thereto.
8. In further consideration of this Agreement, VERITAS hereby agrees that I
may use VERITAS facilities, equipment and other resources for work on
inventions and works of authorship, not coming within the provisions of
paragraph 4, so long as these activities do not impact my work schedule,
the work schedule of other employees, or otherwise amount to excessive
use of such resources. VERITAS recognizes that my professional
development and standing in the community of software developers is
enhanced by such activity.
9. I have attached (as Exhibit A hereto) a complete list of all inventions
and works of authorship, if any, patented or unpatented, including a
brief identification of all unpatented inventions and works of authorship
that I made prior to my employment at VERITAS and which are to be
excluded from assignment to VERITAS under this Agreement ("Prior
Products"). I hereby certify that I have no continuing obligations with
respect to assignment of such Prior Products to any previous employers,
nor do I claim any previous unpatented inventions within the scope of
this Agreement as my own, except those which I have listed below. I agree
to not use VERITAS' Proprietary Information proprietary inventions, or
works of authorship, or information in making future improvements or
revisions to these Prior Products, without the express written approval
of a corporate officer of VERITAS.
I hereby grant to VERITAS a non-exclusive, perpetual, irrevocable,
royalty-free, worldwide license, with rights to sublicense, to use
modify, copy, prepare derivative works of and distribute any VERITAS
products that contain all or any portion of such Prior Products(s). I
further understand that any improvements, whether patentable or not, made
on the listed inventions after commencement of my employment by VERITAS
are assigned or are to be assigned to VERITAS to the extent that such
improvements are covered by the provisions of paragraph 4 of this
Agreement.
10. During my employment with VERITAS, I may add an invention to the
invention list described in paragraph 9 in the following way:
a. I shall provide, in writing, a brief description and title of the
new invention to a corporate officer of VERITAS. This description
is hereafter called the NEW INVENTION NOTICE.
b. A review period shall be provided for a new invention. The review
period shall start on the business day following the receipt of a
NEW INVENTION NOTICE by a VERITAS corporate officer. This period
is hereafter called the NEW INVENTION REVIEW PERIOD.
c. During the NEW INVENTION REVIEW PERIOD, VERITAS may ask questions,
in writing, with regard to the new invention and the provisions of
paragraph 3. I agree to respond, in writing, to all such
questions. In addition, I agree that any delays introduced by my
response shall be added to the length of the NEW INVENTION REVIEW
PERIOD.
d. If a new invention comes within the provisions of paragraph 3, and
VERITAS provides written notice thereof, along with an
explanation, to me during the review period, then the new
invention shall not be added to the list of inventions or works of
authorship described by paragraph 7. If no such written notice
regarding a new invention is received within thirty (30) days of
the NEW INVENTION NOTICE, then the new invention or work of
authorship shall be excluded from assignment to VERITAS under this
Agreement.
11. I understand that VERITAS, from time to time, may have agreements with
other persons, companies or with the United States Government or agencies
thereof which impose obligations or restrictions on VERITAS regarding
Proprietary Information inventions, trade secrets, works of authorship,
and proprietary materials made during the course of work under such
agreements or regarding the confidential nature of such work. I agree to
be bound by all such obligations and any applicable United States laws or
regulations.
18
12. I hereby authorize VERITAS to notify others, including but not limited to
customers of VERITAS, or my future employers, of the terms of this
Agreement and my responsibilities hereunder.
13. In the event of any violation of this Agreement by me, and in addition to
any relief or remedies to which VERITAS is entitled, I agree that VERITAS
shall have the right to an immediate injunction, and shall have the right
to recover the reasonable attorney's fees and court costs expended in
connection with any litigation instituted to enforce this Agreement. I
agree that any dispute in the meaning, effect or validity of this
Agreement shall be resolved in accordance with the laws of the State of
California without regard to the conflict of laws provisions thereof. I
further agree that if one or more provisions of this Agreement are held
to be unenforceable under applicable California law, such provision(s)
shall be excluded from this Agreement and the balance of the Agreement
shall be interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms.
14. "VERITAS" as used in this Agreement includes any and all subsidiaries and
affiliated companies of VERITAS Software Corporation, and this Agreement
shall inure to the benefit of any successors in interest or of any
assignees of VERITAS.
15. During the term of my employment and for one (1) year thereafter, I will
not encourage or solicit any employee of VERITAS to leave VERITAS for any
reason. However, this obligation shall not affect any responsibility I
may have as an employee of VERITAS with respect to the bona fide hiring
and firing of Company personnel.
16. Any dispute or claim, whether based on contract, tort, or otherwise,
relating to or arising out of my employment by VERITAS shall be submitted
by the parties to arbitration by the American Arbitration Association in
the City of San Francisco, State of California and shall be subject to
final and binding arbitration. The arbitrator shall have jurisdiction to
determine any such claim, and may grant any relief authorized by law. The
award rendered by the arbitrator shall include costs of arbitration,
reasonable attorney's fees and reasonable costs for expert and other
witnesses; provided however that nothing in this Agreement shall be
deemed as preventing either party from seeking injunctive relief (or any
other provisional remedy) from the courts as necessary. The parties shall
be entitled to discovery as provided in the Code of Civil Procedure of
the State of California, whether or not the California Arbitration Act is
deemed to apply to said provision.
17. I understand that this Agreement does not constitute a contract of
employment or obligate VERITAS to employ me for any stated period of
time. I understand that my employment with VERITAS is at will and may be
terminated by VERITAS at any time and for any reason, with or without
cause.
18. I acknowledge receipt of a copy of this Agreement and agree that with
respect to the subject matter hereof, it is my entire agreement with
VERITAS, superseding any previous oral or written communications,
representations, undertaking, or agreements with VERITAS or any official
or representative thereof. This agreement may not be modified or changed
except in a writing signed by the employee and an officer of the
corporation.
IN WITNESS WHEREOF, the parties have entered into this Agreement on this ____
day of _________, 20___.
VERITAS SOFTWARE CORPORATION EMPLOYEE
BY:
--------------------------------- -----------------------------------
(SIGNATURE)
ITS:
-------------------------------- -----------------------------------
(PRINT NAME)
19
EXHIBIT A
(AS REFERENCED IN PARAGRAPH 9)
DESCRIPTION OF INVENTIONS
BEFORE VERITAS SOFTWARE EMPLOYMENT
TITLE OF DOCUMENT DATE OF DOCUMENT NAME OF WITNESS
------------------------------------- ----------------------- ---------------------------
------------------------------------- ----------------------- ---------------------------
------------------------------------- ----------------------- ---------------------------
------------------------------------- ----------------------- ---------------------------
------------------------------------- ----------------------- ---------------------------
------------------------------------- ----------------------- ---------------------------
------------------------------------- ----------------------- ---------------------------
------------------------------------- ----------------------- ---------------------------
(IF "NONE", PLEASE SO STATE)
VERITAS SOFTWARE CORPORATION EMPLOYEE
BY:
--------------------------------- -----------------------------------
(SIGNATURE)
ITS:
-------------------------------- -----------------------------------
(PRINT NAME)
-----------------------------------
(DATE)
