EXHIBIT 4.04
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE, AND MAY BE
OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT
PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS OR IF THE COMPANY IS PROVIDED AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION AND
QUALIFICATION UNDER FEDERAL AND STATE SECURITIES LAWS IS NOT REQUIRED.
JAREVA TECHNOLOGIES, INC.
STOCK OPTION AGREEMENT
1. NOTICE OF STOCK OPTION GRANT. You, the Optionee named below, have been
granted an Option to purchase Common Stock ("COMMON STOCK") of Jareva
Technologies, Inc., a Delaware corporation (the "COMPANY"), subject to the terms
and conditions of this agreement, including Section 2, "Terms and Conditions",
following the signature page (the "STOCK OPTION AGREEMENT"). This Stock Option
Agreement sets forth the basic terms of your Option and your rights with respect
to the shares of Common Stock subject to the Option (the "SHARES").
1.1 DATE OF GRANT. JANUARY __, 2003
1.2 OPTIONEE'S NAME. ____________
1.3 OPTIONEE'S SOCIAL SECURITY NUMBER. __________
1.4 TYPE OF OPTION. NONSTATUTORY STOCK OPTION
1.5 NUMBER OF SHARES SUBJECT TO OPTION. ____________
1.6 PURCHASE PRICE PER SHARE. ___________
1.7 TIME OF EXERCISE. Anytime during Term of Option (see Section
2.2) and after Date of Grant, subject to Section 2.1(iii).
1.8 VESTING. Subject to Section 2.1(iii), the Option shall be
fully vested as of the Date of Grant and shall become exercisable in accordance
with Section 2.1(iii).
BY SIGNING BELOW, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS STOCK
OPTION AGREEMENT, INCLUDING THE ATTACHED TERMS AND CONDITIONS.
Dated: January __, 2003
OPTIONEE:
____________________________________________
Xxxx Xxxxxx
COMPANY:
JAREVA TECHNOLOGIES, INC.
____________________________________________
By: Xxxxxxxx Xxxxxxxx
Its: CEO
2. TERMS AND CONDITIONS.
2.1 CONDITIONS TO OPTION.
(i) MERGER. The grant of your Option is subject to the
closing of the merger (the "MERGER") of Jaguar Acquisition Corp., a
Delaware corporation that is a wholly owned subsidiary of Parent
("SUB"), with and into the Company in a reverse triangular merger, with
the Company to be the surviving corporation (the "SURVIVING
CORPORATION") of the Merger and to become a wholly owned subsidiary of
VERITAS Operating Corporation, a Delaware corporation ("PARENT"), as a
result of the Merger pursuant to the terms and conditions of that
certain Agreement and Plan of Merger dated as of December 19, 2002 (the
"MERGER AGREEMENT"), by and among VERITAS Software Corporation, a
Delaware corporation and the parent corporation of Parent ("VERITAS"),
Parent, Company and Sub. This Option will be null and void if the
Merger does not close on or before January 31, 2003. Upon the effective
time of the Merger (as defined in the Merger Agreement) (the "EFFECTIVE
TIME"), this Option will be assumed by VERITAS (which will be
substituted for the Company hereunder) and converted into an option to
purchase shares of VERITAS Common Stock as determined in accordance
with the applicable provisions of the Merger Agreement. All of the
terms of the Option will otherwise be unchanged by the assumption and
conversion and will continue in effect after the Effective Time.
(ii) STOCKHOLDER APPROVAL. The grant of your Option shall
also be subject to and conditioned on approval of the stockholders of
the Company prior to the Effective Time if necessary to avoid the
treatment of the Option as a parachute payment under federal income tax
laws.
(iii) RELEASE. The grant of this Option is subject to your
execution and delivery of a general release of claims, in form and
substance reasonably acceptable to VERITAS, which release has become
effective and irrevocable. Notwithstanding any provisions of this Stock
Option Agreement or the Merger Agreement to the contrary, you will not
be entitled to exercise this Option, and the shares subject to this
Option will not become vested, unless and until such release becomes
effective and irrevocable.
2.2 TERM OF OPTION. Your Option will expire on the later of the
date that is (i) thirty (30) days following receipt by you or Xxxx
Xxxxx of a notification (the "Notification") in the manner specified
below that VERITAS has filed the Form S-8 (as defined in the Merger
Agreement) with the Securities and Exchange Commission, and the Form
S-8 has been declared effective, and (ii) three (3) months from the
Effective Time. The Notification shall be considered received if
delivered via Federal Express, marked to require a recipient's
signature, to either you and/or Xxxx Xxxxx as follows:
if to you, at: [Intentionally omitted]
and if to Xxxx Xxxxx, at: c/o Law Offices of Pilibos White & Pilibos
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn. Ms. Xxxx Xxxxx
Telephone: (000) 000-0000
and receipt of such Notification shall have been acknowledged by
signature to Federal Express by or on behalf of either or both of you
and Xxxx Xxxxx.
2.3 EXERCISE OF OPTION.
(i) LEGALITY OF INITIAL ISSUANCE. No Shares shall be
issued upon the exercise of this Option unless and until the Company
has determined that:
(a) Any actions required to register the Shares under the
U.S. Securities Act of 1933, as amended (the "SECURITIES ACT"), or
to perfect an exemption from the registration requirements thereof
have been taken;
(b) Any applicable listing requirement of any stock
exchange on which the Common Stock is listed has been satisfied;
and
(c) Any other applicable provision of U.S. federal or
state has been satisfied;
provided, however, that following the Effective Time of the
Merger, VERITAS shall use its diligent good faith efforts to cause
the Shares subject to the Option upon its conversion and
assumption by VERITAS to be registered on a registration statement
on Form S-8 (or successor form) promulgated by the Securities and
Exchange Commission under the Securities Act, as soon as
practicable after the Effective Time (after taking into account
VERITAS' proposed restatement of certain of its financial
statements after the Effective Time and the impact of such
restatement on VERITAS' ability to file and have declared
effective registration statements under the Securities Act) and
will exercise its commercially reasonable efforts to maintain the
effectiveness of such registration statement for so long as this
Option remains outstanding and will reserve a sufficient number of
Shares for issuance upon exercise of this Option.
(ii) METHOD OF EXERCISE. To exercise your Option, you must
give written notice to the Company pursuant to Section 2.13. The notice
shall specify the election to exercise this Option, the number of
shares for which it is being exercised, and the form of payment. The
person exercising the Option shall sign the notice. If someone else
wants to exercise your Option as your representative or after your
death, that person must prove to the Company's satisfaction that he or
she is entitled to do so. The notice of exercise
must be accompanied by payment in a form permissible under Section
2.3(iii) for the full amount of the Purchase Price.
(iii) FORM OF PAYMENT. Payment of the aggregate Purchase
Price for the Shares you are purchasing upon exercise of the Option may
be made in one (or in a combination) of the following forms:
(a) Your personal check, a cashier's check or a money
order.
(b) Shares of Common Stock which you have owned for six
months and which are surrendered to the Company or the ownership of
which is attested to by you. The value of such Common Stock, determined
as of the effective date of the Option exercise, will be applied to the
Purchase Price.
(c) To the extent that a public market for the Shares
subject to the Option exists as determined by the Company, by delivery
(on a form approved by VERITAS) of either an irrevocable direction to a
securities broker to sell the Common Stock and to deliver all or part
of the sale proceeds to the Company in payment of the aggregate
Purchase Price, or an irrevocable direction to a securities broker or
lender to pledge Shares, as security for a loan, and to deliver all or
art of the loan proceeds to the Company in payment of the aggregate
Purchase Price, in each case to the extent consistent with applicable
law.
(d) Any other form of legal consideration approved by the
Board.
(iv) WITHHOLDING TAXES. You will not be allowed to
exercise your Option unless you make acceptable arrangements to pay any
withholding or other taxes that may be due as a result of the exercise
of the Option or the sale of Shares acquired upon exercise of your
Option. You may satisfy all or part of the withholding tax obligations
by having the Company withhold all or a portion of any Shares that
otherwise would be issued or by surrendering all or a portion of any
shares of Common Stock previously acquired. Shares of Common Stock that
are withheld or surrendered pursuant hereto shall be valued at their
fair market value on the date when taxes otherwise would be withheld in
cash. In no event may you have Shares withheld that would otherwise be
issued to you in excess of the number necessary to satisfy the legally
required minimum tax withholding.
2.4 REPRESENTATIONS OF HOLDER. You hereby represent and warrant to
the Company as follows:
(i) By acceptance hereof, you acknowledge that this
Option and the shares of Common Stock to be issued upon exercise hereof
are being acquired solely for your own account and not as a nominee for
any other party, and for investment, and that you will not offer, sell
or otherwise dispose of this Option or any shares of Common Stock to be
issued upon exercise hereof except under circumstances that will not
result in a violation of the Securities Act or any applicable state
securities laws.
(ii) You have a preexisting business relationship with the
Company and are familiar with the business, properties, prospects and
financial condition of the Company.
(iii) You are experienced in evaluating and investing in
securities of companies in the development stage and acknowledge that
you are able to fend for yourself, can bear the economic risk of this
investment, and have such knowledge and experience in financial and
business matters that you are capable of evaluating the merits and
risks of the investment in the Common Stock.
(iv) You understand that the Common Stock issuable upon
exercise of the Option may not be sold, transferred or otherwise
disposed of without registration under the Securities Act or an
exemption therefrom, and that in the absence of an effective
registration statement covering the Common Stock or an available
exemption from registration under the Securities Act, the Common Stock
must be held indefinitely.
(v) If applicable, all shares of Common Stock issued upon
exercise hereof may be stamped or imprinted with a legend in
substantially the following form (in addition to any legend required by
state securities laws):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF
ANY STATE, AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED,
HYPOTHECATED, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES
LAWS, OR SOME EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT
AND LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR LAWS, OR UNLESS SOLD
PURSUANT TO RULE 144 UNDER SUCH ACT.
2.5 NO FRACTIONAL SHARES OR SCRIP. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this Option,
but shall either be paid in cash at the fair market value thereof or shall be
rounded down to the nearest Share, as determined by the Board.
2.6 TRANSFER OF OPTION. Prior to your death, only you may exercise
your Option. You have no right to transfer or assign your Option. For instance,
you may not sell your Option or use it as security for a loan. If you attempt to
do any of these things, your Option will immediately become invalid. You may,
however, dispose of your Option in your will. Regardless of any marital property
settlement agreement, the Company is not obligated to honor a notice of exercise
from your spouse or former spouse, nor is the Company obligated to recognize
such individual's interest in your Option in any other way.
2.7 NO RETENTION RIGHTS. Your Option does not give you the right
to be retained by the Company (or any subsidiary) in any capacity.
2.8 STOCKHOLDER RIGHTS. You, or your estate or heirs, have no
rights as a stockholder of the Company with respect to the Shares until you
become entitled to receive the Shares by delivering to the Company an option
exercise notice and paying the Purchase Price.
2.9 ADJUSTMENTS UPON CHANGES IN COMMON STOCK.
(i) GENERAL. In the event of a subdivision of the
outstanding Common Stock, a declaration of a dividend payable in Common
Stock, a combination or consolidation of the outstanding Common Stock
into a lesser number of shares, a recapitalization, a reclassification
of the outstanding Common Stock or such other event as the Board may
determine necessitates an adjustment be made, the number of Shares of
Common Stock covered by the Option and the Purchase Price of each Share
subject to the Option shall be proportionately adjusted, subject to any
required action by the Board, or the stockholders and compliance with
applicable securities laws; provided, however, that fractions of a
Share shall not be issued but shall either be paid in cash at the fair
market value thereof or shall be rounded down to the nearest Share, as
determined by the Board; and provided, further, that the Purchase Price
of the Option may not be decreased to below the par value of the
Shares.
(ii) MERGER, CONSOLIDATION OR OTHER REORGANIZATION. If the
Company is a party to a merger, consolidation or other corporate
reorganization (other than the Merger), the Option shall be subject to
the terms and conditions of the merger, consolidation or reorganization
agreement.
(iii) RESERVATION OF RIGHTS. Except as set forth in this
Stock Option Agreement, you shall have no rights by reason of (a) any
subdivision or consolidation of shares of Company stock of any class,
(b) the payment of any dividend by the Company, or (c) any other
increase or decrease in the number of shares of Company stock of any
class. Except as set forth in this Stock Option Agreement, any issuance
by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number
of Shares subject to the Option or the Purchase Price under the Option.
The grant of the Option shall not affect in any way the right or power
of the Company to make adjustments, reclassifications, reorganizations
or changes of its capital or business structure, to merge, consolidate
or reorganize or to dissolve or liquidate or sell, transfer or
otherwise dispose of all or any part of its business, assets or
securities.
2.10 APPLICABLE LAW. This Stock Option Agreement will be
interpreted and enforced under the laws of the State of California.
2.11 INTEGRATION. This Stock Option Agreement and the Merger
Agreement constitute the entire understanding between you and the Company
regarding your Option. Any other agreements, commitments or negotiations
concerning your Option are superseded.
2.12 NOTICE. Any notice required by the terms of the Stock Option
Agreement shall be given in writing. It shall be deemed effective upon (i)
personal delivery, (ii) deposit with the United States Postal Services, by
registered or certified mail, with postage and fees prepaid, or
(iii) deposit with Federal Express Corporation, with shipping charges prepaid.
Notice shall be addressed to the Company at its principal executive offices and
to you at the address that you have most recently provided to the Company in
accordance with this Section 2.12.
BY SIGNING THIS STOCK OPTION AGREEMENT, YOU AGREE TO ALL OF THE TERMS AND
CONDITIONS DESCRIBED ABOVE.
