EXHIBIT 10.05
FORM OF
VERITAS SOFTWARE CORPORATION
RSU AWARD AGREEMENT
RECITALS
A. The Board has adopted the Plan for the purpose of retaining
the services of selected Employees and consultants and other independent
advisors who provide services to the Corporation (or any Parent or Subsidiary).
B. Participant is to render valuable services to the Corporation
(or a Parent or Subsidiary), and this Agreement is executed pursuant to, and is
intended to carry out the purposes of, the Plan in connection with the
Corporation's issuance of shares of Common Stock to the Participant under the
Stock Issuance Program.
C. All capitalized terms in this Agreement shall have the meaning
assigned to them in the attached Appendix A.
NOW, THEREFORE, it is hereby agreed as follows:
1. GRANT OF RESTRICTED STOCK UNITS. The Corporation hereby awards
to the Participant, as of the Award Date, Restricted Stock Units under the Plan.
Each Restricted Stock Unit represents the right to receive one share of Common
Stock on the vesting date of that unit. The number of shares of Common Stock
subject to the awarded Restricted Stock Units, the applicable vesting schedule
for the Restricted Stock Unit and the underlying shares, the dates on which
those vested shares shall be issued to Participant and the remaining terms and
conditions governing the award (the "Award") shall be as set forth in this
Agreement.
AWARD SUMMARY
Award Date: ______________________, 200__
Number of Shares
Subject to Award: ______________ shares of Common Stock (the "Shares")
Vesting Schedule: The Shares shall vest upon the Participant's
continuation of Service through the _________
anniversary of the Award Date; PROVIDED, HOWEVER,
that if the Award is designated as a Performance
Award in attached Appendix B, the Shares shall vest
only upon the Participant's continuation in Service
through the date or dates the performance milestones
set forth in attached
Appendix B are attained. However, one or more Shares
may be subject to accelerated vesting to the extent
(if any) specified in attached Appendix C
Issuance Schedule The Shares in which the Participant vests in
accordance with the foregoing Vesting Schedule will
be issuable upon vesting. However, the actual number
of vested Shares to be issued on each issue date
will be subject to the automatic Share withholding
provisions of Paragraph 6 pursuant to which the
applicable Withholding Taxes are to be collected.
2. LIMITED TRANSFERABILITY. Prior to actual receipt of the Shares
which vest hereunder, the Participant may not transfer any interest in the Award
or the underlying Shares, except pursuant to a domestic relations order
governing the division of marital property. Any Shares which vest hereunder but
which otherwise remain unissued at the time of the Participant's death may be
transferred pursuant to the provisions of the Participant's will or the laws of
inheritance or to the Participant's designated beneficiary or beneficiaries of
this Award. The Participant may make such a beneficiary designation at any time
by filing the appropriate form with the Plan Administrator or its designate.
3. CESSATION OF SERVICE. Except to the extent (if any) provided
in attached Appendix C, should the Participant cease Service for any reason
prior to vesting in one or more Shares subject to this Award, then the Award
will be immediately cancelled with respect to those unvested Shares, the number
of Restricted Stock Units will be reduced accordingly and the Participant shall
cease to have any right or entitlement to receive any Shares under those
cancelled units.
4. CHANGE OF CONTROL.
(a) Any Restricted Stock Units subject to this Award at the
time of a Change in Control may be assumed by the successor entity or otherwise
continued in full force and effect or may be replaced with a cash incentive
program of the successor entity which preserves the Fair Market Value of any
unvested shares of Common Stock subject to the Award at the time of the Change
in Control and provides for subsequent payout of that value in accordance with
the vesting schedule applicable to the Award. Except to the extent (if any)
provided in attached Appendix C, no accelerated vesting of the Restricted Stock
Units shall occur in the event of such assumption or continuation of the Award
or such replacement of the Award with a cash incentive program
(b) In the event the Award is assumed or otherwise continued
in effect, the Restricted Stock Units subject to the Award will be adjusted
immediately after the consummation of the Change in Control so as to apply to
the number and class of securities into which the Shares subject to those units
immediately prior to the Change in Control would have been converted in
consummation of that Change in Control had those Shares actually been issued and
outstanding at that time. To the extent the actual holders of the outstanding
Common Stock receive cash consideration for their Common Stock in consummation
of the Change in Control, the successor corporation may, in connection with the
assumption or continuation of the Restricted Stock Units subject to the Award at
that time, substitute one or more shares of its own
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common stock with a fair market value equivalent to the cash consideration paid
per share of Common Stock in the Change in Control transaction.
(c) If the Restricted Stock Units subject to this Award at
the time of the Change in Control are not so assumed or otherwise continued in
effect or replaced with a cash incentive program under Paragraph 4(a), then
those units will vest immediately prior to the closing of the Change in Control.
The Shares subject to those vested units will be issued immediately upon such
vesting (or otherwise converted into the right to receive the same consideration
per share of Common Stock payable to the other stockholders of the Corporation
in consummation of that Change in Control), subject to the satisfaction of the
applicable Withholding Taxes pursuant to the Share withholding provisions of
Paragraph 6.
(d) This Agreement shall not in any way affect the right of
the Corporation to adjust, reclassify, reorganize or otherwise change its
capital or business structure or to merge, consolidate, dissolve, liquidate or
sell or transfer all or any part of its business or assets.
5. ADJUSTMENT IN SHARES. Should any change be made to the Common
Stock by reason of any stock split, stock dividend, recapitalization,
combination of shares, exchange of shares or other change affecting the
outstanding Common Stock as a class without the Corporation's receipt of
consideration, appropriate adjustments shall be made to the total number and/or
class of securities issuable pursuant to this Award in order to reflect such
change and thereby preclude a dilution or enlargement of benefits hereunder.
6. ISSUANCE OF SHARES OF COMMON STOCK.
(a) As soon as practicable following the applicable vesting
date of any portion of the Award, the Corporation shall issue to or on behalf of
the Participant a certificate (which may be in electronic form) for the
applicable number of underlying shares of Common Stock, subject, however, to the
Share withholding provisions of Paragraph 6(b) pursuant to which the applicable
Withholding Taxes are to be collected.
(b) On each date vested Shares are to be issued hereunder to
Participant hereunder, the Corporation shall automatically withhold a portion of
those vested Shares with a Fair Market Value (measured as of the vesting date)
equal to the amount of the applicable Withholding Taxes; PROVIDED, HOWEVER, that
the amount of the Shares so withheld shall not exceed the amount necessary to
satisfy the Corporation`s required tax withholding obligations using the minimum
statutory withholding rates for federal and state tax purposes, including
payroll taxes, that are applicable to supplemental taxable income.
(c) In no event will fractional shares be issued.
(d) The holder of this Award shall not have any stockholder
rights, including voting rights, with respect to the Shares subject to the Award
until the Participant becomes the record holder of those Shares following their
actual issuance upon the satisfaction of the applicable Withholding Taxes.
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7. COMPLIANCE WITH LAWS AND REGULATIONS.
(a) The issuance of shares of Common Stock pursuant to the
Award shall be subject to compliance by the Corporation and Participant with all
applicable requirements of law relating thereto and with all applicable
regulations of any stock exchange (or the Nasdaq National Market, if applicable)
on which the Common Stock may be listed for trading at the time of such
issuance.
(b) The inability of the Corporation to obtain approval from
any regulatory body having authority deemed by the Corporation to be necessary
to the lawful issuance of any Common Stock hereby shall relieve the Corporation
of any liability with respect to the non-issuance of the Common Stock as to
which such approval shall not have been obtained. The Corporation, however,
shall use its best efforts to obtain all such approvals.
8. SUCCESSORS AND ASSIGNS. Except to the extent otherwise
provided in this Agreement, the provisions of this Agreement shall inure to the
benefit of, and be binding upon, the Corporation and its successors and assigns
and Participant, Participant's assigns, the legal representatives, heirs and
legatees of Participant's estate and any beneficiaries of the Award designated
by Participant.
9. NOTICES. Any notice required to be given or delivered to the
Corporation under the terms of this Agreement shall be in writing and addressed
to the Corporation 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 Participant's signature line on this
Agreement. All notices shall be deemed effective upon personal delivery or upon
deposit in the U.S. mail, postage prepaid and properly addressed to the party to
be notified.
10. CONSTRUCTION. This Agreement and the Award evidenced hereby
are made and granted pursuant to the Plan and are in all respects limited by and
subject to the terms of the Plan. All decisions of the Plan Administrator with
respect to any question or issue arising under the Plan or this Agreement shall
be conclusive and binding on all persons having an interest in the Award.
11. GOVERNING LAW. The interpretation, performance and enforcement
of this Agreement shall be governed by the laws of the State of California
without resort to that State's conflict-of-laws rules.
12. EXCESS SHARES. If the shares of Common Stock covered by this
Agreement exceed, as of the Award Date, the number of shares of Common Stock
which may without stockholder approval be issued under the Plan, then the Award
shall be void with respect to those excess shares, unless stockholder approval
of an amendment sufficiently increasing the number of shares of Common Stock
issuable under the Plan is obtained in accordance with the provisions of the
Plan.
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13. EMPLOYMENT AT WILL. Nothing in this Agreement or in the Plan
shall confer upon Participant any right to continue in Service for any period of
specific duration or interfere with or otherwise restrict in any way the rights
of the Corporation (or any Parent or Subsidiary employing or retaining
Participant) or of Participant, which rights are hereby expressly reserved by
each, to terminate Participant's Service at any time for any reason, with or
without cause.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first indicated above.
VERITAS SOFTWARE CORPORATION
By: ___________________________
Title: ___________________________
Address: ___________________________
___________________________
PARTICIPANT
Signature: _________________________
Address: ___________________________
___________________________
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APPENDIX A
DEFINITIONS
The following definitions shall be in effect under the Agreement:
A. AGREEMENT shall mean this Restricted Stock Unit Issuance
Agreement.
B. AWARD shall mean the award of restricted stock units made to
the Participant pursuant to the terms of this Agreement.
C. AWARD DATE shall mean the date the restricted stock units are
awarded to Participant pursuant to the Agreement and shall be the date indicated
in Paragraph 1 of the Agreement.
D. BOARD shall mean the Corporation's Board of Directors.
E. CHANGE IN CONTROL shall mean a change in ownership or control
of the Corporation effected through any of the following transactions:
(i) a merger, consolidation or other reorganization approved
by the Corporation's stockholders, unless securities representing more
than fifty percent (50%) of the total combined voting power of the voting
securities of the successor corporation are immediately thereafter
beneficially owned, directly or indirectly and in substantially the same
proportion, by the persons who beneficially owned the Corporation's
outstanding voting securities immediately prior to such transaction, or
(ii) the sale, transfer or other disposition of all or
substantially all of the Corporation's assets in complete liquidation or
dissolution of the Corporation, or
(iii) any transaction or series of related transactions
pursuant to which any person or any group of persons comprising a "group"
within the meaning of Rule 13d-5(b)(1) under the 1934 Act (other than the
Corporation or a person that, prior to such transaction or series of
related transactions, directly or indirectly controls, is controlled by or
is under common control with, the Corporation) becomes directly or
indirectly the beneficial owner (within the meaning of Rule 13d-3 under
the 1934 Act) of securities possessing (or convertible into or exercisable
for securities possessing) more than fifty percent (50%) of the total
combined voting power of the Corporation's securities
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outstanding immediately after the consummation of such transaction or
series of related transactions, whether such transaction involves a direct
issuance from the Corporation or the acquisition of outstanding securities
held by one or more of the Corporation's stockholders.
F. CODE shall mean the Internal Revenue Code of 1986, as amended.
G. COMMON STOCK shall mean shares of the Corporation's common
stock.
H. CORPORATION shall mean VERITAS Software Corporation, a
Delaware corporation, and any successor corporation to all or substantially all
of the assets or voting stock of VERITAS Software Corporation which shall by
appropriate action adopt the Plan.
I. EMPLOYEE shall mean an individual who is in the employ of the
Corporation (or any Parent or Subsidiary), subject to the control and direction
of the employer entity as to both the work to be performed and the manner and
method of performance.
J. FAIR MARKET VALUE per share of Common Stock on any relevant
date shall be determined in accordance with the following provisions:
(i) If the Common Stock is at the time traded on the Nasdaq
National Market, then the Fair Market Value shall be the closing selling
price per share of Common Stock at the close of regular hours trading on
the Nasdaq National Market on the date in question, as such price is
reported by the National Association of Securities Dealers. If there is no
closing selling price for the Common Stock on the date in question, then
the Fair Market Value shall be the closing selling price at the close of
regular hours trading on the last preceding date for which such quotation
exists.
(ii) If the Common Stock is at the time listed on any Stock
Exchange, then the Fair Market Value shall be the closing selling price
per share of Common Stock at the close of regular hours trading on the
date in question on the Stock Exchange determined by the Plan
Administrator to be the primary market for the Common Stock, as such price
is officially quoted in the composite tape of transactions on such
exchange. If there is no closing selling price for the Common Stock on the
date in question, then the Fair Market Value shall be the closing selling
price at the close of regular trading hours on the last preceding date for
which such quotation exists.
K. PARTICIPANT shall mean the person to whom the Award is made
pursuant to the Agreement.
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L. PARENT shall mean any corporation (other than the Corporation)
in an unbroken chain of corporations ending with the Corporation, provided each
corporation in the unbroken chain (other than the Corporation) owns, at the time
of the determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
M. PLAN shall mean the Corporation's 2003 Stock Incentive Plan,
as amended from time to time..
N. PLAN ADMINISTRATOR shall mean either the Board or a committee
of the Board acting in its capacity as administrator of the Plan.
O. SERVICE shall mean the Participant's performance of services
for the Corporation (or any Parent or Subsidiary) in the capacity of an
Employee, a non-employee member of the board of directors or a consultant or
independent advisor. For purposes of this Agreement, Participant shall be deemed
to cease Service immediately upon the occurrence of the either of the following
events: (i) Participant no longer performs services in any of the foregoing
capacities for the Corporation (or any Parent or Subsidiary) or (ii) the entity
for which Participant performs such services ceases to remain a Parent or
Subsidiary of the Corporation, even though Participant may subsequently continue
to perform services for that entity. Service shall not be deemed to cease during
a period of military leave, sick leave or other personal leave approved by the
Corporation; PROVIDED, HOWEVER, that except to the extent otherwise required by
law or expressly authorized by the Plan Administrator, no Service credit shall
be given for vesting purposes for any period the Participant is on a leave of
absence.
P. STOCK EXCHANGE shall mean the American Stock Exchange or the
New York Stock Exchange.
Q. SUBSIDIARY shall mean any corporation (other than the
Corporation) in an unbroken chain of corporations beginning with the
Corporation, provided each corporation (other than the last corporation) in the
unbroken chain owns, at the time of the determination, stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one of the other corporations in such chain.
R. WITHHOLDING TAXES shall mean the federal, state and local
income taxes and the employee portion of the federal, state and local employment
taxes required to be withheld by the Corporation in connection with the issuance
of the shares of Common Stock which vest under of the Award.
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APPENDIX B
VESTING SCHEDULE FOR PERFORMANCE AWARD
The Award is hereby designated a Performance Award and shall vest,
and the underlying shares of Common Stock shall be issued, according to the
following vesting schedule, subject to the Participant's continued Service with
the Corporation on the applicable vesting date:
[Note: Provisions to be included from Offer Letter.]
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APPENDIX C
ACCELERATED VESTING EVENT
Notwithstanding any provision of the Agreement to the contrary, any
unvested portion of the Award shall fully vest, and the underlying shares of
Common Stock shall become immediately issuable, as described hereinbelow:
[Note: Provisions to be included from Offer Letter.]
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