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Exhibit 10.18
FORM OF
KEY EMPLOYEE AGREEMENT
THIS KEY EMPLOYEE AGREEMENT, dated as of the _____ day of
_____________, 1997, is by and between VERITAS Software Corporation, a Delaware
corporation ("VERITAS DELAWARE"), VERITAS Software Corporation, a California
corporation ("VERITAS CALIFORNIA") (VERITAS Delaware and VERITAS California may
be referred to herein collectively as the "COMPANY") and Xxx X. Xxxxx (the
"EMPLOYEE").
RECITALS
A. Employee is employed as an officer of OpenVision Technologies,
Inc. ("OPENVISION");
B. OpenVision, VERITAS Delaware and VERITAS California have
entered into an Agreement and Plan of Reorganization dated as of January 13,
1997 (the "REORGANIZATION AGREEMENT"), pursuant to which a wholly-owned
subsidiary of VERITAS Delaware will be merged with and into OpenVision; and
C. The Company and Employee wish to enter into this Key Employee
Agreement relating to Employee's contemplated employment with the Company.
NOW, THEREFORE, IT IS HEREBY AGREED by and between the parties hereto
as follows:
1. EMPLOYMENT.
(a) Duties. The Company agrees to employ Employee as
Vice President, General Counsel and Secretary of the Company, and Employee
agrees to perform such reasonable responsibilities and duties as may be
required of him by the Company; provided, however, that such responsibilities
and duties shall be substantially comparable to those held by Employee at
OpenVision prior to the Merger, except that Employee shall not perform human
resources functions with the Company. During the Employment Term (as defined
in subsection (b) below), Employee shall carry out his duties and
responsibilities hereunder in a diligent and competent manner and shall devote
his full business time, attention and energy thereto.
(b) Term. The term of Employee's employment under this
Agreement (the "EMPLOYMENT TERM") shall commence on the Effective Time (as
defined in the Reorganization Agreement) and shall terminate on the first
anniversary of the Effective Time (the "FIRST ANNIVERSARY"). At the end of the
Employment Term, Employee's employment with the Company shall become "at-will,"
as defined under applicable law.
(c) Place of Employment. During the Employment Term,
Employee shall render his services at the principal executive offices of the
Company. Employee shall do such traveling as shall be
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reasonably necessary in connection with his duties and responsibilities
hereunder; provided, however, that Employee shall be reimbursed for all
reasonable expenses.
2. COMPENSATION AND BENEFITS.
(a) Base Compensation. The Company shall pay Employee as
compensation for his services a base salary at the annualized rate of
$____________, along with such performance bonus amounts as the Chief Executive
Officer or Board of Directors of the Company (the "BOARD") shall authorize, in
its discretion, from time to time. Such salary shall be reviewed at least
annually and shall be increased from time to time subject to accomplishment of
such performance and contribution goals and objectives as may be established
from time to time by the Board. Such salary shall be subject to applicable tax
withholding and shall be paid periodically in accordance with normal Company
payroll practices. The annual compensation (excluding bonus amounts) specified
in this Section 2(a), together with any increases in such compensation that the
Board may grant from time to time, is referred to in this Agreement as "BASE
COMPENSATION."
(b) Option. Effective with the commencement of the
Employment Term, the Company shall grant Employee an incentive stock option
(the "NEW OPTION") to purchase __________ shares of the Company's Common Stock
at an exercise price equal to the closing price of the Company's Common Stock
on the Nasdaq National Market as of the date of the Effective Time. The New
Option shall be granted under the Company's 1993 Equity Incentive Plan (the
"PLAN") and shall be subject to the provisions of the Plan. Except as provided
in Section 3(a) below, the New Option shall vest ratably on a
[monthly/quarterly/yearly] basis from the Effective Time through
_______________.
(c) Relocation Expense Reimbursement. The Company will
reimburse Employee for the following costs (up to a maximum of $41,000) (the
"RELOCATION EXPENSES"):
(i) Selling Employee's old house (commissions,
closing costs, inspections, title insurance,
etc.).
(ii) Buying Employee's new house (closing costs,
inspections, title insurance, etc.)
(iii) Moving household furnishings and personal
effects.
(iv) Temporary rental housing in the Mountain View
area.
(v) Mortgage costs of Employee's old house if and
after Employee purchases a new house before
Employee's old house has been sold.
(vi) Wages for a nanny during the transition
period.
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Employee shall furnish the Company with evidence of
such Relocation Expenses within a reasonable period of time from the date that
they were incurred. In the event of Employee's voluntary resignation not
resulting from an Involuntary Termination prior to the First Anniversary,
Employee shall be obligated to repay that portion of the Relocation Expenses
determined by multiplying the total amount of Relocation Expenses by a
fraction, the numerator of which is the number of whole months remaining in the
Employment Term at the time of such resignation and the denominator of which is
twelve (12).
(d) Relocation Loan. The Company shall provide Employee
with a loan in the amount of up to $200,000 at the lowest interest rate
allowable by law such that Employee will not recognize imputed income, as
determined by Employee (the "LOAN"), for the purpose of Employee's acquisition
of a new principal residence. The Loan shall be due the earlier of (i) two (2)
years from the Effective Time or (ii) six (6) months following Employee's
voluntary resignation not resulting from an Involuntary Termination. The Loan
shall be secured by 9,000 shares of the Company's Common Stock that Employee
will hold at the Effective Time.
(e) Employee Benefits. Employee shall be eligible to
participate in Employee benefit plans and executive compensation programs
maintained by the Company applicable to other key executives of the Company,
including (without limitation) retirement plans, savings or profit-sharing
plans, deferred compensation plans, supplemental retirement or excess-benefit
plans, stock option, incentive or other bonus plans, life, disability, health,
accident and other insurance programs, paid vacations, and similar plans or
programs, subject in each case to the generally applicable terms and conditions
of the plan or program in question and to the determination of any committee
administering such plan or program.
3. SEVERANCE PAYMENTS.
(a) Termination Prior to First Anniversary. If, prior to
the First Anniversary, Employee's employment terminates as a result of an
Involuntary Termination, then Employee shall receive the following severance
benefits from the Company:
(i) Severance Payment. A cash payment in an
amount equal to the sum of (i) fifty percent (50%) of Employee's Base
Compensation and (ii) fifty percent (50%) of Employee's maximum target bonus
for the year in which such termination occurs;
(ii) Continued Employee Benefits. Health, dental
and life insurance coverage at the same level of coverage and with the same
percentage of Company-paid coverage as was provided to Employee immediately
prior to the Involuntary Termination (the "COMPANY- PAID COVERAGE"). If such
coverage included Employee's dependents immediately prior to the Involuntary
Termination, such dependents shall also be covered at Company expense.
Company-Paid Coverage shall continue until the earlier of (i) six months from
the date of termination or (ii) the date that Employee and his dependents
become covered under another employer's group health, dental or life insurance
plans that provide Employee and his dependents with comparable benefits and
levels of coverage. For purposes of Title X
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of the Consolidated Budget Reconciliation Act of 1985 ("COBRA"), the date of
the "qualifying event" for Employee and his dependents shall be the date upon
which the Company-Paid Coverage terminates; and
(iii) Consulting Relationship. The Company agrees
to retain Employee as a consultant to the Company for the period commencing
with the date of the Involuntary Termination and ending six months thereafter
(the "CONSULTING PERIOD"). During the Consulting Period, Employee shall report
to the president of the Company and shall be available to perform consulting
services for the Company; provided, however, that the Company shall not require
Employee to perform services for more than thirty-two (32) hours in any one
month during the Consulting Period. All stock options and restricted stock
held by Employee shall continue to vest through the Consulting Period, and all
such stock options shall remain exercisable for three months following the
Consulting Period. Any incentive stock options held by Employee shall
automatically convert into nonstatutory stock options three months and one day
following the date of the Involuntary Termination, to the extent required by
law.
(b) Other Termination. In the event: (i) Employee's
employment terminates by reason of Employee's voluntary resignation not
resulting from an Involuntary Termination; or (ii) the Company terminates
Employee's employment after the First Anniversary; Employee shall not be
entitled to receive any severance under Section 3(a) hereof or any other
benefits except for those (if any) as may then be established under the
Company's then-existing severance and benefits plans and policies at the time
of such termination.
4. DEFINITIONS. As used herein, the term
(a) Involuntary Termination. "INVOLUNTARY TERMINATION"
shall mean (i) without Employee's express written consent, the significant
reduction of Employee's duties, authority or responsibilities, relative to
Employee's duties, authority or responsibilities as in effect immediately prior
to such reduction, or the assignment to Employee of such reduced duties,
authority or responsibilities; (ii) without Employee's express written consent,
a substantial reduction, without good business reasons, of the facilities and
perquisites (including office space and location) available to Employee
immediately prior to such reduction; (iii) a reduction by the Company in the
base salary of Employee as in effect immediately prior to such reduction; (iv)
a material reduction by the Company in the kind or level of employee benefits,
including bonuses, to which Employee was entitled immediately prior to such
reduction with the result that Employee's overall benefits package is
significantly reduced; (v) the relocation of Employee to a facility or a
location more than fifty (50) miles from Employee's then present location,
without Employee's express written consent; (vi) any purported termination of
Employee by the Company; (vii) the failure of the Company to obtain the
assumption of this agreement by any successors contemplated in Section 6(a)
below; or (viii) any act or set of facts or circumstances that would, under
California case law or statute, constitute a constructive termination of
Employee.
5. NOTICES. Any notice, report or other communication required
or permitted to be given hereunder shall be in writing to both parties and
shall be deemed given on the date of delivery, if delivered, or three days
after mailing, if mailed first-class mail, postage prepaid, (i) if to
Employee, at
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the home address that he most recently communicated to the Company in writing;
and (ii) if to the Company, at the Company's principal executive offices to the
Chief Executive Officer's attention; or (iii) to such other address as any
party hereto may designate by notice given as herein provided.
6. SUCCESSORS.
(a) Company's Successors. Any successor to the Company
(whether direct or indirect and whether by purchase, merger, consolidation,
liquidation or otherwise) to all or substantially all of the Company's business
and/or assets shall assume the obligations under this Agreement and agree
expressly to perform the obligations under this Agreement in the same manner
and to the same extent as the Company would be required to perform such
obligations in the absence of a succession. For all purposes under this
Agreement, the term "COMPANY" shall include any successor to the Company's
business and/or assets which executes and delivers the assumption agreement
described in this Section 6(a) or which becomes bound by the terms of this
Agreement by operation of law.
(b) Employee's Successors. The terms of this Agreement
and all rights of Employee hereunder shall inure to the benefit of, and be
enforceable by, Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
7. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
California as applied to agreements entered into and performed within
California solely by residents of that state.
8. NO DUTY TO MITIGATE. Employee shall not be required to
mitigate the amount of any payment contemplated by this Agreement, nor shall
any such payment be reduced by any earnings that Employee may receive from any
other source.
9. SEPARABILITY. In the event that any provision or provisions
of this Agreement is held to be invalid or unenforceable by any court of law or
otherwise, the remaining provisions of this Agreement shall nevertheless
continue to be valid and enforceable as though the invalid or unenforceable
parts had not been included therein.
10. ENTIRE AGREEMENT. This Agreement represents the entire
agreement and understanding between the parties as to the subject matter hereof
and supersedes all prior or contemporaneous agreements whether written or oral.
No waiver, alteration or modification of any of the provisions of this
Agreement shall be binding unless in writing and signed by duly authorized
representatives of the parties hereto.
11. AMENDMENTS. This Agreement shall not be changed or modified
in whole or in part except by an instrument in writing signed by each party
hereto.
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12. MERGER. In the event of a termination of the Reorganization
Agreement pursuant to Section 9 thereof, the parties' obligations hereunder
shall terminate effective as of the effective date of the termination of the
Reorganization Agreement.
13. ATTORNEY FEES, COSTS AND EXPENSES. The Company shall promptly
reimburse Employee, on a monthly basis, for the reasonable attorney fees, costs
and expenses incurred by Employee in connection with any action brought by
Employee to enforce his rights hereunder. In the event Employee is not the
prevailing party, determined without regard to whether or not the action
results in a final judgment, Employee shall repay such reimbursements.
14. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
15. EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction or interpretation of
this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Key Employee
Agreement as of the date first written above.
VERITAS SOFTWARE CORPORATION,
A DELAWARE CORPORATION
_________________________________
Signature of Authorized Signatory
_________________________________
Print Name and Title
VERITAS SOFTWARE CORPORATION,
A CALIFORNIA CORPORATION
_________________________________
Signature of Authorized Signatory
_________________________________
Print Name and Title
EMPLOYEE:
_________________________________
Xxx X. Xxxxx
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