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EXHIBIT 10.20
XXXXXX XXXXXXX XXXXXX
December 1, 1996
Xx. Xxxx Xxxxxx
President & Chief Executive Officer
VERITAS Software Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Dear Xxxx:
This letter will confirm the terms of the agreement between VERITAS Software
Corporation (the "Company") and Xxxxxx Xxxxxx ("Consultant"), pursuant to which
Consultant will provide the Company with financial advisory services with
respect to the Company's contemplated acquisition (the "Transaction") of
OpenVision Technologies, Inc. ("OpenVision"). Consultant shall assist the
Company to review and evaluate the contemplated transaction; to value and
structure the terms of a potential offer to OpenVision; to negotiate the terms
and conditions of a definitive agreement between the Company and OpenVision; to
conduct due diligence investigations of OpenVision's financial and operating
condition; to prepare, if needed, the Company's registration of securities under
Form S-4; and to develop a transition implementation plan for the completed
acquisition. Consultant shall also assist the Company in the coordination of its
external investment banking, legal and accounting resources throughout the
Transaction process.
The terms upon which the above services shall be rendered are as follows:
1. Upon the execution of this letter agreement, the Company shall pay to
Consultant an initial retainer of $20,000.00. On the first of each month
thereafter, the Company shall pay a monthly consulting fee of $20,000.00, until
the closing of the Transaction. The initial retainer and monthly consulting fees
shall be credited against the success fee due upon closing, as described below.
Each such payment shall be made by wire transfer, under the following
instructions:
Northern Trust Bank of California, N.A.
ABA No. 000000000
For the account of Gallatin Capital
Acct. No. 40302237
2. At the closing of the Transaction, the Company shall pay to Consultant
a success fee of $400,000.00, less all fees previously paid through the closing
date. This payment shall be made in cash, regardless of the form, amount or
contingency of the consideration upon which the Transaction is based.
3. The Company shall reimburse Consultant for all reasonable out of pocket
expenses incurred in the course of performing the services described in this
agreement, upon the presentation of appropriate documentation.
4. The Company shall indemnify Consultant by its execution of the
indemnification agreement attached hereto as Appendix A and made a part of this
letter agreement.
5. The term of this agreement shall be for a period of three months from
the date of its execution, provided, however. that it shall be terminable at
will by either party upon written notice; and
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further provided that the agreement will remain in force, with respect to fees
payable and indemnification of Consultant, for a period of one year following
its termination, in the event that the Company concludes a Transaction of the
type contemplated herein with OpenVision during said one year period.
If these terms reflect your understanding of our agreement, please indicate your
acceptance by executing both copies of this letter, retaining one for your files
and returning the other to the address below. I look forward to working together
with you, and to a successful outcome.
Very truly yours, ACCEPTED AND AGREED:
/s/Xxxxxx X. Xxxxxx
/s/Xxxx Xxxxxx
President & CEO
VERITAS Software
Corporation
APPENDIX A TO THE LETTER AGREEMENT BETWEEN VERITAS SOFTWARE CORPORATION
AND XXXXXX X. XXXXXX DATED DECEMBER 1, 1996
VERITAS Software Corporation (the "Company") shall indemnify and hold
harmless Xxxxxx X. Xxxxxx ("Consultant") from and against any and all losses,
claims, damages and liabilities, and all actions and proceedings in respect
thereof, which are caused by, related in any way to, or arising out of the
engagement of Consultant by the Company pursuant to the attached letter
agreement dated December 1, 1996. The Company agrees, as well, to reimburse
Consultant for all expenses (including attorney fees) as they are incurred in
connection with investigating, preparing or defending any such action or
proceeding, whether or not related to pending litigation to which the
indemnified is a party; provided, that the Company will not be liable under this
indemnification agreement to the extent that any loss, claim, damage, liability
or expense is determined in a final judgment, by a court of competent
jurisdiction from which no appeal can be taken or is taken, to have resulted
solely from the willful misconduct of the indemnified party. Consultant shall
notify the Company promptly of the assertion of any claim or the commencement of
any action or proceeding for which indemnification under this agreement may be
asserted. Consultant shall have the right, exercisable in its sole discretion,
to retain separate counsel of its own choice. Such counsel shall, to the fullest
extent consistent with professional responsibility, cooperate with the Company
and its counsel in all actions and proceedings. The Company shall communicate
promptly and fully with Consultant regarding the assertion of any claims against
it or against Consultant, and regarding all proposed defenses against such
claims. The Company shall not enter into any settlement of any claim involving
Consultant without first securing a full release of Consultant from any
prospective liability relating to such claim and written consent of Consultant
to such settlement.
ACCEPTED & AGREED:
VERITAS Software Corporation
By: /s/Xxxx Xxxxxx
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Xxxx Xxxxxx
President & Chief Executive Officer
Date: 12/10/96
