[VERITAS Letterhead] EXHIBIT 10.75
November 11, 2002
Xx. Xxxxx Xxxxxx
Re: Employment Agreement
Dear Ed:
On behalf of VERITAS Software Corporation ("VERITAS"), I am pleased to offer you
the position of Chief Financial Officer and Executive Vice President, Finance on
the terms set forth below.
1. Position. You will be employed by Veritas as its Chief Financial
Officer and as Executive Vice President, Finance, 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 worldwide financial affairs and operations and
will report directly to the Chief Executive Officer of Veritas. 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 Veritas' prior approval according to its Conflicts of
Interest Policy. You agree you will not, directly or indirectly, engage
or participate in any business that is competitive in any manner with
the business of Veritas. 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 cash compensation will include the following:
(a) Base Salary. A base salary of $18,125.00 paid semi-monthly,
equal to $435,000.00 on an annualized basis. 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 Chief Executive Officer of
Veritas and may be increased from time to time, in the
discretion of the Chief Executive Officer of Veritas, subject
to the approval of the Compensation Committee of the Board of
Directors of Veritas.
(b) Bonus. You will be eligible to participate in the annual
Veritas officer EPS compensation plan, with a target bonus of
$290,000. You bonus will be (i) guaranteed on a pro-rated
basis (based on the target amount) for the portion of 2002
during which you are employed by VERITAS and (ii) guaranteed
at the target amount for 2003. Thereafter, this bonus will be
payable based on Veritas' EPS Bonus Plan for the corresponding
year. A copy of the current EPS Bonus Plan is attached hereto
as Exhibit A.
3. Relocation Costs. In consideration of your relocation costs and
expenses, Veritas will provide you with $180,000 for your housing
expenses and an additional $100,000 for your relocation expenses. These
amounts shall be paid to you over 12 months, in full, for use at your
discretion, less any amounts withheld for taxes. If you have additional
questions regarding Veritas relocation services, please contact Xxxxxxx
Xxxx at Relocation Resources International, Inc. ("RRI") at
000-000-0000. Please note that the Internal Revenue Service (the "IRS")
requires certain relocation related expenses to be reported by you as
taxable income. You may want to contact you tax advisor regarding any
effect this may have on your personal tax situation.
4. Other Benefits. You will be eligible for the normal health insurance,
401(k), employee stock purchase plan, vacation days and other benefits
offered to all Veritas senior executives of similar rank and status. As
a full-time employee, you will be eligible to be covered under Veritas'
medical, dental and life insurance programs as of the first day of your
employment. At the new hire orientation you will have the ability to
select specific benefits coverage appropriate to your personal needs.
5. Stock Options. Within 30 days of the Commencement Date, the
Compensation Committee of the Board of Directors of Veritas (the
"BOARD") shall grant you incentive stock options (up to the maximum
allowed under IRS regulations) and nonqualified stock options (for the
balance, if any) to purchase a total of 700,000 shares of Veritas
common stock at an exercise price equal to the fair market value of
Veritas common stock on the date of such grant (the "INITIAL OPTION
PRICE").
(a) These options will vest and become exercisable in accordance
with the terms of the stock option plan as follows: (i) the
option shall be exercisable with respect to 12 1/2% of the
shares underlying such option upon completion of the first six
months of employment (the "INITIAL PERIOD") and (ii) the
option shall be exercisable with respect to the balance of
such shares underlying such option at the rate of 1/48th per
month over the 42 months following the Initial Period. Except
as otherwise indicated in this Agreement or in
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Veritas' stock option plan, the vested portion of such options
may be exercised at any time until the earlier of (i) 90 days
after the termination of your employment or (ii) ten years
after the grant of such options. 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 an Involuntary Termination (as defined below),
a Termination without Cause (as defined below) or a
Termination for Death or Disability (as defined below), 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
contemplated herein on a Form S-8 registration statement and
shall keep such registration statement in effect for the
entire period the options remain outstanding.
6. Employment and Termination. Your employment with Veritas is "at-will"
which means it is not for a specific term and may be terminated by you
or by Veritas at any time for any reason, with or without cause as
follows:
(a) You may terminate your employment upon written notice to the
Chief Executive Officer at any time for "Good Reason," as
defined below (an "INVOLUNTARY TERMINATION");
(b) You may terminate your employment upon written notice to the
Chief Executive Officer at any time in your discretion without
Good Reason (a "VOLUNTARY TERMINATION");
(c) Veritas may terminate your employment upon written notice to
you at any time following a determination by the Company that
there is "Cause," as defined below, for such termination (a
"TERMINATION FOR CAUSE");
(d) Veritas may terminate your employment upon written notice to
you at any time in the sole discretion of the Chief Executive
Officer without a determination that there is Cause for such
termination (a "TERMINATION WITHOUT CAUSE"); and
(e) Your employment will automatically terminate upon your death
or upon your disability as determined by the Company (a
"TERMINATION FOR DEATH OR DISABILITY").
7. Definitions. As used in this Agreement, the following terms have the
following definitions:
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(a) "GOOD REASON" means (i) a material reduction in your duties
that is inconsistent with your position as Chief Financial
Officer of Veritas or a change in your reporting relationship
such that you no longer report directly to the Chief Executive
Officer; (ii) your no longer being Chief Financial Officer of
Veritas or, in the case of a Change in Control (as defined
below), 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;
(iv) material breach by Veritas of any of its obligations
under this Agreement after providing Veritas with written
notice and an opportunity to cure within seven days of such
notice; or (v) failure of any successor to assume this
Agreement pursuant to Section 15(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; (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
Veritas) by any person, entity or "group", within the meaning
of section 13(d)(3) or 14(d)(2) of the Securities Exchange Act
of 1934, as amended (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; (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
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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 Rule14a-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. In such
event 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,
directly or indirectly, compete with Veritas or engage in any business
that is competitive in any manner with the business of 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 you
shall not have any claims that shall survive that agreement.
(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 options.
(b) 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 twelve months of your
then current annual base salary [or a bonus based on
six months of on-target earnings], payable over
twelve months in accordance with Veritas' normal
payroll practices with such payroll deductions and
withholdings as are required
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by law, provided, that you provide Veritas with
consulting services during such period after the date
of termination (the "CONSULTING SERVICES");
(ii) continued participation in the Veritas health care
plans for the term you are providing Consulting
Services at the same cost to you as immediately prior
to the date of your termination of employment, or if
it is not possible for you to continue to participate
in the Veritas health care plans, Veritas shall pay
an amount to you so that you may purchase equivalent
health care coverage at the same cost to you as
immediately prior to the date of your termination of
employment; and
(iii) accelerated vesting and exercisability of that
portion of your outstanding unvested options to
purchase Veritas common stock that would have vested
within twelve months from the date of such
Involuntary Termination or Termination without Cause,
with all vested options exercisable for a period of
90 days from the later of:
(A) the date of your Involuntary Termination or
Termination without Cause, as applicable; or
(B) the date you cease providing Consulting
Services to Veritas.
(c) 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, continued
benefits or accelerated vesting of your outstanding unvested
options under this Agreement.
(d) 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: (i)
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 (ii) continued health care coverage on the
same terms set forth under Section 8(b)(ii) and (iii)
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.
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(e) For purposes of this Agreement, Termination by Death or
Disability shall be treated as Involuntary Termination.
(f) If your severance and other benefits provided for in this
Section 8 constitute "parachute payments" within the meaning
of Section 280G of the Internal Revenue Code of 1986, as
amended (the "CODE"), and, but for this subsection, would be
subject to the excise tax imposed by Section 4999 of the 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 of the Code, in your
receipt on an after-tax basis of the greatest amount of
severance and other benefits.
(g) No payments due you hereunder shall be subject to mitigation
or offset.
(h) To the extent that Veritas shall provide to similarly situated
Veritas employees any other severance or other benefits in
connection with a Change of Control or otherwise, you shall be
entitled to such benefits to the extent such benefits exceed
these benefits granted and contained herein.
9. Immigration. The Immigration Reform and Control and Act of 1986
requires that all new employees submit proof of employment eligibility.
Your employment with Veritas is contingent upon you providing proof of
your right to work in the United States. Enclosed is a list of
acceptable documents that will be necessary for you to show proof of
your employment eligibility on your first day of employment.
10. 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.
11. Confidential Information and Invention Assignment Agreement. On the
Commencement Date, you will be required to sign Veritas standard form
of Proprietary Information and Invetntions Assignment Agreement, a copy
of which is attached to this letter as Exhibit B, to protect Veritas'
confidential information and intellectual property.
12. 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,
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solicit or attempt to induce any employee of Veritas to terminate his
or her employment with Veritas.
13. 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.
14. Term. This Agreement shall be in effect upon the signing by both
parties, and shall terminate upon the date on which you are no longer
an employee of Veritas or until the parties mutually agree to its
termination.
15. Miscellaneous.
(a) Authority to Enter into Agreement. Veritas represents that
Xxxx Xxxxx, its Chairman of the Board and Chief Executive
Officer, has due authority to execute and deliver this
Agreement on behalf of Veritas.
(b) Absence of Conflicts. You represent that upon the Commencement
Date the 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 contained herein, you
shall be entitled to recover reasonable attorneys' fees and
costs incurred, both before and after judgment, in addition to
any other relief to which you may be entitled, to the extent
you have brought the action in good faith and it is not deemed
frivolous.
(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' obligations under this Agreement.
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(e) Notices. Notices under this Agreement must be in writing and
shall 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 shall be addressed to you at the home address which you
have most recently communicated to Veritas in writing. Notices
to Veritas shall be addressed to its General Counsel at
Veritas' corporate headquarters.
(f) Waiver. No provision of this Agreement shall be modified or
waived except in writing signed by you and an officer of
Veritas duly authorized by the Board. No waiver by either
party of any breach of this Agreement by the other party shall
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 herein
16. Governing Law. This Agreement will be governed by the laws of the State
of California without reference to conflict of laws provisions.
Ed, I am pleased that you are interested in Veritas. I believe this is
an excellent opportunity for you and I am confident it will provide you with the
personal challenge and growth opportunity you seek.
If you would like to accept this offer, please sign below and return
this letter as well as the Proprietary Information and Invention Assignment
Agreement and completed employment application in the self-addressed UPS
envelope included in this package. This offer is contingent upon you signing all
such documents. This offer of employment and your employment with Veritas is
contingent upon successful completion of a background check. This offer will
remain open until November 12, 2002.
Should you have any questions, please contact me at (000) 000-0000.
Very truly yours,
/s/ XXXX X. XXXXX
Xxxx X. Xxxxx
Chief Executive Officer
Veritas Software Corporation
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I ACCEPT THIS OFFER
By: /s/ XXXXX XXXXXX
--------------------------
Xxxxx Xxxxxx
Commencement Date: November 18, 2002
Attachments:
- Proprietary Information and Inventions Agreement
- Indemnification Agreement
- List of Acceptable Documents for I-9 Form
- VERITAS Benefits Highlights
- Employment Application
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EXHIBIT A
[FORM OF EPS BONUS PLAN]
[FILED SEPARATELY AS EXHIBIT 10.77]
EXHIBIT B
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
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 other than in connection with
VERITAS' business, except with the prior written permission of an
officer of VERITAS, any invention, trade secret, work of authorship,
Proprietary Information (as defined below) 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 any 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
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conflicts arise with respect to my obligations to VERITAS pursuant to
Paragraph 10(d) of this Agreement, VERITAS agrees to advise me of such
conflicts. The specific actions for resolving such 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
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.
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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. As used herein, "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".
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.
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
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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. Attached hereto as EXHIBIT A is 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 (the "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, 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 Product(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 (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 (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.
5
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.
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
6
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
VERITAS.
7
IN WITNESS WHEREOF, the parties have entered into this Agreement on this 11th
day of November, 2002.
VERITAS SOFTWARE CORPORATION
By: /s/ XXXX X. XXXXXXX
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and General
Counsel
AGREED AND ACCEPTED:
By: /s/ XXXXX XXXXXX
----------------------------------
8
EXHIBIT A
DESCRIPTION OF INVENTIONS
BEFORE VERITAS SOFTWARE EMPLOYMENT
TITLE OF DOCUMENT DATE OF DOCUMENT NAME OF WITNESS
----------------- ---------------- ---------------
NONE ________________ _______________
_________________ ________________ _______________
_________________ ________________ _______________
_________________ ________________ _______________
_________________ ________________ _______________
_________________ ________________ _______________
_________________ ________________ _______________
_________________ ________________ _______________
(If "None", Please So State)
VERITAS SOFTWARE CORPORATION
By: /s/ XXXX X. XXXXXXX
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and General
Counsel
AGREED AND ACCEPTED:
By: /s/ XXXXX XXXXXX
----------------------------------
