EXHIBIT 4.03
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 START DATE. The Effective Time of the Merger (as such
terms are defined below).
1.9 VESTING SCHEDULE. Subject to Section 2.1(iii), the Shares
subject to the Option shall vest, subject to your continued employment with
Parent, VERITAS (as such terms are defined in Section 2.1 below) or any of their
subsidiaries.
Two years, six-month cliff: Your Option will vest with respect to
twenty-five percent (25%) of the total number of Shares subject to the
Option on the date that is six (6) months after the Vesting Start Date,
and thereafter, your Option will vest with respect to
the remaining seventy-five percent (75%) of the total number of Shares
subject to your Option at the rate of 1/24 of the total number of
Shares subject to the Option per month over the eighteen (18) month
period beginning on the date that is seven (7) months after the Vesting
Start Date, such that on the second (2nd) anniversary of the Vesting
Start Date, the Option shall be vested with respect to one hundred
percent (100%) of the Shares subject to the Option if you have remained
continuously employed by Parent, VERITAS or any of their subsidiaries
at all times since the Vesting Start Date.
Acceleration: If, during the two (2) year period beginning on the
Vesting Start Date and ending upon the second (2nd) anniversary of the
Vesting Start Date, your employment with Parent, VERITAS or any of
their subsidiaries ceases as a result of your being terminated without
Cause or as a result of a Constructive Termination within such two (2)
year period, then, effective upon your termination date, the then
unvested portion of your Option shall become immediately vested with
respect to one hundred percent (100%) of the number of Shares subject
to your Option provided that you have first executed and delivered to
VERITAS and Parent a general release of claims in form and substance
reasonably acceptable to VERITAS in accordance with Section 2.8.3(e) of
the Merger Agreement and such release has become irrevocable.
"CAUSE" means any of the following: (i) the willful and continued
failure by you to follow the lawful written directions of your Employer
(as defined below) after a written demand for substantial performance
of such written directions, which written demand identifies the manner
in which your Employer believes that you have not substantially
followed your Employer's directions and provides thirty (30) days for
you to comply with such demand; (ii) the willful engagement by you in
conduct which is demonstrably and materially injurious to VERITAS,
Parent, the Surviving Corporation (as defined in Section 2.1 below) or
any of their respective affiliates, monetarily or otherwise (such as,
without limitation, harm to reputation); or (iii) a conviction of you,
or the making of a guilty plea, a plea of nolo contendere, or
confession by you, to an act of (or involving) fraud, misappropriation
(including without limitation misappropriation of any intellectual
property or proprietary information of VERITAS, Parent or any of their
respective affiliates), embezzlement, or a felony. As used above in
this definition of "Cause", your "EMPLOYER" means any one or more of
the following: VERITAS, Parent, your VERITAS Employer or your immediate
supervisor at the VERITAS Employer by which you are employed. Your
VERITAS Employer means VERITAS, Parent, the Surviving Corporation or
any subsidiary or affiliate entity of any of them.
"CONSTRUCTIVE TERMINATION" means, the resignation of your employment
with a VERITAS Employer as a result of: (i) your not being offered a
position with VERITAS, any Subsidiary of VERITAS or the Company
(beginning as of the Effective Time) that is within forty (40) miles of
your office location with the Company as of the date of the Merger
Agreement; (ii) your being (within two (2) years after the Effective
Time) subsequently assigned to, or required to relocate to, or to spend
substantially all of your working time, at an office that is more than
forty (40) miles from your office location with the Company as of the
date of the Merger Agreement; (iii) your base salary being reduced to
less than ninety (90%) of your base salary with the Company at the date
of the
Merger Agreement (unless such reduction is also being made to similarly
situated employees as part of a firm-wide salary reduction program); or
(iv) (A) a material adverse change in the job title that you accepted
upon the commencement of your employment with a VERITAS Employer as of
the Effective Time, or (B) a permanent change in your job duties and
responsibilities to lesser duties and responsibilities of a type that
are demeaning and fundamentally unrelated to your professional skills;
provided, however, that notwithstanding the foregoing, in the event
that you are subsequently assigned to, or required to relocate to, or
spend substantially all of your working time, at an office located
outside the United States of America as necessitated by your U.S.
immigration status or as a result of your not being legally entitled to
work in the United States of America, such assignment, relocation or
working location shall not constitute a "Constructive Termination"
hereunder notwithstanding the location of such office being more than
forty (40) miles from your office location with the Company as of the
date of the Merger Agreement.
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:
____________________________________________
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 day before the
tenth anniversary of the Date of Xxxxx, and will expire earlier, but in no event
later than such tenth anniversary, if your employment terminates as follows:
(i) REGULAR TERMINATION. If your employment terminates
for any reason except death or Total and Permanent Disability, your
Option will expire upon the later to occur of (a) the close of business
on the date three (3) months after the date your employment terminates
and (b) the date that is thirty (30) days after the effective date of
the registration statement filed by VERITAS on Form S-8 with respect to
the shares subject to this Option ("FORM S-8"). During the period
provided for in subsection (a) or (b) above (whichever is the longest
period of time from your date of termination), you
may exercise your Option to the extent it was vested on the date your
employment terminated.
(ii) DEATH. If you die during the term of your employment,
your Option will expire upon the later to occur of (a) the close of
business on the date six (6) months after the date of your death and
(b) the date that is thirty (30) days after the effective date of the
Form S-8. During the period provided for in subsection (a) or (b) above
(whichever is the longest period of time from the date of your death),
your estate or heirs may exercise that portion of your Option that was
vested on the date of your death.
(iii) TOTAL AND PERMANENT DISABILITY. If your employment
terminates because of your Total and Permanent Disability (as such term
is defined in the Merger Agreement), your Option will expire upon the
later to occur of (a) the close of business on the date six (6) months
after the date your employment terminates and (b) the date that is
thirty (30) days after the effective date of the Form S-8. During the
period provided for in subsection (a) or (b) above (whichever is the
longest period of time from your date of termination), you may exercise
your Option to the extent it was vested on the date your employment
terminated.
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 EXERCISE OF OPTION BEFORE VESTING ("EARLY EXERCISE").
(i) UNVESTED SHARES. If you exercise your Option before
full vesting, the vesting provisions set forth in Section 1.9 will
apply to the Shares you acquire upon exercise of your Option. If you
exercise your Option before your rights are vested, you should consider
making an election under Section 83(b) of the Code (the "SECTION 83(b)
ELECTION"). The Section 83(b) Election must be filed within thirty (30)
days after the date you acquire Shares in which your rights are not
vested. You are encouraged to consult
with your tax advisors with respect to your decision as to whether or
not to file a Section 83(b) Election.
(ii) REPURCHASE RIGHT. All Shares purchased by you on
exercise of the Option that have not vested under Sections 1.9 and
2.4(i), together with any shares of Common Stock issued by the Company
as a dividend or other distribution on, in exchange for or upon the
conversion of such unvested Shares (collectively, the "Subject Shares")
shall be subject to the following right of repurchase by the Company
(the "Repurchase Right"). The Company shall have the right, within
ninety (90) days after the termination of your employment with the
Company (the "Termination Date"), to purchase from you all Subject
Shares as of the Termination Date. The repurchase price shall be the
Purchase Price per share paid by you for such shares pursuant to this
Option. For purposes of this Section 2.4(ii), the date the Company
exercises its Repurchase Right shall be deemed to be the Termination
Date. The Repurchase Right under this Section 2.4(ii) shall lapse with
respect to the Subject Shares in accordance with the vesting schedule
in this Option.
(iii) EXERCISE OF REPURCHASE RIGHT. The Company shall be
deemed to have exercised its Repurchase Right automatically for all
Subject Shares as of the Termination Date, unless within ninety (90)
days thereafter, the Company notifies the holder of the Subject Shares
that it will not exercise its Repurchase Rights as to some or all of
the Subject Shares. The certificate(s) representing the shares to be
repurchased shall be delivered to the Company properly endorsed for
transfer. The Company shall, concurrently with the receipt of such
certificate(s), pay to you the repurchase price determined according to
Section 2.4(ii), above. The repurchase price shall be paid by certified
or cashier's check.
(iv) ESCROW OF SHARES. To ensure that the Subject Shares
are delivered to the Company upon its exercise of its Repurchase Right,
you agree that the certificate(s) evidencing the Subject Shares and an
assignment separate from certificate executed by you (with date and
number of shares in blank) shall be held by the Company as escrow
agent. The Company, as escrow agent, shall deliver to you certificates
representing so many Shares as are no longer subject to the Repurchase
Right (less such shares as have been previously delivered) as soon as
practicable following your request. Ninety (90) days after the
Termination Date, the Company, as escrow agent, shall deliver to you a
certificate or certificates representing the number of Shares not
repurchased by the Company pursuant to exercise of the Repurchase Right
(less such shares as have been previously delivered).
2.5 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.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
TRANSFERRED, ENCUMBERED OR IN ANY MANNER DISPOSED OF, EXCEPT IN
COMPLIANCE WITH THE TERMS OF A WRITTEN AGREEMENT BETWEEN THE COMPANY
AND THE INITIAL HOLDER HEREOF. SUCH AGREEMENT PROVIDES FOR CERTAIN
TRANSFER RESTRICTIONS AND RIGHTS OF REPURCHASE. THE SECRETARY OF THE
COMPANY WILL UPON WRITTEN REQUEST XXXXXXX A COPY OF SUCH AGREEMENT TO
THE HOLDER HEREOF WITHOUT CHARGE.
2.6 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.
2.7 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.
2.8 NO RETENTION RIGHTS. Your Option does not give you the right
to be retained by the Company (or any subsidiary) in any capacity. The Company
reserves the right to terminate your employment at any time and for any reason
or for no reason, with or without Cause, subject to the provisions hereof
regarding acceleration of vesting.
2.9 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.
2.10 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.
2.11 APPLICABLE LAW. This Stock Option Agreement will be
interpreted and enforced under the laws of the State of California.
2.12 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.
2.13 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 2.13.
BY SIGNING THIS STOCK OPTION AGREEMENT, YOU AGREE TO ALL OF THE TERMS AND
CONDITIONS DESCRIBED ABOVE.
