EXHIBIT 10.61
VERITAS SOFTWARE CORPORATION
000 Xxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
November 27, 2001
Xxxx Xxxxxx
[Street Address]
[City, State, Zip]
Dear Xxxx:
This letter sets forth the agreement between you and VERITAS Software
Corporation and its affiliates (collectively, the "COMPANY") relating to changes
in your position with the Company.
1. Separation. Effective as of November 17, 2000 you resigned from your
position as Chief Executive Officer of the Company, and the Company accepted
such resignation. On or before December 31, 2001 (the "RESIGNATION DATE") you
will resign from your position as Chairman of the Board of Directors of the
Company (the "BOARD") and all other positions you hold with the Company and its
subsidiaries, except that you will continue to serve as a non-chairman member of
the Board.
2. Payments by the Company. Subject to your execution of the release set
forth in Section 9 hereof and your compliance with Sections 10 and 11 hereof,
the Company agrees to make the following payments to you.
(a) The Company shall pay you a base salary at an annualized
rate of $208,333 through December 31, 2001 in accordance with the
regular payroll practices of the Company.
(b) Subject to the terms of the VERITAS 2001 Executive Officer
Compensation Plan, and depending on the Company's achievement of
specified EPS targets for the year ending December 31, 2001, you will be
eligible to receive your year 2001 annual EPS Bonus based on a target
amount of $333,333. Such payment, if any, shall be made not later than
January 31, 2002.
Xxxx Xxxxxx 2 November 27, 2001
3. Accelerated Vesting of Options.
(a) All stock options ("OPTIONS"), unvested and outstanding as
of the Resignation Date, held by you to purchase shares ("SHARES") of common
stock of the Company pursuant to stock option awards ("OPTIONS AWARD
AGREEMENTS") under the Company's 1993 Equity Incentive Plan (the "PLAN") will
become immediately vested and exercisable upon the Resignation Date.
4. Employee Options
(a) Except as set forth in Section 4(b), your Options awarded to
you as an employee of the Company ("EMPLOYEE OPTIONS") shall remain exercisable
for a period of ninety (90) days following the Resignation Date, and if not
exercised by the date ninety (90) days following the Resignation Date, shall be
forfeited and cancelled in accordance with the terms of the Plan.
(b) The following Employee Options shall remain exercisable
until December 31, 2004, and if not exercised by December 31, 2004, shall be
forfeited and cancelled:
(i) any Employee Options which are subject to accelerated
vesting pursuant to Section 3;
(ii) any Employee Options for which the exercise price per Share
exceeds the Fair Market Value (as defined in the Plan) of a Share as of the date
hereof; and
(iii) to the extent not covered by Section 4(b)(i) or (ii), the
Employee Options granted on April 4, 2001.
5. Director Options.
(a) You agree that the options identified on EXHIBIT B that were
granted to you under the Plan were granted to you for services performed as a
member of the Company's Board of Directors ("DIRECTOR OPTIONS"). Such Director
Options shall remain outstanding under their existing terms as provided by the
Plan as you continue your relationship with the Company as a Director of the
Board.
6. Option Transfer. The Company hereby agrees that, notwithstanding the
terms of the Plan and your Award Agreement, prior to the cancellation of any
Employee or Director Option, you may transfer any
Xxxx Xxxxxx 3 November 27, 2001
outstanding Employee or Director Option held by you to any "family member" of
yours in accordance with the terms of this Agreement provided the conditions set
forth below are met.
(i) For purposes of the foregoing, "family member" includes any
of your child, legally adopted stepchild, grandchild, parent, stepparent through
legal adoption, grandparent, spouse (other than those legally separated),
son-in-law, daughter-in-law, a trust in which these persons have one hundred
percent of the beneficial interest, a foundation, charitable lead trust or
charitable remainder trust as to which these aforementioned persons or the
employee manage one hundred percent of the assets, and any other entity of which
the aforementioned persons, trust or charitable entities or the employee own one
hundred percent of the voting interests and provided further that any lead or
remainder interest of a charitable lead trust of charitable entity be held by or
for the benefit of these aforementioned persons. To the extent you desire to
transfer Options for estate planning purposes to family members, trusts or
foundations not mentioned in the previous sentence, the Company will consider in
good faith any requests by you for such a transfer and permit such transfers to
the extent such transfers do not or are not likely to result in accounting
charges.
(ii) You (or your estate or representative) shall remain
obligated to satisfy all employment tax and other tax obligations (including
withholding tax) associated with the exercise of the transferred Employee or
Director Options.
(iii) You shall notify the Company in writing that such transfer
has occurred and provide details as to which and how many Employee or Director
Options were transferred.
(iv) You shall indemnify the Company with respect to any claim,
cause of action or other expense incurred by the Company (including attorneys
fees) in connection with, or arising from, any such transfer executed or
proposed by you (or your estate or representative), other than as a result of
the Company's gross negligence or misconduct.
(v) Following such transfer, the transferred stock options shall
continue to be subject to the same terms and conditions as were applicable to
the Employee or Director Options immediately prior to the transfer, including
the forfeiture provision set forth herein provided that the term "Participant"
as used in the Company's stock option plan and relevant option agreement shall
be deemed to refer to the transferee where required by context.
Xxxx Xxxxxx 4 November 27, 2001
(vi) The transferee may not further transfer or assign the
transferred Employee or Director Options, other than by will or by the laws of
descent and distribution.
(vii) The transferred Employee or Director Option may only be
exercised by the transferee to the same extent such option could, at such time,
be exercised by you but for such transfer as set forth herein.
7. Benefits.
(a) For a period of five years following the Resignation Date,
the Company shall either (i) continue medical, dental, and vision benefits for
you and your eligible dependents on substantially similar terms and at the same
cost to you as prior to the Resignation Date or (ii) make payments to you such
that, after payment by you of all applicable taxes thereon, you retain an amount
which, when added to the amount of your contribution if any to your health
insurance arrangement as in effect prior to the Resignation Date will enable you
to purchase medical, dental and vision benefits substantially similar to those
you and your eligible dependents received immediately prior to the Resignation
Date on substantially similar terms you received such benefits immediately prior
to the Resignation Date.
(b) The benefits provided and/or the amounts paid under this
Section 7 shall terminate should you become eligible to receive substantially
similar medical, dental or vision benefits offered by another entity at a cost
no greater than that described in Section 7(a). To the extent you become
eligible to receive substantially similar benefits at a greater cost than
described in Section 7(a), the Company shall have the option to continue to
provide benefits under Section 7(a) or pay you an amount such that, after
payment by you of all applicable taxes thereon, you retain an amount equal to
the difference between the cost of such alternative benefits and the cost to you
of the benefits provided to you by the Company prior to the Registration Date.
8. Other Miscellaneous Benefits.
(a) So long as you are a member of the Board, the Company will
continue to provide you with part-time administrative support as reasonably
necessary to support your continuing role as an outside director. In addition,
as an outside director you will receive limited network access and support
solely for the purposes of accessing e-mail and voicemail, such support
comparable to the
Xxxx Xxxxxx 5 November 27, 2001
technical support for e-mail and voicemail provided to senior executives of the
Company.
(b) Subject to the provisions of Section 10 of this Agreement,
upon the termination of your service as an employee, the Company will permit you
to keep the Company computer equipment in your possession, although you agree to
return or destroy all confidential information of the Company that does not
relate to your duties as a member of the Board. You will be responsible for any
income taxes associated with this transfer of ownership.
9. Release.
(a) You agree to and do fully and completely release, discharge
and waive any and all claims, complaints, causes of action or demands of
whatever kind which you have or may have against the Company, its subsidiaries,
affiliates, predecessors and successors and all its past and present directors,
officers and employees by reason of any event, matter, cause or thing which
occur prior to the date hereof (hereinafter "EXECUTIVE CLAIMS"). You understand
and accept that this Agreement specifically covers, but is not limited to, any
and all Executive Claims which you have or may have against the Company relating
in any way to the Employment Agreement (as defined in Section 13) or to
compensation, or to any other terms, conditions or circumstances of your former
employment, service as a director or your role as a shareholder of the Company,
and to the resignation of such employment, whether for severance or based on
statutory or common law claims for employment discrimination (including age
discrimination), wrongful discharge, breach of contract or any other theory,
whether legal or equitable. Notwithstanding the foregoing, you do not waive any
rights which you may be entitled to seek to enforce this Agreement or obtain
benefits to which you are entitled under the Company's existing benefit plans or
under law, or to seek indemnification with respect to liability incurred by you
as an officer or director of the Company.
(b) You acknowledge that this Release shall extend to unknown,
as well as known claims, and hereby waives the application of any provision of
law, including, without limitation, Cal. Civ. Code Section 1542 (West 1982 &
2000 Supp.), that purports to limit the scope of a general release. Section 1542
of the California Civil Code provides:
"A general release does not extend to claims
which the creditor does not know or suspect to
exist in his favor at the time of executing the
release, which if
Xxxx Xxxxxx 6 November 27, 2001
known by him must have materially affected his
settlement with the debtor."
/s/ Xxxx Xxxxxx
------------------------------------
Initial Here
(c) The Company agrees to and does fully and completely release,
discharge and waive any and all claims, complaints, causes of action or demands
of whatever kind which the Company has or may have against you by reason of any
event, matter, cause or thing which has occurred prior to the date hereof
(hereinafter "COMPANY CLAIMS") except any specific matters which are founded
upon and directly related to allegations of gross negligence, gross misconduct,
breach of fiduciary duty or other malfeasance materially injurious to the
Company, known or unknown. The Company understands and accepts that this
Agreement specifically covers, but is not limited to, any and all Company Claims
which the Company has or may have, known or unknown, against you relating in any
way to compensation, or to any other terms, conditions or circumstances of your
former employment with the Company, and to the resignation of such employment,
whether based on statutory or common law claims for breach of contract or any
other theory, legal or equitable. Notwithstanding the foregoing, the Company
does not waive any rights to which it may be entitled (i) to seek to enforce
this Agreement, (ii) the Inventions Agreement or (ii) your Options Award
Agreements.
(d) The Company acknowledges that this Release shall extend to
unknown, as well as known claims, and hereby waives the application of any
provision of law, including, without limitation, Cal. Civ. Code Section 1542
(West 1982 & 2000 Supp.), that purports to limit the scope of a general release.
Section 1542 of the California Civil Code provides:
"A general release does not extend to claims
which the creditor does not know or suspect to
exist in his favor at the time of executing the
release, which if known by him must have
materially affected his settlement with the
debtor."
/s/ Xxxx Xxxxx
------------------------------------
Initial Here
Xxxx Xxxxxx 7 November 27, 2001
10. Protective Covenants.
(a) Until such time that the benefits provided under Section 7
of this Agreement expire or terminate, but in no event less than one year
following the termination of your service as director, you agree that you shall
not either directly or indirectly solicit, induce, attempt to hire, recruit,
encourage, take away, hire any employee of the Company or cause an employee to
leave his or her employment either to work with you or for any other entity or
person. The foregoing covenant shall not be deemed to prohibit you from
acquiring an investment of not more than one percent (1%) of the capital stock
of a competing business, whose stock is traded on a national securities exchange
or through the automated quotation system of a registered securities
association. If (i) you are a non-employee member of the Board of Directors of a
company of which an employee or former employee of the Company becomes an
employee and (ii) you have not participated in any way in the solicitation,
inducement, attempt to hire, recruitment or hire of such employee or former
employee, the hiring of such employee by such company will not in and of itself
be deemed to be an indirect hire by you and will not automatically establish
your violation of this covenant absent any other facts and circumstances.
(b) You represent that the companies set forth on Exhibit A are
the companies of which you are currently a member of the board, and that none of
such companies is a competitor of the Company. You acknowledge that you will
abide by any Conflict of Interest Policy applicable to all members of the Board
and in effect from time-to-time by the Company. You further acknowledge that you
are not serving on any of such boards as a representative of the Company and are
not entitled to indemnification from the Company with respect to your role as a
member of any such board and may not disclose any confidential information
concerning the Company in connection with such board membership unless required
by law or such information as has already been publicly disclosed not through
any wrongful act of yours or of others in violation of any applicable
confidentiality agreement or as is in the public domain other than as a result
of a wrongful act by you or someone acting on your behalf. So long as you are
serving as a member of the Board of the Company, you agree that you will not
join any additional boards of other companies without notifying the Board and
complying with the Company's Conflict of Interest Policy applicable to other
members of the Board.
(c) You agree that you will continue to comply with the terms of
the Agreement concerning Certain Duties of Veritas Software Corporation
Employment-Inventions, Trade Secrets, Disclosures (the "INVENTIONS
Xxxx Xxxxxx 8 November 27, 2001
AGREEMENT") in accordance with its terms. Additionally, you will not at any time
(whether during or after your employment with the Company) disclose or use for
your own benefit or purposes or the benefit or purposes of any other person,
firm, partnership, joint venture, association, corporation or other business
organization, entity or enterprise other than the Company and any of its
subsidiaries or affiliates, any trade secrets, confidential data, or other
confidential information relating to customers, development programs, costs,
marketing, trading, investment, sales activities, promotion, credit and
financial data, manufacturing processes, financing methods, plans, or the
business and affairs of the Company generally, or of any subsidiary or affiliate
of the Company, provided that the foregoing shall not apply to information which
is known to the industry or the public other than as a result of your breach of
this covenant. You agree that upon the Resignation Date, you will return to the
Company immediately all memoranda, books, papers, plans, information, letters
and other data, and all copies thereof or therefrom, in any way relating to the
business of the Company and its affiliates except to the extent such material
was provided to you as a director or is necessary for you to perform your duties
as a member of the Board of the Directors. Upon the termination of your services
as a director, you agree to return to the Company all materials relating to the
business of the Company. You further agree that you will not retain or use for
your account at any time any trade names, trademark or other proprietary
business designation used or owned in connection with the business of the
Company or its affiliates.
11. Communications with the Public; No Disparagement.
(a) The Company may, in its discretion, issue a press release, with
your participation and approval, although such approval shall not be
unreasonably withheld, relating to the change in your position with the Company,
and any communications you have with third parties regarding your relationship
with the Company shall be consistent with the statements contained therein.
(b) You agree that, other than as may be required by law, you shall
not make negative statements or representations, or otherwise communicate
negatively, in writing, orally, or otherwise, or take any action which would be
considered by a reasonable person to be, directly or indirectly, disparaging or
damaging to the Company, its subsidiaries, affiliates, successors or their
officers, directors, employees, business or reputation.
(c) The Company agrees that, other than as may be required by law,
it shall not, and shall not authorize any officer, agent, employee or other
representative of the Company to, make negative statements or representations,
or
Xxxx Xxxxxx 9 November 27, 2001
otherwise communicate negatively, directly or indirectly, in writing, orally or
otherwise, concerning your performance of your duties while employed by the
Company, your resignation of employment with the Company or the terms and
conditions of this Agreement to anyone (other than the Company's legal counsel
and accountants or as legally required to be disclosed in the Company's filings
with the Securities and Exchange Commission or otherwise), or in connection
therewith take any action which would be considered by a reasonable person to
be, directly or indirectly, disparaging or be damaging to you.
12. Remedies.
(a) You acknowledge and agree that your and the Company's
remedies at law for a breach or threatened breach of any of the provisions of
Sections 10 or 11 would be inadequate and, in recognition of this fact, you
agree that, in the event of a breach or threatened breach, in addition to any
remedies at law, either party, without posting any bond, shall be entitled to
obtain equitable relief in the form of specific performance, temporary
restraining order, temporary or permanent injunction or any other equitable
remedy which may then be available.
(b) It is expressly understood and agreed that although you and
the Company consider the restrictions contained in Sections 10 or 11 to be
reasonable, if a final judicial determination is made by a court of competent
jurisdiction that any restriction contained in this Agreement is an
unenforceable restriction against you, the provisions of this Agreement shall
not be rendered void but shall be deemed amended to apply to the maximum extent
as such court may judicially determine or indicate to be enforceable.
Alternatively, if any court of competent jurisdiction finds that any restriction
contained in this Agreement is unenforceable, and such restriction cannot be
amended so as to make it enforceable, such finding shall not affect the
enforceability of any of the other restrictions contained herein.
13. Entire Agreement: Amendment. This Agreement shall supersede any and
all agreements between you and the Company, including but not limited to the
Employment Agreement (the "EMPLOYMENT AGREEMENT") dated May 27, 1999 between you
and the Company, and, together with the Inventions Agreement and your Options
Award Agreements, contains the entire understanding of the parties with respect
to your resignation and separation from the Company, except that the terms of
the Inventions Agreement and Options Award Agreements shall continue in full
force and effect. This Agreement may
Xxxx Xxxxxx 10 November 27, 2001
not be altered, modified or amended except by a written agreement signed by both
parties hereto.
14. Effectiveness. This Agreement has been approved by the Company's
Board and is effective as of the date it is executed by both of the parties
hereto.
15. No Waiver. The failure of a party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a waiver of
such party's rights or deprive such party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
16. Severability. In the event that any one or more of the provisions of
this Agreement shall be or become invalid, illegal or unenforceable in any
respect, the validity, legality or enforceability of the remaining provisions of
this Agreement shall not be affected thereby.
17. Assignment. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, representatives,
successors and assigns. This Agreement shall not be assignable by you and shall
be assignable by the Company only to a direct or indirect wholly owned
subsidiary of the Company; provided that no such assignment by the Company shall
relieve the Company of any liability hereunder, whether accrued before or after
such assignment.
18. Acknowledgement. You acknowledge that you have carefully read this
Agreement, fully understand and accept all of its provisions and sign it
voluntarily of your own free will. You further acknowledge that you have been
provided a full opportunity to review and reflect on the terms of this Agreement
and to seek the advice of legal counsel of your choice.
19. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
20. Counterparts. This Agreement may be signed in counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
Xxxx Xxxxxx 11 November 27, 2001
Sincerely,
VERITAS SOFTWARE CORPORATION
By: /s/ Xxxx Xxxxx (as of 11/28/01)
-------------------------------------
Accepted and Agreed:
/s/ Xxxx Xxxxxx (as of 11/27/01)
--------------------------------
Xxxx Xxxxxx
EXHIBIT A
Kenamea, Inc.
Zaplet, Inc.
Brocade Communications, Inc.
Keynote Systems, Inc.
Avaya, Inc.
VMWare
Model N
Vertex Venture Holdings
Post X
EXHIBIT B
XXXXXX OPTIONS -- BIFURCATION
TOTAL
TOTAL TOTAL
EXERCISE OPTIONS DIRECTOR EMPLOYEE UNVESTED UNVESTED UNVESTED
GRANT DATE PRICE OUTSTANDING OPTIONS OPTIONS @12/31/01 DIRECTOR EMPLOYEE
---------- -------- ----------- -------- --------- --------- -------- -------
28-Jul-94 $ 0.2963 81,697 8,170 73,527 -- 0 0
3-Aug-95 $ 1.6626 455,625 60,750 394,875 -- 0 0
23-Jul-96 $ 2.0082 759,375 60,750 698,625 -- 0 0
19-Jun-97 $ 4.7901 860,616 60,750 799,866 -- 0 0
14-Apr-98* $ 8.7037 556,874 60,750 496,124 69,609 7,594 62,015
25-May-99 $17.5555 719,999 29,250 690,749 269,999 10,969 259,030
13-Apr-00 $91.6875 640,000 9,750 630,250 400,000 6,094 393,906
4-Apr-01 $39.4500 100,224 6,500 93,724 83,250 5,399 77,851
--------- ------- --------- ------- ------ -------
Total 4,174,410 296,670 3,877,740 822,858 30,055 792,803
========= ======= ========= ======= ====== =======
*The 28-July-94 options represent the outstanding and unexercised portion of the
total 607,500 granted.
