VERITAS SOFTWARE CORPORATION
1993 DIRECTORS STOCK OPTION PLAN
AS ADOPTED OCTOBER 1, 1993, AMENDED JANUARY 26, 1994, AMENDED
OCTOBER 19, 1994, AMENDED APRIL 20, 1995, AMENDED APRIL 17, 1996,
AMENDED JANUARY 12, 1997, AMENDED APRIL 15, 1999 AND AMENDED
OCTOBER 14, 1999 (EFFECTIVE JANUARY 1, 1999)
1. PURPOSE. This Stock Option Plan (this 'Plan') is established to provide
equity incentives for nonemployee members of the Board of Directors of VERITAS
Software Corporation, a corporation organized under the laws of the State of
Delaware, any successor corporation thereto and any corporation that assumes the
Plan (the 'Company') who are described in Section 6.1 below, by granting such
persons options to purchase shares of stock of the Company.
2. ADOPTION AND SHAREHOLDER APPROVAL. This Plan shall become effective on
the date that it is adopted by the Board of Directors (the 'Board') of the
Company. This Plan shall be approved by the affirmative vote or written consent
of the holders of a majority of the outstanding shares of Common Stock of the
Company, within twelve months after the date this Plan is adopted by the Board.
Upon the effective date of this Plan, options under this Plan ('Options') may be
granted provided that, in the event that shareholder approval is not obtained
within the time period provided herein, this Plan, and all Options granted
hereunder, shall terminate. No Option that is issued as a result of any increase
in the number of shares authorized to be issued under this Plan shall be
exercised prior to the time such increase has been approved by the shareholders
of the Company and all such Options granted pursuant to such increase shall
similarly terminate if such shareholder approval is not obtained.
3. TYPES OF OPTIONS AND SHARES. Options granted under this Plan shall be
nonqualified stock options ('NQSOs'). The shares of stock that may be purchased
upon exercise of Options granted under this Plan (the 'Shares') are shares of
the Common Stock of the Company or any successor security.
4. NUMBER OF SHARES. The maximum number of Shares that may be issued
pursuant to Options granted under this Plan is 562,500 Shares, subject to
adjustment as provided in this Plan. If any Option is terminated for any reason
without being exercised in whole or in part, the Shares thereby released from
such Option shall be available for purchase under other Options subsequently
granted under this Plan. At all times during the term of this Plan, the Company
shall reserve and keep available such number of Shares as shall be required to
satisfy the requirements of outstanding Options under this Plan. The numbers of
Shares represented in this Plan are stated as of January 1, 1999, and therefore
do not reflect the two-for-one stock split announced by the Board on June 7,
1999 and paid as a stock dividend on July 8, 1999 to stockholders of record on
June 18, 1999.
5. ADMINISTRATION. This Plan shall be administered by the Board or by a
committee of not less than two members of the Board appointed to administer this
Plan (the 'Committee'). As used in this Plan, references to the Committee shall
mean either such Committee or the Board if no committee has been established.
The interpretation by the Committee of any of the provisions of this Plan or any
Option granted under this Plan shall be final and binding upon the Company and
all persons having an interest in any Option or any Shares purchased pursuant to
an Option.
6. ELIGIBILITY AND AWARD FORMULA.
6.1 ELIGIBILITY. Options may be granted only to directors of the Company
who are not employees of the Company or any Parent, Subsidiary or Affiliate of
the Company, as those terms are defined in Section 17 below (each an
'Optionee'). Directors who are consultants and independent contractors of the
Company or of any Parent, Subsidiary or Affiliate of the Company are eligible to
participate in the Directors Plan.
6.2 INITIAL GRANT. Each Optionee who is first elected or reelected to
the Board after the effective date of the Company's registration statement (the
'Registration Statement') filed with, and declared effective by, the Securities
and Exchange Commission (the 'SEC') under the Securities Act of 1933, as amended
(the '1933 Securities Act') on or after January 1, 1999 will automatically be
granted an option for 25,000 Shares on the later of (i) the date such Optionee
is first elected or reelected to the Board or (ii) the date his or her most
recent prior option becomes fully vested as to all Shares or terminates (whether
such option was granted under this Plan, the Company's 1993 Equity Incentive
Plan or otherwise) (the 'Initial Grant'). An Optionee who has received an
Initial Grant or a Succeeding Grant prior to any assumption of this Plan shall
not be granted an Initial Grant. The Board will have the discretion to increase
the number of Shares subject to the Initial Grant to 54,000 Shares without
shareholder approval.
6.3 SUCCEEDING GRANTS. On the anniversary date of his or her most recent
prior option (whether such option was granted under this Plan, the Company's
1993 Equity Incentive Plan or otherwise) Optionee will automatically be granted
an Option for 6,500 Shares, provided that Optionee is still a member of the
Board (a 'Succeeding Grant'). Notwithstanding the foregoing, an Optionee shall
not receive a Succeeding Grant earlier than the first anniversary of his or her
Initial Grant. The Board will have the discretion to increase the number of
Shares subject to a Succeeding Grant to 13,500 Shares without shareholder
approval.
6.4 MAXIMUM SHARES. The maximum number of Shares that may be issued to
any one director under this Plan is 108,000. No grant will be made, however, if
such grant will cause the number of Shares issued or subject to outstanding
Options under this Plan to exceed the number specified in Section 4 above.
7. TERMS AND CONDITIONS OF OPTIONS. Subject to the following and to Section
6 above:
7.1 FORM OF OPTION GRANT. Each Option granted under this Plan shall be
evidenced by a written Stock Option Grant ('Grant') in such form (which need not
be the same for each Optionee) as the Committee shall from time to time approve,
which Grant shall comply with and be subject to the terms and conditions of this
Plan.
7.2 VESTING. The date an Optionee is first elected or reelected to the
Board for the first time, as to the Initial Grant, and the date a Succeeding
Grant is granted, is referred to in this Plan as the 'Start Date' for such
Option. Each Initial Grant granted prior to January 1, 1999 will vest as to
3,375 Shares subject to it on the last day of each calendar quarter (not to
exceed 13,500 Shares per year); provided that Optionee attended at least one
Board meeting during such quarter and provided further that the Board meeting
Optionee attended occurred after the date of grant. Each Initial Grant granted
on or after January 1, 1999 will vest as to 521 Shares subject to it on the last
day of each calendar month (not to exceed 6,250 Shares per year). Each
Succeeding Grant granted prior to January 1, 1999 will vest as to 844 Shares
subject to it on the last day of each calendar quarter (not to exceed 3,375
Shares per year); provided that Optionee attended at least one Board meeting
during such quarter and provided further that the Board meeting Optionee
attended occurred after the date of grant. Each Succeeding Grant granted on or
after January 1, 1999 will vest as to 135 Shares per calendar month (not to
exceed 1,625 Shares per year). Initial Grants granted on or after April 17, 1996
and Succeeding Grants shall be exercisable immediately upon grant for a period
of ten years. Exercised unvested Shares shall be subject to a right of
repurchase in the Company at the original purchase price that lapses as such
Shares vest. Each Option will fully vest as to any Shares that remain unvested
on the day immediately preceding the tenth anniversary of the Start Date of such
Option. Each outstanding Option shall be exercisable and vest in accordance with
the Grant by which it was originally granted.
7.3 EXERCISE PRICE. The exercise price of an Option shall be the Fair
Market Value (as defined in Section 17.4) of the Shares, at the time that the
Option is granted.
7.4 TERMINATION OF OPTION. Except as provided below in this Section,
this Option shall terminate and may not be exercised if Optionee ceases to be a
member of the Board or a consultant of the Company. The date on which Optionee
ceases to be a member of the Board or a consultant of the Company shall be
referred to as the 'Termination Date.'
(a) Termination Generally. If Optionee ceases to be a member of the
Board or a consultant of the Company for any reason except death or disability,
this Option, to the extent (and only to the extent) that it would have been
exercisable by Optionee on the Termination Date, may be exercised by Optionee
within six (6) months after the Termination Date, but in no event later than the
Expiration Date.
(b) Death or Disability. If Optionee ceases to be a member of the
Board or a consultant of the Company because of the death of Optionee or the
disability of Optionee within the meaning of Section 22(e)(3) of the Internal
Revenue Code of 1986, as amended, (the 'Code') this Option, to the extent (and
only to the extent) that it would
have been exercisable by Optionee on the Termination Date, may be exercised by
Optionee (or Optionee's legal representative) within twelve (12) months after
the Termination Date, but in no event later than the Expiration Date.
8. EXERCISE OF OPTIONS.
8.1 NOTICE. Options may be exercised only by delivery to the Company of
an exercise agreement in a form approved by the Committee, stating the number of
Shares being purchased, the restrictions imposed on the Shares and such
representations and agreements regarding the Optionee's investment intent and
access to information as may be required by the Company to comply with
applicable securities laws, together with payment in full of the exercise price
for the number of Shares being purchased.
8.2 PAYMENT. Payment for the Shares may be made (a) in cash or by check;
(b) by surrender of shares of Common Stock of the Company that have been owned
by Optionee for more than six (6) months (and which have been paid for within
the meaning of SEC Rule 144 and, if such shares were purchased from the Company
by use of a promissory note, such note has been fully paid with respect to such
shares) or were obtained by the Optionee in the open public market, having a
Fair Market Value equal to the exercise price of the Option; (c) by waiver of
compensation due or accrued to Optionee for services rendered; (d) provided that
a public market for the Company's stock exists, through a 'same day sale'
commitment from Optionee and a broker-dealer that is a member of the National
Association of Securities Dealers (a 'NASD Dealer') whereby Optionee irrevocably
elects to exercise the Option and to sell a portion of the Shares so purchased
to pay for the exercise price and whereby the NASD Dealer irrevocably commits
upon receipt of such Shares to forward the exercise price directly to the
Company; (e) provided that a public market for the Company's stock exists,
through a 'margin' commitment from Optionee and a NASD Dealer whereby Optionee
irrevocably elects to exercise the Option and to pledge the Shares so purchased
to the NASD Dealer in a margin account as security for a loan from the NASD
Dealer in the amount of the exercise price, and whereby the NASD Dealer
irrevocably commits upon receipt of such Shares to forward the exercise price
directly to the Company; or (f) by any combination of the foregoing.
8.3 WITHHOLDING TAXES. Prior to issuance of the Shares upon exercise of
an Option, Optionee shall pay or make adequate provision for any federal or
state withholding obligations of the Company, if applicable.
8.4 LIMITATIONS ON EXERCISE. Notwithstanding the exercise periods set
forth in the Grant, exercise of an Option shall always be subject to the
following limitations:
(a) An Option shall not be exercisable unless such exercise is in
compliance with the 1933 Securities Act and all applicable state securities
laws, as they are in effect on the date of exercise.
(b) The Committee may specify a reasonable minimum number of Shares
that may be purchased on any exercise of an Option, provided that such minimum
number will not prevent Optionee from exercising the full number of Shares as to
which the Option is then exercisable.
9. NONTRANSFERABILITY OF OPTIONS. During the lifetime of Optionee, an
Option shall be exercisable only by Optionee or by Optionee's guardian or legal
representative, unless otherwise permitted by the Committee. No Option may be
sold, pledged, assigned, hypothecated, transferred or disposed of in any manner
other than by will or by the laws of descent and distribution.
10. PRIVILEGES OF STOCK OWNERSHIP. No Optionee shall have any of the rights
of a shareholder with respect to any Shares subject to an Option until the
Option has been validly exercised. No adjustment shall be made for dividends or
distributions or other rights for which the record date is prior to the date of
exercise, except as provided in this Plan. The Company shall provide to each
Optionee a copy of the annual financial statements of the Company, at such time
after the close of each fiscal year of the Company as they are released by the
Company to its shareholders.
11. ADJUSTMENT OF OPTION SHARES. In the event that the number of
outstanding shares of Common Stock of the Company is changed by a stock
dividend, stock split, reverse stock split, combination, reclassification or
similar change in the capital structure of the Company without consideration,
the number of Shares available under this Plan, the maximum number of Shares
that can be granted to a director and the number of Shares subject to
outstanding Options, the number of Shares vesting per quarter or per month and
the exercise price per Share of such Options shall be proportionately adjusted,
subject to any required action by the Board or shareholders of the Company and
compliance with applicable securities laws; provided, however, that no
certificate or scrip representing fractional shares shall be issued upon
exercise of any Option and any resulting fractions of a Share shall be ignored;
provided further, however, that in the event that the number of shares of Common
Stock of the Company is changed by a stock dividend or a stock split without
consideration, the Board will have the discretion not to proportionately adjust
the number of Shares subject to each Initial Grant and the number of Shares
subject to each Succeeding Grant, and the number of Shares to vest per month
subject to such Initial Grants and Succeeding Grants.
12. NO OBLIGATION TO EMPLOY. Nothing in this Plan or any Option granted
under this Plan shall confer on any Optionee any right to continue as a director
or a consultant of the Company.
13. COMPLIANCE WITH LAWS. The grant of Options and the issuance of Shares
upon exercise of any Options shall be subject to and conditioned upon compliance
with all applicable requirements of law, including without limitation compliance
with the 1933 Securities Act, any required approval by the Commissioner of
Corporations of the State of California, compliance with all other applicable
state securities laws and compliance with the requirements of any stock exchange
or national market system on which the
Shares may be listed. The Company shall be under no obligation to register the
Shares with the Securities and Exchange Commission or to effect compliance with
the registration or qualification requirement of any state securities laws,
stock exchange or national market system.
14. ACCELERATION OF OPTIONS BY SUCCESSORS. In the event of a dissolution or
liquidation of the Company, a merger in which the Company is not the surviving
corporation, the sale of substantially all of the assets of the Company, or any
other transaction which qualifies as a 'corporate transaction' under Section 424
of the Code wherein the shareholders of the Company give up all of their equity
interest in the Company (except for the acquisition of all or substantially all
of the outstanding shares of the Company) the vesting of all options granted
pursuant to the Plan will accelerate and the options will become exercisable in
full prior to the consummation of such event at such times and on such
conditions as the Committee determines.
15. AMENDMENT OR TERMINATION OF PLAN. The Committee may at any time
terminate or amend this Plan but not the terms of any outstanding option;
provided, however, that the Committee shall not, without the approval of the
shareholders of the Company, increase the total number of Shares available under
this Plan (except by operation of the provisions of Sections 4 and 11 above) or
change the class of persons eligible to receive Options. In any case, no
amendment of this Plan may adversely affect any then outstanding Options or any
unexercised portions thereof without the written consent of Optionee.
16. TERM OF PLAN. Options may be granted pursuant to this Plan from time to
time within a period of ten (10) years from the date this Plan is adopted by the
Board of Directors.
17. CERTAIN DEFINITIONS. As used in this Plan, the following terms shall
have the following meanings:
17.1 'Parent' means any corporation (other than the Company) in an
unbroken chain of corporations ending with the Company if, at the time of the
granting of the Option, each of such corporations other than the Company owns
stock possessing 50% or more of the total combined voting power of all classes
of stock in one of the other corporations in such chain.
17.2 'Subsidiary' means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if, at the time of
granting of the Option, each of the corporations other than the last corporation
in the unbroken chain owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other corporations in such
chain.
17.3 'Affiliate' means any corporation that directly, or indirectly
through one or more intermediaries, controls or is controlled by, or is under
common control with, another corporation, where 'control' (including the terms
'controlled by' and 'under
common control with') means the possession, direct or indirect, of the power to
cause the direction of the management and policies of the corporation, whether
through the ownership of voting securities, by contract or otherwise.
17.4 'Fair Market Value' shall mean the fair market value of the Shares
as determined by the Committee from time to time in good faith. If a public
market exists for the Shares, the Fair Market Value shall be the average of the
last reported bid and asked prices for the common stock of the Company on the
last trading day prior to the date of determination, or, in the event the common
stock of the Company is listed on the Nasdaq National Market, the Fair Market
Value shall be the average of the high and low prices of the common stock on the
option grant date as quoted on the Nasdaq National Market and reported in The
Wall Street Journal.
INITIAL GRANT
VERITAS SOFTWARE CORPORATION
DIRECTORS NONQUALIFIED STOCK OPTION GRANT
Optionee:
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Address:
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Total Shares Subject to Option: 25,000
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Exercise Price Per Share:
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Date of Grant:
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Expiration Date:
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1. GRANT OF OPTION. VERITAS SOFTWARE CORPORATION, a Delaware corporation
(the 'Company'), has granted to the optionee named above ('Optionee') an option
(this 'Option') to purchase the total number of shares of Common Stock of the
Company set forth above (the 'Shares') at the exercise price per share set forth
above (the 'Exercise Price'), subject to all of the terms and conditions of this
Grant and the Company's 1993 Directors Stock Option Plan, as amended through
October 14, 1999 (the 'Plan'). Unless otherwise defined herein, capitalized
terms used herein shall have the meanings ascribed to them in the Plan.
2. EXERCISE PERIOD OF OPTION. Subject to the terms and conditions of the
Plan and this Grant, this Option shall be exercisable immediately upon the Date
of Grant and thereafter, subject to earlier termination in accordance with
Section 4 below. This Option shall be exercisable until the Expiration Date,
subject to earlier termination in accordance with Section 4 below. Shares that
are exercised but that have not yet vested in accordance with this Section 2
('Unvested Shares'), shall be subject to a right of repurchase in the Company at
the Exercise Price that lapses as such exercised Shares vest. Subject to the
terms and conditions of the Plan and this Grant, this Option will vest as to 521
Shares subject to it on the last day of each calendar month (not to exceed 6,250
Shares per year). This Option shall fully vest as to any Shares that remain
unvested on the day immediately preceding the tenth anniversary of the Start
Date.
3. RESTRICTION ON EXERCISE. This Option may not be exercised unless such
exercise is in compliance with the 1933 Securities Act, and all applicable state
securities laws, as they are in effect on the date of exercise, and the
requirements of any stock exchange or national market system on which the
Company's Common Stock may be listed at the time of exercise. Optionee
understands that the Company is under no obligation to register,
VERITAS Software Corporation
Director's Nonqualified
Stock Option Grant
Initial Grant
qualify or list the Shares with the SEC, any state securities commission or any
stock exchange or national market system to effect such compliance. No
fractional shares shall be issued upon exercise of this Option.
4. TERMINATION OF OPTION. Except as provided below in this Section, this
Option shall terminate and may not be exercised on or after the date Optionee
ceases to be a Board Member or a consultant of the Company. The date on which
Optionee ceases to be a Board Member or a consultant of the Company shall be
referred to as the 'Termination Date.'
4.1 Termination Generally. If Optionee ceases to be a Board Member
or a consultant of the Company for any reason except for Optionee's death or
disability, within the meaning of Section 22(e)(3) of the Code, this Option, to
the extent (and only to the extent) that it is vested in accordance with Section
2 above on the Termination Date, may be exercised by Optionee within six (6)
months after the Termination Date, but in no event later than the Expiration
Date.
4.2 Death or Disability. If Optionee ceases to be a Board Member or
a consultant of the Company because of the death of Optionee or the disability
of Optionee, within the meaning of Section 22(e)(3) of the Code, this Option, to
the extent (and only to the extent) that it is vested in accordance with Section
2 above on the Termination Date, may be exercised by Optionee (or Optionee's
legal representative) within twelve (12) months after the Termination Date, but
in no event later than the Expiration Date.
5. MANNER OF EXERCISE.
5.1 Exercise Agreement. This Option shall be exercisable by
delivery to the Company of an executed written Directors Stock Option Exercise
Agreement in the form attached hereto as Exhibit A, or in such other form as may
be approved by the Board or the committee thereof that administers the Plan,
which shall set forth Optionee's election to exercise some or all of this
Option, the number of Shares being purchased, any restrictions imposed on the
Shares and such other representations and agreements as may be required by the
Company to comply with applicable securities laws.
5.2 Payment. Payment for the Shares may be made (a) in cash or by
check; (b) by surrender of shares of Common Stock of the Company that have been
owned by Optionee for more than six (6) months (and which have been paid for
within the meaning of SEC Rule 144 and, if such shares were purchased from the
Company by use of a promissory note, such note has been fully paid with respect
to such shares) or were obtained by Optionee in the open public market; (c) by
waiver of compensation due or accrued to Optionee for services rendered; (d)
provided that a public market for the Company's stock exists, through a 'same
day sale' commitment from Optionee and a broker-dealer that is a member of the
National Association of Securities Dealers (an 'NASD Dealer') whereby Optionee
irrevocably elects to exercise the Option and to sell a portion of the Shares so
purchased to pay for the Exercise Price and whereby the NASD Dealer irrevocably
commits upon receipt of such Shares to forward the Exercise Price directly to
the Company; (e) provided that a
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public market for the Company's stock exists, through a 'margin' commitment from
Optionee and an NASD Dealer whereby Optionee irrevocably elects to exercise the
Option and to pledge the Shares so purchased to the NASD Dealer in a margin
account as security for a loan from the NASD Dealer in the amount of the
Exercise Price, and whereby the NASD Dealer irrevocably commits upon receipt of
such Shares to forward the Exercise Price directly to the Company; or (f) by any
combination of the foregoing.
5.3 Withholding Taxes. Prior to the issuance of the Shares upon
exercise of this Option, Optionee shall pay or make adequate provision for any
applicable federal or state withholding obligations of the Company.
5.4 Issuance of Shares. Provided that such notice and payment are
in form and substance satisfactory to counsel for the Company, the Company shall
cause the Shares to be issued in the name of Optionee or Optionee's legal
representative.
6. COMPANY'S RIGHT OF REPURCHASE. The Company reserves a right to
repurchase Unvested Shares at the Exercise Price at any time within ninety (90)
days after Optionee's Termination Date for cash and/or cancellation of purchase
money indebtedness.
7. NONTRANSFERABILITY OF OPTION. During the lifetime of Optionee, this
Option shall be exercisable only by Optionee or by Optionee's guardian or legal
representative, unless otherwise permitted by the Committee. No Option may be
sold, pledged, assigned, hypothecated, transferred or disposed of in any manner
other than by will or by the laws of descent and distribution.
8. INTERPRETATION. Any dispute regarding the interpretation of this
Grant shall be submitted by Optionee or the Company to the Board or the
committee thereof that administers the Plan, which shall review such dispute at
its next regular meeting. The resolution of such a dispute by the Board or
committee shall be final and binding on the Company and on Optionee. Nothing in
the Plan or this Grant shall confer on Optionee any right to continue as a Board
Member, employee, officer or consultant of the Company.
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9. ENTIRE AGREEMENT. The Plan and the Directors Stock Option Exercise
Agreement are incorporated herein by this reference. This Grant, the Plan and
the Directors Stock Option Exercise Agreement constitute the entire agreement of
the parties hereto and supersede all prior undertakings and agreements with
respect to the subject matter hereof.
VERITAS SOFTWARE CORPORATION
By:
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Name:
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Title:
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ACCEPTANCE
Optionee hereby acknowledges receipt of a copy of the Plan, represents
that Optionee has read and understands the terms and provisions thereof, and
accepts this Option subject to all the terms and conditions of the Plan and this
Grant. Optionee acknowledges that there may be adverse tax consequences upon
exercise of this Option or disposition of the Shares and that Optionee should
consult a qualified tax advisor prior to such exercise or disposition.
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Optionee
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INITIAL GRANT
EXHIBIT A
VERITAS SOFTWARE CORPORATION
DIRECTORS STOCK OPTION EXERCISE AGREEMENT
This Agreement is made this ___ day of ____________, _____ between
VERITAS Software Corporation (the 'Company'), and the optionee named below
('Optionee') with respect to the Directors Nonqualified Stock Option Grant dated
as of the Date of Option Grant set forth below (the 'Grant') issued to Optionee
under the Company's 1993 Directors Stock Option Plan, as amended through October
14, 1999 (the 'Plan'). Capitalized terms used herein that are not defined herein
have the definitions ascribed to them in the Plan or the Grant.
Optionee:
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Social Security Number:
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Address:
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Number of Shares Purchased:
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Price per Share:
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Aggregate Purchase Price:
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Date of Option Grant:
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Optionee hereby delivers to the Company the Aggregate Purchase Price, to the
extent permitted in the Grant, as follows (check as applicable and complete):
[ ] in cash or check in the amount of $_________, receipt of which is
acknowledged by the Company;
[ ] by delivery of ________ fully-paid, nonassessable and vested shares of
the Common Stock of the Company owned by Optionee for at least six (6)
months prior to the date hereof (and which have been paid for within the
meaning of SEC Rule 144), or obtained by Optionee in the open public
market, and owned free and clear of all liens, claims, encumbrances or
security interests, valued at the current Fair Market Value of $______ per
share;
VERITAS Software Corporation
Director's Nonqualified
Stock Option Grant
Initial Grant
[ ] by the waiver hereby of compensation due or accrued to Optionee for
services rendered in the amount of $______________;
[ ] through a 'same-day-sale' commitment, delivered herewith, from Optionee
and the NASD Dealer named therein in the amount of $____________; or
[ ] through a 'margin' commitment, delivered herewith from Optionee and the
NASD Dealer named therein in the amount of $______________.
Optionee hereby also delivers to the Company (i) this executed Agreement. If the
Option is being exercised with respect to Shares in which the Option has not yet
vested, Optionee hereby also delivers to the Company two (2) copies of a blank
Stock Power and Assignment Separate from Stock Certificate in the form of
Exhibit 1 attached hereto (the 'Stock Powers'), both executed by Optionee (and
Optionee's spouse, if any).
Upon its receipt of the Aggregate Purchase Price and all the documents to be
executed and delivered by Optionee to the Company under the above paragraph, the
Company will issue a duly executed stock certificate evidencing the Shares in
the name of Optionee to be placed in escrow as provided in Section 3 below until
expiration or termination of the Company's Repurchase Option described in
Section 2 below.
The Company and Optionee hereby agree as follows:
1. PURCHASE OF SHARES. On this date and subject to the terms and
conditions of this Agreement, Optionee hereby exercises the Grant with respect
to the Number of Shares Purchased set forth above of the Company's Common Stock
(the 'Shares') at an aggregate purchase price equal to the Aggregate Purchase
Price set forth above and the Price per Share set forth above. The term 'Shares'
refers to the Shares purchased under this Agreement and includes all securities
received in replacement of the Shares and as a result of stock dividends or
stock splits in respect of the Shares.
2. COMPANY'S RIGHT OF REPURCHASE. On the terms and conditions set forth
in this Section, the Company, or its assignee, reserves the right to repurchase
Shares that are exercised pursuant to this Agreement that are not vested, in
accordance with Section 2 of the Grant, on Optionee's Termination Date (the
'Unvested Shares') (the 'Repurchase Option') if Optionee ceases to be a Board
Member or a consultant to the Company for any reason, or no reason, including
without limitation Optionee's death, disability within the meaning of Code
Section 22(3)(3), voluntary resignation or termination by the Company with or
without cause.
2.1 Termination and Termination Date. The Committee shall have
discretion to determine whether Optionee has ceased to be a Board Member or a
consultant to the Company and Optionee's Termination Date.
2.2 Exercise of Repurchase Option. At any time within ninety (90)
days after the Optionee's Termination Date, the Company, or its assignee, may
elect to repurchase the
Optionee's Unvested Shares by giving Optionee written notice of the Company's
exercise of the Repurchase Option.
2.3 Calculation of Repurchase Price. The Company or its assignee
shall have the option to repurchase from Optionee (or from Optionee's personal
representative as the case may be) the Unvested Shares at the Optionee's
Exercise Price, proportionately adjusted for any stock split or similar change
in the capital structure of the Company as set forth in Section 11 of the Plan.
2.4 Payment of Repurchase Price. The repurchase price shall be
payable, at the option of the Company or its assignee, by check or by
cancellation of all or a portion of any outstanding indebtedness of Optionee to
the Company or such assignee, or by any combination thereof. The repurchase
price shall be paid without interest within sixty (60) days after exercise of
the Repurchase Option.
2.5 Right of Termination Unaffected. Nothing in this Agreement
shall be construed to limit or otherwise affect in any manner whatsoever the
right or power of the Company (or any Parent or Subsidiary of the Company) to
terminate Optionee's relationship with Company (or the Parent or Subsidiary of
the Company) at any time, for any reason or no reason, with or without cause.
3. ESCROW. As security for Optionee's faithful performance of this
Agreement, Optionee agrees, immediately upon receipt of the stock certificate(s)
evidencing the Shares, to deliver such certificate(s), together with the Stock
Powers executed by Optionee and by Optionee's spouse, if any (with the date and
number of Shares left blank), to the Secretary of the Company or other designee
of the Company ('Escrow Holder'), who is hereby appointed to hold such
certificate(s) and Stock Powers in escrow and to take all such actions and to
effectuate all such transfers and/or releases of such Shares as are in
accordance with the terms of this Agreement. Optionee and the Company agree that
Escrow Holder will not be liable to any party to this Agreement (or to any other
party) for any actions or omissions unless Escrow Holder is grossly negligent or
intentionally fraudulent in carrying out the duties of Escrow Holder under this
Agreement. Escrow Holder may rely upon any letter, notice or other document
executed by any signature purported to be genuine and may rely on the advice of
counsel and obey any order of any court with respect to the transactions
contemplated by this Agreement. The Shares will be released from escrow upon
termination in full of the Repurchase Option. At Optionee's request, the Escrow
Holder will release the Shares from escrow after the Shares have vested.
4. REPRESENTATIONS OF OPTIONEE. Optionee represents and warrants to the
Company that Optionee acknowledges that Optionee has received, read and
understood the Plan and the Grant and agrees to abide by and be bound by their
terms and conditions.
5. COMPLIANCE WITH SECURITIES LAWS. Optionee understands that the Shares
have been registered on Form S-8 under the 1933 Securities Act.
6. RESTRICTIVE LEGENDS AND STOP-TRANSFER ORDERS.
6.1 Legends. Optionee understands and agrees that the Company will
place the legends set forth below or similar legends on any stock certificate(s)
evidencing the Shares, together with any other legends that may be required by
state or federal securities laws, the Company's Articles of Incorporation or
Bylaws, any other agreement between Optionee and the Company.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT
OF REPURCHASE OPTION HELD BY THE ISSUER AND/OR ITS ASSIGNEE(S) AS
SET FORTH IN A DIRECTORS STOCK OPTION EXERCISE AGREEMENT BETWEEN
THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH
MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH RIGHT
OF REPURCHASE IS BINDING ON TRANSFEREES OF THESE SHARES.
6.2 Stop-Transfer Instructions. Optionee understands and agrees
that, to ensure compliance with the restrictions imposed by this Agreement, the
Company may issue appropriate 'stop-transfer' instructions to its transfer
agent, if any, and if the Company transfers its own securities, it may make
appropriate notations to the same effect in its own records.
6.3 Refusal to Transfer. The Company will not be required (i) to
transfer on its books any Shares that have been sold or otherwise transferred in
violation of any of the provisions of this Agreement or (ii) to treat as owner
of such Shares, or to accord the right to vote or pay dividends to any purchaser
or other transferee to whom such Shares have been so transferred.
7. TAX CONSEQUENCES. OPTIONEE UNDERSTANDS THAT OPTIONEE MAY SUFFER
ADVERSE TAX CONSEQUENCES AS A RESULT OF OPTIONEE'S PURCHASE OR DISPOSITION OF
THE SHARES. OPTIONEE REPRESENTS THAT OPTIONEE HAS CONSULTED WITH ANY TAX
CONSULTANT(S) OPTIONEE DEEMS ADVISABLE IN CONNECTION WITH THE PURCHASE OR
DISPOSITION OF THE SHARES AND THAT OPTIONEE IS NOT RELYING ON THE COMPANY FOR
ANY TAX ADVICE. IN PARTICULAR, OPTIONEE REPRESENTS THAT OPTIONEE HAS CONSULTED
WITH OPTIONEE'S TAX ADVISORS CONCERNING THE ADVISABILITY OF FILING A SECTION
83(b) ELECTION WITH THE INTERNAL REVENUE SERVICE.
7.1 Section 83(b) Election for Unvested Shares. With respect to
Unvested Shares, which are subject to the Repurchase Option, unless an election
is filed by Optionee with the Internal Revenue Service (and, if necessary, the
proper state taxing authorities), within 30 days of the purchase of the Unvested
Shares, electing pursuant to Section 83(b) of the Internal Revenue Code (and
similar state tax provisions, if applicable) to be taxed currently on any
difference between the Exercise Price of the Unvested Shares and their Fair
Market Value on the date of purchase, there may be a recognition of taxable
income to the Optionee, measured by the excess, if any, of the Fair Market Value
of the Unvested Shares at the time they cease to be Unvested Shares, over the
Exercise Price of the Unvested Shares. A Section 83(b) election form is attached
hereto as Exhibit 4.
8. ENTIRE AGREEMENT. The Plan and Grant are incorporated herein by
reference. This Agreement, the Plan and the Grant constitute the entire
agreement of the parties and supersede in their entirety all prior undertakings
and agreements of the Company and Optionee with respect to the subject matter
hereof, and are governed by California law except for that body of law
pertaining to conflict of laws.
9. TITLE. Optionee desires to take title to the Shares as follows:
( )Individual, as separate property
( )Husband and wife, as community property
( )Husband and wife, as Joint Tenants
( )Husband and wife, as Tenants in Common
The exact spelling of name(s) under which title to the Shares is to be
taken is:_______________________________________________________________________
________________________________________________________________________________
Submitted by: Accepted by:
OPTIONEE: VERITAS SOFTWARE CORPORATION
-----------------------------------
(print name)
--------------------------------------------- By
(signature) --------------------------
Dated: Dated
-------------------------------------- -----------------------
LIST OF EXHIBITS
Exhibit 1: Stock Power and Assignment Separate from Stock Certificate
Exhibit 2: Copy of Optionee's Check or other Evidence of Optionee's Payment of
Exercise Price
Exhibit 3: Section 83(b) Election
INITIAL GRANT
EXHIBIT 1
STOCK POWER AND ASSIGNMENT
SEPARATE FROM STOCK CERTIFICATE
INITIAL GRANT
STOCK POWER AND ASSIGNMENT
SEPARATE FROM STOCK CERTIFICATE
FOR VALUE RECEIVED and pursuant to that certain Directors Stock
Option Exercise Agreement dated as of _______________, _____, (the 'Agreement'),
the undersigned hereby sells, assigns and transfers unto
_______________________________, shares of the Common Stock of VERITAS Software
Corporation (the 'Company'), standing in the undersigned's name on the books of
the Company represented by Certificate No(s). ______ delivered herewith, and
does hereby irrevocably constitute and appoint the Secretary of the Company as
the undersigned's attorney-in-fact, with full power of substitution, to transfer
said stock on the books of the Company. THIS ASSIGNMENT MAY ONLY BE USED AS
AUTHORIZED BY THE AGREEMENT AND ANY EXHIBITS THERETO.
Dated: _______________, ______
OPTIONEE
-----------------------------
(Signature)
-----------------------------
(Please Print Name)
-----------------------------
(Spouse's Signature, if any)
-----------------------------
(Please Print Spouse's Name)
INSTRUCTIONS: Please do not fill in any blanks other than the signature line.
The purpose of this Stock Power and Assignment is to enable the Company to
acquire the shares upon exercise of its 'Repurchase Option' set forth in the
Agreement without requiring additional signatures on the part of the Optionee or
Optionee's Spouse, if any.
INITIAL GRANT
EXHIBIT 2
COPY OF OPTIONEE'S CHECK OR OTHER EVIDENCE
OF OPTIONEE'S PAYMENT OF EXERCISE PRICE
INITIAL GRANT
EXHIBIT 3
SECTION 83(b) ELECTION
[FOR REGULAR INCOME TAX - NONQUALIFIED OPTIONS]
ELECTION UNDER SECTION 83(b) OF THE
INTERNAL REVENUE CODE
The undersigned Taxpayer hereby elects, pursuant to Section 83(b) of the
Internal Revenue Code of 1986, as amended, to include the excess, if any, of the
fair market value of the property described below at the time of transfer over
the amount paid for such property, as compensation for services in the
calculation of regular gross income.
1. TAXPAYER'S NAME:
-------------------------------------------------
TAXPAYER'S ADDRESS:
-------------------------------------------------
-------------------------------------------------
SOCIAL SECURITY NUMBER:
-------------------------------------------------
2. The property with respect to which the election is made is described as
follows: _______ shares of Common Stock of VERITAS Software Corporation
(the 'Company') which were transferred upon Taxpayer's exercise of an
option granted by the Company to Taxpayer in connection with the
performance of Taxpayer's services for the Company.
3. The date on which the shares were transferred pursuant to the exercise of
the option was ________, _____ and this election is made for calendar year
_____.
4. The shares received upon exercise of the option are subject to the
following restrictions: The Company may repurchase all or a portion of the
shares at the Taxpayer's original purchase price under certain conditions
at the time of Taxpayer's termination of services with the Company.
5. The fair market value of the shares (without regard to restrictions other
than restrictions which by their terms will never lapse) was $___ per
share at the time of exercise of the option.
6. The amount paid for such shares upon exercise of the option was $___ per
share.
7. The Taxpayer has submitted a copy of this statement to the Company.
THIS ELECTION MUST BE FILED WITH THE INTERNAL REVENUE SERVICE ('IRS'), AT THE
OFFICE WHERE THE TAXPAYER FILES ANNUAL INCOME TAX RETURNS, WITHIN 30 DAYS AFTER
THE DATE OF TRANSFER OF THE SHARES, AND MUST ALSO BE FILED WITH THE TAXPAYER'S
INCOME TAX RETURNS FOR THE CALENDAR YEAR. THE ELECTION CANNOT BE REVOKED WITHOUT
THE CONSENT OF THE IRS.
Dated:
--------------------------- ------------------------------------
Taxpayer's Signature
-2-
SUCCEEDING
GRANT
GRANT NO.:
VERITAS SOFTWARE CORPORATION
DIRECTORS NONQUALIFIED STOCK OPTION GRANT
Optionee:
Social Security Number:
Address:
Total Shares Subject to Option:
Exercise Price Per Share:
Date of Grant:
Expiration Date:
1. GRANT OF OPTION. VERITAS SOFTWARE CORPORATION, a Delaware corporation
(the 'Company'), has granted to the optionee named above ('Optionee') an option
(this 'Option') to purchase the total number of shares of Common Stock of the
Company set forth above (the 'Shares') at the exercise price per share set forth
above (the 'Exercise Price'), subject to all of the terms and conditions of this
Grant and the Company's 1993 Directors Stock Option Plan, as amended through
October 14, 1999 (the 'Plan'). Unless otherwise defined herein, capitalized
terms used herein shall have the meanings ascribed to them in the Plan.
2. EXERCISE PERIOD OF OPTION. Subject to the terms and conditions of the
Plan and this Grant, this Option shall be exercisable immediately upon the Date
of Grant and thereafter, subject to earlier termination in accordance with
Section 4 below. This Option shall be exercisable until the Expiration Date,
subject to earlier termination in accordance with Section 4 below. Shares that
are exercised but that have not yet vested in accordance with this Section 2
('Unvested Shares'), shall be subject to a right of repurchase in the Company at
the Exercise Price that lapses as such exercised Shares vest. Subject to the
terms and conditions of the Plan and this Grant, this Option will vest as to 135
Shares per calendar month (not to exceed 1,625 Shares per year). This Option
shall fully vest as to any Shares that remain unvested on the day immediately
preceding the tenth anniversary of the Start Date.
VERITAS Software Corporation
Director's Nonqualified
Stock Option Grant
Succeeding Grant
3. RESTRICTION ON EXERCISE. This Option may not be exercised unless such
exercise is in compliance with the 1933 Securities Act, and all applicable state
securities laws, as they are in effect on the date of exercise, and the
requirements of any stock exchange or national market system on which the
Company's Common Stock may be listed at the time of exercise. Optionee
understands that the Company is under no obligation to register, qualify or list
the Shares with the SEC, any state securities commission or any stock exchange
or national market system to effect such compliance. No fractional shares shall
be issued upon exercise of this Option.
4. TERMINATION OF OPTION. Except as provided below in this Section, this
Option shall terminate and may not be exercised on or after the date Optionee
ceases to be a Board Member or a consultant of the Company. The date on which
Optionee ceases to be a Board Member or a consultant of the Company shall be
referred to as the 'Termination Date.'
4.1 Termination Generally. If Optionee ceases to be a Board Member
or a consultant of the Company for any reason except for Optionee's death or
disability, within the meaning of Section 22(e)(3) of the Code, this Option, to
the extent (and only to the extent) that it is vested in accordance with Section
2 above on the Termination Date, may be exercised by Optionee within six (6)
months after the Termination Date, but in no event later than the Expiration
Date.
4.2 Death or Disability. If Optionee ceases to be a Board Member or
a consultant of the Company because of the death of Optionee or the disability
of Optionee, within the meaning of Section 22(e)(3) of the Code, this Option, to
the extent (and only to the extent) that it is vested in accordance with Section
2 above on the Termination Date, may be exercised by Optionee (or Optionee's
legal representative) within twelve (12) months after the Termination Date, but
in no event later than the Expiration Date.
5. MANNER OF EXERCISE.
5.1 Exercise Agreement. This Option shall be exercisable by
delivery to the Company of an executed written Directors Stock Option Exercise
Agreement in the form attached hereto as Exhibit A, or in such other form as may
be approved by the Board or the committee thereof that administers the Plan,
which shall set forth Optionee's election to exercise some or all of this
Option, the number of Shares being purchased, any restrictions imposed on the
Shares and such other representations and agreements as may be required by the
Company to comply with applicable securities laws.
5.2 Payment. Payment for the Shares may be made (a) in cash or by
check; (b) by surrender of shares of Common Stock of the Company that have been
owned by Optionee for more than six (6) months (and which have been paid for
within the meaning of SEC Rule 144 and, if such shares were purchased from the
Company by use of a promissory note, such note has been fully paid with respect
to such shares) or were obtained by Optionee in the open public market; (c) by
waiver of compensation due or accrued to Optionee for services rendered; (d)
provided that a public market for the Company's stock exists, through a
-2-
'same day sale' commitment from Optionee and a broker-dealer that is a member of
the National Association of Securities Dealers (an 'NASD Dealer') whereby
Optionee irrevocably elects to exercise the Option and to sell a portion of the
Shares so purchased to pay for the Exercise Price and whereby the NASD Dealer
irrevocably commits upon receipt of such Shares to forward the Exercise Price
directly to the Company; (e) provided that a public market for the Company's
stock exists, through a 'margin' commitment from Optionee and an NASD Dealer
whereby Optionee irrevocably elects to exercise the Option and to pledge the
Shares so purchased to the NASD Dealer in a margin account as security for a
loan from the NASD Dealer in the amount of the Exercise Price, and whereby the
NASD Dealer irrevocably commits upon receipt of such Shares to forward the
Exercise Price directly to the Company; or (f) by any combination of the
foregoing.
5.3 Withholding Taxes. Prior to the issuance of the Shares upon
exercise of this Option, Optionee shall pay or make adequate provision for any
applicable federal or state withholding obligations of the Company.
5.4 Issuance of Shares. Provided that such notice and payment are
in form and substance satisfactory to counsel for the Company, the Company shall
cause the Shares to be issued in the name of Optionee or Optionee's legal
representative.
6. COMPANY'S RIGHT OF REPURCHASE. The Company reserves a right to
repurchase Unvested Shares at the Exercise Price at any time within ninety (90)
days after Optionee's Termination Date for cash and/or cancellation of purchase
money indebtedness.
7. NONTRANSFERABILITY OF OPTION. During the lifetime of Optionee, this
Option shall be exercisable only by Optionee or by Optionee's guardian or legal
representative, unless otherwise permitted by the Committee. No Option may be
sold, pledged, assigned, hypothecated, transferred or disposed of in any manner
other than by will or by the laws of descent and distribution.
8. INTERPRETATION. Any dispute regarding the interpretation of this
Grant shall be submitted by Optionee or the Company to the Board or the
committee thereof that administers the Plan, which shall review such dispute at
its next regular meeting. The resolution of such a dispute by the Board or
committee shall be final and binding on the Company and on Optionee. Nothing in
the Plan or this Grant shall confer on Optionee any right to continue as a Board
Member, employee, officer or consultant of the Company.
-3-
9. ENTIRE AGREEMENT. The Plan and the Directors Stock Option Exercise
Agreement are incorporated herein by this reference. This Grant, the Plan and
the Directors Stock Option Exercise Agreement constitute the entire agreement of
the parties hereto and supersede all prior undertakings and agreements with
respect to the subject matter hereof.
VERITAS SOFTWARE CORPORATION
By:
-----------------------------------
Name: Ken Lonchar
----------------------------------
Title: Chief Financial Officer
----------------------------------
ACCEPTANCE
Optionee hereby acknowledges receipt of a copy of the Plan, represents
that Optionee has read and understands the terms and provisions thereof, and
accepts this Option subject to all the terms and conditions of the Plan and this
Grant. Optionee acknowledges that there may be adverse tax consequences upon
exercise of this Option or disposition of the Shares and that Optionee should
consult a qualified tax advisor prior to such exercise or disposition.
---------------------------------
Optionee
-4-
EXHIBIT A
VERITAS SOFTWARE CORPORATION
DIRECTORS STOCK OPTION EXERCISE AGREEMENT
This Agreement is made this ___ day of ____________, _____ between
VERITAS Software Corporation (the 'Company'), and the optionee named below
('Optionee') with respect to the Directors Nonqualified Stock Option Grant dated
as of the Date of Option Grant set forth below (the 'Grant') issued to Optionee
under the Company's 1993 Directors Stock Option Plan, as amended through October
14, 1999 (the 'Plan'). Capitalized terms used herein that are not defined herein
have the definitions ascribed to them in the Plan or the Grant.
Optionee:
----------------------------------------
Social Security Number:
----------------------------------------
Address:
----------------------------------------
Number of Shares Purchased:
----------------------------------------
Price per Share:
----------------------------------------
Aggregate Purchase Price:
----------------------------------------
Date of Option Grant:
----------------------------------------
Optionee hereby delivers to the Company the Aggregate Purchase Price, to the
extent permitted in the Grant, as follows (check as applicable and complete):
[ ] in cash or check in the amount of $_________, receipt of which is
acknowledged by the Company;
[ ] by delivery of ________ fully-paid, nonassessable and vested shares of
the Common Stock of the Company owned by Optionee for at least six (6)
months prior to the date hereof (and which have been paid for within the
meaning of SEC Rule 144), or obtained by Optionee in the open public
market, and owned free and clear of all liens, claims, encumbrances or
security interests, valued at the current Fair Market Value of $______ per
share;
[ ] by the waiver hereby of compensation due or accrued to Optionee for
services rendered in the amount of $______________;
[ ] through a 'same-day-sale' commitment, delivered herewith, from Optionee
and the NASD Dealer named therein in the amount of $____________; or
[ ] through a 'margin' commitment, delivered herewith from Optionee and the
NASD Dealer named therein in the amount of $______________.
Optionee hereby also delivers to the Company (i) this executed Agreement. If the
Option is being exercised with respect to Shares in which the Option has not yet
vested, Optionee hereby also delivers to the Company two (2) copies of a blank
Stock Power and Assignment Separate from Stock Certificate in the form of
Exhibit 1 attached hereto (the 'Stock Powers'), both executed by Optionee (and
Optionee's spouse, if any).
Upon its receipt of the Aggregate Purchase Price and all the documents to be
executed and delivered by Optionee to the Company under the above paragraph, the
Company will issue a duly executed stock certificate evidencing the Shares in
the name of Optionee to be placed in escrow as provided in Section 3 below until
expiration or termination of the Company's Repurchase Option described in
Section 2 below.
The Company and Optionee hereby agree as follows:
1. PURCHASE OF SHARES. On this date and subject to the terms and
conditions of this Agreement, Optionee hereby exercises the Grant with respect
to the Number of Shares Purchased set forth above of the Company's Common Stock
(the 'Shares') at an aggregate purchase price equal to the Aggregate Purchase
Price set forth above and the Price per Share set forth above. The term 'Shares'
refers to the Shares purchased under this Agreement and includes all securities
received in replacement of the Shares and as a result of stock dividends or
stock splits in respect of the Shares.
2. COMPANY'S RIGHT OF REPURCHASE. On the terms and conditions set forth
in this Section, the Company, or its assignee, reserves the right to repurchase
Shares that are exercised pursuant to this Agreement that are not vested, in
accordance with Section 2 of the Grant, on Optionee's Termination Date (the
'Unvested Shares') (the 'Repurchase Option') if Optionee ceases to be a Board
Member or a consultant to the Company for any reason, or no reason, including
without limitation Optionee's death, disability within the meaning of Code
Section 22(3)(3), voluntary resignation or termination by the Company with or
without cause.
-2-
2.1 Termination and Termination Date. The Committee shall have
discretion to determine whether Optionee has ceased to be a Board Member or a
consultant to the Company and Optionee's Termination Date.
2.2 Exercise of Repurchase Option. At any time within ninety (90)
days after the Optionee's Termination Date, the Company, or its assignee, may
elect to repurchase the Optionee's Unvested Shares by giving Optionee written
notice of the Company's exercise of the Repurchase Option.
2.3 Calculation of Repurchase Price. The Company or its assignee
shall have the option to repurchase from Optionee (or from Optionee's personal
representative as the case may be) the Unvested Shares at the Optionee's
Exercise Price, proportionately adjusted for any stock split or similar change
in the capital structure of the Company as set forth in Section 11 of the Plan.
2.4 Payment of Repurchase Price. The repurchase price shall be
payable, at the option of the Company or its assignee, by check or by
cancellation of all or a portion of any outstanding indebtedness of Optionee to
the Company or such assignee, or by any combination thereof. The repurchase
price shall be paid without interest within sixty (60) days after exercise of
the Repurchase Option.
2.5 Right of Termination Unaffected. Nothing in this Agreement
shall be construed to limit or otherwise affect in any manner whatsoever the
right or power of the Company (or any Parent or Subsidiary of the Company) to
terminate Optionee's relationship with Company (or the Parent or Subsidiary of
the Company) at any time, for any reason or no reason, with or without cause.
3. ESCROW. As security for Optionee's faithful performance of this
Agreement, Optionee agrees, immediately upon receipt of the stock certificate(s)
evidencing the Shares, to deliver such certificate(s), together with the Stock
Powers executed by Optionee and by Optionee's spouse, if any (with the date and
number of Shares left blank), to the Secretary of the Company or other designee
of the Company ('Escrow Holder'), who is hereby appointed to hold such
certificate(s) and Stock Powers in escrow and to take all such actions and to
effectuate all such transfers and/or releases of such Shares as are in
accordance with the terms of this Agreement. Optionee and the Company agree that
Escrow Holder will not be liable to any party to this Agreement (or to any other
party) for any actions or omissions unless Escrow Holder is grossly negligent or
intentionally fraudulent in carrying out the duties of Escrow Holder under this
Agreement. Escrow Holder may rely upon any letter, notice or other document
executed by any signature purported to be genuine and may rely on the advice of
counsel and obey any order of any court with respect to the transactions
contemplated by this Agreement. The Shares will be released from escrow upon
termination in full of the Repurchase Option. At Optionee's request, the Escrow
Holder will release the Shares from escrow after the Shares have vested.
4. REPRESENTATIONS OF OPTIONEE. Optionee represents and warrants to the
Company that Optionee acknowledges that Optionee has received, read and
understood the Plan and the Grant and agrees to abide by and be bound by their
terms and conditions.
-3-
5. COMPLIANCE WITH SECURITIES LAWS. Optionee understands that the Shares
have been registered on Form S-8 under the 1933 Securities Act.
6. RESTRICTIVE LEGENDS AND STOP-TRANSFER ORDERS.
6.1 Legends. Optionee understands and agrees that the Company will
place the legends set forth below or similar legends on any stock certificate(s)
evidencing the Shares, together with any other legends that may be required by
state or federal securities laws, the Company's Articles of Incorporation or
Bylaws, any other agreement between Optionee and the Company.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT
OF REPURCHASE OPTION HELD BY THE ISSUER AND/OR ITS ASSIGNEE(S) AS
SET FORTH IN A DIRECTORS STOCK OPTION EXERCISE AGREEMENT BETWEEN
THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH
MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH RIGHT
OF REPURCHASE IS BINDING ON TRANSFEREES OF THESE SHARES.
6.2 Stop-Transfer Instructions. Optionee understands and agrees
that, to ensure compliance with the restrictions imposed by this Agreement, the
Company may issue appropriate 'stop-transfer' instructions to its transfer
agent, if any, and if the Company transfers its own securities, it may make
appropriate notations to the same effect in its own records.
6.3 Refusal to Transfer. The Company will not be required (i) to
transfer on its books any Shares that have been sold or otherwise transferred in
violation of any of the provisions of this Agreement or (ii) to treat as owner
of such Shares, or to accord the right to vote or pay dividends to any purchaser
or other transferee to whom such Shares have been so transferred.
7. TAX CONSEQUENCES. OPTIONEE UNDERSTANDS THAT OPTIONEE MAY SUFFER
ADVERSE TAX CONSEQUENCES AS A RESULT OF OPTIONEE'S PURCHASE OR DISPOSITION OF
THE SHARES. OPTIONEE REPRESENTS THAT OPTIONEE HAS CONSULTED WITH ANY TAX
CONSULTANT(S) OPTIONEE DEEMS ADVISABLE IN CONNECTION WITH THE PURCHASE OR
DISPOSITION OF THE SHARES AND THAT OPTIONEE IS NOT RELYING ON THE COMPANY FOR
ANY TAX ADVICE. IN PARTICULAR, OPTIONEE REPRESENTS THAT OPTIONEE HAS CONSULTED
WITH OPTIONEE'S TAX ADVISORS CONCERNING THE ADVISABILITY OF FILING A SECTION
83(b) ELECTION WITH THE INTERNAL REVENUE SERVICE.
7.1 Section 83(b) Election for Unvested Shares. With respect to
Unvested Shares, which are subject to the Repurchase Option, unless an election
is filed by Optionee with the Internal Revenue Service (and, if necessary, the
proper state taxing authorities), within 30 days of the purchase of the Unvested
Shares, electing pursuant to Section 83(b) of the Internal Revenue Code (and
similar state tax provisions, if applicable) to be taxed currently on any
-4-
difference between the Exercise Price of the Unvested Shares and their Fair
Market Value on the date of purchase, there may be a recognition of taxable
income to the Optionee, measured by the excess, if any, of the Fair Market Value
of the Unvested Shares at the time they cease to be Unvested Shares, over the
Exercise Price of the Unvested Shares. A Section 83(b) election form is attached
hereto as Exhibit 4.
8. ENTIRE AGREEMENT. The Plan and Grant are incorporated herein by
reference. This Agreement, the Plan and the Grant constitute the entire
agreement of the parties and supersede in their entirety all prior undertakings
and agreements of the Company and Optionee with respect to the subject matter
hereof, and are governed by California law except for that body of law
pertaining to conflict of laws.
9. TITLE. Optionee desires to take title to the Shares as follows:
( )Individual, as separate property
( )Husband and wife, as community property
( )Husband and wife, as Joint Tenants
( )Husband and wife, as Tenants in Common
The exact spelling of name(s) under which title to the Shares is to be
taken is:_______________________________________________________________________
________________________________________________________________________________
Submitted by: Accepted by:
OPTIONEE: VERITAS SOFTWARE CORPORATION
-----------------------------------
(print name)
--------------------------------------------- By:
(signature) --------------------------
Dated: Dated:
-------------------------------------- -----------------------
-5-
LIST OF EXHIBITS
Exhibit 1: Stock Power and Assignment Separate from Stock Certificate
Exhibit 2: Copy of Optionee's Check or other Evidence of Optionee's Payment
of Exercise Price
Exhibit 3: Section 83(b) Election
-6-
EXHIBIT 1
STOCK POWER AND ASSIGNMENT
SEPARATE FROM STOCK CERTIFICATE
STOCK POWER AND ASSIGNMENT
SEPARATE FROM STOCK CERTIFICATE
FOR VALUE RECEIVED and pursuant to that certain Directors Stock
Option Exercise Agreement dated as of _______________, _____, (the 'Agreement'),
the undersigned hereby sells, assigns and transfers unto
_______________________________, shares of the Common Stock of VERITAS Software
Corporation (the 'Company'), standing in the undersigned's name on the books of
the Company represented by Certificate No(s). ______ delivered herewith, and
does hereby irrevocably constitute and appoint the Secretary of the Company as
the undersigned's attorney-in-fact, with full power of substitution, to transfer
said stock on the books of the Company. THIS ASSIGNMENT MAY ONLY BE USED AS
AUTHORIZED BY THE AGREEMENT AND ANY EXHIBITS THERETO.
Dated: ,
----------------, ------
OPTIONEE
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(Signature)
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(Please Print Name)
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(Spouse's Signature, if any)
-----------------------------
(Please Print Spouse's Name)
INSTRUCTIONS: Please do not fill in any blanks other than the signature line.
The purpose of this Stock Power and Assignment is to enable the Company to
acquire the shares upon exercise of its 'Repurchase Option' set forth in the
Agreement without requiring additional signatures on the part of the Optionee or
Optionee's Spouse, if any.
EXHIBIT 2
COPY OF OPTIONEE'S CHECK OR OTHER EVIDENCE
OF OPTIONEE'S PAYMENT OF EXERCISE PRICE
EXHIBIT 3
SECTION 83(b) ELECTION
[FOR REGULAR INCOME TAX - NONQUALIFIED OPTIONS]
ELECTION UNDER SECTION 83(b) OF THE
INTERNAL REVENUE CODE
The undersigned Taxpayer hereby elects, pursuant to Section 83(b) of the
Internal Revenue Code of 1986, as amended, to include the excess, if any, of the
fair market value of the property described below at the time of transfer over
the amount paid for such property, as compensation for services in the
calculation of regular gross income.
1. TAXPAYER'S NAME:
-----------------------------------------------
TAXPAYER'S ADDRESS:
-----------------------------------------------
-----------------------------------------------
SOCIAL SECURITY NUMBER:
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2. The property with respect to which the election is made is described as
follows: _______ shares of Common Stock of VERITAS Software Corporation
(the 'Company') which were transferred upon Taxpayer's exercise of an
option granted by the Company to Taxpayer in connection with the
performance of Taxpayer's services for the Company.
3. The date on which the shares were transferred pursuant to the exercise of
the option was ________, _____ and this election is made for calendar year
_____.
4. The shares received upon exercise of the option are subject to the
following restrictions: The Company may repurchase all or a portion of the
shares at the Taxpayer's original purchase price under certain conditions
at the time of Taxpayer's termination of services with the Company.
5. The fair market value of the shares (without regard to restrictions other
than restrictions which by their terms will never lapse) was $___ per
share at the time of exercise of the option.
6. The amount paid for such shares upon exercise of the option was $___ per
share.
7. The Taxpayer has submitted a copy of this statement to the Company.
THIS ELECTION MUST BE FILED WITH THE INTERNAL REVENUE SERVICE ('IRS'), AT THE
OFFICE WHERE THE TAXPAYER FILES ANNUAL INCOME TAX RETURNS, WITHIN 30 DAYS AFTER
THE DATE OF TRANSFER OF THE SHARES, AND MUST ALSO BE FILED WITH THE TAXPAYER'S
INCOME TAX RETURNS FOR THE CALENDAR YEAR. THE ELECTION CANNOT BE REVOKED WITHOUT
THE CONSENT OF THE IRS.
Dated:
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Taxpayer's Signature
-2-
1993 Directors Stock Option Plan - VERITAS Software Corp.
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