{"id":40040,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/key-employee-agreement-veritas-software-corp-and-and-kenneth.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"key-employee-agreement-veritas-software-corp-and-and-kenneth","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/key-employee-agreement-veritas-software-corp-and-and-kenneth.html","title":{"rendered":"Key Employee Agreement &#8211; VERITAS Software Corp. and and Kenneth E. Lonchar"},"content":{"rendered":"<pre>\n                             KEY EMPLOYEE AGREEMENT\n\n\n        THIS KEY EMPLOYEE AGREEMENT, dated as of the 25th day of April, 1997, is\nby and between VERITAS Software Corporation, a Delaware corporation ('VERITAS\nDELAWARE'), VERITAS Software Corporation, a California corporation ('VERITAS\nCALIFORNIA') (VERITAS Delaware and VERITAS California may be referred to herein\ncollectively as the 'COMPANY') and Kenneth E. Lonchar (the 'EMPLOYEE').\n\n\n                                    RECITALS\n\n        A. Employee is employed as an officer of OpenVision Technologies, Inc.\n('OPENVISION');\n\n        B. OpenVision, VERITAS Delaware and VERITAS California have entered into\nan Agreement and Plan of Reorganization dated as of January 13, 1997 (the\n'REORGANIZATION AGREEMENT'), pursuant to which a wholly-owned subsidiary of\nVERITAS Delaware will be merged with and into OpenVision; and\n\n        C. The Company and Employee wish to enter into this Key Employee\nAgreement relating to Employee's contemplated employment with the Company.\n\n        NOW, THEREFORE, IT IS HEREBY AGREED by and between the parties hereto as\nfollows:\n\n        1.     EMPLOYMENT.\n\n               (a) Duties. The Company agrees to employ Employee as Vice\nPresident and Chief Financial Officer of the Company, and Employee agrees to\nperform such reasonable responsibilities and duties as may be required of him by\nthe Company. During the Employment Term (as defined in subsection (b) below),\nEmployee shall carry out his duties and responsibilities hereunder in a diligent\nand competent manner and shall devote his full business time, attention and\nenergy thereto.\n\n               (b) Term. The term of Employee's employment under this Agreement\n(the 'EMPLOYMENT TERM') shall commence on the Effective Time (as defined in the\nReorganization Agreement) and shall terminate on the first anniversary of the\nEffective Time (the 'FIRST ANNIVERSARY'). At the end of the Employment Term,\nEmployee' s employment with the Company shall become 'at-will,' as defined under\napplicable law.\n\n               (c) Place of Employment. During the Employment Term, Employee\nshall render his services at the principal executive offices of the Company.\nEmployee shall do such traveling as shall be reasonably necessary in connection\nwith his duties and responsibilities hereunder; provided, however, that Employee\nshall be reimbursed for all reasonable expenses.\n\n\n\n\n\n        2.     COMPENSATION AND BENEFITS.\n\n               (a) Base Compensation. The Company shall pay Employee as\ncompensation for his services a base salary at the annualized rate of $172,000,\nalong with such performance bonus amounts as the Chief Executive Officer or\nBoard of Directors of the Company (the 'Board') shall authorize, in its\ndiscretion, from time to time. Such salary shall be reviewed at least annually\nand shall be increased from time to time subject to accomplishment of such\nperformance and contribution goals and objectives as may be established from\ntime to time by the Board. Such salary shall be subject to applicable tax\nwithholding and shall be paid periodically in accordance with normal Company\npayroll practices. The annual compensation (excluding bonus amounts) specified\nin this Section 2(a), together with any increases in such compensation that the\nBoard may grant from time to time, is referred to in this Agreement as 'BASE\nCOMPENSATION.'\n\n               (b) Employee Benefits. Employee shall be eligible to participate\nin Employee benefit plans and executive compensation programs maintained by the\nCompany applicable to other key executives of the Company, including (without\nlimitation) retirement plans, savings or profit-sharing plans, deferred\ncompensation plans, supplemental retirement or excess-benefit plans, stock\noption, incentive or other bonus plans, life, disability, health, accident and\nother insurance programs, paid vacations, and similar plans or programs, subject\nin each case to the generally applicable terms and conditions of the plan or\nprogram in question and to the determination of any committee administering such\nplan or program.\n\n        3.     SEVERANCE PAYMENTS.\n\n               (a) Termination Prior to First Anniversary. If, prior to the\nFirst Anniversary, Employee's employment terminates as a result of an\nInvoluntary Termination, then Employee shall receive the following severance\nbenefits from the Company:\n\n                      (i)    Severance  Payment.  A cash  payment  in an  amount\nequal to the sum of (A) fifty percent (50%) of Employee's Base Compensation, (B)\nany unpaid quarterly bonuses earned by Employee in a previous quarter and (C)\n50% of Employee' s on-target bonus for the year in which such termination\noccurs;\n\n                      (ii)   Continued  Employee Benefits.  Health,  dental and\nlife insurance coverage at the same level of coverage and with the same\npercentage of Company-paid coverage as was provided to Employee immediately\nprior to the Involuntary Termination (the 'COMPANY-PAID COVERAGE'). If such\ncoverage included Employee' s dependents immediately prior to the Involuntary\nTermination, such dependents shall also be covered at Company expense.\nCompany-Paid Coverage shall continue until the earlier of (i) six months from\nthe date of termination or (ii) the date that Employee and his dependents become\ncovered under another employer's group health, dental or life insurance plans\nthat provide Employee and his dependents with comparable benefits and levels of\ncoverage. For purposes of Title X of the Consolidated Budget Reconciliation Act\nof 1985 ('COBRA'), the date of the 'qualifying event' for Employee and his\ndependents shall be the date upon which the Company-Paid Coverage terminates;\nand\n\n\n\n                                      -2-\n\n\n                      (iii)  Consulting  Relationship.  The Company agrees to\nretain Employee as a consultant to the Company for the period commencing with\nthe date of the Involuntary Termination and ending six months thereafter (the\n'CONSULTING PERIOD'). During the Consulting Period, Employee shall report to the\npresident of the Company and shall be available to perform consulting services\nfor the Company; provided, however, that the Company shall not require Employee\nto perform services for more than thirty-two (32) hours in any one month during\nthe Consulting Period. All stock options and restricted stock held by Employee\nshall continue to vest through the Consulting Period, and all such stock options\nshall remain exercisable for three months following the Consulting Period. Any\nincentive stock options held by Employee shall automatically convert into\nnonstatutory stock options three months and one day following the date of the\nInvoluntary Termination, to the extent required by law.\n\n               (b) Other Termination. In the event: (i) Employee's employment\nterminates by reason of Employee's voluntary resignation not resulting from an\nInvoluntary Termination; or (ii) the Company terminates Employee's employment\nafter the First Anniversary; Employee shall not be entitled to receive any\nseverance under Section 3(a) hereof or any other benefits except for those (if\nany) as may then be established under the Company's then-existing severance and\nbenefits plans and policies at the time of such termination.\n\n        4.     DEFINITIONS.  As used herein, the term\n\n               (a) Involuntary Termination. 'INVOLUNTARY TERMINATION' shall mean\n(i) without Employee's express written consent, the significant reduction of\nEmployee's duties, authority or responsibilities, relative to Employee's duties,\nauthority or responsibilities as in effect immediately prior to such reduction,\nor the assignment to Employee of such reduced duties, authority or\nresponsibilities; (ii) without Employee's express written consent, a substantial\nreduction, without good business reasons, of the facilities and perquisites\n(including office space and location) available to Employee immediately prior to\nsuch reduction; (iii) a reduction by the Company in the base salary of Employee\nas in effect immediately prior to such reduction; (iv) a material reduction by\nthe Company in the kind or level of employee benefits, including bonuses, to\nwhich Employee was entitled immediately prior to such reduction with the result\nthat Employee's overall benefits package is significantly reduced; (v) the\nrelocation of Employee to a facility or a location more than fifty (50) miles\nfrom Employee's then present location, without Employee's express written\nconsent; (vi) any purported termination of Employee by the Company; (vii) the\nfailure of the Company to obtain the assumption of this agreement by any\nsuccessors contemplated in Section 6(a) below; or (viii) any act or set of facts\nor circumstances that would, under California case law or statute, constitute a\nconstructive termination of Employee.\n\n        5. NOTICES. Any notice, report or other communication required or\npermitted to be given hereunder shall be in writing to both parties and shall be\ndeemed given on the date of delivery, if delivered, or three days after mailing,\nif mailed first-class mail, postage prepaid, (i) if to Employee, at the home\naddress that he most recently communicated to the Company in writing; and (ii)\nif to the Company, at the Company's principal executive offices to the Chief\n\n\n\n                                      -3-\n\n\nExecutive Officer's attention; or (iii) to such other address as any party\nhereto may designate by notice given as herein provided.\n\n        6.     SUCCESSORS.\n\n               (a) Company 's Successors. Any successor to the Company (whether\ndirect or indirect and whether by purchase, merger, consolidation, liquidation\nor otherwise) to all or substantially all of the Company's business and\/or\nassets shall assume the obligations under this Agreement and agree expressly to\nperform the obligations under this Agreement in the same manner and to the same\nextent as the Company would be required to perform such obligations in the\nabsence of a succession. For all purposes under this Agreement, the term\n'COMPANY' shall include any successor to the Company's business and\/or assets\nwhich executes and delivers the assumption agreement described in this Section\n6(a) or which becomes bound by the terms of this Agreement by operation of law.\n\n               (b) Employee 's Successors. The terms of this Agreement and all\nrights of Employee hereunder shall inure to the benefit of, and be enforceable\nby, Employee's personal or legal representatives, executors, administrators,\nsuccessors, heirs, distributees, devisees and legatees.\n\n        7. GOVERNING LAW. The validity, interpretation, construction and\nperformance of this Agreement shall be governed by the laws of the State of\nCalifornia as applied to agreements entered into and performed within California\nsolely by residents of that state.\n\n        8. NO DUTY TO MITIGATE. Employee shall not be required to mitigate the\namount of any payment contemplated by this Agreement, nor shall any such payment\nbe reduced by any earnings that Employee may receive from any other source.\n\n        9. SEPARABILITY. In the event that any provision or provisions of this\nAgreement is held to be invalid or unenforceable by any court of law or\notherwise, the remaining provisions of this Agreement shall nevertheless\ncontinue to be valid and enforceable as though the invalid or unenforceable\nparts had not been included therein.\n\n        10. ENTIRE AGREEMENT. This Agreement represents the entire agreement and\nunderstanding between the parties as to the subject matter hereof and supersedes\nall prior or contemporaneous agreements whether written or oral. No waiver,\nalteration or modification of any of the provisions of this Agreement shall be\nbinding unless in writing and signed by duly authorized representatives of the\nparties hereto.\n\n        11. AMENDMENTS. This Agreement shall not be changed or modified in whole\nor in part except by an instrument in writing signed by each party hereto.\n\n        12. MERGER. In the event of a termination of the Reorganization\nAgreement pursuant to Section 9 thereof, the parties' obligations hereunder\nshall terminate effective as of the effective date of the termination of the\nReorganization Agreement.\n\n\n\n                                      -4-\n\n\n        13. ATTORNEY FEES, COSTS AND EXPENSES. The Company shall promptly\nreimburse Employee, on a monthly basis, for the reasonable attorney fees, costs\nand expenses incurred by Employee in connection with any action brought by\nEmployee to enforce his rights hereunder. In the event Employee is not the\nprevailing party, determined without regard to. whether or not the action\nresults in a final judgment, Employee shall repay such reimbursements.\n\n        14. COUNTERPARTS. This Agreement may be executed in several\ncounterparts, each of which shall be an original, but all of which together\nshall constitute one and the same agreement.\n\n        15. EFFECT OF HEADINGS. The section headings herein are for convenience\nonly and shall not affect the construction or interpretation of this Agreement.\n\n\n\n                                      -5-\n\n\n\n        IN WITNESS WHEREOF, the parties hereto have executed this Key Employee\nAgreement as of the date first written above.\n\n\n                                          VERITAS SOFTWARE CORPORATION,\n                                          A DELAWARE CORPORATION\n\n                                          \/s\/ Mark Leslie\n                                          --------------------------------------\n                                          Signature of Authorized Signatory\n\n\n                                          --------------------------------------\n                                          Print Name and Title\n\n\n                                          VERITAS SOFTWARE CORPORATION,\n                                          A DELAWARE CORPORATION\n\n                                          \/s\/ Mark Leslie\n                                          --------------------------------------\n                                          Signature of Authorized Signatory\n\n\n                                          --------------------------------------\n                                          Print Name and Title\n\n\n                                          EMPLOYEE\n\n                                          \/s\/ Kenneth Lonchar\n                                          --------------------------------------\n                                          Kenneth E. Lonchar\n\n\n\n                                      -6-\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9244],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9539,9544],"class_list":["post-40040","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-veritas-software-corp","corporate_contracts_industries-technology__software","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40040","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40040"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40040"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40040"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40040"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}