CONFIDENTIAL TREATMENT
REQUESTED
Exhibit
10.01
AMENDED AND
RESTATED
CONSULTING
AGREEMENT
This Amended and Restated Consulting
Agreement (“Agreement”) is made by and between
VeriSign, Inc. , a Delaware corporation with offices at 487
E. Middlefield Road, Mountain View, California 94043
(“VeriSign”), and Roger Moore , a United States
citizen, with his principal residence at [***]
(“Consultant”).
RECITALS
WHEREAS, VeriSign and Consultant
entered into a Consulting Agreement dated October 1, 2008, for
a term which commenced on December 17, 2007, a copy of which
is attached hereto as Exhibit A (the “Consulting
Agreement”);
WHEREAS, VeriSign and Consultant
desire to amend and restate the Consulting Agreement and enter into
this Agreement in connection with the sale of certain VeriSign
businesses (“Communications Business Bundle”) as set
forth on Exhibit B hereto;
WHEREAS, Consultant desires to
perform, and VeriSign desires to have Consultant perform certain
consulting services (“Services”) as set forth on
Exhibit C hereto in connection with the Sale of the Communications
Business Bundle in accordance with the terms and conditions of this
Agreement;
WHEREAS, the Compensation and Audit
Committees of the Board have each considered and approved the
provision of the Services by Consultant to VeriSign on the material
terms contained in this Agreement by resolutions passed on
February 23, 2009, and February 24, 2009,
respectively;
WHEREAS, Consultant resigned from
the Audit Committee of the Board on December 20, 2007 and is
not a member of any other Committee of the Board; and
WHEREAS, VeriSign and Consultant
desire to set out in this Agreement the terms and conditions for
the provision of the Services by Consultant to VeriSign.
NOW, THEREFORE, in consideration of
the mutual promises made herein, VeriSign and Consultant hereby
agree as follows:
1. Definitions .
“ Sale ” means
the merger, asset purchase or other disposition of the entire
Communications Business Bundle. VeriSign shall retain at all times
the right to conclude and consummate any such Sale.
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Note:
Confidential treatment has been requested with respect to the
information contained with in the [***] marking. Such portions have
been omitted from this filing and have been filed separately with
the Securities and Exchange Commission.
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“ Closing Date ”
means the effective date upon which the closing of the Sale of
Communications Business Bundle occurs as defined in the Definitive
Agreement.
“ Definitive Agreement
” means the agreement memorializing the merger, asset
purchase or other disposition of the Communications Business Bundle
with Purchaser.
“ Purchaser ”
means the entity or entities to whom the Sale of the Communications
Business Bundle is made.
2. Services, Payments and Start
Date .
(a) Performance by Consultant and
Start Date . Consultant has performed the Services under the
Consulting Agreement since December 17, 2007 and will perform
the Services under this Agreement until this Agreement is
terminated as set forth in Section 5. The Consultant will
provide the Services under this Agreement commencing on
January 1, 2009 ( “Start Date”). In this endeavor,
Consultant shall use his independent judgment consistent with his
training, skill, and experience and his services shall be performed
in a thorough, efficient and workmanlike manner, promptly and with
due diligence and care, and in accordance with that standard of
care and skill ordinarily exercised by members of the profession
doing similar services. Consultant assumes all personal risk and
responsibility for his services under this Agreement.
(b) Payments to Consultant .
VeriSign shall pay Consultant the following fees for performance of
the Services as set forth in (i)-(iv) below.
(i) Retainer Fee . VeriSign
shall pay Consultant a consulting retainer fee in the amount of Ten
Thousand Dollars ($10,000) per month (the “Retainer”)
for each full calendar month Consultant provides the Services until
termination of this Agreement. For any less than full calendar
month in which Consultant performs Consultant Services, such as at
the start of this Agreement or at the termination of this
Agreement, VeriSign shall pay Consultant a proportionate share of
the monthly Retainer fee for that portion of the calendar month.
Consultant shall be responsible for the submittal of invoices at
the end of every full month. Invoices shall be paid within 30
days.
(ii) First Transaction Success
Fee . In addition to the Retainer, VeriSign shall pay
Consultant Three Hundred Thousand Dollars ($300,000.00) if the
Closing Date for Sale of the Communications Business Bundle is on
or before December 31, 2009 (“First Transaction Success
Fee”). If the Closing Date for Sale of the Communications
Business Bundle is after December 31, 2009, or if there is no
Closing Date, Consultant shall not be entitled to any First
Transaction Success Fee. If this Agreement is terminated, whether
for or without cause by VeriSign or Consultant, prior to a Closing
Date, Consultant shall not be entitled to any First Transaction
Success Fee. The First Transaction Success Fee, if earned, is
payable to Consultant either: (i) within fifteen
(15) days after the Closing Date if the Purchaser has not
offered
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Consultant an acceptable employment position; or
(ii) upon the earlier of (A) the six month anniversary of
the Closing Date or (B) March 15 of the year following
the year of the Closing Date, if the Purchaser has offered
Consultant an acceptable employment position on or before the
Closing date. For the purpose of this section and section
(iii) below, the Consultant, in his sole discretion, shall
determine whether an employment position is acceptable and shall so
notify VeriSign within five (5) days after the Closing
Date.
(iii) Second Transaction Success
Fee . In addition to the Retainer and First Transaction Success
Fee, Consultant will also be eligible to receive up to a maximum of
Three Hundred Thousand Dollars ($300,000.00) subject to the
valuation requirements set forth in (A) and (B) below
(“Second Transaction Success Fee”). The Second
Transaction Success Fee, if earned as described below, is payable
to Consultant either: (i) within fifteen (15) days after
the Closing Date if the Purchaser has not offered Consultant an
acceptable employment position, or (ii) upon the earlier of
(A) the six month anniversary of the Closing Date, or
(B) March 15 of the year after the year in which the
Closing Date occurs, if the Purchaser has offered Consultant an
acceptable employment position on or before the Closing Date. If
this Agreement is terminated, whether for or without cause by
VeriSign or Consultant, prior to a Closing Date, Consultant shall
not be entitled to any Second Transaction Success Fee.
(A) Valuation . The amount of
the Second Transaction Success Fee that Consultant will be eligible
to receive is based upon the high and low third-party valuation of
the purchase price payable in connection with the Sale of the
Communication Business Bundle (the “High Valuation” and
“Low Valuation,” respectively, and together, the
“Valuation”). The Low Valuation is $225 million
($225,000,000) and the High Valuation is $350 million
($350,000,000). The difference between the High Valuation and the
Low Valuation shall be referred to herein as the “Valuation
Spread.”
(B) Amount of Second Transaction
Success Fee . In the event that the total purchase price paid
by the Purchaser (the “Total Purchase Price”) exceeds
the Low Valuation (the “Surplus”), the Consultant will
be eligible to receive a payment equal to the percentage of the
Surplus relative to the Valuation Spread, up to a maximum of 100%
(the “Second Transaction Success Fee Percentage”)
multiplied by $300,000.00 (such amount, the “Second
Transaction Success Fee”). In the event that the Total
Purchase Price is equal to or less than the Low Valuation, the
Consultant will not be eligible to receive a Second Transaction
Success Fee. In no event will the Consultant be eligible for a
Second Transaction Success Fee greater than $300,000.00. The
formula for the Second Transaction Success Fee can be depicted as
follows:
Second Transaction Success Fee =
$300,000 X ((Total Purchase Price – Low Valuation) divided by
(High Valuation – Low Valuation))
Or
Second Transaction Success Fee =
$300,000 X (Surplus divided by Valuation Spread)
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Example: Assumptions . (a) the Low Valuation equals
$225,000,000; (b) the High Valuation equals $350,000,000;
(c) the Valuation Spread equals $125,000,000; (d) the
Total Purchase Price equals $300,000,000; (e) the Surplus
equals $75,000,000 (i.e., the Total Purchase Price less the
Low Valuation).
Example: Determine the Second
Transaction Success Fee Percentage . First, divide the Surplus ($75,000,000) by
the Valuation Spread ($125,000,000), resulting in 60%. Second,
multiply 60% by $300,000.00. The Second Transaction Success Fee is
$180,000.00
(iv) Payment in the Event of
Partial Disposition . In the event of a Sale of less than the
entire Communications Business Bundle (in which case no First
Transaction Success Fee and no Second Transaction Success Fee shall
be payable), the parties agree to negotiate in good faith a success
fee amount the parties deem fair and reasonable for the Services
rendered by Consultant in connection with the Sale of less than the
entire Communications Business Bundle. If this Agreement is
terminated, whether for or without cause by VeriSign or Consultant,
prior to a Closing Date, Consultant shall not be entitled to any
payment under this section 2(b)(iv).
3.
Relationship of Parties .
(a)
Independent Contractor . Consultant is an independent
contractor and is neither an agent nor employee of, and has no
authority to bind, VeriSign by contract or otherwise. Consultant
will perform the Services under the general direction of VeriSign,
but Consultant will determine, in Consultant’s sole
discretion, the manner and means by which the Services are
accomplished, subject to the requirement that Consultant shall at
all times comply with applicable law.
(b)
Employment Taxes and Benefits . Consultant
will report as self-employment income all compensation received by
Consultant pursuant to this Agreement. Consultant will indemnify
VeriSign and hold it harmless from and against all claims, damages,
losses and expenses, including reasonable fees and expenses of
attorneys and other professionals, relating to any obligation
imposed by law on VeriSign to pay any withholding taxes, social
security, unemployment or disability insurance, or similar items in
connection with compensation received by Consultant pursuant to
this Agreement. Consultant will not be entitled to any vacation or
illness payments, or to participate in any plans, arrangements, or
distributions by VeriSign pertaining to any bonus, stock option,
employee stock purchase plan, profit sharing, insurance or similar
benefits for VeriSign’s employees as a result of providing
the Services to VeriSign as a Consultant.
(c) Liability Insurance
. Consultant will maintain adequate insurance to protect Consultant
from the following: (i) claims under worker’s
compensation and state disability acts; (ii) claims for
damages because of bodily injury, sickness, disease or death which
arise out of any negligent act or omission of Consultant; and
(iii) claims for damages because of injury to or destruction
of tangible or intangible property, including loss of use resulting
therefrom, which arise out of any negligent act or omission of
Consultant.
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4.
Confidential Information . Consultant acknowledges and
agrees that the Assignment of Invention, Nondisclosure and
Nonsolicitation Agreement which was signed by the Consultant on
October 1, 2008 (the “Confidentiality Agreement”)
remains in full force and effect. Nothing in this Agreement alters
the terms and conditions of the Confidentiality
Agreement.
5. Term and Termination
.
(a) Term . Consultant shall
serve as a consultant to VeriSign under the terms and conditions of
this Agreement commencing on January 1, 2009 and continuing
until the earlier of December 31, 2009 or this Agreement is
terminated by either party as set forth in 5(b) below. The term of
this Agreement is continuous with the term of the Consulting
Agreement which covered the provision of Services from
December 17, 2007 through December 31, 2008.
(b) Termination of Agreement
. VeriSign may terminate this Agreement effective immediately at
any time for Cause (as defined below). Either party may terminate
this Agreement without Cause, for any reason or no reason, by
providing thirty (30) calendar days’ advance written
notice of termination to the other party. In the event the
Agreement is terminated by VeriSign or Consultant, VeriSign will
pay to Consultant all unpaid Retainer Fees accrued as of such
termination date. For purposes of this Agreement,
“Cause” means any of the following:
(i) Consultant’s continued or repeated failure to
perform one or more of the duties listed in Exhibit C;
(ii) Consultant’s commission of any act of fraud, gross
misconduct or dishonesty with respect to VeriSign, any of its
subsidiaries or their employees or directors; (iii) conviction
of Consultant, or Consultant’s plea of guilty or “no
contest,” to a felony or a crime involving moral turpitude;
or (iv) Consultant’s material breach of this Agreement
and/or the Confidentiality Agreement. In addition, this Agreement
shall terminate upon the death or disability of
Consultant.
6. Effect of Termination .
Upon the termination of this Agreement for any reason each party
will be released from all obligations to the other arising after
the date of termination, except that termination of this Agreement
will not relieve Consultant of his obligations or VeriSign of its
rights under Section 4 and Consultant will promptly notify
VeriSign of all VeriSign property in Consultant’s possession
and, in accordance with VeriSign’s instructions, will
promptly deliver to VeriSign all such VeriSign property. Regardless
of the efforts of Consultant prior to termination, no payments
under Sections 2(b) (ii), (iii) or (iv) shall be payable
to Consultant after termination unless any and all conditions for
the earning of such payments have been completely satisfied prior
to the date of termination of this Agreement.
7.
Limitation of Liability . EXCEPT FOR DAMAGES
RESULTING FROM THE VIOLATION OF ANY CONFIDENTIALITY OBLIGATIONS
ARISING UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE
LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL
DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF
INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
VERISIGN’S LIABILITY IN ANY AND ALL EVENTS IS FURTHER LIMITED
TO THE AMOUNT PAYABLE TO CONSULTANT UNDER SECTION 2(b) IN THIS
AGREEMENT.
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8. General .
(a) Assignment . Consultant
may not assign Consultant’s rights or delegate
Consultant’s duties under this Agreement either in whole or
in part without the prior written consent of VeriSign. Any
attempted assignment or delegation without such consent will be
void.
(b) Equitable Remedies .
Because the Services are personal and unique and because Consultant
will have access to confidential information of VeriSign, VeriSign
may enforce this Agreement and any of its provisions by injunction,
specific performance or other equitable relief without prejudice to
any other rights and remedies that VeriSign may have for a breach
of this Agreement.
(c)
Governing Law; Jurisdiction . This Agreement shall
be governed by, construed and enforced in accordance with the laws
of Virginia, without regard to its conflict of law principles. Any
action to enforce or interpret this Agreement shall be commenced
and maintained in federal or state courts in Fairfax County,
Virginia. The parties to this Agreement submit to the exclusive
jurisdiction of the federal and state courts of Fairfax County,
Virginia. Should any provision of this Agreement be declared or
determined by a court of competent jurisdiction to be invalid or
otherwise unenforceable, the remaining parts, terms and provisions
shall continue to be valid, legal and enforceable, and will be
performed and enforced to the fullest extent permitted by
law.
(d) Notices . All notices,
consents and other communications required or permitted under this
Agreement will be in writing and delivered by confirmed facsimile
transmission, by courier or overnight delivery service with written
verification of receipt, or by registered or certified mail, return
receipt requested, postage prepaid, and in each instance will be
deemed given when sent. All such notices, consents and other
communications will be sent to the addresses set forth above or to
such other address as may be specified by either party to the other
in accordance with this Section.
(e) Waiver . The failure by
either party to enforce any provision of this Agreement will not
constitute a waiver of future enforcement of that or any other
provision.
(f) Severability . If any
provision of this Agreement is for any reason found to be
unenforceable, the remainder of this Agreement will continue in
full force and effect.
(g) Counterparts . This
Agreement may be executed in counterparts, each of which will be
deemed an original, but both of which together will constitute one
and the same instrument. This Agreement may be executed via
facsimile.
(h)
Complete Understanding; Modification . This
Agreement, together with the exhibits hereto, constitutes the
complete and exclusive understanding and agreement of the parties
regarding its subject matter and supersedes all prior
understandings and agreements,
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whether written or oral, with respect to the
subject matter hereof. Notwithstanding anything herein, any
agreement between Consultant and VeriSign pertaining to the
protection of VeriSign’s confidential and/or proprietary
information remains enforceable and binding. Any waiver,
modification or amendment of any provision of this Agreement will
be effective only if in writing and signed by duly authorized
representatives of the parties.
IN WITNESS WHEREOF, the parties have
signed this Agreement as of the dates set out below.
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VERISIGN,
INC.
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CONSULTANT
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By:
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Name:
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Roger
Moore
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Title:
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Date:
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Date:
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7
EXHIBIT A
Consulting
Agreement
8
CONSULTING
AGREEMENT
This Consulting Agreement
(“Agreement”) is made by and between VeriSign,
Inc. , a Delaware corporation with offices at 487 E.
Middlefield Road, Mountain View, California 94043
(“VeriSign”), and Roger Moore , a United States
citizen, with his principal residence at [***]
(“Consultant”).
RECITALS
WHEREAS, VeriSign and Consultant
desire to enter into this Agreement in connection with the sale of
certain VeriSign businesses (“Communications Business
Bundle”) as set forth on Exhibit A hereto;
WHEREAS, Consultant desires to
perform, and VeriSign desires to have Consultant perform certain
consulting services (“Services”) as set forth on
Exhibit B hereto in connection with the Sale of the Communications
Business Bundle in accordance with the terms and conditions of this
Agreement;
WHEREAS, the Board of Directors of
VeriSign (the “Board”), the Audit Committee of the
Board and the Compensation Committee of the Board have each
considered and approved the provision of the Services by Consultant
to VeriSign on the material terms contained in this Agreement at
meetings held on December 12, 2007 (for the Board) and
December 11, 2007 (for both the Audit and the Compensation
Committees of the Board);
WHEREAS, Consultant resigned from
the Audit Committee of the Board on December 20, 2007 and is
not a member of any other Committee of the Board;
WHEREAS, the Audit Committee of the
Board approved the form of this Agreement by Unanimous Written
Consent on September 26, 2008;
WHEREAS, the Compensation Committee
of the Board approved the form of this Agreement by Unanimous
Written Consent on September 26, 2008; and
WHEREAS, VeriSign and Consultant
desire to set out in this Agreement the terms and conditions for
the provision of the Services by Consultant to VeriSign.
NOW THEREFORE, in consideration of
the mutual promises made herein, VeriSign and Consultant hereby
agree as follows:
1. Definitions .
“ Sale ” means
the merger, asset purchase or other disposition of the entire
Communications Business Bundle. VeriSign shall retain at all times
the right to conclude and consummate any such Sale.
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[***]
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Note:
Confidential treatment has been requested with respect to the
information contained with in the [***] marking. Such portions have
been omitted from this filing and have been filed separately with
the Securities and Exchange Commission.
|
9
“ Closing Date ”
means the effective date upon which the closing of the Sale of
Communications Business Bundle occurs as defined in the Definitive
Agreement.
“ Definitive Agreement
” means the agreement memorializing the merger, asset
purchase or other disposition of the Communications Business Bundle
with Purchaser.
“ Purchaser ”
means the entity or entities to whom the Sale of the Communications
Business Bundle is made.
2. Services, Payments and Start
Date .
(a) Performance by Consultant and
Start Date . Consultant will perform the Services until the
Agreement is terminated as set forth in Section 5. The
Consultant will provide the Services under this Agreement
commencing on December 17, 2007 ( “Start Date”).
In this endeavor, Consultant shall use his independent judgment
consistent with his training, skill, and experience and his
services shall be performed in a thorough, efficient and
workmanlike manner, promptly and with due diligence and care, and
in accordance with that standard of care and skill ordinarily
exercised by members of the profession doing similar services.
Consultant assumes all personal risk and responsibility for his
services under this Agreement.
(b) Payments to Consultant .
VeriSign shall pay Consultant the following fees for performance of
the Services as set forth in (i)-(iv) below.
(i) Retainer Fee . VeriSign
shall pay Consultant a consulting retainer fee in the amount of
Thirty Thousand Dollars ($30,000) per month (the
“Retainer”) for each full calendar month Consultant
provides the Services until termination of this Agreement. For any
less than full calendar month in which Consultant performs
Consultant Services, such as at the start of this Agreement or at
the termination of this Agreement, VeriSign shall pay Consultant a
proportionate share of the monthly Retainer fee for that portion of
the calendar month. Consultant shall be responsible for the
submittal of invoices. Invoices shall be paid within 30
days.
(ii) First Transaction Success
Fee . In addition to the Retainer, VeriSign shall pay
Consultant Three Hundred Thousand Dollars ($300,000.00) if the
Closing Date for Sale of the Communications Business Bundle is on
or before December 31, 2008 (“First Transaction Success
Fee”). If the Closing Date for Sale of the Communications
Business Bundle is after December 31, 2008, or if there is no
Closing Date, Consultant shall not be entitled to any First
Transaction Success Fee. If this Agreement is terminated, whether
for or without cause by VeriSign or Consultant, prior to a Closing
Date, Consultant shall not be entitled to any First Transaction
Success Fee. The First Transaction Success Fee, if earned, is
payable to Consultant either: (i) within fifteen
(15) days after the Closing Date if the Purchaser has not
offered Consultant an acceptable employment position; or
(ii) upon the earlier of (A) the six month anniversary of
the Closing Date or (B) March 15, 2009, if the Purchaser
has offered Consultant
10
an acceptable employment position on or before
the Closing date. For the purpose of this section and section
(iii) below, the Consultant, in his sole discretion, shall
determine whether an employment position is acceptable and shall so
notify VeriSign within five (5) days after the Closing
Date.
(iii) Second Transaction Success
Fee . In addition to the Retainer and First Transaction Success
Fee, Consultant will also be eligible to receive up to a maximum of
Six Hundred Thousand Dollars ($600,000.00) subject to the valuation
requirements set forth in (A) and (B) below
(“Second Transaction Success Fee”). The Second
Transaction Success Fee, if earned as described below, is payable
to Consultant either: (i) within fifteen (15) days after
the Closing Date if the Purchaser has not offered Consultant an
acceptable employment position, or (ii) upon the earlier of
(A) the six month anniversary of the Closing Date, or
(B) March 15 of the year after the year in which the
Closing Date occurs, if the Purchaser has offered Consultant an
acceptable employment position on or before the Closing Date. If
this Agreement is terminated, whether for or without cause by
VeriSign or Consultant, prior to a Closing Date, Consultant shall
not be entitled to any Second Transaction Success Fee.
(A) Valuation . The amount of
the Second Transaction Success Fee that Consultant will be eligible
to receive is based upon the high and low third-party valuation of
the purchase price payable in connection with the Sale of the
Communication Business Bundle (the “High Valuation” and
“Low Valuation,” respectively, and together, the
“Valuation”). The Low Valuation is $225 million
($225,000,000) and the High Valuation is $350 million
($350,000,000). The High and Low Valuation are binding and
conclusive for all purposes of determining the amount (if any) of
Consultant’s Second Transaction Success Fee (as defined
below). The difference between the High Valuation and the Low
Valuation shall be referred to herein as the “Valuation
Spread.”
(B) Amount of Second Transaction
Success Fee . In the event that the total purchase price paid
by the Purchaser (the “Total Purchase Price”) exceeds
the Low Valuation (the “Surplus”), the Consultant will
be eligible to receive a payment equal to the percentage of the
Surplus relative to the Valuation Spread, up to a maximum of 100%
(the “Second Transaction Success Fee Percentage”)
multiplied by $600,000.00 (such amount, the “Second
Transaction Success Fee”). In the event that the Total
Purchase Price is equal to or less than the Low Valuation, the
Consultant will not be eligible to receive a Second Transaction
Success Fee. In no event will the Consultant be eligible for a
Second Transaction Success Fee greater than $600,000.00. The
formula for the Second Transaction Success Fee can be depicted as
follows:
Second Transaction Success Fee =
$600,000 X ((Total Purchase Price – Low Valuation) divided by
(High Valuation – Low Valuation))
Or
Second Transaction Success Fee =
$600,000 X (Surplus divided by Valuation Spread)
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Example: Assumptions . (a) the Low Valuation equals
$225,000,000; (b) the High Valuation equals $350,000,000;
(c) the Valuation Spread equals $125,000,000; (d) the
Total Purchase Price equals $300,000,000; (e) the Surplus
equals $75,000,000 (i.e., the Total Purchase Price less the
Low Valuation).
Example: Determine the Second
Transaction Suc