EXHIBIT 10.04
CONFIDENTIAL TREATMENT
REQUESTED
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.
|
***
|
Note:
Confidential treatment has been requested with respect to the
information contained within the [***] marking. Such portion has
been omitted from this filing and has been filed separately with
the Securities and Exchange Commission.
|
1
“ 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 Consultant an acceptable employment position; or
(ii) upon the earlier of (A) the six month
2
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)
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).
3
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 a