Stock and Option Vesting Waiver Agreement - NetScreen Technologies Inc. and Nir Zuk
STOCK AND OPTION VESTING WAIVER AGREEMENT
This Stock and Option Vesting Waiver Agreement (this "Agreement") is made
and entered into as of August 22, 2002 by and between the undersigned
("Employee") and NetScreen Technologies, Inc., a Delaware Corporation
("Acquirer"). This Agreement shall be effective as of the closing of the Merger
(as defined below).
RECITALS
Whereas, Employee is a party to that certain Stock Option Agreement dated
January 24, 2001 and July 5, 2001 by and between OneSecure, Inc., a Delaware
corporation (the "Company"), and Employee (the "Option Agreement"), and that
certain Addendum to Stock Option Agreement dated January 24, 2001 and July 5,
2001 by and between the Company and Employee (the "Addendum" and together with
the Option Agreement, the "Complete Option Agreement").
Whereas, Employee is a party to that certain Restricted Common Stock
Purchase Agreement dated February 18, 2000 by and between the Company and
Employee (the "Purchase Agreement").
Whereas, in connection with that certain Agreement and Plan of Merger dated
August 22, 2002 (the "Merger Agreement") by and among the Company, Acquirer and
Tango Acquisition Corp., a Delaware corporation and wholly owned subsidiary of
Acquirer ("Merger Sub"), Employee hereby acknowledges and agrees that, effective
upon the effective time of the merger of Merger Sub with the Company (the
"Merger"), Employee shall commence employment with Acquirer in accordance with
that certain letter agreement dated August 22, 2002 by and between Employee and
Acquirer (the "Offer Letter").
Now, Therefore, in consideration of the foregoing and the mutual promises,
covenants and conditions conatined herein, the parties hereby agree as follows:
1 Acknowledgemens by Employee.
(a) Employee hereby acknowledges and agrees that the commencement
of Employee's employment with Acquirer, in the position and on the terms set
forth in the Offer Letter, shall not constitute an Involuntary Termination (as
defined in the Addendum), and Employee hereby waives any rights to accelerated
vesting pursuant to the provisions of Section 1 of the Addendum in connection
with the Merger or in connection with Employee's employment with Acquirer
pursuant to the terms of the Offer Letter.
(b) Employee hereby acknowledges that, subject to the provisions of
the Merger Agreement, Acquirer is assuming all of Employee's options to purchase
shares of the Company's common stock and none of such options shall
automatically vest as a result of the Merger and assumption of Employee's
options.
(c) Employee hereby acknowledges and agrees that, notwithstanding
Section 5.6 of the Purchase Agreement, the commencement of Employee's employment
with Acquirer, in the position and on the terms set forth in the Offer Letter,
shall not constitute a basis for
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Employee to leave either the Company or Acquirer, as the case may be, for Good
Reason (as defined in the Purchase agreement), and Employee hereby waives any
lapsing of Company's or Acquirer's right to repurchase pursuant to the
provisions of Section 5 of the Purchase Agreement in connection with the Merger
or in connection with Employee's employment with Acquirer pursuant to the terms
of the Offer Letter.
(d) Employee hereby acknowledges that, notwithstanding Section 5.6 of
the Purchase Agreement, neither the Merger nor the conversion of Employee's
shares of Company common stock acquired pursuant to the Purchase Agreement into
shares of Acquirer common stock (and potentially cash) shall cause the
Repurchase Right (as defined in the Purchase Agreement) to terminate.
(e) The acknowledgements made and given by Employee in this Section 1
are made and given with respect only to the transactions contemplated by the
Merger Agreement and nor with respect to any other asset purchase, stock
purchase, merger, consolidation on similar transaction involving the Company to
which Employee's rights under the Complete Option Agreement, the Company's 2000
Stock Option/Stock Issuance Plan or the Purchase Agreement would apply.
2. Acknowledgements by Acquirer.
(a) Notwithstanding the provisions of Section 1, Acquirer hereby
acknowledges and agrees that, upon Employee's Involuntary Termination within
three months following the closing of the Merger, Employee's options under the
Complete Option Agreement shall vest in full to an accelerated basis; provided,
however, that employee's options shall remain exercisable only until the earlier
of (a) the Expiration Date (as defined in the Option Agreement) and (ii) the
expiration of the six-month period measured from the date of the Involuntary
Termination.
(b) For purposes of Section 2(a), an Involuntary Termination shall have
the meaning given to such term in the Addendum; provided, however, that (i) the
term "Corporation" shall mean NetScreen Technologies, Inc., a Delaware
corporation, its successors and assigns and (ii) any change in Employee's
position which materially reduces Employee's duties and responsibilities or
level of management to which Employee reports, any reduction in Employee's level
of compensation or any relocation of Employee's place of employment, in each
case without Employer's consent, shall be measured against Employee's position,
compensation and location immediately following the closing of the Merger rather
than Employee's employment with the Company prior to the closing of the Merger.
(c) Notwithstanding the provisions of Section 1, Acquirer hereby
acknowledges and agrees that, upon Employees's termination without Cause or
departure from Acquirer for Good Reason within three months following the
closing of the Merger, Company's and Acquirer's right of repurchase under the
Purchase Agreement shall lapse with respect to all Unvested Shares (as defined
in the Purchase Agreement).
(d) For Purposes of Section 2(c), (i) "Cause" shall have the meaning
given to such term in Section 5.6 of the Purchase Agreement and the term
"Company" shall mean
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NetScreen Technologies, Inc., a Delaware corporation, its successors and assigns
and (ii) "Good Reason" shall mean Employee's resignation or departure by reason
of a material adverse diminution in Employee's title, responsibilities, duties
or base salary as measured against Employees's title, responsibilities, duties
and base salary immediately following the closing of the Merger rather than
Employee's employment with the Company prior to the closing of the Merger.
3. Miscellaneous
(a) Entire Agreement. This Acknowledgement and the documents
referred to herein constitute the entire agreement and understanding of the
parties with respect to the subject matter of this Acknowledgement, and
supersede all prior understandings and agreements, whether oral or written,
between or among the parties hereto with respect to the specific subject matter
hereof.
(b) Construction of Agreement. This Acknowledgement has been
negotiated by the respective parties hereto and their attorneys and the language
hereof will not be construed for or against either party.
(c) Governing Law. The internal laws of the State of California
(irrespective of its choice of law principles) will govern the validity of this
Acknowledgement, the construction of its terms, and the interpretation and
enforcement of the rights and duties of the parties hereto.
(d) Severability. If any provision of this Acknowledgement, or
the application thereof, will for any reason and to any extent be invalid or
unenforceable, then the remainder of this Acknowledgement and the application of
such provision to other persons or entities or circumstances will be interpreted
so as reasonably to effect the intent of the parties hereto.
(e) Amendment and Waivers. Any term or provision of this
Acknowledgement may be amended, and the observance of any term of this
Acknowledgement may be waived (either generally or in a particular instance and
either retroactively or prospectively), only by a writing signed by the party to
be bound thereby.
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This Acknowledgement by Employee may be executed in counterparts, each
of which will constitute an original and all of which together will constitute
one agreement.
EMPLOYEE:
By: /s/ Nir Zuk
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Print Name: Nir Zuk
AGREED AND ACCEPTED:
NETSCREEN TECHNOLOGIES, INC.
By: /s/ Robert D. Thomas
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Name: Robert D. Thomas
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Title: President and Chief Executive Officer
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[Signature Page to Stock and Option Vesting Waiver Agreement]