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EXHIBIT 1.01
$662,000,000
VERITAS SOFTWARE CORPORATION
VERITAS OPERATING CORPORATION
% CONVERTIBLE SUBORDINATED NOTES DUE 2006
UNDERWRITING AGREEMENT
August 9, 1999
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August 9, 1999
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
▇▇ ▇▇▇▇▇ Securities Corporation, as representatives
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
VERITAS Software Corporation, a Delaware corporation (the "COMPANY"),
and VERITAS Operating Corporation, a Delaware corporation wholly owned by the
Company (the "CO-OBLIGOR" and, together with the Company, the "ISSUERs") propose
to issue and sell to the several Underwriters named in Schedule I hereto (the
"UNDERWRITERS") an aggregate of U.S. $662,000,000 principal amount at maturity
of their ___% Convertible Subordinated Notes due 2006 (the "FIRM SECURITIES") to
be issued pursuant to the provisions of an Indenture dated as of August 12, 1999
(the "INDENTURE") among the Issuers and State Street Bank and Trust Company of
California, N.A., as Trustee (the "TRUSTEE").
The Issuers also propose to issue and sell to the several Underwriters
not more than an additional $99,300,000 aggregate principal amount at maturity
of their ___% Convertible Subordinated Notes due 20006 (the "ADDITIONAL
SECURITIES") if and to the extent that you, as Managers of the offering, shall
have determined to exercise, on behalf of the Underwriters the right to purchase
such ___% Convertible Subordinated Notes due 20006 granted to the Underwriters
in Section 2 hereof. The Firm Securities and the Additional Securities are
hereinafter collectively referred to as the "SECURITIES. The Securities will be
convertible into shares of Common Stock of the Company, par value U.S.$0.001 per
share (the "COMMON STOCK" and such reserved convertible shares into which the
Securities are convertible, the "UNDERLYING SECURITIES"), [together with the
rights (the "RIGHTS") evidenced by such Underlying Securities to the extent
provided in the Preferred Share Rights Plan (the "RIGHTS PLAN") dated as of
_____, 1999, between the Company and State Street Bank and Trust Company of
California, N.A.]
The Issuers have filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement, including a prospectus, relating to the
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Securities. The registration statement as amended at the time it becomes
effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), is hereinafter
referred to as the "REGISTRATION STATEMENT"; the prospectus in the form first
used to confirm sales of Securities is hereinafter referred to as the
"PROSPECTUS." If the Issuers have filed an abbreviated registration statement to
register additional Securities pursuant to Rule 462(b) under the Securities Act
(the "RULE 462 REGISTRATION STATEMENT"), then any reference herein to the term
"REGISTRATION STATEMENT" shall be deemed to include such Rule 462 Registration
Statement.
The Underwriters acknowledge that concurrently with the offering of the
Firm Securities, certain stockholders of the Company are offering an aggregate
of 12,000,000 shares of the common stock, par value U.S.$0.001 per share (the
"COMMON STOCK"), of the Company pursuant to an underwriting agreement dated the
date hereof among the Company, such selling stockholders and the underwriters
named therein (1,800,000 additional shares of additional Common Stock is also
offered in such underwriting agreement to be purchased at the underwriters'
option) (the "COMMON STOCK OFFERING"). The consummation of the offering of the
Securities is not contingent upon the consummation of the Common Stock Offering
or vice versa.
1. Representations and Warranties. The Issuers, jointly and severally,
represent and warrant to and agree with each of the Underwriters that:
(a) The Registration Statement has become effective under the
Securities Act; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose
are pending before or, to the knowledge of the Issuers, threatened by
the Commission.
(b) (i) The Registration Statement, when it became effective,
did not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Registration Statement and
the Prospectus comply and, as amended or supplemented, if applicable,
will comply in all material respects with the requirements of the
Securities Act and the applicable rules and regulations of the
Commission thereunder and (iii) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except
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that the representations and warranties set forth in this paragraph do
not apply to (A) statements or omissions in the Registration Statement
or the Prospectus based upon information relating to any Underwriter
furnished to the Issuers in writing by such Underwriter through you
expressly for use therein or (B) that part of the Registration Statement
that constitutes the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"), of the
Trustee.
(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus and
is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified
or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company listed on Schedule II hereto
(which schedule identifies all of the material subsidiaries of the
Company) has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned
directly by the Company, free and clear of all liens, encumbrances,
equities or claims.
(e) This Agreement has been duly authorized, executed and
delivered by each Issuer.
(f) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
each Issuer and is a valid and binding agreement of each Issuer,
enforceable in accordance with its term, subject to applicable
bankruptcy, insolvency or
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similar laws affecting creditors' rights generally and general
principles of equity.
(g) The Securities have been duly authorized by each Issuer and,
when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of
such Issuer, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors'
rights generally and general principles of equity.
(h) (1) The Underlying Securities issuable upon conversion of
the Securities have been duly authorized and reserved and, when issued
upon conversion of the Securities in accordance with the terms of the
Securities, will be validly issued, fully paid and non-assessable, and
the issuance of the Underlying Securities will not be subject to any
preemptive or similar rights [and (2) the Rights, if any, issuable upon
conversion of the Securities have been duly authorized and, when and if
issued upon conversion in accordance with the terms of the Indenture and
the Rights Plan, will have been validly issued.]
(i) The execution and delivery by each Issuer of, and the
performance by such Issuer of its obligations under, this Agreement, the
Indenture and the Securities will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of such
Issuer or any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company
or any subsidiary, and no consent, approval, authorization or order of,
or qualification with, any governmental body or agency is required for
the performance by such Issuer of its obligations under this Agreement,
the Indenture or the Securities, except such as have been already
obtained or made under the Securities Act and the rules and regulations
of the Commission thereunder or as may be required by the securities or
Blue Sky laws of the various states or the securities or similar laws of
any foreign jurisdiction in connection with the offer and sale of the
Securities.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in
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the Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement).
(k) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened to which the Company or any
of its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not so
described or any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that
are not described or filed as required.
(l) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder.
(m) Each Issuer is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
(n) The Company and its subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(o) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, (i) the
Company and its subsidiaries have not incurred any material liability or
obligation, direct or contingent, nor entered into any material
transaction not in the ordinary course of business; (ii) each Issuer has
not purchased any of its outstanding capital stock (other than pursuant
to the share repurchase
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program described in the Prospectus), nor declared, paid or otherwise
made any dividend or distribution of any kind on its capital stock other
than ordinary and customary dividends; and (iii) there has not been any
material change in the capital stock, short-term debt or long-term debt
of the Company and its consolidated subsidiaries, except in each case as
described in or contemplated by the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement).
(p) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, adequate rights to use all material
patents, patent rights, licenses, inventions, copyrights, software,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names necessary for the
conduct of the business now operated by them as described in the
Prospectus, and neither the Company nor any of its subsidiaries has
received any notice of infringement of or conflict with asserted rights
of others with respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in any material adverse change in the condition, financial
or otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole.
(q) The Company and its subsidiaries possess all material
certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct
their respective businesses, and neither the Company nor any such
subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a material
adverse change in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and its subsidiaries,
taken as a whole, except as described in or contemplated by the
Prospectus.
(r) The Company has reviewed and is continuing to review its
operations and that of its subsidiaries to evaluate the extent to which
the business or operations of the Company or any of its subsidiaries
will be affected by the Year 2000 Problem (that is, any significant risk
that computer hardware or software applications used by the Company and
its subsidiaries will not, in the case of dates or time periods
occurring after December 31, 1999, function at least as effectively as
in the case of dates or time periods occurring prior to January 1,
2000); as a result of such review, (i) the Company has no reason to
believe, and does not believe, that (A) there are any issues related to
the Company's preparedness to
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address the Year 2000 Problem that are of a character required to be
described or referred to in the Prospectus which have not been
accurately described in the Prospectus and (B) the Year 2000 Problem
will have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business or operations of the Company and
its subsidiaries, taken as a whole, or result in any material loss or
interference with the business or operations of the Company and its
subsidiaries, taken as a whole; and (ii) the Company reasonably
believes, after due inquiry, that the critical suppliers, vendors,
customers or other material third parties used or served by the Company
and such subsidiaries are addressing or will address the Year 2000
Problem in a timely manner (or that the Company has a reasonable belief
that its contingency plans for such third parties' failure to address
the Year 2000 Problem will be in place) except to the extent that a
failure to address the Year 2000 Problem by any such critical supplier,
vendor, customer or other material third party would not have a material
adverse effect on the condition, financial or otherwise, or on the
earnings, business or operations of the Company and its subsidiaries,
taken as a whole.
(s) The Company has complied with all provisions of Section
517.075, Florida Statutes relating to doing business with the Government
of Cuba or with any person or affiliate located in Cuba.
2. Agreements to Sell and Purchase. The Issuers hereby agree to sell to
the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Issuers the respective principal amounts at maturity of Firm Securities set
forth in Schedule I hereto opposite its name at a purchase price of _____% of
their principal amount at maturity (the "PURCHASE PRICE") plus accrued interest,
if any, from August 12, 1999 to the date of payment and delivery.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Issuers agree jointly to
sell to the Underwriters the Additional Securities, and the Underwriters shall
have the right to purchase, from time to time during the 30 days after the date
of this Agreement, severally and not jointly, up to an aggregate of $99,300,000
principal amount at maturity Additional Securities at the Purchase Price. If the
Managers, on behalf of the Underwriters, elect to exercise such option, the
Managers, shall so notify the Issuers in writing not later than 30 days after
the date of this Agreement, which notice shall specify the number of Additional
Securities to be purchased by the Underwriters and the date on which such
securities are to be purchased. Such date may be the same as the Closing Date
(as defined below) but not earlier than
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the Closing Date nor later than ten business days after the date of such notice.
Additional Securities may be purchased as provided in Section 4 hereof solely
for the purpose of covering over-allotments made in connection with the offering
of the Firm Securities. If any Additional Securities are to be purchased, each
Underwriter agrees, severally and not jointly, to purchase the number of
Additional Securities that bears the same proportion to the total number of
Additional Securities to be purchased as the number of Firm Securities set forth
in Schedule I hereto opposite the name of such Underwriter bears to the total
number of Firm Securities.
The Company, certain of its executive officers and directors agrees to
execute a "lock-up" agreement substantially in the forms set forth in Exhibits
A, B and C respectively.
3. Terms of Public Offering. The Issuers are advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Securities as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Issuers are further
advised by you that the Securities are to be offered to the public initially at
____% of their principal amount at maturity (the "PUBLIC OFFERING PRICE") plus
accrued interest, if any, from August 12, 1999 to the date of payment and
delivery and to certain dealers selected by you at a price that represents a
concession not in excess of ____% of their principal amount, and that any
Underwriter may allow, and such dealers may reallow, a concession, not in excess
of ____% of their principal amount, to any Underwriter or to certain other
dealers.
4. Payment and Delivery. Payment for the Firm Securities shall be made
to the Issuers in Federal or other funds immediately available in New York City
at 10:00 a.m., New York City time, on August 12, 1999, or at such other time on
the same or such other date, not later than August 19, 1999, as shall be
designated in writing by you. The time and date of such payment are hereinafter
referred to as the "CLOSING DATE."
Payment for any Additional Securities shall be made to the Issuers in
Federal or other funds immediately available in New York City against delivery
of such Additional Securities for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the date specified in the
notice described in Section 2 or at such other time on the same or on such other
date, in any event not later than September 23, 1999, as shall be designated in
writing by you. The time and date of such payment are hereinafter referred to as
the "OPTION CLOSING DATE."
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Certificates for the Firm Securities and Additional Securities shall be
in definitive form or Global form, as specified by you and as required under the
terms of the Indenture, and registered in such names and in such denominations
as you shall request in writing not later than one full business day prior to
the Closing Date or the Option Closing Date, as the case may be. The
certificates evidencing the Firm Securities and Additional Securities shall be
delivered to you on the Closing Date or the Option Closing Date, as the case may
be, for the respective accounts of the several Underwriters, with any transfer
taxes payable in connection with the transfer of the Securities to the
Underwriters duly paid, against payment of the Purchase Price therefor plus
accrued interest, if any, to the date of payment and delivery..
5. Conditions to the Underwriters' Obligations. The obligations of the
Issuers to sell the Firm Securities to the Underwriters and the several
obligations of the Underwriters to purchase and pay for the Firm Securities on
the Closing Date are subject to the condition that the Registration Statement
shall have become effective not later than ______ (New York City time) on the
date hereof.
The several obligations of the Underwriters are subject to the following
further conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded to any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement) that, in your judgment, is material and adverse and
that makes it, in your judgment, impracticable to market the
Securities on the terms and in the manner contemplated in the
Prospectus.
(b) The Underwriters shall have received on the Closing Date:
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(i) a certificate, dated the Closing Date and signed by an
executive officer of each Issuer, to the effect set forth in
Section 5(a)(i) above and to the effect that the representations
and warranties of such Issuer contained in this Agreement are
true and correct as of the Closing Date and that such Issuer has
complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on
or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of ▇▇▇▇▇▇▇ & West LLP, outside counsel for the Issuers, dated
the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(ii) each subsidiary listed on Schedule II hereto of the
Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction
of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would
not have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(iii) this Agreement has been duly authorized, executed and
delivered by each Issuer;
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(iv) no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required
for the performance by each Issuer of its obligations under this
Agreement, the Indenture and the Securities, except such as have
been already obtained or made under the Securities Act and the
rules and regulations of the Commission thereunder or as may be
required by the securities or Blue Sky laws of the various
states or the securities or similar laws of any foreign
jurisdiction in connection with the offer and sale of the
Securities;
(v) the statements (A) in the Prospectus under the captions
"Description of Capital Stock," "Description of the Notes" and
"Certain Federal Income Tax Considerations" and (B) in the Part
II of the Registration Statement in Items 14 and 15, in each
case insofar as such statements constitute summaries of the
legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such
legal matters, documents and proceedings and fairly summarize
the matters referred to therein;
(vi) such counsel does not know of any legal or governmental
proceedings pending or threatened to which the Company or any of
its subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or the
Prospectus and are not so described or of any statutes,
regulations, contracts or other documents that are required to
be described in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement that are
not described or filed as required;
(vii) each Issuer is not an "investment company" or an
entity "controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended; and
(viii) such counsel is of the opinion that the Registration
Statement and Prospectus (except for financial statements and
schedules and other financial and statistical data included
therein as to which such counsel need not express any opinion)
comply as to form in all material respects with the Securities
Act and the applicable rules and regulations of the Commission
thereunder.
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In addition, nothing has come to the attention of such counsel
that would cause such counsel to believe that (except for financial
statements and schedules and other financial and statistical data as to
which such counsel need not express any belief and except for that part
of the Registration Statement that constitutes the Form T-1 heretofore
referred to) the Registration Statement and the prospectus included
therein at the time the Registration Statement became effective
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. Nothing has come to the attention of
such counsel that (except for financial statements and schedules and
other financial and statistical data as to which such counsel need not
express any belief) the Prospectus contains any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
With respect to the last sentence in the above paragraph,
Fenwick & West LLP may state that its opinion and belief are based upon
its participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and review and
discussion of the contents thereof, but are without independent check or
verification, except as specified.
(d) The Underwriters shall have received on the Closing Date an
opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, outside counsel for the Issuers, dated the
Closing Date, to the effect that:
(i) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and
delivered by each Issuer and is a valid and binding agreement of
each Issuer, enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and general principles of equity;
and
(ii) the Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the Underwriters
in accordance with the terms of this Agreement, will be entitled
to the benefits of the Indenture and will be valid and binding
obligations of each Issuer, enforceable in accordance with their
terms, subject to applicable bankruptcy, insolvency or similar
laws affecting creditors' rights generally and general
principles of equity,
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(e) The Underwriters shall have received on the Closing Date an
opinion of ▇▇▇ ▇▇▇▇▇, internal counsel for the Issuers, dated the
Closing Date, to the effect that the execution and delivery by each
Issuer of, and the performance by each Issuer of its obligations under,
this Agreement, the Indenture and the Securities will not contravene any
provision of applicable law or the certificate of incorporation or
by-laws of each Issuer or, to the best of such counsel's knowledge, any
agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken
as a whole, or, to the best of such counsel's knowledge, any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary.
(f) The Underwriters shall have received on the Closing Date an
opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, dated
the Closing Date, covering the matters referred to in Sections
5(c)(iii), 5(c)(iv), 5(d)(i), 5(d)(ii) (but only as to the statements in
the Prospectus under "Description of the Notes" and "Underwriters").
In addition, nothing has come to the attention of such counsel
that would cause such counsel to believe that (except for financial
statements and schedules and other financial and statistical data as to
which such counsel need not express any belief and except for that part
of the Registration Statement that constitutes the Form T-1 heretofore
referred to) the Registration Statement and the prospectus included
therein at the time the Registration Statement became effective
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. Nothing has come to the attention of
such counsel that (except for financial statements and schedules and
other financial and statistical data as to which such counsel need not
express any belief) the Prospectus contains any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
With respect to the last sentence in the above paragraph, ▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇ may state that its opinion and belief are based upon its
participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and review and
discussion of the contents thereof, but are without independent check or
verification, except as specified.
13
15
The opinion of Fenwick & West LLP described in Section 7(c)
above shall be rendered to the Underwriters at the request of the
Issuers and shall so state therein.
(g) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Underwriters, from each of ▇▇▇▇▇ & Young LLP and KPMG LLP,
independent public accountants, containing statements and information of
the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus; provided that the letter delivered on the Closing Date shall
use a "cut-off date" not earlier than the date hereof.
(h) The "lock-up" agreements, each substantially in the form of
Exhibits A through E hereto, between you and the Company and certain
shareholders, officers and directors of the Company relating to sales
and certain other dispositions of shares of Common Stock or certain
other securities, delivered to you on or before the date hereof, shall
be in full force and effect on the Closing Date.
The several obligations of the Underwriters to purchase Additional
Securities hereunder are subject to the delivery to you on the Option Closing
Date of such documents as they may reasonably request with respect to the good
standing of the Issuers, the due authorization and issuance of the Additional
Securities and other matters related to the issuance of the Additional
Securities.
6. Covenants of the Issuers. In further consideration of the agreements
of the Underwriters herein contained, the Issuers covenant with each Underwriter
as follows:
(a) To furnish to you, without charge, signed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and to furnish to you in New York City,
without charge, prior to 10:00 a.m. New York City time on the business
day next succeeding the date of this Agreement and during the period
mentioned in Section 6(c) below, as many copies of the Prospectus and
any supplements and amendments thereto or to the Registration Statement
as you may reasonably request.
14
16
(b) Before amending or supplementing the Registration Statement
or the Prospectus, to furnish to you a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably object, and to file with the
Commission within the applicable period specified in Rule 424(b) under
the Securities Act any prospectus required to be filed pursuant to such
Rule.
(c) If, during such period after the first date of the public
offering of the Securities as in the reasonable opinion of counsel for
the Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur
or condition exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the reasonable opinion of counsel
for the Underwriters, it is necessary to amend or supplement the
Prospectus to comply with applicable law, forthwith to prepare, file
with the Commission and furnish, at its own expense, to the Underwriters
and to the dealers (whose names and addresses you will furnish to the
Issuers) to which Securities may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus
as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earning statement covering
the twelve-month period ending September 30, 2000 that satisfies the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
7. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, [the Issuers agree]
to pay or cause to be paid all expenses incident to the performance of their
obligations under this Agreement, including: (i) the fees, disbursements and
expenses of the Issuers' counsel and the Issuers' accountants in connection with
the registration and delivery of the Securities under the Securities Act and all
other fees or expenses in connection with the preparation and filing of the
Registration
15
17
Statement, any preliminary prospectus, the Prospectus and amendments and
supplements to any of the foregoing, including all printing costs associated
therewith, and the mailing and delivering of copies thereof to the Underwriters
and dealers, in the quantities hereinabove specified, (ii) all costs and
expenses related to the transfer and delivery of the Securities to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any Blue Sky or legal investment memorandum in
connection with the offer and sale of the Securities under state law and all
expenses in connection with the qualification of the Securities for offer and
sale under state law as provided in Section 6(d) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky or legal
investment memorandum, (iv) all filing fees and the reasonable fees and
disbursements of counsel to the Underwriters incurred in connection with the
review and qualification of the offering of the Securities by the National
Association of Securities Dealers, Inc., (v) any fees charged by the rating
agencies for the rating of the Securities,(vi) the cost of printing certificates
representing the Securities, (vii) the costs and charges of any trustee,
transfer agent, registrar or depositary, (viii) the costs and expenses of the
Company relating to investor presentations on any "road show" undertaken in
connection with the marketing of the offering of the Securities, including,
without limitation, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged in connection with
the road show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the road
show, and (ix) all other costs and expenses incident to the performance of the
obligations of the Issuers hereunder for which provision is not otherwise made
in this Section. It is understood, however, that except as provided in this
Section, Section 8 entitled "Indemnity and Contribution", and the last paragraph
of Section 10 below, the Underwriters will pay all of their costs and expenses,
including fees and disbursements of their counsel, transfer taxes payable on
resale of any of the Securities by them and any advertising expenses connected
with any offers they may make.
8. Indemnity and Contribution. (a) The Issuers agree to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or
16
18
the Prospectus (as amended or supplemented if the Issuers shall have furnished
any amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to any Underwriter furnished to the Issuers in writing by such
Underwriter through you expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless each of the Issuers, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Issuers within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Issuers shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
but only with reference to information relating to such Underwriter furnished to
the Issuers in writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 8(a) or 8(b), such person (the "INDEMNIFIED PARTY")
shall promptly notify the person against whom such indemnity may be sought (the
"INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel, (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable period
of time after notice of such proceeding or (iii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both
17
19
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and all persons, if any,
who control the indemnified parties within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act, and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, in the case of parties
indemnified pursuant to Section 8(a), and by the Issuers, in the case of parties
indemnified pursuant to Section 8(b). The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or
8(b) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Issuers on the one hand and the Underwriters on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause 8(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause 8(d)(i) above but also the relative fault of the Issuers on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any
18
20
other relevant equitable considerations. The relative benefits received by the
Issuers on the one hand and the Underwriters on the other hand in connection
with the offering of the Securities shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Securities (before
deducting expenses) received by the Issuers and the total underwriting discounts
and commissions received by the Underwriters, in each case as set forth in the
Prospectus, bear to the aggregate Public Offering Price of the Securities. The
relative fault of the Issuers on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Issuers
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Section
8 are several in proportion to the respective principal amounts of Securities
they have purchased hereunder, and not joint.
(e) The Issuers and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 8(d). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 8 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section
8 and the representations, warranties and other statements of the Issuers
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of
19
21
each of the Issuers, its officers or directors or any person controlling the
Issuers and (iii) acceptance of and payment for any of the Securities.
9. Termination. This Agreement shall be subject to termination by notice
given by you to the Issuers, if (a) after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange or the National Association of
Securities Dealers, Inc., (ii) trading of any securities of the Issuers shall
have been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in your judgment, is material
and adverse and (b) in the case of any of the events specified in clauses
9(a)(i) through 9(a)(iv), such event, singly or together with any other such
event, makes it, in your judgment, impracticable to market the Securities on the
terms and in the manner contemplated in the Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may be, any one
or more of the Underwriters shall fail or refuse to purchase Securities that it
has or they have agreed to purchase hereunder on such date, and the aggregate
principal amount at maturity of Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate principal amount at maturity of the Securities to be purchased
on such date, the other Underwriters shall be obligated severally in the
proportions that the principal amount at maturity of Firm Securities set forth
opposite their respective names in Schedule I bears to the principal amount at
maturity of Firm Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase on such date; provided that in no event shall
the principal amount of Securities that any Underwriter has agreed to purchase
pursuant to this Agreement be increased pursuant to this Section 10 by an amount
in excess of one-ninth of such principal amount of Securities without the
written consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Firm Securities and the aggregate
principal amount at maturity of Firm Securities with respect to which such
default occurs is more than one-tenth of the aggregate principal amount at
maturity of Firm Securities to be purchased, and arrangements satisfactory to
you and the Issuers for the purchase of such Firm
20
22
Securities are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Issuer. In any such case either you or the Issuers shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. If, on the
Option Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Additional Securities and the aggregate number of Additional Securities
with respect to which such default occurs is more than one-tenth of the
aggregate number of Additional Securities to be purchased, the non-defaulting
Underwriters shall have the option to (i) terminate their obligation hereunder
to purchase Additional Securities or (ii) purchase not less than the number of
Additional Securities that such non-defaulting U.S. Underwriters would have been
obligated to purchase in the absence of such default. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Issuers to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Issuers shall be unable to perform its obligations under this
Agreement, the Issuers will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
11. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
13. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
21
23
Very truly yours,
VERITAS SOFTWARE CORPORATION
By:
-------------------------------
Name:
Title:
VERITAS OPERATING CORPORATION
By:
-------------------------------
Name:
Title:
Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
▇▇ ▇▇▇▇▇ SECURITIES CORPORATION
Acting severally on behalf of themselves and the several Underwriters named in
Schedule I hereto.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED
By:
-------------------------------
Name:
Title:
22
24
SCHEDULE I
PRINCIPAL AMOUNT AT
U.S. Underwriter MATURITY OF SECURITIES TO
---------------- -------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation
▇▇ ▇▇▇▇▇ Securities Corporation
----------------------------
Total:....................................... $662,000,000
============================
25
SCHEDULE II
MATERIAL SUBSIDIARIES OF
VERITAS SOFTWARE CORPORATION
2
26
EXHIBIT A
FORM OF LOCK-UP LETTER FOR THE COMPANY
August 9, 1999
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
▇▇ ▇▇▇▇▇ Securities Corporation, as representatives
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
The undersigned understands that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
("▇▇▇▇▇▇ ▇▇▇▇▇▇▇") propose to enter into an Underwriting Agreement (the
"UNDERWRITING AGREEMENT") with the undersigned, a Delaware corporation (the
"COMPANY"), and VERITAS Operating Corporation (the "CO-OBLIGOR", and
collectively with the Company, the "ISSUERS"), in connection with the public
offering (the "PUBLIC OFFERING") by the several Underwriters, including ▇▇▇▇▇▇
▇▇▇▇▇▇▇ (the "UNDERWRITERS"), of $662,000,000 principal amount at maturity of
__% Convertible Subordinated Notes due 2006 of the Issuers (the "NOTES").
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ on behalf of the Underwriters, it will not, during the period commencing
on the date hereof and ending 90 days after the date of the final prospectus
relating to the Public Offering (each, a "PROSPECTUS"), (1) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, or (2) enter into any swap or other arrangement that transfers to
another person, in whole or in part, any of the economic consequences of
ownership of the Common Stock, whether any such transaction described in clause
(1) or (2) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (a)
the issuance by the Company of the Notes or the shares of common stock issuable
upon conversion of the Notes or other notes outstanding at the date of each
Prospectus, (b) the grant by the Company of options or issuance by it of stock
upon the exercise of outstanding stock options
A-1
27
pursuant to the Company's stock option plans, or (c) actions taken by the
Company in connection with acquisitions of technologies, businesses or portions
thereof. In addition, the undersigned agrees that, without the prior written
consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the Underwriters, it will not, during the
period commencing on the date hereof and ending 90 days after the date of the
Prospectus, make any demand for or exercise any right with respect to, the
registration of any shares of Common Stock or any security convertible into or
exercisable or exchangeable for Common Stock.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
VERITAS SOFTWARE CORPORATION
By:
-------------------------------
Name:
Title:
A-2
28
EXHIBIT B
FORM OF LOCK-UP LETTER FOR MANAGEMENT
August 9, 1999
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
▇▇ ▇▇▇▇▇ Securities Corporation, as representatives
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
The undersigned (collectively, the "MANAGEMENT") understand that ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇") propose to enter into an
Underwriting Agreement (the "UNDERWRITING AGREEMENT") with VERITAS Software
Corporation, a Delaware corporation (the "COMPANY"), and VERITAS Operating
Corporation (the "CO-OBLIGOR", and collectively with the company, the "ISSUERS")
in connection with the public offering (the "PUBLIC OFFERING") by the several
Underwriters, including ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "UNDERWRITERS"), of $662,000,000
principal amount at maturity of __% Convertible Subordinated Notes due 2006 of
the Issuers (the "NOTES").
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agree that, except as to 600,000 shares of common stock held
in the aggregate by Management, as further described in Annex A attached hereto,
without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the
Underwriters, they will not, during the period commencing on the date hereof and
ending 90 days after the date of the final prospectus relating to the Public
Offering (each, a "PROSPECTUS"), (1) offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend, or otherwise transfer or
dispose of, directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or (2) enter
into any swap or other arrangement that transfers to another person, in whole or
in part, any of the economic consequences of ownership of the Common Stock,
whether any such transaction described in clause (1) or (2) above is to be
settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing
B-1
29
sentence shall not apply to transactions relating to shares of Common Stock or
other securities acquired in open market transactions after the completion of
the Public Offerings. In addition, the undersigned agree that, without the prior
written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the Underwriters, they will not,
during the period commencing on the date hereof and ending 90 days after the
date of the Prospectus, make any demand for or exercise any right with respect
to, the registration of any shares of Common Stock or any security convertible
into or exercisable or exchangeable for Common Stock.
Whether or not the Public Offering actually occur depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
This agreement may be executed in counterparts, each of which will be
deemed an original and all of which together will constitute one and the same
instrument.
Very truly yours,
--------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
President and Chief Operating Officer
--------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice-President
--------------------------------
▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇
Executive Vice-President
B-2
30
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice-President
--------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Vice-President
--------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Senior Vice President
--------------------------------
▇▇▇ ▇. ▇▇▇▇▇
Senior Vice-President
--------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice-President
--------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice-President
--------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice-President
B-3
31
ANNEX A
OFFICER NUMBER OF SHARES(1)
------- ----------------
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
----------
TOTAL 600,000
--------
(1) Subject to revision. If any listed officer decides to dispose of
less than the number of shares of common stock of the Company listed opposite
his name, he will advise ▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President and General Counsel
of the Company, who will be responsible for consulting with the other listed
officers and taking all appropriate action to the reallocation of such shares
among the other listed officers.
B-4
32
EXHIBIT C
FORM OF LOCK-UP LETTER FOR THE DIRECTORS
August 9, 1999
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
▇▇ ▇▇▇▇▇ Securities Corporation, as representatives
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
The undersigned (collectively, the "DIRECTORS") understand that ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇") propose to enter into an
Underwriting Agreement (the "UNDERWRITING AGREEMENT") with VERITAS Software
Corporation, a Delaware corporation (the "COMPANY"), and VERITAS Operating
Corporation (the "CO-OBLIGOR", and collectively with the Company, the
"ISSUERS"), in connection with the public offering (the "PUBLIC OFFERING") by
the several Underwriters, including ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "UNDERWRITERS"), of
$662,000,000 principal amount at maturity of __% Convertible Subordinated Notes
due 2006 of the Issuers (the "NOTES").
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agree that, without the prior written consent of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ on behalf of the Underwriters, they will not, during the period
commencing on the date hereof and ending 90 days after the date of the final
prospectus relating to the Public Offering (each, a "PROSPECTUS"), (1) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, or (2) enter into any swap or other arrangement
that transfers to another person, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise. The foregoing sentence
shall not apply to transactions relating to shares of Common Stock or other
securities acquired in open market transactions after the completion of the
C-1
33
Public Offerings. In addition, the undersigned agree that, without the prior
written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the Underwriters, they will not,
during the period commencing on the date hereof and ending 90 days after the
date of the Prospectus, make any demand for or exercise any right with respect
to, the registration of any shares of Common Stock or any security convertible
into or exercisable or exchangeable for Common Stock.
Whether or not the Public Offering actually occur depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
This agreement may be executed in counterparts, each of which will be
deemed an original and all of which together will constitute one and the same
instrument.
Very truly yours,
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
Director
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Director
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Director
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Director
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Director
C-2
34
EXHIBIT D
FORM OF LOCK-UP LETTER FOR SEAGATE SOFTWARE, INC.
August 9, 1999
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
▇▇ ▇▇▇▇▇ Securities Corporation, as representatives
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
The undersigned understands that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
("▇▇▇▇▇▇ ▇▇▇▇▇▇▇") propose to enter into an Underwriting Agreement (the
"UNDERWRITING AGREEMENT") with VERITAS Software Corporation, a Delaware
corporation (the "COMPANY"), and certain stockholders of the Company (the
"SELLING STOCKHOLDERS") in connection with the public offering (the "PUBLIC
OFFERING") by the several Underwriters, including ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ International (the "UNDERWRITERS"), of up to 12,000,000 shares (the
"SHARES") of common stock of the Company (the "COMMON STOCK").
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ on behalf of the Underwriters, it will not, during the period commencing
on the date hereof and ending 90 days after the date of the final prospectus
relating to the Public Offering (the "PROSPECTUS"), (1) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, or (2) enter into any swap or other arrangement that transfers to
another person, in whole or in part, any of the economic consequences of
ownership of the Common Stock, whether any such transaction described in clause
(1) or (2) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (a)
the sale of any Shares to the Underwriters pursuant to the Underwriting
Agreement or (b) transactions relating to shares of Common
D-1
35
Stock or other securities acquired in open market transactions after the
completion of the Public Offerings. In addition, the undersigned agrees that,
without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the
Underwriters, it will not, during the period commencing on the date hereof and
ending 90 days after the date of the Prospectus, make any demand for or exercise
any right with respect to, the registration of any shares of Common Stock or any
security convertible into or exercisable or exchangeable for Common Stock.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
SEAGATE SOFTWARE, INC.
By:_____________________________
Name:
Title:
D-2
36
EXHIBIT E
FORM OF LOCK-UP LETTER FOR ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ INVESTORS, L.P.
August 9, 1999
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
▇▇ ▇▇▇▇▇ Securities Corporation, as representatives
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
The undersigned understands that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
("▇▇▇▇▇▇ ▇▇▇▇▇▇▇") propose to enter into an Underwriting Agreement (the
"UNDERWRITING AGREEMENT") with VERITAS Software Corporation, a Delaware
corporation (the "COMPANY"), and certain stockholders of the Company (the
"SELLING STOCKHOLDERS") in connection with the public offering (the "PUBLIC
OFFERING") by the several Underwriters, including ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ International (the "UNDERWRITERS"), of up to 12,000,000 shares (the
"SHARES") of common stock of the Company (the "COMMON STOCK").
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ on behalf of the Underwriters, it will not, during the period commencing
on the date hereof and ending 90 days after the date of the final prospectus
relating to the Public Offering (the "PROSPECTUS"), (1) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, or (2) enter into any swap or other arrangement that transfers to
another person, in whole or in part, any of the economic consequences of
ownership of the Common Stock, whether any such transaction described in clause
(1) or (2) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (a)
the sale of any Shares to the Underwriters pursuant to the Underwriting
Agreement or (b) transactions relating to shares of Common
E-1
37
Stock or other securities acquired in open market transactions after the
completion of the Public Offerings. In addition, the undersigned agrees that,
without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the
Underwriters, it will not, during the period commencing on the date hereof and
ending 90 days after the date of the Prospectus, make any demand for or exercise
any right with respect to, the registration of any shares of Common Stock or any
security convertible into or exercisable or exchangeable for Common Stock.
The undersigned agrees to be bound by this agreement whether or not the
undersigned participates in the Public Offering as one of the Selling
Stockholders.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ INVESTORS, L.P.
By:_________________________________
Name:
Title:
E-2