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Exhibit 4.04
VERITAS SOFTWARE CORPORATION
AS ISSUER
VERITAS OPERATING CORPORATION
AS ISSUER
STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A.
AS TRUSTEE
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AMENDED AND RESTATED FIRST SUPPLEMENTAL INDENTURE
Dated as of July 30, 1999
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5 1/4 % Convertible Subordinated Notes due 2004
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AMENDED AND RESTATED FIRST SUPPLEMENTAL INDENTURE, dated as of July 30,
1999 (the "Restated First Supplemental Indenture"), between VERITAS Operating
Corporation, a Delaware corporation (VERITAS Operating Corporation and its
successors herein referred to as the "Company"), as co-issuer, VERITAS Software
Corporation, a Delaware corporation (VERITAS Software Corporation and its
successors herein referred to as "New VERITAS"), as co-issuer, (the Company and
New VERITAS, collectively referred to herein as the "Issuers") and State Street
Bank and Trust Company of California, N.A., as Trustee (the "Trustee").
RECITALS
WHEREAS, the Company and the Trustee are parties to an Indenture, dated as
of October 1, 1997 (the "Indenture"), relating to the Company's 5 1/4%
Convertible Subordinated Notes due 2004 (the "Securities").
WHEREAS, the Company entered into an Amended and Restated Agreement and
Plan of Reorganization dated as of April 15, 1999 (the "Combination Agreement")
among the Company, New VERITAS, Seagate Technology, Inc., Seagate Software,
Inc., and Seagate Software Network & Storage Management Group, Inc. Pursuant to
the Combination Agreement, the Company merged with and into a wholly-owned
subsidiary of New VERITAS with the Company as the surviving entity (the
"Merger"). Simultaneously with the Merger, the Company, which was formerly named
VERITAS Software Corporation, changed its name to VERITAS Operating Corporation
and New VERITAS, which was initially named VERITAS Holding Corporation, changed
its name to VERITAS Software Corporation.
WHEREAS, Section 14.3 of the Indenture provides that in the case of a
merger or transfer of substantially all the assets of the Company, the Company
and the Person resulting from such merger or which acquires the properties or
assets of the Company shall execute and deliver to the Trustee a supplemental
indenture modifying the provisions of the Indenture.
WHEREAS, the Company desired to amend the Indenture to add New VERITAS as
an additional obligor under the Indenture and the Securities on a joint and
several basis with the Company and to provide that the Securities are
convertible into the common stock of New VERITAS.
WHEREAS, New VERITAS desired to assume all of the obligations of the
Company under the Indenture and the Securities on a joint and several basis.
WHEREAS, the Company, New VERITAS and the Trustee entered into a First
Supplemental Indenture dated as of May 28, 1999 (the "First Supplemental
Indenture") with respect to the assumption by New VERITAS of the obligations
under the Indenture and the Securities, and providing that the Securities are
convertible into common stock of New VERITAS.
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WHEREAS, the First Supplemental Indenture provides that New VERITAS "may
exercise every right and power of the Company under the Indenture."
WHEREAS, New VERITAS and the Company desire to amend and restate the First
Supplemental Indenture to clarify and confirm that New VERITAS' obligations
under the Indenture and the Securities are subordinate in right of payment to
senior indebtedness of New VERITAS.
WHEREAS, all conditions and requirements necessary to make this Restated
First Supplemental Indenture a valid, binding and legal instrument in accordance
with the terms of the Indenture have been performed and fulfilled and the
execution and delivery hereof have been in all respects duly authorized.
WHEREAS, in accordance with the terms of the Indenture, the Company and New
VERITAS have requested that the Trustee execute and deliver this Restated First
Supplemental Indenture and have delivered to the Trustee copies of their
respective Board Resolutions authorizing the execution of this Restated First
Supplemental Indenture.
NOW, THEREFORE, in consideration of the above premises, each party agrees,
for the benefit of the other and for the equal and ratable benefit of the
Holders of the Securities, as follows:
I. EFFECTIVENESS
1.1 Effectiveness of Restated First Supplemental Indenture. This Restated First
Supplemental Indenture will be effective upon execution by all parties hereto.
Upon effectiveness of this Restated First Supplemental Indenture, the First
Supplemental Indenture shall be amended and restated in its entirety hereby.
II. ASSUMPTION OF OBLIGATIONS
2.1 Assumption. New VERITAS hereby unconditionally assumes joint and several
liability for all of the obligations of the Company under the Indenture and the
Securities, including the punctual payment when due, whether at stated maturity,
by acceleration or otherwise, of the principal of, premium, if any, and interest
on the Securities according to the terms of the Securities and as more fully
described in the Indenture. Notwithstanding the foregoing, the Company shall
remain obligated under the Indenture and the Securities, in accordance with the
terms of the Indenture. New VERITAS shall be added as a co-obligor of the
Indenture and may exercise every right and power of the Company under the
Indenture, and the Company and New VERITAS shall be jointly and severally
responsible for all obligations and covenants under the Indenture and the
Securities.
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2.2 Subordination. (a) The obligations of New VERITAS under Section 2.1 hereof
shall be subordinate and junior in right of payment to the New VERITAS Senior
Indebtedness (as defined in Section 2.2(b) hereof) to the same extent and in the
same manner that the Securities are subordinate and junior in right of payment
to the Senior Indebtedness of the Company pursuant to Article Thirteen of the
Indenture.
(b) As used herein, "New VERITAS Senior Indebtedness" means the principal
of, premium, if any, interest (including all interest accruing subsequent to the
commencement of any bankruptcy or similar proceeding, whether or not a claim for
post-petition interest is allowable as a claim in such proceeding) and rent
payable on or in connection with, and all fees, costs, expenses and other
amounts accrued or due on or connection with, Indebtedness of New VERITAS,
whether outstanding on the date hereof or thereafter created, incurred, assumed,
guaranteed or in effect guaranteed by New VERITAS (including all deferrals,
renewals, extensions or refundings of, or amendments, modifications or
supplements to, the foregoing), unless in the case of any particular
Indebtedness the instrument creating or evidencing the same or the assumption or
guarantee thereof expressly provides that such Indebtedness shall not be senior
in right of payment to the Securities or expressly provides that such
Indebtedness is "pari passu" or "junior" to the Securities. Notwithstanding the
foregoing, New VERITAS Senior Indebtedness shall not include any Indebtedness of
New VERITAS to any subsidiary of New VERITAS.
III. AMENDMENTS
The Indenture is hereby amended as follows:
3.1 Title Paragraph. In the first paragraph of the Indenture on page 1 thereof
the following amendments are hereby made:
(a) after the phrase "dated as of October 1, 1997" therein the phrase
",as amended and supplemented" is hereby added thereto.
(b) after the phrase "(herein called the "Company")," therein the phrase
"VERITAS Holding Corporation (VERITAS Holding Corporation and its successors
herein called "New VERITAS")" is hereby added thereto.
3.2 Definitions. The following amendments are hereby made to Section 1.1 of the
Indenture:
(a) the definition of "Common Stock" is replaced in its entirety by the
following:
"Common Stock" includes any stock or shares of any class of New
VERITAS which has no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation,
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dissolution or winding up of New VERITAS and which is not subject to
redemption by New VERITAS; provided, however, subject to the
provisions of Section 12.11, shares issuable on conversion of
Securities shall include only shares of the class designated as Common
Stock of New VERITAS at the date of the First Supplemental Indenture
or shares of any class or classes resulting from any reclassification
or reclassifications thereof and which have no preference in respect
of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of New VERITAS and
which are not subject to redemption by New VERITAS; provided, further,
however, that if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable shall
be substantially in the proportion which the total number of shares of
such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from all such
reclassifications.
(b) the definition of "Fundamental Change" is replaced in its entirety by
the following:
"Fundamental Change" means the occurrence of any transaction or
event in connection with which all or substantially all of the Common
Stock of New VERITAS shall be exchanged for, converted into, acquired
for or constitute solely the right to receive, consideration (whether
by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization
or otherwise) which is not all or substantially all common stock or
shares which are (or, upon consummation of or immediately following
such transaction or event, will be) listed on a United States national
securities exchange or approved for quotation on the Nasdaq National
Market or any similar United States system of automated dissemination
of quotations of securities prices.
3.3 Securities Convertible into New VERITAS Common Stock.
(a) The words "Common Stock of the Company" are hereby deleted and
replaced with the words "Common Stock of New VERITAS" in Article Twelve and
elsewhere in the Indenture.
(b) The first paragraph of Section 12.11 of the Indenture is hereby
amended and restated in its entirety as follows:
If any of the following events occur, namely (i) any
reclassification or change of the outstanding shares of Common Stock
of New VERITAS (other than a subdivision or combination to which
Section 12.4(3) applies), (ii) any consolidation, merger or
combination of New VERITAS with another corporation as a result of
which holders of Common Stock of New VERITAS
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shall be entitled to receive stock, securities or other property or
assets (including cash) with respect to or in exchange for such Common
Stock, or (iii) any sale or conveyance of the properties and assets of
New VERITAS as, or substantially as, an entirety to any other
corporation as a result of which holders of Common Stock of New
VERITAS shall be entitled to receive stock, securities or other
property or assets (including cash) with respect to or in exchange for
such Common Stock, then New VERITAS, or the successor or purchasing
corporation, as the case may be, shall execute with the Trustee a
supplemental indenture (which shall comply with the Trust Indenture
Act as in force at the date of execution of such supplemental
indenture) providing that such Security shall be convertible into the
kind and amount of shares of stock and other securities or property or
assets (including cash) receivable upon such reclassification, change,
consolidation, merger, combination, sale or conveyance by a holder of
a number of shares of Common Stock of New VERITAS issuable upon
conversion of such Securities (assuming, for such purposes, a
sufficient number of authorized shares of Common Stock of New VERITAS
available to convert all such Securities) immediately prior to such
reclassification, change, consolidation, merger, combination, sale or
conveyance assuming such holder of Common Stock of New VERITAS is (i)
not a Person with which New VERITAS consolidated or into which New
VERITAS merged or which merged into New VERITAS or to which such sale
or transfer was made, as the case may be (a "Constituent Person"), or
an Affiliate of a Constituent Person, and (ii) failed to exercise his
rights of election, if any, as to the kind or amount of securities,
cash or other property receivable upon such reclassification, change,
consolidation, merger, combination, sale or conveyance (provided that,
if the kind or amount of securities, cash or other property receivable
upon such reclassification, change, consolidation, merger,
combination, sale or conveyance is not the same for each share of
Common Stock of New VERITAS in respect of which such rights of
election shall not have been exercised ("Non-electing Share")), then
for the purposes of this Section 12.11 the kind and amount of
securities, cash or other property receivable upon such
reclassification, change, consolidation, merger, combination, sale or
conveyance for each Non-electing Share shall be deemed to be the kind
and amount so receivable per share by a plurality of the non-electing
shares. Such supplemental indenture shall provide for adjustments
which, for events subsequent to the effective date of such
supplemental indenture, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article. The above
provisions of this Section 12.11 shall similarly apply to successive
reclassifications, changes, consolidations, mergers, combinations,
sales or conveyances. Notice of the execution of such a supplemental
indenture shall be given by New VERITAS to the Holder of each Security
as provided in Section 1.6 promptly upon such execution.
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(c) In the second paragraph of Section 12.11, in Sections 12.2 through
12.9, and in Section 12.12 of the Indenture, the words "the Company" are hereby
deleted and replaced with the words "New VERITAS".
3.4 Amendment to Section 14 of the Indenture. In Sections 14.1 and 14.2 of the
Indenture relating to the rights of Holders to cause the Company to repurchase
the Securities following a Fundamental Change, references to "the Company" are
hereby deleted in their entirety and replaced with references to "New VERITAS"
and references to "the Company Notice" are hereby deleted and replaced in their
entirety and replaced with "the New VERITAS Notice".
IV. NOTIFICATION TO HOLDERS
4.1 Notice to Holders of Securities. The Company shall notify the Holders in
accordance with Section 8.6 of the Indenture of the execution of this Restated
First Supplemental Indenture. Any failure of the Company to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the validity
of this Restated First Supplemental Indenture.
V. MISCELLANEOUS PROVISIONS
5.1 Incorporation of Indenture. All the provisions of this Restated First
Supplemental Indenture shall be deemed to be incorporated in, and made a part
of, the Indenture; and the Indenture, as supplemented and amended by this
Restated First Supplemental Indenture, shall be read, taken and construed as one
and the same instrument.
5.2 Conflict with Trust Indenture Act. If any provision hereof limits,
qualifies or conflicts with another provision hereof which is required to be
included in this Restated First Supplemental Indenture by any of the provisions
of the Trust Indenture Act, the required provision shall control.
5.3 Terms Defined. For all purposes of this Restated First Supplemental
Indenture, except as otherwise defined herein, capitalized terms used in this
Restated First Supplemental Indenture shall have the meanings ascribed to such
terms in the Indenture.
5.4 Indenture. Except as amended hereby, the Indenture and the Securities are
in all respects ratified and confirmed and all their terms shall remain in full
force and effect. From and after the effectiveness of this Restated First
Supplemental Indenture, any reference to the Indenture or the Securities shall
mean the Indenture or the Securities, as the case may be, as so amended by this
Restated First Supplemental Indenture.
5.5 Governing Law. The internal laws of the State of New York shall govern this
Restated First Supplemental Indenture, without regard to the principles of the
conflicts of law thereof.
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5.6 Successors. All agreements of the Company and New VERITAS in this Restated
First Supplemental Indenture and the Securities shall bind its successors and
assigns. This Restated First Supplemental Indenture shall be binding upon each
Holder of Securities and their respective successors and assigns.
5.7 Multiple Counterparts. The parties may sign multiple counterparts of this
Restated First Supplemental Indenture. Each signed counterpart shall be deemed
an original, but all of them together represent the same agreement.
5.8 Effectiveness. In accordance with Sections 8.1 and 8.3 of the Indenture,
the Company and New VERITAS shall have delivered Board Resolutions authorizing
the execution of this Restated First Supplemental Indenture, Officers'
Certificates and an Opinion of Counsel to the Trustee as conclusive evidence
that this Restated First Supplemental Indenture complies with the applicable
requirements of the Indenture and that all of the conditions precedent to the
effectiveness of this Restated First Supplemental Indenture have been satisfied.
5.9 Trustee Disclaimer. The Trustee accepts the amendment of the Indenture and
the Securities effected by this Restated First Supplemental Indenture and agrees
to execute the trust created by the Indenture as hereby amended, but only upon
the terms and conditions set forth in the Indenture, including the terms and
provisions defining and limiting the liabilities and responsibilities of the
Trustee, which terms and provisions shall in like manner define and limit its
liabilities and responsibilities in the performance of the trust created by the
Indenture as hereby amended. Without limiting the generality of the foregoing,
the Trustee shall not be responsible in any manner whatsoever for or with
respect to any of the recitals or statements contained herein, all of which
recitals or statements are made solely by the Company and New VERITAS, or for or
with respect to (i) the validity, efficacy or sufficiency of this Restated First
Supplemental Indenture or any of the terms or provisions hereof, (ii) the proper
authorization hereof by the Company and New VERITAS by corporate action or
otherwise, (iii) the due execution hereof by the Company and New VERITAS or (iv)
the consequences (direct or indirect and whether deliberate or inadvertent) of
any amendment herein provided for, and the Trustee makes no representation with
respect to any such matters.
5.10 Separability Clause. In case any clause of this Restated First Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
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V. SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated First Supplemental Indenture to be duly executed, all as of the date
first written above.
VERITAS OPERATING CORPORATION, as Issuer
By: /s/ XXXX XXXXXX
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Name: Xxxx Xxxxxx
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Title: Chief Executive Officer
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VERITAS SOFTWARE CORPORATION, as Issuer
By: /s/ XXXX XXXXXX
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Name: Xxxx Xxxxxx
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Title: Chief Executive Officer
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STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A.,
as Trustee
By:
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Name:
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Title:
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[SIGNATURE PAGE TO AMENDED AND RESTATED FIRST SUPPLEMENTAL INDENTURE]
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V. SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated First Supplemental Indenture to be duly executed, all as of the date
first written above.
VERITAS OPERATING CORPORATION, as Issuer
By:
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Name:
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Title:
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VERITAS SOFTWARE CORPORATION, as Issuer
By:
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Name:
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Title:
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STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A.,
as Trustee
By: /s/ XXXX X'XXXXX
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Name: Xxxx X'Xxxxx
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Title: Vice President
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[SIGNATURE PAGE TO AMENDED AND RESTATED FIRST SUPPLEMENTAL INDENTURE]
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