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EXHIBIT 4.04
OPENVISION AFFILIATE AGREEMENT
This Affiliate Agreement (this "AFFILIATE AGREEMENT") is made and
entered into as of January 13, 1997 (the "EFFECTIVE DATE") among VERITAS
Software Corporation, a California corporation ("VERITAS"), VERITAS Software
Corporation, a Delaware corporation ("NEWCO"), OpenVision Technologies, Inc., a
Delaware corporation ("OpenVision"), and _____________________ ("STOCKHOLDER").
RECITALS
A. This Affiliate Agreement is entered into pursuant to that certain
Agreement and Plan of Reorganization dated as of January 13, 1997, as such may
be amended (the "PLAN OF REORGANIZATION"), entered into by and among VERITAS,
Newco and OpenVision. The Plan of Reorganization provides for the formation of
two Delaware corporations (collectively, the "SUBS"), as wholly-owned
subsidiaries of Newco, and the statutory merger of one Sub with and into
OpenVision (the "OPENVISION MERGER") and the other Sub with and into VERITAS
(the "VERITAS MERGER") (collectively, the "MERGER"), all pursuant to the terms
and conditions of the Plan of Reorganization and the Agreements of Merger to be
entered into between the one Sub and OpenVision and the other Sub and VERITAS
(collectively, the "AGREEMENTS OF MERGER"). The Plan of Reorganization and the
Agreements of Merger are collectively referred to herein as the "MERGER
AGREEMENTS." Capitalized terms used herein and not defined herein shall have the
meanings that such terms have in the Plan of Reorganization.
B. The Merger Agreements provide for the conversion of all of the
issued and outstanding stock of OpenVision and VERITAS at the Effective Time of
the Merger into shares of Newco's Common Stock, all as more particularly set
forth in the Plan of Reorganization.
C. As a condition to the willingness of VERITAS to enter into the Plan
of Reorganization, VERITAS has required that Stockholder agree, and in order to
induce VERITAS to enter into the Plan of Reorganization Stockholder has agreed,
to enter into this Affiliate Agreement.
D. Stockholder understands that because (i) the Merger is intended by
the parties to qualify for "pooling-of-interests" accounting treatment and
Stockholder may be deemed to be an "affiliate" of OpenVision within the meaning
of the Securities Act of 1933, as amended (the "1933 ACT"), and (ii) the Merger
will be treated as a tax-free "reorganization" within the meaning of Section 368
of the Internal Revenue Code, the shares of OpenVision Common Stock which
Stockholder owns, any shares of OpenVision Common Stock which Stockholder may
hereafter acquire, and any shares of Newco Common Stock (the "NEWCO COMMON
STOCK") acquired by Stockholder pursuant to the Merger may be disposed of only
in conformity with the limitations described herein. Stockholder has been
informed that the treatment of the Merger as a "pooling-of-interests" for
financial accounting purposes, and as a "reorganization" for federal income tax
purposes, is dependent upon the accuracy of certain of the representations and
warranties and compliance with certain of the agreements set forth herein.
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NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. OPENVISION SECURITIES
Attachment 1 hereto sets forth all shares of OpenVision capital stock
and any other securities of OpenVision owned by Stockholder, including all
securities of OpenVision as to which Stockholder has sole or shared voting or
investment power, and all rights, options and warrants to acquire shares of
capital stock or other securities of OpenVision granted to or held by
Stockholder (such shares of OpenVision capital stock, other securities of
OpenVision and rights, options and warrants to acquire shares of OpenVision
capital stock and other securities of OpenVision are hereinafter collectively
referred to as "OPENVISION STOCK"). As used herein, the term "NEW OPENVISION
SECURITIES" means, collectively, any and all shares of OpenVision capital stock,
other securities of OpenVision and rights, options and warrants to acquire
shares of OpenVision capital stock and other securities of OpenVision that
Stockholder may purchase or otherwise acquire any interest in (whether of record
or beneficially), on and after the Effective Date of this Affiliate Agreement
and prior to the Expiration Date (as defined below). All New OpenVision
Securities will be subject to the terms of this Affiliate Agreement to the same
extent and in the same manner as if they were OpenVision Stock. The OpenVision
Stock and the New OpenVision Securities shall be collectively referred to herein
as the "OPENVISION SECURITIES". As used herein, the term "EXPIRATION DATE" means
the earliest to occur of (i) the closing, consummation and effectiveness of the
Merger, or (ii) such time as the Plan of Reorganization may be terminated in
accordance with its terms.
SECTION 2. TAX TREATMENT
Stockholder understands and agrees that it is intended that the Merger
will be treated as a tax-free reorganization for federal income tax purposes.
Stockholder will rely on Stockholder's own tax advisers as to the tax attributes
of the Merger to Stockholder and understands that neither Newco, VERITAS, nor
their counsel, OpenVision or OpenVision's counsel has guaranteed nor will
guarantee to Stockholder that the Merger will be a tax-free reorganization.
Stockholder understands that counsel to VERITAS (Fenwick & West LLP) and counsel
to OpenVision (Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx P.C.) have not acted as counsel
for Stockholder with respect to any matter related to the Merger, and that
Stockholder has not relied on VERITAS or its counsel, or OpenVision or its
counsel, with respect to any legal matter related to the Merger or its tax
consequences, including, without limitation, any U.S. federal income tax
consequences.
SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF STOCKHOLDER
3.1 RELIANCE UPON REPRESENTATIONS, WARRANTIES AND COVENANTS.
Stockholder has been informed that a reorganization for federal income tax
purposes requires that a sufficient number of former stockholders of OpenVision
maintain a meaningful continuing equity ownership interest in Newco after the
Merger. Stockholder understands that the representations, warranties and
covenants of Stockholder set forth herein will be relied upon by OpenVision,
VERITAS and Newco and their respective counsel and accounting firms and by
OpenVision's
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stockholders.
3.2 REPRESENTATIONS, WARRANTIES AND COVENANTS OF STOCKHOLDER.
Stockholder represents, warrants and covenants as follows:
(i) Authority; Affiliate Status. Stockholder has full power
and authority to enter into, execute, deliver and perform Stockholder's
obligations under this Affiliate Agreement and to make the representations,
warranties and covenants herein contained. Stockholder further understands and
agrees that Stockholder may be deemed to be an "affiliate" of OpenVision within
the meaning of the 1933 Act and, in particular, Rule 145 promulgated under the
1933 Act ("RULE 145").
(ii) OpenVision Securities Owned. Except as otherwise
disclosed in the OpenVision Disclosure Letter, at the date hereof, all the
OpenVision Stock owned by Stockholder are, and at all times until and through
the Expiration Date all the OpenVision Securities owned by Stockholder will be,
free and clear of any rights of first refusal, co-sale rights, security
interests, liens, pledges, claims, options, charges or other encumbrances.
(iii) Transfer Restrictions on OpenVision Securities.
Stockholder agrees with VERITAS not to sell, transfer, encumber or dispose of,
or offer to sell, transfer, encumber or dispose of any OpenVision Securities
until the Expiration Date, and at such time, only as agreed pursuant to the
terms hereof.
(iv) Waivers. Except as contemplated by the Plan of
Reorganization, Stockholder hereby waives, effective as of the Effective Time,
any liquidation, redemption, anti-dilution, registration rights, information
rights, preemptive rights, priority rights, rights or first refusal, co-sale or
other similar rights under the terms of the Certificate of Incorporation or
Bylaws of OpenVision or any agreement with OpenVision or its security holders in
effect immediately prior to the Effective Time.
(v) Further Assurances. Stockholder agrees to execute and deliver any
additional documents reasonably necessary or desirable, in the opinion of
OpenVision or VERITAS, to carry out the purposes and intent of this Affiliate
Agreement.
(vi) Transfer Restrictions on Merger Securities. As used herein, the
term "MERGER SECURITIES" means, collectively, all shares of Newco Common Stock
that are or may be issued by Newco in connection with the Merger or the
transactions contemplated by the Merger Agreements, or to any former holder of
OpenVision options, warrants or rights to acquire shares of OpenVision Common
Stock, and any securities that may be paid as a dividend or otherwise
distributed thereon or with respect thereto or issued or delivered in exchange
or substitution therefor or upon conversion thereof. Stockholder agrees not to
sell, transfer, exchange, pledge, or otherwise dispose of, or make any offer or
agreement relating to, any of the Merger Securities and/or any option, right or
other interest with respect to any Merger Securities that Stockholder may
acquire, unless: (i) such sale, transfer, exchange, pledge or disposition is
permitted pursuant to Rule 145(d)(3) under the Securities Act (as contemplated
by Section 4 hereof) and Newco's accountants have advised such Stockholder in
writing that such sale, transfer, exchange, pledge
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or disposition would not preclude pooling of interests accounting treatment of
the Merger; (ii) Newco's legal counsel or legal counsel representing
Stockholder, which counsel is reasonably satisfactory to Newco, shall have
advised Newco in a written opinion letter reasonably satisfactory to Newco and
Newco's legal counsel, and upon which Newco and its legal counsel may rely, that
no registration under the 1933 Act would be required in connection with the
proposed sale, transfer, exchange, pledge or other disposition of Merger
Securities by Stockholder; or (iii) a registration statement under the 1933 Act
covering the Merger Securities proposed to be sold, transferred, exchanged,
pledged or otherwise disposed of, describing the manner and terms of the
proposed sale, transfer, exchange, pledge or other disposition, and containing a
current prospectus, shall have been filed with the Securities and Exchange
Commission ("SEC") and been declared effective by the SEC under the 1933 Act; or
(iii) an authorized representative of the SEC shall have rendered written advice
to Stockholder (sought by Stockholder or counsel to Stockholder, with a copy
thereof and all other related communications delivered to Newco and its legal
counsel) to the effect that the SEC would take no action, or that the staff of
the SEC would not recommend that the SEC take action, with respect to the
proposed disposition of Merger Securities, if consummated. Nothing herein
imposes upon Newco any obligation to register any Merger Securities under the
1933 Act.
(vii) Pooling Lock-Up. Notwithstanding any other provision of
this Affiliate Agreement to the contrary, from and after the date of this
Agreement, Stockholder will not further sell, transfer, exchange, pledge or
otherwise dispose of, or in any other way reduce Stockholder's risk of ownership
or investment in, or make any offer or agreement relating to any of the
foregoing with respect to any OpenVision Securities or any rights, options or
warrants to purchase OpenVision Securities or any Merger Securities or other
securities of Newco during the time period (the "LOCK-UP PERIOD") beginning
thirty (30) days immediately preceding the Effective Time and ending at such
time after the Effective Time as Newco has publicly released the combined
financial results of Newco, VERITAS and OpenVision for a period of at least
thirty (30) days of combined operations of Newco, VERITAS and OpenVision after
the Effective Time of the Merger. Newco agrees to publish such financial results
expeditiously in a manner consistent with VERITAS' prior practices.
Notwithstanding the foregoing, Newco agrees that any "affiliates" of OpenVision
within the meaning of Rule 145 will be allowed as a group to sell up to an
aggregate of 1% of OpenVision Stock under the "de minimis" exceptions to the
pooling of interest requirements, with each transaction to be approved in
advance by Newco's auditors.
(viii) Intent. Stockholder does not now have, and as of the
Effective Time of the Merger will not have, any present plan or intention (a
"PLAN OF TRANSFER") to engage in a further sale, exchange, transfer,
distribution, pledge, disposition or any other transaction which would result in
a direct or indirect disposition (a "SALE") of more than fifty percent (50%) of
the Newco Common Stock (or other Merger Securities) that Stockholder may acquire
in connection with the Merger, or any securities that may be paid as a dividend
or otherwise distributed thereon or with respect thereto or issued or delivered
in exchange or substitution therefor or upon conversion thereof ("DERIVATIVE
SECURITIES"). Stockholder is not aware of, nor is Stockholder participating in,
any Plan of Transfer to engage in Sales of Newco Common Stock (or other Merger
Securities) to be issued in the Merger (including Derivative Securities) such
that the aggregate fair market value, as of the Effective Time of the Merger (as
defined in the Plan of Reorganization), of the shares subject to such Sales
would exceed fifty percent (50%) of the aggregate fair market value
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of all shares of outstanding OpenVision Securities immediately prior to the
Merger. For purposes of this representation, OpenVision Securities (or any
portion thereof) (i) with respect to which a OpenVision stockholder receives
consideration in the Merger other than Newco Common Stock (including, without
limitation, cash received in lieu of fractional shares) and/or (ii) with respect
to which a Sale occurs during the period beginning with the commencement of
negotiations (whether formal or informal) between OpenVision and VERITAS
regarding the Merger and ending on the Effective Time of the Merger (the
"PRE-MERGER PERIOD"), shall be considered shares of outstanding OpenVision
Common Stock exchanged for Newco Common Stock received in the Merger and then
disposed of pursuant to a Plan of Transfer.
(ix) Any other provisions of this Affiliate Agreement
notwithstanding, if the undersigned Stockholder is organized as a partnership,
OpenVision and Newco hereby agree that such partnership shall be permitted to
make a distribution to its partners of shares of OpenVision capital stock (if
made prior to the effectiveness of the Merger) or of shares of Newco capital
stock received in the Merger so long as the undersigned Stockholder and its
partnership distributees (a) agree to be bound by all of the terms and
obligations of this Agreement; and (b) provide assurances, acceptable to Newco
and OpenVision in their reasonable discretion, that such distributions (i) are
permissible under Rule 145; (ii) will not prevent the Merger from being treated
as a tax-free reorganization for federal income tax purposes, or (iii) will not
prevent the Merger from being accounted for as a pooling of interests.
Notwithstanding the above, if the Stockholder has executed a Voting Agreement
with VERITAS and Newco, such Stockholder may not distribute such Stockholder's
shares of OpenVision capital stock prior to the effectiveness of the Merger.
SECTION 4. RESTRICTIONS ON RESALES
Stockholder understands that, in addition to the restrictions imposed
under Section 3 of this Affiliate Agreement, the provisions of Rule 145
currently limit Stockholder's public resales of Merger Securities, in the manner
set forth in subsections (i), (ii) and (iii) below, until such time as
Stockholder has beneficially owned, within the meaning of Rule 144(d) under the
1933 Act, the Merger Securities for a period of at least two (2) years (or in
some cases three (3) years) after the Effective Time of the Merger, and
thereafter if and for so long as Stockholder is an affiliate of Newco:
(i) 145(d)(1). Unless and until the restriction "cut-off"
provisions of Rule 145(d)(2) or Rule 145(d)(3) set forth below become available,
public resales of Merger Securities may be made by Stockholder only in
compliance with the requirements of Rule 145(d)(1). Rule 145(d)(1) permits such
resales only: (i) if Newco meets the public information requirements of Rule
144(c); (ii) in brokers' transactions or in transactions with a market maker;
and (iii) where the aggregate number of Merger Securities sold at any time
together with all sales of restricted Newco Common Stock sold by or for
Stockholder's account during the preceding three-month period does not exceed
the greater of: (A) one percent (1%) of the shares of Newco Common Stock
outstanding as shown by the most recent report or statement published by Newco;
or (B) the average weekly volume of trading in Newco Common Stock on all
national securities exchanges, or reported through the automated quotation
system of a registered securities association, during the four calendar weeks
preceding the date of receipt of the order to execute
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the sale.
(ii) 145(d)(2). Stockholder may make unrestricted resales of
Merger Securities pursuant to Rule 145(d)(2) if: (i) Stockholder has
beneficially owned (within the meaning of Rule 144(d) under the 0000 Xxx) the
Merger Securities for at least two (2) years after the Effective Time of the
Merger; (ii) Stockholder is not an affiliate of Newco; and (iii) Newco meets the
public information requirements of Rule 144(c).
(iii) 145(d)(3). Stockholder may make unrestricted resales of
Merger Securities pursuant to Rule 145(d)(3) if Stockholder has beneficially
owned (within the meaning of Rule 144(d) under the 0000 Xxx) the Merger
Securities for at least three (3) years after the Effective Time of the Merger
and is not, and has not been for at least three (3) months, an affiliate of
Newco.
VERITAS and Newco each acknowledges that the provisions of
Section 3.2(vi) of this Affiliate Agreement will be satisfied as to any sale by
the undersigned of the Merger Securities pursuant to Rule 145(d), by a broker's
letter and a letter from Stockholder with respect to that sale stating either
that (i) each of the above-described requirements of Rule 145(d)(1) has been met
or (ii) are inapplicable by virtue of Rule 145(d)(2) or Rule 145(d)(3) and each
of the above-described requirements of Rule 145(d)(2) or (d)(3) (as applicable)
have been met; provided that in each case Newco has no reasonable basis to
believe such sales were not made in compliance with such provisions of Rule
145(d).
SECTION 5. LEGENDS
Stockholder also understands and agrees that stop transfer instructions
will be given to Newco's transfer agent with respect to certificates evidencing
the Merger Securities to enforce (i) Stockholder's compliance with Stockholder's
representations in Subsection 3.2(vii), (ii) Stockholders' agreements in Section
4, and (iii) Stockholder's compliance with applicable securities laws regarding
the Merger Securities, and that there will be placed on the certificates
evidencing such Merger Securities such legends as Newco or its counsel may
reasonably require, including without limitation, a legend providing
substantially as follows:
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED, EXCHANGED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN
ACCORDANCE WITH THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED, ANY APPLICABLE STATE SECURITIES LAWS, AND THE OTHER CONDITIONS
SPECIFIED IN THAT CERTAIN AFFILIATE AGREEMENT DATED AS OF JANUARY 13,
1997 AMONG VERITAS SOFTWARE CORPORATION, VERITAS SOFTWARE CORPORATION,
OPENVISION TECHNOLOGIES, INC. AND THE HOLDER OF SUCH SHARES, A COPY OF
WHICH MAY BE INSPECTED BY THE HOLDER OF THIS CERTIFICATE AT THE OFFICES
OF NEWCO. NEWCO WILL FURNISH, WITHOUT CHARGE, A COPY THEREOF TO THE
HOLDER OF THIS CERTIFICATE, UPON WRITTEN REQUEST THEREFOR."
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SECTION 6. MISCELLANEOUS
6.1 NOTICES. Any notice or other communication required or permitted to
be given under this Affiliate Agreement will be in writing, will be delivered
personally, by telecopier (with a hard copy also mailed), or by registered or
certified mail, postage prepaid and will be deemed given upon delivery, if
delivered personally, one business day after transmission by telecopier with
confirmation of receipt, or three (3) days after deposit in the mails, if
mailed, to the following addresses:
(i) If to VERITAS or to Newco:
VERITAS Software Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Chief Executive Officer
With a copy to:
Xxxxxxxxxx X. Xxxxx, Esq.
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
(ii) If to OpenVision:
OpenVision Technologies, Inc.
0000 Xxxx Xxxxxx Xxxxxxx,Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: President and Chief Executive Officer
With a copy to:
Xxxxx Xxxxxx, Esq.
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
If to Stockholder:
To the address for notice for such Stockholder set
forth on Attachment 1 hereto
or to such other address as a party may have furnished to the other parties in
writing pursuant to this Section 6.1.
6.2 TERMINATION. This Affiliate Agreement shall be terminated and shall
be of no
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further force and effect upon the termination of the Plan of Reorganization
pursuant to its terms.
6.3 COUNTERPARTS. This Affiliate Agreement may be executed in any
number of counterparts, each of which will be an original as regards any party
whose signature appears thereon and all of which together will constitute one
and the same instrument. This Affiliate Agreement will become binding when one
or more counterparts hereof, individually or taken together, will bear the
signatures of all parties reflected hereon as signatories.
6.4 ASSIGNMENT; BINDING UPON SUCCESSORS AND ASSIGNS. Neither party
hereto may assign any of its rights or obligations hereunder without the prior
written consent of the other party hereto. This Affiliate Agreement will be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
6.5 WAIVER AND AMENDMENT. The waiver by a party of any breach hereof or
default in the performance hereof will not be deemed to constitute a waiver of
any other default or any succeeding breach or default. This Affiliate Agreement
may be amended by the parties hereto upon the execution and delivery of a
written agreement executed by the parties hereto at any time before or after
approval of the Merger by the OpenVision stockholders, but, after such approval,
no amendment will be made which by applicable law requires the further approval
of the OpenVision stockholders without obtaining such further approval.
6.6 GOVERNING LAW. The internal laws of the State of California
(irrespective of its choice of law principles) will govern the validity of this
Affiliate Agreement, the construction of its terms, and the interpretation and
enforcement of the rights and duties of the parties hereto. Any litigation or
other dispute resolution proceeding among the parties relating to this Affiliate
Agreement will take place in San Mateo, Santa Xxxxx or San Francisco County,
California, The parties consent to the personal jurisdiction of and the venue in
the state and federal courts within such counties.
6.7 SEVERABILITY. If any term, provision, covenant or restriction of
this Affiliate Agreement (or of the Plan of Reorganization) is held by a court
of competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Affiliate Agreement
(or of the Plan of Reorganization, as the case may be) will remain in full force
and effect and will in no way be effected, impaired or invalidated. The parties
further agree to replace such invalid or unenforceable term with a valid and
enforceable provision that will achieve, to the greatest extent possible, the
economic, business and other purposes of the invalid or unenforceable provision.
6.8 CONSTRUCTION OF AGREEMENT. This Affiliate Agreement has been
negotiated by the respective parties hereto and their attorneys and the language
hereof will not be construed for or against either party. A reference to a
Section will mean a Section in this Affiliate Agreement unless otherwise
explicitly set forth. The titles and headings herein are for reference purposes
only and will not in any manner limit the construction of this Affiliate
Agreement which will be considered as a whole.
6.9 ATTORNEYS' FEES. Should suit be brought to enforce or interpret any
part of this
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Affiliate Agreement, the prevailing party will be entitled to recover, as an
element of the costs of suit and not as damages, reasonable attorneys' fees to
be fixed by the court (including without limitation, costs, expenses and fees on
any appeal). The prevailing party will be entitled to recover its costs of suit,
regardless of whether such suit proceeds to final judgment.
6.10 PARTNERSHIP. Newco, OpenVision and VERITAS agree that if
Stockholder is a limited partnership, Stockholder's general and limited partners
shall in no event be liable for any obligations or liabilities of Stockholder
under this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Affiliate
Agreement as of the date first set forth above.
VERITAS SOFTWARE CORPORATION, OPENVISION TECHNOLOGIES, INC.,
a California corporation a Delaware corporation
By: __________________________ By: __________________________
Name: ________________________ Name: ________________________
Title: _______________________ Title: _______________________
VERITAS SOFTWARE CORPORATION, STOCKHOLDER:
a Delaware corporation
By: __________________________ ______________________________
Name: ________________________ Name: ________________________
Title: _______________________
[SIGNATURE PAGE TO OPENVISION AFFILIATE AGREEMENT]
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ATTACHMENT 1
OPENVISION STOCK
Stockholder's Address for Notice: ______________________________
______________________________
______________________________
Number of shares of OpenVision
capital stock beneficially
owned by the undersigned: ______________________________
Number of options, warrants
or other convertible securities
convertible into OpenVision capital
stock beneficially owned by
the undersigned: ______________________________
