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EXHIBIT 4.04
VERITAS HOLDING CORPORATION
AS ISSUER
VERITAS SOFTWARE CORPORATION
AS ISSUER
STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A.
AS TRUSTEE
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FIRST SUPPLEMENTAL INDENTURE
Dated as of ________, 1999
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5 1/4 % Convertible Subordinated Notes due 2004
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FIRST SUPPLEMENTAL INDENTURE, dated as of ____________, 1999 (the "First
Supplemental Indenture"), between VERITAS Software Corporation, a Delaware
corporation (VERITAS Software Corporation and its successors herein referred to
as the "Company"), as co-issuer, VERITAS Holding Corporation, a Delaware
corporation (VERITAS Holding 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 has entered into an Agreement and Plan of
Reorganization dated as of October 5, 1998 (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 will merge 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 will change its name to
VERITAS Operations Corporation and New VERITAS will change 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 desires 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 desires to assume all of the obligations of the
Company under the Indenture and the Securities on a joint and several basis.
WHEREAS, all conditions and requirements necessary to make this 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.
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WHEREAS, in accordance with the terms of the Indenture, the Company has
requested that the Trustee execute and deliver this First Supplemental Indenture
and has delivered to the Trustee a copy of a Board Resolution authorizing the
execution of this 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 First Supplemental Indenture. This First Supplemental
Indenture will be effective upon the consummation of the transactions
contemplated by the Combination Agreement. The Company shall give written
notice to the Trustee of the consummation of such transactions and the
effectiveness of this First Supplemental Indenture.
II. ASSUMPTION OF OBLIGATIONS
2.1 Assumption. New VERITAS hereby unconditionally assumes joint and several
liability on and after the Effective Date 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.
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 (herein called "New VERITAS")" is hereby added
thereto.
3.2 Definitions. The following amendments are hereby made to Section 1.1 of the
Indenture:
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(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,
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 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
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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 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
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Section 1.6 promptly upon such execution.
(b) In the second paragraph of Section 12.11, the words "the Company"
are hereby deleted and replaced with the word "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 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 First Supplemental Indenture.
V. MISCELLANEOUS PROVISIONS
5.1 Incorporation of Indenture. All the provisions of this 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 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 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 First Supplemental Indenture, except
as otherwise defined herein, capitalized terms used in this 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 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 First
Supplemental Indenture.
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5.5 Governing Law. The internal laws of the State of New York shall govern this
First Supplemental Indenture, without regard to the principles of the conflicts
of law thereof.
5.6 Successors. All agreements of the Company in this First Supplemental
Indenture and the Securities shall bind its successors and assigns. This 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
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
provisions of this First Supplemental Indenture shall become effective when the
Company has delivered a Board Resolution authorizing the execution of this First
Supplemental Indenture, an Officers' Certificate and Opinion of Counsel to the
Trustee as conclusive evidence that this First Supplemental Indenture complies
with the applicable requirements of the Indenture and that all of the conditions
precedent to the effectiveness of this First Supplemental Indenture have been
satisfied.
5.9 Trustee Disclaimer. The Trustee accepts the amendment of the Indenture and
the Securities effected by this 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, or for or with respect to
(i) the validity, efficacy or sufficiency of this First Supplemental Indenture
or any of the terms or provisions hereof, (ii) the proper authorization hereof
by the Company by corporate action or otherwise, (iii) the due execution hereof
by the Company 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 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 First
Supplemental Indenture to be duly executed, all as of the date first written
above.
VERITAS HOLDING 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:
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Name:
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Title:
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