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EXHIBIT 4.07
VERITAS SOFTWARE CORPORATION
REGISTRATION RIGHTS AGREEMENT
Dated as of
October 1, 1997
UBS Securities LLC
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
VERITAS Software Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to UBS Securities LLC (the "Initial Purchaser") upon
the terms set forth in a purchase agreement dated October 9, 1997 (the
"Purchase Agreement") between the Initial Purchaser and the Company, its 5 1/4%
Convertible Subordinated Notes due 2004. As an inducement to the Initial
Purchaser to enter into the Purchase Agreement and in satisfaction of a
condition to the obligations of the Initial Purchaser thereunder, the Company
agrees with the Initial Purchaser, (i) for the benefit of the Initial Purchaser
and (ii) for the benefit of the Holders (as defined below) from time to time of
the Registrable Securities (as defined below), including the Initial Purchaser,
as follows:
1. DEFINITIONS. Capitalized terms used herein without definition
shall have their respective meanings set forth in or pursuant to the Purchase
Agreement or the Offering Memorandum, dated October 10, 1997, in respect of the
Securities. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Affiliate" of any specified Person means any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with such specified Person. For purposes of this definition, control
of a Person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such Person whether by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agreement" shall mean this Registration Rights Agreement as the same
may be amended, supplemented or modified from time to time in accordance with
the terms hereof.
"Commission" means the United States Securities and Exchange
Commission.
"Common Stock" means the common stock, $0.001 par value, of the
Company and any other shares of common stock as may constitute "Common Stock"
for purposes of the Indenture.
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"DTC" means The Depository Trust Company.
"Effectiveness Period" has the meaning set forth in Section 2(b)
hereof.
"Exchange Act" means the United States Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
"Holder" shall mean any person that is the record owner of Registrable
Securities (and includes any person that has a beneficial interest in any
Registrable Security in book-entry form).
"Indenture" shall mean the Indenture, dated as of October 1, 1997,
between the Company and the Trustee thereunder, pursuant to which the
Securities are being issued, as amended, modified or supplemented from time to
time in accordance with the terms thereof.
"Issue Date" means October 14, 1997.
"Liquidated Damages" has the meaning set forth in Section 2(c).
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering,
if any, as set forth in Section 6 hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities.
"Registration Default" has the meaning set forth in Section 2(c)
hereof.
"Registrable Security" shall mean any Restricted Security and any
share of Common Stock issuable upon conversion thereof except any such
Restricted Security or share of Common Stock which (i) has been effectively
registered under the Securities Act and sold in a manner contemplated by the
Registration Statement, (ii) has been transferred in compliance with Rule 144
under the Securities Act (or any successor provision thereto), or is
transferable pursuant to paragraph (k) of such Rule 144 (or any successor
provision thereto), or (iii) has otherwise been transferred and a new Security
or share of Common Stock not subject to transfer restrictions under the
Securities Act has been delivered by or on behalf of the Company in accordance
with the Indenture.
"Registration Default" has the meaning set forth in Section 2(c).
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"Restricted Securities" shall mean Securities required pursuant to the
Indenture to bear the restrictive legend set forth in Section 3.4(d) of the
Indenture.
"Rule 144" shall mean Rule 144 promulgated by the Commission pursuant
to the Securities Act, as such Rule may be amended from time to time, or any
successor rule or regulation.
"Rule 144A" shall mean Rule 144A promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any successor rule or regulation.
"Rule 415" shall mean Rule 415 promulgated by the Commission pursuant
to the Securities Act, as such Rule may be amended from time to time, or any
successor rule or regulation.
"Rule 430A" shall mean Rule 430A promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any successor rule or regulation.
"Securities" shall mean the $100,000,000 aggregate principal amount of
5 1/4% Convertible Subordinated Notes due 2004 of the Company being issued
pursuant to the Indenture (together with up to $15,000,000 aggregate principal
amount of 5 1/4% Convertible Subordinated Notes due 2004 if, and to the extent,
the Initial Purchaser's over-allotment option is exercised).
"Securities Act" means the United States Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Shelf Registration" means a registration effected pursuant to Section
2 hereof.
"Shelf Registration Statement" means a shelf registration statement of
the Company pursuant to the provisions of Section 2 hereof filed with the
Commission, which covers some or all of the Registrable Securities, as
applicable, on Form S-3 or other appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the Commission,
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Special Counsel" means any special counsel to the Holders, determined
as provided in Section 4 hereof.
"Trust Indenture Act" has the meaning set forth in Section 1.1 of the
Indenture.
"Trustee" means the Trustee under the Indenture.
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"underwriter" means any underwriter of Registrable Securities in
connection with an offering thereof under a Shelf Registration Statement.
2. SHELF REGISTRATION.
(a) The Company shall, within 120 calendar days following
the Issue Date, file with the Commission a Shelf Registration Statement
relating to the offer and sale of the Registrable Securities by the Holders
from time to time in accordance with the methods of distribution elected by
such Holders and set forth in such Shelf Registration Statement and,
thereafter, shall use its reasonable efforts to cause such Shelf Registration
Statement to be declared effective under the Securities Act within 180 calendar
days after the Issue Date.
(b) The Company shall use its reasonable efforts:
(i) Subject to Section 3(t), to keep the Shelf
Registration Statement continuously effective in order to
permit the Prospectus forming part thereof to be usable by
Holders for a period of two years from the later of (a) the
Issue Date or (b) the last date of original issuance of the
Securities or such shorter period that will terminate upon the
earliest of the following: (A) when all the Securities covered
by the Shelf Registration Statement have been sold pursuant to
the Shelf Registration Statement, (B) when all shares of
Common Stock issued upon conversion of any such Securities
that had not been sold pursuant to the Shelf Registration
Statement have been sold pursuant to the Shelf Registration
Statement and (C) when there shall cease to be outstanding
Registrable Securities (in any such case, such period being
called the "Effectiveness Period"); and
(ii) After the effectiveness of the Shelf
Registration Statement, promptly upon the request of any
Holder, to take any action reasonably necessary to register
the sale of any Registrable Securities of such Holder and to
identify such Holder as a selling securityholder.
The Company shall be deemed not to have used its reasonable efforts to keep the
Shelf Registration Statement effective during the requisite period if the
Company voluntarily takes any action that would result in Holders of
Registrable Securities covered thereby not being able to offer and sell any
such Registrable Securities during that period, unless (i) such action is
required by applicable law, (ii) the continued effectiveness of the Shelf
Registration Statement would require the Company to disclose a material
financing, acquisition or other corporate transaction, and the Board of
Directors shall have determined in good faith that such disclosure is not in
the best interests of the Company and the holders of its outstanding Common
Stock, or (iii) the Board of Directors shall have determined in good faith that
there is a valid business purpose or reason for such suspension, and (x), in
the case of clause (i) above, the Company thereafter promptly complies with the
requirements of paragraph 3(i) below and (y) the Company complies with its
obligations, if any, to pay Liquidated Damages (as defined below).
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(c) (1) If (i) on or prior to 120 days
following the Issue Date a Shelf Registration Statement has not been
filed with the Commission or (ii) on or prior to the 180th day
following the Issue Date, such Shelf Registration Statement is not
declared effective (each, a "Registration Default"), additional
interest ("Liquidated Damages") will accrue on the Restricted
Securities from and including the date following such Registration
Default until such time as such Shelf Registration Statement is filed
or such Shelf Registration Statement is declared effective, as the
case may be. Liquidated Damages will be paid semi-annually in
arrears, with the first semi-annual payment due on the first Interest
Payment Date under the Indenture following the date on which such
Liquidated Damages begin to accrue, and will accrue at a rate per
annum equal to an additional one-quarter of one percent (0.25%) of the
principal amount, to and including the 90th day following such
Registration Default and one-half of one percent (0.50%) thereof from
and after the 91st day following such Registration Default. In the
event that Shelf Registration Statement ceases to be effective for
more than 90 days or the Company suspends the use of the prospectus
which is a part thereof for more than 90 days, whether or not
consecutive, during any 12-month period, then the interest rate borne
by Restricted Securities will increase by an additional one-half of
one percent (0.50%) per annum from the 91st day of the applicable
12-month period such Shelf Registration Statement ceases to be
effective or the Company suspends the use of the prospectus which is a
part thereof, as the case may be, until the earlier of such time as
(i) the Shelf Registration Statement again becomes effective, (ii) the
use of the related prospectus ceases to be suspended or (iii) the
Effectiveness Period expires. Following the cure of all Registration
Defaults relating to any Restricted Securities, the accrual of
Liquidated Damages with respect to such Restricted Securities will
cease (without in any way limiting the effect of any subsequent
Registration Default). In no event shall the Company be required to
pay Liquidated Damages in excess of the applicable maximum amount of
one-half of one percent (0.50%) set forth above, regardless of whether
one or multiple Registration Defaults exist.
(2) Liquidated Damages on the Restricted
Securities shall be paid by the Company to the holders of record of such
Restricted Securities on each Interest Payment Date (as defined in the
Indenture) in the same manner as for interest on such Restricted Securities as
provided in the form of Securities set forth in Section 2.2 of the Indenture.
(3) All of the Company's obligations set forth in
this Section 2(c) which are unsatisfied to any extent with respect to any
Restricted Security at the time such security ceases to be a Restricted
Security shall survive until such time as all such obligations with respect to
such security have been satisfied in full (notwithstanding the earlier
termination of this Agreement).
(4) Any payments due and payable pursuant to this
Section 2(c) shall be subordinated to Senior Indebtedness (as defined in the
Indenture) to the extent and in the manner set forth in the Indenture.
(5) The parties hereto agree that the Liquidated
Damages provided for in this Section 2(c) constitute a reasonable estimate of
the damages that may be incurred by
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holders of record of Restricted Securities (other than the Initial Purchaser)
by reason of the failure of the Shelf Registration Statement to be filed or
declared effective or unavailable (absolutely or as a practical matter) for
effecting resales of Restricted Securities, as the case may be, in accordance
with the provisions hereof. The Trustee under the Indenture shall be entitled,
on behalf of the holders of Restricted Securities, to seek any available remedy
for the enforcement of this Agreement, including for the payment of such
Liquidated Damages. Notwithstanding the foregoing, the parties agree that the
sole contractual damages payable for a violation of the terms of this Agreement
with respect to which Liquidated Damages are expressly provided shall be such
Liquidated Damages. Nothing shall preclude a holder of Restricted Securities
from pursuing or obtaining specific performance or other equitable relief with
respect to this Agreement.
3. REGISTRATION PROCEDURES. In connection with any Shelf
Registration Statement, the following provisions shall apply:
(a) The Company shall furnish to the Special Counsel and
Holders (if requested), prior to the filing thereof with the
Commission, a copy of any Shelf Registration Statement, and each
amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein and shall use its reasonable efforts to
reflect in each such document, when so filed with the Commission, such
comments as the Special Counsel and Holders reasonably may propose.
(b) The Company shall take such reasonable action as may
be necessary so that from and after the effective date of the Shelf
Registration Statement (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any
amendment or supplement thereto (and each report or other document
incorporated therein by reference in each case) complies in all
material respects with the Securities Act and the Exchange Act, (ii)
any Shelf Registration Statement and any amendment thereto does not,
when it becomes effective, contain an 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 and (iii) any
Prospectus forming part of any Shelf Registration Statement, and any
amendment or supplement to such Prospectus, does not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements, in the light of the
circumstances under which they were made, not misleading, in each case
subject to Section 3(t).
(c) (1) The Company shall advise the Initial
Purchaser and, in the case of clause (i), the Holders and, if
requested by the Initial Purchaser or any such Holder, confirm such
advice in writing:
(i) when a Shelf Registration Statement
and any amendment thereto has been filed with the
Commission and when the Shelf Registration Statement
or any post effective amendment thereto has become
effective; and
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(ii) of any request by the Commission for
amendments or supplements to the Shelf Registration
Statement or the Prospectus included therein or for
additional information.
(2) The Company shall advise the Holders and, if
requested by any such Holder, confirm such advice in writing
of:
(i) the issuance by the Commission of
any stop order suspending effectiveness of the Shelf
Registration Statement or the initiation of any
proceedings for that purpose;
(ii) the receipt by the Company of any
notification with respect to the suspension of the
qualification of the securities included therein for
sale in any jurisdiction or the initiation of any
proceeding for such purpose; and
(iii) the happening of any event that
requires the making of any changes in the Shelf
Registration Statement or the Prospectus so that, as
of such date, the Shelf Registration Statement and
the Prospectus do not contain an untrue statement of
a material fact and do not omit to state a material
fact required to be stated therein or necessary to
make the statements therein (in the case of the
Prospectus, in light of the circumstances under which
they were made) not misleading (which advice shall be
accompanied by an instruction to suspend the use of
the Prospectus until the requisite changes have been
made).
(d) The Company shall use its reasonable efforts to
prevent the issuance, and if issued to obtain the withdrawal, of any
order suspending the effectiveness of any Shelf Registration Statement
at the earliest possible time.
(e) The Company shall furnish to the Special Counsel and
each Holder (if requested) with respect to a Shelf Registration
Statement, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Holder so
requests in writing, all reports, other documents and exhibits
(including those incorporated by reference).
(f) The Company shall, during the Effectiveness Period,
deliver to each Holder with respect to a Shelf Registration Statement,
without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in such Shelf Registration Statement
and any amendment or supplement thereto as such Holder may reasonably
request, and the Company consents (except during the continuance of
any event described in Section 3(c)(2)(iii)) to the use of the
Prospectus or any amendment or supplement thereto by each of the
Holders in connection with the offering and sale of the Registrable
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Securities covered by the Prospectus or any amendment or supplement
thereto during the Effectiveness Period.
(g) Prior to any offering of Registrable Securities
pursuant to any Shelf Registration Statement, the Company shall
register or qualify or cooperate with the Special Counsel and Holders
in connection with the registration or qualification of such
Registrable Securities for offer and sale under the securities or blue
sky laws of such jurisdictions as any such Holders reasonably request
in writing and do any and all other acts or things necessary or
advisable to enable the offer and sale in such jurisdictions of the
Registrable Securities covered by such Shelf Registration Statement;
provided, however, that in no event shall the Company be obligated to
(i) qualify as a foreign corporation or as a dealer in securities in
any jurisdiction where it would not otherwise be required to so
qualify but for this Section 3(g), (ii) file any general consent to
service of process in any jurisdiction where it is not as of the date
hereof then so subject or (iii) subject itself to taxation in any
jurisdiction if it is not so subject.
(h) Unless any Registrable Securities shall be in
book-entry only form, the Company shall cooperate with the Holders to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold pursuant to any Shelf
Registration Statement free of any restrictive legends and in such
permitted denominations and registered in such names as Holders may
request in connection with the sale of Registrable Securities pursuant
to such Shelf Registration Statement.
(i) Upon the occurrence of any event contemplated by
paragraph 3(c)(2)(iii) above, and subject to Section 3(t), the Company
shall promptly prepare a post-effective amendment to any Shelf
Registration Statement or an amendment or supplement to the related
Prospectus or file any other required document so that, as thereafter
delivered to purchasers of the Registrable Securities included
therein, the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. If the Company notifies the Holders of the
occurrence of any event contemplated by paragraph 3(c)(2)(iii) above
or Section 3(t), the Holders shall suspend the use of the Prospectus
until the requisite changes to the Prospectus have been made.
(j) Not later than the effective date of any Shelf
Registration Statement hereunder, the Company shall provide a CUSIP
number for the Securities registered under such Shelf Registration
Statement.
(k) The Company shall use its reasonable efforts to
comply with all applicable rules and regulations of the Commission and
shall make generally available to their securityholders or otherwise
provide in accordance with Section 11(a) of the Securities Act as soon
as practicable after the effective date of the applicable Shelf
Registration Statement an earnings statement satisfying the provisions
of Section 11(a) of the Securities Act.
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(l) The Company shall cause the Indenture and the
Securities to be qualified under the Trust Indenture Act in a timely
manner; and in connection with such qualification, the Company shall
cooperate with the Trustee under the Indenture and the Holders (as
defined in the Indenture) to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in accordance
with the terms of the Trust Indenture Act; and the Company shall
execute and use all reasonable efforts to cause the Trustee to
execute, all documents that may be required to effect such changes and
all other forms and documents required to be filed with the Commission
to enable such Indenture to be so qualified in a timely manner.
(m) The Company may require each Holder with respect to a
Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of Registrable
Securities held by such Holder as may be required by applicable law or
regulation for inclusion in such Shelf Registration Statement
(including, without limitation, the information required by Item 507
of Regulation S-K of the Securities Act), and the Company may exclude
from such registration the Registrable Securities of any Holder that
fails to furnish such information within a reasonable time after
receiving such request unless, and until such time as, such
information is furnished by such Holder.
(n) The Company shall enter into such customary
agreements (including underwriting agreements in customary form) to
take all other appropriate actions in order to expedite or facilitate
the registration or the disposition of the Registrable Securities, and
in connection therewith, if an underwriting agreement is entered into
pursuant to an underwritten offering in accordance with the provisions
of Section 6, cause the same to contain indemnification provisions and
procedures substantially identical to those set forth in Section 5 (or
such other provisions and procedures acceptable to the Managing
Underwriters, if any) with respect to all parties to be indemnified
pursuant to Section 5.
(o) The Company shall make reasonably available for
inspection by one representative of the Holders designated in writing
by the Holders of a majority of the Registrable Securities to be
registered thereunder, any underwriter participating in any
disposition pursuant to such Shelf Registration Statement, and any
attorney, accountant or other agent retained by such representative or
any such underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries; provided, however, that such persons shall first agree
in writing with the Company that any information that is reasonably
and in good faith designated by the Company in writing as confidential
at the time of delivery of such information shall be kept confidential
by such persons, unless (i) disclosure of such information is required
by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, (ii) disclosure of such
information is required by law (including any disclosure requirements
pursuant to Federal securities laws in connection with the filing of
any Registration Statement or the use of any prospectus referred to in
this Agreement), (iii) such information becomes generally available to
the public other than as a result of a disclosure or failure to
safeguard by any such person or (iv) such
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information becomes available to any such person from a source other
than the Company and such source is not bound by a confidentiality
agreement.
(p) The Company shall cause the Company's officers,
directors and employees to make reasonably available for inspection
all relevant information reasonably requested by such representative
or any such underwriter, attorney, accountant or agent in connection
with any such Shelf Registration Statement, in each case, as is
customary for similar due diligence examinations; provided, however,
that such persons shall first agree in writing with the Company that
any information that is reasonably and in good faith designated by the
Company in writing as confidential at the time of delivery of such
information shall be kept confidential by such persons, unless (i)
disclosure of such information is required by court or administrative
order or is necessary to respond to inquiries of regulatory
authorities, (ii) disclosure of such information is required by law
(including any disclosure requirements pursuant to Federal securities
laws in connection with the filing of any Registration Statement or
the use of any prospectus referred to in this Agreement), (iii) such
information becomes generally available to the public other than as a
result of a disclosure or failure to safeguard by any such person or
(iv) such information becomes available to any such person from a
source other than the Company and such source is not bound by a
confidentiality agreement.
(q) The Company will use its reasonable efforts to cause
the Common Stock issuable upon conversion of the Securities to be
admitted for quotation on the Nasdaq National Market or other stock
exchange or trading system on which the Common Stock primarily trades
on or prior to the effective date of any Shelf Registration Statement
hereunder.
(r) In the event that any broker-dealer registered under
the Exchange Act shall underwrite any Registrable Securities or
participate as a member of an underwriting syndicate or selling group
or "assist in the distribution" (within the meaning of the Rules of
Fair Practice and the By-Laws of the National Association of
Securities Dealers, Inc. ("NASD")) thereof, whether as a Holder of
such Registrable Securities or as an underwriter, a placement or sales
agent or a broker or dealer in respect thereof, or otherwise, assist
such broker-dealer in complying with the requirements of such Rules
and By-Laws, including, without limitation, by (A) such Rules or
By-Laws, including Schedule E thereto, shall so require, engaging a
"qualified independent underwriter" (as defined in Schedule E) to
participate in the preparation of the Shelf Registration Statement
relating to such Registrable Securities and to exercise usual
standards of due diligence in respect thereto, (B) indemnifying any
such qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 5 hereof and (C)
providing such information to such broker-dealer as may be required in
order for such broker-dealer to comply with the requirements of the
Rules of Fair Practice of the NASD.
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(s) The Company shall use its reasonable efforts to take
all other steps necessary to effect the registration, offering and
sale of the Registrable Securities covered by the Shelf Registration
Statement contemplated hereby.
(t) Notwithstanding any provision of this Section 3 to
the contrary, the Company shall not be required to amend or supplement
the Shelf Registration Statement or the related Prospectus pursuant to
the requirements of Sections 3(b), 3(c), 3(i) or 3(s) hereof if (i)
such amendment or supplement would require the Company to disclose a
material financing, acquisition or corporate transaction or
development and the Board of Directors shall have determined that such
disclosure is not in the best interests of the Company and the holders
of its outstanding Common Stock or (ii) the Board of Directors shall
have determined in good faith that there is a valid business purpose
or reason for suspending the use of the Prospectus included in such
Shelf Registration Statement in accordance with Section 3(i) hereof
instead of making such amendment or supplement, provided, that, in
each such case the Company complies with its obligations, if any, to
pay Liquidated Damages. If the Company notifies the Holders of the
occurrence of any event contemplated by paragraph 3(c)(2)(iii) or this
Section 3(t), the Holders shall suspend the use of the Prospectus
until the requisite changes to the Prospectus have been made.
(u) The Company shall file, within five Business Days of
the receipt from any Holder that includes such information regarding
the distribution of such Holder's Registrable Securities with respect
to such Holder as is required by law to be disclosed in the applicable
Registration Statement (the "Requisite Information"), a Prospectus
supplement pursuant to Rule 424 to amend or supplement such
Registration Statement to include in the Registration Statement the
Requisite Information as to such Holder (and the Registrable
Securities held by such Holder), and the Company shall provide such
Holder and the Special Counsel within five Business Days of such
notice with a copy of such Prospectus as so amended or supplemented
containing the Requisite Information in order to permit such Holder to
comply with the Prospectus delivery requirements of the Securities Act
in a timely manner with respect to any proposed disposition of such
Holder's Registrable Securities. Each Holder agrees, by acquisition
of the Registrable Securities, that no Holder of Registrable
Securities shall be entitled to sell such Registrable Securities
pursuant to the Shelf Registration Statement unless such Holder has
furnished the Company with the Requisite Information.
4. REGISTRATION EXPENSES. Except as otherwise provided in
Section 6, the Company shall bear all fees and expenses incurred in connection
with the performance of its obligations under Sections 2 and 3 hereof and shall
bear or reimburse the Holders for the reasonable fees and disbursements of a
Special Counsel designated by the Company. For purposes of this Agreement, the
Company initially appoints Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C. as Special
Counsel; provided, that, the Holders of a majority of the Registrable
Securities covered by the Shelf Registration Statement have the right pursuant
to this Agreement to substitute another firm of counsel as Special Counsel
under this Agreement.
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5. INDEMNIFICATION AND CONTRIBUTION. (a) In connection with any
Shelf Registration Statement, the Company shall indemnify and hold harmless
each Holder, the Initial Purchaser, each underwriter who participates in an
offering of Registrable Securities, each person, if any, who controls any of
such parties within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act and each of their respective directors, officers,
employees, trustees and agents, as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, including any amounts paid in settlement of
any investigation, litigation, proceeding or claim, joint or several,
as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Shelf Registration
Statement (or any amendment thereto) covering Registrable Securities,
including all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, that, the Company shall not be liable under
this clause (i) for any settlement of any action effected without its
written consent, which consent shall not be unreasonably withheld; and
(ii) against any and all expenses whatsoever, as incurred (including
reasonable fees and disbursements of counsel chosen by the Holders,
such Holder or any underwriter (except to the extent otherwise
expressly provided in Section 5(c) hereof)), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any court or governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under subparagraph (i) of this Section 5(a);
provided, that, this indemnity shall not apply to any loss, liability, claim,
damage or expense (A) to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by such Holder or
any underwriter in writing expressly for use in the Shelf Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto) or (B) such untrue statement or omission or alleged untrue
statement or omission is corrected in an amendment or supplement to the
Prospectus and having previously been furnished by or on behalf of the Company
with copies of the Prospectus as so amended or supplemented, such Holder
thereafter fails to deliver such Prospectus as so amended or supplemented, with
or prior to the delivery of written confirmation of the sale of a Registrable
Security to the person asserting the claim from which such loss, liability,
claim, damages or expense results. Any amounts advanced by the Company to an
indemnified party pursuant to this Section 5 as a result of such losses shall
be returned to the Company if it shall be finally determined by such a court in
a judgment not subject to appeal or final review that such indemnified party
was not entitled to indemnification by the Company.
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(b) Each Holder shall agree, severally and not jointly, to
indemnify and hold harmless the Company, each underwriter who participates in
an offering of Registrable Securities and the other Holders and each of their
respective directors, officers (including each officer of the Company who
signed the Shelf Registration Statement), employees, trustees and agents and
each Person, if any, who controls the Company, any underwriter or any other
Holder within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all loss, liability, claim, damage
and expense whatsoever described in the indemnity contained in Section 5(a)(i)
and (ii) hereof, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Shelf
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Holder expressly for use
in the Shelf Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto); provided, however, that,
no such Holder shall be liable for any claims hereunder in excess of the amount
of net proceeds received by such Holder from the sale of Registrable Securities
pursuant to the Shelf Registration Statement.
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, enclosing a copy of all papers served on
such indemnified party, but failure to so notify an indemnifying party shall
not relieve it of any liability which it may have to the indemnified party
otherwise than on account of this indemnity agreement. An indemnifying party
may participate at its own expense in the defense of any such action. If an
indemnifying party so elects within a reasonable time after receipt of such
notice, such indemnifying party, jointly with any other indemnifying party, may
assume the defense of such action with counsel chosen by it and approved by the
indemnified party or parties defendant in such action, provided, that, if any
such indemnified party reasonably determines that there may be legal defenses
available to such indemnified party which are different from or in addition to
those available to such indemnifying party or that representation of such
indemnifying party and any indemnified party by the same counsel would present
a conflict of interest, then such indemnifying party or parties shall not be
entitled to assume such defense. If an indemnifying party is not entitled to
assume the defense of such action as a result of the proviso to the preceding
sentence, counsel for such indemnifying party shall be entitled to conduct the
defense of such indemnifying party and counsel for each indemnified party or
parties shall be entitled to conduct the defense of such indemnified party or
parties. If an indemnifying party assumes the defense of an action in
accordance with and as permitted by the provisions of this paragraph, such
indemnifying party shall not be liable for any fees and expenses of counsel for
the indemnified parties incurred thereafter in connection with such action. In
no event shall the indemnifying party or parties be liable for the fees and
expenses of more than one counsel (in addition to any local counsel) separate
from its own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. 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
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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 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 forty-five (45) 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.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity provision agreement provided for in this
Section 5 is for any reason held to be unavailable to the indemnified parties
although applicable in accordance with its terms, the Company and the Holders
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by the
Company and the Holders, as incurred; provided, that, 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 that was not
guilty of such fraudulent misrepresentation. As between the Company, on the
one hand, and the Holders, on the other hand, such parties shall contribute to
such aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement in such proportion as shall be
appropriate to reflect the relative fault of the Company, on the one hand, and
the Holders, on the other hand, with respect to the statements or omissions
which resulted in such loss, liability, claim, damage or expense, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative fault of the Company, on the one hand, and of the Holders, 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 Company, on the one hand, or by or on behalf of the Holders, on the other
hand, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
Each of the Company and the Initial Purchaser agrees, and the Holders
shall agree, that it would not be just and equitable if contribution pursuant
to this Section 5 were to be determined by pro rata allocation or by any other
method of allocation that does not take into account the relevant equitable
considerations. For purposes of this Section 5(d), each director, officer,
employee, trustee, agent and Person, if any, who controls a Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as such Holder, and each director,
officer, employee, trustee and agent of the Company, and each Person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act shall have the same rights to contribution as
the Company. No party shall be liable for contribution with respect to any
action, suit, proceeding or claim settled without its written consent.
(e) The Company may require, as a condition to including any
Registrable Securities in any Registration Statement filed and to entering into
any underwriting agreement with respect
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thereto, that the Company shall have received an undertaking reasonably
satisfactory to it from the Holder of such Registrable Securities and from each
underwriter named in any such underwriting agreement, severally and not
jointly, to comply with the provisions of paragraphs (a) through (d) of this
Section 5.
6. UNDERWRITTEN OFFERING. The Holders who desire to do so may
sell Registrable Securities in an underwritten offering. In any such
underwritten offering, the investment banker or bankers and manager or managers
that will administer the offering will be selected by, and the underwriting
arrangements with respect thereto will be approved by the Holders of a majority
of the Registrable Securities to be included in such offering; provided,
however, that (i) such investment bankers and managers and underwriting
arrangements must be reasonably satisfactory to the Company and (ii) the
Company shall not be obligated to arrange for more than one underwritten
offering during the Effectiveness Period. No Holder may participate in any
underwritten offering contemplated hereby unless such Holder (a) agrees to sell
such Holder's Registrable Securities in accordance with any approved
underwriting arrangements, (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents required under the terms of such approved
underwriting arrangements and (c) at least 20% of the outstanding Registrable
Securities are included in such underwritten offering. The Holders
participating in any underwritten offering shall be responsible for any
expenses customarily borne by selling securityholders, including underwriting
discounts and commissions and fees and expenses of counsel to the selling
securityholders and shall reimburse the Company for the fees and disbursements
of their counsel, their independent public accountants and any printing
expenses incurred in connection with such underwritten offerings.
Notwithstanding the foregoing or the provisions of Section 6(a) hereof, upon
receipt of a request from the Managing Underwriter or a representative of
Holders of a majority of the Registrable Securities outstanding to prepare and
file an amendment or supplement to the Shelf Registration Statement and
Prospectus in connection with an underwritten offering, the Company may delay
the filing of any such amendment or supplement for up to 90 days if the Company
in good faith has a valid business reason for such delay.
The Company shall in connection with an underwritten offering in
accordance with the provisions of this Section:
(a) The Company shall, if requested, promptly include or
incorporate in a Prospectus supplement or post-effective amendment to
a Shelf Registration Statement, such information as the Managing
Underwriters administering an underwritten offering of Registrable
Securities registered thereunder reasonably request to be included
therein and to which the Company does not reasonably object and shall
make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after they are
notified of the matters to be included or incorporated in such
Prospectus supplement or post-effective amendment;
(b) make such representations and warranties to the
Holders and the underwriters in form, substance and scope as are
customarily made by the Company to
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underwriters in primary underwritten offerings and covering matters,
including, but not limited to, those set forth in the Purchase
Agreement;
(c) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing Underwriters)
addressed to each Holder and the underwriters covering such matters as
are customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by
such Holders and underwriters (it being agreed that the matters to be
covered by such opinion or written statement by such counsel delivered
in connection with such opinions shall include in customary form,
without limitation, as of the date of the opinion and as of the
effective date of the Shelf Registration Statement or most recent
post-effective amendment thereto, as the case may be, the absence from
such Shelf Registration Statement and the prospectus included therein,
as then amended or supplemented, including the documents incorporated
by reference therein, of an untrue statement of a material fact or the
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading);
(d) obtain "cold comfort" letters and updates thereof
from the independent public accountants of the Company (and, if
necessary, any other independent public accountants of any subsidiary
of the Company or of any business acquired by the Company for which
financial statements and financial data are, or are required to be,
included in the Shelf Registration Statement), addressed to the
underwriters in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
primary underwritten offerings; and
(e) deliver such documents and certificates as may be
reasonably requested by any such Holders and the Managing
Underwriters, including those to evidence compliance with Section 3(i)
and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company.
7. MISCELLANEOUS.
(a) Other Registration Rights. The Company may grant
registration rights that would permit any Person that is a third party the
right to include securities held by such Person on any Shelf Registration
Statement, provided, that, if the Managing Underwriter, if any, of such
offering delivers an opinion to the Holders that the total amount of securities
which they and the holders of such registration rights intend to include in any
Shelf Registration Statement is so large as to materially adversely affect the
success of such offering (including the price at which such securities can be
sold), then only the amount, the number or kind of securities to be offered for
the account of holders of such registration rights will be reduced to the
extent necessary to reduce the total amount of securities to be included in
such offering to the amount, number or kind recommended by the Managing
Underwriter prior to any reduction in the amount of Registrable Securities to
be included.
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(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
qualified, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Company has obtained the
express prior written consent of UBS Securities LLC.
(c) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand- delivery,
first-class mail, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address
given by such Holder to the Company in accordance with the
provisions of this Section 7(c);
(2) if to the Initial Purchaser, initially at the
address set forth in the Purchase Agreement;
(3) if to the Company, initially at its address
set forth in the Purchase Agreement; and
(4) if to the Special Counsel, the address given
by such Special Counsel to the Company in accordance with the
provisions of this Section 7(c).
All such notices and communications shall be deemed to have been duly given
when received.
The Initial Purchaser, the Company and the Special Counsel by notice
to the others may designate additional or different addresses for subsequent
notices or communications.
(d) Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors and assigns of each of the
parties and the Holders, including, without the need for an express assignment
or any consent by the Company thereto, subsequent Holders of Registrable
Securities. The Company hereby agrees to extend the benefits of this Agreement
to any Holder of Registrable Securities and any such Holder may specifically
enforce the provisions of this Agreement as if an original party hereto.
(e) Counterparts. This agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(f) Headings. The headings in this agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This agreement shall be governed by
and construed in accordance with the laws of the State of New York, United
States of America, without giving effect to any provisions relating to
conflicts of laws.
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(h) Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions hereof shall not be in any
way impaired or affected thereby, it being intended that all of the rights and
privileges of the parties shall be enforceable to the fullest extent permitted
by law.
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Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
VERITAS SOFTWARE CORPORATION
By: /s/ XXX XXXXXXX
--------------------------
Name: Xxx Xxxxxxx
Title: Vice President, Finance
CFO
The foregoing Registration Rights Agreement is hereby confirmed and
accepted as of the date first above written.
By: UBS Securities LLC
By:
--------------------------------
Name:
-----------------------------
Title:
----------------------------
20
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
VERITAS SOFTWARE CORPORATION
By:
--------------------------
Name: Xxx Xxxxxxx
Title: Vice President, Finance
CFO
The foregoing Registration Rights Agreement is hereby confirmed and
accepted as of the date first above written.
By: UBS Securities LLC
By: SIGNATURE ILLEGIBLE
--------------------------------
Name: NAME ILLEGIBLE
-----------------------------
Title: Managing Director
----------------------------
