1
EXHIBIT 4.01
VERITAS SOFTWARE CORPORATION
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is entered into as of ______, 1997, by
and between VERITAS Software Corporation, a Delaware corporation (the
"COMPANY"), and Warburg, Xxxxxx Investors, L.P. (the "STOCKHOLDER").
RECITALS
WHEREAS, the Stockholder acquired shares of Common Stock of the Company
pursuant to an Agreement and Plan of Reorganization by and among the Company,
VERITAS Software Corporation, a California corporation ("VERITAS"), and
OpenVision Technologies, Inc., a Delaware corporation ("OPENVISION"), dated
January 13, 1997 (the "MERGER AGREEMENT") in connection with the merger of the
Company's two subsidiaries with and into VERITAS and OpenVision, respectively.
Pursuant to Section 5.15 of the Merger Agreement, the Company agreed to provide
the Stockholder certain registration rights as provided herein; and
WHEREAS, as an inducement for OpenVision to enter into the Merger
Agreement, the Company desires to grant the registration rights to the
Stockholder as contained herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the Company and the Stockholder agree as follows:
SECTION 1
REGISTRATION RIGHTS
1.1 DEFINITIONS. As used in this Agreement, the following terms shall
have the following meanings:
(a) "SEC" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
(b) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended, or any similar federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
(c) "EXPIRATION DATE" shall mean the date the Company has published
(in accordance with applicable pooling of interests accounting rules) the
combined financial results of the Company, VERITAS and OpenVision covering a
period of at least thirty (30) days of combined operations of the Company,
VERITAS and OpenVision.
(d) "HOLDER" shall mean any holder of outstanding Registrable
Securities which have not been sold to the public or anyone who holds
outstanding Registrable Securities to
2
whom the registration rights conferred by this Agreement have been transferred
in compliance with Section 1.11 hereof.
(e) "REGISTER," "REGISTERED" and "REGISTRATION" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement, and compliance with applicable
state securities laws of such states in which Holders notify the Company of
their intention to offer Registrable Securities.
(f) "REGISTRABLE SECURITIES" shall mean all of the following to the
extent the same have not been sold to the public (i) any and all shares of
Common Stock of the Company issued to the Stockholder pursuant to the Merger
Agreement, (ii) stock issued in respect of stock referred to in (i) above in any
reorganization, or (iii) stock issued in respect of the stock referred to in (i)
and (ii) as a result of a stock split, stock dividend, recapitalization or
combination.
(g) "REGISTRATION EXPENSES" shall mean all expenses incurred in
connection with a registration hereunder, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, blue sky fees and expenses and the expense of any
special audits incident to or required by any such registration (but excluding
the compensation of regular employees of the Company, which shall be paid in any
event by the Company).
(h) "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
(i) "SELLING EXPENSES" shall mean all underwriting discounts and
selling commissions applicable to the sale of Registrable Securities and all
fees and disbursements of counsel for the Holders.
1.2 RESTRICTIVE LEGEND.
(a) Each certificate representing Registrable Securities held by any
Holder who is a party to an OpenVision Affiliate Agreement (as defined in
Section 4.5 of the Merger Agreement) shall be stamped or otherwise imprinted
with a legend as provided in the OpenVision Affiliate Agreement.
(b) The Company agrees to remove promptly stop transfer instructions
and the legend provided in Section 1.2(a) above when (i) such proposed sale,
transfer or other distribution is permitted pursuant to Rule 145(d) under the
Securities Act; (ii) counsel representing the Holder, which counsel is
reasonably satisfactory to the Company, shall have advised the Company in a
written opinion letter satisfactory to the Company and Company's legal counsel,
and upon which the Company and its legal counsel may rely, that no registration
under the Securities Act would be required in connection with the proposed sale,
transfer or other disposition; (iii) a registration statement under the
Securities Act covering the Registrable Securities proposed to be sold,
transferred or otherwise disposed of, describing the manner and
2
3
terms of the proposed sale, transfer or other dispositions, and containing a
current prospectus, shall have been filed with the SEC and declared effective
under the Securities Act; (iv) an authorized representative of the SEC shall
have rendered written advice to Holder (sought by Holder or counsel to Holder,
with a copy thereof and all other related communications delivered to the
Company) to the effect that the SEC would take no action, or that the staff of
the SEC would not recommend that the SEC take any action, with respect to the
proposed disposition if consummated; or (v) when the Holder of Registrable
Securities is no longer subject to the restrictions in Rule 145 pursuant to Rule
145(d)(2) or (3).
(c) Each Holder consents to the Company making a notation on its
records and giving instructions to any transfer agent of the Registrable
Securities in order to implement the restrictions on transfer established in
this Agreement.
1.3 REQUESTED REGISTRATION.
(a) At any time after the Expiration Date, in case the Company shall
receive a written request from a Holder or Holders that the Company effect a
registration with respect to Registrable Securities, the Company shall:
(i) promptly give written notice of the proposed
registration to all other Holders; and
(ii) as soon as practicable use its best efforts to register
(including, without limitation, the execution of an undertaking to file
post-effective amendments, appropriate qualifications under applicable blue sky
or other state securities laws, and appropriate compliance with federal
government requirements) the sale and distribution of the Registrable Securities
as specified in such request, together with all or such portion of the
Registrable Securities of any other Holder or Holders as are specified in a
written request given within ten (10) days after receipt of such written notice
from the Company; provided, however, that the Company shall not be obligated to
file a registration statement pursuant to this Section:
(A) within two hundred seventy (270) days after the
effectiveness of a registration statement relating to a registration effected
pursuant to this Section 1.3(a) or Section 1.4(a);
(B) in any particular state in which the Company
would be required to execute a general consent to service of process in
effecting such registration;
(C) in any registration having an aggregate sales
price (before deduction of underwriting discounts and commissions) of less
than $5,000,000; or
(D) after the Company has effected two such
registrations pursuant to this Section 1.3(a) and such registrations have been
declared or ordered effective; provided, however, that any registration request
which is subsequently withdrawn shall not be deemed to be a registration under
this subsection (D) if the Holders requesting such registration shall have
reimbursed the Company for all Registration Expenses related to such withdrawn
registration. Notwithstanding the foregoing, if at the time of such withdrawal,
the Holders have
3
4
learned of a material adverse change in the condition, business, or prospects of
the Company from that known to the Holders at the time of their request, then
the Holders shall not be required to pay any of such expenses and such
registration shall not be counted as a registration pursuant to this Section
1.3(a)(ii)(D).
Subject to the foregoing clauses (A) through (D), the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as is practicable after receipt of the request or requests of
the Holders; provided, however, that (i) if the Company shall furnish to such
Holders a certificate signed by the President of the Company stating that in the
good faith judgment of the Board of Directors it would be detrimental to the
Company and its stockholders for such registration statement to be filed within
such period, then the Company may defer the filing of such registration
statement for a period of not more than sixty (60) days, provided that the
Company may not exercise such sixty (60) day hold off more than once during any
two hundred seventy (270) day period, or (ii) if at the time of such request the
Company determines it desires to register shares for the account of the Company,
then the Company can so notify the Holders who shall then have rights to
participate in such registration statement as provided in Section 1.4.
(b) If the Holders intend to distribute the Registrable Securities
covered by their request by means of an underwriting, they shall so advise the
Company as a part of their request made pursuant to Section 1.3. In such event,
the Company shall include such information in the written notice referred to in
Section 1.3(a)(i), and the Holders shall select an underwriter or underwriters
reasonably acceptable to the Company. The right of any Holder to registration
pursuant to Section 1.3 shall be conditioned upon such Holder's participation in
such underwriting and the inclusion of such Holder's Registrable Securities in
the underwriting to the extent provided herein. The Company shall (together with
all Holders distributing their Registrable Securities through such underwriting)
enter into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting. Notwithstanding any other provision
of this Section 1.3, if the managing underwriter advises the participating
Holders in writing that marketing factors, so as to not materially adversely
impact the market price of the Company's Common Stock, require a limitation of
the number of shares to be underwritten (an "UNDERWRITER'S CUTBACK"), the
Company shall so advise all participating Holders, and the number of shares of
Registrable Securities that may be included in the registration and underwriting
shall be allocated among all participating Holders thereof in proportion, as
nearly as practicable, to the respective amounts of Registrable Securities held
by such Holders. If any Holder disapproves of the terms of the underwriting, he
may elect to withdraw therefrom by written notice to the Company and the
managing underwriter. If, by the withdrawal of such Registrable Securities a
greater number of Registrable Securities held by other Holders may be included
in such registration (up to the limit imposed by the underwriters) the Company
shall offer to all Holders who have included Registrable Securities in the
registration the right to include additional Registrable Securities in the same
proportion used in determining the limitation as set forth above. Any
Registrable Securities which are excluded from the underwriting by reason of the
underwriter' s marketing limitation or withdrawn from such underwriting shall be
withdrawn from such registration and shall remain subject to the lockup
agreement in Section 1.10.
4
5
1.4 PIGGYBACK REGISTRATION.
(a) If at any time or from time to time, the Company shall determine
to register any of its securities for its own account or the account of any of
its stockholders (other than a registration relating solely to employee benefit
plans, a registration statement related to the offering of debt securities of
the Company, a registration relating solely to a Securities Act Rule 145
transaction, a registration relating to any acquisition by the Company or a
registration on any form (other than Form X-0, X-0 or S-3, or their successor
forms) which does not include substantially the same information as would be
required to be included in a registration statement covering the sale of
Registrable Securities), the Company will:
(i) give to each Holder written notice thereof as soon as
practicable prior to filing the registration statement; and
(ii) include in such registration and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within ten (10) days after receipt of such written notice from
the Company, by any Holder or Holders, except as set forth in Subsection (b)
below.
(b) If the registration is for a registered public offering
involving an underwriting, the Company shall so advise the Holders as a part of
the written notice given pursuant to Subsection 1.4(a)(i). In such event the
right of any Holder to registration pursuant to Section 1.4 shall be conditioned
upon such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent provided
herein. All Holders proposing to distribute their securities through such
underwriting shall (together with the Company) enter into an underwriting
agreement in customary form with the underwriter or underwriters selected for
such underwriting by the Company. Notwithstanding any other provision of this
Section 1.4, if the managing underwriter determines that marketing factors, so
as to not materially adversely impact the market price of the Company's Common
Stock, require a limitation of the number of shares to be underwritten, the
managing underwriter may limit the number of Registrable Securities to be
included in the registration and underwriting on behalf of the Holders on a pro
rata basis to not less than thirty-five percent (35%) of total number of shares
to be included in the registration. In such event, the Company shall so advise
all Holders of Registrable Securities which would otherwise be registered and
underwritten pursuant hereto, and the number of shares of Registrable Securities
that may be included in the registration and underwriting shall be allocated
among the Holders in proportion, as nearly as practicable, to the respective
amounts of Registrable Securities held by each of the Holders seeking to
register shares under this Section 1.4. If any Holder disapproves of the terms
of any such underwriting, he may elect to withdraw therefrom by written notice
to the Company and the managing underwriter. If by the withdrawal of such
Registrable Securities a greater number of Registrable Securities held by other
Holders may be included in such registration (up to the limit imposed by the
underwriters), the Company shall offer to all Holders who have included
Registrable Securities in the registration the right to include additional
Registrable Securities in the same proportion used in determining the limitation
as set forth above. Any Registrable Securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration and shall remain subject
to the lockup agreement in Section 1.10.
5
6
1.5 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to
Section 1.3 or 1.4 shall be borne by the Company, and all Selling Expenses shall
be borne by the Holders of the securities so registered pro rata on the basis of
the number of their shares so registered; provided, however, that the Company
shall not be required to pay any Registration Expenses if, as a result of the
withdrawal of a request for registration by any of the Holders, as applicable,
the registration statement does not become effective, in which case each of the
Holders withdrawing from the requested registration shall bear such Registration
Expenses pro rata; and, provided, further, that such registration shall not be
counted as a registration pursuant to Section 1.3(a)(ii)(D). Notwithstanding the
foregoing, if at the time of such withdrawal, the Holders have learned of a
material adverse change in the condition, business, or prospects of the Company
from that known to the Holders at the time of their request, then the Holders
shall not be required to pay any of such expenses and such registration shall
not be counted as a registration pursuant to Section 1.3(a)(ii)(D).
1.6 OBLIGATIONS OF THE COMPANY. Whenever required to effect the
registration of any Registrable Securities under this Agreement, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its reasonable best efforts to
cause such registration statement to become effective, and keep such
registration statement effective until the distribution is completed, but not
longer than ninety (90) days after the effective date thereof (excluding any
days in which the Company requires the Holders to cease sales of shares as
provided below); provided, however, that (A) the Company may by written notice
require that the Holders immediately cease sales of shares (for a period not to
exceed sixty (60) days) pursuant to such registration statement at any time that
(i) the Company becomes engaged in business activity or negotiation which is not
disclosed in the registration statement (or the prospectus included therein)
which the Company reasonably believes must be disclosed therein under applicable
law and which the Company desires to keep confidential for business purposes,
(ii) the Company determines that a particular disclosure so determined to be
required to be disclosed therein would be premature or would adversely affect
the Company or its business or prospects, or (iii) the registration statement
can no longer be used under the existing rules and regulations promulgated under
the Securities Act, and (B) if such registration statement is not kept effective
for such period, such registration shall not be counted as a registration
pursuant to Section 1.3(a)(ii)(D). The Company shall not be required to disclose
to the Holders which of the reasons specified in clauses (i), (ii) or (iii)
above are the basis for requiring a suspension of sales hereunder.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other
6
7
documents as they may reasonably request in order to facilitate the disposition
of the Registrable Securities owned by them that are included in such
registration.
(d) Use its reasonable best efforts to register and qualify the
securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions.
(e) Enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter(s) of such
offering. Each Holder participating in such underwriting shall also enter into
and perform its obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(g) Furnish to the underwriters for sale of Registrable Securities
on the date that such Registrable Securities are delivered to the underwriters
(i) an opinion, dated as of such date, of the counsel representing the Company
for the purposes of such registration, in form and substance as is customarily
given to underwriters in an underwritten public offering addressed to the
underwriters, and (ii) a "comfort" letter dated as of such date, from the
independent certified public accountants of the Company, in form and substance
as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering addressed to the underwriters.
1.7 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Sections 1.3 or 1.4
that the selling Holders shall furnish to the Company such information regarding
themselves, the Registrable Securities held by them, and the intended method of
disposition of such securities as shall be required to timely effect the
registration of Registrable Securities.
1.8 DELAY OF REGISTRATION. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Agreement.
1.9 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under Sections 1.3 or 1.4:
(a) By the Company. To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, the partners, officers and directors of
each Holder, any underwriter (as defined in the Securities Act) for such Holder
and each person, if any, who
7
8
controls such Holder or underwriter within the meaning of the Securities Act or
the Exchange Act against any losses, claims, damages, or liabilities (joint or
several) to which they may become subject under the Securities Act, the Exchange
Act or other federal or state securities law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "VIOLATION"):
(i) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto;
(ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein, in light of the circumstances in which made, not misleading, or
(iii) any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any federal or state securities law or any
rule or regulation promulgated under the Securities Act, the Exchange Act or any
federal or state securities law in connection with the offering covered by such
registration statement;
and the Company will reimburse each such Holder, partner, officer or director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them, as incurred, in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this subsection 1.9(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be liable in any such
case for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by such Holder, partner, officer, director, underwriter
or controlling person of such Holder or underwriter.
(b) By Selling Holders. To the extent permitted by law, each selling
Holder will indemnify and hold harmless the Company, each of its directors, each
of its officers who has signed the registration statement, each person, if any,
who controls the Company within the meaning of the Securities Act, any
underwriter (as defined in the Securities Act) and any other Holder selling
securities under such registration statement or any of such other Holder's
partners, directors or officers or any person who controls such underwriter or
other Holder within the meaning of the Securities Act or the Exchange Act,
against any losses, claims, damages, or liabilities (joint or several) to which
the Company or any such director, officer, controlling person, underwriter or
other such Holder, partner or director, officer or controlling person of such
underwriter or other Holder may become subject under the Securities Act, the
Exchange Act or other federal or state securities law, insofar as such losses,
claims, damages, or liabilities (or actions in respect thereto) arise out of or
are based upon any Violation, in each case to the extent (and only to the
extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by such Holder expressly for use in connection
with such
8
9
registration; and each such Holder will reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer, controlling
person, underwriter or other Holder, partner, officer, director or controlling
person of such other Holder or underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the indemnity agreement contained in this subsection 1.9(b) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the written consent of the Holder,
which consent shall not be unreasonably withheld; and, provided, further, that
the total amounts payable in indemnity by a Holder under this subsection 1.9(b)
in respect of any Violation shall not exceed the proceeds (net of underwriting
discounts and commissions) received by such Holder in the registered offering
out of which such Violation arises.
(c) Notice. Promptly after receipt by an indemnified party under
Section 1.9 of notice of the commencement of any action (including, without
limitation, any governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under Section 1.9,
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential conflict of interests between such indemnified party and any other
party represented by such counsel in such proceeding; and, provided, further,
that the indemnifying party shall not be required to pay for more than one
separate counsel for all indemnified parties. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, if materially prejudicial to its ability to defend such action,
shall relieve such indemnifying party of any liability to the indemnified party
under Section 1.9, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under Section 1.9.
(d) Contribution. In order to provide for just and equitable
contribution to joint liability under the Securities Act, the Exchange Act or
any federal or state securities laws in any case in which either (i) any Holder
exercising rights under this Agreement, or any controlling person of any such
Holder, makes a claim for indemnification pursuant to Section 1.9 but it is
judicially determined (by the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or the denial of the
last right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that Section 1.9 provides for indemnification in such
case, or (ii) contribution under the Securities Act, the Exchange Act or any
federal or state securities laws may be required on the part of any such selling
Holder or any such controlling person in circumstances for which indemnification
is provided under Section 1.9; then, and in each such case, the Company and such
Holder will contribute to the aggregate losses, claims, damages or liabilities
to which they may be subject (after contribution from others) in such proportion
as is appropriate to reflect the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or
9
10
liabilities, as well as any other relevant equitable considerations. The
relative fault 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
indemnifying party or parties on the one hand or the indemnified party on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission; provided,
however, that, in any such case, (A) no such Holder will be required to
contribute any amount in excess of the proceeds (net of underwriting discounts
and commissions) received by such Holder from all such Registrable Securities
offered and sold by such Holder pursuant to such registration statement; and (B)
no person or entity guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) will be entitled to contribution from
any person or entity who was not guilty of such fraudulent misrepresentation.
(e) Survival. The obligations of the Company and Holders under
Section 1.9 shall survive the completion of any offering of Registrable
Securities in a registration statement.
1.10 "MARKET STAND-OFF' AGREEMENT. Each Holder who gives notice to the
Company of such Holder's desire to participate in any registration under Section
1.3 or 1.4 hereof hereby agrees that it shall not, to the extent requested by
the Company or the managing underwriter, sell or otherwise transfer or dispose
of any Registrable Securities or other shares of stock of the Company then owned
by such Holder (other than to donees, affiliates or partners of the Holder who
agree to be similarly bound) for the period from the filing of the registration
statement until up to sixty (60) days following the date of the final prospectus
in connection with the registration statement. In order to enforce the foregoing
covenant, the Company shall have the right to place restrictive legends on the
certificates representing the shares subject to this Section 1.10 and to impose
stop transfer instructions with respect to the Registrable Securities of such
Holders until the end of such period. The provisions of this Section 1.10 shall
be binding upon any transferee of any Registrable Securities.
1.11 TRANSFER OF REGISTRATION RIGHTS. The rights to cause the Company to
register securities granted Holders under Sections 1.3 and 1.4 may be assigned
to any constituent partner of a Holder, where such Holder is a partnership, or
to any parent or subsidiary corporation or any officer, director or principal
stockholder thereof, where such Holder is a corporation, provided that (i) such
transfer may otherwise be effected in accordance with the applicable securities
laws, and (ii) the Company is given written notice of such assignment prior to
such assignment.
1.12 TERMINATION OF RIGHTS. The rights granted pursuant to this Agreement
(a) shall terminate as to any Holder when the aggregate number of Registrable
Securities which such Holder holds (together with other Holders whose sales may
be aggregated) could all be sold in a three (3) month period in a public sale in
compliance with Rule 144 under the Securities Act using the 1% volume limitation
contained in Rule 144(e)(1)(i), and (b) shall not be exercisable by any Holder
if at the time of the request for or notice of registration under Section 1.3
and 1.4 such Holder could sell (together with other Holders whose sales may be
aggregated) in a three (3) month period all Registrable Securities then held by
such Holder in compliance with Rule 144 using the Company's average weekly
trading volume calculation at such time.
10
11
1.13 RULE 144 REPORTING. With a view to making available the benefits
of Rule 144, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use its reasonable best efforts to file with the SEC in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to the Holder forthwith upon request a written statement
by the Company as to its compliance with the reporting requirements of Rule 144,
and provide a copy of the most recent annual or quarterly report of the Company,
and such other reports and documents of the Company as a Holder may reasonably
request in availing itself of Rule 144.
SECTION 2
MISCELLANEOUS
2.1 WAIVERS AND AMENDMENTS. The rights and obligations of the Company and
the rights and obligations of a Holder under this Agreement may be waived
(either generally or in a particular instance, either retroactively or
prospectively, and either for a specified period of time or indefinitely) or
amended, only with the written consent of such Holder.
2.2 GOVERNING LAW. This Agreement shall be governed by and construed under
the laws of the State of California as such laws are applied to contracts made
and to be fully performed entirely within that state between residents of that
state. All disputes arising out of this Agreement shall be subject to the
exclusive jurisdiction and venue of the California State courts Santa Xxxxx
County, California (or, if there is exclusive federal jurisdiction, the United
States District Court for the Northern District of California), and the parties
consent to the personal and exclusive jurisdiction and venue of these courts
2.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
2.4 ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
2.5 NOTICES. All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed first class, postage prepaid,
addressed (a) if to a Holder, at such Holder's address set forth in Schedule A
hereto, or at such other address as such Holder shall have furnished to the
Company in writing, or (b) if to the Company, at its principal executive offices
(Attention: Chief Financial Officer) or at such other address as the Company
shall have furnished to the Holders in writing.
Notices shall be effective upon mailing.
11
12
2.6 SEVERABILITY. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions of this Agreement shall not in any way be affected or
impaired thereby.
2.7 TITLES AND SUBTITLES. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
2.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
constitute one instrument.
2.9 PARTNERSHIP. The Company recognizes that Stockholder is a limited
partnership and agrees that Stockholder's general and limited partners shall in
no event be liable for any obligation or liabilities of Stockholder under this
Agreement.
The foregoing Registration Rights Agreement is hereby executed as of the
date first above written.
"COMPANY"
VERITAS SOFTWARE CORPORATION,
A DELAWARE CORPORATION
----------------------------------------
Signature of Authorized Signatory
----------------------------------------
Print Name and Title
"STOCKHOLDER"
WARBURG, XXXXXX INVESTORS, L.P.
----------------------------------------
Signature of Authorized Signatory
----------------------------------------
Print Name and Title
12
