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As filed with the Securities and Exchange Commission on June 2, 2000
Registration No. 333- _______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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VERITAS SOFTWARE CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 77-0507675
(State or other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
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1600 PLYMOUTH STREET
MOUNTAIN VIEW, CALIFORNIA 94043
(Address of Principal Executive Offices, including Zip Code)
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1993 EQUITY INCENTIVE PLAN
1993 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plans)
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MARK LESLIE
CHIEF EXECUTIVE OFFICER
VERITAS SOFTWARE CORPORATION
1600 PLYMOUTH STREET
MOUNTAIN VIEW, CALIFORNIA 94043
(650) 335-8000
(Name, Address and Telephone Number of Agent for Service)
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Copies to:
HORACE L. NASH, ESQ.
LYNDA M. TWOMEY, ESQ.
FENWICK & WEST LLP
TWO PALO ALTO SQUARE
PALO ALTO, CALIFORNIA 94306
(650) 494-0600
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Amount Proposed Maximum Proposed Maximum
Securities to be to be Offering Price Aggregate Amount of
Registered Registered Per Share Offering Price Registration Fee
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Common Stock, 21,367,360 (1) $105.25 (2) $2,248,914,640 $593,713.47 (3)
$0.00l par value
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(1) Represents (i) 17,482,385 additional shares available for grant under
Registrant's 1993 Equity Incentive Plan and (ii) 3,884,975 additional
shares available for purchase under Registrant's 1993 Employee Stock
Purchase Plan. These amounts represent automatic increases in the number
of shares reserved for issuance under such plans effective January 1,
2000 equal to 4.5%, and 1%, respectively of the Registrant's outstanding
shares of Common Stock on December 31, 1999, and adjusted to reflect
stock dividends effected subsequent to such date.
(2) Estimated as of May 26, 2000 pursuant to Rule 457(c) solely for the
purpose of calculating the registration fee.
(3) Fee calculated pursuant to Section 6(b) of the Securities Act of 1933,
as amended.
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PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's latest annual report on Form 10-K filed pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended ( the "Exchange Act") which contains audited financial
statements for the Registrant's latest fiscal year.
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the
annual report or prospectus referred to in (a) above.
(c) The description of the Registrant's Common Stock incorporated by
reference in the Registrant's Registration Statement on Form 8-A
filed with the Commission under Section 12 of the Exchange Act on
June 2, 1999, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities registered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed incorporated by reference herein and to be a part hereof from the date
of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a court
to award, or a corporation's board of directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act of 1933, as amended (the "Securities
Act").
As permitted by the Delaware General Corporation Law, the Registrant's
Amended and Restated Certificate of Incorporation, as amended, includes a
provision that eliminates the personal liability of its directors for monetary
damages for breach of fiduciary duty as a director, except for liability (i) for
any breach of the director's duty of loyalty to the Registrant or its
stockholders, (ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) under section 174 of
the Delaware General Corporation Law (regarding unlawful dividends and stock
purchases) or (iv) for any transaction from which the director derived an
improper personal benefit.
As permitted by the Delaware General Corporation Law, the Amended and
Restated Bylaws of the Registrant provide that (i) the Registrant is required to
indemnify its directors and officers to the fullest extent permitted by the
Delaware General Corporation Law, subject to certain very limited exceptions,
(ii) the Registrant may indemnify its other employees and agents as set forth in
the Delaware General Corporation Law, (iii) the Registrant is required to
advance expenses, as incurred, to its directors and officers in connection with
a legal proceeding to the fullest extent permitted by the Delaware General
Corporation Law, subject to certain very limited exceptions and (iv) the rights
conferred in the Bylaws are not exclusive.
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The Registrant's policy is to enter into indemnity agreements with each
of its directors and officers. The indemnity agreements provide that directors
and officers will be indemnified from and against all expenses (including
attorneys' fees), liabilities, losses, judgments, fines, ERISA excise taxes or
penalties and settlement amounts, any interest or charges imposed thereon, and
any taxes imposed as a result of the receipt of any payments under the indemnity
agreements, paid or reasonably incurred by such directors and officers in any
action, suit or proceeding, or any inquiry, hearing or investigation that might
lead to an action, suit or proceeding, on account of their services as a
director, officer or other agent of the Registrant or a predecessor corporation,
or as directors, officers or other agents of any other entity when they are
serving in such capacities at the request of the Registrant. The Registrant will
not be obligated pursuant to the agreements to indemnify or advance expenses to
an indemnified party (i) with respect to proceedings or claims initiated by the
indemnified party against the Registrant or any director or officer of
Registrant unless the Registrant has joined in, and except with respect to a
proceeding authorized by the Board of Directors and successful proceedings
brought to enforce a right to indemnification and/or advancement of expenses
under the indemnity agreements; (ii) for any amounts paid in settlement of a
proceeding unless the Registrant consents to such settlement; (iii) with respect
to any judicial award if the Registrant was not given reasonable and timely
opportunity to participate in the defense of such proceeding, or (iv) for any
acts, omissions, transactions or circumstances for which indemnification is
prohibited by applicable state or federal law.
The indemnification provisions in the Bylaws and the indemnification
agreements entered into between the Registrant and its directors and officers
may be sufficiently broad to permit indemnification of the Registrant's
directors and officers for liabilities arising under the Securities Act. At
present, there is no pending litigation or proceeding involving a director,
officer or employee of the Registrant regarding which indemnification is sought,
nor is the Registrant aware of any threatened litigation that may result in
claims for indemnification.
In connection with the acquisition by the Registrant of Seagate Software
Network & Storage Management Group, Inc. and TeleBackup Systems Inc., the
Registrant agreed to maintain indemnification provisions in its charter
documents that are identical to provisions contained in the charter documents of
the Registrant's predecessor corporation. The Registrant also agreed to honor in
all respects each of the indemnity agreements that its predecessor entered into
with its officers and directors before the acquisitions whether or not such
persons continue in their positions with the Registrant. In connection with the
Seagate Software Network & Storage Management Group acquisition, the Registrant
agreed to use commercially reasonable efforts to maintain director and officer
liability insurance with coverages similar to the coverages its predecessor
maintained prior to the acquisition for at least six years after the effective
time. These covenants are contained in the Amended and Restated Agreement and
Plan of Reorganization attached as Appendix A to the Registrant's Registration
Statement on Form S-4 (File No. 333-76531) filed with the Commission on April
19, 1999 (the "Form S-4") and in the Amended and Restated Combination Agreement
attached as Appendix G to the Form S-4.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable
ITEM 8. EXHIBITS.
4.01 Registrant's Amended and Restated Certificate of Incorporation
(incorporated herein by reference to Exhibit 3.01 of the Form
8-A).
4.02 Registrant's Certificate of Amendment of Amended and Restated
Certificate of Incorporation (incorporated herein by reference to
Exhibit 3.02 of the Form 8-A).
4.03 Registrant's Certificate of Amendment of Amended and Restated
Certificate of Incorporation, filed with the Secretary of State
of the State of Delaware on May 10, 2000.
4.04 Registrant's Amended and Restated Bylaws (incorporated herein by
reference to Exhibit 3.03 of the Form 8-A).
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4.05 Registrant's 1993 Equity Incentive Plan, as amended (incorporated
by reference to Exhibit 4.06 of the Registrant's Registration
Statement on Form S-8 (File No. 333-79841) filed with the
Commission on June 2, 1999 (the "Form S-8")).
4.06 Registrant's 1993 Employee Stock Purchase Plan, as amended
(incorporated by reference to Exhibit 4.07 of the Form S-8).
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of Ernst & Young LLP, Independent Auditors.
24.01 Power of Attorney (see page II-4).
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered
(if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from
the low and high end of the estimated maximum offering
range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
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The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions discussed in Item 6 hereof, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered hereby,
the Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Mountain View, State of California, on the 2nd day of
June, 2000.
VERITAS SOFTWARE CORPORATION
By: /s/ MARK LESLIE
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Mark Leslie
Chief Executive Officer and
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person whose signature
appears below constitutes and appoints Mark Leslie, Ken Lonchar and Jay Jones,
and each or any one of them, his true and lawful attorneys-in-fact and agents
with full power of substitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement on Form S-8, and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their or his substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
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Signature Title Date
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PRINCIPAL EXECUTIVE OFFICER:
/s/ MARK LESLIE Chief Executive Officer and Chairman June 2, 2000
---------------------------------- of the Board
Mark Leslie
PRINCIPAL FINANCIAL AND PRINCIPAL
ACCOUNTING OFFICER:
/s/ KENNETH LONCHAR Senior Vice President, Finance and June 2, 2000
---------------------------------- Chief Financial Officer
Kenneth Lonchar
ADDITIONAL DIRECTORS:
/s/ FRED VAN DEN BOSCH Director June 2, 2000
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Fred van den Bosch
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/s/ STEVEN BROOKS Director June 2, 2000
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Steven Brooks
/s/ WILLIAM H. JANEWAY Director June 2, 2000
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William H. Janeway
/s/ GREGORY B. KERFOOT Director June 2, 2000
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Gregory B. Kerfoot
Director ______, 2000
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Stephen J. Luczo
/s/ JOSEPH D. RIZZI Director June 2, 2000
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Joseph D. Rizzi
/s/ GEOFFREY W. SQUIRE Director June 2, 2000
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Geoffrey W. Squire
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EXHIBIT INDEX
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Exhibit No. Description
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4.03 Registrant's Certificate of Amendment of Amended and
Restated Certificate of Incorporation, filed with the
Secretary of State of the State of Delaware on May 10,
2000.
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of Ernst & Young, LLP, Independent Auditors
24.01 Power of Attorney (see page II-4).
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