<PAGE> 1
EXHIBIT 8.04
[Letterhead of Wilson Sonsini Goodrich & Rosati,
Professional Corporation]
, 2000
Seagate Technologies, Inc.
920 Disc Drive
Scotts Valley, California 95066
Ladies and Gentlemen:
We have acted as counsel for Seagate Technology, Inc., a Delaware
corporation ("Seagate"), in connection with the preparation and execution of the
Agreement and Plan of Merger and Reorganization by and among VERITAS Software
Corporation, a Delaware corporation ("VERITAS"), Victory Merger, Sub, Inc., a
wholly-subsidiary of VERITAS ("Merger Sub"), and Seagate, dated as of March 29,
2000, as amended (the "Merger Agreement"). Pursuant to the Merger Agreement,
Merger Sub will merge with and into Seagate (the "Merger"), and Seagate will
survive as a wholly-owned subsidiary of VERITAS.
In that connection, you have requested our opinion regarding the
qualification of the Merger as a "reorganization" within the meaning of section
368(a) of the Internal Revenue Code of 1986, as amended (the "Code"). In
providing our opinion, we have reviewed, and are relying upon the truth and
accuracy at all times of, (i) the Merger Agreement, (ii) Amendment No. 3, filed
on October 13, 2000 and declared effective on , 2000, to the
registration statement on Form S-4 of VERITAS with respect to the VERITAS common
stock to be issued to the holders of the Seagate common stock in connection with
the Merger (the "Registration Statement"), (iii) the representations and
covenants made to us by VERITAS and Seagate in their respective tax
representation letters to us, dated as of , 2000 (collectively, the
"Tax Representation Letters"), (iv) the Stock Purchase Agreement by and among
Suez Acquisition Company (Cayman) Limited, Seagate and Seagate Software
Holdings, Inc., dated March 29, 2000, including any amendments thereto, and (v)
such other documents, records, instruments and information as we have deemed
necessary or appropriate as a basis for our opinion. We have no reason to
believe that these documents, representations and facts are not true and
accurate, but we have not attempted to verify independently the truth and
accuracy of these documents, representations and facts, and this opinion is
based upon the assumption that each of them is accurate.
In connection with rendering this opinion, we have assumed (without any
independent investigation or examination thereof) that:
1. Original documents (including signatures) are authentic, documents
submitted to us as copies conform to the original documents, and there has
been due execution and delivery of all documents where due execution and
delivery are prerequisites to effectiveness thereof;
2. Any statement made in any of the documents referred to herein "to
the knowledge of" or "to the best of the knowledge of" any person or party
or similarly qualified is correct without such qualification;
1
<PAGE> 2
3. All facts, statements, descriptions, covenants, representations and
warranties contained in any of the documents referred to herein or
otherwise made to us are true and correct in all respects, and no actions
have been or will be taken that are inconsistent with such positions;
4. The Merger will be consummated in accordance with the terms of the
Merger Agreement and without any waiver, breach or amendment of any
covenant, condition, or other provision thereof;
5. The Merger will be reported by VERITAS and Seagate on their
respective federal income tax returns in a manner consistent with the
opinion set forth below and will comply with all reporting obligations set
forth in the Code and the Treasury Regulations promulgated thereunder;
6. The valuation of the TRA Right (as that term is defined in the
Merger Agreement) taken into account in rendering this opinion is a good
faith and reasonable determination of such value; and
7. The purchase price of the assets acquired pursuant to the Stock
Purchase Agreement represents the fair market value of such assets.
Certain circumstances arising in connection with the merger, including the
sale of Seagate's operating assets to Suez Acquisition Company (Cayman) Limited
for cash, the distribution of all or a portion of such cash to Seagate's
stockholders in connection with the Merger and potential fluctuations in the
trading values of VERITAS common stock and Seagate's investment securities, bear
on the Merger's qualification as a "reorganization" within the meaning of
Section 368(a) of the Code. We have taken these circumstances, among others,
into account in analyzing whether the Merger satisfies the requirements
necessary in order to qualify as a "reorganization." In light of these
circumstances, three of the requirements are of particular importance and are
described and analyzed below.
First, the Merger must satisfy the "continuity of business enterprise" rule,
which requires that the acquiring corporation continue the historic business of
the acquired corporation or use a significant portion of the historic assets of
the acquired corporation in a business. The application of the business
continuity requirement to a holding company (such as Seagate) is uncertain and,
according to Treasury Regulations, requires an analysis of all the facts and
circumstances, including, for example, the percentage ownership of the holding
company in its subsidiaries that own operating assets. Immediately prior to the
Merger, and after the sale of the operating assets to Suez Acquisition Company
(Cayman Limited), Seagate will be a holding company that owns indirectly
approximately 32.5% of the outstanding VERITAS common stock, as well as minority
interests in several other public and private companies. A published ruling of
the Internal Revenue Service and case law have found the business continuity
requirement to be satisfied in circumstances where a parent corporation merges
into a wholly- or majority-owned subsidiary. Such authorities do not
specifically address a situation where the parent corporation owns less than a
majority of the subsidiary's stock, as is the case with respect to Seagate's
ownership of VERITAS. The Internal Revenue Service has ruled privately that the
business continuity requirement was satisfied under such circumstances, but
private rulings are not binding on the Internal Revenue Service or any court.
Furthermore, the Internal Revenue Service temporarily suspended the issuance of
private ruling in this area from December 1994 until January 1999. Since the
ruling suspension was lifted, counsel is not aware of any private rulings
involving a merger of parent corporation and its minority-owned subsidiary
having
2
<PAGE> 3
been publicly released. Although there can be no assurance that the Internal
Revenue Service will not take a contrary position, and the matter is not free
from doubt, it is our opinion that the reasoning of the public and private
rulings described above should apply to the Merger, particularly in light of the
fact that Seagate acquired its VERITAS common stock in 1999 in a tax-free
exchange for certain assets of Seagate's software business, a business that
VERITAS continues to operate. If the reasoning of public and private rulings
described above does apply to the Merger, the continuity of business enterprise
rule will be satisfied.
Second, the Merger must satisfy the requirement that, following the Merger,
the surviving corporation hold "substantially all" of the properties of Seagate.
For purposes of issuing private letter rulings, the Internal Revenue Service has
stated that 70% of the fair market value of the gross assets and 90% of the fair
market value of the net assets of the target corporation will be considered
"substantially all" of the target's properties, and we have followed this safe
harbor standard in rendering this tax opinion. It is unclear, however, if
certain expenses incurred in connection with the Merger between Seagate and
VERITAS should be taken into account in determining whether Seagate holds
substantially all of its properties after the Merger. Accordingly the Internal
Revenue Service could disagree with the result of this determination and
conclude that the substantially all the properties requirement has not been
satisfied.
Third, VERITAS must acquire at least 80% of the Seagate common stock for
VERITAS common stock. Because the Merger consideration consists of VERITAS
common stock, cash and the TRA Right, the percentage of the total consideration
represented by the VERITAS common stock will vary with fluctuations in the
market price of such stock. As the market value of the VERITAS common stock
declines, the stock portion of the merger consideration represents a lesser
percentage of the total consideration exchanged for the Seagate common stock. We
have determined that, as of the date hereof, based upon the relative values of
the VERITAS common stock and cash received by Seagate stockholders in the
Merger, and a good faith estimate of the value of the TRA Right, VERITAS has
acquired 80% of Seagate's outstanding common stock in exchange for VERITAS
Common Stock. Since our determination depends in part on the valuation of the
TRA Right, it is possible that the Internal Revenue Service could successfully
assert that such valuation was incorrect and conclude that the 80% requirement
has not been satisfied.
Based on the foregoing, we are of the opinion that, for United States
federal income tax purposes, the Merger should qualify as a "reorganization"
within the meaning of Section 368(a) of the Code. In the event that any one of
the facts, statements, descriptions, covenants, representations, warranties or
assumptions upon which we have relied to issue this opinion, including with
respect to the valuations of the TRA Right or the assets sold to Suez
Acquisition Company (Cayman) Limited, are or later become inaccurate or
incomplete, our opinion may not be relied upon.
This opinion represents and is based upon our best judgment regarding
current federal income tax laws including the Code, existing judicial decisions,
administrative regulations and published rulings and procedures. Our opinion is
not binding upon the Internal Revenue Service or the courts, and there is no
assurance that the Internal Revenue Service will not successfully assert a
contrary position. No assurance can be given that future legislative, judicial
or administrative changes will not adversely affect the accuracy of the
conclusions stated herein. Nevertheless, we undertake no responsibility to
advise you of any new developments in the application or interpretation of the
federal income tax laws.
3
<PAGE> 4
This opinion addresses only the qualification of the Merger as a
"reorganization" as defined in Code Section 368(a). This opinion does not
address any other federal tax consequence or any state, local, or foreign tax
consequences that may result from the Merger or any other transaction (including
any transaction contemplated by the Agreement or undertaken in connection with
or in contemplation of the Merger).
This opinion has been delivered to you solely for the purpose of satisfying
the closing conditions set forth in Section 6.1(d) of the Agreement. We hereby
consent to the filing of this opinion as an annex to the proxy
statement/prospectus included as part of the Registration Statement. In giving
this consent, we do not thereby admit that we are in the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and Exchange Commission
thereunder, nor do we thereby admit that we are experts with respect to any part
of the Registration Statement within the meaning of the term "experts" as used
in the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
4
