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As filed with the Securities and Exchange Commission on July 3, 1996
Registration No. 33-
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VERITAS SOFTWARE CORPORATION
(Exact name of registrant as specified in its charter)
CALIFORNIA 94-2823068
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1600 PLYMOUTH STREET
MOUNTAIN VIEW, CALIFORNIA 94043
(Address of principal executive offices)
1993 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
CHRIS L. DIER, CHIEF FINANCIAL OFFICER
VERITAS SOFTWARE CORPORATION
1600 PLYMOUTH STREET
MOUNTAIN VIEW, CALIFORNIA 94043
(415) 335-8000
(Name, address and telephone number of agent for service)
COPIES TO:
Jacqueline A. Daunt, Esq.
Lynda M. Twomey, Esq.
Fenwick & West
Two Palo Alto Square, Suite 800
Palo Alto, California 94306
(415) 494-0600
CALCULATION OF REGISTRATION FEE
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Title of Amount Proposed Proposed Amount of
Securities to be to be Maximum Maximum Registration
Registered Registered Offering Aggregate Fee
Price Per Offering
Share Price
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Common Stock 200,000 (1) $38.625 (2) $7,725,000(2) $2,664
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(1) Additional Shares available for issuance under the 1993 Employee Stock
Purchase Plan.
(2) Estimated as of June 26, 1996 pursuant to Rule 457(c) solely for the
purpose of calculating the registration fee.
<PAGE>
VERITAS SOFTWARE CORPORATION
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
STATEMENT PURSUANT TO GENERAL INSTRUCTION E WITH RESPECT TO THE REGISTRATION OF
ADDITIONAL SECURITIES
Pursuant to General Instruction E, the contents of the Form S-8 Registration
Statement No. 33-74712 of VERITAS Software Corporation (the "REGISTRANT") filed
on February 1, 1994 with the Securities and Exchange Commission (the
"COMMISSION") is hereby incorporated by reference.
ITEM 5. EXPERTS.
The financial statements of Registrant appearing in Registrant's Annual
Report (Form 10-K) for the year ended December 31, 1995, have been audited by
Ernst & Young LLP, independent auditors, as set forth in their report thereon
included therein and incorporated herein by reference. Such financial
statements are, and audited financial statements to be included in subsequently
filed documents will be, incorporated herein in reliance upon the reports of
Ernst & Young LLP pertaining to such financial statements (to the extent covered
by consents filed with the Commission) given upon the authority of such firm as
experts in accounting and auditing.
ITEM 8. EXHIBITS.
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4.01 Registrant's 1993 Employee Stock Purchase Plan, as
amended and related agreements.
4.02 Registration Rights Agreement dated April 6, 1995 among
the Registrant and various investors (incorporated by
reference to Exhibit 4.01 of the Registrant's Form 10-Q
filed with the Commission for the quarterly period
ended March 31, 1995).
5.01 Opinion of Fenwick & West.
23.01 Consent of Fenwick & West (included in Exhibit 5.01).
23.02 Consent of Ernst & Young LLP, independent auditors.
24.01 Power of Attorney (see page 3).
[THE REST OF THIS PAGE HAS INTENTIONALLY BEEN LEFT BLANK]
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<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual and corporation
whose signature appears below constitutes and appoints Mark Leslie and Chris L.
Dier, and each of them, his or its true and lawful attorneys-in-fact and agents
with full power of substitution, for him or it and in his or its name, place and
stead, in any and all capacities, to sign any and all amendments to this
Registration Statement on Form S-8, and to file the same with all exhibits
thereto and all 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 and about the premises, as fully to all
intents and purposes as he or it might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them, or his
or their substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Santa Clara, State of California, on the 30th day of
June, 1996.
VERITAS Software Corporation
By: /s/ Mark Leslie
----------------------------------
Mark Leslie
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
PRINCIPAL EXECUTIVE OFFICER
AND DIRECTOR:
/s/ Mark Leslie
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Mark Leslie President, Chief Executive June 26, 1996
Officer and a Director
PRINCIPAL FINANCIAL OFFICER
AND ACCOUNTING OFFICER:
/s/ Chris L. Dier
- -----------------------------
Chris L. Dier Vice President of Finance, June 28, 1996
Treasurer, Chief Financial
Officer and Secretary
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<PAGE>
ADDITIONAL DIRECTORS:
/s/ Roel Pieper
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Roel Pieper Director June 28, 1996
/s/ Joseph D. Rizzi
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Joseph D. Rizzi Director June 28, 1996
/s/ Fred van den Bosch
- -----------------------------
Fred van den Bosch Director June 28, 1996
- -----------------------------
Steven Brooks Director
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<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page
----------- ----------- ----
4.01 Registrant's 1993 Employee Stock
Purchase Plan, as amended and related
agreements.
4.02 Registration Rights Agreement dated
April 6, 1995 among the Registrant and
various investors (incorporated by
reference to Exhibit 4.01 of the
Registrant's Form 10-Q filed with the
Commission for the quarterly period
ended March 31, 1995).
5.01 Opinion of Fenwick & West.
23.01 Consent of Fenwick & West (included in
Exhibit 5.01).
23.02 Consent of Ernst & Young LLP,
independent auditors.
24.01 Power of Attorney (see page 3).
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<PAGE>
EXHIBIT 4.01
Registrant's 1993 Employee Stock Purchase Plan, as amended, and related
agreements
<PAGE>
VERITAS SOFTWARE CORPORATION
1993 EMPLOYEE STOCK PURCHASE PLAN
Adopted by the Board of Directors on October 1, 1993,
Amended July 20, 1994 and Amended through April 17, 1996
1. ESTABLISHMENT OF PLAN
VERITAS Software Corporation (the "COMPANY") proposes to grant options for
purchase of the Company's Common Stock to eligible employees of the Company and
its Subsidiaries (as hereinafter defined) pursuant to this Employee Stock
Purchase Plan (this "PLAN"). For purposes of this Plan, "Parent Corporation"
and "Subsidiary" (collectively, "SUBSIDIARIES") shall have the same meanings as
"parent corporation" and "subsidiary corporation" in Sections 424(e) and 424(f),
respectively, of the Internal Revenue Code of 1986, as amended (the "CODE").
The Company intends the Plan to qualify as an "employee stock purchase plan"
under Section 423 of the Code (including any amendments to or replacements of
such section), and the Plan shall be so construed. Any term not expressly
defined in the Plan but defined for purposes of Section 423 of the Code shall
have the same definition herein. A total of 450,000 shares of the Company's
Common Stock is reserved for issuance under the Plan. Such number shall be
subject to adjustments effected in accordance with Section 14 of the Plan.
2. PURPOSES
The purpose of the Plan is to provide employees of the Company and
Subsidiaries designated by the Board of Directors of the Company (the "BOARD")
as eligible to participate in the Plan with a convenient means of acquiring an
equity interest in the Company through payroll deductions, to enhance such
employees' sense of participation in the affairs of the Company and
Subsidiaries, and to provide an incentive for continued employment.
3. ADMINISTRATION
This Plan may be administered by the Board or a committee appointed by the
Board (the "COMMITTEE"). If, at the time the Company registers under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), a majority of
the Board is not comprised of Disinterested Persons as defined in Rule 16b-3(d)
promulgated under the Exchange Act, the Board shall appoint a committee
consisting of at least two (2) members of the Board, each of whom is a
Disinterested Person. As used in this Plan, references to the "Committee" shall
mean either such committee or the Board if no committee has been established.
After registration of the Company under the Exchange Act, Board members who are
not Disinterested Persons may not vote on any matters affecting the
administration of this Plan, but any such member may be counted for determining
the existence of a quorum at any meeting of the Board. Subject to the
provisions of the Plan and the limitations of Section 423 of the Code or any
successor provision in the Code, all questions of interpretation or application
of the Plan shall be determined by the Board and its decisions shall be final
and binding upon all participants. Members of the Board shall receive no
compensation for their services in connection with the administration of the
Plan, other than standard fees as established from time to time by the Board for
services rendered by Board members serving on Board committees. All expenses
incurred in connection with the administration of the Plan shall be paid by the
Company.
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4. ELIGIBILITY
Any employee of the Company or the Subsidiaries is eligible to participate
in an Offering Period (as hereinafter defined) under the Plan except the
following:
(a) employees who are not employed by the Company or Subsidiaries on
the fifteenth (15th) day of the month before the beginning of such Offering
Period;
(b) employees who are customarily employed for less than 20 hours per
week;
(c) employees who are customarily employed for less than 5 months in
a calendar year;
(d) employees who, together with any other person whose stock would
be attributed to such employee pursuant to Section 424(d) of the Code, own stock
or hold options to purchase stock or who, as a result of being granted an option
under the Plan with respect to such Offering Period, would own stock or hold
options to purchase stock possessing 5 percent or more of the total combined
voting power or value of all classes of stock of the Company or any of its
Subsidiaries.
5. OFFERING DATES
The Offering Periods of the Plan (the "OFFERING PERIOD") shall be of twenty
four (24) months duration commencing on August 16 and February 16 of each year
and ending on the second February 15 and August 15, respectively, thereafter.
Each Offering Period shall consist of four (4) six-month purchase periods
(individually, a "PURCHASE PERIOD") during which payroll deductions of the
participants are accumulated under this Plan. The first business day of each
Offering Period is referred to as the "Offering Date". The last business day of
each Purchase Period is referred to as the "Purchase Date". The Board shall
have the power to change the duration of Offering Periods or Purchase Periods
with respect to future offerings without shareholder approval if such change is
announced at least fifteen (15) days prior to the scheduled beginning of the
first Offering Period or Purchase Period to be affected.
6. PARTICIPATION IN THE PLAN
Eligible employees may become participants in an Offering Period under the
Plan on the first Offering Date after satisfying the eligibility requirements by
delivering a subscription agreement to the Company's or Subsidiary's (whichever
employs such employee) treasury department (the "TREASURY DEPARTMENT") not later
than the 15th day of the month before such Offering Date unless a later time for
filing the subscription agreement authorizing payroll deductions is set by the
Board for all eligible employees with respect to a given Offering Period. An
eligible employee who does not deliver a subscription agreement to the Treasury
Department by such date after becoming eligible to participate in such Offering
Period shall not participate in that Offering Period or any subsequent Offering
Period unless such employee enrolls in the Plan by filing a subscription
agreement with the Treasury Department not later than the 15th day of the month
preceding a subsequent Offering Date. Once an employee becomes a participant in
an Offering Period, such employee will automatically participate in the Offering
Period commencing immediately following the last day of the prior Offering
Period unless the employee withdraws from the Plan or terminates further
participation in the Offering Period as set forth in Section 11 below. Such
participant is not required to file any additional subscription agreement
<PAGE>
in order to continue participation in the Plan. A participant in the Plan may
participate only in one Offering Period at any time.
7. GRANT OF OPTION ON ENROLLMENT
Enrollment by an eligible employee in the Plan with respect to an Offering
Period will constitute the grant (as of the Offering Date) by the Company to
such employee of an option to purchase on each Purchase Date in such Offering
Period up to that number of shares of Common Stock of the Company determined by
dividing the amount accumulated in such employee's payroll deduction account
during such Purchase Period by the lower of (i) eighty-five percent (85%) of the
fair market value of a share of the Company's Common Stock on the Offering Date
(the "ENTRY PRICE") or (ii) eighty-five percent (85%) of the fair market value
of a share of the Company's Common Stock on the Purchase Date; provided,
however, that the number of shares of the Company's Common Stock subject to any
option granted pursuant to this Plan shall not exceed the lesser of (a) the
maximum number of shares set by the Board pursuant to Section 10(c) below with
respect to each applicable Purchase Period, or (b) 200% of the number of shares
determined by using 85% of the fair market value of a share of the Company's
Common Stock on the Offering Date as the denominator. Fair market value of a
share of the Company's Common Stock shall be determined as provided in Section 8
hereof.
8. PURCHASE PRICE
The purchase price per share at which a share of Common Stock will be sold
in any Offering Period shall be 85 percent of the lesser of:
(a) The fair market value on the applicable Offering Date; or
(b) The fair market value on the applicable Purchase Date in such Offering
Period.
For purposes of the Plan, the term "fair market value" on a given date
shall mean the fair market value of the Company's Common Stock as determined by
the Committee from time to time in good faith. If a public market exists for
the shares, the fair market value shall be the average of the last reported bid
and asked prices for the Common Stock of the Company on the last trading day
prior to the date of determination, or, in the event the Common Stock of the
Company is listed on the Nasdaq National Market, the fair market value shall be
the average of the high and low prices of the Common Stock on the determination
date as quoted on the Nasdaq National Market and reported in THE WALL STREET
JOURNAL.
9. PAYMENT OF PURCHASE PRICE; CHANGES IN PAYROLL DEDUCTIONS; ISSUANCE OF
SHARES
(a) The purchase price of the shares is accumulated by regular payroll
deductions made during each Purchase Period. The deductions are made as a
percentage of the participant's compensation in one percent increments not less
than 2 percent nor greater than 10 percent, not to exceed $25,000 per year or
such lower limit set by the Committee. Compensation shall mean all W-2
compensation, including, but not limited to base salary, wages, commissions,
overtime, shift premiums and bonuses, plus draws against commissions; provided,
however, that for purposes of determining a participant's compensation, any
election by such participant to reduce his or her regular cash remuneration
under Sections 125 or 401(k) of the Code shall be treated as if the participant
did not make such election. Payroll deductions shall commence on the first
<PAGE>
payday following the Offering Date and shall continue to the end of the Offering
Period unless sooner altered or terminated as provided in the Plan.
(b) A participant may lower (but not increase) the rate of payroll
deductions during an Offering Period by filing with the Treasury Department a
new authorization for payroll deductions, in which case the new rate shall
become effective for the next payroll period commencing more than 15 days after
the Treasury Department's receipt of the authorization and shall continue for
the remainder of the Offering Period unless changed as described below. Such
change in the rate of payroll deductions may be made at any time during an
Offering Period, but not more than one change may be made effective during any
Purchase Period. A participant may increase or decrease the rate of payroll
deductions for any subsequent Offering Period by filing with the Treasury
Department a new authorization for payroll deductions not later than the 15th
day of the month before the beginning of such Offering Period.
(c) All payroll deductions made for a participant are credited to his or
her account under the Plan and are deposited with the general funds of the
Company. No interest accrues on the payroll deductions. All payroll deductions
received or held by the Company may be used by the Company for any corporate
purpose, and the Company shall not be obligated to segregate such payroll
deductions.
(d) On each Purchase Date, so long as the Plan remains in effect and
provided that the participant has not submitted a signed and completed
withdrawal form before that date which notifies the Company that the participant
wishes to withdraw from that Offering Period under the Plan and have all payroll
deductions accumulated in the account maintained on behalf of the participant as
of that date returned to the participant, the Company shall apply the funds then
in the participant's account to the purchase of whole shares of Common Stock
reserved under the option granted to such participant with respect to the
Offering Period to the extent that such option is exercisable on the Purchase
Date. The purchase price per share shall be as specified in Section 8 of the
Plan. Any cash remaining in a participant's account after such purchase of
shares shall be refunded to such participant in cash, without interest;
provided, however, that any amount remaining in such participant's account on a
Purchase Date which is less than the amount necessary to purchase a full share
of Common Stock of the Company shall be carried forward, without interest, into
the next Purchase Period or Offering Period, as the case may be. In the event
that the Plan has been oversubscribed, all funds not used to purchase shares on
the Purchase Date shall be returned to the participant, without interest. No
Common Stock shall be purchased on a Purchase Date on behalf of any employee
whose participation in the Plan has terminated prior to such Purchase Date.
(e) As promptly as practicable after the Purchase Date, the Company shall
arrange the delivery to each participant of a certificate representing the
shares purchased upon exercise of his option.
(f) During a participant's lifetime, such participant's option to purchase
shares hereunder is exercisable only by him or her. The participant will have
no interest or voting right in shares covered by his or her option until such
option has been exercised. Shares to be delivered to a participant under the
Plan will be registered in the name of the participant or in the name of the
participant and his or her spouse.
<PAGE>
10. LIMITATIONS ON SHARES TO BE PURCHASED
(a) No employee shall be entitled to purchase stock under the Plan at a
rate which, when aggregated with his or her rights to purchase stock under all
other employee stock purchase plans of the Company or any Subsidiary, exceeds
$25,000 in fair market value, determined as of the Offering Date (or such other
limit as may be imposed by the Code) for each calendar year in which the
employee participates in the Plan.
(b) No more than 200% of the number of shares determined by using 85% of
the fair market value of a share of the Company's Common Stock on the Offering
Date as the denominator may be purchased by a participant on any single Purchase
Date.
(c) No employee shall be entitled to purchase more than the Maximum Share
Amount (as defined below) on any single Purchase Date. Not less than thirty
days prior to the commencement of any Purchase Period, the Board may, in its
sole discretion, set a maximum number of shares which may be purchased by any
employee at any single Purchase Date (hereinafter the "MAXIMUM SHARE AMOUNT").
In no event shall the Maximum Share Amount exceed the amounts permitted under
Section 10(b) above. If a new Maximum Share Amount is set, then all
participants must be notified of such Maximum Share Amount not less than fifteen
days prior to the commencement of the next Purchase Period. Once the Maximum
Share Amount is set, it shall continue to apply with respect to all succeeding
Purchase Dates and Purchase Periods unless revised by the Board as set forth
above.
(d) If the number of shares to be purchased on a Purchase Date by all
employees participating in the Plan exceeds the number of shares then available
for issuance under the Plan, the Company will make a pro rata allocation of the
remaining shares in as uniform a manner as shall be practicable and as the Board
shall determine to be equitable. In such event, the Company shall give written
notice of such reduction of the number of shares to be purchased under a
participant's option to each participant affected thereby.
(e) Any payroll deductions accumulated in a participant's account which
are not used to purchase stock due to the limitations in this Section 10 shall
be returned to the participant as soon as practicable after the end of the
Purchase Period or Offering Period, as the case may be, without interest.
11. WITHDRAWAL
(a) Each participant may withdraw from an Offering Period under the Plan
by signing and delivering to the Treasury Department notice on a form provided
for such purpose. Such withdrawal may be elected at any time at least 15 days
prior to the end of a Purchase Period.
(b) Upon withdrawal from the Plan, the accumulated payroll deductions
shall be returned to the withdrawn participant, without interest, and his or her
interest in the Plan shall terminate. In the event a participant voluntarily
elects to withdraw from the Plan, he or she may not resume his or her
participation in the Plan during the same Offering Period, but he or she may
participate in any Offering Period under the Plan which commences on a date
subsequent to such withdrawal by filing a new authorization for payroll
deductions in the same manner as set forth above for initial participation in
the Plan.
<PAGE>
(c) A participant may participate in the current Purchase Period under an
Offering Period (the "CURRENT OFFERING PERIOD") and enroll in the Offering
Period commencing immediately after such Purchase Period (the "NEW OFFERING
PERIOD") by (i) withdrawing from participation in the Current Offering Period
effective as of the last day of a Purchase Period within that Offering Period
and (ii) enrolling in the New Offering Period. Such withdrawal and enrollment
shall be effected by filing with the Treasury Department at least 15 days prior
to the end of an Offering Period such form or forms as are provided for such
purposes.
12. TERMINATION OF EMPLOYMENT
Termination of a participant's employment for any reason, including
retirement, death or the failure of a participant to remain an eligible
employee, immediately terminates his or her participation in the Plan. In such
event, the payroll deductions credited to the participant's account will be
returned to him or her or, in the case of his or her death, to his or her legal
representative, without interest. For purposes of this Section 12, an employee
will not be deemed to have terminated employment or failed to remain in the
continuous employ of the Company in the case of sick leave, military leave, or
any other leave of absence approved by the Board; provided that such leave is
for a period of not more than ninety (90) days or reemployment upon the
expiration of such leave is guaranteed by contract or statute.
13. RETURN OF PAYROLL DEDUCTIONS
In the event a participant's interest in the Plan is terminated by
withdrawal, termination of employment or otherwise, or in the event the Plan is
terminated by the Board, the Company shall promptly deliver to the participant
all payroll deductions credited to his account. No interest shall accrue on the
payroll deductions of a participant in the Plan.
14. CAPITAL CHANGES
Subject to any required action by the stockholders of the Company, the
number of shares of Common Stock covered by each option under the Plan which has
not yet been exercised and the number of shares of Common Stock which have been
authorized for issuance under the Plan but have not yet been placed under option
(collectively, the "RESERVES"), as well as the price per share of Common Stock
covered by each option under the Plan which has not yet been exercised, shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split or the payment of a stock
dividend (but only on the Common Stock) or any other increase or decrease in the
number of shares of Common Stock effected without receipt of consideration by
the Company; provided, however, that conversion of any convertible securities of
the Company shall not be deemed to have been "effected without receipt of
consideration." Such adjustment shall be made by the Board, whose determination
shall be final, binding and conclusive. Except as expressly provided herein, no
issue by the Company of shares of stock of any class, or securities convertible
into shares of stock of any class, shall affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of shares of Common
Stock subject to an option.
In the event of the proposed dissolution or liquidation of the Company, the
Offering Period will terminate immediately prior to the consummation of such
proposed action, unless otherwise provided by the Board. The Board may, in the
exercise of its sole discretion in such instances, declare that the options
under the Plan shall terminate as of a date fixed by the Board and give each
participant the right to exercise his or her option as to all of the optioned
stock, including
<PAGE>
shares which would not otherwise be exercisable. In the event of a proposed
sale of all or substantially all of the assets of the Company, or the merger of
the Company with or into another corporation, each option under the Plan shall
be assumed or an equivalent option shall be substituted by such successor
corporation or a parent or subsidiary of such successor corporation, unless the
Board determines, in the exercise of its sole discretion and in lieu of such
assumption or substitution, that the participant shall have the right to
exercise the option as to all of the optioned stock. If the Board makes an
option exercisable in lieu of assumption or substitution in the event of a
merger or sale of assets, the Board shall notify the participant that the option
shall be fully exercisable for a period of twenty (20) days from the date of
such notice, and the option will terminate upon the expiration of such period.
The Board may, if it so determines in the exercise of its sole discretion,
also make provision for adjusting the Reserves, as well as the price per share
of Common Stock covered by each outstanding option, in the event that the
Company effects one or more reorganizations, recapitalizations, rights offerings
or other increases or reductions of shares of its outstanding Common Stock, or
in the event of the Company being consolidated with or merged into any other
corporation.
15. NONASSIGNABILITY
Neither payroll deductions credited to a participant's account nor any
rights with regard to the exercise of an option or to receive shares under the
Plan may be assigned, transferred, pledged or otherwise disposed of in any way
(other than by will, the laws of descent and distribution or as provided in
Section 22 hereof) by the participant. Any such attempt at assignment,
transfer, pledge or other disposition shall be without effect.
16. REPORTS
Individual accounts will be maintained for each participant in the Plan.
Each participant shall receive promptly after the end of each Purchase Period a
report of his or her account setting forth the total payroll deductions
accumulated, the number of shares purchased, the per share price thereof and the
remaining cash balance, if any, carried forward to the next Purchase Period or
Offering Period, as the case may be.
17. NOTICE OF DISPOSITION
Each participant shall notify the Company if the participant disposes of
any of the shares purchased in any Offering Period pursuant to this Plan if such
disposition occurs within two years from the Offering Date or within one year
from the Purchase Date on which such shares were purchased (the
"NOTICE PERIOD"). Unless such participant is disposing of any of such shares
during the Notice Period, such participant shall keep the certificates
representing such shares in his or her name (and not in the name of a nominee)
during the Notice Period. The Company may, at any time during the Notice
Period, place a legend or legends on any certificate representing shares
acquired pursuant to the Plan requesting the Company's transfer agent to notify
the Company of any transfer of the shares. The obligation of the participant to
provide such notice shall continue notwithstanding the placement of any such
legend on the certificates.
<PAGE>
18. NO RIGHTS TO CONTINUED EMPLOYMENT
Neither this Plan nor the grant of any option hereunder shall confer any
right on any employee to remain in the employ of the Company or any Subsidiary,
or restrict the right of the Company or any Subsidiary to terminate such
employee's employment.
19. EQUAL RIGHTS AND PRIVILEGES
All eligible employees shall have equal rights and privileges with respect
to the Plan so that the Plan qualifies as an "employee stock purchase plan"
within the meaning of Section 423 or any successor provision of the Code and the
related regulations. Any provision of the Plan which is inconsistent with
Section 423 or any successor provision of the Code shall, without further act or
amendment by the Company or the Board, be reformed to comply with the
requirements of Section 423. This Section 19 shall take precedence over all
other provisions in the Plan.
20. NOTICES
All notices or other communications by a participant to the Company under
or in connection with the Plan shall be deemed to have been duly given when
received in the form specified by the Company at the location, or by the person,
designated by the Company for the receipt thereof.
21. TERM; SHAREHOLDER APPROVAL
This Plan shall become effective on the date that it is adopted by the
Board of the Company. This Plan shall be approved by the stockholders of the
Company, in any manner permitted by applicable corporate law, within twelve
months before or after the date this Plan is adopted by the Board. No purchase
of shares pursuant to the Plan shall occur prior to such shareholder approval.
Thereafter, no later than twelve (12) months after the Company becomes subject
to Section 16(b) of the Exchange Act, the Company will comply with the
requirements of Rule 16b-3 with respect to shareholder approval. The Plan shall
continue until the earlier to occur of termination by the Board, issuance of all
of the shares of Common Stock reserved for issuance under the Plan, or one (1)
year from the adoption of the Plan by the Board (unless extended by the Board
for a period of up to ten (10) years from the adoption date.)
22. DESIGNATION OF BENEFICIARY
(a) A participant may file a written designation of a beneficiary who is
to receive any shares and cash, if any, from the participant's account under the
Plan in the event of such participant's death subsequent to the end of a
Purchase Period but prior to delivery to him of such shares and cash. In
addition, a participant may file a written designation of a beneficiary who is
to receive any cash from the participant's account under the Plan in the event
of such participant's death prior to a Purchase Date.
(b) Such designation of beneficiary may be changed by the participant at
any time by written notice. In the event of the death of a participant and in
the absence of a beneficiary validly designated under the Plan who is living at
the time of such participant's death, the Company shall deliver such shares or
cash to the executor or administrator of the estate of the participant, or if no
such executor or administrator has been appointed (to the knowledge of the
Company), the Company, in its discretion, may deliver such shares or cash to the
spouse or to
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any one or more dependents or relatives of the participant, or if no spouse,
dependent or relative is known to the Company, then to such other person as the
Company may designate.
23. CONDITIONS UPON ISSUANCE OF SHARES; LIMITATION ON SALE OF SHARES
Shares shall not be issued with respect to an option unless the exercise of
such option and the issuance and delivery of such shares pursuant thereto shall
comply with all applicable provisions of law, domestic or foreign, including,
without limitation, the Securities Act of 1933, as amended, the Exchange Act,
the rules and regulations promulgated thereunder, and the requirements of any
stock exchange upon which the shares may then be listed, and shall be further
subject to the approval of counsel for the Company with respect to such
compliance.
24. APPLICABLE LAW
The Plan shall be governed by the substantive laws (excluding the conflict
of laws rules) of the State of California.
25. AMENDMENT OR TERMINATION OF THE PLAN
The Board may at any time amend, terminate or extend the term of the Plan,
except that any such termination cannot affect options previously granted under
the Plan, nor may any amendment make any change in an option previously granted
which would adversely affect the right of any participant, nor may any amendment
be made without approval of the stockholders of the Company obtained in
accordance with Section 21 hereof within 12 months of the adoption of such
amendment (or earlier if required by Section 21) if such amendment would:
(a) increase the number of shares that may be issued under the Plan;
(b) change the designation of the employees (or class of employees)
eligible for participation in the Plan; or
(c) constitute an amendment for which shareholder approval is required in
order to comply with Rule 16b-3 (or any successor rule) of the Exchange Act.
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EXHIBIT 5.01
Opinion of Fenwick & West
<PAGE>
EXHIBIT 5.01
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
Telephone (415) 494-0600
Facsimile (415) 494-1417
July 3, 1996
VERITAS Software Corporation
1600 Plymouth Street
Mountain View, CA 94043
Re: Registration Statement on Form S-8
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Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
(the "REGISTRATION STATEMENT") to be filed by you with the Securities and
Exchange Commission on or about July 3, 1996 in connection with the registration
under the Securities Act of 1933, as amended, of an additional 200,000 shares of
your Common Stock (the "STOCK") that may be issued and sold by you pursuant to
purchase rights granted to your employees under your 1993 Employee Stock
Purchase Plan (the "PLAN").
As your counsel, we have examined the Plan and the proceedings taken by you
in connection with the amendment of the Plan to add the Stock being registered
pursuant to the Registration Statement.
It is our opinion that the additional 200,000 shares of Stock that may be
issued and sold by you upon the exercise of purchase rights granted under the
Plan, when issued and sold in accordance with the Plan and the purchase rights
granted thereunder, and in the manner referred to in the relevant Prospectus
associated with the Registration Statement, will be legally issued, fully paid
and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement and any amendments thereto.
Very truly yours,
/s/ Fenwick & West LLP
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Fenwick & West LLP
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EXHIBIT 23.02
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-8) pertaining to the 1993 Employee Stock Purchase
Plan of VERITAS Software Corporation and to the incorporation by reference
therein of our report dated February 5, 1996 except for Note 9, as to which the
date is March 27, 1996, with respect to the consolidated financial statements
and schedule of VERITAS Software Corporation included in its Annual Report (Form
10-K) for the year ended December 31, 1995, filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
San Jose, California
June 28, 1996
