As filed with the Securities and Exchange Commission on July 3, 2003
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
VERITAS SOFTWARE CORPORATION
| Delaware (State of incorporation) |
77-0507675 (I.R.S. Employer Identification No.) |
350 Ellis Street
Mountain View, California 94043
(Address of Principal Executive Offices, including Zip Code)
Precise Software Solutions Ltd. 1995 Share Option and Incentive Plan
Precise Software Solutions Ltd. Amended and Restated 1998 Share Option and Incentive Plan
Precise Software Solutions Ltd. Stock Option Plan (f/k/a Savant Corporation Stock Option Plan)
(Full title of the plans)
Gary L. Bloom
Chairman of the Board, President and Chief Executive Officer
VERITAS Software Corporation
350 Ellis Street
Mountain View, California 94043
(650) 527-8000
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Michael S. Dorf, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
One Market, Spear Tower, Suite 3300
San Francisco, California 94105
(415) 947-2000
CALCULATION OF REGISTRATION FEE
| Amount | Proposed Maximum | Proposed Maximum | ||||||||||||||
| to be | Offering Price Per | Aggregate Offering | Amount of | |||||||||||||
| Title of Securities to be Registered | Registered | Share | Price | Registration Fee | ||||||||||||
Common Stock, $0.001 par value |
4,480,825 | (1 | ) | $20.69 | (2) | $ | 92,708,270 | (2) | $7,501 | |||||||
| (1) | Represents the aggregate number of shares of Common Stock subject to options assumed from Precise Software Solutions Ltd., an Israeli company, which the Registrant acquired on June 30, 2003. This registration statement shall also cover any additional shares of Common Stock which become issuable by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the Registrant’s outstanding shares of Common Stock. | |
| (2) | Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(h)(1) under the Securities Act of 1933 and based upon the weighted average per share exercise price of the options assumed by the Registrant. With respect to 15,616 shares of Common Stock subject to outstanding options granted under the Precise Software Solutions Ltd. 1995 Share Option and Incentive Plan, the Proposed Maximum Offering Price Per Share is equal to the weighted average exercise price of $1.12 per share. With respect to 4,455,029 shares of Common Stock subject to outstanding options granted under the Precise Software Solutions Ltd. Amended and Restated 1998 Share Option and Incentive Plan, the Proposed Maximum Offering Price Per Share is equal to the weighted average exercise price of $20.72 per share. With respect to 10,180 shares of Common Stock subject to outstanding options granted under the Precise Software Solutions Ltd. Stock Option Plan (f/k/a/ Savant Corporation Stock Option Plan), the Proposed Maximum Offering Price Per Share is equal to the weighted average exercise price of $35.44 per share. |
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(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). | |
| (b) | All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the annual report referred to in (a) above. | |
| (c) | The description of the Registrant’s Common Stock contained in the Registrant’s Registration Statement on Form 8-A (File No. 000-26247) filed with the Commission under Section 12(g) of the Exchange Act on June 2, 1999 (the “Form 8-A”), 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.
The Registrant’s certificate of incorporation includes a provision that eliminates the personal liability of its directors for monetary damages for breach of fiduciary duty as a director, to the fullest extent permitted by the Delaware General Corporation Law.
As permitted by the Delaware General Corporation Law, the bylaws of the Registrant provide that (i) the Registrant shall 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 shall 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 (iii) the rights conferred in the bylaws are not exclusive.
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.
Item 7. Exemption From Registration Claimed.
| Not Applicable. |
Item 8. Exhibits.
| 4.01 | Precise Software Solutions Ltd. 1995 Share Option and Incentive Plan | |
| 4.02 | Precise Software Solutions Ltd. Amended and Restated 1998 Share Option and Incentive Plan | |
| 4.03 | Precise Software Solutions Ltd. Stock Option Plan (f/k/a Savant Corporation Stock Option Plan) | |
| 4.04 | Registrant’s Amended and Restated Certificate of Incorporation (incorporated herein by reference to Exhibit 3.01 of the Form 8-A) | |
| 4.05 | 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) | |
| 4.06 | Registrant’s Certificate of Amendment of Amended and Restated Certificate of Incorporation (incorporated herein by reference to Exhibit 4.03 of the Registrant’s Registration Statement on Form S-8 (File No. 333-38460) filed with the Commission on June 2, 2000) | |
| 4.07 | Registrant’s Amended and Restated Bylaws (incorporated herein by reference to Exhibit 3.04 of the Registrant’s Registration Statement on Form S-4 (File No. 333-41318) filed with the Commission on September 28, 2000) | |
| 5.01 | Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation | |
| 23.01 | Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (included in Exhibit 5.01) | |
| 23.02 | Independent Auditors’ Consent | |
| 23.03 | Consent of Independent Auditors | |
| 24.01 | Power of Attorney (see page II-5) |
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; and |
| (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; |
(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; and
(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;
provided, however, that paragraphs (1)(i) and (1)(ii) 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 Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
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.
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 Mountain View, County of Santa Clara, State of California, on the 3rd day of July, 2003.
| VERITAS SOFTWARE CORPORATION | ||||
| By: | /s/ Gary L. Bloom | |||
| Gary L. Bloom Chairman of the Board, President and Chief Executive Officer |
||||
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person whose signature appears below constitutes and appoints Gary L. Bloom, Edwin J. Gillis and John F. Brigden, 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.
Principal Executive Officer:
| /s/ Gary L. Bloom Gary L. Bloom |
Chairman of the Board, President and Chief Executive Officer |
July 3, 2003 | |||
| Principal Financial and Principal Accounting Officer: | |||||
| /s/ Edwin J. Gillis Edwin J. Gillis |
Executive Vice President, Finance and Chief Financial Officer |
July 3, 2003 | |||
| Additional Directors: | |||||
| /s/ Geoffrey W. Squire Geoffrey W. Squire |
Vice Chairman of the Board | July 3, 2003 | |||
| /s/ Steven D. Brooks Steven D. Brooks |
Director | July 3, 2003 | |||
| /s/ Michael Brown Michael Brown |
Director | July 3, 2003 | |||
| /s/ Mark Leslie Mark Leslie |
Director | July 3, 2003 | |||
| /s/ Joseph D. Rizzi Joseph D. Rizzi |
Director | July 3, 2003 | |||
David J. Roux |
Director | ||||
| /s/ Paul Unruh Paul Unruh |
Director | July 3, 2003 | |||
| /s/ Fred van den Bosch Fred van den Bosch |
Director | July 3, 2003 | |||
EXHIBIT INDEX
| Exhibit No. | Description | |
| 4.01 | Precise Software Solutions Ltd. 1995 Share Option and Incentive Plan | |
| 4.02 | Precise Software Solutions Ltd. Amended and Restated 1998 Share Option and Incentive Plan | |
| 4.03 | Precise Software Solutions Ltd. Stock Option Plan (f/k/a Savant Corporation Stock Option Plan) | |
| 4.04 | Registrant’s Amended and Restated Certificate of Incorporation (incorporated herein by reference to Exhibit 3.01 of the Form 8-A) | |
| 4.05 | 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) | |
| 4.06 | Registrant’s Certificate of Amendment of Amended and Restated Certificate of Incorporation (incorporated herein by reference to Exhibit 4.03 of the Registrant’s Registration Statement on Form S-8 (File No. 333-38460) filed with the Commission on June 2, 2000) | |
| 4.07 | Registrant’s Amended and Restated Bylaws (incorporated herein by reference to Exhibit 3.04 of the Registrant’s Registration Statement on Form S-4 (File No. 333-41318) filed with the Commission on September 28, 2000) | |
| 5.01 | Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation | |
| 23.01 | Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (included in Exhibit 5.01) | |
| 23.02 | Independent Auditors’ Consent | |
| 23.03 | Consent of Independent Auditors | |
| 24.01 | Power of Attorney (see page II-5) |