As filed with the Securities and Exchange Commission on November 19, 2004
Registration No. 333-____
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
VERITAS SOFTWARE CORPORATION
Delaware | 77-0507675 | |
(State of incorporation) | (I.R.S. Employer Identification No.) |
350 Ellis Street
Mountain View, California 94043
(Address of Principal Executive Offices, including Zip Code)
Options granted under the KVault Software Limited Enterprise Management Incentive Scheme and assumed by VERITAS Software Corporation
(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:
William H. Hinman, Jr.
Simpson Thacher & Bartlett LLP
3330 Hillview Avenue
Palo Alto, California 94304
(650) 251-5000
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 (1) |
Share (2) |
Price (2) |
Registration Fee |
||||||||||||
Common Stock, $0.001 par value per
share, to be issued upon exercise of
options granted under the KVault
Software Limited Enterprise Management Incentive Scheme |
||||||||||||||||
1,300,000 | $ | 1.7902 | $ | 2,327,260.00 | $ | 294.86 | ||||||||||
TOTAL |
(2) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457 under the Securities Act of 1933. This price is based upon the actual exercise price of the options granted under the Plan referenced herein.
INTRODUCTION
The Registrant is filing this Registration Statement on Form S-8 to register shares of Common Stock issuable under the KVault Software Limited Enterprise Management Incentive Scheme pursuant to options assumed by the Registrant in connection with its acquisition of KVault Software Limited.
Part I. Information Required in the Section 10(a) Prospectus.
The document(s) containing the information specified in Part I will be sent or given to employees as specified by Rule 428 (b)(1) of the Securities Act of 1933, as amended (the Securities Act). Such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. Such documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
Part II. Information Required in the Registration Statement.
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission are incorporated by reference herein:
(a) | The Registrants annual report on Form 10-K for the year ended December 31, 2003, filed with the Commission on June 14, 2004. | |||
(b) | All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act) since December 31, 2003. | |||
(c) | The description of the Registrants Common Stock contained in the Registrants 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, as amended by the Registrants Registration Statement on Form 8-A/A filed on June 14, 1999. | |||
(d) | The description of the Registrants Rights Agreement contained in the Registrants Registration Statement on Form 8-A (File No. 000-26247), filed with the Commission under Section 12(g) of the Exchange Act on June 30, 1999. |
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. Unless expressly incorporated into this Registration Statement, a report furnished but not filed on Form 8-K shall not be incorporated by reference into this Registration Statement. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not Applicable
Item 5. Interests of Named Experts and Counsel
Not Applicable
Item 6. Indemnification of Directors and Officers
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Section 145 of the Delaware General Corporation Law allows for the indemnification of officers, directors and any corporate agents in terms sufficiently broad to indemnify such persons under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act. The Registrants amended and restated certificate of incorporation and amended and restated bylaws provide for indemnification of its directors, officers, employees and other agents to the extent and under the circumstances permitted by the Delaware General Corporation Law. The Registrant has also entered into agreements with its directors and executive officers that require it, among other things, to indemnify them against certain liabilities that may arise by reason of their status or service as directors and executive officers to the fullest extent permitted by Delaware law. In addition, the Registrant has purchased directors and officers liability insurance, which provides coverage against certain liabilities including liabilities under the Securities Act.
Item 7. Exemption from Registration Claimed
Not Applicable
Item 8. Exhibits.
4.01 | KVault Software Limited Enterprise Management Incentive Scheme | |||
4.02 | Form of Option Agreement under the KVault Software Limited Enterprise Management Incentive Scheme | |||
4.03 | Registrants Amended and Restated Certificate of Incorporation (incorporated herein by reference to Exhibit 3.01 of the Form 8-A filed with the Commission on June 2, 1999) | |||
4.04 | Registrants Certificate of Amendment of Amended and Restated Certificate of Incorporation (incorporated herein by reference to Exhibit 3.02 of the Form 8-A filed with the Commission on June 2, 1999) | |||
4.05 | Registrants Certificate of Amendment of Amended and Restated Certificate of Incorporation (incorporated herein by reference to Exhibit 4.03 of the Registrants Registration Statement on Form S-8 (File No. 333-38460) filed with the Commission on June 2, 2000) | |||
4.06 | Registrants Amended and Restated Bylaws (incorporated herein by reference to Exhibit 3.04 of the Registrants Registration Statement on Form S-4 (File No. 333-41318) filed with the Commission on September 28, 2000) | |||
5.01 | Opinion of Simpson Thacher & Bartlett LLP | |||
23.01 | Consent of Simpson Thacher & Bartlett LLP (included in Exhibit 5.01) | |||
23.02 | Consent of Independent Registered Public Accounting Firm | |||
24.01 | Power of Attorney (see the Signature Page to this Registration Statement on Form S-8) |
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 to include any material information with respect to
the plan of distribution not previously disclosed in this
registration statement: |
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(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act; |
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(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; |
||||
(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) 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 of 1934 that are incorporated by reference in the registration statement.
|
||||
(2) | That, for the purpose of determining any liability
under the Securities Act of 1933, 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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(b) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrants annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the 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. | |||
(c) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 of the registrant 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, 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 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 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 19th day of November, 2004.
VERITAS SOFTWARE CORPORATION |
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By: | /s/ Edwin J. Gillis | |||
Name: | Edwin J. Gillis | |||
Title: | Executive Vice President, Chief Financial Officer | |||
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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 or her true and lawful attorneys-in-fact, each with the power of substitution, for him or her in any and all capacities to sign any and all amendments to this Registration Statement on Form S-8 (including post-effective amendments), and to file the same, with 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 or she might or could do in person, hereby ratifying and confirming all that such attorneys-in-fact, or his or their substitute or substitutes, 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.
Signature |
Title |
Date |
||
Principal Executive Officer: |
||||
/s/ Gary L. Bloom Gary L. Bloom |
Chairman of the Board, President and Chief Executive Officer | November 19, 2004 | ||
Principal Financial and Principal Accounting Officer: |
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/s/ Edwin J. Gillis Edwin J. Gillis |
Executive Vice President, Finance and Chief Financial Officer | November 19, 2004 | ||
Additional Directors: |
||||
/s/ Geoffrey W. Squire Geoffrey W. Squire |
Vice Chairman of the Board | November 19, 2004 | ||
/s/
Michael Brown Michael Brown |
Director | November 19, 2004 | ||
/s/ Kurt J. Lauk Kurt J. Lauk |
Director | November 19, 2004 | ||
/s/ William Pade William Pade |
Director | November 19, 2004 | ||
/s/ David J. Roux David J. Roux |
Director | November 19, 2004 | ||
/s/ Carolyn M. Ticknor Carolyn M. Ticknor |
Director | November 19, 2004 | ||
/s/ V. Paul Unruh V. Paul Unruh |
Director | November 19, 2004 |
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Exhibit Index
4.01 | KVault Software Limited Enterprise Management Incentive Scheme | |||
4.02 | Form of Option Agreement under the KVault Software Limited Enterprise Management Incentive Scheme | |||
4.03 | Registrants Amended and Restated Certificate of Incorporation (incorporated herein by reference to Exhibit 3.01 of the Form 8-A filed with the Commission on June 2, 1999) | |||
4.04 | Registrants Certificate of Amendment of Amended and Restated Certificate of Incorporation (incorporated herein by reference to Exhibit 3.02 of the Form 8-A filed with the Commission on June 2, 1999) | |||
4.05 | Registrants Certificate of Amendment of Amended and Restated Certificate of Incorporation (incorporated herein by reference to Exhibit 4.03 of the Registrants Registration Statement on Form S-8 (File No. 333-38460) filed with the Commission on June 2, 2000) | |||
4.06 | Registrants Amended and Restated Bylaws (incorporated herein by reference to Exhibit 3.04 of the Registrants Registration Statement on Form S-4 (File No. 333-41318) filed with the Commission on September 28, 2000) | |||
5.01 | Opinion of Simpson Thacher & Bartlett LLP | |||
23.01 | Consent of Simpson Thacher & Bartlett LLP (included in Exhibit 5.01) | |||
23.02 | Consent of Independent Registered Public Accounting Firm | |||
24.01 | Power of Attorney (see the Signature Page to this Registration Statement on Form S-8) |
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