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EXHIBIT 9.01
FORM OF
VERITAS VOTING AGREEMENT
This Voting Agreement (this "VOTING AGREEMENT") is made and entered into
as of January 13, 1997 (the "EFFECTIVE DATE") between OpenVision Technologies,
Inc., a Delaware corporation ("OPENVISION") and ______________________
("SHAREHOLDER").
RECITALS
A. This Voting Agreement is entered into pursuant to that certain
Agreement and Plan of Reorganization dated as of January 13, 1997, as such may
be amended (the "PLAN OF REORGANIZATION"), entered into by and among VERITAS
Software Corporation, a California corporation ("VERITAS"), VERITAS Software
Corporation, a Delaware corporation ("NEWCO") and OpenVision. The Plan of
Reorganization provides for the formation of a Delaware corporation ("SUB"), a
wholly owned subsidiary of Newco, and the statutory merger of Sub with and into
OpenVision (the "MERGER"), all pursuant to the terms and conditions of the Plan
of Reorganization and the Agreement of Merger to be entered into between Sub and
OpenVision in the form attached to the Plan of Reorganization (the "AGREEMENT OF
MERGER"). The Plan of Reorganization and the Agreement of Merger are
collectively referred to herein as the "MERGER AGREEMENTS." Capitalized terms
used herein and not defined herein shall have the meanings that such terms have
in the Plan of Reorganization.
B. The Merger Agreements provide for the conversion of all of the issued
and outstanding stock of OpenVision at the Effective Time of the Merger into
shares of Newco's Common Stock, all as more particularly set forth in the Plan
of Reorganization.
C. As a condition to the willingness of OpenVision to enter into the Plan
of Reorganization, OpenVision has required that Shareholder agree, and in order
to induce OpenVision to enter into the Plan of Reorganization Shareholder has
agreed, to enter into this Voting Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. VOTING OF VERITAS SECURITIES
1.1 VERITAS Securities. Attachment 1 hereto sets forth all shares of
VERITAS capital stock and any other securities of VERITAS owned by Shareholder,
including all securities of VERITAS as to which Shareholder has sole or shared
voting or investment power, and all rights, options and warrants to acquire
shares of capital stock or other securities of VERITAS granted to or held by
Shareholder (such shares of VERITAS capital stock, other securities of VERITAS
and rights, options and warrants to acquire shares of VERITAS capital stock and
other securities of VERITAS are hereinafter collectively referred to as "VERITAS
STOCK"). As used herein, the term "NEW VERITAS SECURITIES" means, collectively,
any and all shares of VERITAS capital stock, other securities of VERITAS and
rights, options and warrants to acquire shares of VERITAS capital stock and
other securities of VERITAS that Shareholder may purchase or otherwise acquire
any interest in (whether of record or beneficially), on and after the Effective
Date of this Voting Agreement and prior to the Expiration Date (as defined
below). All New VERITAS Securities will be subject to the terms of this Voting
Agreement to the same
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extent and in the same manner as if they were VERITAS Stock. The VERITAS Stock
and the New VERITAS Securities shall be collectively referred to herein as the
"VERITAS SECURITIES". As used herein, the term "EXPIRATION DATE" means the
earliest to occur of (i) the closing, consummation and effectiveness of the
Merger, or (ii) such time as the Plan of Reorganization is terminated in
accordance with its terms.
1.2 Voting Agreement. Shareholder hereby agrees with OpenVision that,
prior to the Expiration Date, at any meeting of the shareholders of VERITAS,
however called, and in any written action by consent of shareholders of VERITAS,
unless otherwise directed in writing by OpenVision, Shareholder shall vote the
VERITAS Securities:
(i) in favor of the Merger, the execution and delivery by VERITAS of the
Plan of Reorganization and the adoption and approval of the terms thereof and in
favor of each of the other actions contemplated by the Plan of Reorganization
and any action required in furtherance hereof and thereof;
(ii) against any action or agreement that would result in a breach of any
representation, warranty, covenant or obligation of VERITAS in the Plan of
Reorganization; and
(iii) against the following actions (other than those actions that relate
to the Merger and the transactions contemplated by the Plan of Reorganization):
(A) any merger, consolidation or other business combination involving VERITAS or
any subsidiary of VERITAS with any party other than OpenVision or its affiliates
that would prevent or preclude the Merger with OpenVision; (B) any sale, lease
or transfer of more than any significant part of the assets of VERITAS or any
subsidiary of VERITAS to any party other than OpenVision or its affiliates
(except in the ordinary course of business); (C) any reorganization,
recapitalization, dissolution or liquidation of VERITAS or any subsidiary of
VERITAS; (D) any change in a majority of the board of directors of VERITAS; (E)
any amendment to the VERITAS Articles of Incorporation; (F) any material change
in the capitalization of VERITAS or VERITAS's corporate structure; or (G) any
other action which is intended, or could reasonably be expected to, impede,
interfere with, delay, postpone, discourage or adversely affect the Merger or
any of the other transactions contemplated by the Plan of Reorganization
Agreement or this Voting Agreement.
Prior to the Expiration Date, Shareholder shall not enter into any
agreement or understanding with any person to vote or give instructions in any
manner inconsistent with clause "(i)", "(ii)" or "(iii)" of the preceding
sentence.
1.3 Proxy; Further Assurances.
(i) Contemporaneously with the execution of this Voting Agreement,
Shareholder shall deliver to OpenVision a proxy in the form attached hereto as
Attachment 2, which shall be irrevocable to the fullest extent permitted by law,
with respect to the VERITAS Securities (the "PROXY").
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(ii) Shareholder shall perform such further acts and execute such further
documents and instruments as may reasonably be required to vest in OpenVision
the power to carry out and give effect to the provisions of this Voting
Agreement.
SECTION 2. WAIVER OF APPRAISAL RIGHTS
Shareholder hereby waives any rights of appraisal and any dissenters'
rights that Shareholder may have in connection with the Merger.
SECTION 3. NO SOLICITATION
Shareholder covenants and agrees with OpenVision that, during the period
commencing on the date of this Voting Agreement and ending on the Expiration
Date, Shareholder shall not, directly or indirectly, (i) solicit or initiate
discussions or engage in negotiations with any person other than OpenVision or
take any action intended, designed or reasonably likely to facilitate the
efforts of any person, other than OpenVision, relating to the possible
acquisition of VERITAS (whether by way of merger, purchase of its capital stock,
purchase of assets or otherwise) or any material portion of its capital stock or
assets ("ACQUISITION PROPOSAL"), (ii) furnish any nonpublic information
regarding VERITAS to any person in connection with or in response to an
Acquisition Proposal or potential Acquisition Proposal; (iii) engage in
discussions with any person with respect to any Acquisition Proposal; (iv)
approve, endorse or recommend any Acquisition Proposal; or (v) enter into any
letter of intent or other similar document or any contract contemplating or
otherwise relating to any Acquisition Proposal. Shareholder shall immediately
cease any existing discussions with any persons other than OpenVision that
relate to any Acquisition Proposal.
SECTION 4. OBLIGATIONS AS A DIRECTOR AND/OR OFFICER OF VERITAS
If at any time prior to the Expiration Date Shareholder or a
representative of Shareholder is a member of the Board of Directors of
VERITAS ("Director") or an officer of VERITAS, nothing in this Agreement
shall limit or restrict the Director or officer in acting in his capacity as
a Director or officer, as the case may be, of VERITAS and in the exercise of
his fiduciary duties and responsibilities in such capacity, it being agreed
and understood that this Agreement shall apply to the Shareholder solely in
his or its capacity as a shareholder and shall not apply to the Director's or
officer's actions, judgments or decisions as a Director or officer of
VERITAS.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SHAREHOLDER
5.1 Representations, Warranties and Covenants of Shareholder.
Shareholder represents, warrants and covenants as follows:
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(a) Authority. Shareholder has full power and authority to enter into,
execute, deliver and perform Shareholder's obligations under this Voting
Agreement and to make the representations, warranties and covenants herein
contained.
(b) VERITAS Securities Owned. Except as otherwise disclosed in the VERITAS
Disclosure Letter, at the date hereof, all the VERITAS Stock owned by
Shareholder are, and at all times until and through the Expiration Date all the
VERITAS Securities owned by Shareholder will be, free and clear of any rights of
first refusal, co-sale rights, security interests, liens, pledges, claims,
options, charges or other encumbrances.
(c) Transfer Restrictions on VERITAS Securities. Shareholder agrees with
VERITAS not to sell, transfer, encumber or dispose of, or offer to sell,
transfer, encumber or dispose of any VERITAS Securities until the Expiration
Date, and at such time, only as agreed pursuant to the terms hereof.
(d) Further Assurances. Shareholder agrees to execute and deliver
any additional documents reasonably necessary or desirable, in the opinion of
OpenVision, to carry out the purposes and intent of this Voting Agreement.
SECTION 6. MISCELLANEOUS
6.1 Notices. Any notice or other communication required or permitted to be
given under this Voting Agreement will be in writing, will be delivered
personally, by telecopier (with a hard copy also mailed), or by registered or
certified mail, postage prepaid and will be deemed given upon delivery, if
delivered personally, one business day after transmission by telecopier with
confirmation of receipt, or three (3) days after deposit in the mails, if
mailed, to the following addresses:
(i) If to OpenVision:
OpenVision Technologies, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
With a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(ii) If to Shareholder:
To the address for notice for such Shareholder set forth on
Attachment 1 hereto,
With a copy to:
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▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Fenwick & West LLP
Two ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or to such other address as a party may have furnished to the other
parties in writing pursuant to this Section 6.1.
6.2 Termination. This Voting Agreement shall be terminated and shall be of
no further force and effect upon the termination of the Plan of Reorganization
pursuant to its terms.
6.3 Counterparts. This Voting Agreement may be executed in any number of
counterparts, each of which will be an original as regards any party whose
signature appears thereon and all of which together will constitute one and the
same instrument. This Voting Agreement will become binding when one or more
counterparts hereof, individually or taken together, will bear the signatures of
all parties reflected hereon as signatories.
6.4 Assignment; Binding Upon Successors and Assigns. Neither party hereto
may assign any of its rights or obligations hereunder without the prior written
consent of the other party hereto. This Voting Agreement will be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
6.5 Waiver and Amendment. The waiver by a party of any breach hereof or
default in the performance hereof will not be deemed to constitute a waiver of
any other default or any succeeding breach or default. This Voting Agreement may
be amended by the parties hereto upon the execution and delivery of a written
agreement executed by the parties hereto.
6.6 Governing Law. The internal laws of the State of Delaware
(irrespective of its choice of law principles) will govern the validity of this
Voting Agreement, the construction of its terms, and the interpretation and
enforcement of the rights and duties of the parties hereto. Any litigation or
other dispute resolution proceeding among the parties relating to this Voting
Agreement will take place in San Mateo, Santa ▇▇▇▇▇ or San Francisco County,
California, The parties consent to the personal jurisdiction of and the venue in
the state and federal courts within such counties.
6.7 Severability. If any term, provision, covenant or restriction of this
Voting Agreement (or of the Plan of Reorganization) is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Voting Agreement (or
of the Plan of Reorganization, as the case may be) will remain in full force and
effect and will in no way be affected, impaired or invalidated. The parties
further agree to replace such invalid or unenforceable term with a valid and
enforceable provision that will achieve, to the greatest extent possible, the
economic, business and other purposes of the invalid or unenforceable provision.
6.8 Construction of Agreement. This Voting Agreement has been negotiated
by the respective parties hereto and their attorneys and the language hereof
will not be construed for or
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against either party. A reference to a Section will mean a Section in this
Voting Agreement unless otherwise explicitly set forth. The titles and headings
herein are for reference purposes only and will not in any manner limit the
construction of this Voting Agreement which will be considered as a whole.
6.9 Attorneys' Fees. Should suit be brought to enforce or interpret any
part of this Voting Agreement, the prevailing party will be entitled to recover,
as an element of the costs of suit and not as damages, reasonable attorneys'
fees to be fixed by the court (including without limitation, costs, expenses and
fees on any appeal). The prevailing party will be entitled to recover its costs
of suit, regardless of whether such suit proceeds to final judgment.
6.10 Specific Performance; Injunctive Relief. The parties hereto
acknowledge that OpenVision will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
Shareholder set forth herein. Therefore it is agreed that, in addition to any
other remedies that may be available to OpenVision upon any such violation,
OpenVision shall have the right to enforce such covenants and agreements by
specific performance, injunctive relief or by any other means available to
OpenVision at law or in equity.
6.11 Partnership. OpenVision agrees that if Stockholder is a limited
partnership, Stockholder's general and limited partners shall in no event be
liable for any obligations or liabilities of Stockholder under this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Voting Agreement
as of the date first set forth above.
OPENVISION TECHNOLOGIES, INC., SHAREHOLDER:
a Delaware corporation
By:
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Name: Name:
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Title: Title:
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[SIGNATURE PAGE TO VERITAS VOTING AGREEMENT]
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ATTACHMENT 1
VERITAS STOCK
Shareholder's Address for Notice:
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----------------------------------
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Number of shares of VERITAS
capital stock beneficially
owned by the undersigned:
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Number of options, warrants
or other convertible securities
convertible into VERITAS capital
stock beneficially owned by
the undersigned:
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ATTACHMENT 2
FORM OF PROXY
IRREVOCABLE PROXY
The undersigned shareholder of VERITAS Software Corporation, a California
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and OpenVision Technologies,
Inc., a Delaware corporation ("OpenVision"), and each of them, the attorneys and
proxies of the undersigned with full power of substitution and resubstitution,
to the full extent of the undersigned's rights with respect to (i) the shares of
capital stock of the Company owned by the undersigned as of the date of this
proxy, which shares are specified on the final page of this proxy, and (ii) any
and all other shares of capital stock of the Company which the undersigned may
acquire after the date hereofuntil such time as this Proxy terminates in
accordance with its terms. (The shares of the capital stock of the Company
referred to in clauses (i) and (ii) of the immediately preceding sentence are
collectively referred to as the "Shares.") Upon the execution hereof, all prior
proxies given by the undersigned with respect to any of the Shares are hereby
revoked, and no subsequent proxies will be given with respect to any of the
Shares.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with the Voting Agreement, dated as of the date hereof, between
OpenVision and the undersigned (the "Voting Agreement"), and is granted in
consideration of OpenVision entering into the Agreement and Plan of
Reorganization, dated as of the date hereof, among OpenVision, Parent, and the
Company (the "Reorganization Agreement"). Capitalized terms used but not
otherwise defined in this proxy have the meanings ascribed to such terms in the
Reorganization Agreement.
The attorneys and proxies named above will be empowered, and may exercise
this proxy, to vote the Shares at any time until the earlier to occur of the
valid termination of the Reorganization Agreement or the Effective Time at any
meeting of the shareholders of the Company, however called, or in any written
action by consent of shareholders of the Company:
(i) in favor of the Merger, the execution and delivery by the Company of
the Plan of Reorganization and the adoption and approval of the terms thereof
and in favor of each of the other actions contemplated by the Plan of
Reorganization and any action required in furtherance hereof and thereof;
(ii) against any action or agreement that would result in a breach of any
representation, warranty, covenant or obligation of the Company in the Plan of
Reorganization; and
(iii) against the following actions (other than those actions that relate
to the Merger and the transactions contemplated by the Plan of Reorganization):
(A) any merger, consolidation or other business combination involving the
Company or any subsidiary of the Company with any party other than OpenVision or
its affiliates that would prevent or preclude the Merger with OpenVision; (B)
any sale, lease or transfer of more than any significant part of the assets of
the
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Company or any subsidiary of the Company to any party other than OpenVision
or its affiliates (except in the ordinary course of business); (C) any
reorganization, recapitalization, dissolution or liquidation of the Company or
any subsidiary of the Company; (D) any change in a majority of the board of
directors of the Company; (E) any amendment to the Company Articles of
Incorporation; (F) any material change in the capitalization of the Company or
the Company's corporate structure except as contemplated by the Reorganization
Agreement; or (G) any other action which is intended, or could reasonably be
expected to, impede, interfere with, delay, postpone, discourage or adversely
affect the Merger or any of the other transactions contemplated by the
Reorganization Agreement or the Voting Agreement.
Prior to the Expiration Date (as such term is defined in the Voting
Agreement; such term is used hereafter with the same definition), at any meeting
of the shareholders of the Company, the attorneys and proxies named above will
be empowered, and may exercise this proxy, to vote the Shares in their
discretion with respect to (i) any Acquisition Proposal (as such term is defined
in the Voting Agreement) and any related transaction or agreement and (ii) any
action which is intended, or could reasonably be expected, to facilitate the
consummation of any Acquisition Proposal.
The undersigned shareholder may vote the Shares on all other matters. This
proxy shall be binding upon the heirs, successors and assigns of the undersigned
(including any transferee of any of the Shares).
Any obligation of the undersigned hereunder shall be binding upon the
heirs, successors and assigns of the undersigned (including any transferee of
any of the Shares).
This proxy shall terminate upon the Expiration Date.
Dated: January 13, 1997
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Name:
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Number of Shares of Company
Common Stock:
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