EXHIBIT 4.01
AMENDMENT TO THE RIGHTS AGREEMENT
THIS AMENDMENT TO THE RIGHTS AGREEMENT (this "Amendment"), dated as of
December 15, 2004, is made by and between VERITAS Software Corporation, a
Delaware corporation (the "Company"), and Mellon Investor Services LLC (formerly
known as ChaseMellon Shareholder Services, L.L.C.), a New Jersey limited
liability company, as Rights Agent (the "Rights Agent"). The Company and the
Rights Agent may be individually referred to herein as a "Party" and,
collectively, as the "Parties."
Background
A. The Parties entered into a Rights Agreement, dated as of June 16,
1999 (the "Rights Agreement"). Capitalized terms not otherwise defined herein
shall have the meaning ascribed to such terms in the Rights Agreement.
B. The Company, Symantec Corporation, a Delaware corporation
("Parent"), and Carmel Acquisition Corp., a Delaware corporation and a wholly
owned subsidiary of Parent ("Sub"), are entering into an Agreement and Plan of
Reorganization, dated as of the date hereof (as amended or supplemented from
time to time, the "Merger Agreement"), pursuant to which Sub, upon the terms and
subject to the conditions set forth therein, shall be merged with and into the
Company with the Company surviving the merger as a wholly owned subsidiary of
Parent.
C. The Board of Directors of the Company has determined by resolution
that an amendment to the Rights Agreement as set forth herein is advisable and
in the best interests of the Company and its stockholders.
D. Pursuant to Section 27 of the Rights Agreement, from time to time
the Company may, and the Rights Agent shall if the Company directs, from time to
time supplement and amend the Rights Agreement and the Company has so directed
the Rights Agent to join this Amendment.
Terms
In consideration of the mutual covenants contained herein and in the
Rights Agreement and intending to be legally bound hereby, the Parties agree as
follow:
1. Amendment of Section 1. Section 1 of the Rights Agreement is
hereby supplemented and amended to add the following definitions in the
appropriate alphabetical locations:
"Merger" shall mean the "Merger" as such term is defined
in the Merger Agreement.
"Merger Agreement" shall mean the Agreement and Plan of
Reorganization, dated as of December 15, 2004, by and among the
Company, Parent and Sub, as amended or supplemented from time to time.
"Parent" shall mean Symantec Corporation, a Delaware
corporation.
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"Sub" shall mean Carmel Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of Parent.
2. Amendment of Definition of "Acquiring Person". The definition
of "Acquiring Person" in Section 1(a) of the Rights Agreement is hereby
supplemented and amended by adding the following at the end thereof:
"(D) neither Parent, Sub nor any of their
respective Affiliates or Associates shall be deemed to be an Acquiring
Person solely as a result of the approval, execution, delivery or
performance of the Merger Agreement or the consummation of the Merger
or any of the other transactions contemplated thereby."
3. Amendment of Definition of "Shares Acquisition Date". The
definition of "Shares Acquisition Date" in Section 1(p) of the Rights Agreement
is supplemented and amended by inserting the following sentence at the end
thereof:
"Notwithstanding anything in this Agreement to the contrary, a Shares
Acquisition Date shall not be deemed to have occurred solely as the
result of the public announcement, approval, execution, delivery or
performance of the Merger Agreement or the consummation of the Merger
or any of the other transactions contemplated thereby."
4. Amendment to Section 3(a). Section 3(a) of the Rights
Agreement is hereby supplemented and amended by inserting the following sentence
immediately after the last sentence thereof:
"Notwithstanding anything in this Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred solely by reason
of the public announcement, approval, execution, delivery or
performance of the Merger Agreement or the consummation of the Merger
or any of the other transactions contemplated thereby."
5. Amendment to Section 7(a). Section 7(a) of the Rights
Agreement is hereby supplemented and amended by deleting the word "or" that
immediately precedes clause (iii) and inserting the following clause at the end
of such Section 7(a):
"or (iv) immediately prior to the Effective Time (as defined in the
Merger Agreement)"
6. Amendment to Section 25(a). Section 25(a) of the Rights
Agreement is hereby supplemented and amended by inserting the following sentence
immediately after the last sentence thereof:
"Notwithstanding anything in this Agreement to the contrary, in no
event shall the provisions of this Section 25 apply to the public
announcement, approval, execution, delivery or performance of the
Merger Agreement or the
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consummation of the Merger or any of the other transactions
contemplated thereby."
7. Amendment to Section 26. Section 26 of the Rights Agreement
is hereby supplemented and amended by deleting the addresses of the Company and
the Rights Agent set forth therein and replacing them with the following,
respectively:
"VERITAS Software Corporation
000 Xxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Corporate Secretary"
Mellon Investor Services LLC
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Xx."
8. Waiver of Notice(s). The Rights Agent and the Company hereby
waive any notice requirement(s) under the Rights Agreement pertaining to the
matters covered by this Amendment.
9. Other Provisions Unaffected. This Amendment shall be deemed
to be in full force and effect immediately prior to the execution and delivery
of the Merger Agreement. Except as expressly modified herein, all arrangements,
agreements, terms, conditions and provisions of the Rights Agreement remain in
full force and effect, and this Amendment and the Rights Agreement, as hereby
modified, shall constitute one and the same instrument.
10. Miscellaneous.
a. Counterparts. This Amendment may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
b. Governing Law. This Amendment, the Rights Agreement, each
Right and each Right Certificate issued hereunder or thereunder shall be deemed
to be a contract made under the laws of the State of Delaware and for all
purposes shall be governed by and construed and in accordance with the laws of
such State applicable to contracts to be made and performed entirely within such
State.
c. Further Assurances. Each Party shall cooperate and take such
action as may be reasonably requested by another Party in order to carry out the
provisions and purposes of this Amendment, the Rights Agreement, and the
transactions contemplated hereunder and/or thereunder.
d. Descriptive Headings. Descriptive headings of the several
Sections of this Amendment and the Rights Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof or thereof.
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e. Entire Agreement. This Amendment and the Rights Agreement,
and all of the provisions hereof and thereof, shall be binding upon and inure to
the benefit of the Parties and their respective successors and permitted assigns
and executors, administrators and heirs. This Amendment, together with the
Rights Agreement, sets forth the entire agreement and understanding among the
Parties as to the subject matter hereof and merges with and supercedes all prior
discussions and understandings of any and every nature among them. Without
limiting the foregoing, the Rights Agent shall not be subject to, nor required
to interpret or comply with, or determine if any Person has complied with, the
Merger Agreement even though reference thereto may be made in this Amendment and
the Rights Agreement.
f. Severability. If any term, provision, covenant or restriction
of this Amendment is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, then such term, provision,
covenant or restriction shall be enforced to the maximum extent permissible, and
the remainder of the terms, provisions, covenants and restrictions of this
Amendment shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
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IN WITNESS WHEREOF, the Parties have executed this Amendment to the
Rights Agreement as the date first set forth above.
VERITAS SOFTWARE CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President, General
Counsel and Secretary
MELLON INVESTOR SERVICES LLC
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: Vice President
