Exhibit 10.05
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of October 25,
2004 (this "First Supplemental Indenture"), is by and between VERITAS Software
Corporation, a Delaware corporation (the "Company") and U.S. Bank National
Association, a national banking association organized and existing under the
laws of the United States, as Trustee (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company and the Trustee are parties to an
indenture dated as of August 1, 2003 (as supplemented, the "Indenture"),
providing for the issuance of the Company's 0.25% Convertible Subordinated Notes
due 2013 (the "Notes");
WHEREAS, as a result of certain recent accounting
pronouncements, the Company desires to make certain amendments to (i) Sections
4.1 and 4.14 of the Indenture, pursuant to which the Company would surrender
certain rights granted to it relating to the Company's option to deliver to
Holders, upon conversion, shares of Applicable Stock, cash or a combination
thereof and (ii) Sections 3.9, 3.10 and 3.15 of the Indenture, pursuant to which
the Company would surrender certain rights granted to it relating to the
Company's option to deliver to Holders that submit their Securities for
repurchase upon the occurrence of a Fundamental Change, shares of Applicable
Stock for all or a portion of the Fundamental Change Repurchase Price;
WHEREAS, pursuant to Section 11.1 of the Indenture, the
Company may amend or supplement the Indenture in certain circumstances without
notice to or consent of any Holder; and
WHEREAS, pursuant to Section 11.6 of the Indenture, the
Trustee is authorized to execute and deliver this First Supplemental Indenture.
NOW, THEREFORE, for and in consideration of the foregoing
premises, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Notes, as follows:
1. Capitalized Terms. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. Amendments to Section 3.9.
(a) Section 3.9(a)(i) of the Indenture is hereby amended by adding the
word "cash" before the words "purchase price" in the fifth line of such section
3.9(a)(i).
(b) Section 3.9(b) of the Indenture is hereby amended by deleting
subsections (vi) through (ix) (inclusive) and correctly renumbering subsections
(x) through (xviii), and by changing the reference in new subsection (x) from
"(xiii)" to "(ix)".
(c) Section 3.9(c) of the Indenture is hereby amended as follows:
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(i) by adding the word "and" after the semicolon at the end of
subsection 3.9(c)(ii);
(ii) by deleting the phrase "; and" at the end of Section
3.9(c)(iii) and inserting "." in its place;
(iii) by deleting Section 3.9(c)(iv) in its entirety; and
(iv) by deleting in its entirety the third full paragraph of
Section 3.9(c) (which paragraph begins with the words "If a Holder,"
and ending with the words "Section 3.9 (c)(iv).").
3. Amendments to Section 3.10. Section 3.10 of the Indenture
(together with the corresponding portion of the Table of Contents) is hereby
amended and restated in its entirety to read as follows:
"SECTION 3.10. [RESERVED]."
4. Amendments to Section 3.15. Section 3.15 of the Indenture
is hereby amended to delete all references in such section to "or shares of
Applicable Stock".
5. Amendments to Section 4.1.
(a) Section 4.1(c) of the Indenture is hereby amended and restated in
its entirety to read as follows:
"during the five (5) consecutive Business Day period following
any five (5) consecutive Trading-Day period in which the average Trading Price
for the Securities (as determined by the Trustee) for such five (5) Trading-Day
period was less than 95% of the average Conversion Value for the Securities
during that period; provided, however, that if, on the day prior to the
Conversion Date, the Closing Price of the Applicable Stock is greater than 100%
of the applicable Conversion Price and less than or equal to 120% of the
applicable Conversion Price, a Security is surrendered for conversion and the
Securities are not otherwise convertible, the Company shall satisfy such
conversion in cash with a value equal to the principal amount of such Security
to be converted;"
(b) The last sentence of Section 4.1 of the Indenture is hereby amended
and restated in its entirety to read as follows:
"Notwithstanding any other provision of the Securities or this
Indenture, all Holders' rights with respect to conversion of the Securities and
the Company's obligation to deliver shares of Applicable Stock upon such
conversion (the "Conversion Obligation"), are subject, in their entirety, to the
Company's rights and obligations to satisfy such Conversion Obligation pursuant
to the provisions of Section 4.14."
6. Amendment and Restatement of Section 4.14. Section 4.14 of
the Indenture is hereby amended and restated in its entirety to read as follows:
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"SECTION 4.14. CASH CONVERSION OPTION
(a) If a Holder elects to convert all or any portion of a Security into
shares of Applicable Stock as set forth in Section 4.1 and the Company receives
such Holder's Notice of Conversion on or prior to the day that is 20 days prior
to the Final Maturity Date (the "Final Notice Date"), the Company shall satisfy
its Conversion Obligation in cash; provided that if, in the determination of the
Company, the Conversion Settlement Distribution (as determined below) is
expected to exceed the aggregate principal amount of the Securities to be
converted, the Company may choose to deliver shares of Applicable Stock to the
extent (and only to the extent) that the Conversion Settlement Distribution (as
finally determined) exceeds the aggregate principal amount of Securities
actually converted. Upon such election, the Company will notify such Holder
through the Trustee of the dollar amount to be satisfied in cash (which must be
expressed either as 100% of the Conversion Obligation or as a fixed dollar
amount) at any time on or before the date that is two Business Days following
the Company's receipt of such Holder's Notice of Conversion as specified in
Section 4.2 (such period, the "Cash Settlement Notice Period"). The Holder may
retract such Holder's Notice of Conversion at any time during the two Business
Day period beginning on the day after the final day of the Cash Settlement
Notice Period (the "Conversion Retraction Period"). With respect to any Notice
of Conversion received by the Company prior to the Final Notice Date, the
"Conversion Settlement Distribution" for any Security subject to such Notice of
Conversion shall consist of cash or a combination of cash and Applicable Stock,
as set forth below:
(i) if the Company elects to satisfy the entire Conversion Obligation
in cash, the Conversion Settlement Distribution shall be cash in an amount equal
to the product of:
(A) a number equal to the product of (x) the aggregate principal
amount of Securities to be converted divided by 1,000 multiplied by
(y) the Conversion Rate, and
(B) the average Closing Price of the Applicable Stock during
the 10 Trading-Day period beginning on the Trading Day immediately
following the final day of the Conversion Retraction Period (the "Cash
Settlement Averaging Period"); and
(ii) if the Company elects to satisfy a fixed dollar amount (other than
100%) of the Conversion Obligation in cash, the Conversion Settlement
Distribution shall consist of:
(A) such cash amount (the "Cash Amount"), and
(B) a number of shares of Applicable Stock equal to the
excess, if any, of
(x) the number of shares equal to (1) the aggregate
principal amount of the Securities to be converted divided by
1,000, multiplied by (2) the Conversion Rate, over
(y) the number of shares equal to the sum, for each
day of the Cash Settlement Averaging Period, of (C) 10% of the
Cash Amount, divided by (D) the Closing Price of the
Applicable Stock on such day.
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At any time on or before any Final Notice Date, the Company will notify the
Trustee of the dollar amount (which must be expressed either as 100% or as a
fixed dollar amount) of the Conversion Obligation that the Company shall satisfy
in cash with respect to conversions of Securities for which the Company receives
a Notice of Conversion after such Final Notice Date; provided, that the Company
shall satisfy such entire Conversion Obligation in cash unless the Conversion
Settlement Distribution (as determined above) is expected to exceed the
aggregate principal amount of the Securities to be converted, in which case the
Company may choose to deliver shares of Applicable Stock to the extent (and only
to the extent) that the Conversion Settlement Distribution (as finally
determined) exceeds such aggregate principal amount of Securities actually
converted. The applicable Conversion Settlement Distribution will be computed in
the same manner as set forth in clause (a) above except that the Cash Settlement
Averaging Period shall be the ten (10) Trading Days beginning on the first
Trading Day following the Company's receipt of the Notice of Conversion. Holders
shall not be permitted to retract any Notice of Conversion that is delivered
after the Final Notice Date."
7. Ratification of Indenture; Supplemental Indenture Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This First Supplemental Indenture shall
form a part of the Indenture for all purposes, and every holder of Notes
heretofore or hereafter authenticated and delivered shall be bound hereby.
8. Governing Law. This First Supplemental Indenture shall be
governed by, and construed in accordance with, the laws of the State of New
York.
9. Counterparts. The parties may sign any number of copies of
this Second Supplemental Indenture. Each signed copy shall be an original, but
all of them together shall represent the same agreement.
10. Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction hereof.
11. The Trustee. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this First
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, all as of the date first above
written.
VERITAS Software Corporation
By /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President, Finance
and Chief Financial Officer
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
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