VERITAS SOFTWARE CORPORATION
NOMINATION AGREEMENT
THIS NOMINATION AGREEMENT is entered into as of April 25, 1997, by
and between VERITAS Software Corporation, a Delaware corporation (the
"Company"), and Warburg, Pincus Investors, L.P. ("WARBURG").
RECITALS
WHEREAS, Warburg acquired shares of Common Stock of the Company pursuant
to an Agreement and Plan of Reorganization by and among the Company, VERITAS
Software Corporation, a California corporation ("VERITAS"), and OpenVision
Technologies, Inc. ("OPENVISION"), dated January 13, 1997 (the "MERGER
AGREEMENT") in connection with the merger of the Company's two subsidiaries with
and into VERITAS and OpenVision, respectively. Pursuant to Section 5.17 of the
Merger Agreement, the Company agreed to provide Warburg certain director
nomination rights as provided herein.
WHEREAS, as an inducement for OpenVision to enter into the Merger
Agreement, the Company desires to grant the director nomination rights to
Warburg as contained herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the Company and Warburg agree as follows:
SECTION 1
DIRECTOR NOMINATION RIGHTS
1.1 TWO DESIGNEES. For so long as Warburg continues to own more than 15%
of the outstanding Common Stock of the Company, the Company shall nominate, in
connection with each stockholder solicitation relating to the election of
directors, two candidates designated by Warburg, at least one of whom shall be a
person who is (i) not a general partner, limited partner or employee of Warburg
and (ii) reasonably acceptable to the Company.
1.2 ONE DESIGNEE. For so long as Warburg continues to own equal to or less
than 15% and more than 5% of the outstanding Common Stock of the Company, the
Company shall nominate, in connection with each stockholder solicitation
relating to the election of directors, one candidate designated by Warburg.
1.3 AFFILIATES. For purposes of this Agreement, all shares held by an
affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933,
as amended) of Warburg, will be deemed to be owned by Warburg.
1.4 VOTING OF MANAGEMENT SHARES. The Company shall use its best efforts
(i) to cause to be voted the shares for which the Company's management or Board
of Directors holds proxies or is otherwise entitled to vote in favor of the
election of such designee(s) nominated
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pursuant to this Agreement (the "WARBURG DESIGNEE(S)"); and (ii) to cause the
Board of Directors of the Company to unanimously recommend to its stockholders
to vote in favor of the Warburg Designee(s).
1.5 VACANCIES. In the event that any Warburg Designee shall cease to serve
as a director of the Company for any reason, the vacancy resulting therefrom
shall be filled by another Warburg Designee.
1.6 EQUAL TREATMENT. The Company shall provide the same compensation
and rights and benefits of indemnity to the Warburg Designee(s) as are
provided to other non-employee directors.
SECTION 2.
MISCELLANEOUS
2.1 TERMINATION. This Agreement shall terminate and have no further force
or effect at such time as Warburg ceases to hold more than 5% of the outstanding
Common Stock of the Company.
2.2 WAIVERS AND AMENDMENTS. The rights and obligations of the Company and
the rights of Warburg under this Agreement may be waived (either generally or in
a particular instance, either retroactively or prospectively, and either for a
specified period of time or indefinitely) or amended, only with the written
consent of the parties.
2.3 GOVERNING LAW. This Agreement shall be governed by and construed under
the laws of the State of California as such laws are applied to contracts made
and to be fully performed entirely within that state between residents of that
state. All disputes arising out of this Agreement shall be subject to the
exclusive jurisdiction and venue of the California State courts of Santa Clara
County, California, (or, if there is exclusive federal jurisdiction, the United
States District Court for the Northern District of California) and the parties
consent to the personal and exclusive jurisdiction and venue of these courts.
2.4 SPECIFIC ENFORCEMENT. It is agreed and understood that monetary
damages would not adequately compensate Warburg for the breach of this Agreement
by the Company, that this Agreement shall be specifically enforceable, and that
any breach or threatened breach of this Agreement shall be the proper subject of
a temporary or permanent injunction or restraining order. Further, the Company
waives any claim or defense that there is an adequate remedy at law for such
breach or threatened breach.
2.5 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
2.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
constitute one instrument.
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The foregoing Nomination Agreement is hereby executed as of the date first
above written.
"COMPANY"
VERITAS SOFTWARE CORPORATION,
A DELAWARE CORPORATION
/s/ Mark Leslie
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Signature of Authorized Signatory
Mark Leslie, President & Chief Executive Officer
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Print Name and Title
"WARBURG"
WARBURG, PINCUS INVESTORS, L.P.
/s/ Stewart Gross
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Signature of Authorized Signatory
Stewart Gross, Partner, Warburg, Pincus & Co., General
Partner
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Print Name and Title
Nomination Agreement - Veritas Software Corp. and Warburg, Pincus Investors LP
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