{"id":40842,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/nomination-agreement-veritas-software-corp-and-warburg-pincus.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"nomination-agreement-veritas-software-corp-and-warburg-pincus","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/corporate\/nomination-agreement-veritas-software-corp-and-warburg-pincus.html","title":{"rendered":"Nomination Agreement &#8211; Veritas Software Corp. and Warburg, Pincus Investors LP"},"content":{"rendered":"<pre>\n                          VERITAS SOFTWARE CORPORATION\n\n                              NOMINATION AGREEMENT\n\n      THIS NOMINATION AGREEMENT is entered into as of April 25, 1997, by\nand between VERITAS Software Corporation, a Delaware corporation (the\n\"Company\"), and Warburg, Pincus Investors, L.P. (\"WARBURG\").\n\n                                    RECITALS\n\n      WHEREAS, Warburg acquired shares of Common Stock of the Company pursuant\nto an Agreement and Plan of Reorganization by and among the Company, VERITAS\nSoftware Corporation, a California corporation (\"VERITAS\"), and OpenVision\nTechnologies, Inc. (\"OPENVISION\"), dated January 13, 1997 (the \"MERGER\nAGREEMENT\") in connection with the merger of the Company's two subsidiaries with\nand into VERITAS and OpenVision, respectively. Pursuant to Section 5.17 of the\nMerger Agreement, the Company agreed to provide Warburg certain director\nnomination rights as provided herein.\n\n      WHEREAS, as an inducement for OpenVision to enter into the Merger\nAgreement, the Company desires to grant the director nomination rights to\nWarburg as contained herein.\n\n      NOW, THEREFORE, in consideration of the mutual promises and covenants\nhereinafter set forth, the Company and Warburg agree as follows:\n\n                                    SECTION 1\n\n                           DIRECTOR NOMINATION RIGHTS\n\n      1.1 TWO DESIGNEES. For so long as Warburg continues to own more than 15%\nof the outstanding Common Stock of the Company, the Company shall nominate, in\nconnection with each stockholder solicitation relating to the election of\ndirectors, two candidates designated by Warburg, at least one of whom shall be a\nperson who is (i) not a general partner, limited partner or employee of Warburg\nand (ii) reasonably acceptable to the Company.\n\n      1.2 ONE DESIGNEE. For so long as Warburg continues to own equal to or less\nthan 15% and more than 5% of the outstanding Common Stock of the Company, the\nCompany shall nominate, in connection with each stockholder solicitation\nrelating to the election of directors, one candidate designated by Warburg.\n\n      1.3 AFFILIATES. For purposes of this Agreement, all shares held by an\naffiliate (as defined in Rule 405 promulgated under the Securities Act of 1933,\nas amended) of Warburg, will be deemed to be owned by Warburg.\n\n      1.4 VOTING OF MANAGEMENT SHARES. The Company shall use its best efforts\n(i) to cause to be voted the shares for which the Company's management or Board\nof Directors holds proxies or is otherwise entitled to vote in favor of the\nelection of such designee(s) nominated \n\n   2\npursuant to this Agreement (the \"WARBURG DESIGNEE(S)\"); and (ii) to cause the\nBoard of Directors of the Company to unanimously recommend to its stockholders\nto vote in favor of the Warburg Designee(s).\n\n      1.5 VACANCIES. In the event that any Warburg Designee shall cease to serve\nas a director of the Company for any reason, the vacancy resulting therefrom\nshall be filled by another Warburg Designee.\n\n      1.6   EQUAL TREATMENT.  The Company shall provide the same compensation\nand rights and benefits of indemnity to the Warburg Designee(s) as are\nprovided to other non-employee directors.\n\n                                   SECTION 2.\n\n                                  MISCELLANEOUS\n\n      2.1 TERMINATION. This Agreement shall terminate and have no further force\nor effect at such time as Warburg ceases to hold more than 5% of the outstanding\nCommon Stock of the Company.\n\n      2.2 WAIVERS AND AMENDMENTS. The rights and obligations of the Company and\nthe rights of Warburg under this Agreement may be waived (either generally or in\na particular instance, either retroactively or prospectively, and either for a\nspecified period of time or indefinitely) or amended, only with the written\nconsent of the parties.\n\n      2.3 GOVERNING LAW. This Agreement shall be governed by and construed under\nthe laws of the State of California as such laws are applied to contracts made\nand to be fully performed entirely within that state between residents of that\nstate. All disputes arising out of this Agreement shall be subject to the\nexclusive jurisdiction and venue of the California State courts of Santa Clara\nCounty, California, (or, if there is exclusive federal jurisdiction, the United\nStates District Court for the Northern District of California) and the parties\nconsent to the personal and exclusive jurisdiction and venue of these courts.\n\n      2.4 SPECIFIC ENFORCEMENT. It is agreed and understood that monetary\ndamages would not adequately compensate Warburg for the breach of this Agreement\nby the Company, that this Agreement shall be specifically enforceable, and that\nany breach or threatened breach of this Agreement shall be the proper subject of\na temporary or permanent injunction or restraining order. Further, the Company\nwaives any claim or defense that there is an adequate remedy at law for such\nbreach or threatened breach.\n\n      2.5 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein,\nthe provisions hereof shall inure to the benefit of, and be binding upon, the\nsuccessors, assigns, heirs, executors and administrators of the parties hereto.\n\n      2.6 COUNTERPARTS. This Agreement may be executed in any number of\ncounterparts, each of which shall be an original, but all of which together\nconstitute one instrument.\n\n\n                                      -2-\n\n   3\n      The foregoing Nomination Agreement is hereby executed as of the date first\nabove written.\n\n                                    \"COMPANY\"\n\n                                    VERITAS SOFTWARE CORPORATION,\n                                    A DELAWARE CORPORATION\n\n                          \/s\/ Mark Leslie\n                          --------------------------------------\n                          Signature of Authorized Signatory\n\n                          Mark Leslie, President &amp; Chief Executive Officer\n                          --------------------------------------\n                          Print Name and Title\n\n\n\n                                    \"WARBURG\"\n\n                                    WARBURG, PINCUS INVESTORS, L.P.\n\n                          \/s\/ Stewart Gross\n                          --------------------------------------\n                          Signature of Authorized Signatory\n\n                          Stewart Gross, Partner, Warburg, Pincus &amp; Co., General\n                          Partner\n                          --------------------------------------\n                          Print Name and Title\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9244],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9553,9556],"class_list":["post-40842","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-veritas-software-corp","corporate_contracts_industries-technology__software","corporate_contracts_types-corporate","corporate_contracts_types-corporate__govern"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40842","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40842"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40842"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40842"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40842"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}