Free Declaration - District Court of Delaware - Delaware

Case 1 :04-cv-00831-SLR Document 56 Filed 07/20/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
)
IN RE VERITAS SOFTWARE CORP. ) Cage N0; O4-CV-83] (SLR)
SECURITIES LITIGATION ) Consolidated Action
)
DECLARATION OF CHRISTINA L. COSTLEY
IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS
THE CONSOLIDATED AMENDED CLASS ACTION COMPLAINT
OF CouNsEL: Peter J. Walsh, Jr. (DSB ID No. 2437)
Nina F. Locker, Esquire PorrER ANoERsoN & CoRRooN LLP
Peri Nielsen, Esquire Hercules Plaza, 6th Floor
WILSON SONSINI GOODRICH & ROSATI, PC l3l3 North Market Street
650 Page Mill Road Wilmington, Delaware 19801
Palo Alto, California 94304-1050 Tel: (302) 984-6000
Tel: (650) 493-9300 Email: [email protected]
Attorneys for Defendants VERITAS
Software Corporation, Edwin J Gillis,
Gary L. Bloom and John Brigden
Dated July 20, 2005
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Case 1:04-cv-00831-SLR Document 56 Filed 07/20/2005 Page 2 of 4
1 I, Christina L. Costley, declare as follows:
2 1. I am an attorney duly licensed to practice before the courts of the State of
3 California and an associate with the law firm of Wilson Sonsini Goodrich & Rosati, counsel for
4 VERITAS in the above-captioned action.
5 2. Copies of the Forms 4 filed by Gary Bloom ("Bloom") during the class period are
6 attached to the Declaration of Peter J. Walsh Jr. ("Walsh Declaration") as Exhibit L.
7 3. Copies of the Forms 4 filed by Edwin Gillis ("Gillis") during the class period are
8 attached to the Walsh Declaration as Exhibit M.
9 4. A copy of excerpts from VERITAS’ Proxy Statement, filed with the SEC on July
10 21, 2004, is attached to the Walsh Declaration as Exhibit D.
11 5. The percentage of shares sold by Bloom during the class period was calculated as
12 follows: (shares sold during the class period) / (the total of shares sold and shares and vested
13 options owned at the end of the class period). The Forms 4 filed by Bloom disclose that he sold
14 65,500 shares during the class period. Walsh Declaration Ex. L. The Forms 4 also show that as
15 of July 6, 2004, the end of the class period, Bloom held 3,392 shares. According to VERITAS’
16 Proxy Statement, Bloom held 3,489,988 securities underlying exercisable options as of
17 December 31, 2003. Walsh Declaration Ex. D at 36. Bloom also held 2,030,012 securities
18 underlying unexercisable options as of December 31, 2003. Id. Based on an approximate
19 vesting rate of 1/48 per month, multiplied by seven months (January, 2004 —July, 2004), Bloom
20 acquired an additional 296,043 exercisable options between December 31, 2003 and July 6,
21 2004. Id. The Forms 4 show that from January l, 2004 through July 6, 2004 Bloom sold 35,500
22 of the options that vested. Walsh Declaration Ex. L. Based on these figures, Bloom held an
23 approximate total of 3,753,923 shares and vested options, as of July 6.1 Thus, Bloom sold
24 approximately 1.7% of his holdings during the class period:
25 (65,500)/(65,500+3,753,923) = .0171.
26 ——
27 I This figure represents the following: (1) 3,489,988 exercisable options held at the end of
2003; (2) 260,543 exercisable options that vested, but were not sold, in 2004; and (3) 3,392
28 shares.
CQSTLEY DECL [SO DE]:ENDANTS’ MTD 1 C:\NrP0rtbl\PALlBl\CHCO\268l406_l.DOC
No. 04-CV-831
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Case 1:04-cv-00831-SLR Document 56 Filed 07/20/2005 Page 3 of 4
1 6. The percentage of shares sold by Gillis during the class period was calculated as
2 follows: (shares sold during the class period)/(the total of shares sold and shares and vested
3 options owned at the end of the class period). The Forms 4 tiled by Gillis disclose that he sold
4 90,000 shares during the class period. Walsh Declaration Ex. M. The Forms 4 also show that as
5 of July 6, 2004, the end of the class period, Gillis held 994 shares. According to VERITAS’
6 Proxy Statement, Gillis held 149,583 securities underlying exercisable options as of December
7 31, 2003. Walsh Declaration Ex. D at 36. Gillis also held 510,417 securities underlying
8 unexercisable options as of December 31, 2003. Id. Based on an approximate vesting rate of
9 1/48 per month, multiplied by seven months (January, 2004 —July, 2004), Gillis acquired 74,435
10 additional exercisable options between December 31, 2003 and July 6, 2004. Id. The Forms 4
11 show that, during this period, Gillis sold 50,000 of the options that vested. Walsh Declaration
12 Ex. M. Based on these figures, Gillis held an approximate total of 175,012 shares and vested
13 options as of July 6, 2004.2 Thus, Gillis sold approximately 34% of his holdings during the class
14 period:
15 (90,000)/(90,000+175,012) = .3396.
16 I declare under penalty of perjury under the laws of the United States of America that the
17 foregoing is true and correct. Executed on July 19, 2005 at Palo Alto, California.
18
19 / 5
2.. of ef
Christina L. Costley
21
22
23
24
25
26
27 2 This figure represents the following: (1) 149,583 exercisable options held at the end of
28 2003; (2) 24,435 exercisable options that vested, but were not sold, in 2004; and (3) 994 shares.
Cosruzv Diacr. iso DEFENDANTS’ MTD 2 C=\NrP<>¤bl\PAL1B l\CHCO\268l406_1-DOC
No. 04-CV-831
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Case 1:04-cv-00831-SLR Document 56 Filed 07/20/2005 Page 4 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CERTIFICATE OF SERVICE
I, Peter J. Walsh, Jr., hereby certify that on July 20, 2005, I caused true and
correct copies of the foregoing DECLARATION OF CHRISTINA L. COSTLEY IN
SUPPORT OF DEFENDANTS’ MOTION TO DISMISS THE CONSOLIDATED
AMENDED CLASS ACTION COMPLAINT to be electronically filed with the Clerk of
the Court using CM/ECF which is available for public viewing an downloading, and
which will send notification of such filing to the following counsel of record:
Norman M. Monhait, Esquire (DSB ID No. 1040)
Rosenthal, Monhait, Gross & Goddess, P.A.
919 Market Street, Suite 1401
Post Office Box 1070
Wilmington, Delaware 19899-1401
Tel: (302) 656-4433
Email: [email protected]
I hereby further certify that on July 20, 2005, I have caused the foregoing document to
also be delivered by FedEx/Next Business Morning Service to the following
non-registered participant:
Christopher J. Keller, Esquire
Goodkind Labaton Rudoff & Sucharow LLP
100 Park Avenue
New York, New York 10017
Q my A
Peter Q sh, Jr. (DS 0.2437)
POTTER ANDERSON 3 ' RROON, LLP
Hercules Plaza, 6th Floor
1313 North Market Street
Wilmington, Delaware 19801
Tel: (302) 984-6000
Email: [email protected]
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