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Fenwick & West looks like a winner in the biggest software merger in Silicon Valley history. The firm represents security leader Symantec Corp., which announced Thursday that it would trade an estimated $13.5 billion in stock to acquire Veritas Software Corp., the world’s second-largest data storage company. But Fenwick was nearly shut out of the deal because it had represented both companies in transactions since the early 1980s. Partner Daniel Winnike, whose 20-lawyer team has worked on the deal since Thanksgiving, said he was happy both that Symantec chose Fenwick and that Veritas waived its conflict concerns. “We’ve been very active in acquisitions with Symantec over the last few years, so we were grateful they chose us,” Winnike said. “On a major transaction, sort of an evolutionary transaction like this, it’s fun to be involved on either side.” Of course, being on the buyer’s side means the prospect of more work down the road. And Gordon Davidson, Fenwick’s managing partner, said his history with both firms is a bonus. “The good thing here is we have a good relationship with the management of both companies,” he said. Arthur Courville, Symantec’s vice president and general counsel, said his company will likely continue to use Fenwick. “We work with a variety of firms, and we’ll pick the firms we know the best,” Courville said. “We have a long relationship with Fenwick … and we’ll continue to use them.” The merger is expected to close in the second quarter of 2005. In its wake, there’s likely to be a lull for outside counsel while in-house lawyers work on the mechanics of integrating two large companies, Courville said. He noted that his staff will have to spend time vetting internal decisions to make sure they don’t appreciably change the value of the company before the acquisition is finalized. “You have restraints on things like compensation, investment equity compensation. � You have restraints on how much debt you can incur,” he said. “And you have a set of overlays that have to do with the regulatory requirements.” These include different laws in the numerous foreign countries where both companies do business, he said. Symantec’s outside counsel may not have to wait too long for the company’s next acquisition. Courville pointed out that both Cupertino, Calif.-based Symantec and Veritas, of Mountain View, Calif., have historically been active in taking over other firms, and are merging in a software market that is rapidly consolidating. “We both do quite a lot of smaller acquisitions as well, and there’s quite a lot of room for other transactions,” he said. While Fenwick may be on the inside track, Courville said Simpson Thatcher & Bartlett — which represented Veritas in the deal — could also get future work from Symantec. Richard Capelouto, Simpson Thatcher’s lead lawyer on the deal, said he’s not thinking now about whether his firm is the winner or loser. “The key is to have a successful deal and think about the rest later,” he said, adding that Simpson has worked on several deals for Veritas in recent years. Veritas hired Simpson for its experience, “not because of the Fenwick conflict,” he said. In coming weeks, the lawyers will continue to work out the details of the acquisition, said Scott Spector, a Fenwick partner working on compensation issues. He said wages and benefits are always an issue in Silicon Valley mergers, where companies need to attract educated workers in a competitive market. “It’s very much employee-oriented, rather than just buying the business of the company,” he said. Fenwick’s Davidson said the big merger now — “a joining of near equals” — might turn out to be easier than the work Symantec provides down the road. “Ironically, the mechanics of doing a large deal like this are simpler than doing a lot of small deals,” he said.

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